260 N.C. App. 40
N.C. Ct. App.2018Background
- Jeffrey Hunt, a career state correctional officer at Scotland Correctional Institution, left the facility upset during a 3 Nov 2016 meeting with unit manager Queen Gerald about an alleged absence; Gerald testified she heard Hunt say either “I quit” or “I’m quitting,” which Hunt denied.
- Hunt left without swiping out, was later denied reentry by the officer-in-charge, and DPS superintendent Katy Poole treated the separation as a verbal resignation and sent Hunt a 9 Nov 2016 letter confirming resignation; the letter did not state appeal rights.
- Hunt twice disputed that he had resigned (letter on 21 Nov 2016 and a Step 1 grievance filed 20 Jan 2017); DPS refused to process the grievance on 14 Feb 2017, stating he had resigned.
- Hunt filed a contested case petition in OAH on 22 Feb 2017; DPS moved to dismiss for lack of jurisdiction (failure to exhaust grievance and untimely grievance).
- The ALJ denied the motion to dismiss, found Hunt did not submit a legally effective resignation (Gerald lacked authority to accept), concluded DPS effectively discharged him without just cause, ordered reinstatement and back pay, and later awarded $11,720 in attorneys’ fees; DPS appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OAH had subject-matter jurisdiction over Hunt's contested-case petition | Hunt: DPS refused to process his grievance, making exhaustion impossible and tolling deadlines; he filed OAH petition timely after DPS refused. | DPS: Hunt failed to exhaust mandatory grievance process and missed statutory deadlines (should have filed Step 1 within 15 days of 9 Nov letter). | OAH has jurisdiction; DPS never provided statutorily required notice of appeal rights and refused to consider the grievance, so exhaustion/deadlines did not bar OAH review. |
| Whether Hunt’s separation was a voluntary resignation or a disciplinary discharge | Hunt: He never validly resigned; Gerald lacked authority to accept resignations; he attempted to return and sought to rescind. | DPS: The 9 Nov letter confirmed Hunt had resigned on 3 Nov, so statutory grievance/deadline regime for resignations applies. | The separation was an involuntary discharge because Gerald was not an appointing authority and no valid resignation to an appointing authority occurred. |
| Whether DPS complied with the statutory requirement to furnish a written statement of reasons and appeal rights before disciplining | Hunt: DPS failed to provide the required written statement of appeal rights, so the 15-day grievance clock never started. | DPS: Implied that the 9 Nov letter sufficed and deadlines ran from that date. | DPS failed to furnish required appeal-rights statement; statutory 15-day deadline never triggered. |
| Whether attorneys’ fees award was erroneous procedurally | Hunt: Entitled to fees under applicable law; ALJ’s separate order awarded fees after final decision. | DPS: ALJ erred by issuing fees in separate order and issued award before DPS’s 10-day response window expired. | Award affirmed; no authority showing separate order is prohibited, and DPS failed to show prejudice from the timing. |
Key Cases Cited
- Brown v. N.C. Dep’t of Pub. Safety, 808 S.E.2d 322 (N.C. Ct. App.) (standard of review for motion to dismiss for lack of jurisdiction)
- Harris v. N.C. Dep’t of Pub. Safety, 798 S.E.2d 127 (N.C. Ct. App.) (statutory amendments to state employee grievance/contested-case procedure)
- Nailing v. UNC-CH, 451 S.E.2d 351 (N.C. Ct. App.) (petitioner must follow Chapter 126 procedures to commence contested case)
- Britt v. N.C. Sheriffs’ Educ. & Training Standards Comm’n, 501 S.E.2d 75 (N.C.) (interpretation of clear regulatory language)
- Perkins v. Ark. Trucking Servs., 528 S.E.2d 902 (N.C.) (use of dictionaries to determine ordinary meaning)
- Nix v. Dep’t of Admin., 417 S.E.2d 823 (N.C. Ct. App.) (notice of appeal rights required where resignation/termination disputed)
- Early v. Cty. of Durham Dep’t of Soc. Servs., 616 S.E.2d 553 (N.C. Ct. App.) (timeliness excused where agency failed to give required appeal-rights notice)
- Gray v. Dep’t of Env’t, Health & Nat. Res., 560 S.E.2d 394 (N.C. Ct. App.) (defective appeal-rights notice does not trigger filing deadline)
- Jordan v. N.C. Dep’t of Transp., 538 S.E.2d 623 (N.C. Ct. App.) (contested-case filing timely where agency’s notice omitted critical appeal information)
- Faucette v. 6303 Carmel Rd., LLC, 775 S.E.2d 316 (N.C. Ct. App.) (appellant must show error was prejudicial to obtain relief)