Early v. Durham Dept. of Social Services

• Decision Date: 16 August 2005
• Docket Number: No. COA04-35.,COA04-35.
• Citation: 616 S.E.2d 553
• Parties: Marsha A. EARLY, Petitioner, v. COUNTY OF DURHAM DEPARTMENT OF SOCIAL SERVICES, Respondent.
• Court: North Carolina Supreme Court

616 S.E.2d 553

Marsha A. EARLY, Petitioner, v. COUNTY OF DURHAM DEPARTMENT OF SOCIAL SERVICES, Respondent.

No. COA04-35.

Court of Appeals of North Carolina.

August 16, 2005.

COPYRIGHT MATERIAL OMITTED

Appeal by respondent from order entered 11 July 2003 by Judge Evelyn Werth Hill in Wake County Superior Court. Heard in the Court of Appeals 15 September 2004.

Patrice Walker, Chapel Hill, for petitioner-appellee.

County Attorney S.C. Kitchen, by Deputy County Attorney Lowell L. Siler, for respondent-appellant.

GEER, Judge.

Respondent Durham County Department of Social Services ("DSS"), appeals from the decision of the trial court upon a petition for judicial review, holding that DSS terminated the employment of petitioner Marsha A. Early without just cause. DSS argues on appeal: (1) that Early was not entitled to file a contested case alleging a lack of just cause, (2) that Early's contested case petition was not timely filed, (3) that this Court should order further proceedings on the just cause claim, and (4) that, in any event, a local governmental employee is not entitled to recover back pay or attorneys' fees. We hold that the trial court had subject matter jurisdiction over Early's just cause claim and that the contested case was timely. Further, we hold that the issue of just cause has been fully litigated and determined and DSS has offered no justification for additional proceedings or for reversal of the trial court's conclusion that DSS lacked just cause for terminating Early's employment. Finally, because Early prevailed below, we hold that the trial court could properly decide to award her back pay and attorneys' fees. Accordingly, we affirm.

Facts

Marsha Early began work on 3 January 2000 as a Child Support Agent II in the Establishment Unit of the DSS Child Support Department. Her immediate supervisor was Laurie Hasty, who in turn reported to Jerome Brown, the Program Manager. Approximately three months after she began work, on 4 April 2000, Early underwent emergency surgery. Early and her husband called Hasty, notified her why Early would not be reporting to work, and requested leave without pay ("LWOP") for the time necessary to recover from the surgery. On 6 April 2000, Early submitted the required paperwork to Hasty. On 17 April 2000, DSS approved LWOP for the period 4 April 2000 through 4 May 2000. Subsequently, Early requested and was granted an extension until 22 May 2000. She received additional time off through 29 May 2000 because of the death of her father.

On 4 August 2000, Early was involved in a car accident on her way to work. On 17 October 2000, a doctor advised Early that she required back surgery and that she would need approximately eight to twelve weeks to recover from the surgery. Early testified that her doctor gave her the choice of having the surgery on the following day, 18 October 2000, or at a later date of Early's choosing. Early telephoned Hasty, told her of the doctor's diagnosis, and asked Hasty if she would grant Early leave so that she could have the surgery the next day. Hasty replied, "no problem." Based on Hasty's response, Early elected to have the surgery on 18 October 2000. Early testified that she would not have chosen to have the surgery then if Hasty had not verbally approved the leave request.

On the morning of 18 October 2000, Hasty faxed the appropriate LWOP forms to Early's doctor. Early underwent her surgery on the same day. On 19 October 2000, Early's doctor completed the LWOP forms and Early's husband faxed the forms to three different fax numbers provided by Hasty. On the forms, the doctor indicated that it would be necessary for Early to be absent from work for approximately eight to twelve weeks. On 23 October 2000, Early's husband also hand-delivered the completed forms to Hasty. DSS did not indicate to Early or her husband any problem with the leave request. Based on her doctor's projection, Early anticipated returning to work on 17 January 2001.

In a pleading filed with the Office of Administrative Hearings, DSS stated: "Although [DSS] initially granted [Early's] LWOP through January 17, [Early's] absence was creating a hardship on the unit such that it was not in the best interest of [DSS] for [Early] to remain on LWOP." Approximately one to two weeks after Early's communications with Hasty, Hasty met with Brown to discuss the potential impact of Early's absence. Hasty told Brown that her unit could only handle Early's caseload through 13 December 2000 without there being a hardship on her unit. Brown and Hasty then recommended to DSS' director, Daniel C. Hudgins, that Early's LWOP extend only until 13 December 2000.

Accordingly, on 14 November 2000, Hudgins mailed Early a letter stating that her LWOP would last only until 13 December 2000. Specifically, the letter stated: "You are on Leave Without Pay due to a medical condition effective October 19, 2000. . . . Since you are not eligible for Family Medical Leave, you will be expected to return to work full-time no later than December 13, 2000. You must bring a Fitness for Duty Statement from your medical doctor indicating that you are able to work with no limitations." The letter did not state what would happen if Early was unable to obtain a "Fitness for Duty Statement" from her doctor indicating no work limitations as of 13 December 2000.

Early waited to reply to the letter until after her post-operation appointment with her doctor in early December. At that doctor's visit, Early's doctor recommended that she not return to work on 13 December 2000 in order to ensure that her spinal alignment remained intact. The doctor faxed a letter to DSS indicating that Early was still under his care and would be able to return to work on 29 January 2001, but that, after that date, she would have two restrictions lasting for an additional four weeks: (1) no prolonged bending, stooping, standing, or sitting, and (2) no lifting of more than 10 pounds.

On 13 December 2000, Early called Hasty at work and left a message on her voice mail, stating that she was calling to see if Hasty had received the doctor's letter. Hasty returned Early's call that day, confirmed that she had received the doctor's fax, and stated that she was placing it in Early's personnel file. During the course of this conversation with plaintiff, Hasty made no comment suggesting that plaintiff had exhausted her LWOP or that her employment was at risk.

Nevertheless, on the same day, 13 December 2000, Director Hudgins mailed Early a letter notifying her:

This is a follow-up letter to inform you that your employment with the County of Durham is terminated effective December 13, 2000.

Unless an extension has been approved, any employee who fails to report to work at the expiration of a leave of absence, shall be considered Absent Without Leave (AWOL) and will be separated from the County without notice.

Hudgins also attached a copy of the appeals process at DSS.

In accordance with that process, Early submitted a grievance to her immediate supervisor, Hasty, within 15 days of receiving her termination letter. On 22 December 2000, Hasty responded: "Leave without pay is granted only with the approval of the Department Head and supervisor and is based on the needs of the agency such as workload, need to fill the employee's job, etc. These factors were used in determining that we could only grant your leave without pay request until December 13, 2000." Within five days, Early then appealed to Hudgins. Hudgins responded in a letter dated 4 January 2001.

On 19 February 2001, Early filed a contested case petition with the State Office of Administrative Hearings ("OAH"), alleging (1) that she was dismissed without just cause contrary to N.C. Gen.Stat. § 126-35(a) (2003) and (2) that she was discriminated against based on her gender, age, and handicapping condition. An administrative law judge ("ALJ") denied DSS' motion to dismiss the petition as untimely after finding that DSS had failed to follow the required procedures outlined in N.C. Gen.Stat. § 150B-23(f) (2003) regarding notification of appeal rights.

Following a two-day hearing, the ALJ rendered an opinion containing 73 findings of fact. Based on those findings, the ALJ (1) dismissed Early's just cause claim for lack of subject matter jurisdiction on the ground that Early lacked sufficient months of service to assert a claim for just cause and (2) concluded that Early had failed to meet her burden of proving intentional discrimination based on gender, age, or handicapping condition. She, therefore, recommended that DSS' decision to discharge Early from employment be affirmed.

On 4 February 2002, the State Personnel Commission issued an "Amended Recommendation for Decision to Local Appointing Authority." The Commission adopted the ALJ's 73 findings of fact in their entirety with the addition of one sentence relating to Early's just cause claim: "However, there is no statutory requirement in Chapter 126 that County employees subject to the provision of Chapter 126 work a certain amount of time before becoming entitled to appeal a termination under Chapter 126."

Based on the findings, the Commission reached the same conclusion as the ALJ that Early had failed to prove discrimination based on gender, age, or handicapping condition. With respect to the just cause claim, however, the Commission concluded:

Petitioner was entitled to bring a just cause claim. Based on Petitioner's supervisor's statement to her "no problem" when she discussed having the surgery with her on October 17, 2000, it is clear that Petitioner reasonably expected to be able to take sufficient leave to complete the recuperation process from the surgery. Respondent did not have just cause to terminate her employment for failing to return to work on December 13, 2000.

The Commission, therefore, recommended that DSS adopt the ALJ's decision regarding Early's claims of discrimination, but that DSS...