Russell v. N.C. Dep't of Pub. Safety, COA21-482

Docket NºCOA21-482
Citation871 S.E.2d 821
Case DateApril 05, 2022
CourtCourt of Appeal of North Carolina (US)

871 S.E.2d 821

Cecil John RUSSELL, Petitioner,

No. COA21-482

Court of Appeals of North Carolina.

Filed April 5, 2022

Jennifer J. Knox, Raleigh, Wake County, for Petitioner-Appellee.

Attorney General Joshua H. Stein, by Assistant Attorney General Adrina G. Bass, for Defendant-Appellant.


¶ 1 The North Carolina Department of Public Safety ("Respondent") appeals from a final decision in a contested case in the Office of Administrative Hearings ("OAH"). We affirm the order of the administrative law judge ("ALJ").

I. Background

¶ 2 On 12 November 2018, Cecil John Russell ("Petitioner") was employed as a corrections officer at Central Prison in Raleigh, North Carolina, when he suffered a work-related injury. As a result of the injury, Petitioner was placed on a leave of absence. During his leave of absence, Petitioner received medical benefits and disability compensation under North Carolina's Workers’ Compensation Act.

¶ 3 On 5 July 2019, Petitioner was allowed to return to work in a light duty position. The next month, however, he suffered a reinjury during his recertification as a law enforcement officer. As a result of the reinjury, Petitioner was placed on another leave of absence, and began to receive workers’ compensation benefits again.

¶ 4 On 17 January 2020, Petitioner requested job placement assistance from Respondent. Ms. R. Hinton, a human resources professional employed by Respondent, testified at the contested case hearing that when one of Respondent's employees is released from a physician's care after a work-related injury with permanent restrictions, an effort is made to locate a new position for the employee where the employee can work in a full duty capacity. Ms. Hinton described the job placement assistance process as follows: when an employee is released from a physician's care with permanent restrictions, meaning the employee cannot return to the employee's previous job at full duty, Respondent sends the employee a letter confirming that the employee has reached maximum medical improvement but still has a disability, and includes a blank employment application with the letter. The employee then has 15 days to return the application, and after receiving the completed application, Respondent conducts two job searches for the employee. Respondent's recruitment section determines the possible positions for which the employee is qualified based on the contents of the application, and then human resources runs a report of vacant positions within a 50-mile radius of the employee. Respondent runs two of these reports once a week during two consecutive weeks. If no vacant position is located during these job searches, the employee is separated from employment due to unavailability.

¶ 5 The job searches performed for Petitioner were unsuccessful. On 12 February 2020, Respondent sent Petitioner a Pre-Separation

871 S.E.2d 824

Letter. The Pre-Separation Letter explained:

when an employee is on workers’ compensation leave of absence, and the employee is unable to return to all of the position's essential duties as set forth in the employee's job description or designated work schedule due to a medical condition or the vagueness of a medical prognosis, and the employee and the agency are unable to reach agreement on a return to work arrangement that meets both the needs of the agency and the employee's medical condition, a separation may occur on the earliest of the following dates:

(i) after the employee has reached maximum medical improvement for the work-related injury for which the employee is on workers’ compensation leave of absence and the agency is unable to accommodate the employee's permanent work restrictions related to such injury; or

(ii) 12 months after the date of the employee's work-related injury.

The Pre-Separation Letter noted that Petitioner was informed on 28 January 2020 that "there were no suitable vacant positions available given [his] medical restrictions and qualifications[,]" and advised as follows:

Should you remain unavailable, prior to a recommendation for your separation, you will be given the opportunity to meet with me or propose in writing alternative methods of accommodation to avoid this separation. If you would like to meet, you should contact me at [redacted] by February 27, 2020. If you would like to submit your proposal in writing, it should be received at this office by February 27, 2020.

If you remain unavailable after February 27, 2020, I will recommend your separation from employment under the provision of Separation Due to Unavailability[.] Such a separation is an involuntary separation and not considered disciplinary action.

¶ 6 After receiving the letter, Petitioner contacted his supervisor and requested the meeting offered in the letter. Petitioner's supervisor told him the meeting would be pointless if he could not return to full duty work by the 27 February 2020 deadline. Petitioner stated that he wanted to propose an alternative method of accommodation, but needed assistance doing so. Instead of receiving any assistance or the opportunity to meet with his supervisor, Petitioner was told taking either step would be futile.

¶ 7 On 3 March 2020, Respondent sent Petitioner a Letter of Separation informing him that he was being separated from his employment due to unavailability. The Letter of Separation described Petitioner's appeal rights as follows:

If you are a "career State employee" (as defined in N.C.G.S. § 126-1.1 ) and wish to appeal this decision, you must do so in writing within fifteen (15) calendar days. The appeal must be submitted by using the Step 1 Grievance Filing Form HR 555. The appeal must be mailed to the Grievance Intake Coordinator, Department of Public Safety, 512 N. Salisbury Street, 4201 Mail Service Center, Raleigh, NC 27699-4201. As an alternative to mail, the appeal may be mailed to [redacted e-mail address], or hand delivered to the State Capitol Police, 417 N. Salisbury Street, Raleigh, NC 27603, between the hours of 8:00 a.m. and 5:00 p.m.

Petitioner received the Letter of Separation on 9 March 2020, so the deadline for submission of his Step 1 Grievance Form was 24 March 2020.

¶ 8 On 20 March 2020, Petitioner completed a Step 1 Grievance Form to internally appeal Respondent's decision to separate him from his employment. He testified that the Grievance Form was mailed to Respondent's Raleigh office from his home in Fayetteville that day and that he personally observed his wife stamp the envelope and place it in the mailbox. During this timeframe, many employees of Respondent were working remotely because of the COVID-19 pandemic, and the mail was not being checked daily.

¶ 9 On 7 April 2020, Petitioner submitted a photograph of the Grievance Form he completed on 20 March 2020 to Respondent's Grievance Intake Coordinator by e-mail. The next day, the Grievance Intake Coordinator informed him that she was unable to print the Grievance Form using the photograph

871 S.E.2d 825

Petitioner sent. A date stamp on Petitioner's Grievance Form in the record on appeal suggests that it was received by Respondent on 8 April 2020. On 9 April 2020, Petitioner e-mailed another copy of the Grievance Form to Respondent's Grievance Intake Coordinator, who confirmed that this second copy was legible and had been received.

¶ 10 In a 16 April 2020 letter, Respondent informed Petitioner that it considered the grievance untimely. Respondent took the position that Petitioner had failed to meet the 24 March 2020 deadline because Respondent did not receive the grievance until 7 April 2020—the date Petitioner first attempted to provide Respondent with a copy by e-mail—despite the 8 April 2020 date stamp in the record on appeal and Respondent's 9 April 2020 confirmation of receipt by e-mail.

¶ 11 On 26 May 2020, Petitioner initiated a contested case in OAH, alleging that he had been discharged without just cause and without sufficient action to place him in a different position. On 25 June 2020, Respondent made a motion to dismiss, arguing that OAH lacked subject matter jurisdiction because Petitioner had failed to first exhaust his administrative remedies by timely filing a Step 1 Grievance Form. On 2 July 2020, Petitioner filed a response to the motion to dismiss. On 3 August 2020, the ALJ denied Respondent's prehearing motion to dismiss. On 7 August 2020, Petitioner filed a prehearing statement. On 11 August 2020, Respondent filed a prehearing statement.

¶ 12 The matter came on for hearing on 8 October 2020. Respondent renewed its motion to dismiss at the beginning of the hearing, which the ALJ denied. Petitioner's supervisor, who had signed both the 12 February 2020 Pre-Separation Letter and 3 March 2020 Separation Letter, did not testify. Respondent's Grievance Intake Coordinator essentially testified that she first received a copy of Petitioner's grievance on 7 April 2020 and that the original copy of Petitioner's grievance had never been received. On cross-examination, the Grievance Intake Coordinator admitted that she could not remember which days of the week she was in the office during the March to April 2020 timeframe, but stated that she was most likely in the office at least three days a week.


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