Ambiguous form allows grievance petition to continue

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The grievance petition of a former Charlotte-area probation officer who claims he was fired without cause must be allowed to continue, the North Carolina Court of Appeals has ruled.

Judge John Tyson, writing for a unanimous panel, said that while the plaintiff did not file the appropriate administrative form on time, ambiguity in the wording of the document is to blame, and as a result, he is still entitled to go through the next step in the grievance process.

Eric Erickson worked for the North Carolina Department of Public Safety as a probation and parole officer before he was dismissed from his position in January 2018. Erickson challenged his dismissal through DPS’s internal grievance process, and, after mediation ended in an impasse, he was given a copy of DPS Form HR 556.

The form instructed Erickson to sign it and file it with DPS’s grievance intake coordinator within five days to initiate the appeal process. The mediation took place Feb. 21, and while Erickson signed the form and mailed it on Feb. 23, it wasn’t received by DPS until Feb. 27, which it said was too late. Erickson petitioned for a contested case hearing with the Office of Administrative Hearings, and the administrative judge granted DPS’s motion to dismiss due to lack of subject matter jurisdiction and Erickson’s failure to exhaust administrative remedies.

Erickson appealed, arguing that the OAH erred in dismissing his case because DPS didn’t adequately explain the timeframe for turning in the form, and the court agreed.

“DPS Form HR 556 contains contradictory and ambiguous language regarding the timeframe an employee has to submit the form,” Tyson said, pointing to a box at the top of the form which contradicts language elsewhere in the document. “The discrepancies and inconsistencies between ‘filed,’ ‘received,’ ‘mail,’ and ‘initiate’ within Form HR 556 are insufficient to inform an employee of whether the form has to be mailed, filed or received within five days of a mediation impasse.”

Tyson said that merely giving Erickson the form with the ambiguous language did not satisfy DPS’s burden to inform him of “the Step 2 grievance process.” Because the court has construed ambiguous language against the drafting party in previous cases, Tyson interpreted the ambiguities in Erickson’s favor.

From his perspective, Erickson followed DPS’s instructions by mailing the form within five calendar days, as he was required to do, Tyson wrote.

While DPS argued they received the form a day too late, their counsel conceded that Erickson must have mailed the form before Feb. 27 for them to have received it on that day, Tyson said. As a result, Erickson is entitled to go on to the next step in DPS’s grievance procedure.

“By refusing Petitioner’s timely mailed Form HR 556, DPS prevented Petitioner from obtaining a ‘final agency decision’ ‘reviewed and approved by the Office of State Human Resources’ to vest OAH with jurisdiction to hear Petitioner’s contested case,” Tyson said.

The OAH’s decision was reversed and the case was remanded back to it with instructions to order DPS to allow Erickson to go on to Step 2 of the internal grievance process.

Humphrey Cummings of The Cummings Law Firm in Charlotte represented Erickson on appeal. He said that the Court of Appeals decision righted an injustice.

“[State agencies] will have to use reason and common sense when deciding to implement the rules of the grievance procedure,” Cummings said. “It was patently crazy to simply say, ‘Hey, we aren’t going to talk to you about it, address it or do anything,’ but say that ‘we get to decide and our decision is we aren’t going to address it, talk about it or do anything.’”

Humphrey said that he hopes the decision will create a desire on behalf of the state to look at the wording of grievance petition forms for other agencies to prevent similar issues from arising.

Assistant Attorney General Tamika Henderson represented the DPS in the case. A press official for the state’s attorney general’s office said they are reviewing the decision, but did not comment further before press time.

The 12-page decision is Erickson v. N.C. Department of Public Safety (Lawyers Weekly No. 011-091-19.) The full text of the opinion is available online at nclawyersweekly.com.

Follow Matt Chaney on Twitter @NCLWChaney