Labor & Employment — Public Employees – Grievance Process – Subject Matter Jurisdiction – Timely Filing

After being terminated from his job, petitioner had until 24 March 2020 to file a grievance. Although petitioner testified that he watched his wife stamp and mail his grievance form on 20 March 2020, the respondent-employer presented evidence that it never received the mailed form and first received an illegible emailed copy on 7 April 2020. While the administrative law judge did not explicitly rule on the timeliness of petitioner’s filing of the grievance form, the ALJ denied respondent’s motion to dismiss for lack of subject matter jurisdiction, thereby impliedly crediting petitioner’s testimony implicitly finding that the form was timely filed.

The finding implicit in the ALJ’s rulings denying respondents’ motions to dismiss for lack of subject matter jurisdiction—that the grievance form was timely filed—has a rational basis in the evidence under the whole record test. To hold otherwise would effectively require us to re-weigh the evidence before the ALJ and substitute our own credibility determination for that of the ALJ, which we cannot do as a reviewing court under the whole record test.

Affirmed.

Dissent

(Tyson, J.): Petitioner chose to purportedly invoke internal agency jurisdiction by a means which left no objective proof of timely filing. Petitioner’s form was not received until 15 days after the deadline, and only then after Petitioner emailed the admittedly untimely form. He failed to comply with and invoke respondent’s internal grievance process. Petitioner’s failure deprived the Office of Administrative Hearings of jurisdiction to hear the contested case.

I would reverse and remand to dismiss for lack of jurisdiction.

Russell v. North Carolina Department of Public Safety (Lawyers Weekly No. 011-081-22, 25 pp.) (Darren Jackson, J.) (John Tyson, J., dissenting) Appealed from the Office of Administrative Hearings (Melissa Owens Lassiter, ALJ) Jennifer Knox for petitioner; Adrina Bass for defendant. 2022-NCCOA-209