Administrative – Improper Notice of Right to Appeal Disciplinary Action – Dismissal Letter

The ALJ did not err by dismissing Petitioner’s petition without prejudice.

We affirmed the final decision.

Respondent Hyde County Health Department Luana Gibbs appealed from a final decision of the Office of Administrative Hearings dismissing without prejudice Petitioner’s petition for a contested case hearing challenging her dismissal from employment with the Health Department. Respondent contended the Administrative Law Judge (ALJ) erred by concluding Respondent provided Petitioner insufficient notice of her appeal rights. Specifically, Respondent contended the ALJ erred in dismissing Petitioner’s petition without prejudice because the dismissal letter and attached Appeals Policy satisfied the notice requirement in N.C. Gen. Stat. § 126-35(a). Because the time for Petitioner to appeal to the Department Director had expired, Respondent argued Petitioner’s petition for a contested case hearing must be dismissed with prejudice. We disagreed.

Petitioner was employed by the Health Department as a “career status employee,” as defined by N.C. Gen. Stat. §§ 126–1.1, 126–5(a)(2)c. In 2024, Respondent dismissed Petitioner from her employment with the Department for “unacceptable personal conduct,” as defined by 25 NCAC 01I.2304(b). Respondent gave Petitioner a dismissal letter explaining the specific reasons for her dismissal and the effective date of dismissal, and also stating the following: “As an employee with career status, you have the right to appeal this decision. Attached is a copy of the Hyde County Health Department’s Appeals Policy.” Attached to the dismissal letter was a copy of the Health Department’s three-page appeals policy, in accordance with 25 NCAC 01I.2304(d). The policy included an explanation of a two-step appeals process for career status employees ― first to the Department Director and then to the Office of Administrative Hearings (OAH) ― and the time limits for each step. Petitioner did not appeal her dismissal to the Department Director and, instead, filed a petition for a contested case hearing with the OAH in August 2024. In October 2024, the ALJ issued a final decision dismissing Petitioner’s petition without prejudice. The ALJ concluded “Respondent failed to give Petitioner legally sufficient notice of her applicable appeal rights in the dismissal letter . . . .” Accordingly, the ALJ concluded “Petitioner’s claims must be dismissed without prejudice pending completion of the internal grievance policy.”

The dismissal letter stated only, “As an employee with career status, you have the right to appeal this decision. Attached is a copy of the Hyde County Health Department’s Appeals Policy.” Attached to the letter was a copy of Respondent’s appeals policy. The letter failed to notify Petitioner of her “appeal rights” under N.C. Gen. Stat. § 126-35(a) – the right, the procedure, and the time limit to appeal. The purpose of the written statement required by section 126-35(a) is to advise the employee of their rights to appeal the disciplinary action. Obscuring this information in an attached policy document, as happened here, fails to implement the legislature’s intent. Thus, the letter failed to adequately inform Petitioner of her appeal rights and failed to comply with all the requirements of N.C. Gen. Stat. § 126-35.

Affirmed.

O’Sullivan v. Hyde County Health Department Luana Gibbs Health Director (Lawyers’ Weekly No. 011-251-25, 5 pp.) (Allegra Collins, J.) Appealed from the Office of Administrative Hearings. (Michael C. Byrne, ALJ) Cranfill Sumner LLP, by Benton L. Toups and Tammy L. Neil, for Respondent-Appellant. No brief filed on behalf of Carmen T. O’Sullivan for Pro Se Plaintiff-Appellee. North Carolina Court of Appeals