                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2016-CT-00112-SCT

MISSISSIPPI DEPARTMENT OF PUBLIC
SAFETY AND ALBERT SANTA CRUZ, IN HIS
OFFICIAL CAPACITY AS COMMISSIONER OF
THE MISSISSIPPI DEPARTMENT OF PUBLIC
SAFETY

v.

STACY SMITH, GREG NESTER, AND
KRISTOPHER WINGERT

                            ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                         01/06/2016
TRIAL JUDGE:                              HON. WILLIAM A. GOWAN, JR.
TRIAL COURT ATTORNEYS:                    DENNIS L. HORN
                                          PETER W. CLEVELAND
COURT FROM WHICH APPEALED:                HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                 OFFICE OF THE ATTORNEY GENERAL
                                          BY: WILSON MINOR
                                               PETER W. CLEVELAND
                                          ANTHONY SCHMIDT
                                          JOHN G. SIMS, III
ATTORNEYS FOR APPELLEES:                  DENNIS L. HORN
                                          SHIRLEY PAYNE
NATURE OF THE CASE:                       CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                              REVERSED AND RENDERED - 05/24/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      EN BANC.

      CHAMBERLIN, JUSTICE, FOR THE COURT:

¶1.   While we address three issues, only one dispositive issue is before the Court: whether

the Employee Appeals Board properly dismissed the Appellees’ claims for lack of
jurisdiction due to the untimely filing of the appeal. We hold that it properly dismissed the

Appellees’ claims for lack of jurisdiction. The course of the proceedings, as outlined below,

has lead to the argument of issues not properly before the circuit court and, therefore, not

properly before this Court.

           STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶2.    On December 1, 2005, the Mississippi Department of Public Safety (MDPS) issued

notice that eight employees would be transferred from the Mississippi Crime

Laboratory/Crime Scene Response Unit to the Mississippi Bureau of Investigation. The

Appellees, Stacy Smith, Greg Nester, and Christopher Winger were included in the list of

eight employees. The notice further stated that the employees would retain their positions,

salaries, and PIN (Personal Identification Numbers). In 2008, without their knowledge, the

Appellees lost their PIN numbers. The other five employees transferred kept their PIN

numbers.

¶3.    On January 18, 2011, the Appellees apparently each wrote a letter to the director of

the Mississippi Bureau of Investigation. The letter is not in the record, but it appears that the

Appellees requested lateral transfers back to the Mississippi Crime Laboratory. The Director

of the Mississippi Bureau of Investigation responded and stated that no Crime Laboratory

PINS were available. Thereafter, the Appellees began the grievance process. They proceeded

with their grievances through the four steps of the administrative grievance process. Their

highest supervisor, Stephen Simpson, wrote that no crime lab positions or PINS were

available at the current time and, therefore, their request was denied. The next step would



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have been to appeal the response to the Employee Appeals Board (EAB). However, for

reasons unknown, this did not happen, and the case stalled.

¶4.    More than two years later, on July 9, 2013, the Appellees filed a Petition for Writ of

Mandamus in Hinds County Circuit Court. The Petition for Writ of Mandamus was assigned

Civil Action No. 251-13-637. The trial court found that it lacked jurisdiction to consider the

Petition for Writ of Mandamus because the Appellees had failed to exhaust their

administrative remedies by failing to appeal to the EAB. The trial court remanded the claims

to the EAB. The EAB held that the appeal was untimely and that the Appellees had failed

to exhaust their administrative remedies (by appealing timely to the EAB) before filing in

circuit court. Therefore, due to lack of jurisdiction, the EAB dismissed the case.

¶5.    The Appellees appealed the dismissal by filing an appeal petition in the circuit court.

This appeal petition was assigned Civil Action No. 251-15-369. The appeal petition was

assigned to a different judge than the original Petition for Writ of Mandamus. Subsequently,

the Appellees filed a motion to transfer the case to the circuit court judge who had been

assigned the Petition for Writ of Mandamus. The motion was granted. However, the appeal

petition (No. 251-15-369) was never consolidated with the petition for Writ of Mandamus

(No. 251-13-637). It appears from the record that the remand to the EAB is the last action

taken in Cause No. 251-13-637. That case has not been appealed.

¶6.    Subsequently, in the appeal petition case, the Appellees moved for summary

judgment. The circuit court determined it had jurisdiction due to substantial evidence that

the MDPS had failed to follow statutory and Mississippi Personnel Board policies and



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procedures regarding intraoffice transfer of the Appellees. The circuit court then granted the

motion for summary judgment.

¶7.    The MDPS appealed. The Court of Appeals affirmed, holding that the Appellees had

raised nongrievable matters and therefore, an exhaustion of the grievance process was not

needed because a remedy at the grievance process level was not available. Further, the Court

of Appeals held that the circuit court possessed jurisdiction. MDPS filed a petition for writ

of certiorari. The Court granted the petition.

                             STATEMENT OF THE ISSUES

¶8.    Between the original briefs on appeal and the additional certiorari briefs are a number

of intertwined issues. Although only one dispositive issue remains, for clarity, we address

and restate the issues as follows:

       (1)    Whether the EAB properly dismissed the Appellees’ claims for lack
              of jurisdiction.

       (2)    Whether the Appellees were required to exhaust their
              administrative remedies before appeal to the circuit court.

       (3)    Whether the Writ of Mandamus was the proper vehicle for relief.


                                STANDARD OF REVIEW

¶9.    The standard of review for administrative decisions is well-settled.             Ray v.

Mississippi Dep’t of Pub. Safety, 172 So. 3d 182, 187 (Miss. 2015) (citing Miss. Comm’n

of Envtl. Quality v. Chickasaw Cty. Bd. of Supervisors, 621 So. 2d 1211, 1215 (Miss.1993).

The agency decision must be affirmed if “the decision was (1) supported by substantial

evidence; (2) not arbitrary or capricious; (3) within the scope or power of the agency; and (4)


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not a violation of the aggrieved party’s constitutional or statutory rights.” Ray, 172 So. 3d

at 187 (citing Bd. of Law Enforcement Officers Standards and Training v. Butler, 672 So.

2d 1196, 1199 (Miss. 1996)).

                                        ANALYSIS

¶10.   In the instant case—the appeal petition case— the Petition for Writ of Mandamus

from the separate cause number was attached to the circuit court’s decision granting

summary judgment. The Appellees also constantly referenced and cited the Petition for Writ

of Mandamus. However, despite these references, a procedural error cannot be ignored. The

two separate cases—the appeal petition (Civil Action No. 251-15-369) and the Petition for

Writ of Mandamus (Civil Action No. 251-13-637)—never were consolidated under Rule 42.

Miss. R. Civ. 42(a). Thus, as argued by MDPS, the only issues properly before the Court are

the issues stemming from the appeal petition, not the issues stemming from the Petition for

Writ of Mandamus. Therefore, the dispositive issue in this case is whether the EAB properly

dismissed the Appellees’ claims for lack of jurisdiction due to the untimely filing of the

appeal.

       (1)    Whether the EAB properly dismissed the Appellees’ claims for lack
              of jurisdiction.

¶11.   The instant appeal begins with the Appellees proceeding through the four-step

grievance process, which would have culminated in an appeal to the EAB. The hearing

before the EAB, however, initially was abandoned and came only after the Petition for Writ

of Mandamus was filed in the circuit court, in a separate cause, and the circuit court

remanded the case to the EAB by order dated May 5, 2015. However, as stated above, the


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mandamus case is not before us, as the instant appeal was assigned a different cause number

and never was consolidated. Therefore, in this appeal, we will address only the EAB’s

decision and the subsequent appeal to the circuit court.

¶12.      The EAB found that it did not have jurisdiction. It stated that Mississippi Code

Section 25-9-127 (Supp. 2017) requires employees to follow the Mississippi State Personnel

Board’s rules for appealing a decision within fifteen days of the final decision from the four-

step grievance process. The EAB further found that Mississippi Employment Security

Commission v. Culbertson, 832 So. 2d 519 (Miss. 2002), did not require the EAB to hear

the merits of the appeal because, in Culbertson, substantial evidence was presented that the

employees were discouraged from filing grievances. Further, the EAB considered whether

an exhaustion of the Appellees’ administrative remedies was required, and it determined that

it was.

¶13.      First, as the EAB found, we agree that the Appellees missed the allotted time for

appealing the denial of their grievance to the EAB. According to the Mississippi Personnel

Board Policies and Procedure, “[a] notice of appeal [to the EAB] must be filed within fifteen

(15) days after the date a person receives written notice of the final decision of an alleged

grievable action . . . .” Code Miss. R. 27-110:10.7. Because the step-four grievance process

decision was given to the Appellees on February 8, 2011, their time to appeal to the EAB

expired fifteen days later, in February 2011. Therefore, their eventual hearing before the

EAB, more than four years later, was untimely and deprived the EAB of jurisdiction. And,

even if we were to deem the appeal “filed” on the date the Petition for Writ of Mandamus



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was filed, on July 9, 2013, the Appellees are still grossly outside the time allowed for an

appeal.

¶14.   Second, unlike in Culbertson, the Appellees have presented no proof regarding a

reason for the delay between the four-step grievance decision and the appeal to the EAB. In

Culbertson, the Court held, “[T]he employees’ failure to exhaust their administrative

remedies in the face of substantial evidence that the MESC did not follow the MSPB rules,

will not destroy the jurisdiction of the EAB or an appellate court.” Culbertson, 832 So. 2d

at 523. However, in Culbertson, the decision was based on the fact that “[s]ubstantial

evidence was presented that employees were discouraged from filing grievances.” Id. at 523.

Here, no such evidence has been presented. The Appellees’ attorney merely stated, “[The

Appellees] were in limbo. They tried to exhaust this in 2011, and it didn’t work. Then

thereafter they hired me.” Thus, it is completely unclear why the Appellees did not appeal

the decision to the EAB at that time. Further, it is completely unclear when the Appellees

hired an attorney, as two years elapsed before further action occurred. Suffice it to say, the

record in this case is scant.

¶15.   The EAB’s decision is supported by substantial evidence. Ray, 172 So. 3d at 187

(citing Bd. of Law Enforcement Officers Standards and Training v. Butler, 672 So. 2d

1196, 1199 (Miss. 1996)). Further, we cannot say that the decision was arbitrary or

capricious, outside the scope or power of the agency, or in violation of the aggrieved party’s

constitutional or statutory rights. Id.




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¶16.   We do think it pertinent to note that, based on the record before the Court, it does not

appear that the Appellees were given the required notice and a hearing under Mississippi

Code Section 25-9-127 when their employment status originally changed. Miss. Code Ann.

§ 25-9-127 (Rev. 2010). However, without more—such as a reason for the gross delay, as

in Culbertson—the impropriety of the initial employment transfer does not cure the

Appellees’ procedural error of failing to appeal the four-step grievance decision in a timely

manner. See Pub. Employees Ret. Sys. of Mississippi (PERS) v. Hawkins, 781 So. 2d 899,

906 (Miss. 2001).

       (2)    Whether the Appellees were required to exhaust their
              administrative remedies before appeal to the circuit court.

¶17.   As stated above, the EAB further considered whether the exhaustion of administrative

claims was required before appeal to the circuit court. Given the fact that the instant case

was never consolidated with the mandamus case, the question of whether the exhaustion of

administrative claims was required is moot. The timeliness of the EAB appeal and whether

there was any evidence illustrating and excusing the gross time delay are the only issues

properly before us today.

¶18.   However, due to the arguments on appeal and the split decision of the Court of

Appeals, we do find it pertinent to note that a nongrievable matter is a matter from which an

employee has no right to seek relief or appeal. See Moody v. Mississippi Dep’t of Pub.

Safety/Highway Patrol, 729 So. 2d 1249, 1252 (Miss. 1999). No right to seek relief or

appeal refers to the merits of the claim, and it differs markedly from the right to appeal the

procedural question of whether the claim is grievable or nongrievable. As stated in


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Mississippi Forestry Commission v. Piazza, 513 So. 2d 1242 (Miss. 1987), a hearing before

the EAB may be needed to determine whether the claim is grievable or nongrievable. Id. at

1249; see also Mississippi Dep’t of Human Servs. v. Baum, 730 So. 2d 58, 62 (Miss. 1998)

(holding that a hearing was needed to determine if the employee had a valid complaint). A

timely appeal to the EAB would have allowed this question to be answered.

       (3)     Whether the Petition for Writ of Mandamus was the proper vehicle
               for relief.

¶19.   As stated above, in the current appeal before the Court, the procedural history began

with the grievance procedure and the subsequent hearing before the EAB. Therefore, in the

current appeal, the Petition for Writ of Mandamus, filed in a separate cause, is not before us.

In fact, the Petition for Writ of Mandamus is, as far as we can tell based on the record before

us, still is pending in Civil Action No. 251-13-637. Thus, the instant issue is moot.

                                      CONCLUSION

¶20.   The Court’s ability to provide relief in administrative-review cases is limited. Further,

and more importantly here, we are constrained to our procedural rules and processes, and we

cannot consider issues stemming from cases not consolidated, and therefore, not properly

appealed to us. Thus, the EAB’s decision is supported by substantial evidence, and it must

be upheld.

¶21.   In essence, we simply cannot ignore the gross procedural errors to accord the requested

relief. Therefore, we reverse the circuit court’s decision to grant the summary-judgment

motion and dismiss the appeal petition because the EAB lacked jurisdiction. The judgments

of the circuit court and the Court of Appeals are reversed and judgment is rendered.


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¶22.   REVERSED AND RENDERED.

   WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN,
MAXWELL AND BEAM, JJ., CONCUR. ISHEE, J., NOT PARTICIPATING.




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