Butler v. Metro. Police Dep't, No. 18-CV-1238

• Decision Date: 29 October 2020
• Docket Number: No. 18-CV-1238
• Citation: 240 A.3d 829
• Parties: Widmon BUTLER, Appellant, v. METROPOLITAN POLICE DEPARTMENT, et al., Appellees.
• Court: D.C. Court of Appeals

240 A.3d 829

Widmon BUTLER, Appellant,

v.METROPOLITAN POLICE DEPARTMENT, et al., Appellees.

No. 18-CV-1238

District of Columbia Court of Appeals.

Argued January 29, 2020

Decided October 29, 2020

David A. Branch for appellant.

Carl J. Schifferle, Senior Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, and Caroline S. Van Zile, Deputy Solicitor General, were on the brief, for appellee Metropolitan Police Department.

Lasheka Brown Bassey filed a statement in lieu of brief for appellee Office of Employee Appeals.

Before Blackburne-Rigsby, Chief Judge, and Glickman and McLeese, Associate Judges.

McLeese, Associate Judge:

Appellant Widmon Butler challenges a decision of the Office of Employee Appeals (OEA) upholding his termination by the Metropolitan Police Department (MPD). Mr. Butler argues primarily that MPD waited too long before terminating him. We remand for further proceedings with respect to that issue.

I.

Except as indicated, the following facts are undisputed. Mr. Butler, who is an attorney, worked as a claims specialist in MPD's Medical Services Division. His duties included helping to determine whether MPD employees’ injuries and illnesses arose in the performance of duty. In July 2013, Mr. Butler's union asked him to represent another union member and MPD civilian employee, Ms. Josephine Jackson, in a proceeding before the District of Columbia Office of Risk Management (ORM). He agreed. As part of this representation, Mr. Butler emailed ORM in August 2013 to request that ORM reconsider three workers’ compensation claims that Ms. Jackson had filed. Mr. Butler sent the email from his MPD account, identifying himself as an attorney.

On September 12, 2013, ORM's General Counsel contacted MPD's Human Resources Management Division with concerns about Mr. Butler's email. Specifically, ORM's General Counsel noted that Mr. Butler had apparently sent the email from his MPD account during work hours, even though he represented Ms. Jackson privately. ORM's General Counsel also stated that Mr. Butler's position as a claims examiner working in connection with MPD's clinic raised conflict-of-interest issues, because Ms. Jackson had been treated at that clinic.

The same day, MPD's Human Resources Director contacted MPD's Internal Affairs Division (IAD) to request that IAD look into Mr. Butler's conduct. IAD assigned Sergeant Paulette Woodson to do so. On September 18, 2013, Sergeant Woodson emailed the United States Attorney's Office (USAO) to notify the USAO that she was investigating whether Mr. Butler had "double-dipped," i.e., handled private matters during his MPD work hours. Later the same day, the Medical Services Division created a report indicating that Mr. Butler had accessed Ms. Jackson's medical records in July 2013, while on duty. The next day, September 19, 2013, MPD placed Mr. Butler on administrative leave without pay pending the investigation into his conduct, including into whether Mr. Butler had accessed Ms. Jackson's medical records without authorization.

On October 1, 2013, MPD referred the matter to the USAO, asking the USAO to determine whether criminal charges should be brought against Mr. Butler for illegally accessing MPD's medical database by viewing Ms. Jackson's files for his own personal purposes. Eight months later, on June 2, 2014, the USAO issued a letter declining to criminally prosecute Mr. Butler.

MPD then conducted its own disciplinary investigation. IAD interviewed Mr. Butler in September 2014. Mr. Butler denied accessing or seeing Ms. Jackson's medical records, even after being shown a report indicating the date and time on which he had opened her file. On October 6, 2014, MPD served Mr. Butler with a notice of proposed termination, charging him with misfeasance for (1) accessing Ms. Jackson's medical records in violation of MPD's acceptable-use agreement; (2) misusing government property; and (3) making untruthful statements during an IAD interview.

MPD Commander Keith Williams subsequently recommended that Mr. Butler be terminated, rejecting Mr. Butler's claim that the notice of proposed termination was untimely under the "ninety-day rule." See D.C. Code § 5-1031(a-1)(1) (2019 Repl.) (requiring MPD to commence adverse action against employees no more than ninety business days after MPD had notice of act or occurrence allegedly constituting cause); D.C. Code § 5-1031(b) (ninety-day period is tolled while act or occurrence allegedly constituting cause is subject of criminal investigation by, among other agencies, MPD and USAO). Specifically, Commander Williams concluded that MPD considered Mr. Butler's conduct criminal as soon as MPD found out about the conduct, and the ninety-day limit therefore did not start running until June 2, 2014, when the USAO declined to prosecute.

MPD subsequently terminated Mr. Butler, who appealed his termination to MPD Chief Lanier, arguing primarily that the ninety-day rule barred the termination. Chief Lanier disagreed, reiterating that MPD had considered Mr. Butler's actions criminal since their discovery on September 12, 2013. Chief Lanier further explained that Mr. Butler's termination was also based on his untruthful statements to IAD, which were made only six days before the notice of termination was issued.

Mr. Butler appealed his termination to the Office of Employee Appeals (OEA), which conducted an evidentiary hearing before an Administrative Judge (AJ). Sergeant Woodson, the IAD investigator, testified that she determined that Mr. Butler's conduct had "criminal overtones," because of the indications that he had been working on behalf of private clients during his work hours for MPD. MPD introduced evidence at the hearing that Mr. Butler acted unlawfully by accessing the electronic file containing Ms. Jackson's MPD medical records, which he had kept open for over fifty minutes. There also was evidence that Mr. Butler had made a false statement to IAD about his conduct.

Mr. Butler testified in his own defense, contending in essence that although he had opened Ms. Jackson's file, he had not actually reviewed her medical records.

The AJ found that Mr. Butler had unlawfully accessed Ms. Jackson's medical records and had falsely denied to MPD that he had done so. The AJ remanded the matter to MPD, however, for further consideration of the applicable penalty. On that point, the AJ concluded that Mr. Butler could be terminated for the misconduct at issue only if he had committed two prior offenses of misfeasance, but MPD had provided evidence only of one prior instance of misfeasance. The AJ therefore ordered MPD to reconsider its penalty of termination and inform the AJ of its ultimate penalty. MPD responded by adhering to its decision to terminate Mr. Butler and providing the AJ with evidence of a second prior offense of misfeasance by Mr. Butler.

The AJ issued an "initial decision" upholding the termination. The AJ determined that MPD did not violate the ninety-day rule. On that issue, the AJ indicated that the ninety-day period started running on September 12, 2013, when MPD was first notified by ORM of Mr. Butler's possible misconduct. The AJ further concluded that the ninety-day period was tolled from October 1, 2013, to September 25, 2014 -- from the day the matter was referred to the USAO until the day IAD issued its investigative report. The AJ therefore calculated that only eighteen untolled business days had passed when Mr. Butler received the notice of termination on October 6, 2014.

On the merits, the AJ determined that Mr. Butler committed misfeasance by accessing medical records without authorization; that Mr. Butler lied to IAD when he denied doing so; and that Mr. Butler had committed two prior offenses justifying the penalty of termination. Finally, the AJ overruled Mr. Butler's objection that the record had closed after the evidentiary hearing and that MPD was thus precluded from introducing new evidence of prior misfeasance on remand.

Mr. Butler appealed to the OEA Board. The Board upheld the AJ's determination that MPD did not violate the ninety-day rule, although the Board's analysis of that issue differed from that of the AJ. According to the Board, the ninety-day period was tolled starting on the day MPD was alerted about the incident, September 12, 2013. Without specifically addressing the time period from that date until October 1, 2013, when MPD referred the matter to the USAO, the Board stated that the ninety-day period was tolled because the allegations against Mr. Butler were the subject of a criminal investigation by the USAO. After determining that the tolling stopped when the USAO issued its letter of declination on June 2, 2014, the Board concluded that MPD had timely issued the notice of termination within eighty-eight business days of the declination letter. The Board also upheld the AJ's authority to keep the record open after the remand order and before the initial decision, confirmed Mr. Butler's termination as the proper penalty, and declined to revisit the AJ's conclusions as to Mr. Butler's credibility.

Mr. Butler then sought review in Superior Court, which upheld the Board's ruling. On the timeliness issue, the Superior Court took yet a different approach. First, the Superior Court found that IAD had been criminally investigating Mr. Butler from the time it learned of his conduct on September 12, 2013. On this point, the Superior Court's reasoning was as follows: the September 18, 2013, letter to the USAO indicated that IAD viewed Mr. Butler's conduct as potentially criminal double-dipping; there was no evidence that IAD learned new and incriminating information about Mr. Butler's conduct between September 12, 2013, and September 18, 2013; it was therefore reasonable to infer that IAD viewed Mr. Butler's conduct as potentially criminal as of September 12, 2013.

The Superior Court also relied on an alternative rationale. According to ...