Cofield v. D.C. Office of Emp. Appeals

• Citation: 295 A.3d 1184
• Docket Number: 17-CV-1123
• Decision Date: 15 June 2023
• Parties: Judy COFIELD, et al., Appellants, v. DISTRICT OF COLUMBIA OFFICE OF EMPLOYEE APPEALS, et al., Appellees.
• Court: D.C. Court of Appeals

295 A.3d 1184

Judy COFIELD, et al., Appellants,

v.DISTRICT OF COLUMBIA OFFICE OF EMPLOYEE APPEALS, et al., Appellees.

No. 17-CV-1123

District of Columbia Court of Appeals.

Argued September 12, 2019

Decided June 15, 2023

Stephen C. Leckar, with whom David Wachtel, Washington, was on the brief, for appellants.

Holly M. Johnson, Assistant Attorney General at the time the brief was filed, with whom Karl A. Racine, Attorney General for the District of Columbia at the time the brief was filed, Loren L. Alikhan, Solicitor General at the time the brief was filed, Caroline S. Van Zile, Deputy Solicitor General at the time the brief was filed, were on the brief, for appellee District of Columbia Office of Contracting and Procurement.

Lasheka Brown Bassey filed a Statement in Lieu of Brief for appellee District of Columbia Office of Employee Appeals.

Before Ruiz, Fisher,^* and Thompson,^** Senior Judges.

Ruiz, Senior Judge:

Appellants, Judy Cofield and Sarinita Beale, challenge a decision of the District of Columbia Office of Employee Appeals (OEA) upholding the elimination of their positions with the District of Columbia Office of Contracting and Procurement (OCP) as part of a reduction in force (RIF). Appellants contend that (1) their terminations were improper because they were placed into single-person retention registers based on positions they did not officially occupy in violation of the regulations governing RIFs, and (2) this action deprived them of their right to compete for other positions if they had been placed on their proper (non-single) retention register. Appellants also allege that the purported RIF was a pretextual adverse action. Appellant Beale contends that OEA erroneously declined, on jurisdictional grounds, to consider her claim to priority reemployment. We affirm in part and reverse in part. We uphold appellants’ RIF terminations and remand for a determination by OEA in the first instance as to whether it has jurisdiction over appellant Beale's priority reemployment rights claim.

I. Background

A. The D.C. Comprehensive Merit Personnel Act

The District of Columbia Comprehensive Merit Personnel Act (CMPA) guarantees certain benefits to District employees "relating to appointments, promotions, discipline, separation, pay, unemployment compensation, health, disability and death benefits, leave, retirement, insurance, and veterans preference." D.C. Code § 1-601.01(2). The CMPA provides two mechanisms by which the District can conduct a RIF: (1) the general RIF statute, id. § 1-624.01; and (2) the Abolishment Act, id. § 1-624.08.¹ Relevant to this appeal, under both RIF statutes, an employee who is slated for termination is entitled to one round of lateral competition for positions within their competitive level and priority reemployment consideration if they are separated. Id. § 1-624.02(a)(2)-(5) (general RIF Act); Id. § 1-624.08(d)-(e), (h) (Abolishment Act).²

When lateral competition occurs, under either the general RIF statute or the Abolishment Act, an employee who occupies a position slated for abolishment competes for retention with other employees in the same competitive area and level. 6-B D.C.M.R. § 2412.2. An employee's competitive area generally consists of the entire agency to which they are assigned, id. § 2409.1, but it may consist of a smaller ("lesser") organizational unit within the agency. Id. § 2409.3.³

Within each competitive area are competitive levels. Id. § 2410.4. Competitive levels are assigned based on an employee's "position of record," id. § 2410.2, and include employees "in the same grade ... and classification series and which are sufficiently alike in qualification requirements, duties, responsibilities, and working conditions so that the incumbent of one (1) position could successfully perform the duties and responsibilities of any of the other positions." Id. § 2410.4. "An employee's position of record is the position for which the employee receives pay or the position from which the employee has been temporarily reassigned or promoted on a temporary or term basis." Id. § 2410.3; see also District of Columbia v. King , 766 A.2d 38, 45 (D.C. 2001) ("[An employee's] competitive level must be based on his official position of record."). "The fact that an employee may have been detailed to a different position at the time of his or her RIF does not change the fact that the establishment of the employee's competitive level is based on the official position description." King , 766 A.2d at 45.

An employee may be in a single-person competitive area if that employee is the only person at her competitive level. Where an employee is placed in a single-person competitive area, "there is no one against whom ... she [can] compete, and therefore ... the one-round-of-lateral-competition requirement ... is inapplicable." Stevens , 150 A.3d at 323-24. Central to this appeal is whether appellants were properly RIF'd from their respective positions of record, which the agency determined were single-person competitive areas.

B. Factual and Procedural Background

Following the 2008 nationwide recession, the District of Columbia experienced economic distress. Due to an anticipated budget shortfall, the Office of the City Administrator informed District agencies, including OCP, that they would need to reduce their budgets. In response, OCP's then-Chief of Staff, Wilbur Giles, directed his senior managers to identify "existing inefficiencies and redundancies" in their divisions. The senior managers recommended six positions for abolishment, including appellants’ positions. At the time of the RIF, Cofield was a grade 11 Staff Assistant in the Office of the Assistant Director for Procurement, and Beale was a grade 12 Program Analyst in the Office of Procurement Support. Appellants were served with separation notices on April 20, 2009, and separated from OCP on May 22, 2009.

In June 2009, appellants contested the abolishment of their positions in a consolidated action before an OEA administrative judge (AJ). The AJ held a four-day hearing in May 2012, at which appellants challenged their terminations, asserting that the RIF at OCP was a pretextual adverse action targeted at them. Beale argued she was selected for termination so that an agency manager, Sharon Kershbaum, could hire a family friend, Chelsea Lisbon, to work at OCP. Cofield claimed that she too had been selected for termination so that a higher-paid but less experienced employee, Virginia Paris, who allegedly was a friend of agency manager Judith McCarthy, could take her place. Cofield also asserted that her termination was due in part to her activities as a union shop steward. Additionally, appellants alleged that their removals were not conducted in accordance with the RIF regulations because they had been improperly placed in lesser competitive areas that did not correspond to their positions. Last, appellants argued that they were entitled to priority reemployment.

The AJ found that OCP's April 2009 RIF was not initiated by the OCP Director but was grounded in the District's financial crisis, which caused the City Administrator to order District agencies, including OCP, to reduce their budgets for fiscal year 2010. As a result, the AJ concluded that the RIF was conducted under the Abolishment Act, which was enacted "specifically for the purpose of addressing budgetary issues resulting in a RIF." The AJ also concluded that the evidence in the record did not support appellants’ claims that the RIF of appellants was pretextual, that the newly hired employees were friends of upper management, or that the new hires were replacements for appellants. Additionally, the AJ determined that there was no evidence in the record suggesting that appellants were improperly placed in their respective single-person competitive levels, and therefore, they were not eligible for one round of lateral competition. The AJ declined to consider Cofield's claim that her priority reemployment rights had been violated on the grounds that OEA lacked jurisdiction to consider such claims which were subject to a grievance procedure, appealable to the Mayor or Superior Court; moreover, according to the AJ, appellants were not entitled to reemployment priority because the RIF was conducted under the Abolishment Act.⁴

After appellants sought review, the Superior Court (Hon. John M. Mott) issued an Amended Order affirming the AJ's determination that the RIF was carried out pursuant to the Abolishment Act and that OEA lacked jurisdiction to consider claims concerning priority reemployment rights. But the trial court could not "determine from the record if [appellants had been] properly separated from their respective positions of record, as both of them [had been] reassigned in the months preceding the RIF." The trial court identified a discrepancy between Beale's SF-50 (personnel action form) and the position used to determine her competitive area:

Beale was reassigned to a Program Analyst position on February 1, 2009, whereas Cofield was assigned to the "Goods Unit" in January 2009, before being shifted back to her original position on March 15, 2009. Beale's "Form [SF-]50" identifies her February 2009 reassignment to OCP as a whole, without identifying any particular subdivision. However, the justification documents used by DCHR in creating the lesser competitive area identified Beale's position as being located in the "Procurement Support" subdivision of OCP. Similarly, Beale's RIF notice identifies "Procurement Support" as her position's competitive area.

The trial court thought there might be a similar discrepancy with respect to Cofield. However, because Cofield's Form SF-50 had not been submitted into evidence, the trial court could not determine whether Cofield had been properly terminated. The trial court remanded the case to OEA to determine whether there was substantial evidence in the record that appellants had been terminated from their positions of record...