DCHA v. DC Office of Human Rights, No. 02-CV-524

• Docket Nº: No. 02-CV-525.
• Citation: 881 A.2d 600
• Case Date: August 25, 2005

881 A.2d 600

DISTRICT OF COLUMBIA HOUSING AUTHORITY and the District Of Columbia, Appellants,
v.
DISTRICT OF COLUMBIA OFFICE OF HUMAN RIGHTS and George Brummell, Sr., Appellees

Nos. 02-CV-524, 02-CV-525.

District of Columbia Court of Appeals.

Argued November 9, 2004.

Decided August 25, 2005.

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Michael F. Wasserman, Assistant Attorney General, with whom Robert J. Spagnoletti, Attorney General for the District of Columbia, Arabella W. Teal, Interim Corporation Counsel at the time, Charles L. Reischel, Deputy Corporation Counsel at the time, and Edward E. Schwab, Deputy Attorney General, were on the brief, for appellants

Steven M. Schneebaum, Washington, DC, with whom Bret M. Koplow was on the brief, for appellees.

Anthony Graham, Sr., for appellee George Brummell, Sr.

Before SCHWELB, RUIZ and GLICKMAN, Associate Judges.

GLICKMAN, Associate Judge.

The District of Columbia Housing Authority ("DCHA"), joined by the District government, appeals from a judgment of the Superior Court upholding a determination by the former Department of Human Rights and Local Business Development ("DHR")¹ that the Department of Public

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and Assisted Housing ("DPAH")² violated the Human Rights Act³ by discriminating against an employee, George Brummell, Sr., on the bases of age and national origin. Brummell cross-appeals, asserting that the Superior Court lacked jurisdiction to hear DCHA's petition for review of DHR's action. Concluding that the trial court had jurisdiction, we reach DCHA's claims that DHR erred by: (1) not dismissing Brummell's discrimination complaint on account of his failure to seek relief first through consultation with an EEO counselor within DPAH, (2) not conducting an evidentiary hearing, and (3) finding that DCHA discriminated against Brummell based on the evidence of record. As we conclude that none of these claims entitles DCHA to relief, we affirm the judgment of the Superior Court

I.

A. Non-Selection of Brummell

DPAH hired Brummell in 1987 to fill the position of Construction Analyst. According to the written requirements for the position, a Construction Analyst's responsibilities include directing the development of accurate cost estimates for major construction work, reviewing detailed cost analyses, designs and drawings submitted by architectural and engineering firms under government contracts to ensure budgetary compliance and conformance with Department policies, suggesting improvements in technical procedures and practices employed by the Chief of the Construction Management Division, and visiting construction sites to acquire first-hand information pertinent to cost estimation. A Construction Analyst is expected to possess knowledge of contracting procedures, cost price analysis, and "negotiation techniques ... to deal with contractors in resolving such problems as reducing costs and adjusting delivery schedules."

Brummell's term as a Construction Analyst was interrupted in August 1991 due to an agency-wide freeze on mid-level employees, and DPAH reassigned him temporarily to a Painter Foreman position. Brummell was returned to the job of Construction Analyst in February 1992 and remained in that position until November 12, 1993, when he lost his job due to a reduction in force. Throughout his tenure with DPAH, Brummell's performance ratings and supervisory appraisals were uniformly excellent.

On August 30, 1993, DPAH requested permission from the District of Columbia Office of Personnel ("DCOP") to establish six new "Modernization Coordinator" positions. DPAH described the duties of a Modernization Coordinator as follows:

Responsible for overseeing the entire construction contract process, including preparing and issuing, subject to HUD approval, all modernization contract documents such as construction and bid documents, contract award, contract changes, time extensions and contract settlement documents ....

Reviews plans, specifications and contract documents for the design, rehabilitation, alteration and/or repair of multi-family housing projects to assure their compliance with HUD standards, good

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engineering practice and sound contracting procedures. Provide guidance to the A/E consultants in the preparation of such documents . . . .

Examines physical plant and interviews operating and maintenance personnel responsible for it. Makes recommendations for maintenance, physical improvement, replacement . . . .

Prepares cost estimates for budget preparation. . . .

Administers the building systems, . . . electrical, structural, and civil design contracts. . . . Reviews shop drawings, material samples and catalog cuts for compliance and recommends approval.

The proposed position would require an "ability to create and devise new ways of accomplishing objective[s]," a "thorough understanding of engineering methods and techniques," a "thorough knowledge of construction application, properties, operating and limitations of engineering systems, processes, . . . and materials," a "thorough knowledge of contacting management" and "procedures," and an "ability to make clear oral and written presentations."

DCOP approved DPAH's request to create the Modernization Coordinator positions and issued a "Priority Consideration Selection Certificate" on November 10, 1993. This Certificate listed three persons for priority consideration in filling the positions. Brummell's name was at the top of the list, meaning that he was entitled to be considered ahead of the other two candidates. In accordance with D.C. Personnel Regulations, the Certificate notified DPAH that it would be permitted to deviate from the priority ranking "only upon written justification by the selecting official that the duties of the position cannot be performed by the person with higher standing without undue interruption to the agency operation."⁴

On the very same day that the Priority Consideration Selection Certificate was issued, DPAH skipped over Brummell and chose the other two designated candidates to become Modernization Coordinators. Each of these two successful candidates had been born in Africa. One was thirty-seven and the other was forty-seven years old. Although he had priority over both of them, Brummell, who was sixty years old and born in the United States, was not even interviewed for the position. In violation of the conditions specified in the Certificate and D.C. Personnel Regulations, DPAH did not certify that Brummell could not perform the duties of the Modernization Coordinator position without undue interruption to agency operations. Instead, in its November 10, 1993 "Statement of Non-Selection" regarding Brummell, DPAH furnished the following explanation:

Based on HUD mandates, DPAH must begin a relatively new concept in the entire construction contract process. For the past two years DPAH has failed in its efforts to successfully begin major renovation of public housing properties. Mr. Brummell and several other employees within his area of assignment were responsible for the review, analysis and correction to drawings and specifications for design and plans of structural renovation. The contracting process,

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however, was entirely placed in the Office of Contracts and Procurement. The new thrust placed in the Modernization Coordinator position requires the knowledge and expertise to begin the process from preparing and issuing modernization contract documents, to contract award. Included in the process is the pre-award and post-award functions, price/cost analysis, negotiations and administration, which require extensive knowledge of federal, and local laws, regulations and procedures of modernization construction services. For these reasons and Mr. Brummell's limited experience in the awarding of construction contracts, we opted to non-select.

DPAH subsequently hired three more persons as Modernization Coordinators; the record before us does not disclose their national origins, ages, or other attributes.

B. Adjudication by DHR of Brummell's Discrimination Complaint

On March 2, 1994, Brummell filed a complaint with DHR, alleging that DPAH had discriminated against him on the bases of his age and national origin. DPAH filed a Position Statement in response, repeating what it had said in its Statement of Non-Selection and asserting as an additional reason for not hiring Brummell that the United States Department of Housing and Urban Development ("HUD"), DPAH's funding agency, required applicants for Modernization Coordinator positions to have "specialized technical degrees in technical areas." Unlike Brummell, the two persons initially selected ahead of him each had a "Bachelor of Architecture" degree and "the requisite experience essential to the performance of the duties." Further, DPAH stated, the decision to hire the three subsequent applicants instead of Brummell was "based solely on the . . . HUD mandate that candidates for the positions meet the qualifications for the technical degree requirement." The parties submitted numerous relevant documents for consideration by DHR, such as DPAH's official description of the position of Construction Analyst, DPAH's requests to DCOP to establish the Modernization Coordinator positions (which included a proposed job description), the priority selection certificate issued by DCOP regarding the new position, DPAH's announcement of the creation of the new positions, employment applications completed by Brummell and other applicants, and DPAH documents announcing the selection of certain applicants and the non-selection of Brummell.

On May 10, 1996, the Director of DHR issued a Letter of Determination finding probable cause to believe that a violation of the D.C. Human Rights Act had occurred.⁵ In determining that Brummell had established a prima facie case of discrimination based on national origin and age, the Director found that Brummell was in a protected class, that his performance as a...