Dominique v. DEPT. OF EMPLOYMENT SERV.

• Decision Date: 16 May 1990
• Docket Number: No. 88-1442.,88-1442.
• Citation: 574 A.2d 862
• Parties: Ronald DOMINIQUE, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, Washington Metropolitan Area Transit Authority, Intervenor.
• Court: D.C. Court of Appeals

574 A.2d 862

Ronald DOMINIQUE, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent Washington Metropolitan Area Transit Authority, Intervenor.

No. 88-1442.

District of Columbia Court of Appeals.

Argued April 4, 1990.

Decided May 16, 1990.

Joan Harvill, for petitioner.

Martin B. White, Asst. Corp. Counsel, Chevy Chase, Md., with whom Herbert O. Reid, Sr., Acting Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the Memorandum in Lieu of Brief, for respondent.

Gary L. Crawford, Gaithersburg, Md., for intervenor.

Before ROGERS, Chief Judge, and NEWMAN and FARRELL, Associate Judges.

NEWMAN, Associate Judge:

Ronald Dominique entered into a lump-sum settlement agreement of a worker's compensation claim with his employer, Washington Metropolitan Area Transit Authority ("WMATA"), one of the conditions of which was that he resign his position as a bus driver. After receiving the settlement, Dominique filed a claim against WMATA with the Department of Employment Services ("DOES"), charging that the requirement that he resign as a condition of receiving a lump-sum settlement constituted a retaliatory discharge under D.C. Code § 36-342 (1988 Repl.). The Hearing Examiner ruled that the resignation requirement was a retaliatory discharge as a matter of law and ordered reinstatement with back pay. On appeal, the Director reversed on grounds that the Hearing Examiner's legal conclusion was erroneous and ordered reinstatement of the settlement agreement. Dominique appeals from the Director's legal ruling that an employer does not commit a retaliatory discharge, as a matter of law, by requiring an employee to resign as part of a settlement agreement. Because the Director's legal ruling is not unreasonable in light of the prevailing law, inconsistent with the statute, or plainly erroneous, we affirm.

I

Ronald Dominique joined WMATA as a bus driver in 1979, following his discharge from the U.S. Marine Corps. In a brutal attack in February 1983, his throat was slit from ear to ear by a bus passenger wielding a razor. The wound required 176 stitches, and the experience caused Dominique to suffer what his treating psychiatrist, Dr. James Ryan, diagnosed as "acute stress disorder." Dominique was placed on temporary total disability. After undergoing psychiatric treatment for his stress syndrome, Dominique returned to his duties in August 1984. In November 1984, he was again assaulted by a passenger; this time a man struck him in the chest with a full can of beer. He suffered a recurrence of his stress disorder and was again placed on temporary total disability.

Throughout this period, dating from about a week after his initial injury, Dominique was represented by experienced legal counsel. Within a few months of that first injury, Dominique told counsel that he was anxious to reach a settlement agreement with WMATA, leave the company, and begin a new life based on some two years of college and a nascent career in professional boxing. However, according to the testimony of Dominique's then-counsel, all efforts at reaching a settlement were blocked by Dominique's second injury, which created the possibility of a separate claim and injury fund.¹

From November 1984, following the second assault, until October 1986, when a settlement agreement was reached between Dominique and WMATA, Dominique remained under the care of Dr. Ryan for his stress disorder. Throughout this entire period, Dr. Ryan expressed the opinion that due to the stresses and pressures of the job Dominique should not return to his position as a bus driver, but rather should seek another form of employment. This opinion was echoed by other psychiatrists who examined Dominique during this period. One of them, Dr. Joseph Tarantolo, made this dire prediction in a report dated June 3, 1985:

I think no amount of therapy will be enough to correct the serious underlying personality deficits in Mr. Dominique to the point of his being able to take on the interpersonal stress of innercity bus driving. As I stated in my first report, it would be dangerous both to him and to Metro passengers to put this potentially explosive person back into the Metro driver seat. He tells it quite succinctly, "Either someone will kill me or I will kill them." At best it would be a waste of time and money since failure would be likely should he return. He tried to return. No one was killed or permanently maimed. Let's consider that fortunate.

Another examining psychiatrist, Dr. Brian Schulman, writing in a March 8, 1986 report, said:

I do not believe that he is disabled on the basis of a phobia or a post-traumatic stress disorder. His psychiatric impairment lies in his poorly sublimated anger and the dire need for reparation for the assault ... Simply stated, he can no longer cope actively with inner city driving, simply because he cannot assume the passive, nonreactive role essential for operators who are capable of stabilizing and not escalating potentially provocative situations ... It is my conclusion that this person is highly unsuitable for any position that would place him in a provocative situation with the general public where issues of authority become manifest.

WMATA paid disability benefits to Dominique until March 1986, when it refused to continue the payments on grounds that Dominique was not cooperating with job placement rehabilitation efforts. At that time he was still under the care of Dr. Ryan for stress disorder. Dr. Ryan, who was then of the opinion that Dominique would never be able to return to work as a bus driver, had not released him to return to work.

In April 1986, Dr. Ryan released Dominique to return to light duty. That same month, Dominique secured a part-time position as a clerk in a liquor store at a salary of $45 per week. His pre-injury salary was $546.40 per week.

Without his WMATA benefits and making only $45 per week, Dominique fell behind on his financial obligations. He soon found himself behind on his rent, car payments, and credit card accounts. Then, in May 1986, Dr. Ryan issued a report stating that Dominique's second injury had not created a "new" stress disorder or greatly exacerbated Dominique's existing disorder. This report removed the possibility of a second injury fund and thus cleared the way for settlement negotiations.

Once again Dominique pressed his counsel to obtain a settlement. Settlement negotiations were carried on with WMATA from August through October 1986. The result of these negotiations was a proposed settlement agreement; under its terms, Dominique would receive a lump-sum payment of $25,000 in exchange for releasing WMATA from further medical and legal claims and voluntarily resigning his position with WMATA.

On September 8, 1986 counsel for WMATA wrote to counsel for Dominique as follows:

As I have previously advised, the employer did not have any interest in settling this claim while the Claimant was employed at WMATA. Upon your representation, however, that the claimant had or was going to voluntarily submit his resignation from employment at WMATA, I was able to secure the necessary settlement authority to meet your client's demand. You are not, however, authorized to submit this Settlement Petition to the Office of Worker's Compensation, "OWC" for approval until such time as I am in receipt, from you, of the document verifying your client's resignation from WMATA. If this Petition is submitted prior to my receipt of that resignation, I and the employer will consider it null and void. Once I receive the resignation, and have it in my hand, I, or my representative, will provide you with the appropriate authorization to file this Settlement Petition.

Counsel for Dominique responded on September 23 by forwarding Dominique's letter of resignation, which read as follows:

I, Ronald H. Dominique, want to resign my position with WMATA as a Operator to further my education and my career as a professional boxer.

The Settlement Petition was then submitted to OWC, pursuant to D.C.Code § 36-308(f) (1981) (current version at D.C. Code § 36-308(8) (1989 Repl.), in October 1986. The Settlement Petition, which did not mention the requirement that Dominique resign his petition as a condition of the agreement, was approved by the OWC on October 17, 1986.

In November 1986, Dominique reported to a WMATA physician, apparently claiming to be a current employee seeking reinstatement. He was cleared to return to work and operated a bus during the months of November and December 1986 and January 1987. In January, WMATA officials discovered that Dominique was again driving a bus. They wrote to him to remind him of his resignation and to order him to cease driving WMATA busses and to stay off of WMATA property.

Dominique consulted new counsel, who filed a claim of retaliatory discharge against WMATA on his behalf, asking for reinstatement and back pay. Dominique's theory was that by requiring him to resign in order to receive his lump-sum settlement payment, WMATA had committed a retaliatory discharge within the meaning of D.C. Code § 36-342. Dominique did not ask to have the settlement agreement set aside. Thus, it appears that Dominique was seeking to retain the $25,000 given to him in the settlement agreement in addition to reinstatement and back pay.

A hearing was held in which testimony was taken from Dominique and counsel who had represented him in the settlement agreement. The Hearing Examiner found that Dominique had been required to resign as a condition of the settlement agreement and remanded the case to OWC to "reconsider its...