Dupree v. Dist. of Columbia Office of Emp. Appeals
| Decision Date | 22 December 2011 |
| Docket Number | 09–CV–937.,Nos. 09–CV–1368,s. 09–CV–1368 |
| Citation | 36 A.3d 826 |
| Parties | William H. DUPREE, Appellant, v. DISTRICT OF COLUMBIA OFFICE OF EMPLOYEE APPEALS and District of Columbia Department of Corrections, Appellees. |
| Court | D.C. Court of Appeals |
OPINION TEXT STARTS HERE
James F. Wallington, Washington, DC, for appellant.
Sonia I. Ignatova, Special Assistant Attorney General, with whom Peter J. Nickles, Attorney General for the District of Columbia at the time the brief was filed, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for appellees.
Before GLICKMAN and BLACKBURNE–RIGSBY, Associate Judges, and BELSON, Senior Judge.
On August 3, 2001, the District of Columbia Department of Corrections (“DOC”) released appellant William H. Dupree from his position as a Criminal Investigator due to a mandated reduction in force. Appellant noted an appeal of his release with the Office of Employee Appeals (“OEA”), which upheld his release, finding that the DOC complied with the applicable regulations. He then appealed this initial decision with the OEA Board, which issued a final decision affirming the initial decision. Following the OEA's affirmance of the initial decision, appellant sought relief from the Superior Court, which denied his petition for review. Appellant now challenges the Superior Court's order, alleging that the OEA failed to conduct an evidentiary hearing and further failed to consider four key factors that would have prevented him from being released from employment. Additionally, he claims that the Superior Court did not have jurisdiction to amend its order after the notice of appeal had been filed. We affirm in part and reverse in part the OEA's decision affirming appellant's release from employment and remand to the OEA for further findings. 1
Abolishing positions due to reductions in force (“RIF”) places an agency under extreme pressure to give fair consideration to an employee's service before involuntarily terminating them. To help accomplish this, regulations have been promulgated to ensure that RIFs are conducted in a fair manner and are therefore less vulnerable to administrative challenge. See D.C.Code § 1–624.01 (2001) (); see also id. § 1–624.02(a)(1) (). The regulations governing a RIF require an agency to first classify employees by their job category (known as a “competitive level”) and then rank employees by seniority within each competitive level. 6–B DCMR §§ 2410, –2412.2 (2000).2 The rankings are recorded on a retention register, with the most senior employees ranked at the top of the list, and the least senior at the bottom. Id. §§ 2412, –2413.4. An employee's rankings can be enhanced by crediting additional years served for “outstanding” performance ratings, veteran status and/or residency in the District of Columbia. Id. §§ 2416, – 2417, – 2418. Such enhancements allow an employee to move higher on the retention register. During a RIF, employees at the bottom of the register are released first. Id. § 2420.3.
Appellant was ranked eighth of ten employees on the Criminal Investigator retention register. As such, he was third from the bottom of the retention register and was among the five Criminal Investigators slated for release. 3 Appellant appealed his release to the OEA, alleging that he should have received an enhancement for an “outstanding” performance rating and that the Criminal Investigator retention register failed to include two employees classified as “Criminal Investigator (Internal Affairs).” The administrative law judge (“ALJ”) ruled that appellant's release was proper and appellant appealed this ruling to the OEA Board, which affirmed the initial decision. Appellant then filed a petition for review to the Superior Court, which affirmed the OEA decision on July 23, 2009.
On August 3, 2009, appellant appealed the Superior Court's order. On August 5, 2009, appellees OEA and DOC timely filed a motion to amend the Superior Court order “granting” appellant's petition, noting that since the Superior Court affirmed the OEA decision, the Superior Court actually intended to deny, not grant, the petition for review. As such, the Superior Court amended its order to clarify that it was denying the petition for review. Appellant then appealed the amended Superior Court order, and appellant's two appeals to this court were consolidated.
Our review of agency decisions on appeal from the Superior Court is the same as in administrative appeals that come to us directly. Johnson v. District of Columbia Office of Emp. Appeals, 912 A.2d 1181, 1183 (D.C.2006). “To pass muster, an administrative agency decision must state findings of fact on each material, contested factual issue; those findings must be supported by substantial evidence in the agency record; and the agency's conclusions of law must follow rationally from its findings.” Id. (quoting Murchison v. District of Columbia Dep't of Pub. Works, 813 A.2d 203, 205 (D.C.2002)) (internal quotation marks omitted). When reviewing an appeal of an OEA decision, we are confined “strictly to the administrative record” and “must affirm the OEA's decision so long as it is supported by substantial evidence in the record and otherwise in accordance with law.” Settlemire v. District of Columbia Office of Emp. Appeals, 898 A.2d 902, 905 n. 4 (D.C.2006) (citing Raphael v. Okyiri, 740 A.2d 935, 945 (D.C.1999)). “Upon review, we will only reverse where the OEA's action was ‘arbitrary, capricious, or an abuse of discretion.’ ” Jahr v. District of Columbia Office of Emp. Appeals, 19 A.3d 334, 340 (D.C.2011) (quoting Bagenstose v. District of Columbia Office of Emp. Appeals, 888 A.2d 1155, 1157 (D.C.2005)). Questions of law are reviewed de novo. District of Columbia v. District of Columbia Office of Emp't Appeals, 883 A.2d 124, 127 (D.C.2005)
Appellant challenges his release, contending that he should have been placed higher on the retention register. Appellant raises four arguments on appeal: (1) appellant was entitled to an evidentiary hearing; (2) three retired employees should have been counted among the employees that were released for purposes of the RIF; (3) the agency should have used the current year's performance ratings, but if it applied the prior year's ratings, appellant should have received an enhancement for his “outstanding” performance rating for that year; and (4) two employees less senior than appellant were improperly excluded from the Criminal Investigator retention register. We address each of these contentions in order.
As an initial matter we note that the ALJ addressed only two of the above four contested issues at the administrative level because, as the ALJ explained:
[I]t was agreed that the [appellant] can prevail only if he is able to prove two facts: (1) that he was entitled to an “outstanding” evaluation for the rating period used by the agency during the RIF in question (April 1, 1999—March 31, 2000); and (2) that [two less senior employees] were improperly placed on a separate retention register from that of [appellant], and should in fact have been on [appellant's] retention register.
However, appellant contends that he never abandoned any of the issues he raised in his initial notice to the OEA appealing his release. He reiterated this point in his appeal from the OEA's initial decision for a final decision from the OEA Board, where he noted that the ALJ failed to address several of his arguments. The record supports appellant's contention that he did not abandon any of the issues initially raised in his appeal to the OEA. 4 Therefore, we address each issue in turn and conclude that issue (1) warrants reversal, issues (2) and (3) warrant remand for further findings, and we affirm as to issue (4).
First, appellant claims that the ALJ should have conducted an evidentiary hearing “to adduce testimony to support the argument that the agency's termination action was flawed and contrary to law.” The ALJ declined to conduct an evidentiary hearing because he determined that this matter could be decided based on the documentary evidence in the record. 5 The regulations governing OEA hearings give the ALJ discretion to conduct an evidentiary hearing, or to decide on the record.6 See 6–B DCMR § 625.1 and -.2 (“ If the [ALJ] grants a request for evidentiary hearing, or makes his or her own determination that one is necessary, the [ALJ] will so advise the parties[.]”) (emphasis added). However, our review of the administrative record reveals that the documents submitted in response to appellant's contentions obfuscated rather than clarified the material issues, rendering it very difficult to decide these issue on the record.7 The ALJ was made aware of these material issues in the appellant's initial notice of appeal (wherein he outlined three of the four issues he now appeals) and in his Opposition to Agency's Motion to Dismiss & Motion for a Closed Evidentiary Hearing. This is not a case where appellant never raised material issues, and therefore the ALJ was not aware of the need for an evidentiary hearing. Cf. Anjuwan v. District of Columbia Dep't of Pub. Works, 729 A.2d 883, 885 (D.C.1998) (). Neither is this a case where only questions of law are concerned, since factual determinations remain at issue for at least two of the four issues noted above....
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