Hahn v. University of District of Columbia

• Decision Date: 17 January 2002
• Docket Number: No. 00-CV-1345.,00-CV-1345.
• Citation: 789 A.2d 1252
• Parties: Worden W. HAHN, Appellant, v. UNIVERSITY OF the DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

789 A.2d 1252

Worden W. HAHN, Appellant, v. UNIVERSITY OF the DISTRICT OF COLUMBIA, Appellee.

No. 00-CV-1345.

District of Columbia Court of Appeals.

Submitted October 4, 2001.

Decided January 17, 2002.

James B. Francis, Washington, DC, was on the brief for appellant.

Robin C. Alexander, Washington, DC, was on the brief for appellee.

Before TERRY and WASHINGTON, Associate Judges, and NEWMAN, Senior Judge.

TERRY, Associate Judge:

Appellant Hahn was released in 1999 from his employment as a professor at the University of the District of Columbia pursuant to a reduction in force ("RIF"). He appealed his termination to the University president, but his appeal was rejected. He then filed a petition for review of the University's action in the Superior Court. The court denied the petition, and Dr. Hahn brought this appeal.

In all respects but one, we affirm the judgment of the trial court. We hold that the University had the power to conduct the RIF, that Dr. Hahn's status as a tenured professor did not entitle him to heightened seniority because that was precluded by a collective bargaining agreement, and that Dr. Hahn was properly subject to the 1999 RIF. We remand the case in part, however, because the University president did not make any findings on the question of whether Dr. Hahn held his faculty position "at large" within the College of Business and Public Management and, if so, whether he was or is qualified to teach in another department.

I

Dr. Hahn was employed under contract, beginning in 1992, as the dean of the College of Business and Public Management at the University. During the summer of 1993, Dr. Hahn's contract was canceled and replaced with an "at will" executive appointment as a result of changes in the University structure. His letter of appointment stated that Dr. Hahn's "executive appointment shall also include academic title and rank with tenure as a full professor in the College of Business and Public Management." In 1994 the College of Business and Public Management was merged into the College of Professional Studies, and Dr. Hahn lost his position as dean; however, he remained a faculty member with tenure in the College of Professional Studies.

During the 1996-1997 academic year, the University was faced with a severe financial crisis. As a result, the University instituted a reduction in force ("the 1997 RIF"). In authorizing the 1997 RIF, the District of Columbia Financial Responsibility and Management Assistance Authority, popularly known as the "Control Board," gave the University permission to abrogate provisions of the collective bargaining agreement ("CBA") between the University and the faculty. Among other things, the RIF plan adopted by the University contravened the CBA by allowing the University to retain any faculty member who would otherwise be targeted for release if that faculty member had "[a] record of receiving grant awards, contracts, and/or other agreements that have generated ... revenue for [the University]." Although Dr. Hahn was initially released pursuant to the 1997 RIF, his release was overturned on appeal because he had received several such grants during the 1996-1997 academic year.

The University of the District of Columbia Faculty Association ("the Union"), however, filed a suit in federal court challenging the University's RIF procedures. The United States District Court for the District of Columbia ruled that the Control Board had exceeded its authority in granting the University permission to abrogate the CBA. University of the District of Columbia Faculty Ass'n/NEA v. Board of Trustees of the University of the District of Columbia, 994 F.Supp. 1 (D.D.C.1998). That ruling was affirmed on appeal. University of the District of Columbia Faculty Ass'n/NEA v. District of Columbia Financial Responsibility & Management Assistance Authority, 333 U.S.App.D.C. 325, 163 F.3d 616 (1998). As a result, the University reached an agreement with the Union to reinstate those faculty members who were RIFfed out of seniority order and to conduct a corrective RIF ("the 1999 RIF") to facilitate the rehiring of the wrongly terminated faculty members. Dr. Hahn was identified as one of the faculty members retained out of order and was thus subject to the 1999 RIF.

Dr. Hahn appealed his termination under the 1999 RIF to the University president. In that appeal, Dr. Hahn claimed that his seniority had been wrongly calculated because of, among other things, his tenured status and his unique "at large" position within the College of Business and Public Management. He also asserted that he was not subject to the 1999 RIF because he had not been improperly retained under the 1997 RIF. The University president rejected Dr. Hahn's arguments. As to Dr. Hahn's first point, the president stated that tenure did not entitle him to heightened seniority and that, even if it did, the CBA explicitly stated that the granting of tenure "shall not constitute relief from the application of the full provisions of this Agreement." The CBA, in other words, superseded the regulations governing tenure to the extent that they were inconsistent. The president also ruled that "for the same reason" Dr. Hahn's claim of "at large" tenure "does not apply." Finally, the president rejected Dr. Hahn's contention that he had not been improperly retained in 1997, and thus ruled that he was subject to the 1999 RIF. Dr. Hahn then sought review in the Superior Court, which upheld the decision of the University president.

II

We review the affirmance of an administrative action by the trial court in the same way that we would examine the agency's ruling if it came before us on direct review from the agency. See, e.g., Bufford v. District of Columbia Public Schools, 611 A.2d 519, 522 (D.C.1992). That is, we examine the administrative record "to determine if there has been procedural error, if there is substantial evidence in the record to support the action of the [agency], or if the action is in some manner otherwise arbitrary, capricious, or an abuse of discretion." Kegley v. District of Columbia, 440 A.2d 1013, 1019 (D.C.1982) (citation omitted); accord, e.g., Harrison v. Board of Trustees of the University of the District of Columbia, 758 A.2d 19, 22 (D.C.2000); Stokes v. District of Columbia, 502 A.2d 1006, 1010 (D.C. 1985). "We cannot retry the facts or rehear the evidence." Shepherd v. District of Columbia Dep't of Employment Services, 514 A.2d 1184, 1186 (D.C.1986). Guided by these basic principles, we address Dr. Hahn's several claims of error.

Dr. Hahn makes four arguments on appeal. First, he maintains that the University lacked the power to conduct a RIF at all. Second, he argues that he was not subject to the CBA. Third, he claims that his tenured status in general and his "at large" faculty position in particular specifically gave him heightened seniority which made him exempt from the 1999 RIF. Finally, Dr. Hahn contends that he was not subject to the 1999 RIF because he had not been improperly retained under the 1997 RIF.

A. The University's Power to Conduct the RIF

Dr. Hahn argues that the University exceeded its authority to conduct a RIF because its current regulations governing RIFs do not apply to faculty members. According to the University regulations, faculty members may be separated from the University in five ways, including a RIF "in accordance with the provisions of §§ 1451 through 1459 of this chapter." 8 DCMR § 1450.1(e) (1988). In 1992 the University revised its RIF regulations by repealing the existing sections 1451 through 1459 and promulgating new regulations in a new chapter 18. See 39 D.C. Register 4795 (1992). Dr. Hahn asserts that the new rules in chapter 18 do not explicitly apply to faculty and that, because the University repealed the faculty RIF provisions in sections 1451-1459, it currently has no provisions at all governing RIFs of faculty members and therefore lacks the authority to conduct one.

There are two problems with this argument. First, Dr. Hahn did not make it either before the University president or in the Superior Court. As a result, we cannot consider it either. "[C]ontentions not urged at the administrative level may not form the basis for overturning the decision on review." Goodman v. District of Columbia Rental Housing Comm'n, 573 A.2d 1293, 1301 (D.C.1990) (citation omitted);¹ accord, e.g., Dietrich v. District of Columbia Board of Zoning Adjustment, 320 A.2d 282, 287 (D.C.1974). Even if we were to reach the issue, however, the other problem is that the University's RIF regulations as published in chapter 18 do cover faculty members. Those regulations apply to "all employees of the University in the Educational Service, except as provided otherwise in this section." 8 DCMR § 1800.1, 39 D.C. Register 4795. The Educational Service includes faculty members. See 8 DCMR § 1100.1 (1988) (Educational Service consists of "all employees of the University except" those in six categories, none of which includes faculty). Thus the University was acting in a manner consistent with its regulations when it conducted the RIF.

B. Tenure and the Collective Bargaining Agreement

Dr. Hahn asserts that his status as a tenured faculty member protects him from the RIF. In addressing this assertion, the University president concluded, first, that tenure did not entitle Dr. Hahn to heightened seniority, and, second, that even if it did, the provisions of the CBA precluded tenured faculty from receiving special protection during a RIF. Dr. Hahn disputes both of those conclusions.

The CBA contains several provisions concerning RIFs. It also states that "[t]he granting of tenure to a bargaining unit member shall not constitute relief from the application of the full provisions of this Agreement." Because the University regulations provide that the CBA overrides the regulations if they are inconsistent, see 8 DCMR § 1800.3, 39 D.C. Register 4795,² a tenured...