Harrison v. Board of Trustees

• Decision Date: 17 August 2000
• Docket Number: No. 97-CV-453., No. 97-CV-30
• Citation: 758 A.2d 19
• Parties: Richard A. HARRISON and Linda Y. McMillan, Appellants, v. BOARD OF TRUSTEES OF the UNIVERSITY OF the DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

758 A.2d 19

Richard A. HARRISON and Linda Y. McMillan, Appellants, v. BOARD OF TRUSTEES OF the UNIVERSITY OF the DISTRICT OF COLUMBIA, Appellee.

Nos. 97-CV-30, 97-CV-453.

District of Columbia Court of Appeals.

Argued May 4, 1999.

Decided August 17, 2000.

James F. McConville, for appellants.

Robin C. Alexander, Washington, DC, for appellee. Charles L. Reischel, Deputy Corporation Counsel, also entered an appearance for appellee.

Before TERRY, SCHWELB, and RUIZ, Associate Judges.

TERRY, Associate Judge:

Appellants Harrison and McMillan are former educational service employees of the University of the District of Columbia ("the University" or "UDC"). Pursuant to a multi-phase reduction in force ("RIF"), Harrison's position was eliminated in November 1992 and McMillan's in September 1995. Both appealed their terminations to the president of UDC, but those appeals were rejected. In January 1993 Harrison and eight other former UDC employees sought review of UDC's action in the Superior Court. Their petitions were consolidated with one another, and three more were later consolidated with the first nine. The court denied all twelve petitions in a thorough and detailed memorandum opinion. Harmon v. Board of Trustees of the University of the District of Columbia, No. 93-MPA-03 (D.C.Super.Ct. August 4, 1994) (Burgess, J.). Harrison and several other petitioners appealed to this court. Some of those appeals were dismissed, and in two of the others the trial court's rulings have been affirmed.¹ McMillan also petitioned the Superior Court for review of her discharge, but her petition was likewise denied. Her appeal from that ruling was consolidated with that of Mr. Harrison.

Both appellants challenge the validity of the University's RIF rules on several grounds. They claim that the rules violated the District of Columbia's RIF policies and were designed to limit employees' rights. They each challenge their individual terminations on separate additional grounds. We conclude that appellants' claims are largely based on misinterpretations and misunderstandings about the relevant statutes and rules, and hold that the RIF rules are neither unreasonable nor illegal. Because we also find no merit in either appellant's individual claims, we affirm both judgments.

I

The relevant facts in each of these consolidated cases are essentially undisputed.

A. Harrison

On June 26, 1992, the University's updated RIF Rules went into effect. 8 DCMR §§ 1800 et seq. (1992); see Hoage, supra note 1, 714 A.2d at 778. In August of that year, UDC implemented its Administrative Management Plan, Phase I, which was designed to alleviate the University's financial problems by consolidating or eliminating several of its administrative units by means of a RIF. Among those units affected was the Office of Veterans Affairs, where Richard Harrison was employed as the program manager and assistant director of veterans affairs. On October 21, 1992, Harrison received a notice stating that, effective November 25, his position was being abolished and his employment terminated pursuant to the RIF. Harrison had worked at UDC and one of its predecessor institutions for twenty-four years.

Harrison filed a timely request for review with UDC President Tilden LeMelle on November 4, 1992. He contended that the implementation of the new RIF rules was "subjective and illegal" and that the elimination of the Office of Veterans Affairs and his position violated 34 C.F.R. § 629.5, the federal regulation governing Veterans Education Outreach Program grants.² In a letter dated December 21, President LeMelle rejected Harrison's appeal, stating that, under the federal regulation, UDC only had to "maintain an office of veterans affairs that fulfills the functions required to provide the services for which the grant is made," not a "separate Office of Veterans Affairs" (emphasis in original). He also explained to Harrison that "[t]he competitive areas set forth in the new RIF rules are essentially the competitive areas that were set forth in the prior rules," and that the RIF procedures do not apply to temporary or contract employees because "[t]emporary employees have no retention rights and may be released at any time without effecting a reduction in force," and because the retention rights of contract employees are determined by their individual contracts, not by any RIF rules.³

Harrison filed a petition in the Superior Court for review of the president's decision. See Super. Ct. Agency Rev. R. 1; Davis v. University of the District of Columbia, 603 A.2d 849, 853 (D.C.1992) (educational service employee is not entitled to a hearing before the Office of Employee Appeals but may "invoke the general equitable jurisdiction of the Superior Court so that he would be afforded a right to a hearing"). The court in due course affirmed the president's decision, concluding that it was supported by substantial evidence. Harrison then appealed to this court.

B. McMillan

Linda McMillan was hired by the University on December 18, 1972, and eventually became the Education Program Administrator in the University College. On August 25, 1995, she received a notice informing her that her position was being terminated in accordance with the University's Administrative Management Plan, Phase III, and that she would be released on September 30. On September 8 McMillan filed a request for review with President LeMelle asserting, inter alia, that the termination of her position was unreasonable and that the rules governing the RIF were improper.⁴ On October 23 President LeMelle affirmed McMillan's termination in a five-page, single-spaced letter addressing and rejecting each of her claims. On McMillan's petition for review, the Superior Court affirmed that decision, and McMillan appealed.

II

A. Standard of Review

The standards governing our review of any administrative order are well settled. We review the factual findings of the agency for the limited purpose of determining whether there is substantial evidence to support them. See, e.g., Sturgis v. District of Columbia Dep't of Employment Services, 629 A.2d 547, 551 n. 3 (D.C.1993). "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). "If this court, upon examining the record as a whole, concludes that the [agency's] findings are supported by substantial evidence, it must accept those findings, even though there may also be substantial evidence in the record to support a contrary finding." Baumgartner v. Police & Firemen's Retirement & Relief Board, 527 A.2d 313, 316 (D.C.1987).

Although our review of an agency's legal conclusions is de novo, see KOH Systems, Inc. v. District of Columbia Dep't of Employment Services, 683 A.2d 446, 449 (D.C.1996), "[a]n agency's interpretation of its own regulations or of the statute which it administers is generally entitled to great deference from this court." Columbia Realty Venture v. District of Columbia Rental Housing Comm'n, 590 A.2d 1043, 1046 (D.C.1991); accord, e.g., Gunty v. District of Columbia Dep't of Employment Services, 524 A.2d 1192, 1196 (D.C.1987). In this case, however, because the Comprehensive Merit Personnel Act (CMPA), D.C.Code §§ 1-601.1 et seq. (1999), is administered by the Office of Employee Appeals rather than UDC, we accord little or no deference to UDC's interpretation of the CMPA. See District of Columbia Metropolitan Police Dep't v. Perry, 638 A.2d 1138, 1144 (D.C.1994). On the other hand, we give considerable deference to UDC's interpretation of its own regulations governing RIFs.

B. Challenges to the RIF Rules in General

Both appellants initially challenge the University's new RIF rules, 8 DCMR §§ 1800 et seq. (1992), under which their positions were eliminated. They claim that these RIF rules are inequitable because they ignore the express policy governing RIF procedures set forth in D.C.Code § 1-604.1 (1992),⁵ and that the new rules are designed to limit employees' rights and options while providing the University with the ability to "RIF high level administrators." In support of their argument, petitioners assert that because temporary and contract employees are exempt from the new rules, their own positions as permanent, full-time employees are less protected than they were under the old rules.

We note at the outset that the policy announced in section 1-604.1 is not intended, as appellants seem to believe, to require that UDC establish RIF rules or any other employment practices that are identical or even similar—other than in their equitable nature—to those governing other District of Columbia agencies. In a previous section of the CMPA, the Council of the District of Columbia specifically stated that UDC was to create its own rules governing employment. D.C.Code § 1-602.3(b) provides in part:

The ... Board of Trustees of the University of the District of Columbia shall develop ... policies on classification, appointment, promotion, retention, and tenure of employees consistent with [its] educational mission[].... [Emphasis added.]

In another section, the Council specifically declared that the personnel management rules governing the educational employees of UDC were to be separate from those governing other District employees:

[I]t is the purpose and policy of this chapter [the CMPA] to assure that the District of Columbia government shall have a modern flexible system of public personnel administration, which shall:

* * * * *

(3) Create separate personnel management systems for educational employees of ... the University of the District of Columbia[.]

D.C.Code § 1-601.2(a)(3) (emphasis added).⁶ The plain language of these sections shows not only that UDC's employment practices need not be the same as those of other District government agencies and entities, but that the Council anticipated and expected that UDC's rules would be different from those...