Hutchinson v. District of Columbia Office of Employee Appeals, 96-CV-87.

• Decision Date: 30 April 1998
• Docket Number: No. 96-CV-87.,96-CV-87.
• Citation: 710 A.2d 227
• Parties: Ronald A. HUTCHINSON, Appellant, v. DISTRICT OF COLUMBIA OFFICE OF EMPLOYEE APPEALS, Appellee.
• Court: D.C. Court of Appeals

710 A.2d 227

Ronald A. HUTCHINSON, Appellant, v. DISTRICT OF COLUMBIA OFFICE OF EMPLOYEE APPEALS, Appellee.

No. 96-CV-87.

District of Columbia Court of Appeals.

Argued November 13, 1997.

Decided April 30, 1998.

Frederic W. Schwartz, Jr., Washington, DC, for appellant.

Sheila Kaplan, Assistant Corporation Counsel, with whom Jo Anne Robinson, Interim Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for appellee.

Before STEADMAN and FARRELL, Associate Judges, and NEWMAN, Senior Judge.

STEADMAN, Associate Judge:

Appellant Ronald A. Hutchinson lost his job with the District of Columbia Fire Department after he allegedly failed to enter an emergency 911 call into the Department's computer system. An administrative judge at the Office of Employee Appeals ("OEA") determined that the Department acted properly in firing Hutchinson. Appellant filed a petition for review with the full OEA, which was denied, and then filed a petition for review with the Superior Court, which also was denied. We affirm.

I.

A. The 911 Call.

Hutchinson worked as a fire communications operator with the District of Columbia Fire Department. His responsibilities included answering emergency 911 calls and entering the incoming information into the Department's computer system so that ambulances could be dispatched as appropriate. On the afternoon of May 25, 1990, a caller spoke with Hutchinson and requested an ambulance for a woman suffering from symptoms of hypertension. No ambulance arrived, and the caller had to arrange for private transportation and treatment. A Department investigation into the incident revealed that the call had not been entered into the computer system. Hutchinson maintained that the computer malfunctioned, but the Department determined that he had failed to enter the call properly.

B. The Adverse-Action Procedures.

1. The Agency.

In an official letter, Deputy Fire Chief Philip Matthews, the administrator of the Communications Division, proposed that Hutchinson be removed for "inefficiency," specifically, the "failure to satisfactorily perform one or more major duties of his ... position." See D.C.Code § 1-617.1(d)(3) (1992) (inefficiency is cause for removal); D.C. Personnel Regs. § 1603.1(c), 34 D.C.Reg. 1845, 1850 (1987) (same). In the parlance of the D.C. Personnel Regulations, Matthews acted as the "proposing official" and his recommendation of a removal was the "proposed penalty." See D.C. Personnel Regs. §§ 1609.1, 1609.5, 34 D.C.Reg. at 1854. This was Hutchinson's third instance of inefficiency;¹ removal was therefore an appropriate penalty in the "Table of Appropriate Penalties," D.C. Personnel Regs. § 1618.1, 34 D.C.Reg. at 1863.

The Department appointed a "disinterested designee," Deputy Fire Chief Joseph Quander, Jr., to review the proposed action before making a recommendation to the "deciding official," Fire Chief R. Alfred. See D.C. Personnel Regs. §§ 1613.1-1613.3, 34 D.C.Reg. at 1857. Quander recommended a ninety-day suspension. Pursuant to D.C. Personnel Regs. § 1614.1, 34 D.C.Reg. at 1858, Alfred evaluated Quander's report and issued his final decision: that the proposed penalty of removal was appropriate and Hutchinson should be removed.

2. The Two Stages of OEA Review.

Hutchinson exercised his right under D.C.Code § 1-606.3(a) to appeal this adverse action to the OEA. See also OEA R. 604.1(b), 39 D.C.Reg. 7404, 7406 (1992). In the first stage of OEA review, an administrative judge, Blanca E. Torres, held a de novo evidentiary hearing at which various witnesses testified. See OEA R. 628.1, 628.2, 39 D.C.Reg. at 7421. In her initial decision, the administrative judge found that the Department had proven that Hutchinson's inefficiency, and not a computer malfunction, was the reason the call was lost. The administrative judge also determined that removal was an appropriate penalty.

On January 25, 1994, Hutchinson initiated the second stage of OEA proceedings by filing a petition for review with the full OEA.² See OEA R. 636.2, 39 D.C.Reg. at 7425 ("the initial decision shall not become final if any party files a petition for review"); see also OEA R. 637, 39 D.C.Reg. at 7426-27 (governing review procedures). Specifically, Hutchinson asked that the administrative judge's initial decision be "reconsidered" in light of the decision of another administrative judge concerning another Fire Department employee. The OEA denied the petition in a twelve-page opinion and the administrative judge's initial order became the OEA's final order. See OEA R. 636.3, 39 D.C.Reg. at 7425.

3. The Courts.

From this final order, on August 22, 1994, Hutchinson appealed to the Superior Court, alleging errors at both stages of the OEA proceedings. See D.C.Code § 1-606.1(d) ("A final decision of the full Office of Employee Appeals, relating to an appeal brought to it from a hearing examiner, shall be appealable to the Superior Court of the District of Columbia.");³ OEA R. 637.10, 39 D.C.Reg. at 7427 ("Any employee or agency may appeal a final decision of the Office to the Superior Court of the District of Columbia."). The Superior Court denied the petition for review and affirmed the final decision of the OEA. From these rulings, Hutchinson appeals to this court.

II.

Hutchinson asserts that the following errors occurred in the OEA proceedings: (A) the Department failed to prove that the lost call was a result of Hutchinson's inefficiency rather than a computer malfunction; (B) the administrative judge should have granted Hutchinson's request to subpoena Fire Chief Alfred; (C) the administrative judge should not have admitted the prior testimony of Deputy Fire Chief Matthews; (D) the deciding official, Fire Chief Alfred, was limited to imposing a penalty no greater than that recommended by the disinterested designee, i.e., a ninety-day suspension; and (E) the full OEA should have granted his petition for review. We find no merit in any of Hutchinson's contentions.

A. Proof of Inefficiency.

First, Hutchinson contends that the Department did not prove that the 911 call was lost because he failed to enter it properly, rather than because of a system malfunction at his computer terminal. The OEA administrative judge concluded otherwise. Although Hutchinson appeals from the Superior Court's review of the OEA's decision, we review the administrative decision as if the appeal had been taken directly to this court. See District of Columbia v. Davis, 685 A.2d 389, 393 (D.C.1996). We review the OEA's findings under the familiar "substantial evidence" test. Id. "Substantial evidence is defined as `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Davis-Dodson v. District of Columbia Dep't of Employment Servs., 697 A.2d 1214, 1218 (D.C.1997) (quoting Ferreira v. District of Columbia Dep't of Employment Servs., 667 A.2d 310, 312 (D.C. 1995)). "If the administrative findings are supported by substantial evidence, we must accept them even if there is substantial evidence in the record to support contrary findings." Metropolitan Police Dep't v. Baker, 564 A.2d 1155, 1159 (D.C.1989).⁴

The Department was required to prove by a preponderance of the evidence the cause cited for Hutchinson's dismissal, namely, inefficiency. See OEA R. 632.1, 39 D.C.Reg. 7404, 7424 (1992) (defining preponderance as "that degree of relevant evidence which a reasonable mind, considering the record as a whole, would accept as sufficient to find a contested fact more probably true than untrue"). The administrative judge heard detailed testimony about how communications operators receive 911 calls, assign each call a priority code depending on the gravity of the situation, and enter the information into the computer system. She also heard technical testimony concerning the computer system itself.

The administrative judge concluded that Hutchinson's inefficiency, not a system malfunction, was the more persuasive explanation for why the call was not entered into the computer system. This conclusion is supported by the testimony of Hutchinson's shift supervisor, Michael Hardgrove, who explained that the system generated a printout of all properly-entered calls, but that Hutchinson's call did not appear on the printout. A separate record of all incoming calls and an audio tape, however, confirmed that the call was made and that Hutchinson answered the line. According to the testimony of the Department's computer programmer, operators always received an on-screen confirmation that a call has been entered properly. When the system malfunctioned, it would not post an on-screen confirmation and would not accept any further entries.⁵ Thus Hutchinson would be aware of a malfunction, and of the need to enter the call again, because he would not receive a confirmation and the system would not accept further calls. Hutchinson testified, however, that he was able to enter the next call without any interruption. From the evidence that the system did not stop, a reasonable mind could fairly conclude that a malfunction did not occur, but rather that Hutchinson simply failed to enter the call properly.

Through cross-examination of the Department's witnesses, and through the direct examination of his own witnesses, Hutchinson raised the specter that undiscovered software "bugs" and inadequate memory may have caused the problem. One of his witnesses, James Figard, had been fired from the Department after an unrelated mishap involving a 911 call. Figard testified that on hundreds of occasions the computer system would not accept his entries even though he followed the appropriate steps. The administrative judge, however, "found Figard's testimony to be given in a glib and offhanded manner and generally ... unreliable."⁶

Hutchinson contends that "glib and offhanded" are not valid reasons to discredit a witness. "In reviewing the OEA, we give great deference to any credibility...