KENNEDY v. DISTRICT OF COLUMBIA, 91-CV-1503

• Decision Date: 16 February 1995
• Docket Number: No. 91-CV-1504,No. 91-CV-1503,91-CV-1503,91-CV-1504
• Citation: 654 A.2d 847
• Parties: Brian R. KENNEDY, Appellee/Cross-Appellant, v. DISTRICT OF COLUMBIA, Appellant/Cross-Appellee.
• Court: D.C. Court of Appeals

654 A.2d 847

Brian R. KENNEDY, Appellee/Cross-Appellant, v. DISTRICT OF COLUMBIA,Appellant/Cross-Appellee.

Nos. 91-CV-1503, 91-CV-1504.

District of Columbia Court of Appeals.

Argued September 22, 1993.

Decided September 12, 1994.

Order Resolving Question on Rehearing February 16, 1995.

APPEAL FROM THE SUPERIOR COURT, DISTRICT OF COLUMBIA, RONALD P. WERTHEIM, J.

THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.

THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.

Patrick W. Shea, with whom Arthur B. Spitzer, Washington, DC, was on the brief, for appellee/cross-appellant.

Karen L. McDonald, Asst. Corp. Counsel, with whom John Payton, Corp. Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, Washington, DC, was on the brief, for appellant/cross-appellee.

Before FERREN and SCHWELB, Associate Judges, and PRYOR, Senior Judge.

PRYOR, Senior Judge:

The Superior Court reversed a decision of the Mayor's Special Assistant and reinstated the Equal Employment Opportunity Director's ruling that the District of Columbia Fire Department's grooming regulations violated the District of Columbia Human Rights Act. Both parties appeal. Brian R. Kennedy, a former employee of the Fire Department, claims that the trial court erred in denying his claims for compensatory damages, attorneys fees, and Rule 11 sanctions. Opposing these claims, the District contends that Kennedy's claims are now moot due to his disability retirement from the Department. The District further maintains that the trial court erred by concluding that the District of Columbia Fire Department's facial and hair length regulations for male fire-fighters were discriminatory as applied to Kennedy. After reviewing the record and the parties' respective contentions, we affirm in part and reverse in part, and remand.

I. Procedural History

The District of Columbia Fire Department's ("Department") grooming regulations ("Regulations") require male firefighters to be cleanly shaven and to have short hair. ¹ In contravention of these regulations, Kennedy grew a "handlebar moustache" and a beard — actions which prompted disciplinary proceedings which resulted in his being dismissed from the Department. On December 15, 1980, Brian R. Kennedy filed a complaint with the Director of Equal Employment Opportunity ("EEO") for the Government of the District of Columbia, alleging that the grooming regulations violate both the Mayor's Order 75-230, 1975 D.C. Stat. 510, and the Human Rights Act of 1977, D.C.Code §§ 1-2501 to -2557 (1992 Repl.).

An administrative hearing was convened which resulted in a finding by the hearing examiner that the Department's Regulations (1) were not uniformly and equally applied to Department employees, (2) were not an essential component of an employee's uniform, (3) did not foster esprit de corps among the employees, and (4) were not rationally based on a safety justification. In addition, the hearing examiner proposed new grooming regulations to be implemented by the Department.

On August 8, 1983, the EEO Director, adopting the recommendations of the hearing examiner, ordered Kennedy's reinstatement on grounds that the grooming regulations as applied to Kennedy were unlawfully discriminatory on the basis of personal appearance. Kennedy was subsequently awarded reinstatement with back pay, but denied compensatory damages, attorneys fees, and punitive damages.²

Pursuant to § 6(a)(8) of Mayor's Order 75-230,³ the Department sought review of the Director's decision. On September 26, 1983, the Mayor designated Carol Lowe, Special Assistant to the City Administrator, to review the EEO Director's decision. On May 14, 1985, Special Assistant Lowe reversed the EEO Director's decision and upheld the Department's grooming regulations. In her decision, the Special Assistant held that both Mayor's Order 75-230, 1975 D.C. Stat. 510, and the Human Rights Act of 1977, D.C.Code §§ 1-2501 to -2557 (1992 Repl.), permitted the Department to regulate different hair lengths for male and female employees.

Moreover, she held that the evidence before the hearing examiner supported the Department's safety justification for its facial hair regulation.

Kennedy filed two petitions in this court which were subsequently consolidated. See Kennedy v. Barry, 516 A.2d 176, 180 (D.C. 1986). The first petition questioned the Special Assistant's authority to review the order as well as her delay in rendering a decision and requested a writ of mandamus ordering the Department to comply with the EEO Director's order. The second petition sought to overturn the Special Assistant's decision. In opposition, the District of Columbia argued, inter alia, that Kennedy's claims did not rise to the level of a "contested case" pursuant to D.C.Code § 1-1510(a), and thus, this court was without jurisdiction. We agreed and dismissed Kennedy's petitions. 516 A.2d at 180.

On May 18, 1987, Kennedy filed an amended complaint for equitable relief in the Superior Court requesting the reinstatement of the Director's decision. In a reversal of its previous position, the District of Columbia filed a motion to dismiss the amended complaint on the ground that the matter involved a contested case which required Kennedy to seek review in this court. Kennedy opposed this motion and moved for sanctions under Superior Court Civil Rule 11. The Superior Court correctly asserted jurisdiction and found the Special Assistant's decision to be unsupported by the evidence, thus reinstating the EEO Director's decision in favor of Kennedy. In addition, the court denied Kennedy's claim for Rule 11 sanctions. Both Kennedy and the District appeal from those rulings.

II. Mootness

At the threshold, we address the District's contention that Kennedy's claim for equitable relief is moot because he retired from the Fire Department prior to the time the Superior Court rendered its decision. We disagree.

Although the concept of mootness is grounded on the firm principle that "parties in a judicial proceeding must have a concrete stake in the outcome[,]" In re An Inquiry into Allegations of Misconduct Against Juveniles Detained at and Committed at Cedar Knoll Inst., Dep't of Human Resources, 430 A.2d 1087, 1092 (D.C. 1981) (citations omitted), it is clear that unresolved issues of damages, as are present here, constitute a sufficient "concrete stake" in the litigation. Such issues are therefore properly before us irrespective of Kennedy's retirement. Board of Pardons v. Allen, 482 U.S. 369, 370-71 n. 1, 107 S.Ct. 2415, 2417 n. 1, 96 L.Ed.2d 303 (1987) (prisoners' release on parole did not render action seeking compensatory damages in addition to declaratory and injunctive relief, moot).⁴ Similarly, we note that Kennedy's appeal from the Superior Court's denial of his claim for sanctions under Rule 11 is also properly before us.

In addition, the Supreme Court has carved an exception to its general insistence that a litigant maintain a "concrete stake" in the action to encompass those scenarios which are "capable of repetition, yet evading review." See Southern Pacific Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). This exception traditionally applies when (1) the challenged action is in its duration "too short to be fully litigated prior to its cessation or expiration," and (2) there is a "reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975) (per curiam) (citing Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975)).

Notwithstanding federal cases to the contrary, "[t]hiscourt has declined to adhere strictly to [these] requirements," and has not insisted that the conduct be threatened against the same complaining party. In re W.L., 603 A.2d 839, 841 (D.C. 1991) (citing Lynch v. United States, 557 A.2d 580, 582 (D.C. 1989) (en banc)). Accordingly, where the pursuit of administrative and judicial avenues of redress outdistances the tenure orlegal status of the complaining party, and the challenged conduct threatens to go unchecked, an adjudication on the merits is appropriate. See United States v. Edwards, 430 A.2d 1321, 1324 n. 2 (D.C. 1981) (en banc), cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 141 (1982). For this reason as well, this case is properly before us.

III. Scope of Review

In addressing the merits of the dispute, our scope of review in this case is unusual. Although this case comes to us from the Superior Court's reversal of the Special Assistant's reversal of the hearing examiner's ruling and reinstatement of the EEO Director's decision, our primary task is not simply to review the Superior Court's decision for error or abuse of discretion.⁵ Rather, we approach the case as if the appeal arose directly from the administrative agency. See Davis v. Univ. of the District of Columbia, 603 A.2d 849, 851 (D.C. 1992); Kegley v. District of Columbia, 440 A.2d 1013, 1018 (D.C. 1982); Barry v. Wilson, 448 A.2d 244, 246 (D.C. 1982) (per curiam).

When reviewing the decision of an administrative agency, we must first assure ourselves that the agency's "findings" are more than a reiteration of the evidence. Because these findings form a necessary "basis for a meaningful review by this court and also [] inform the parties of the facts proven and relied on by the [administrative agency]," we will not accept "generalized, conclusory or incomplete findings." Newsweek Magazine v. District of Columbia Comm'n on Human Rights, 376 A.2d 777, 784 (D.C. 1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 729, 54 L.Ed.2d 758 (1978).

Once satisfied that this threshold is met, our review function, then, is to determine whether there exists a " 'rational...