O'Neill v. District of Col. Office of Human Rights, 7408.

Decision Date13 April 1976
Docket NumberNo. 7408.,7408.
Citation355 A.2d 805
PartiesHugh O'NEILL and Herbert S. Yarus, Petitioners, v. DISTRICT OF COLUMBIA OFFICE OF HUMAN RIGHTS, Respondent.
CourtD.C. Court of Appeals

Earl A. Gershenow, Asst. Corp. Counsel, Washington, D. C., with whom C. Francis Murphy, Corp. Counsel, Washington D. C., at the time the brief was filed, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the brief, for respondent.

Before KELLY, KERN and NEBEK-ER, Associate Judges.

KERN, Associate Judge:

Petitioners O'Neill and Yarus were two of some 1,400 persons employed by the Department of General Services of the District of Columbia (DGS) at the time this controversy commenced in 1971. They occupied the positions of Engineering Technicians in the work order branch of the Bureau of Repairs and Improvements classified as a GS-12 and a GS-11, respectively. Neither of their positions, however, is in the competitive service.1 See Respondent's Supplemental Statement.2

Petitioners alleged they were the victims of racial prejudice on the job and engaged in a series of conferences with various officials in their department. Dissatisfied by the results, they thereafter invoked the procedures set forth in Commissioner's Order 71-26 issued February 2, 1971,3 and charged formally that the Department had, because of their race, (1) denied them promotions and opportunity therefor, (2) downgrade their existing positions and (3) subjected them in their jobs to unjustified criticism and harassment.

Order 71-26 promulgates the regulations which govern complaints of discrimination made by District government employees against their agency or department employers.4 In essence it provides first for informal counseling of an aggrieved employee within the department or agency by the so-called EEO Counsellor in that particular organization. See Order 71-26, § 6. If the employee's claim of discrimination cannot be resolved by this intra-agency counseling, as it was not in the instant case, the next step is the filing of a formal complaint with the District of Columbia Human Relations Commission (HRC), see Order 71-26, § 7, whose Executive Director is designated Director of Equal Employment Opportunity for the District of Columbia and who is denominated the Director, EEO. See Order 71-26, § 4.5 Each formal complaint must be investigated by the HRC staff which investigation, among other things, "shall include a thorough review of the circumstances under which the alleged discrimination occurred." See Order 71-26, § 8.

At this point in a government employee discrimination proceeding, Order 71-26 vests broad discretion in the Director; specifically, he is empowered by § 9 thereof upon review of the file either (a) to make adjustment of the complaint or (b) "when warranted by the facts and circumstances . . . [to] make a summary determination upon the merits . . . based solely upon information in the complaint file." In the event the Director does neither, then, and only then, the complainant "shall be notified in writing of the proposed disposition . . . and shall be advised of his right to a formal hearing" [emphasis added] before an "independent appeals examiner" who, after the hearing, is required to make a report and recommendations for review by the Director. See Order 71-26, § 9(c).

The Director in the instant case concluded upon examining the information obtained as a result of the HRC staff investigation that there was no evidence to support petitioners' allegations of racial discrimination on the part of DGS and made a summary determination upon the merits, viz., to close their case "with a finding of no probable cause." Petitioners appealed to the Mayor-Commissioner who on May 10, 1973, affirmed the Director's order. They have now filed with this court a petition for review asking us to set aside the summary determination of the Director and "compel" him to grant them "a formal hearing on their complaint."

It is well established that this court is enabled to review directly only agency decisions or orders entered in "contested cases," Dupont Circle Citizen's Ass'n v. District of Columbia Zoning Comm'n, D. C.App., 343 A.2d 296, 298-99 (1975) (en banc). That term has been defined in Section 3(8) of the District of Columbia Administrative Procedure Act (DCAPA), D. C.Code 1973, §§ 1-1501 et seq., and elaborated upon by this court in Chevy Chase Citizens Ass'n v. District of Columbia Council, D.C.App., 327 A.2d 310, 314 (1974) (en banc).

The parties to this case disagree as to whether a government employee discrimination proceeding under Commissioner's Order 71-26 constitutes a "contested case" as defined by the DCAPA and Chevy Chase Citizens. Thus, petitioners contend that the proceeding is essentially adjudicative, pointing to the facts that the Director may determine an employee's rights and, after a trial-type hearing, order relief granted. In response, the Corporation Counsel asserts on behalf of respondent that the Director, aided by the HRC staff, is primarily engaged in investigating complaints and points to the fact that he may in his discretion omit a hearing "when warranted by the facts and circumstances." Therefore, argues respondent, a government employee discrimination proceeding is not a "contested case" as that term has been defined.

We agree with the Corporation Counsel's contention that this proceeding is not a contested case and accordingly that this court lacks jurisdiction to entertain the petition for review, but for reasons different than those urged upon us at argument and in brief and supplemental memorandum.

We start with the proposition that Congress in the DCAPA has expressly excluded from the definition of "contested case," and hence our direct review jurisdiction, "any matter subject to a subsequent trial of the law and the facts de novo in any court." D.C.Code 1973, § 1-1502(8). We note that Congress has recently conferred upon a District government employee who claims discrimination on the part of his department or agency employer the right to bring a civil action in the federal district court, after...

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6 cases
  • TIMUS v. DEPT. OF HUMAN RIGHTS
    • United States
    • D.C. Court of Appeals
    • 8 Noviembre 1993
    ...by an agency for lack of probable cause: what review of that decision, if any, was possible? In O'Neill v. District of Columbia Office of Human Rights, 355 A.2d 805 (D.C. 1976), the agency dismissed, for lack of probable cause, a complaint for "racial prejudice on the job" brought under Com......
  • Dupont Circle Citizens Ass'n v. Barry
    • United States
    • D.C. Court of Appeals
    • 7 Enero 1983
    ...case. See, e.g., Capitol Hill Restoration Society, Inc. v. Moore, D.C.App., 410 A.2d 184, 186 (1979); O'Neill v. Office of Human Rights, D.C.App., 355 A.2d 805, 807 (1976). Under our decisions, in order for a matter to be a contested case, it must involve a trial-type hearing which is requi......
  • Porter v. District of Columbia
    • United States
    • U.S. District Court — District of Columbia
    • 5 Noviembre 1980
    ...the exclusive route to bring a discrimination claim is through the D. C. Office of Human Rights. O'Neill v. District of Columbia Office of Human Rights, 355 A.2d 805, 807 (D.C.App.1976). Moreover, plaintiff's only remedy after resorting to this procedure is an appeal to the City Administrat......
  • Williams v. District of Columbia
    • United States
    • D.C. Court of Appeals
    • 31 Agosto 1983
    ...United States District Court. Compare D.C.Code § 1-2554 (1981) with 42 U.S.C. § 2000e-16(c) and O'Neill v. District of Columbia Office of Human Rights, 355 A.2d 805, 807-808 (D.C. 1976). That issue is not before us in this case, however, and thus we leave its resolution to another 6. The sa......
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