Newman v. District of Columbia

• Decision Date: 20 November 1986
• Docket Number: No. 84-1246.,No. 85-1568.,84-1246.,85-1568.
• Citation: 518 A.2d 698
• Parties: Frederick G. NEWMAN, Appellant, v. DISTRICT OF COLUMBIA, et al., Appellees.
• Court: D.C. Court of Appeals

Page 698

518 A.2d 698

Frederick G. NEWMAN, Appellant, v. DISTRICT OF COLUMBIA, et al., Appellees.

No. 84-1246.

No. 85-1568.

District of Columbia Court of Appeals.

Argued March 25, 1986.

Decided November 20, 1986.

James Edward Mercer, Washington, D.C., for appellant.

Michele Giuliani, Asst. Corp. Counsel, with whom John H. Suda, Acting Corp. Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for appellees.

Before MACK, NEWMAN and ROGERS, Associate Judges.

MACK, Associate Judge:

Appellant .Frederick Newman is a police officer whose civil action against the District of Columbia, the Metropolitan Police Department and Police Chief Maurice Turner (referred to collectively as "the District") was dismissed prior to trial. In his complaint, appellant alleged that the District had violated the Human Rights Act by discriminating on the basis of sexual orientation. The complaint also included common law claims for intentional infliction of emotional distress and breach of contract. We agree with the District that, as a public employee, appellant was required to exhaust the administrative remedies available to him under the Human Rights Act. No such requirement, however, applies to his accompanying common law claims. We reject the District's suggestion that the common law claims asserted by appellant are barred by the exclusivity provision of the disability compensation scheme set forth in its Comprehensive Merit Personnel Act. Accordingly, while we affirm the dismissal of appellant's statutory claim of sexual orientation discrimination, we reverse and remand the dismissal of his common law tort and contract claims.¹

I

Since 1970 appellant has been employed as a police officer by the District of Columbia Metropolitan Police Department ("MPD"). In August of 1983 he filed a complaint with the Equal Employment Opportunity Division ("EEOD") of the MPD alleging unlawful discrimination in employment on the basis of sexual orientation. In the District of Columbia, such discrimination is prohibited by the Human Rights Act. See D.C.Code §§ 1-2501 to -2557 (1981 & 1986 Supp.).

The EEOD dismissed appellant's complaint for lack of probable cause. Appellant then filed his complaint with the District of Columbia Office of Human Rights ("OHR"), again alleging employment discrimination on the basis of sexual orientation. Specifically, he claimed that he was transferred out of the recruitment division of the MPD because of his homosexual orientation. On April 19, 1984, without allowing the OHR to proceed with the case on its merits, appellant voluntarily withdrew his complaint.

On the same day, appellant filed the first of two complaints in Superior Court. Newman v. District of Columbia, Civ. Action No. 4854-84 (D.C.Super.Ct. filed April 19, 1984). In count one of his amended complaint, appellant alleged a breach of contract based on his transfer from the Recruitment Division of the MPD; in count two he alleged intentional infliction of emotional distress; and in count three appellant alleged employment discrimination based on sexual orientation in violation of the Human Rights Act, see D.C.Code §§ 1-2512, -2526 (1981). On August 8, 1984, Judge Hannon granted the District's motion to dismiss the complaint for appellant's failure to exhaust his administrative remedies. A timely notice of appeal was filed on September 5, 1984 (Appeal No. 84-1246).

While appeal from the dismissal of his first complaint was pending in this court appellant filed another action in Superior Court. Newman v. District of Columbia, Civ. Action No. 13009-84 (D.C.Super.Ct. filed Oct. 30, 1984). This complaint was substantially identical to the earlier one, except that it no longer contained his statutory claim of unlawful sexual orientation discrimination. The common law tort and contract claims were unchanged. On May 6, 1985, Judge Holmes granted the District's motion for summary judgment. From the dismissal of this second complaint, a second appeal was taken to this court while the first was still pending (Appeal No. 85-1568).

In this second appeal, the District moved for summary affirmance. The District briefed an additional argument, which in the first proceeding it had raised only orally. As well as arguing that appellant should have exhausted his administrative remedies, the District contended that his common law claims were precluded by the exclusivity provision of the compensation guaranteed to public employees under the Comprehensive Merit Personnel Act. See D.C.Code §§ 1-601.1 to 1-637.2 (1981 & 1986 Supp.). We denied the District's motion for summary affirmance and consolidated both appeals in our order of March 21, 1986.

For the purposes of this opinion, we need not and do not distinguish between the two proceedings. Reduced to manageable terms, appellant challenges the trial court's dismissal of a complaint which is grounded upon three causes of action: a statutory claim under the Human Rights Act and two common law claims, one in tort for intentional infliction of emotional distress, and the other for breach of contract. We address first the dismissal of appellant's statutory claim under the Human Rights Act.

II

The Human Rights Act makes it unlawful to deprive any individual of equal employment opportunities because of his or her sexual orientation. D.C.Code § 1-2512 (1981).² The trial court dismissed appellant's Human Rights Act claim on the ground that he had failed to exhaust his administrative remedies. According to appellant, the trial court erred because, pursuant to § 1-2556(a), he was entitled to voluntarily withdraw his complaint from the OHR at any time prior to a decision on the merits.³

This argument has already been made by a public employee, and by one who was in precisely the position that appellant is now. In Williams v. District of Columbia, 467 A.2d 140 (D.C. 1983), a District of Columbia government employee filed a complaint with the OHR alleging employment discrimination on the basis of sex and age. Like appellant, Williams voluntarily withdrew her complaint and filed suit in Superior Court prior to a final agency decision on the merits. As does appellant, Williams argued that the withdrawal of her complaint from the agency did not preclude relief in a judicial forum. That contention failed. For District of Columbia government employees only, we concluded that the Human Rights Act requires the exhaustion of the available administrative remedies. Id. at 142.⁴

In Williams, we identified the administrative exhaustion requirement for government employees in D.C.Code § 1-2543 (1981).⁵ That section requires the Mayor to establish procedural rules to govern Human Rights Act claims submitted by public employees and also provides that the agency shall make a final determination in such cases. Speaking of government employees only, we observed in Williams that "[b]y ignoring the established hearing procedures, appellant foreclosed the possibility that her claim might be resolved without recourse to the courts." 467 A.2d at 142.⁶ Although generally recognizing the Council's express rejection of an administrative exhaustion requirement under the Human Rights Act, D.C.Code § 1-2556 (1981), our reading of § 1-2543 led us to conclude that this rejection did not extend to claims made by government employees. 467 A.2d at 142.

Williams must be read in conjunction with Lamont v. Rogers, 479 A.2d 1274, 1278 & n. 3 (D.C. 1984), in which we suggested that once a final agency determination has been made a government employee has the right to bring a civil action, under the statute, for damages or for whatever other remedies may be appropriate. But see Williams v. District of Columbia, supra, 467 A.2d at 142; Dougherty v. Barry, 604 F.Supp. 1424, 1442 (D.D.C. 1985).

Appellant argues vigorously that Williams was wrongly decided. He maintains that there is neither a legal nor a rational foundation for distinguishing between government and other employees concerning the exhaustion of administrative remedies. Appellant points to the emphatic language of § 1-2556, permitting claimants to withdraw their administrative complaints without prejudice to the subsequent filing of a civil action, and denies that it is in any way overridden by the more veiled references in § 1-2543 to the procedures to be followed by government employees. As examples of decisions which declined to read an exhaustion requirement into federal civil rights statutes appellant cites Patsy v. Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), and McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963). He insists that "[t]he Council's intent as expressed in the plain language of the statute should govern, and should be given full effect." Brief at 11. Appellant invites this division to overrule Williams.

We need not consider the merits of this invitation, as we could not accept it even if we so desired. Only the en banc court, not a division, can overrule a prior decision of this court. M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971); D.C.App. Internal Operating Procedures (I.O.P.) § VIII H. If appellant is unhappy with Williams, that is a matter he must raise with the full court. D.C.App.R. 40; D.C.App.I.O.P. § XI; see generally Kirk v. United States, 510 A.2d 499, 502-03 (D.C. 1986).

In light of Williams, the trial court did not err in dismissing the statutory claim of appellant, a public employee who had failed to exhaust the administrative remedies available to him under the Human Rights Act.⁷

III

Williams establishes that public employees are required to exhaust their administrative remedies on statutory claims under the Human Rights Act. Appellant's common law claims were also dismissed. Relying on a different theory, the District argues that the dismissal of appellant's claims for intentional infliction of emotional distress and breach of...