TIMUS v. DEPT. OF HUMAN RIGHTS

• Decision Date: 08 November 1993
• Docket Number: No. 90-AA-465,90-AA-465
• Citation: 633 A.2d 751
• Parties: Carrie J. TIMUS, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF HUMAN RIGHTS, Respondent. William J. Davis, Inc., Intervenor.
• Court: D.C. Court of Appeals

633 A.2d 751

Carrie J. TIMUS, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF HUMANRIGHTS, Respondent William J. Davis, Inc., Intervenor.

No. 90-AA-465.

District of Columbia Court of Appeals.

Argued October 15, 1992.

Decided November 8, 1993.

[EDITOR'S NOTE: THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.

Karen L. Barr, with whom Thomas P. Olson and John P. Relman, Washington, DC, were on the brief, for petitioner.

Edward E. Schwab, Asst. Corp. Counsel, with whom Herbert O. Reid, Sr., Corp. Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, Washington, DC, were on the brief, for respondent

Michael E. Brand, Washington, DC, for intervenor.

Before ROGERS, Chief Judge, FERREN, TERRY, STEADMAN, SCHWELB, FARRELL, WAGNER, KING, and SULLIVAN, Associate Judges, and MACK, Senior Judge. ^*.

Parts I, II, IV and V of this opinion were authored by JUDGE FARRELL; part III was authored chiefly by JUDGE FERREN.

PER CURIAM.

The District of Columbia Human Rights Act, D.C.Code §§ 1-2501 to -2557 (1992) (the Act), "provides alternative avenues of redress — administrative or judicial" — for claims of unlawful discrimination. Brown v. Capitol Hill Club, 425 A.2d 1309, 1313 (D.C. 1981). An obvious purpose of the administrative avenue is to afford persons claiming discrimination a less formal and expensive means of obtaining relief than through court proceedings.¹ A key component of the administrative process is conciliation or settlement of a complaint under the auspices of the agency administering the Act, at the times relevant here, the District of Columbia Office of Human Rights (OHR).² The petition for review in this case brings before us a challenge to the facial validity of a rule of procedure adopted by the agency to govern the conciliation process, as well as to its application to petitioner's complaint. We hold that we have jurisdiction to consider petitioner's challenge to the validity of the rule, and sustain the rule as a proper implementation of OHR's statutory mandate; but that we lack "contested case" jurisdiction to review petitioner's claim of erroneous application of the rule to her case. For the reasons stated in this opinion, we dismiss the petition for review.

I.

On December 5, 1986, petitioner filed a complaint with OHR alleging that intervenor William J. Davis, Inc., a real estate management company, had discriminated against her on the basis of family responsibilities (specifically, that she had a two year old child) in denying her application to rent an apartment. See D.C.Code § 1-2515(a). Pursuant to D.C.Code § 1-2545, OHR investigated the complaint and, after initially finding no probable cause, determined in February 1988 that there was probable cause to believe that intervenor had engaged in unlawful discrimination against petitioner. D.C.Code § 1-2545(b). OHR immediately endeavored to conciliate the claim, § 1-2546(a), by asking intervenor in writing whether it was "prepared to pursue conciliation of this matter." Intervenor replied affirmatively and asked for a conference with OHR and petitioner to discuss the case.

On July 12, 1988, the Associate Director of OHR notified petitioner in writing that, duringconciliation, intervenor had "offered the following remedy to resolve this matter":

1. Complainant would be considered for and given an apartment at the same rental rate that she would have gotten had she not been discriminated against, provided Complainant updates her rental application and is found to be currently qualified for the apartment. Said rental rate will remain at that rate for at least 24 consecutive months; and

2. Respondent will pay Complainant's Attorney fees, provided Complainant submits an itemized legal statement for services rendered regarding this matter.

The Associate Director explained that OHR had determined that this offer would make petitioner whole and that, if she did not advise the Office by July 22, 1988, as to whether she would accept it, the complaint would be subject to dismissal under § 716.9 of OHR's rules of procedure.³ On July 22, petitioner sent the Associate Director a letter in which she asked twelve questions about the intervenor's offer. On July 29, 1988, the Associate Director replied in writing with answers to each of the twelve questions and asked petitioner to advise him by August 5 whether she would accept the offer. Petitioner responded on August 5 with a letter telling the Associate Director that "there are some of your answers that must be clarified" and posing approximately seven questions.

On August 8, 1988, the Associate Director wrote petitioner explaining:

This will confirm our telephone conversation of August 5, 1988 in which I advised you that:

1. You are given an extension of time, until August 12, 1988, in which to seek advice of counsel regarding whether or not the Office's possible dismissal of your Complaint will bar you "from suing Respondent." You must advise the Office by not later than August 12, 1988 as to whether or not you accept Respondent's offer of settlement in this matter;

2. The Office has reviewed your letter of August 5, 1988 and has determined that the questions contained therein have either already been sufficiently answered by the Office, or do not require response by the Office in order for you to make a decision as to whether or not you will accept Respondent's offer.

Petitioner replied in a letter of August 11, 1988, in which she stated in substance:

I will not be able to make a decision until my questions of August 5, 1988 are answered in writing only, as I have requested. I have made it clear in my letter of July 22, 1988[:] "Before I can consider this offer and/or accept it, there are some questions that I must have answered."

I am sending a copy of the correspondence to you for review and determination on whether or not my questions of August 5, 1988 are legitimate questions for one to ask and warrant answers. I do not believe that my questions of August 5, have been sufficiently answered by your office nor do I believe that they do not require response by your office.

Please provide your reply in writing only, Thank you. [Emphasis in original.]

For reasons unexplained in the record, nothing further transpired in the case for almost a year and a half. On February 6 and again on February 7, 1990, intervenor's counsel wrote OHR requesting that the complaint be "administratively dismissed," pointing to the long delay since the settlement offer had been made and the fact that intervenor no longer managed the property, which had been sold. Nevertheless, on February 26, 1990, intervenor transmitted a new offer of settlement to OHR which differed from the former one only in that the rental rate would now be the current 1990 (rather than 1986) rent level.⁴ On March 7, 1990,the Director of OHR wrote petitioner setting forth the modified offer and stating:

We are making one last attempt to resolve this matter prior to exercising the Department's option under Section 716.9 of our Rules. Thus, if you do not advise the Office by the close of business March 19, 1990 as to whether you will accept Respondent's offer as was outlined in our July 12, 1988 letter and as subsequently conditioned with regard to current rental rates, your Complaint will be subject to DISMISSAL.

Petitioner replied in a letter of March 19, 1990, in which she insisted that the Office's letter of March 7 "does not even attempt to address my concerns" expressed in petitioner's August 11, 1988 letter, and asking why the Office had "change[d] its position again in favor of" intervenor's modified offer. Petitioner's letter asserted that she was "being railroaded into this settlement agreement by your office and [intervenor]," and asked: "What are your reason[s] for finding this last stated offer in your letter of March 7, 1990, indeed, a suitable make whole offered remedy for my acceptance." On March 22, 1990, the Director informed petitioner in writing that the case was being "administratively closed" pursuant to § 716.9 of OHR's rules of procedure because of her failure to advise the Office of her acceptance of the settlement offer by March 19, 1990.⁵

II.

A brief summary of the relevant statutory and regulatory provisions is necessary to understand the issues presented, including OHR's threshold objection to our jurisdiction. As we stated at the outset, a person believing herself the victim of unlawful discrimination may, under the Act, elect initially to sue in court or to file an administrative complaint with OHR. See D.C.Code §§ 1-2544(a), -2556(a). If she elects the second route, OHR commences an investigation. Provided the complaint is not withdrawn voluntarily before the investigation is completed and findings are made concerning jurisdiction and probable cause, § 1-2544(b), the investigation leads to a determination by OHR (assuming jurisdiction is found) either that there is probable cause to believe the respondent has engaged in unlawful discrimination or that there is no probable cause, in which case the complaint is dismissed. § 1-2545(b), (c).

Efforts to resolve the complaint by conciliation may begin as soon as it is filed. Section 1-2546(a) provides that "[i]f, in the judgment of the Office, the circumstances so warrant, it may, at any time after the filing of the complaint, endeavor to eliminate such unlawful discriminatory practice by conference, conciliation, or persuasion." The terms of a conciliation agreement may include prohibitory relief and "such affirmative action as, in the judgment of the Office, will effectuate the purposes of this chapter. . . ." § 1-2546(b). And, "[u]pon agreement of all parties to a complaint . . . a conciliation agreement shall be deemed an order of the Commission, and shall be enforceable as such." § 1-2546(c). The Act further provides, however, that "[i]n case of...