Appeal from the Superior Court of the District of Columbia; Hon. William C. Gardner, Trial Judge
Ferren and Schwelb, Associate Judges, and Mack, Senior Judge.
The opinion of the court was delivered by: Schwelb
This appeal concerns the discharge of appellant Charlottie Simpson from her employment with Koba Associates, Inc. (Koba) almost eleven years ago. *fn1 At the time of her dismissal, Ms. Simpson was responsible for looking after her seriously ill father, seventy-six years of age, who was residing with her. According to Ms. Simpson, her father was unable to feed, dress, or otherwise care for himself because he was partially paralyzed from a stroke, blind in one eye, partially blind in the other, and afflicted with diabetes. The substantive question presented is whether, and to what extent, our Human Rights Act, D.C. Code §§ 1-2501 to -2557 (1987), required Koba to accommodate Ms. Simpson's responsibilities to her father by adjusting her working hours.
Following her termination for refusing to accept a change in her starting time, Ms. Simpson filed a complaint with the District's Office of Human Rights (OHR). *fn2 She claimed that Koba had discriminated against her in employment on account of family responsibilities, in violation of D.C. Code § 1-2512 (1987), by requiring her to work from 8:00 a.m. to 5:00 p.m. instead of her prior hours of 9:30 a.m. to 6:30 p.m. She claimed that working later hours enabled her to dress and feed her father and prepare him for the day, but that the earlier hours would have made it impossible to provide him with the necessary morning care. Ms. Simpson's principal contention was that Koba had an obligation to undertake reasonable efforts to accommodate her schedule to enable her to carry out her responsibilities to her father, and that Koba had failed to do so. *fn3
On July 30, 1981, OHR issued a finding of no probable cause to believe that unlawful discrimination against Ms. Simpson had occurred. On April 5, 1982, the Office denied her request for reconsideration. Following a tangled procedural journey which took her to the District of Columbia Commission on Human Rights and to this court on an earlier appeal, *fn4 Ms. Simpson sought review of OHR's "no probable cause" determination in the Superior Court. The District of Columbia filed a motion for summary judgment, contending that OHR's order was not subject to judicial review, that her complaint was time-barred, and that in any event OHR's finding was not arbitrary or capricious and must therefore be sustained. On December 7, 1989, the trial Judge granted the District's motion in a brief order which did not specify which of the District's theories he found to be controlling. *fn5
On Ms. Simpson's appeal from that order, the District makes essentially the same contentions as it made before the trial court. We hold that OHR's order is reviewable in the Superior Court. With some reluctance, we further conclude that Ms. Simpson's complaint is not time-barred, but direct the trial court to consider certain equitable issues. On the merits, we remand to the trial court with directions that if the petition is not dismissed for want of equity, OHR be directed to articulate the factual and legal basis for its finding of no probable cause.
Although this case has a tortuous history, we discern from the parties' submissions that many of the basic facts are undisputed. Ms. Simpson first came to work for Koba as a secretary in October 1978. Her working day initially began at 8:30 a.m. and ended at 5:30 p.m. On October 29, 1979, while still working her original hours, Ms. Simpson was promoted to the position of Executive Secretary to the Vice-President for Business Development, and her salary was increased accordingly. According to a notation by her supervisor, Fran Lazerow, "this increase is not only well-deserved but will bring into balance salary rates of senior secretarial staff."
In June 1980, the company implemented a "flex-time" work schedule, and Ms. Simpson requested that she be permitted to work from 9:30 a.m. to 6:30 p.m. She explained that she had made this request so that she could care for her father in the morning, before leaving for work. Ms. Lazerow granted her request. *fn6
On July 21, 1980, a month after the change in her hours, Ms. Simpson received another promotion. The cumulative effect of the two promotions was to raise her salary by more than twenty percent.
On October 21, 1980, however, Ms. Lazerow told Ms. Simpson that she would have to change her starting time to 8:00 a.m. Ms. Lazerow explained that employees in Ms. Simpson's department had been transferred to other positions in the company, and that Koba needed Ms. Simpson to begin work at an earlier hour because "many of the federal agencies with which we deal report to work on or before 8:00 a.m." Ms. Simpson indicated that she could not agree to the change in her hours, and Ms. Lazerow advised her verbally that she would be discharged.
Thereafter, on November 3, 1980, Ms. Simpson received a termination letter in which Ms. Lazerow stated in pertinent part that "your refusal to begin the work day at 8:00 a.m. each day left me with no alternative but to separate you from Koba Associates, and to hire another individual that would work the hours required." *fn7
On June 19, 1981, Ms. Simpson filed a complaint with OHR alleging in pertinent part that Koba had made no attempt to accommodate her need for later working hours. OHR instituted an investigation of the complaint and eventually held a "fact-finding conference." Following that conference, the OHR investigator prepared a final report, in which she summarized the facts and recommended that the office make a finding of no probable cause. On July 30, 1981, in conformity with the investigator's recommendation, the Director of OHR notified Ms. Simpson that "no probable cause has been found for crediting the complaint, and it so ordered." On October 5, 1981, Ms. Simpson asked OHR to reconsider its determination, but on April 5, 1982, the Director reaffirmed it.
On April 20, 1982, Ms. Simpson petitioned this court for review of OHR's dismissal of her complaint. The District filed a motion to dismiss the petition for lack of jurisdiction, but a motions division of this court denied the motion in an unpublished order. In October 1982, however, the parties filed a stipulation requesting dismissal of the appeal without prejudice. This request was based on an agreement that the Commission on Human Rights should be requested to review the determination of no probable cause. On October 12, 1982, in accordance with this stipulation, this court issued an unpublished order dismissing the appeal. On October 4, 1983, however, the Corporation Counsel issued an opinion in which she concluded that the Commission lacked the authority to review the "no probable cause" determination made by the Office of Human Rights. Accordingly, Ms. Simpson's appeal to this court was reinstated.
On October 30, 1985, citing Lamont v. Rogers, 479 A.2d 1274, 1278 (D.C. 1984), this court issued a third unpublished order dismissing the reinstated appeal for lack of jurisdiction. The court held that the proceeding before OHR was not a contested case within the meaning of the District of Columbia Administrative Procedure Act (DCAPA), D.C. Code §§ 1-1501 to 1-1510 (1981). The order of dismissal was without prejudice to Ms. Simpson's request for relief in all appropriate forum. Nearly three years later, on September 23, 1988, Ms. Simpson filed a complaint in the Superior Court seeking review of OHR's 1982 dismissal of her administrative complaint. After the trial court granted summary judgment dismissing the complaint, Ms. Simpson filed this appeal.
The District of Columbia Human Rights Act, D.C. Code §§ 1-2501 to -2557 (1987), provides both administrative and judicial remedies for discrimination proscribed by the Act. An aggrieved individual may elect to file a complaint with OHR or in any court of competent jurisdiction, see Brown v. Capitol Hill Club, 425 A.2d 1309, 1311 (D.C. 1981), within one year of the occurrence or discovery of an unlawful discriminatory practice. See D.C. Code §§ 1-2544(a), 1-2556 (a); Davis v. Potomac Elec. Power Co., 449 A.2d 278, 280-81 (D.C. 1982). When a complaint is filed with OHR, that Office must conduct an investigation to determine whether it has jurisdiction and whether there is probable cause to believe that the respondent has engaged in an unlawful discriminatory practice. D.C. Code § 1-2545 (a) - (b).
If OHR concludes that it lacks jurisdiction, or that there is no probable cause to believe that the respondent has engaged in unlawful discrimination, then the Director must issue an order dismissing the complaint. D.C. Code § 1-2545 (c). *fn8 The claimant may seek reconsideration of the agency's determination by filing a written application to the Director within 30 days of receipt of the order. See Brown, supra, 425 A.2d at 1312.
Unlike some other civil rights statutes, however, see, e.g., 42 U.S.C. § 2000e-5 (f), our Human Rights Act does not authorize the complainant to bring suit on his or her own behalf if the agency declines or fails to do so. The filing of a complaint with the OHR constitutes an election of remedies. Brown, supra, 425 A.2d at 1311. Unless the Office dismisses the complaint on grounds of administrative convenience, or the complainant withdraws the complaint before an administrative decree is rendered, an adverse decision by OHR effectively disposes of the complainant's claim, subject to whatever judicial review may be available. Id. at 1311-12.
The District contends that OHR's finding of no probable cause is not subject to judicial review. We disagree.
It is true that the Human Rights Act does not explicitly provide for judicial review of OHR's findings. The only provision of the Act pertaining to judicial review is found in D.C. Code § 1-2554, which provides that
any person suffering a legal wrong, or adversely affected or aggrieved by, an order or decision of the Commission in a matter, pursuant to the provisions of this chapter is entitled to a judicial review thereof, in accordance with § 1-1510, *fn9 upon filing, in the District of Columbia Court of Appeals, a written petition for such review.
(Emphasis added). Section 1-1510(a) states in relevant part that:
any person suffering a legal wrong, . . . by an order or decision of . . . an agency in a contested case, is entitled to a judicial review . . . the District of Columbia Court of Appeals.
(Emphasis added). We held in Lamont v. Rogers, supra, 479 A.2d at 1276-78, that a finding by OHR of no probable cause was not an agency decision in a "contested case" in which a "trial-type hearing" is required, and that such a finding is therefore not reviewable in this court. When we dismissed the petition for review in Lamont for lack of jurisdiction, however, we explicitly stated that the petitioner's "only recourse is a civil action in the Superior Court," id. at 1278, and that the dismissal was without prejudice to the filing of such an action. Id. If Lamont was not a specific holding that the Superior Court has jurisdiction -- and it does not appear that this precise question was before the court -- that decision nevertheless strongly suggests that review in that court is available. Indeed, it was on the strength of Lamont ...