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March 20, 1992


Petition for Review of a Decision of the District of Columbia Department of Human Rights

Before Rogers, Chief Judge, Farrell, Associate Judge, and Mack, Senior Judge.

Opinion for the court by Senior Judge Mack.

IN Agreement opinion by Chief Judge Rogers at p. 10.

Minority OPINION(S)ing opinion by Associate Judge Farrell at p. 21.

The opinion of the court was delivered by: Mack

MACK, Senior Judge: Petitioner challenges the dismissal on March 21, 1990, by the Department of Human Rights, *fn1 formerly the Office of Human Rights (OHR), of her complaint of discrimination filed on December 5, 1986, against Davis, Inc., a local real estate management company. The complaint, which triggered an investigation and finding by OHR of "probable cause" (to believe that Davis, Inc. had committed an act of discrimination by refusing rental accommodations to petitioner), see D.C. Code § 1-2545 (a) (b) (1987 Repl.), was subsequently dismissed on the ground that petitioner had refused to accept a "make-whole" offer *fn2 of conciliation advanced by Davis, Inc. In this court, petitioner specifically contends that the dismissal by OHR was contrary to law. The government counters that we are without jurisdiction to review this petition and, that in any event, the dismissal by OHR must be affirmed as an act of prosecutorial discretion. We find that the challenged order of dismissal is both reviewable and reversible.


Any Discussion of the jurisdictional and substantive issues presented here must be cast in the light of the statutory scheme and, of course, the facts.

Among the discriminatory acts prohibited by the District of Columbia Human Rights Act, D.C. Code §§ 1-2501, -2557 (1987 Repl. & 1991 Supp.), is that of rejecting a prospective tenant in a rental transaction because a child resides with such prospective tenant. See D.C. Code §§ 1-2515, - 2502 (30) (1987 Repl. & 1991 Supp.). An aggrieved individual may elect to file a complaint with OHR or in any court of competent jurisdiction. See D.C. Code §§ 1-2554 (a), -2556 (1987 Repl. & 1991 Supp.). See also Simpson v. District of Columbia Office of Human Rights, 597 A.2d 392(D.C. 1991). The filing of a complaint with the OHR constitutes an election of remedies, Brown v. Capitol Hill Club, 425 A.2d 1309, 1311 (D.C. 1981), and may be voluntarily withdrawn by the complainant at any time prior to the investigation and findings by OHR with respect to jurisdiction and probable cause. D.C. Code §§ 1-2544 (b), -2545 (1987 Repl.). If OHR finds it lacks jurisdiction, or that there is no probable cause to believe that the respondent has engaged in unlawful discrimination, the Director must issue an order dismissing the complaint. D.C. Code § 1-2545 (c) (1987 Repl.). When, however, the OHR finds the existence of probable cause, either in advance of conciliation attempts or upon the failure of such attempts (a discretionary approach with OHR), it "shall" issue and serve in the name of the Human Rights Commission *fn3 a notice of hearing. Id. at §§ 1-2546, -2550.

Thus, under the statutory scheme, once an aggrieved person elects to cast his or her lot with the administrative route, the processing of the complaint remains in the pipeline to the hearing stage (1) unless the OHR dismisses after a finding of no probable cause, or (2) unless the aggrieved has voluntarily and timely withdrawn the complaint, or (3) unless the agency dismisses for "administrative convenience" (in which case as to numbered events (2) and (3), the right to bring suit in a court of competent jurisdiction is restored). See id. § 1-2556. In the instant case, not one of these events has occurred. Petitioner has not voluntarily withdrawn her complaint; the dismissal by OHR was not for administrative convenience nor was it one mandated by statute after a finding of no probable cause. Rather, OHR dismissed the complaint after a finding of probable cause on the ground that this complainant refused to accept a proposal offered by the alleged discriminator as a remedy. *fn4


It is this action that underlies the basis for our judicial review. As we have pointed out, the language of the Human Rights Act mandates that once OHR finds probable cause to exist and after conciliation, if initiated, has failed, the Office must proceed to lay the ground-work for a trial-type hearing in the name of the Commission. Instead, here OHR dismissed the complaint. This it could not legally do. This dismissal was the "legal wrong" conferring jurisdiction for review purposes to the District of Columbia Court of Appeals within the meaning of the Human Rights Act and the District of Columbia Administrative Procedures Act. *fn5 See Donnelly Associates v. District of Columbia Historic Preservation Review Board, 520 A.2d 270, 276 (D.C. 1987).

To hold otherwise would leave complainants without protection against "absolutely uncontrolled and arbitrary action [of an administration agency] whose action is unauthorized by any law and is in violation of the rights of the individual." We rejected such an approach in Simpson v. District of Columbia Office of Human Rights, supra, 597 A.2d at 398(citing American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 110 (1902)). In Simpson, in reversing the trial court's grant of summary judgment with respect to an administrative record showing a finding of "no probable cause," we stated, "We find implausible the notion that the Council of the District of Columbia intended to empower an administrative officer to doom to perpetual oblivion a complaint of unlawful discrimination, without his or her order being subject to any judicial review whatever." Simpson, supra, 597 A.2d at 390. The implausibility is even more apparent in the instant case where the administrative agency has made a finding that probable cause exists to believe that an individual has been the subject of discrimination. The net result of such a policy would deny the individual not only judicial review but the due process right to a trial-like hearing which the statute provides. *fn6

Respondent, therefore, can gain no mileage from the argument that the Human Rights Act is modelled on the National Labor Relations Act, and that therefore the courts will not review a decision in which OHR merely exercises its "prosecutorial discretion." See id. (citing Houriban v. NLRB, 91 U.S. App. D.C. 316, 201 F.2d 187(1952), cert. denied, 345 U.S. 930(1953)). To the extent that OHR found probable cause, it has exercised its discretion. It does not have discretion thereafter to dismiss the complaint unless it had purported to act (which it did not) on the ground of administrative convenience. See Brown v. Capitol Hill Club, supra, 425 A.2d at 1312. Moreover, the broad argument that OHR (and its successor) have total control of the "prosecution" of cases administratively filed is antithetical to the enforcement of a civil rights act. In this regard, we need only look to the language, the history, and the case law of our federal civil rights statute (Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Equal Employment Opportunity Act of 1972, PUB. L. NO. 92-261, 86 Stat. 103), undeniably a model for purposes of administration and enforcement of the local statute. See Education and Youth Affairs Committee, District of Columbia Council, Legislative Report on Title 34, The Human Rights Law at 1 (October 15, 1973). Indeed, under the original statutory scheme of the federal statute (the 1964 Act), the Equal Employment Opportunity Commission (EEOC) had no power to prosecute the charges filed with it but only the option of investigating and attempting conciliation with the party it found cause to believe was engaging in a discriminatory practice. *fn7 See generally EQUAL EMPLOYMENT OPPORTUNITY-RESPONSIBILITIES, RIGHTS, REMEDIES, (John Pemberton, Jr., ed.) (Practising Law Institute 1975). Once the respondent failed to reach an agreement with EEOC, EEOC issued to the aggrieved a "right to sue notice," which quickly led to the characterization of aggrieved persons as "private attorney generals." See generally Alexander v. Gardner-Denver, 415 U.S. 36(1974); see Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400(1968). Thus, the federal statute from the beginning put ultimate control in the hands of the complainants and the courts and this policy continued after the statute was amended to give EEOC the right to sue in its own name. See Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 365-66 (1977) (under this title, the provisions allow the aggrieved person to select a remedy in the courts where there is inaction, dalliance or dismissal of the charge by the agency, or unsatisfactory resolution); Dent v. St. Louis-San Francisco Ry. Co., 406 F.2d 399, 402 (5th Cir. 1969), cert. denied, 403 U.S. 912(1971) (in order for the complainant to have his or her day in court, the Commission need not actually engage in conciliation); Sciaraffa v. Oxford Paper Co., 310 F. Supp. 891, 893 (D. Me. 1970) (complainants are not to be denied their day in court due to administrative delay or inability to accomplish conciliation); and 2 A. LARSON & L. LARSON, EMPLOYMENT DISCRIMINATION § 48.80 at 9A-97 (1982) ("conciliation proceedings can be by-passed by an individual").

The act of "conciliation" by its very terms implies pacifying -- not enforcing. Conciliation is an integral part of both our federal and local statutes but it is not an indispensable part. Our Human Rights Act, like its federal counterpart, encourages conciliation, but if conciliation fails, a complainant must have a right to pursue his charge in an appropriate adjudicatory forum.


In this case, the error on the part of OHR stems from its adoption of regulations which do not comport with the statutory scheme on the Human Rights Act. Thus, the statutory provision places with the OHR "if . . . the circumstances so warrant" the option of endeavoring to eliminate a discriminatory practice "by conference, conciliation or persuasion." D.C. Code § 1-2546 (a) (1987 Repl.). The terms of any conciliation agreement may require a "respondent" to refrain from committing such practices or to take affirmative action, and may include consent by the "respondent" to the entry in a court of a consent decree. See id. § 1-2546. These conciliation provisions make no reference to the complainant.

The statute also provides that in the event of failure of conciliation, or in advance of conciliation efforts, and after a finding of probable cause, the OHR shall issue "a written notice, together with a copy of the complaint," requiring the respondent to answer the charges at a public hearing before the Commission sitting as an adjudicatory body. Id. at § 1-2550.

By contrast, OHR's regulations speak of notice to the parties "of an opportunity to settle" and "inviting the parties to conciliate the complaint." See 33 D.C. Reg. 6916, 6917 (1986) (to be codified at 4 DCMR §§ 716.1, 716.10 respectively). With respect to the failure of conciliation, the regulations describe such failure as occurring when respondent refuses to participate or offers a remedy that will not make the complainant whole "and complainant refuses to accept such an offer." 33 D.C. Reg. 6917 (1986) (to be codified at 4 DCMR § 716.11). The basic problem arises, however, with the promulgation of 33 D.C. Reg. 6917 (1986) (to be codified at 4 DCMR § 716.9) which goes one step further to provide that

If during conciliation efforts, respondent offers a remedy that would place complainant in the same position that complainant would have been in had the alleged discriminatory practice not occurred, and complainant refuses to accept such offer, and if the Director determines that such offered remedy would make complainant whole, the Director may order the complaint dismissed.

(Emphasis added.)

In so doing, OHR has conferred upon itself the authority to dismiss a complaint after finding that probable cause exists and after conciliation efforts have begun. There exists no statutory authority for this regulation. The Act authorizes OHR to dismiss a complaint only either upon finding no probable cause, 33 D.C. Reg. 6918 (1986) (to be codified at 4 DCMR § 718.1), or "on the grounds of administrative convenience." 33 D.C. Reg. 6912 (1986) (to be codified as 4 DCMR § 708.1). Where conciliation efforts have failed, OHR must proceed with the issuance of a notice of a hearing. 33 D.C. Reg. 6918 (1986) (to be codified as 4 DCMR § 717.2). To do otherwise would deny a petitioner the right to develop proof under protective procedures which the statute affords.

The statute authorizes OHR to endeavor to resolve disputes through conciliation. The statute does not authorize OHR to force settlements on complainants by threatening to dismiss their complaints. While OHR may have intended by its regulation to further encourage settlements, good intentions are no substitute for statutory authority. The statute is geared to first ferreting out discrimination and, second, to fashioning remedies for that discrimination. OHR, having determined that probable cause existed to believe unlawful discrimination had occurred, had no authority to dismiss petitioner's complaint without a hearing on the merits.

Reversed and remanded.

ROGERS, Chief Judge, Concurring: I join in the opinion of Judge Mack in all respects except I think that further consideration is required regarding the nature of the court's jurisdiction to decide this appeal. Hence, I concur in all except the first part of Part II of Judge Mack's opinion.

Under the Human Rights Act, a person aggrieved by an order or decision of the Commission on Human Rights is entitled to seek relief in this court. D.C. Code § 1-2554 (1987 Repl.). *fn1 However, under D.C. Code § 1-2554, the right to appeal to this court is expressly limited by the requirements of the D.C. Administrative Procedure Act, which, in turn, restricts the jurisdiction of this court to hear appeals from agency actions in contested cases. D.C. Code § 1-1510 (1987 Repl.). *fn2 See Lamont v. Rogers, 479 A.2d 1274, 1276 n.1, 1278 (D.C. 1984).

A "contested case" is defined by the D.C. Administrative Procedure Act as "a proceeding before . . . any agency in which the legal rights . . . of specific parties are required by any law . . . to be determined after a hearing before . . . an agency . . . ." D.C. Code § 1-1502 (8). Our contested case law, long established, e.g., Capitol Hill Restoration Soc'y v. District of Columbia Council Zoning Comm'n, 287 A.2d 101, 103-06 (D.C. 1972) (disputed facts are adjudicative rather than legislative where bear on particular parties in particular situation rather than on general policy), requires that there have been a trial-type proceeding in the administrative agency for this court to have jurisdiction of an appeal from the agency's action. See, e.g., Chevy Chase Citizens Ass'n. v. District of Columbia Council, 327 A.2d 310, 314 (D.C. 1974) (construing "after a hearing" to mean "after a trial-type hearing where such is implicitly required by either the organic act or constitutional right").

No party to this appeal contends that there was a trial-type hearing here. *fn3 See D.C. Code § 1-1509 (procedures for contested cases). Rather, it is the very refusal of the Office of Human Rights to afford her a trial-type hearing before the Commission that appellant claims is the error. Nor has any action been taken by the Commission on Human Rights. Accordingly, there would appear to be no basis on which to conclude that the court has jurisdiction of the appeal under D.C. Code §§ 1-2554, -1510. Since this court appears to be the only court available to consider petitioner's claim under District of Columbia law, the question is whether there can be a remedy here. *fn4

The court on various occasions appears to have recognized that there may be exceptions to the strict requirement that a trial-type hearing have occurred before this court would have jurisdiction of an appeal of an action by an agency. Thus, in Honig v. District of Columbia Office of Human Rights, 388 A.2d 887(D.C. 1978), the court addressed a claim that the OHR had erred in concluding that it was without jurisdiction. Further, the court has suggested that an exception exists to the exhaustion requirement where the "agency has very clearly violated an important constitutional or statutory right." Capitol Hill Restoration Soc'y v. District of Columbia Zoning Comm'n, supra, 287 A.2d at 106(quoting McKart v. United States, 395 U.S. 185, 193 (1969) (agency had violated petitioner's rights under Administrative Procedure Act)). *fn5 See also Capitol Hill Restoration Soc'y v. Moore, 410 A.2d 184, 187 (D.C. 1979) (court has jurisdiction to review agency action apart from that provided in D.C. Code § 11-722 where there is "a congressional direction of review contained in an organic act"). In Donnelly Assoc. v. District of Columbia Historic Preservation Review Bd., 520 A.2d 270, 276 (D.C. 1987), the court described the jurisdictional hurdle as met upon a showing that an administrative hearing is "statutorily or constitutionally compelled" and "that such a hearing must be adjudicatory as opposed to legislative in nature." (quoting W.C. & A.N. Miller Dev. Co. v. District of Columbia Zoning Comm'n, 340 A.2d 420, 422 (D.C. 1975)). However, the court in Donnelly Associates left open whether the jurisdictional hurdle is met in the absence of the required hearing having taken place; the court dismissed the appeal since the requisite hearing was not shown to be required under the statute at issue. *fn6 520 A.2d at 277, 285.

Earlier, in Auger v. District of Columbia Bd. of Appeals & Review, 477 A.2d 196, 205-06 (D.C. 1984), however, the court had stated that "the DCAPA, § 1-1510 (1981), appropriately limits this court's review to cases in which there has been an evidentiary hearing, meeting the 'contested case' requirements, or at least an effort to obtain such a hearing which the agency erroneously denied." (emphasis added; citation omitted). The last phrase of the quoted language suggests that when the requisite hearing is erroneously denied, the court has jurisdiction of the appeal of that claim of error. See id. ("Petitioner had no 'contested case' hearing before the DLII, nor was one available"). Thus, it could be argued that the court has jurisdiction because, although the Commission has not acted pursuant to D.C. Code § 1-2553 (1987 Repl.) in the instant case, it has not done so because the prerequisite of a trial-type hearing has been, petitioner contends, unlawfully denied. However, none of the court's prior decisions has addressed the issue in the instant appeal, and the citations offered in support of the court's observation in Auger, supra, 477 A.2d at 206, do not include a direct holding that denial of a statutory hearing is appealable under the D.C. Administrative Procedure Act or its equivalent. Nevertheless, I am persuaded that the court's observations in the past have indicated that a proper interpretation of the jurisdictional statutes at issue would afford jurisdiction for this court to consider whether or not an agency has unlawfully denied a right to a contested case proceeding under the Human Rights Act.

Petitioner's contention is that the Office of Human Rights (OHR) improperly denied her the hearing to which she was entitled under the Human Rights Act. She maintains that because the OHR found probable cause for her complaint and conciliation failed, she was entitled under D.C. Code § 1-2550 to an adjudicatory hearing. *fn7 She specifically contends that the OHR

was not authorized to dismiss Ms. Timus' complaint under § 716.9 for two reasons: (a) Davis, Inc. did not make an offer which would have put Ms. Timus in the same position she would have been in had the discrimination not occurred, and (b) even in the unlikely event that one of the two offers made by Davis, Inc. is construed to constitute make whole relief, Ms. Timus did not 'refuse to accept' the offers, but instead asked reasonable questions in an attempt to understand the offers. *fn8

In other words, petitioner maintains that the agency has exceeded its statutory authority by dismissing her complaint after conciliation failed. *fn9 Therefore, she is asking this court to remand the case to the OHR "with directions to reinstate Ms. Timus' case and to certify the case for a public hearing on the merits." She seeks, in effect, an order directing the agency to give her a hearing before the Commission which the OHR has unlawfully denied.

In Dillard v. Yeldell, 334 A.2d 578(D.C. 1975), a case in which the appeal began as a petition in nature of mandamus to compel implementation of a retroactive payment order issued by the Commissioner of the Department of Human Resources, the court stated:

The jurisdiction of this court in the present case is based on D.C. Code 1973, §§ 1-1510 and 11-722, which sections give this court the power to review the orders and decisions of administrative agencies . . . . Specifically, D.C. Code 1973, § 1-1510 (2), provides that this court can "compel agency action unlawfully withheld or unreasonably delayed." In addition, under the All Writs statute, 28 U.S.C. § 1651 (1966), this court can issue all writs "necessary or appropriate" in aid of its jurisdiction.

334 A.2d at 579. *fn10 Thus, this court has jurisdiction to compel agency action unlawfully withheld. See D.C. Code § 1-1510 (a) (2). *fn11

Therefore, once the OHR has found probable cause for a complaint, if the statute makes clear that a complainant can refuse resolution by conciliation without fear of the dismissal of her complaint, then the referral by the OHR of a complaint for a trial-type hearing under D.C. Code § 1-2552 is a purely ministerial duty, and as such, subject to relief in the nature of mandamus. *fn12 See Kronheim, supra note 12, 80 A.2d at 281-82(suggesting writ could issue so that the issue whether trial court erred in granting jury trial could be determined, and distinguishing situation in that case where writ was denied, from situation where trial court refused to allow a hearing) (citations omitted); Vishnevsky v. United States, 581 F.2d 1249, 1254 (7th Cir. 1978) (after Internal Revenue Service acknowledged overpayment, mandamus is appropriate to force the crediting of the taxpayer's account for overpayment since that is ministerial duty). To conclude otherwise would mean that upon a finding of probable cause by the OHR, a willing complainant, who did not wish to agree to conciliation, would have no lawful means to force the agency to comply with the statute. *fn13 See Simpsan v. District of Columbia Office of Human Rights, 597 A.2d 392, 398 (D.C. 1991) (citing School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 110 (1902)). *fn14 If such relief in the nature of a writ of mandamus in aid of the court's contested-case jurisdiction were unavailable to complainants like petitioner, then the OHR could undermine the intent of the legislature by denying a trial-type hearing to all persons who have filed complaints which the OHR has determined to be presumptively meritorious where the complainant has not agreed to settlement through conciliation, and the court would be without jurisdiction to correct the unlawful agency action.

Unlike our Dissenting colleague, who in my opinion mistakenly posits that the Human Rights Act affords to the OHR the broad scope of prosecutorial discretion that is generally associated with other types of prosecutions, see Dissenting opinion at 24, I conclude that the statutory limit on such discretion with respect to conciliation of complaints must be construed as Judge Mack opines, see Part III opinion of Judge Mack, in order to accomplish the intent of the Council of the District of Columbia in enacting the Human Rights Act. See D.C. Code § 1-2501 ("It is the intent of the Council of the District of Columbia, in enacting this chapter, to secure an end in the District of Columbia to discrimination for any reason other than that of individual merit, including, but not limited to, discrimination by reason of . . . family responsibilities."). The interests sought to be vindicated in civil rights cases often exceed the individual event giving rise to the complaint. See JBG Prop., Inc. v. District of Columbia Office of Human Rights, 364 A.2d 1183, 1185 (D.C. 1976) (statute "enacted to aid not only an individual complainant, but also the public at large . . . ."). A private, conciliated complaint in which both parties must agree to the settlement agreement may often not have the same scope, and hence the same precedential effect, as a decision by the Commission. *fn15 That this broader goal was contemplated by the D.C. Council appears clear from the fact that the legislative history directed questions about interpretation of the D.C. Human Rights Act to the federal model, and the federal model places control over the complaint in the hands of the complainant after the agency has found probable cause. See EDUCATION AND YOUTH AFFAIRS COMMITTEE, DISTRICT OF COLUMBIA COUNCIL, LEGISLATIVE REPORT ON TITLE 34, THE HUMAN RIGHTS LAW, (October 15, 1973) ("Because our regulation parallels the Civil Rights Act, I [the chairperson of the Council Committee] suggest that the public can look to the Federal model . . . to answer many of the questions they have raised concerning the administration and enforcement of Title 34 [the Human Rights Law]"); 42 U.S.C. § 2000e-5 (f)(1) (1988); 29 C.F.R. § 1601.28 (b) (2) (1991). *fn16

Accordingly, I would hold that the court has jurisdiction of Ms. Timus' appeal pursuant to D.C. Code § 1-1510 (a) (2).

FARRELL, Associate Judge, Dissenting: I respectfully Dissent from the decision to invalidate OHR's "make-whole" regulation because I read the governing statute quite differently than does the majority. I am concerned that the majority's reading makes ineffectual, in a potentially sizeable number of cases, a conciliatory mechanism authorized by the statute and which the agency charged with administering it considers an important informal tool for "end" acts of discrimination in the District of Columbia. D.C. Code § 1-2501 (1987).

The District of Columbia Human Rights 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 path of redress is to afford persons claiming discrimination a less formal and expensive means of obtaining relief. In keeping with this purpose, the Act confers upon the Office of Human Rights (OHR) broad authority, "at any time after the filing of complaint [alleging discrimination, to] endeavor to eliminate such unlawful discriminatory practice by conference, conciliation or persuasion." D.C. Code § 1-2546 (a). With the consent of all parties, "a conciliation agreement shall be deemed an order of the Commission [on Human Rights], and shall be enforceable as such." § 1-2546 (c). The importance of conciliation to the statutory scheme is underscored by the fact that the right to a hearing on a complaint arises only when, in the judgment of OHR, conciliation efforts have failed or such efforts are not warranted to begin with. *fn1 § 1-2550 ("In case of failure of conciliation efforts, or in advance of conciliation efforts, as determined by the Office,. . . the Office shall cause to be issued . . . a written notice . . . requiring the respondent to answer the charges . . . at a public hearing" (emphasis added)).

The Act further empowers OHR and the Commission, like most administrative agencies, to make "such rules and procedures as they deem necessary to effectuate and which are not in conflict with" the statute. § 1-2541 (c). We have repeatedly held that this court must give deference to such "reasonable construction of the regulatory statute made by the agency." Hughes v. District of Columbia Dep't of Employment Servs., 498 A.2d 567, 570 (D.C. 1985) (citing cases). Acting pursuant to this authority, OHR has endeavored to define the statutory phrase, "In case of failure of conciliation efforts," by deeming conciliation to have failed if the respondent (here the real estate management company) "refuses to participate in conciliation or if the respondent's offer of a remedy in such that it will not make complainant whole and complainant refuses to accept such an offer." 33 D.C. Reg. 6917 (to be codified at 4 DCMR § 716.11) (emphasis added). Conversely, OHR has determined,

If during conciliation efforts, respondent offers a remedy that would place complainant in the same position that complainant would have been in had the alleged discriminatory practice not occurred, and complainant refuses to accept such offer, and if the Director determines that such offered remedy would make complainant whole,

then there has been no failure of conciliation efforts. Id. at 6917 (to be codified at 4 DCMR § 716.9). Instead, given the complainant's refusal to accept an adequate make-whole offer, "the Director may order the complaint dismissed." Id.

The majority strikes down this regulation as contrary to the statute. It does so, in effect, by substituting its own definition of the statutory phrase ("In case of failure of conciliation efforts") for the agency's. Under the majority's view, conciliation will have failed, and OHR "shall" proceed to a hearing (once probable cause has been found), if the complainant refuses /or any reason to take part in conciliation or to accept a make-whole offer. That is, even if OHR has found the make-whole offer to be complete compensation for the discrimination suffered -- a complete restoration of the status quo ante -- the complainant may reject the offer and insist upon his or her right to a full-fledged administrative hearing under the Act. The majority's reason for so construing the Act lies in the fact that the statute provides for dismissal of a complaint in only two circumstances: upon a finding of no jurisdiction or probable cause, § 1-2545 (c), or "on the grounds of administrative convenience." § 1-2556 (a). In this case OHR found that there was probable cause, and in the majority's view "administrative convenience" cannot extend to a dismissal ordered upon a finding that a complainant has been offered a complete make-whole remedy in conciliation but refuses to accept that remedy, or indeed to engage in conciliation at all.

This reading of the phrase "administrative convenience" seems to me much too parsimonious. In Honig v. District of Columbia Office of Human Rights, 388 A.2d 887(D.C. 1978), this court held that dismissal on the ground of administrative convenience under the Act "plainly envisages the authority to exercise prosecutorial discretion." Id. at 888. Prosecutorial discretion, in its normal usage, extends beyond the stage when the initial ("probable cause") determination is made that a matter should proceed to trial. Here it reasonably includes the authority of the agency to dismiss a complaint by a party who has refused to engage in conciliation (or to accept a complete make-whole remedy) and hence has frustrated a key alternative route to dispute resolution provided by the Act. In such circumstances it seems to me perfectly rational, and consistent with the statute, for OHR to tell the litigant, in effect, that her recourse lies not with the agency but with the courts pursuant to § 1-2556 ("Where the Office has dismissed such complaint on the grounds of administrative convenience . . . such person shall maintain all rights to bring suit as if no complaint had been filed").

The majority replies that dismissal for refusal to engage in conciliation (or to accept make-whole relief) cannot be considered an act of administrative convenience in this case because OHR has already found probable cause. Once probable cause is found, the majority says, OHR may not dismiss on grounds of prosecutorial discretion predicated on a refusal to engage in conciliation. Aside from the inconsistency of that reasoning with general notions of prosecutive discretion, I find it difficult, if not impossible, to square with § 1-2546 which permits OHR, in its judgment, "at any time after the filing of the complaint endeavor to eliminate such unlawful discriminatory practice by . . . conciliation" (emphasis added). The authorization to "endeavor" to resolve the matter by conciliation does not mean, in my view, that OHR must accede to a blanket refusal to engage in conciliation and proceed inexorably to a hearing once probable cause is found.

Nor does Brown v. Capitol Hill Club, supra, support that Conclusion. Brown held that the "administrative convenience" ground for dismissal could not be invoked to support a subsequent suit in Superior Court for the same cause of action where OHR had investigated the discrimination claim and found no probable cause. The claimant's recourse, rather, consistent with the mutual exclusivity of the dual remedies, was to seek reconsideration through the agency's procedures. 425 A.2d at 1312. Brown had nothing to do with the issue we face of whether OHR, having found probable cause, nonetheless can dismiss a complaint rather than proceed to a hearing because the complainant has stymied conciliation -- and hence conciliation has not "failed" in the agency's judgment. Brown poses no obstacle to OHR's exercise of its prosecutorial discretion to dismiss when the complainant has refused to cooperate in a key avenue of redress under the Act, leaving the complainant free to pursue court remedies.

The majority provides a lengthy Discussion of Title VII of the Civil Rights Act of 1964 seemingly (at least in part) to establish the point that the Human Rights Act, modelled after the federal legislation in important respects, was intended like it to "put ultimate control" over a discrimination complaint "in the hands o/ the complainants and the courts," not the administrative agency. Ante at 7. me implication is that a dismissal after a finding of probable cause would deprive the complainant of that "ultimate control." I do not understand how the federal analogy refutes my point that, once a complainant has chosen to proceed administratively rather than by court suit, OHR may reasonably -- in keeping with the statute -- require her to accept a make-whole offer that "end" the discrimination and its effects, D.C. Code § 1-2501, or else suffer administrative dismissal. The Human Rights Act leaves control in the hands of the complainant in the manifold sense that she may elect between remedies initially, may withdraw the complaint and repair to court before OHR makes jurisdictional and probable cause findings, and may do so as well whenever the office dismisses on grounds of administrative convenience, including prosecutive discretion. There is absolutely no need, in the name of preserving control of the cause by the complainant, to compel OHR to provide a hearing before the Commission that is unnecessary in light of a conciliation offer by the respondent which undoes the discriminatory act and its harm. *fn2

Of course, under my analysis, although petitioner was not entitled to a hearing of right on her discrimination claim once she refused to accept the make-whole offer, she did have a right to challenge OHR's determination that the remedy offered would in fact have furnished adequate relief. I agree that the agency's refusal to order a hearing upon finding that petitioner had been offered (and had spurned) make-whole relief gives rise to a "contested case" enabling her to challenge that factual determination in this court. *fn3 Indeed, after contending that the issue satisfies our contested case jurisdictional requirement, that is precisely the argument made in this court by petitioner's able counsel: that respondent never made an adequate make-whole offer, and that in any case petitioner's conduct did not constitute a refusal to accept an offer under 4 DCMR § 716.9 (but rather consisted of reasonable questions submitted to the agency in an effort to understand it). It simply has not occurred to petitioner to argue that OHR violated the statute by adopting a rule permitting dismissal where, but for the refusal of the complainant to agree, the discrimination could be remedied fully by conciliation. For the reasons stated above, petitioner's choice of issues seems to me the only sensible one. *fn4

I add a note about Chief Judge Rogers' separate opinion. It faults my analysis on several grounds, none of which has merit. First, the Chief Judge asserts (ante at 15 n.9) that my reading of the statute ignores the "plain language" of D.C. Code § 1-2546 (c), providing that "upon agreement of all parties to a complaint . . . a conciliation agreement shall be deemed an order of the Commission, and shall be enforceable as such" (emphasis added). One reads this language in vain for the plain meaning the Chief Judge finds in it, namely, a prohibition against agency dismissal of a complaint (after probable cause has been found) without the consent of the complainant. The statute does bar OHR from imposing a conciliation agreement on the parties without their consent (indeed, without consent it would not be a conciliation agreement); but that is a far cry from saying that the Commission must afford a trial-type hearing to a complainant who spurns conciliation at all or refuses an adequate make-whole offer. As I explained earlier, it appears to be the majority which ignores the plain language of the statute, specifically § 1-2546 (a), by limiting the agency's discretion to dismiss for refusal to engage in conciliation to the time before probable cause is found. At all events, my argument does not depend on a labored attempt to find plain meaning; if the agency's interpretation of the statute is reasonable and not refuted by the plain language, we must sustain it. The majority, with all due respect, debases an important canon of statutory construction by straining to find "plain meaning" which the words will not bear.

The Chief Judge also contends that review by this court of the adequacy of informal make-whole offers is impractical and "could well defeat the conciliation process." Ante at 20 n.15. That is an odd assertion from one who, having voted to invalidate OHR's regulation, is willing to let conciliation be defeated at the outset by an utter refusal of the complainant to engage in conciliation. Moreover, if the record in fact were inadequate to permit review of the sufficiency of the make-whole offer in this case (which I deny), the Chief Judge does not explain why a remand to the agency for amplification of the record surrounding the offer would not permit eventual review. *fn5 In any event, the Chief Judge's concern about the absence of a sufficient, trial-type record more properly relates to whether the agency's decision creates a "contested case" for purposes of our appellate jurisdiction; it is no reason to invalidate a reasonable interpretation of the statute by the agency charged with administering it.

The Chief Judge repeats the point suggested in the majority opinion about the legislature's desire to leave "control over the complaint in the hands of the complainant after the agency has found probable cause." Ante at 20. I have answered that objection: the statute leaves absolute control with the complainant over the forum in which to bring the complaint initially and, to a lesser extent, after an administrative complaint has been filed. What it does not do is empower the complainant to force a full-scale hearing upon the Commission that is unnecessary and expends limited agency resources. The Chief Judge recognizes that, upon agreement of the parties, a conciliation agreement can become an order of the Commission enforceable like any other, § 1-2546 (c), *fn6 but fears that a conciliated complaint may not "have the same scope, and hence the same precedential effect, as a decision by the Commission." Ante at 20. This is a weak argument to start with, for we are not told the "scope" of the remedy Ms. Timus desires that a genuine make-whole offer would not provide; and it ignores the unrestricted ability of the complainant to seek formal court resolution.

In essence I think the Chief Judge's view is that a hearing by the Commission must be compellable (assuming probable cause) because, although the individual complainant may be made whole by conciliation, the Human Rights Act was designed to "vindicate . . . exceed the individual event giving rise to the complaint." Ante at 19. In other words, a complainant under the Act is a surrogate for other possible victims of discrimination, and so must be able to insist on a trial-type, public, essentially (though importantly) symbolic vindication of society's interest in ending discrimination. That is a valid reason (among others) why a complainant may choose to sue the alleged discriminator in Superior Court. But I find nothing in this statute or its legislative history requiring that the resources of OHR and the Commission be placed at the service of that larger cause. At a minimum, the agency has reasonably read the statute to the contrary, and this court has no authority to reject that interpretation.

I would affirm the decision under review.

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