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an election of remedies, Brown v. Capitol Hill Club, 425 A.2d 1309, 1311 (D.C. 1981), and may be voluntarily withdrawn by the complainant at any time prior to the investigation and findings by OHR with respect to jurisdiction and probable cause.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 ...