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June 12, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. Colleen Kollar-Kotelly, Trial Judge)

Before Rogers, Chief Judge, and Terry and Steadman, Associate Judges.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: Appellant Takashi Bufford appeals the order denying his petition for review of the dismissal of his claim against the District of Columbia Public Schools by the Office of Employee Appeals. We affirm.


Appellant was hired in June, 1984, by the D.C. Public Schools (DCPS) as Chief of the Negotiated Service Contract Unit, a non-legal position, at a grade 11 salary. In November, 1984, appellant was contacted by DCPS' Division of Special Education regarding a newly created position as Attorney Advisor. He was subsequently offered the position by Dr. Wilbur A. Millard, then Associate Superintendent of Schools and head of the Division of Special Education. Appellant contends that he was originally told that the new position would be at the grade 13 salary level, but Dr. Millard asked him to enter the position at a grade 12 salary pending his admission to the District of Columbia Bar. According to appellant, the position description for the job did not require admission to the D.C. Bar, but Dr. Millard told appellant that the personnel process would be expedited if he accepted the position at the grade 12 level. *fn1

Appellant claims that after he was admitted to the District of Columbia Bar on April 8, 1985, he raised the issue of his promotion to grade 13 on several subsequent occasions, but "received no definitive response." Further, appellant maintains that "on no occasion did Dr. Millard or other supervising officials of DCPS apprise of his right to formally grieve this dispute." Appellant also claims that he continued his informal efforts to resolve the dispute with Dr. Millard over his status until June, 1987. *fn2 Appellant wrote to George Margolies, General Counsel of the School System, on June 18, 1987, requesting that he be given the promotion and the differential in pay between a grade 12 and a grade 13 retroactive to the date of his admission to the D.C. Bar.

Before Mr. Margolies responded to appellant's letter, appellant filed an appeal on August 31, 1987, with the Office of Employee Appeals (OEA). *fn3 By letter dated October 27, 1987, OEA advised appellant that "there is a question whether OEA has jurisdiction over the action you are appealing," and that:

an employee must have received a final Agency decision regarding the action that is being appealed before the employee has a right to petition OEA. If the Agency has not made a final decision, an appeal to OEA is usually premature since it is likely that the employee has not completed the Agency's own review procedures.

The letter also directed appellant to submit a written statement by November 12, 1987, explaining why OEA had jurisdiction over his appeal. Appellant's response *fn4 to OEA admitted that he had yet to receive a response to his June 18, 1987, letter to Mr. Margolies, but claimed that "the time that has elapsed since my initial inquiry clearly establishes that any further pursuit of an agency decision would be an exercise in futility." Appellant stated that:

the DCPS Grievance Procedures, DCMR 5 § 803.1, *fn5 require that all grievances be raised at the level where the conflict giving rise to the grievance first occurred. In my case this is not possible due to the retirement of the DCPS official with whom I negotiated my employment agreement, provisions of which are in dispute.

On March 1, 1988, an OEA Hearing Examiner (Warren Cruise) advised appellant that "a review of response shows that [appellant had] not sought a remedy from the highest level of before filing appeal," and directed appellant to advise what steps had been taken to receive a final response from DCPS.

In reply, by letter of March 9, 1988, appellant claimed that his failure to elicit a final agency response was through "no fault of own but rather the result of DCPS' bad faith." Appellant stated that the Associate Superintendent with whom he had negotiated his employment contract had retired and that the Associate Superintendent's subordinate had advised appellant that she lacked the authority to grant the relief he sought. Appellant acknowledged, however, that he had met again with Mr. Margolies, the General Counsel, on February 23, 1988, and had been advised that "there was a strong possibility that [Mr. Margolies] could convince the current Superintendent to settle this matter," but appellant reiterated his belief that further pursuit of administrative remedies would be futile.

While the OEA appeal was pending, appellant and the DCPS attempted to settle their dispute. On May 31, 1988, Mr. Gary Freeman, the Director of the Office of Management Services, notified appellant that Dr. Andrew Jenkins, the Acting Superintendent of Schools, had approved a settlement offer that would have given appellant the salary differential between grades 12 and 13 for the period between April 8, 1985, and June 22, 1987, but no promotion to a grade 13 level. *fn6 Appellant made a counteroffer, by letter of June 13, 1988, that any settlement include a "promotion to DS-13 step 4 from current grade DS-12 step 4, effective October 1, 1988." On June 17, 1988, Mr. Freeman wrote appellant that the settlement offer in his May 31, 1988, letter was "the final position of the school system in regards to this matter."

On October 31, 1988, OEA Hearing Examiner Cruise interpreted Mr. Freeman's June 17, 1988, letter as a final agency decision. DCPS filed a motion on November 10, 1988, requesting that Mr. Cruise reconsider his interpretation, and asserted that Mr. Freeman's letter was not a final agency decision but merely the DCPS' final position in settlement negotiations. On September 25, 1989, OEA Hearing Examiner Gilbert Baber held a pre-hearing conference at which the parties presented additional arguments on the question of jurisdiction. Mr. Baber thereafter concluded that appellant ...

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