Appeal from the Superior Court of the District of Columbia; (Hon. Ronald P. Wertheim, Trial Judge)
Before Ferren and Schwelb, Associate Judges, and Pryor, Senior Judge. Opinion for the court by Senior Judge Pryor. Separate opinion by Associate Judge Schwelb.
The opinion of the court was delivered by: Pryor
PRYOR, Senior Judge: The Superior Court reversed a decision of the Mayor's Special Assistant and reinstated the Equal Employment Opportunity Director's ruling that the District of Columbia Fire Department's grooming regulations violated the District of Columbia Human Rights Act. Both parties appeal. Brian R. Kennedy, a former employee of the Fire Department, claims that the trial court erred in denying his claims for compensatory damages, attorneys fees, and Rule 11 sanctions. Opposing these claims, the District contends that Kennedy's claims are now moot due to his disability retirement from the Department. The District further maintains that the trial court erred by concluding that the District of Columbia Fire Department's facial and hair length regulations for male firefighters were discriminatory as applied to Kennedy. After reviewing the record and the parties' respective contentions, we affirm in part and reverse in part, and remand.
The District of Columbia Fire Department's ("Department") grooming regulations ("Regulations") require male firefighters to be cleanly shaven and to have short hair. *fn1 In contravention of these regulations, Kennedy grew a "handlebar moustache" and a beard -- actions which prompted disciplinary proceedings which resulted in his being dismissed from the Department. On December 15, 1980, Brian R. Kennedy filed a complaint with the Director of Equal Employment Opportunity ("EEO") for the Government of the District of Columbia, alleging that the grooming regulations violate both the Mayor's Order 75-230, 1975 D.C. Stat. 510, and the Human Rights Act of 1977, D.C. Code §§ 1-2501 to -2557 (1992 Repl.).
An administrative hearing was convened which resulted in a finding by the hearing examiner that the Department's Regulations (1) were not uniformly and equally applied to Department employees, (2) were not an essential component of an employee's uniform, (3) did not foster esprit de corps among the employees, and (4) were not rationally based on a safety justification. In addition, the hearing examiner proposed new grooming regulations to be implemented by the Department.
On August 8, 1983, the EEO Director, adopting the recommendations of the hearing examiner, ordered Kennedy's reinstatement on grounds that the grooming regulations as applied to Kennedy were unlawfully discriminatory on the basis of personal appearance. Kennedy was subsequently awarded reinstatement with back pay, but denied compensatory damages, attorneys fees, and punitive damages. *fn2
Pursuant to § 6 (a)(8) of Mayor's Order 75-230, *fn3 the Department sought review of the Director's decision. On September 26, 1983, the Mayor designated Carol Lowe, Special Assistant to the City Administrator, to review the EEO Director's decision. On May 14, 1985, Special Assistant Lowe reversed the EEO Director's decision and upheld the Department's grooming regulations. In her decision, the Special Assistant held that both Mayor's Order 75-230, 1975 D.C. Stat. 510, and the Human Rights Act of 1977, D.C. Code §§ 1-2501 to -2557(1992 Repl.), permitted the Department to regulate different hair lengths for male and female employees. Moreover, she held that the evidence before the hearing examiner supported the Department's safety justification for its facial hair regulation.
Kennedy filed two petitions in this court which were subsequently consolidated. See Kennedy v. Barry, 516 A.2d 176, 180 (D.C. 1986). The first petition questioned the Special Assistant's authority to review the order as well as her delay in rendering a decision and requested a writ of mandamus ordering the Department to comply with the EEO Director's order. The second petition sought to overturn the Special Assistant's decision. In opposition, the District of Columbia argued, inter alia, that Kennedy's claims did not rise to the level of a "contested case" pursuant to D.C. Code § 1-1510 (a), and thus, this court was without jurisdiction. We agreed and dismissed Kennedy's petitions. 516 A.2d at 180.
On May 18, 1987, Kennedy filed an amended complaint for equitable relief in the Superior Court requesting the reinstatement of the Director's decision. In a reversal of its previous position, the District of Columbia filed a motion to dismiss the amended complaint on the ground that the matter involved a contested case which required Kennedy to seek review in this court. Kennedy opposed this motion and moved for sanctions under Superior Court Civil Rule 11. The Superior Court correctly asserted jurisdiction and found the Special Assistant's decision to be unsupported by the evidence, thus reinstating the EEO Director's decision in favor of Kennedy. In addition, the court denied Kennedy's claim for Rule 11 sanctions. Both Kennedy and the District appeal from those rulings.
At the threshold, we address the District's contention that Kennedy's claim for equitable relief is moot because he retired from the Fire Department prior to the time the Superior Court rendered its decision. We disagree.
Although the concept of mootness is grounded on the firm principle that "parties in a judicial proceeding must have a concrete stake in the outcome[,]" In re An Inquiry into Allegation's of Misconduct Against Juveniles Detained at and Committed at Cedar Knoll Inst., Dep't of Human Resources, 430 A.2d 1087, 1092 (D.C. 1981) (citations omitted), it is clear that unresolved issues of damages, as are present here, constitute a sufficient "concrete stake" in the litigation. Such issues are therefore properly before us irrespective of Kennedy's retirement. Board of Pardons v. Allen, 482 U.S. 369, 370-71 n.1, 96 L. Ed. 2d 303, 107 S. Ct. 2415 (1987) (prisoners' release on parole did not render action seeking compensatory damages in addition to declaratory and injunctive relief, moot). *fn4 Similarly, we note that Kennedy's appeal from the Superior Court's denial of his claim for sanctions under Rule 11 is also properly before us.
In addition, the Supreme Court has carved an exception to its general insistence that a litigant maintain a "concrete stake" in the action to encompass those scenarios which are "capable of repetition, yet evading review." See Southern Pacific Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515, 55 L. Ed. 310, 31 S. Ct. 279 (1911). This exception traditionally applies when (1) the challenged action is in its duration "too short to be fully litigated prior to its cessation or expiration," and (2) there is a "reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149, 46 L. Ed. 2d 350, 96 S. Ct. 347 (1975) (per curiam) (citing Sosna v. Iowa, 419 U.S. 393, 42 L. Ed. 2d 532, 95 S. Ct. 553 (1975)).
Notwithstanding federal cases to the contrary, "this court has declined to adhere strictly to requirements," and has not insisted that the conduct be threatened against the same complaining party. In re W.L., 603 A.2d 839, 841 (D.C. 1991) (citing Lynch v. United States, 557 A.2d 580, 582 (D.C. 1989) (en banc)). Accordingly, where the pursuit of administrative and judicial avenues of redress outdistances the tenure or legal status of the complaining party, and the challenged conduct threatens to go unchecked, an adjudication on the merits is appropriate. See United States v. Edwards, 430 A.2d 1321, 1324 n.2 (D.C. 1981) (en banc), cert. denied, 455 U.S. 1022, 72 L. Ed. 2d 141, 102 S. Ct. 1721 (1982). For this reason as well, this case is properly before us.
In addressing the merits of the dispute, our scope of review in this case is unusual. Although this case comes to us from the Superior Court's reversal of the Special Assistant's reversal of the hearing examiner's ruling and reinstatement of the EEO Director's decision, our primary task is not simply to review the Superior Court's decision for error or abuse of discretion. *fn5 Rather, we approach the case as if the appeal arose directly from the administrative agency. See Davis v. Univ. of the District of Columbia, 603 A.2d 849, 851 (D.C. 1992); Kegley v. District of Columbia, 440 A.2d 1013, 1018 (D.C. 1982); Barry v. Wilson, 448 A.2d 244, 246 (D.C. 1982) (per curiam).
When reviewing the decision of an administrative agency, we must first assure ourselves that the agency's "findings" are more than a reiteration of the evidence. Because these findings form a necessary "basis for a meaningful review by this court and also  inform the parties of the facts proven and relied on by the [administrative agency]," we will not accept "generalized, conclusory or incomplete findings." Newsweek Magazine v. District of Columbia Comm'n on Human Rights, 376 A.2d 777, 784 (D.C. 1977), cert. denied, 434 U.S. 1014, 54 L. Ed. 2d 758, 98 S. Ct. 729 (1978).
Once satisfied that this threshold is met, our review function, then, is to determine whether there exists a "'rational connection between the facts found and the choice made,'" Citizens Ass'n of Georgetown, Inc. v. District of Columbia Zoning Comm'n, 402 A.2d 36, 41 (D.C. 1979) (quoting Brewington v. Board of Appeals and Review, 299 A.2d 145, 147 (D.C. 1973) (citation omitted)), and whether the agency's findings of fact are supported by substantial evidence in the record considered as a whole. Greater Washington Business Ctr. v. District of Columbia Comm'n on Human Rights, 454 A.2d 1333, 1337 (D.C. 1982). See also 4934, Inc. v. District of Columbia Dep't of Employment Servs., 605 A.2d 50, 53 (1992); D.C. Code § 1-1510 (a)(3)(E) (1992 Repl.). Mindful that substantial evidence "'means more than a mere scintilla'" we will uphold an administrative decision if bottomed on "'such relevant evidence as a reasonable mind might accept as adequate to support a Conclusion.'" Shaw Project Area Comm., Inc. v. District of Columbia Comm'n on Human Rights, 500 A.2d 251, 255 (D.C. 1985) (per curiam) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)).
The application of this standard of review binds us to two axioms of administrative law. On the one hand, upon review of the factual predicate underpinning the administrative decision, we have repeatedly held that "a hearing examiner's decision has been entitled to greater consideration if the examiner, as in this case, has heard live testimony and observed the demeanor of the witnesses." Gunty v. District of Columbia Dep't of Employment Servs., 524 A.2d 1192, 1197 (D.C. 1987) (quoting Dell v. District of Columbia Dep't of Employment Servs., 499 A.2d 102, 106 (D.C. 1985)). *fn6
On the other hand, when assessing the application of such facts to the pertinent regulations, "this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration." Udall v. Tallman, 380 U.S. 1, 16, 13 L. Ed. 2d 616, 85 S. Ct. 792 (1965). Particularly where the interpretation of an administrative regulation is in issue, "the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation." Id. at 16-17 (quoting Bowles v. Seminole Rock Co., 325 U.S. 410, 414, 89 L. Ed. 1700, 65 S. Ct. 1215 (1945)).
Accordingly, the Special Assistant, the Director and, indeed this court, can only reverse the hearing examiner's findings of fact if they were unsupported by substantial evidence, and overturn their ruling on the questioned conduct if plainly erroneous or inconsistent with the pertinent regulatory scheme. See McMullen v. Police and Firefighter's Retirement and Relief Bd., 465 A.2d 364, 366 (D.C. 1983) (per curiam) ("A reviewing court must affirm an agency's findings of fact and Conclusions of law if they are supported by reliable, probative and substantial evidence in the record") (citing Kegley, supra, 440 A.2d at 1018). *fn7
A. District of Columbia Human Rights Act
As applied to public employees, the District of Columbia Human Rights Act ("DCHRA") is governed by Mayor's Order 75-230, pursuant to which, "the District of Columbia Government has promulgated regulations governing the human rights of its employees and applicants for employment. Mayor's Order 75-230, 1975 D.C. Stat. 510. The Mayor's Order prohibits discriminatory employment practices based upon an employee's "race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, physical handicap, or political affiliation . . . ." Mayor's Order 75-230 § 2 (a), 1975 D.C. Stat. at 511. The Order defines "personal appearance" as "the outward appearance of any person, irrespective of sex, with regard to bodily condition or characteristics, manner or style of dress, and manner or style of personal grooming, including, but not limited to, hair style or beards." Id. at 512.
While expansive, this definition is not without limitation. The Order provides that an employer may impose requirements relating to "cleanliness, uniforms, or prescribed standards, when uniformly applied to a class of employees, for a reasonable business purpose; or when such bodily conditions or characteristics, or style or manner of dress or personal grooming presents a danger to the health, welfare or safety of any individuals." Id.
It is against this framework that we ask whether (1) the hearing examiner's finding, that the Department's facial hair regulation and hair length regulations, were discriminatory as applied to Kennedy and not excused by a "reasonable business purpose" or a consideration of "health, welfare or safety," is supported by substantial evidence; and (2) whether these findings are consistent with the Human Rights Act.
B. Facial Hair Regulations
The Department's regulation regarding facial hair for male employees provides:
The face shall be left clean shaven, except that a well-trimmed mustache is permissible. If worn, the mustache shall not extend more than 1/4 inch beyond the corners of the mouth. Mustaches shall be trimmed in such a manner as to leave the upper lip visible and no portion extending beyond the corners of the mouth shall fall more than 1/4 inch below a line parallel with the bottom of the lower lip. Handlebar mustaches, goatees, and beards are not permitted, except that officers and members suffering from folliculitis barbae . . . may wear a beard 1/4 inch in length and ...