Appeal from the Superior Court of the District of Columbia; (Hon. Paul R. Webber II, Trial Judge)
Before Ferrren, Schwelb, and Farrell, Associate Judges. Opinion for the court by Associate Judge Ferren. Opinion Concurring in part and Concurring in the judgment by Associate Judge Schwelb.
The opinion of the court was delivered by: Ferren
FERREN, Associate Judge: The Board of Trustees of the University of the District of Columbia (the Board) appeals from a trial court judgment, based on a jury verdict, awarding a university professor, appellee Ernest Myers, $36,000 in damages for breach of contract. We conclude that the Superior Court did not have authority to entertain Myers' claim because, as a union member, Myers had not exhausted his administrative remedies under the collective bargaining agreement with the Board. We therefore reverse and order dismissal of Myers' complaint.
Appellee Myers, who had been teaching in the Department of Human Resource Development since 1969, became an associate professor at the University of the District of Columbia (UDC) in 1976. He has been a member of the UDC Faculty association/NEA (the union). In 1983, Myers applied for promotion to the rank of full professor. Under the collective bargaining agreement in effect at the time between the union and UDC (the Master Agreement), the minimum eligibility requirements for promotion to full professor were (1) three years as associate professor and a "terminal degree" or, in the alternative, (2) a special act of the Board. *fn1 In 1976, Myers had completed a doctoral degree in Community Psychology from Union Graduate School, Yellow Springs, Ohio, a non-accredited institution at the time. *fn2
On June 13, 1983, Myers received a faculty notice dated June 7, 1983, saying that he had been promoted to full professor. Myers testified at trial that he had signed and returned this notice the next day. *fn3 On June 16, 1983, he received a mailgram rescinding the promotion. Subsequently, a faculty notice dated June 18, 1983, reaffirmed his status as associate professor. *fn4
Myers filed a complaint in Superior Court against UDC on May 6, 1986 alleging six breach of contract theories and two tort claims. He later amended his complaint to substitute the Board for UDC as the defendant. The Board moved to dismiss or, in the alternative, for summary judgment, on five grounds, including Myers' alleged failure to exhaust his administrative remedies under UDC's Master Agreement with the union. Contending that the Master Agreement's fourth-level procedure for the resolution of employee grievances was the "sole method used for the resolution of all complaints and grievances," the Board pointed out that Myers had failed to exhaust the fourth level, namely, the union's commencement of an arbitration proceeding on Myers' behalf. The Board accordingly maintained that the Superior Court lacked jurisdiction.
The trial court, rejecting the Board's jurisdictional argument, ordered dismissal, or granted the Board summary judgment, on all counts except Myers' breach of contract claims for academic years 1983-84 and 1985-86, respectively. *fn5 A jury returned a verdict for Myers, awarding him $36,000 in damages. The Board moved for a judgment n.o.v., a new trial, or a remittitur, but the trial court denied the motion. Thus, this appeal.
As a member of the faculty union, Myers was bound by the exclusive employee complaint and grievance procedures established by Article IX of the Master Agreement. Generally, a District employee, subject to the D.C. Government Comprehensive Merit Personnel Act, D.C. Code §§ 1-601.1, et seq. (1992 Repl.) (CMPA), or to a CMPA-sanctioned collective bargaining agreement, may not maintain a common law action in court to remedy a grievance against the employer cognizable under CMPA, or under such an agreement, unless the employee has exhausted the administrative procedures provided in that agreement. See Wilson v. District of Columbia, 608 A.2d 161 (D.C. 1992) (contract claim); District of Columbia v. Thompson, 593 A.2d 621 (D.C.) (tort claim), modifying 570 A.2d 277 (D.C. 1990), cert. denied, 112 S. Ct. 380 (1991). In Jordan v. Washington Metro. Area Transit Auth., 548 A.2d 792, 796 (D.C. 1988), we stressed that
if the collective bargaining agreement establishes procedures which are intended to be exclusive for resolving employer-employee grievances ... and if the employee brings suit against the employer before those grievance procedures have been exhausted, the employer may defend on the ground that the employee has not exhausted the exclusive remedies available under the contract.
(citations and footnotes omitted).
Such an exhaustion defense is not necessarily foolproof, however; the employee may be able to overcome it, and thus proceed in court, by showing either that the "grievance procedures are unreasonable" or that the hostility of the union officials makes a fair hearing impossible." Id. at 797 (citing NLRB v. Industrial Union of Marine & Shipbuilding Workers, 391 U.S. 418, 425-428, 20 L. Ed. 2d 706, 88 S. Ct. 1717 (1968) and Clayton v. International Urnon, UAW, 451 U.S. 679, 689, 68 L. Ed. 2d 538, 101 S. Ct. 2088 (1981)). In addition, the employee may be able to bypass administrative remedies under a collective bargaining agreement by showing that pursuit of these remedies would be futile. See Glover v. St. Louis-San Francisco Ry. Co., 393 U.S. 324, 330, 21 L. Ed. 2d 519, 89 S. Ct. 548 (1969); Winters v. Local 639, Int'l Bhd. of Teamsters, 186 U.S. App. D.C. 315, 318, 569 F.2d 146, 149-50 (1977).
In the present case, Myers does not dispute that the grievance procedures under the Master Agreement were "intended to be exclusive. for resolving employer-employee grievances." Jordan, 548 A.2d at 796. Moreover, everyone agrees that Myers satisfied the first three procedural steps required by that agreement: he (1) brought an informal complaint to the lowest appropriate management level, (2) sent a written grievance to the Vice President for Academic Affairs, and (3) filed a written appeal with the President of UDC. Myers, however, ostensibly ...