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Grillo v. District of Columbia

June 03, 1999

ANTHONY GRILLO, APPELLANT,
v.
DISTRICT OF COLUMBIA, APPELLEE.



Before Terry and Schwelb, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Schwelb, Associate Judge

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

Appeal from the Superior Court of the District of Columbia

(Hon. Ellen Segal Huvelle, Trial Judge)

Submitted May 18, 199

Anthony Grillo appeals from an order of the trial court dismissing his complaint against the District of Columbia for fraud and negligent misrepresentation. The trial Judge held that she lacked subject matter jurisdiction over the action and that Grillo's grievance should have been presented to the Office of Employee Appeals (OEA). Grillo contends, to the contrary, that his allegations do not fall within the jurisdiction of the OEA and that the complaint was erroneously dismissed. We remand the case for an initial determination by the OEA as to whether it has jurisdiction over the matter.

I.

Grillo alleged in his complaint that in 1996, while he was employed by the District of Columbia Department of Corrections (DOC), he applied for a position with the Metropolitan Police Department (MPD). Grillo was advised by the investigator assigned to his case, Roxanne Jenkins, that his driving record presented a problem with respect to the viability of his application. That record included five speeding tickets and a charge of operating after suspension (OAS). The OAS charge followed the suspension of Grillo's license in Virginia for an unpaid ticket and the revocation of his license in Maryland after Grillo had failed to appear for a hearing in Maryland to explain the Virginia suspension.

Grillo alleged that, at Ms. Jenkins' direction, he provided a written explanation of the circumstances of his driving violations. According to Grillo, Ms. Jenkins thereafter orally advised him that the issue regarding his driving record had been resolved, that he had been accepted into a Police Academy class for new recruits, and that he should resign from his then-current job. Grillo also received a conditional employment letter from the MPD. Grillo asserted that in reliance on Investigator Jenkins' assurance, he submitted his resignation to the DOC. Subsequently, however, after some administrative delay, Grillo was notified by the MPD that his application had been rejected on account of his driving record.

On November 12, 1997, Grillo filed this action in the Superior Court. On March 10, 1998, the trial Judge dismissed the complaint in a written order. This appeal followed.

II.

Most employment disputes between the District of Columbia and its employees are governed by the Comprehensive Merit Personnel Act (CMPA), D.C. Code §§ 1-601.1 et seq. (1992). When a claim is cognizable under the CMPA, that statute provides the complainant with his or her exclusive remedy, and suits in tort are generally preempted. See, e.g., District of Columbia v. Thompson, 593 A.2d 621, 635 (D.C.) (on petition for rehearing) (Thompson II), cert. denied, 502 U.S. 942 (1991), modifying in part 570 A.2d 277 (D.C. 1990) (Thompson I). The Office of Employee Appeals has exclusive appellate jurisdiction over claims against the District arising under the CMPA. See D.C. Code § 1-606.3. We have held, however, that "public employees do not lose their common law rights to sue for the[ir] injuries . . . [when] neither those injuries nor their consequences trigger the exclusive provisions of the CMPA." King v. Kidd, 640 A.2d 656, 664 (D.C. 1993) (alterations in original) (citation omitted).

Relying on language in Thompson II, 593 A.2d at 625, and in District of Columbia Metro. Police Dep't v. Perry, 638 A.2d 1138, 1139 (D.C. 1994), Grillo asserts that the CMPA governs grievances by District of Columbia employees, but not common law tort claims filed by applicants for employment. The plaintiffs in Thompson and Perry were District employees, however, and although each of these opinions referred to the CMPA's applicability to employees, neither case addressed the question whether the OEA is the proper forum for claims of this kind by rejected applicants for employment. The question before us thus appears to be one of first impression in this jurisdiction.

The language of the CMPA is likewise inconclusive. The provision defining the CMPA's coverage states that the Act shall apply, with certain exceptions not here relevant, to "employees of the District of Columbia government." D.C. Code § 1-602.1 (a). The coverage provision thus makes no reference to applicants for employment. Moreover, as defined in the Act, "[t]he term `employee' means, except when specifically modified in this chapter, an individual who performs a function of the District government and who receives compensation for the performance of such services." D.C. Code § 1-603.1 ...


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