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District of Columbia Dep't of Public Works v. Colbert


May 5, 2005


Appeal from the Superior Court of the District of Columbia (MP A12-00) (Hon. Stephanie Duncan-Peters, Trial Judge).

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

Argued May 7, 2002

Before RUIZ, REID, and GLICKMAN, Associate Judges.

Ellsworth W. Colbert was discharged from employment in the Traffic Safety Systems Division of the Department of Public Works ("DPW") for inexcusable neglect of duty and insubordination. After he challenged the severity of the sanction, an Administrative Law Judge ("ALJ") determined that DPW's decision took into account impermissible evidence and failed to consider all relevant factors. DPW supplemented the record on appeal to the Board of the Office of Employee Appeals ("Board"), which affirmed DPW's sanction based on its review of the supplemented record and vacated the ALJ's order. The Superior Court, for its part, set aside the Board's order, and reinstated the ALJ's determination that DPW's decision to discharge Colbert was not substantially supported by permissible evidence, and ordered that Colbert be reinstated. DPW then appealed to this court. We hold that the Board exceeded its proper scope of review in determining that Colbert's misconduct warranted dismissal and considering evidence that had not been presented to the ALJ. We also hold that the ALJ erred in excluding evidence of Colbert's prior work history, and reversing DPW's order for failure to consider relevant factors, rather than remanding the case for a fuller evaluation. Therefore, we remand the case for further proceedings.


When Colbert challenged the severity of DPW's dismissal sanction, which took effect in January 1998, this case embarked on a long and tortuous path. First, an ALJ with the Office of Employee Appeals ("OEA") initially remanded the case to DPW so that it could reassess the appropriate penalty in light of the ALJ's determination that only two of the original three bases for Colbert's termination were actionable.*fn2 DPW complied with the remand order and submitted to the ALJ a revised decision that justified the termination on the two remaining charges and relying, in part, on a collection of documents reflecting Colbert's history of serious misconduct and physical violence, including eleven memoranda drawn from Colbert's personnel file.*fn3 Thereafter, the ALJ issued a decision reversing DPW's determination that Colbert should be dismissed because it had based the penalty on the work history of misconduct evidenced in the eleven memoranda, which, according to the ALJ, fell outside the bounds of evidence permitted by the District Personnel Manual. See 6 DCMR §1608.2.*fn4 The ALJ additionally concluded that DPW's decision must be reversed because the record failed to show that DPW considered a number of the factors articulated in Douglas v. Veterans Admin., 5 M.S.P.R. 280 (1981),*fn5 to establish the reasonableness of the penalty.

The ALJ ordered DPW to reinstate Colbert, and awarded him back pay and benefits.

DPW then filed a petition for review with the Board claiming that the ALJ's findings were based on an erroneous interpretation of 6 DCMR §1608.2. See note 3, supra. The Board issued an opinion and order stating that it was "not able to conclude that [DPW] fully evaluated its penalty in light of the mitigating factors enunciated in Douglas." The Board accordingly remanded the case to DPW for "consider[ation] [of] each of the Douglas factors with regard to [Colbert]and to reconsider the penalty in this case in light of those factors." In response to this second remand, DPW submitted a report ("Agency's Report on Remand") to the Board justifying its action taking into account the Douglas factors with respect to the two remaining charges, inexcusable neglect of duty and insubordination.*fn6 DPW also appended twenty documents that had not previously been entered into the administrative record.*fn7 The Board reversed the ALJ's decision because it found, based on a review of the entire record (including the additional documentary submissions), that DPW's decision to terminate Colbert had considered the relevant Douglas factors and was supported by substantial evidence. The Board did not expressly address the proper interpretation of 6 DCMR §1608.2.*fn8

Colbert thereafter filed a petition for review with the Superior Court of the District of Columbia, see D.C. Code § 1-606.3 (d) (1999), which in turn reversed the Board's decision as "clearly erroneous" because it failed to accord proper deference to the ALJ's findings, permitted DPW to justify Colbert's dismissal two years after the fact, and allowed DPW to base its decision on the eleven memoranda rendered incompetent evidence by 6 DCMR § 1608.2. The case comes to us on DPW's appeal from the trial court's order.*fn9


Even though the case is on appeal from the trial court's ruling, we review the Board's order "as if the appeal had been taken directly to this court." Hutchinson v. District of Columbia Office of Employee Appeals, 710 A.2d 227, 230 (D.C. 1998). Thus, "we examine the agency record to determine whether there is substantial evidence to support OEA's findings of fact, whether OEA's action was arbitrary, capricious, or an abuse of discretion." District of Columbia v. King, 766 A.2d 38, 44 (D.C. 2001) (quoting Office of D.C. Controller v. Frost, 638 A.2d 657, 660 (D.C. 1994)). The scope of OEA's review of an agency decision is limited to "simply ensure that 'managerial discretion has been legitimately invoked and properly exercised.'" Raphael v. Okyiri, 740 A.2d 935, 945 (D.C. 1999) (quoting Douglas v. Veterans Administration, 5 M.S.P.B. 313, 328 (1981)). While it is the OEA's final decision and not that of the ALJ that may be reviewed by this court, the ALJ's findings of fact are binding at all subsequent levels of review unless they are not supported by substantial evidence. See id.


Colbert contends that the Board erred as a matter of law and violated his right to due process when it considered evidence presented by DPW in its report after the second remand -- the twenty additional documents appended to DPW's "Agency Report on Remand" -- because none of this evidence was presented to the ALJ and entered into the administrative record. In response to our third item on record remand, see note 8, supra, the Board states that DPW "was permitted to submit additional documents after the conclusion of the evidentiary hearing and Colbert was given the opportunity to contest the additional evidence and submit additional evidence of his own. . . . Colbert submitted additional evidence to contest DPW's earlier submission." Although the fact that Colbert was permitted to -- and did -- comment upon and supplement the additional evidence presented by DPW refutes appellant's due process claim, it does not completely address his procedural challenge. OEA regulations provide that, unless an ALJ directs otherwise, the evidentiary record "shall be closed at the conclusion of the hearing," 6 DCMR § 630.1, 46 D.C. Reg. 9317 (Nov. 19, 1999), at which point "no additional evidence or argument shall be accepted into the record unless the Administrative Judge reopens the record pursuant to Rule 631." Id. at § 630.2. Under Rule 631, the record may be reopened only by the authority of the ALJ for the purpose of receiving "further evidence or argument at any time prior to the issuance of the initial decision." Id. at § 631.1, 46 D.C. Reg. 9318.*fn10 Applying the plain language of the OEA regulations to the record before us, we conclude that the Board's reliance on the additional evidence appended to DPW's "Agency Report on Remand" was not in accordance with the regulation.

Although we agree with Colbert that DPW could not supplement the evidentiary record at the Board level, we reject his argument, adopted by the ALJ and the trial court, that DPW was precluded by 6 DCMR §1608.2, see note 3, supra, from considering the eleven memoranda that were presented by DPW during the hearing before the ALJ. These documents, which detailed Colbert's past conduct, were relevant in applying the Douglas factors, specifically, "employee's past work record, including . . . performance on the job, ability to get along with fellow workers, and dependability." In response to our second inquiry on record remand, see note 8, supra, the Board interpreted § 1608.2 as applying only to the use of previous "admonitions," "reprimands" or "prior corrective or adverse actions" issued within prescribed time periods as "a second offense for the purpose of imposing a more serious penalty." 6 DCMR § 1608.2. We defer to the Board's reasonable interpretation, based on the text of the regulation, that what the regulation precludes is reliance on stale disciplinary actions for the purpose of determining what sanction is available. See id.; Hutchinson, 710 A.2d at 234. In this case, it is undisputed that dismissal was a permissible sanction based solely on the cited charges of neglect of duty and insubordination, even if each were a "first offense." See Table of Appropriate Penalties. 6 DCMR § 1618.*fn11 As noted, Colbert has not contested the underlying facts that support these charges. Consistent with the Board's reasonable interpretation of § 1608.2, DPW did not use the previous disciplinary actions against Colbert for the purpose of determining whether dismissal was available based on prior sanctions for misconduct, but rather considered the longstanding work history of violent altercations in the workplace in determining what level of sanction -- within the available range -- was appropriate under the circumstances.


The trial court's order reversing the Board's decision was based in part on the observation that

[a]lthough the OEA Review Board permitted [DPW] to subsequently perform a Douglas analysis (over two years after it had removed [Colbert] from his position), the Court can find no authority, nor has any been cited by the parties, that permits the agency to justify its decision to remove after the [ALJ] has found that the agency failed to perform a Douglas analysis. The findings of the [ALJ] may only be reversed if the Review Board determined that the findings were not supported by substantial evidence. See Office of the District of Columbia Controller v. Frost, 638 A.2d 657, 660-61 (D.C. 1994). The OEA Review Board made no such determination but did determine that there was substantial evidence supporting [DPW's] action.

We concur in the trial court's interpretation of the Board's decision.The Board's analysis states in its entirety that

[a]fter a careful review of the entire record, including these [supplemental] documents [submitted by DPW pursuant to the Board's remand order] as they relate to [DPW's] analysis of the penalty in light of the Douglas factors and the mitigating factors asserted by [Colbert], we find that there is substantial evidence to grant [DPW's] Petition for Review and reverse the [ALJ's] . . . [d]ecision [reinstating Colbert].

Setting aside its impermissible reliance on evidence that was not of record before the ALJ, the Board's reasoning distills to an assertion that it considered the record as a whole and concluded, contrary to the ALJ, that there was substantial evidence to support DPW's decision to terminate Colbert. The Board did not determine that any of the ALJ's findings was unsupported by substantial evidence, but rather posited its own unidentified body of substantial evidence in support of DPW's decision. We find no support for the Board's power to fashion such pronouncements. See Raphael, 740 A.2d at 945 (stating that the ALJ's findings of fact are binding at all subsequent levels of review unless unsupported by substantial evidence). OEA regulations provide that

[t]he Board may grant a petition for review when the petition establishes that:

(a) New and material evidence is available that, despite due diligence, was not available when the record closed;

(b) The decision of the Administrative Judge is based on an erroneous interpretation of statute, regulation or policy;

(c) The findings of the Administrative Judge are not based on substantial evidence; or

(d) The initial decision did not address all material issues of law and fact properly raised in the appeal.

6 DCMR § 634.3, 46 D.C. Reg. 9319-20 (Nov. 19, 1999). The Board's final decision is not predicated on any of these defined reasons for reversing an ALJ's decision. There is no indication that the Board deemed the additional information and documents furnished by DPW in its "Agency Report on Remand" to be "new" evidence not reasonably available to the agency before the record closed, see 6 DCMR § 634.3 (a), nor can we conceive of how it could be so given the documents' dates and likely repository.*fn12 See note 6, supra. There is, moreover, no critical review of the ALJ's decision with respect to the law or the facts. See

6 DCMR § 634.3 (b)-(d). Rather, the Board declared that it found (unidentified) substantial evidence in support of DPW's petition. In the absence of a determination that the ALJ misinterpreted the law -- as we have determined it did with respect to the proper interpretation of 6 DCMR § 1608.2 -- or that the ALJ's findings lacked substantial evidence, the Board is not free to draw its own contrary conclusion even if its determination is supported by substantial evidence. See 6 DCMR § 634.3, 46 D.C. Reg. 9319-20. Because "[a]n agency is bound by its own regulations," George Hyman Constr. Co. v. District of Columbia Dep't of Employment Services, 498 A.2d 563, 565 (D.C. 1985) (citing Vitarelli v. Seaton, 359 U.S. 535, 539-40 (1959); Dankman v. District of Columbia Bd. of Elections & Ethics, 443 A.2d 507, 513 (D.C. 1981)), we set aside the Board's order for failure to comply with the regulations governing the admission of evidence into the record, see 6 DCMR §§ 630.1 & 630.2, and the permissible legal bases for overturning the ALJ's decision, see 6 DCMR § 634.3. We therefore remand to the Board for reconsideration of the ALJ's decision within the established scope of review and limited to the evidentiary record presented to the ALJ.

This does not mean, however, that the ALJ's order to reinstate Colbert can be affirmed. The ALJ rejected DPW's sanction of dismissal, in part, on an incorrect overly restrictive interpretation of the evidence DPW could consider under 6 DCMR § 1608.2. Moreover, the ALJ did not find that Colbert's dismissal could not be substantiated by the evidence, but rather faulted (as incomplete) the analysis followed by DPW in arriving at its sanction. In light of the record, and our interpretation of relevant regulations in this opinion, the Board should remand the case to the ALJ for consideration of DPW's Agency Report on Remand applying the Douglas factors, including the additional evidence supplied by DPW and Colbert.*fn13 See Stokes v. District of Columbia, 502 A.2d 1006, 1011 (D.C. 1985) ("[i]f the [Board] finds that the agency failed to weigh the relevant factors," it is "appropriate for the [Board] then to specify how the agency's decision should be corrected to bring the penalty within the parameters of reasonableness.")

So ordered.

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