Appeal from the Superior Court of the District of Columbia (CA 03-8686) (Hon. Zoe Bush, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before RUIZ and GLICKMAN, Associate Judges, and KING, Senior Judge.
Appellant Roscoe Grant, Jr., a supervisor in the District of Columbia Office of the Corporation Counsel,*fn1 was placed on paid administrative leave pending an internal investigation into allegations that he had sexually harassed a subordinate. Before the investigation was completed, Grant filed this action against the District of Columbia in Superior Court, alleging that the decision to place him on leave without notice or a hearing violated his procedural rights under the Comprehensive Merit Personnel Act ("CMPA"), D.C. Code § 1-601.01 et seq. (2001), and the Due Process Clause of the Fifth Amendment. The trial judge granted the District's motion to dismiss the action. We affirm.
Roscoe Grant started working for the District government in 1971 as a Career Service employee,*fn2 and that was his status in 1999, when he was appointed to the post of Deputy Director of Operations in the Corporation Counsel's Office of Child Support Enforcement. In August 2002, however, while still occupying that post, Grant transferred out of the Career Service and into the Management Supervisory Service.*fn3 He thereby became an at-will employee who could be terminated on fifteen days' notice, as provided in D.C. Code § 1-609.54 (a).
In July 2003, the Office of Corporation Counsel opened an inquiry into allegations that Grant had sexually harassed a female member of his staff. The allegations were spelled out in a grievance filed by the staff member's union representative, a copy of which was given to Grant. Two months later, in September 2003, Grant was called into the office of Robert J. Spagnoletti, who was then the Corporation Counsel, and told that, effective immediately, he was being placed on administrative leave with pay pending the completion of the Office's investigation. Mr. Spagnoletti handed Grant 3 a letter, which attributed this personnel action to "the sensitive nature" of the investigation, the "preliminary findings," and "the office's need to inquire as thoroughly as possible" into the accusations against Grant. The letter requested Grant's continued cooperation and assured him that he would have "the opportunity to respond to these allegations, directly or by providing witnesses," in due course. Grant asked to see the evidence of the charges against him, but Mr. Spagnoletti refused to provide it to him at that time. The Corporation Counsel then directed Grant to turn over his parking pass and government employee identification, and had him escorted off the premises.
The next day, Grant's attorney sent a letter protesting the summary treatment of her client, vigorously denying the allegations of sexual harassment, and demanding that he be allowed to return to his duties immediately. The letter complained that Grant had been subjected to a disciplinary action "tantamount to termination," without cause and in violation of his rights to notice and a hearing under the CMPA. Mr. Spagnoletti promptly responded to this correspondence, assuring Grant's attorney in writing that her client had not been terminated and that his temporary placement on administrative leave with full pay was "neither disciplinary nor punitive." Rather, the action was taken only to ensure a full and fair inquiry by allaying the concern that employees would be "reluctant to come forward" with information about the allegations under investigation if Grant continued to be present in the office. Mr. Spagnoletti reiterated that Grant would be afforded "a full opportunity to respond to the allegations before the investigation is concluded."*fn4
The following month, Grant commenced the present lawsuit against the District. His complaint charged that the Corporation Counsel had violated his procedural rights under the CMPA and his Fifth Amendment right to due process of law by publicly placing him on paid administrative leave without notice or an opportunity to see and rebut the evidence against him. Grant sought a preliminary and a permanent injunction directing the Corporation Counsel to reinstate him to his position and to destroy all records of the allegations against him, together with monetary compensation for emotional distress and the injury to his reputation and career resulting from his public placement on leave.*fn5
The trial judge denied Grant's motion for a preliminary injunction, finding, inter alia, "no substantial likelihood" that he would prevail on the merits of his claims, given his status as an at-will employee.*fn6 Soon after this ruling, Grant retired from his position with the District government. His decision to retire, Grant subsequently explained, was "due to his placement on indefinite administrative leave."*fn7
At about the same time that Grant retired, the District filed its motion to dismiss or, in the alternative, for summary judgment. The District argued that as an at-will employee in the Management Supervisory Service, Grant did not have the procedural rights of Career Service employees under the CMPA, and further that he lacked a property interest in his employment sufficient to trigger Fifth Amendment due process protections. On January 12, 2004, the date Grant's response was due, he moved for an extension of the due date to January 20, 2004. His motion stated that "no further extensions should be necessary." The trial judge granted the motion. Grant did not file his response to the District's motion on January 20, however. Instead, at 11:30 p.m. that night, Grant filed a motion seeking to extend the due date by an additional day, to January 21, 2004.*fn8
Unaware of this eleventh hour filing, the trial judge granted the District's motion. The order was signed on January 20 and entered on the docket the following day. The judge agreed with the District that Grant's rights had not been violated because he was an at-will employee. Upon learning of the order, Grant immediately filed a second motion for enlargement of time (in effect, though not in name, a motion for relief from the judgment), together with his now-completed opposition papers (which reiterated the arguments he had made when he unsuccessfully moved for a preliminary injunction). On February 18, 2004, the judge denied the motion for enlargement of time as moot.
The main issue raised in this appeal is whether the trial judge erred in ruling as a matter of law that Grant had no statutory or Fifth Amendment right to notice and a hearing before being placed on paid administrative leave. We must ...