May 17, 2007
BRIAN WATSON, APPELLANT,
DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY AND OFFICE OF EMPLOYEE APPEALS, APPELLEES.
Appeal from the Superior Court of the District of Columbia (C-29-04) (Hon. Melvin R. Wright, Trial Judge).
The opinion of the court was delivered by: Thompson Associate Judge
Submitted April 5, 2007
Appellant Brian Watson seeks review of a Superior Court decision dismissing his complaint on the ground that it was time-barred. We affirm.
Appellant is a former employee of the District of Columbia Water and Sewer Authority (WASA). On January 9, 2002, appellant tendered his resignation to WASA, to be effective on January 10, 2002. WASA accepted and processed the resignation. Within a few days after resigning, appellant attempted to rescind the resignation, but WASA refused to reinstate him. On May 22, 2003 -- over sixteen months later -- appellant filed a Petition for Appeal with the District of Columbia Office of Employee Appeals (OEA), claiming that he had resigned because of workplace harassment and mistreatment,*fn1 and alleging that WASA "abuse[d] . . . its discretionary authority" in refusing to give him his job back. He sought reinstatement with seniority and back pay.
On August 30, 2004, OEA dismissed the petition for lack of jurisdiction, explaining that because WASA established its own personnel grievance process in 1997 (with final decisions appealable to the Superior Court), WASA and its employees are not covered by the provisions of the Comprehensive Merit Personnel Act (see, e.g., D.C. Code § 1-606.03) that provide for appeals to OEA by District employees who have lost their jobs.*fn2 Thereafter, on September 29, 2004, appellant filed a Petition for Review of Agency Decision in the Superior Court, asking the court to conduct a hearing on the merits, to remand the case to OEA for a hearing on the merits, or "[i]f Plaintiff has chosen an incorrect forum, . . . to transfer the case to the appropriate forum."
The Superior Court upheld the OEA ruling, agreeing that OEA lacked jurisdiction to handle the appeal. The court also rejected appellant's request that the court "permit him to pursue his remedy in the correct forum with an opportunity to be heard." The court reasoned:
D.C. Codes 2-223.03 and 2-1403.16 provide the time limits within which a private action may be filed in Superior Court. In both, the statute requires the action to be filed within one (1) year of the alleged violation or one (1) year after the employee first becomes aware of the violation. In this case, petitioner is clearly time-barred from filing a claim. The brief filed by petitioner indicates he was aware of alleged hostility and harassment by his superiors at the time of the submission of his resignation. Armed with this knowledge, the statute required him to file the action prior to, or by January 9, 2003. He did not file anything until May 22, 2003. His failure to do so is fatal to his request to pursue his claims at this time.
The court also noted that WASA rules require the agency to include in final agency decisions on disciplinary matters "a statement of the employees [sic] right to bring an action in the D.C. Superior Court seeking judicial review of the final administrative decision by the General Manager." The court found that "[b]ecause petitioner voluntarily resigned, notice by the agency of the right to bring an action [in] Superior Court would not be required in light of the fact that the agency took no action."
In this appeal, appellant does not challenge the court's ruling that OEA lacked jurisdiction to resolve his grievance. He also acknowledges that his "challenge ought to have been to WASA's determination itself, and not to the OEA decision, which was substantially correct." He contends, however, that the Superior Court erred in not permitting him to proceed there with his challenge to WASA's decision not to reinstate him. He also challenges the trial court's ruling that WASA was not required to notify him of his appeal rights and argues that WASA's failure to notify him ("about how he could appeal [WASA's] decision not to reinstate him") tolled any applicable statute of limitations.*fn3
Appellant's tolling argument is premised on a claim that WASA failed to follow its notice-of-appeal-rights regulation. We agree with the trial court, however, that WASA regulations did not require the agency to notify appellant of a right to bring an appeal in the Superior Court. The notice regulation on which appellant relies, 21 DCMR § 5209.8, applies only after an employee has grieved a disciplinary action pursuant to 21 DCMR § 5210 and WASA has reached a final determination on that grievance.*fn4 Thus, even if we were to accept appellant's argument that WASA took disciplinary action when it refused to reinstate appellant's employment (a dubious proposition),*fn5 appellant's failure to initiate the grievance process within fifteen days*fn6 after he understood that WASA would not reinstate him is fatal to his tolling argument.
In further support of his argument that an action in Superior Court challenging WASA's action was not time-barred, appellant asserts that because WASA never officially gave him notice that it had reached a decision on his request to rescind his resignation, "it is not possible to state when a thirty-day deadline to file a challenge to that decision in Superior Court actually lapsed."*fn7 He states that a WASA manager told him that he would "look into the matter" and would contact him at the conclusion of an investigation (but never did), and argues that the date when WASA's determination was final is therefore in question. Even giving appellant the full benefit of the doubt, however, it is clear that he understood that he would not be reinstated by May 22, 2003, the date when he filed his appeal to OEA. His suit in Superior Court sixteen months later, even if deemed to be a petition for review of allegedly arbitrary action by WASA rather than a petition for review of an OEA decision, plainly was untimely under any thirty-day appeal deadline.
Finally, appellant contends that the court erred in concluding summarily that his resignation was voluntary. On the record before us, we discern no error. Appellant states in his brief that his "challenge in this matter is not to the 'alleged hostility and harassment by his superiors,' rather it is to WASA's decision not to reinstate him upon his request to rescind his resignation."*fn8 As we said in Wright v. District of Columbia Dep't of Employment Servs., 560 A.2d 509, 513 (D.C. 1989), "once an employee voluntarily resigns from her job, the employer's decision not to accept a subsequent withdrawal of that resignation does not transform the employee's act into an involuntary one." Accordingly, the voluntariness of appellant's decision to resign is not material in this appeal.
For the foregoing reasons, the judgment is Affirmed.