Appeal from the Superior Court of the District of Columbia (CAB6935-04) (Hon. Ronna Lee Beck, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
BEFORE RUIZ, KRAMER, and FISHER, Associate Judges.
Appellant Henry Thompson, who was suspended for ninety days from his job as an information technology specialist with the District of Columbia Public Schools ("DCPS"), argues that the trial court erred in dismissing his complaint challenging the suspension for lack of jurisdiction. We affirm the trial court's dismissal.
The background of this matter, as accurately described in the trial court's ruling, is as follows:
Plaintiff is employed by the D.C. Public Schools ("DCPS"). On September 1, 2004, DCPS issued a notice of termination based on plaintiff's alleged deficient performance as an information technology specialist, which plaintiff challenged in an administrative hearing. The hearing examiner modified the penalty from termination to a ninety-day suspension. Pursuant to 5 DCMR §1406.1, plaintiff appealed the adverse action decision to the Superintendent of Schools. The Superintendent of Schools (now the Chancellor) did not act within the twenty day period prescribed by 5 DCMR §1409.6 and instead did not act until almost two years later on July 25, 2007. In a document entitled "Final Agency Decision" Chancellor Rhee upheld the hearing examiner's decision, deemed the plaintiff to have exhausted all administrative remedies, and advised plaintiff of his right to appeal her decision to the Office of Employee Appeals [OEA] within thirty days. Chancellor Rhee also enclosed a copy of the OEA Rules and appeal form and provided him information about how to access the information on the internet. Instead of filing an appeal with OEA, plaintiff filed various pleadings in [the Superior Court], including an amended complaint.
The trial court dismissed the complaint on the ground that it lacked jurisdiction to hear Thompson's claim prior to resolution of it by OEA. This appeal followed.
Where, as here, "the matter under review requires invocation or declaration of a fact-free general principle of law, the court will designate the issue as a question of law and review the matter 'de novo.'" Washington Teachers' Union, Local #6 v. D.C. Pub. Schs., 960 A.2d 1123, 1131 (D.C. 2008) (citation omitted).
At issue is whether Thompson was required to file an appeal with OEA before filing a complaint in the Superior Court. The Comprehensive Merit Personnel Act ("CMPA"), specifically D.C. Code § 1-606.03 (a) (2001), provides: "An employee may appeal a final agency decision affecting a performance rating which results in . . . suspension for 10 days or more (pursuant to subchapter XVI-A of this chapter)*fn1 to [OEA] upon the record and pursuant to other rules and regulations which [OEA] may issue." The statute further provides that "[a]ny employee . . . may appeal the decision of [OEA] to the Superior Court of the District of Columbia for a review of the record . . . ." Id. § 1-606.03 (d).*fn2 Where OEA has jurisdiction to hear an appeal from a final agency opinion, an employee must appeal to OEA before filing a complaint in the Superior Court. District of Columbia v. Thompson, 593 A.2d 621, 634 (D.C. 1991) ("[T]he Council 'plainly intended' CMPA to create a mechanism for addressing virtually every conceivable personnel issue among the District, its employees, and their unions -- with a reviewing role for the courts as a last resort, not a supplementary role for the courts as an alternative forum." (citation omitted))*fn3
This court has repeatedly held that employees of DCPS must appeal to OEA before they may file a complaint in the Superior Court. See Washington Teachers' Union, supra, 960 A.2d at 1134 (holding that unions alleging that DCPS violated the CMPA by improperly eliminating jobs and terminating teachers and other staff through a reduction in force "must present their claims in the first instance to OEA"); Nelson v. District of Columbia, 772 A.2d 1154, 1156 (D.C. 2001) (affirming dismissal of common law tort claims challenging post-termination procedures afforded DCPS employees, where an appeal was pending with OEA, "for failure to exhaust [plaintiff's] administrative remedies"). See also McManus v. District of Columbia, 530 F. Supp. 2d 46, 77-78 (D.D.C. 2007) (DCPS employees who alleged that the District wrongfully terminated them "must pursue adverse actions before the OEA and then in Superior Court"). Thus, it is clear that the CMPA requires DCPS employees such as Thompson to file an appeal with OEA before filing a complaint in the Superior Court.
Thompson argues, however, that he exhausted his administrative remedies by appealing to the DCPS Chancellor, and thus cannot be required to appeal to OEA since, he asserts, DCPS employees have the option of appealing either to the Chancellor or to OEA. His argument is based partly on a regulation which provides that suspensions for more than thirty days "shall be taken pursuant ...