Appeal from the Superior Court of the District of Columbia, (CA 9876-05) (Hon. Maurice A. Ross, Trial Judge).
The opinion of the court was delivered by: Washington, Chief Judge
Before WASHINGTON, Chief Judge, BLACKBURNE-RIGSBY, Associate Judge, and SCHWELB, Senior Judge.
The District of Columbia Department of Corrections (DOC) terminated the employment of Correctional Treatment Specialist Charles Watts on grounds of malfeasance for failing to process a detainer for an inmate suspected of terrorist activities.*fn1 The Office of Employee Appeals (OEA) sustained the termination. On Mr. Watts' petition for review, the trial court reversed the termination and reinstated Mr. Watts with back pay and benefits. We reverse the trial court because (1) the OEA decision was based on substantial evidence in the record, and (2) while the OEA was mistaken in its jurisdictional mandate, Mr. Watts' claim that his termination violated the DOC's Collective Bargaining Agreement (CBA) with the Fraternal Order of the Police was not preserved for review.
The facts are very simple and uncomplicated. On August 23, 2002, an Immigration and Naturalization Service (INS) Agent faxed to Mr. Watts a detainer for an inmate who was suspected of terrorism.*fn2 Because no detainer for the inmate was processed into the DOC's data system, he was erroneously released on August 25, 2002. After being interviewed by Internal Affairs Investigators, Mr. Watts was placed on paid leave pending further investigation of the release. On October 10, 2002, Mr. Watts received a fifteen-day advance notice of proposal to remove him from his position.
A disinterested designee was appointed by the DOC to review the proposed action to terminate Mr. Watts. On December 3, 2002, the disinterested designee recommended that:
[i]f Mr. Watts past work record with the department has been unblemished and has been marked by professional conduct and excellent performance, I would recommend severe adverse action in this case short of removal. However, if Mr. Watts has been formally counseled/ disciplined in the past for his performance, judgment, or behavior, then I would support the proposed action.
A month later, the DOC Director issued a notice of final decision terminating Mr. Watts for malfeasance, referencing his "negligence [as] the single contributing factor in the erroneous release."
On March 3, 2003, Mr. Watts appealed his termination to the OEA where the reviewing ALJ found the removal of Mr. Watts to be in compliance with the factors enumerated in Douglas v. Veterans Administration, 5 MSPB 313, 5 MSPR 280 (1981),*fn3 and that Mr. Watts' failure to file the detainer amounted to malfeasance. The ALJ concluded that the penalty of termination was appropriate.
Mr. Watts appealed the ALJ decision to the OEA board and, for the first time, claimed his termination was unlawful because pursuant to the CBA,*fn4 the DOC was prohibited from issuing him a discipline that was more severe than that recommended by the disinterested designee, in this case, a penalty "short of removal." The OEA board, in affirming the ALJ's decision, ruled that Mr. Watts could not raise the allegation because it was a "collective bargaining claim" and the OEA "is not governed by the rules and procedures of Employee's grievance body." Subsequently, the trial court reversed the OEA's decision finding that Mr. Watts' termination was not supported by substantial evidence in the record, and that the OEA erred in failing to consider Mr. Watts' claim that his termination violated the CBA.
Although this case is before us on appeal from the trial court, we review the OEA's decision as though "the appeal had been taken directly to this court." District of Columbia Dep't of Pub. Works v. Colbert, 874 A.2d 353, 358 (D.C. 2005). Thus, we "review the factual findings of the agency to determine if there is substantial evidence to support" the OEA's conclusion. Zhang v. District of Columbia Dep't of Consumer & Regulatory Affairs, 834 A.2d 97, 101 (D.C. 2003). The OEA's decision must not be "arbitrary, capricious, or an abuse of discretion." District of Columbia v. King, 766 A.2d 38, 44 (D.C. 2001) (citations omitted). If, after examining the record as a whole, we conclude that the agency's findings are supported by substantial evidence, we must accept those findings even though the record could support a contrary finding." Zhang,834 A.2d at 101.
Despite the trial court's conclusion that Mr. Watts' termination was not supported by the record, we agree with the DOC that there is substantial evidence in the record from which a reasonable mind could conclude that termination was an appropriate penalty. We are also satisfied that the decision was neither arbitrary nor capricious. See Davidson v. Office of Employee Appeals, 886 A.2d 70, 72 (D.C. 2005) (upholding the OEA's termination of an employee because there was evidence "a reasonable mind might accept as adequate" to support the penalty); see also Stokes v. District of Columbia, 502 A.2d 1006, 1010 (D.C. 1985) (stating that the court's ability to decide the appropriateness of a penalty is limited to ensuring "managerial discretion has been legitimately invoked and properly exercised"). In this case, the OEA relied on evidence in the record that Mr. Watts was aware of the significant problems the DOC was having with premature releases, that he had been assigned to the Records Office for the express purpose of eradicating such errors, that he was aware that a detainer had been sent by the INS, and that he failed to process the detainer which resulted in the erroneous release of an inmate who was a threat to national security. In reaching its decision, the OEA also relied on evidence that Mr. Watts' failure to process the detainer subjected the DOC to heightened criticism and altered the confidence of Mr. Watts' supervisors in his ability to perform his job effectively. In reaching its decision, the OEA also noted Mr. Watts' lengthy work history and generally "favorable performance ratings" as mitigating factors in deciding whether the sanction imposed was appropriate. See Douglas, supra, 5 M.S.P.R. at ...