Appeals from the Superior Court of the District of Columbia (CA-4851-07) (Hon. Thomas J. Motley, Trial Judge)
The opinion of the court was delivered by: Ruiz, Associate Judge, Retired:
Argued September 21, 2010
Before BLACKBURNE-RIGSBY and OBERLY, Associate Judges, and RUIZ, Associate Judge, Retired.*fn1
This appeal arises from a protracted administrative dispute between appellee, Deborah J. Bryant, and her former employer, the District of Columbia Department of Corrections (DOC), regarding allegations of sexual and racial discrimination. In 1992, the District of Columbia Office of Human Rights (OHR) first determined that the DOC had discriminated against appellee in violation of the District of Columbia Human Rights Act (DCHRA), D.C. Code § 2-1401.01 et seq. (2001). Over the next seventeen years, the matter worked its way through the administrative process, culminating in the Superior Court's February 2009 order awarding appellee back pay with interest. On appeal, both DOC and OHR challenge the Superior Court's award of interest on appellee's back pay award. We hold that OHR has authority to award interest on back pay awards and affirm the judgment of the Superior Court remanding the matter to OHR for reconsideration of appellee's request for interest, in light of the circumstances of the case, recognizing and exercising its authority to award such interest.
Appellee began work as a clerk-typist at the Occoquan facility of the DOC's Lorton Correctional Complex in August 1982. In June 1987, appellee was temporarily reassigned to the Modular facility to work as the secretary-typist for the warden of the Occoquan facility, John Lattimore. Although the secretary-typist position was grade DS-7, appellee retained her clerk-typist grade DS-5 pay. Shortly after appellee was reassigned, Lattimore began to make sexual comments to her, which appellee rebuffed or ignored.*fn2 Subsequently, as appellee sought promotion to the DS-7 level, Lattimore began criticizing her work performance, despite having recently given her an excellent performance evaluation. In September 1988, appellee was transferred out of Lattimore's office without explanation and moved to a position with fewer responsibilities and less significant duties. Lattimore implied to appellee that her transfer was punishment for not submitting to his advances.*fn3
Appellee's efforts to vindicate her rights under the DCHRA have been arduous, and we set them out in some detail. In March 1990, appellee filed a complaint with the OHR alleging sexual and racial discrimination by Lattimore and the DOC. In February 1992, OHR found probable cause to believe that DOC had engaged in racial and sexual discrimination against appellee in violation of the DCHRA. OHR issued a Summary Determination and Order in September 1992. The order determined that appellee was entitled to receive a retroactive promotion to the DS-7 level, back pay, and medical expenses, but denied damages for emotional distress and attorney's fees. Appellee and DOC both appealed the decision to the Office of City Administrator (OCA). On January 31, 1994, OCA affirmed OHR's finding of probable cause to support the sexual discrimination claim, but reversed OHR's determination of probable cause for the racial discrimination claim. OCA also denied appellee's appeal for compensatory damages and attorney's fees, stating that District employees were not entitled to such damages.
Pursuant to OCA's order, OHR issued a new order in February 1994, revising its initial determination of race-based-discrimination and overruling its previous grant of a retroactive promotion and back pay. Appellee appealed the new order to the Superior Court, which remanded the case to OHR in June 1997. The court ordered OHR to reassess whether there was sufficient evidence of racial discrimination, whether the racial discrimination claim had been timely filed, and whether appellee was entitled to a retroactive promotion and back pay pursuant to OHR's finding of sexual discrimination.
In December 1997, OHR issued a Determination on Remand, holding that appellee's racial discrimination claim was not timely filed, but awarding her a retroactive promotion to a DS-7 pay grade and back pay for the sexual discrimination claim. That order was appealed to the Superior Court, which again remanded the case to OHR in June 1998. This time, the court ordered OHR to re-examine the award of a retroactive promotion and back pay under the correct legal standard, and charged OHR with making a factual determination on the amount of damages.
At the same time that these administrative proceedings were ongoing before the District of Columbia agencies and the Superior Court, appellee was also a claimant in a class action filed under federal law before the United States District Court for the District of Columbia, Bessye Neal v. District of Columbia Dep't of Corrections, No. 93-2420 (D.D.C. 1995). The Bessye Neal class was open to all female DOC employees who initiated sexual harassment claims arising between April 1, 1989, and July 22, 1997. Appellee qualified as a class member by showing that she had been the target of sexual harassment and retaliation by another D.C. employee, Everett Simms, a DOC staff psychologist, from about 1992 to 1994. A December 1998 consent decree awarded appellee a retroactive promotion to a DS-9 staff assistant position and back pay. The court barred further litigation of claims covered by the consent decree, i.e., claims arising between April 1, 1989 - July 22, 1997.
The administrative matter before OHR lay dormant for five years, until September 2003, when OHR issued a Partial Determination on Remand, directing that the record be reopened to make a factual determination as to the amount and nature of the damages owed to appellee. DOC moved to vacate the proceeding, arguing that the claim was precluded by the Bessye Neal settlement. OHR denied the motion to vacate in October 2003 - appellee's claim before OHR arose from acts outside the Bessye Neal decree - and an evidentiary hearing was held in November 2004. In November 2006, OHR issued a recommended decision on the amount of damages owed to appellee. Appellee filed a Proposed Substitute Order and Findings; DOC did not respond to appellee's proposed order.
On June 15, 2007, OHR issued a Final Decision and Order on Damages. OHR ordered DOC to pay appellee retroactive back pay, in step with likely promotions to levels DS-7, DS-9, and DS-11, from October 1, 1988, to August 2001. The Order rejected appellee's request for interest on the back pay award, finding that OHR did "not have authority to issue interest on [the] back pay award" because interest on judgments against the District of Columbia are allowed only "when authorized by law." OHR reasoned that "[t]here has been no law or regulation that authorizes interest on back pay for District employees who file claims against their agency under the Human Rights Act." In so reasoning, OHR contrasted public employees with "private sector employees who pursue their Human Rights Act claim through the District of Columbia Commission on Human Rights," where they "may seek interest on their awards pursuant to 4 DCMR § 21.5 (1995)." Thus, OHR concluded, "[b]ecause [appellee's] claim is not before the Human Rights Commission, she is not eligible to receive interest on any back pay award." Appellee filed a motion for reconsideration of OHR's denial of interest and attorney's fees.
OHR affirmed its order in an August 2, 2007, letter to appellee, which again denied her request for interest on the back pay award and for attorney's fees. Both sides challenged OHR's decision in Superior Court. In its Petition for Review of Agency Decision, DOC argued that OHR's Final Decision was not supported by substantial evidence. In her Cross-Petition, appellee claimed OHR erred in failing to award interest and attorney's fees.
We now come to the subject of this appeal. On February 26, 2009, the Superior Court issued an order partially reversing OHR's Final Decision and Order on Damages. The court determined that OHR's final decision compensating appellee for economic damages (back pay) for sexual discrimination was supported by substantial evidence, and that OHR properly denied attorney's fees to appellee. However, the court reversed OHR's denial of interest on the damages award, ruling that OHR erroneously concluded that it had no authority to award interest. Specifically, the trial court interpreted the phrase "when authorized by law" as used in D.C. Code § 28-3302, as referring to both case law and statutory law, and noted that "the equitable doctrine of making one whole" and case law*fn4 authorized OHR "to award prejudgment interest on a back pay award in cases where it is appropriate to do so." The trial court also found that the award of interest was authorized in light of the broad remedial purpose of the regulatory framework governing appellee's claim, as well as its similarity to Title VII of the Civil Rights Act of 1964, which allows interest on back pay awards. Thus, the court awarded appellee "prejudgment interest at a rate of 4% per annum on each of the back pay awards included in OHR's Final Decision and Order, ...