DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT, APPELLANT,
DISTRICT OF COLUMBIA OFFICE OF EMPLOYEE APPEALS AND JAMES O'BOYLE, APPELLEES
Argued January 28, 2014.
Amended May 22, 2014.
Appeal from an Order of the Superior Court of the District of Columbia. (MPA-2048-10). (Hon. Brian F. Holeman, Trial Judge).
Holly M. Johnson, Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for appellant.
Robert E. Deso for appellee James O'Boyle.
Lasheka Brown Bassey filed a statement in lieu of brief for appellee District of Columbia Office of Employee Appeals.
Before FISHER and THOMPSON, Associate Judges, and PRYOR, Senior Judge.
Pryor, Senior Judge :
Appellant, District of Columbia Metropolitan Police Department (M PD), appeals the decision of the D.C. Superior Court affirming the District of Columbia Office of
Employee Appeals (OEA) order on remand from the OEA Board that reversed appellee James O'Boyle's termination from MPD and reduced his four-month suspension without pay to twenty days. On appeal, appellant first argues that the OEA erred as a matter of law when it held that the " indefinite suspension without pay" and subsequent termination of appellee constituted unlawful " double punishment" for his driving while intoxicated (" DWI" ) arrest and conviction. Second, appellant argues that the OEA abused its discretion when it found that appellant had not legitimately distinguished appelle from other MPD members arrested and convicted of DWI or driving under the influence of alcohol (DUI) who had not been terminated. We reverse and remand for further proceedings consistent with this opinion.
On April 5, 2004, while off-duty, appellee was driving his personal vehicle when he struck another motorist in Virginia and was arrested for driving while intoxicated (" DWI" ), with a blood-alcohol content of .27--more than three times the legal limit. The day after the arrest, appellee entered voluntary leave-without-pay status with MPD to pursue treatment for his alcohol addiction, which consisted of a five-day, in-hospital program, and twenty-seven days residential treatment program.
On July 21, 2004, appellee was tried and convicted of DWI and sentenced to 180 days in jail with 170 days suspended, his driver's license was suspended for a year, and he was fined $500. Appellee was incarcerated for ten days. On August 11, 2004, MPD served appellee with advance notice of its intent to change his status from voluntary leave without pay to " Indefinite Suspension Without Pay pending the final outcome of this case." Appellee appealed to MPD, but his appeal was denied on August 30, 2004, and the suspension went into effect on September 14, 2004. MPD's final notice of suspension advised appellee that he could appeal the suspension to the Chief of Police and also pursue arbitration or appeal to OEA. The record does not reveal that appellee pursued these options.
On September 22, 2004, M PD completed its investigation of appellee, concluding that he should be cited for adverse action, and on November 8, 2004, it served appellee with advance notice of termination. Appellee was advised that he could request a hearing, but he did not request a hearing, offer any mitigating evidence, or contest the facts of MPD's investigative report. On December 3, 2004, M PD concluded, based on the evidence in its report, that appellee's conduct warranted his termination.
On December 15, 2004, appellee appealed his termination to the Chief of Police, arguing that discipline following his suspension without pay amounted to an impermissible second disciplinary action for the same conduct and that his discipline was disproportionate to that imposed on other similarly situated MPD officers. The Chief of Police denied the appeal and set appellee's discharge to be effective January 8, 2005. On February 1, 2005, appellee appealed his termination to the OEA, reiterating his arguments as stated earlier. On October 17, 2006, the OEA upheld the termination, finding that the suspension was only an interim measure, not disciplinary, and that appellee was not similarly situated to the other MPD employees convicted of DUI or DWI.
On appeal, the OEA Board reversed and remanded the OEA's decision, finding that " suspension of an Employee without pay is a disciplinary adverse action," and that appellee's " subsequent termination ...