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Rodriguez v. District of Columbia Office of Employee Appeals

Court of Appeals of Columbia District

August 25, 2016

FLORENTINO RODRIGUEZ, Appellant,
v.
DISTRICT OF COLUMBIA OFFICE OF EMPLOYEE APPEALS, Appellee, and DISTRICT OF COLUMBIA DEPARTMENT OF HUMAN RESOURCES, Intervenor.

          Submitted March 15, 2016

         Appeal from the Superior Court of the District of Columbia (CAP-241-14)

          John F. Pressley, Jr., was on the brief for appellant.

          Lasheka Brown Bassey filed a statement in lieu of brief on behalf of appellee.

          Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief for intervenor.

          BEFORE: Glickman and Thompson, Associate Judges; and Ferren, Senior Judge.

         JUDGMENT

         This case was submitted to the court on the transcript of record and the briefs filed, and without presentation of oral argument. On consideration whereof, and for the reasons set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that the decision of the Superior Court is reversed; the decision of the Office of Employee Appeals ("OEA") is vacated; and the matter is remanded for further proceedings not inconsistent with this opinion.

          Thompson, Associate Judge.

         Florentino Rodriguez ("appellant" or the "Employee") challenges a decision of the District of Columbia Office of Employee Appeals ("OEA") that upheld his termination from his position as an Urban Park Ranger with the District of Columbia ("District") Department of Parks and Recreation after he failed a random drug test. He contends, inter alia, that his termination was improper because, in violation of the applicable collective bargaining agreement (the "CBA"), the District's personnel agency, the District of Columbia Department of Human Resources ("DHR" or the "Agency"), failed to provide notice to Local 2741 of the American Federation of Government Employees ("Union") (the union for appellant's bargaining unit) within forty-five business days of the date when the Agency knew or should have known of the act or occurrence that triggered the termination. We need not reach appellant's other arguments because we agree with him that Article 24, Section 2.2 of the CBA precluded his termination in light of the Agency's failure to give timely notice to the Union. Accordingly, we reverse the decision of the Superior Court, vacate the OEA decision, and remand for further proceedings not inconsistent with this opinion.

         On April 20, 2010, appellant submitted to a random drug test that the Agency conducted pursuant to the Child and Youth, Safety and Health Omnibus Amendment Act of 2004 ("CYSHA).[1] On or about May 25, 2010, the Agency received the final test results: appellant's urine tested positive for marijuana. On June 30, 2010, the Agency served appellant with a notice of proposed adverse action, announcing that it planned to terminate his employment because the drug test revealed marijuana in his system. The notice informed appellant that he had a right to respond to the notice, to provide statements or documents in support of his response, and to be represented. Appellant obtained legal representation and filed a written response to the notice, asserting that (1) he had not smoked marijuana but had inhaled second-hand marijuana smoke, which he asserted caused the positive drug test results, (2) the results of the drug tests were reported incorrectly, and (3) his use of legal prescriptions and over-the-counter drugs led to a "false positive."

         On July 21, 2010, a DHR Hearing Officer issued his report and recommendation. He determined that appellant's argument and supporting documents failed to "outweigh[] or call[] into question the recent drug test results[, ]" which "accurately reflect[ed] the presence of marijuana in Employee's urine[, ]" and that the preponderance of evidence "support[ed] the existence of the cause for Employee's termination." The Hearing Officer concluded nevertheless that the proposed adverse action was precluded. He noted that under Article 24, Section 2.2 of the CBA, both the employee and the Union must be given notice of potential adverse actions, and that "[a]lthough the employee received the [n]otice, it does not appear that notice was provided to Employee's union." The Hearing Officer further noted that the CBA provides that "[t]he failure of Employer to issue such notice shall preclude the discipline pursuant to law."

         On August 9, 2010, Karla Kirby, the DHR Deciding Official, issued her notice of final decision to remove appellant from his position. Deciding Official Kirby rejected the Hearing Officer's recommendation that adverse action was precluded. She reasoned that termination was permissible because appellant did not raise in his response the issue of a violation of the CBA for failure to notify the Union, and because "[t]here is no evidence in the record which indicates that there was a violation of the CBA with respect to notification to the union." Kirby characterized the Hearing Officer's finding that the CBA was violated as "conclusory and not supported by any facts or evidence in the record." She further reasoned that, even assuming that no separate notification was given to the Union, service of notice to appellant, a member of the Union, constituted sufficient notice to the Union, and also that there was "no evidence that the employee suffered any diminution of his rights in this case[, ]" as he was "ably represented in this matter by his attorney[.]" In addition, Deciding Official Kirby agreed with the Hearing Officer's assessment that there was "no justification for the presence of [m]arijuana in the employee's system." She determined that appellant should be removed from his position effective August 28, 2010.

         On September 24, 2010, appellant filed a Petition for Appeal with the OEA, challenging DHR's decision to terminate his employment. Senior Administrative Judge Joseph E. Lim (the "ALJ") issued his decision on December 19, 2013. The ALJ found that appellant tested positive for marijuana use; that appellant's challenge to the drug test results was without merit; that there was "no evidence that the Agency gave notice of its proposed adverse action to [the] Union"; and, more definitively, that the Agency "did not provide [the] Union a notice of the proposed action." He also concluded that it "appear[ed] that [the] Agency violated Article [24, Section 2.2] of the CBA." The ALJ then considered whether the Agency's failure to give the required prior written notice to the Union precluded appellant's termination. The ALJ noted that appellant did not make any arguments about a CBA violation in response to the notice he received even though he had received an extension of time to respond and thereafter responded through an attorney. "Therefore, " the ALJ concluded, "although [the] Agency violated the CBA, it does not appear that it harmed Employee." Applying "the OEA's [r]ule for harmless error, "[2] the ALJ determined that the violation was harmless because "it did not affect Employee's substantial rights, did not affect [the] Agency's decision, and did not affect Employee's presentation of his defense so that a different decision could have been reached."[3] Having determined that the penalty of removal was within the range allowed by law and regulations, the ALJ upheld the Agency's action.

         On January 14, 2014, appellant filed in the Superior Court a petition for review of the OEA decision. On July 29, 2015, the Honorable Robert Okun issued an order denying Rodriguez's petition. Citing the OEA's harmless error regulation as well as Harding and Cornelius, Judge Okun agreed with the OEA that the Agency was "not precluded from terminating [appellant's] employment because the failure to provide notice to [the] Union was harmless error[.]" Judge Okun "accord[ed] great weight" to the OEA decision and noted that appellant had not "shown that he would have received different discipline had the Union been ...


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