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Stevens v. District of Columbia Department of Health

Court of Appeals of Columbia District

December 15, 2016

Vilean Stevens & Ike Prophet, Appellants,
v.
District of Columbia Department of Health, Appellee.

          Argued October 4, 2016

          Appeal from the Superior Court of the District of Columbia (CAP-3345-10) Hon. Joan Zeldon, Trial Judge.

          David A. Branch for appellants.

          Holly M. Johnson, Assistant Attorney General, with whom 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 appellee.

          BEFORE: Fisher and Thompson, Associate Judges; and Pryor, Senior Judge.

         JUDGMENT

         This case came to be heard on the transcript of record and the briefs filed, and was argued by counsel. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that the judgment on appeal is affirmed.

          Thompson, Associate Judge

         Appellants Vilean Stevens and Ike Prophet appeal from a judgment of the Superior Court that affirmed decisions by the District of Columbia Office of Employee Appeals ("OEA") upholding the abolishment, through a reduction-in-force ("RIF"), of positions that appellants held at appellee District of Columbia Department of Health ("DOH" or the "Agency"). For the reasons that follow, we agree with the OEA (and with the Superior Court) that the RIF was governed by the Abolishment Act, D.C. Code § 1-624.08 (2006 Repl.) (sometimes hereafter referred to as the "Act"), rather than by the so-called general RIF statute, D.C. Code §§ 1-624.02 - .07 (2006 Repl.). We also conclude that substantial evidence supports the OEA's determination that DOH satisfied the procedural requirements of the Abolishment Act in implementing the RIF. We therefore affirm the judgment.

         I. Background

         Until the RIF that is the subject of the parties' dispute, appellants worked in the Commodity Supplemental Food Program ("CSFP") of the DOH Community Health Administration, Nutrition and Physical Fitness Bureau.[1] By letter dated December 29, 2008, the Director of DOH sent each of the appellants a notice of separation by RIF. The letter stated that it "serve[d] as official notice of at least thirty (30) calendar days" that appellants would be separated from service effective January 30, 2009, "in accordance with Chapter 24 of the District's Personnel Regulations[.]" The letter further informed appellants that, inter alia, they had a right to appeal to the OEA.

         Appellants appealed to the OEA, contending that DOH (1) undertook the RIF pursuant to the general RIF statute, D.C. Code § 1-624.02, rather than pursuant to the Abolishment Act, D.C. Code § 1-624.08, and (2) did so without complying with the regulatory requirements applicable to RIFs conducted under the general RIF statute. Appellants contended in addition that DOH's stated reason for the RIF - "[l]ack of [f]unds" - was contrived and a pretext for outsourcing. Appellants further contended that they were not provided one round of lateral competition.

         In substantially identical initial decisions on appellants' appeals, the OEA concluded that its decision was "guided solely" by the Abolishment Act, which limited the issues appellants could bring to whether they were afforded the thirty days' prior written notice of separation required by the Act and whether each was afforded one round of lateral competition within his or her competitive level. The OEA found that both appellants were properly afforded thirty days' written notice, that "the entire unit in which [appellants'] position[s were] located was abolished, " and that DOH also "was in compliance with the lateral competition requirements of the law." In addition, the OEA ruled that it lacked jurisdiction to determine whether the RIF was "bona fide or violated any [other] law."

         Appellants sought review by the Superior Court, which consolidated their cases and affirmed the OEA's initial decisions in part and remanded in part. The court affirmed, as supported by substantial evidence, the OEA's determination that no lateral competition was required because appellants' "entire unit was RIFed." The court remanded the matter to the OEA, however, to explain "why the RIF fell within the Abolishment Act and not the general RIF provision." The court issued an amended order reasoning that the OEA "does have jurisdiction to consider the question of whether the RIF at issue was a sham" and expanding the scope of the remand for the OEA to consider "whether [appellants'] sham RIF arguments are frivolous or non-frivolous."

         In an "Addendum Decision on Remand, " the OEA ruled that it was "primarily guided" by the Abolishment Act for "RIFs authorized due to budgetary restrictions." It asserted that the Act "was enacted specifically for the purpose of addressing budgetary issues resulting in a RIF" and observed that the Act "is a more streamlined statute for use during times of fiscal emergency." Citing this court's decision in Washington Teachers' Union, Local # 6 v. District of Columbia Pub. Sch. ("WTU"), 960 A.2d 1123 (D.C. 2008), the OEA noted this court's statement that the RIF involved in that case, which was implemented "to ensure balanced budgets, " "triggered the Abolishment Act provisions." Id. at 1132. The OEA also reasoned that the "notwithstanding" language of the Act's third paragraph, D.C. Code § 1-624.08 (c) ("Notwithstanding any rights or procedures established by any other provision of this subchapter, any District government employee, regardless of date of hire, who encumbers a position identified for abolishment shall be separated without competition or assignment rights, except as provided in this section.") "suggests that [the Act] is the more applicable statutory provision in order to conduct RIFs resulting from budgetary constraints." Further, the OEA determined that appellants' "arguments relative to the instant RIF being a sham are FRIVOLOUS." It found that appellants had "failed to proffer any credible argument(s) or evidence that would indicate that the RIF was improperly conducted or implemented" and that there were no material facts in dispute warranting an evidentiary hearing. The Superior Court affirmed the OEA's Addendum Decision on Remand.

         In the instant appeal, appellants contend that the RIF was not conducted due to a lack of funds or budgetary constraints and that the OEA therefore erred in concluding that the RIF was governed by the Abolishment Act rather than by the procedural requirements of the general RIF statute and its implementing regulations. Appellants argue in the alternative that even if the cause of the RIF was a "budgetary concern, " the OEA erred in assuming either (1) that the Abolishment Act replaced the general RIF statute, such that the Act governs all government agency RIFs, or (2) that any RIF undertaken because of a budgetary concern is an Abolishment Act RIF. Appellants contend that the OEA was required to consider the "intent and procedures used" in the RIF, factors that they assert show that the DOH RIF "was clearly intended to be conducted under the [general] RIF statute." Appellants also argue that the case should be remanded because the OEA failed to hold an evidentiary hearing and make factual findings resolving what they contend are material issues of disputed fact. Appellant Stevens argues in addition that the OEA erred in holding that there was no violation of the one-round-of-lateral-competition requirement. We address each of these claims in turn.

         II. Applicable Law

         A. This court's standard of review in OEA cases

         This court "review[s] agency decisions on appeal from the Superior Court the same way we review administrative appeals that come to us directly." Dupree v. District of Columbia Dep't of Corr., 132 A.3d 150, 154 (D.C. 2016). "Thus, in the final analysis, confining ourselves strictly to the administrative record, we review the OEA's decision, not the decision of the Superior Court, and we must affirm the OEA's decision so long as it is supported by substantial evidence in the record and otherwise in accordance with law." Id. (internal quotation marks omitted). "Questions of law, including questions regarding the interpretation of a statute or regulation, are reviewed de novo." Id.

         B. The general RIF statute and the Abolishment Act

         Both the general RIF statute, D.C. Code §§ 1-624.01 through 624.07, and the Abolishment Act, D.C. Code § 1-624.08, are found in Subchapter XXIV of the Comprehensive Merit Personnel Act ("CMPA"), entitled "Reductions-in-Force." The general RIF statute "embod[ies] broader RIF procedures than those found in the Abolishment Act[.]" WTU, 960 A.2d at 1134.

         The general RIF statute authorizes the Mayor (and the District of Columbia Board of Education) to "issue rules and regulations establishing a procedure for the orderly . . . termination of employees[, ]" D.C. Code § 1-624.01 (2006 Repl.), and sets out a list of RIF procedures. Id. § 1-624.02. The Mayor has adopted implementing regulations that are set out in Chapter 24 of the District of Columbia Personnel Manual, 6B DCMR § 2400-99.[2] 6B DCMR § 2401.1 provides that each personnel authority is to follow these regulations "when releasing a competing employee from his or her competitive level when the release is required by . . . (a) [l]ack of work; (b) [s]hortage of funds; (c) [r]eorganization or realignment; or (d) [t]he exercise of restoration rights [in connection with homeless veterans reintegration programs]."

The Abolishment Act provides as follows:
§ 1-624.08. Abolishment of positions for fiscal year 2000 and subsequent fiscal years.
(a) Notwithstanding any other provision of law, regulation, or collective bargaining agreement either in effect or to be negotiated while this legislation is in effect for the fiscal year ending September 30, 2000, and each subsequent fiscal year, each agency head is authorized, within the agency head's discretion, to identify positions for abolishment.
(b) Prior to February 1 of each fiscal year, each personnel authority (other than a personnel authority of an agency which is subject to a management reform plan under subtitle B of title XI of the Balanced Budget Act of 1997) shall make a final determination that a position within the personnel authority is to be abolished.
(c) Notwithstanding any rights or procedures established by any other provision of this subchapter, any District government employee, regardless of date of hire, who encumbers a position identified for abolishment shall be separated without competition or assignment rights, except as provided in this section.
(d) An employee affected by the abolishment of a position pursuant to this section who, but for this section would be entitled to compete for retention, shall be entitled to one round of lateral competition pursuant to Chapter 24 of the District of Columbia Personnel Manual, which shall be limited to positions in the employee's competitive level.
(e) Each employee selected for separation pursuant to this section shall be given written notice of at least 30 days before the effective date of his or her separation.
(f) Neither the establishment of a competitive area smaller than an agency, nor the determination that a specific position is to be abolished, nor separation pursuant to this section shall be subject to review except that:
(1) An employee may file a complaint contesting a determination or a separation pursuant to subchapter XV of this chapter or § 2-1403.03; and
(2) An employee may file with the Office of Employee Appeals an appeal contesting that the separation procedures of subsections (d) and (e) were not properly applied.
(g) An employee separated pursuant to this section shall be entitled to severance pay in accordance with subchapter XI of this chapter, except that the following shall be included in computing creditable service for severance pay for employees separated pursuant to this section:
(1) Four years for an employee who qualified for veterans preference under this chapter, and
(2) Three years for an employee who qualified for residency preference under this chapter.
(h) Separation pursuant to this section shall not affect an employee's rights under either the Agency Reemployment Priority Program or the Displaced Employee Program established pursuant to ...

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