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Johnson v. District of Columbia Department of Health

Court of Appeals of Columbia District

July 6, 2017

Karleane Johnson, Appellant,
v.
District of Columbia Department of Health, et al., Appellees.

          Argued April 20, 2017

         Appeal from the Superior Court of the District of Columbia (CAP-278-12) (Hon. Judith N. Macaluso, Trial Judge)

          David A. Branch for appellant.

          Holly M. Johnson, Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and Donna M. Murasky, Senior Assistant Attorney General, were on the brief for appellee District of Columbia Department of Health.

          Before McLeese, Associate Judge, and Washington and Farrell, Senior Judges.

          FARRELL, SENIOR JUDGE

         Karleane Johnson appeals from the Superior Court's affirmance of a decision by the Office of Employee Appeals (OEA) upholding her separation from the District of Columbia Department of Health (DOH) as part of a July 2009 reduction in force (RIF). Appellant challenges both the OEA's determination that the RIF was conducted pursuant to the Abolishment Act, D.C. Code § 1-624.08 (2012 Repl), and the legality of the RIF under the general RIF statute, D.C. Code §§ 1-624.01 to .04. Specifically, appellant argues that the RIF was not based on an actual budgetary crisis and that DOH failed to meet procedural requirements of the statute. We affirm.

         I.

         Appellant worked for DOH as a clerical assistant in the Addiction Prevention and Recovery Administration (APRA). On July 28, 2009, the director of the District of Columbia Department of Human Resources (DCHR) proposed a "realignment" of DOH. On July 31 the director authorized administrative orders dated July 27 implementing RIFs for various parts of DOH because of "Lack of Funds." DCHR also created a retention register on July 31 that included appellant's position among those to be abolished and appellant received notice on the same day of the impending RIF, listing her effective termination date as September 4, 2009. On August 13, the DCHR director issued an amended administrative order for the RIF in which, instead of selecting DOH as a whole as the subject of the RIF, the director selected particular areas within the agency, thereby creating "lesser competitive areas, " see 6-B DCMR § 2409.2 (2008), including the APRA. The RIF applied to all nine clerical assistant positions in the APRA. The amended order, like the July 31 orders, stated that the RIF was based on a "Lack of Funds."

         Following her termination, appellant appealed to the OEA and challenged numerous aspects of her termination, namely that: 1) DOH had not adequately shown that the RIF was due to a lack of funds; 2) appellant's separation was invalid because appellant had been notified of her termination before the RIF approval; 3) DOH had not considered job sharing or other alternatives to the RIF; 4) DOH had not properly provided appellant with one round of lateral competition; 5) DOH was not authorized to define a lesser competitive area; and 6) DOH had erroneously asserted that the RIF was conducted under the Abolishment Act. The OEA, although providing appellant with limited relief because DOH had not given her proper notice of her termination, [1] concluded that the alleged defects in the RIF procedures, [2] chiefly the failure to provide a round of lateral competition, entitled appellant to no relief because all positions within appellant's competitive area at her competitive level had been abolished. Further, the OEA ruled that it did not have authority to "decide whether there was in fact a bona-fide budget crisis" giving rise to the RIF. Appellant unsuccessfully petitioned the Superior Court for review of the OEA's decision, then filed this appeal.

         II.

         This court "review[s] 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." Stevens v. District of Columbia Dep't of Health, 150 A.3d 307, 312 (D.C. 2016) (internal quotation marks omitted).

         The District in light of the decision in Stevens, supra, rightly concedes error in the OEA's determination that the RIF was governed by the Abolishment Act, not the general RIF statute. See Stevens, 150 A.3d at 317-18. Appellant argues, accordingly, that at the least we should remand this case to the OEA to determine whether DOH complied with the general RIF statute. A remand would be warranted, however, only if this court found facial merit in appellant's challenge to the OEA's refusal to review DOH's determination that the RIF ...


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