April 20, 2017
from the Superior Court of the District of Columbia
(CAP-278-12) (Hon. Judith N. Macaluso, Trial Judge)
A. Branch for appellant.
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.
McLeese, Associate Judge, and Washington and Farrell, Senior
FARRELL, SENIOR JUDGE
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
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."
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,  concluded that the alleged defects in the
RIF procedures,  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.
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).
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 ...