November 16, 2018
from the Superior Court of the District of Columbia
(CAP-4119-16) (Hon. Jeanette J. Clark, Associate Judge) (Hon.
Robert R. Rigsby, Associate Judge). 
A. Branch for appellant.
E. Pittman, Assistant Attorney General, with whom Karl A.
Racine, Attorney General for the District of Columbia, Loren
L. Alikhan, Solicitor General, and Stacy L. Anderson, Acting
Deputy Solicitor General, were on the brief, for appellee.
Glickman and Easterly, Associate Judges, and Steadman, Senior
EASTERLY, ASSOCIATE JUDGE:
Yordanos Sium challenges her termination for cause by the
Office of the State Superintendent of Education
("OSSE"). We first conclude that Ms. Sium's
failure to file an appeal to the Office of Employee Appeals
("OEA") within thirty days, as specified in D.C.
Code § 1-606.03(a) (2016 Repl.), did not deprive OEA of
jurisdiction to hear her case. We further conclude that,
because the OEA Administrative Law Judge ("ALJ")
decided not to conduct an evidentiary hearing even though the
parties' briefing disputed material facts, the OEA Board
abused its discretion in denying Ms. Sium's petition for
review. We therefore vacate and remand.
Sium worked as a school bus driver for OSSE. In January 2011,
her bus made contact with an illegally parked vehicle. She
did not exit her bus and instead left the scene. The
incident, which was recorded on videotape, was reported to
OSSE, and an investigator interviewed Ms. Sium the following
day. According to the investigator's report, Ms. Sium
initially told the investigator that she had not made contact
with the illegally parked vehicle, but after the investigator
informed her that she had been seen making contact, she
"changed her story" and apologized. OSSE cleared
Ms. Sium to return to work about a week after the collision.
Almost three months after the incident, OSSE sent Ms. Sium a
notice of proposed termination. It then informed Ms. Sium that
she was terminated for cause in mid-April 2011. By statute, Ms.
Sium had thirty days to appeal her termination to OEA,
see D.C. Code § 1-606.03(a), although OSSE did
not specify this in its termination letter. Ms. Sium filed
her pro se appeal in August 2013, using what appears to be an
OEA form. No question on the form asked if Ms. Sium wanted an
moved to dismiss Ms. Sium's OEA appeal, asserting her
failure to file within the requisite thirty-day timeframe
deprived OEA of jurisdiction. The OEA ALJ did not explicitly
rule on this motion and instead ordered briefing on the
merits. In its brief, OSSE explained that the Division of
Transportation had justifiably terminated Ms. Sium after
"conclud[ing] that Ms. Sium's behavior, including
hitting a parked car, fleeing the scene, and lying to the
investigator, presented a threat to the efficiency and
discipline of the school system." The agency also
asserted that this was Ms. Sium's second
"preventable" collision within twelve months,
although it provided no detail about the earlier incident and
engaged in no analysis of why either collision was, in its
view, "preventable." In her pro se brief in
response, Ms. Sium argued inter alia that OSSE had
"cleared" her after the January 2011 collision and
permitted her to return to work. She further asserted that
"[c]ritical facts" alleged by OSSE had not been
"determined conclusively" in its investigation; in
particular, she challenged the assertions that she had been
aware of the collision at the time, that she had fled the
scene, and that she had lied to the investigator. Instead,
she asserted that she had accepted responsibility only after
she was informed by the investigator that she had made
contact with the other vehicle.
ALJ issued a written decision in October 2014 upholding Ms.
Sium's termination. In one sentence of her decision, the
OEA ALJ acknowledged her ability to hold an evidentiary
hearing, but stated that, "[a]fter considering the
parties' arguments," she had determined that an
evidentiary hearing was unnecessary.
Sium then filed pro se a petition for review with the OEA
Board. Among other arguments, Ms. Sium asserted that there
were disputed issues of fact and argued that the OEA ALJ had
thus erred in her decision "not to conduct an
[e]videntiary [h]earing." In its May 2016 order denying her
petition for review, the OEA Board rejected this argument.
The OEA Board "relie[d] on OEA Rule 624.2 which provides
that 'if the Administrative Judge grants a request for an
evidentiary hearing, or makes his or her own determination
that one is necessary, the Administrative Judge will so
advise the parties . . ., '" and concluded that
"[t]hus, it is the Administrative Judge's
prerogative to hold an evidentiary hearing when it is deemed
necessary." Ms. Sium unsuccessfully sought review of the
OEA Board's decision in Superior Court. This appeal
court reviews agency decisions on appeal from the Superior
Court the same way we review administrative appeals that come
to us directly. Thus, in the final analysis, confining
ourselves strictly to the administrative record, we review
the OEA [Board]'s decision, not the decision of the
Superior Court . . . ." Stevensv. District
of Columbia Dep't of Health, 150 A.3d 307, 311-12
(D.C. 2016) (citation and internal quotation marks omitted).
Before we may ...