Darryl Love and Alphonso Bryant v. District of Columbia Office of Employee Appeals and District of Columbia Department of Corrections , 2014 D.C. App. LEXIS 157 ( 2014 )

Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 12-CV-1514 & 12-CV-1544
DARRYL LOVE AND ALPHONSO BRYANT, APPELLANTS,
v.
DISTRICT OF COLUMBIA OFFICE OF EMPLOYEE APPEALS AND
DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS, APPELLEES.
Appeals from the Superior Court
of the District of Columbia
(CAP-6180-09 & CAP-6181-09)
(Hon. Mary Ellen Abrecht, Senior Judge)
(Argued January 30, 2014 Decided May 8, 2014)
J. Michael Hannon for appellants.
Jason Lederstein, Assistant Attorney General, with whom Irvin B. Nathan,
Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and
Donna M. Murasky, Deputy Solicitor General, were on the brief, for appellee
District of Columbia Department of Corrections.
Lasheka Brown Bassey Filed a statement in lieu of brief for D.C. Office of
Employee Appeals.
Before GLICKMAN and EASTERLY, Associate Judges, and FERREN, Senior
Judge.
FERREN, Senior Judge: We review here a judgment of the Superior Court
affirming a decision by the Office of Employee Appeals (OEA), which upheld the
2
firing of two correctional treatment specialists (Specialists), appellants Alphonso
Bryant and Darryl Love, by the District of Columbia Department of Corrections
(DOC). We sustain the findings of appellants‟ negligence in connection with the
escape of two prisoners from the D.C. Jail, but we reverse and remand the case for
further proceedings to determine the appropriate penalties.
I.
The Escape
The DOC decision to fire appellants arose out of a sensational jail escape.
On June 3, 2006, inmates Joseph Leaks and Ricardo Jones escaped from the
Central Detention Facility (commonly called the D.C. Jail). Leaks was working,
unsupervised, on a cleaning detail, when he used his work-detail identification
badge to enter a cleaning supply closet. He took a commercial floor buffer and
then met Jones, who had used a work-detail badge belonging to a different inmate.
The pair changed from orange jumpsuits into blue clothing usually given to
inmates upon release. They then used the large buffer to break into the warden‟s
second floor office and smash the window leading out of the jail. They slid down a
canopy and soon caught a Metro train for a brief taste of freedom before they were
apprehended the next day without incident.
3
At the time, Leaks and Jones were among the most dangerous offenders
housed at the D.C. Jail. Jones was awaiting two separate trials for attempted
murder and first-degree murder, while Leaks was in jail awaiting trial as an
accessory to Jones‟s alleged first-degree murder. Leaks was also being held under
a twelve-year sentence on a conviction for violation of his 2003 parole from a
twenty-four year sentence for violent crimes. Jones and Leaks were each subject
to a separation order notifying correctional officers not to house them in the same
facility because of their alleged linkage in the first-degree murder case. (Thus,
both should not have been confined in the D.C. Jail.) The hard copy of the file
with the separation order was missing from the D.C. Jail at the time but was
available to DOC staff electronically.
Bryant’s and Love’s Responsibilities and Allegedly Negligent Conduct
As Specialists, Bryant and Love were responsible, respectively, for
screening inmates for unsupervised work details and for classifying inmates based
on security risk. For part of his work-eligibility screenings, Bryant used the Non-
Industrial Pay System (NIPS). NIPS disqualifies convicted felons with total
sentences exceeding five years; inmates subject to a separation order; parole
violators with more than two years remaining before release; and inmates with an
outstanding detainer.
4
Love‟s job involved classifying a new inmate within three days of entry to
the jail and reclassifying an inmate every sixty to ninety days thereafter. A
Specialist‟s classification determines the inmate‟s security status as minimum,
medium, or maximum based on a ten-point grading system that accounts for: the
severity of the current offense; the severity of prior convictions; any history of
escapes or escape attempts; and any history of institutional violence. Inmates
classified as minimum or medium security are eligible for work details, but DOC
prohibits maximum security inmates from working at the jail. Specialists base
classifications and reclassifications on a point system established in Chapter Two
of the DOC Technical Reference Manual, which requires that an inmate with ten
points or more be classified as maximum security.
Bryant and Love appear to have been model employees until the escapes,
whereupon DOC cited several instances of negligent conduct by each that
allegedly contributed to the Jones and Leaks elopements.1 Only two of these
1
DOC alleged the following negligent actions by Bryant: failure to
properly screen Leaks for work eligibility using the NIPS Personnel Action Form;
failure to review the inmates‟ files; failure to properly apply the eligibility
requirements for convicted felons (with parole detainer); failure to note a
separation order; and failure to note escape history. DOC alleged these negligent
actions by Love: failure to properly reclassify Leaks considering his history of
escapes; failure to follow the point system according to Chapter Two of the
(continued . . .)
5
allegations—one applicable to each appellant—are relevant to this appeal: that (1)
Bryant had found Leaks eligible for work-detail despite the twelve years remaining
on his sentence; and that (2) Love had classified Leaks as only a medium security
risk without factoring into the classification Leaks‟s 1992 attempted escape from
jail.
Bryant later explained that he had not been aware that Leaks had more than
five years remaining on a sentence because Leaks‟s file reflected that he had
completed his sentence and was only in jail waiting determination of his status for
violating parole. Love also had an excuse. He explained that he had not
considered Leaks‟s history of escape because Leaks had only been arrested for, not
convicted of, an attempted escape in 1992, and Love believed that his duty was
limited to counting only convictions.
Despite the recapture of Leaks and Jones within twenty-four hours, the jail
break was a public embarrassment for DOC, which responded by immediately
suspending thirteen employees, including Bryant and Love, for negligence.
(. . . continued)
Technical Reference Manual on reclassifications; and failure to properly score
Leaks‟s parole violation considering the underlying assault charge.
6
II.
Office of Administrative Hearings—First Review (2007)
At a press conference on July 26, 2006, DOC Director Devon Brown and
other District of Columbia officials announced that eleven of the suspended DOC
employees, including appellants, had been fired for neglecting their duties and
contributing to the jail break. After these summary removals, Director Brown
entered into a Memorandum of Understanding with the Office of Administrative
Hearings (OAH) whereby an OAH administrative judge would conduct a hearing
to review these terminations in accordance with Chapter Sixteen of the District of
Columbia Personnel Manual and the Collective Bargaining Agreement between
DOC and the Fraternal Order of Police.
After the hearing, OAH issued a “Report and Recommendation” concluding
that the terminations could not be sustained and recommending that DOC reinstate
all the fired employees. Brown disagreed, so he requested that OAH reconsider.
On February 5, 2007, a multi-judge OAH panel held another administrative
hearing, after which the panel issued findings similar to those of the first
administrative judge and again rejected the terminations. Brown maintained his
disagreement and refused to issue a final decision. On March 12, 2007, the fired
employees petitioned this court for a writ of mandamus compelling Director
7
Brown to reinstate them.2 Four days later, Brown rescinded the employees‟
summary removals, in order to avoid a ruling by this court on the requested writ,
but the very next day he served the employees with new notices of proposed
terminations based on the same charges.
Dr. Lesansky’s Recommendations (2007)
Brown appointed a DOC employee, Henry R. Lesansky, Ph.D., as the new
hearing officer for the proposed terminations.3 Dr. Lesansky held hearings for
Bryant and Love on July 9, 2007, and on September 25 recommended upholding
the terminations. While DOC‟s final decision was pending, appellants and several
other employees sought compensatory, injunctive, and declaratory relief in federal
court alleging a denial of civil rights protected under 42 U.S.C. § 1983 (2001).
The U.S. District Court for the District of Columbia granted DOC‟s motion to
dismiss4 based on the terms of the collective bargaining agreement and the
2
See Washington v. District of Columbia Dep’t of Corrections, App. No.
07-OA-14, denied as moot April 25, 2007.
3
Appellants state in their brief that “Dr. Lesansky was not an „independent‟
hearing officer as promised to Bryant and Love in their August 24, 2006 Notices of
Removal, and guaranteed by D.C. Law.” Appellants cite no authority for this
statement, but DOC does not question it.
4
See Washington v. District of Columbia, 538 F. Supp. 2d 269, 274 (D.D.C.
2008).
(continued . . .)
8
Comprehensive Merit Personnel Act,5 which required the employees to exhaust
administrative remedies through the Office of Employee Appeals (OEA) or a
grievance arbitration.6
Office of Employee Appeals—First Decision (2009)
The aggrieved employees appealed DOC‟s termination decisions to OEA on
January 14, 2008. Almost a year later, during December 2008, Senior
Administrative Judge Lim, assuming jurisdiction under the District‟s
Comprehensive Merit Personnel Act,7 held three days of hearings over the
propriety of nine of the job terminations, including Bryant‟s and Love‟s. For
OEA, Judge Lim issued his first set of findings and conclusions on June 22, 2009.
He overturned all the terminations except those of Bryant and Love, whom he
found negligent with evidence substantial enough to support their terminations of
(. . . continued)
5
D.C. Code §§ 1-601.1 through 1-636.03 (2001).
6
In January 2010, the U.S. District Court for the District of Columbia
denied the employees‟ motion for relief from the court‟s 2008 order dismissing
their civil rights claims, see supra note 4, ruling that the employees were not
entitled to relief while awaiting resolution of administrative proceedings before
OEA contesting propriety of their terminations. See Washington v. District of
Columbia, 680 F. Supp. 2d 183, 186-87 (D.D.C. 2010).
7
See supra note 5.
9
employment.8
Referencing the documents that were indisputably available to Bryant and
Love, Judge Lim found “too many red flags” to justify classifying Leaks as work-
eligible, namely, “lengthy and violent criminal history, escape attempt, violation of
probation, length of sentence remaining, the presence of a separation order, the fact
that Leaks was initially rated as a maximum security risk, etc.” The judge stressed,
in particular, that Bryant and Love had neglected their duties by failing to exercise
due diligence to locate the missing separation order that precluded housing both
Jones and Leaks at the D.C. Jail. Locating that order, wrote the judge—a
responsibility that Bryant, at the hearing, essentially admitted he had9—would have
alerted DOC officers of the need, at the very least, to keep the alleged accomplices
apart, and thus could have prevented their working together to escape.
Furthermore, according to the judge, Love‟s classification of Leaks as medium
8
Judge Lim stated that he based his decision on the testimonies of three
aggrieved employees (Bryant, Love, and Cynthia Washington) and three DOC
officials (Deputy Warden for Support Services, Leona Bennett; Head of DOC
Office of Internal Affairs, Wanda Patten; and Director Devon Brown). The judge
also considered DOC manuals and classification systems as exhibits. The entire
OEA record is substantial and consists of eleven volumes submitted to this court
for review on appeal.
9
During his testimony at the hearing, Bryant had admitted his duty to
review Leaks‟s file, which (the judge found) included a duty to locate the
institutional file containing the separation order.
10
security was negligent, for it made Leaks eligible for work detail and thus allowed
Leaks unsupervised access to the floor buffer that he and Jones had used to break
out. Appellants had therefore created “a potential danger to the public,” said the
judge. In sum, Judge Lim concluded that both Bryant and Love had been
negligent, and that their negligence had contributed to the escapes.
Judge Lim then turned to the proposed penalties. He credited Director
Brown‟s testimony that he had “carefully considered the Douglas factors in coming
up with the appropriate penalty” of termination.10 He then concluded that Brown
had not abused his discretion in terminating appellants‟ employments and affirmed
10
See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06
(M.S.P.B. April 10, 1981). In Douglas, the United States Merit Systems Protection
Board announced twelve factors relevant to determination of an appropriate
penalty for a government employee‟s job-related misconduct, such as: the nature
and seriousness of the offense; the employee‟s job level, past work record, and past
disciplinary record; likely effect of the offense on the employee‟s ability to
perform at a satisfactory level; consistency of proposed penalty with those imposed
for similar offenses and with an applicable agency table of penalties; notoriety of
the offense; impact on agency reputation; clarity of the rules violated; potential for
employee rehabilitation; mitigating circumstances; and adequacy of alternative
sanctions.
In Stokes v. District of Columbia, 502 A.2d 1006, 1010-11 (D.C. 1985), this
court essentially adopted Douglas to aid our review of employment terminations,
reviewed by OEA, under the Comprehensive Merit Personnel Act of 1978, D.C.
Code §§ 1-601.1 through 1-637.2 (1981) (CMPA) (presently codified at D.C. Code
§§1-601.01 through 1.636.03 (2012 Repl.)).
11
the DOC decisions.11
Superior Court—First Review (2010)
Thereafter, Bryant and Love appealed Judge Lim‟s (OEA‟s) decision to the
Superior Court pursuant to D.C. Code § 1-606.03 (d) (2006).12 On March 22,
2011, in separate decisions for each appellant, Judge Abrecht affirmed in part and
reversed in part. She affirmed the OEA ruling that each Specialist had been
negligent but held that DOC‟s decision to terminate Bryant‟s and Love‟s
employments was based on greater negligence than the record supported.
Specifically regarding Bryant, the judge concluded that the only negligence
supported by the record was the “February 14, 2006 approval of Leaks for off-unit
work detail, in spite of the fact that he had more than five years remaining on his
sentence. . . . Substantial evidence does not exist to show that he failed to give
11
See Stokes, 502 A.2d at 1010-11 (“Only if the Agency failed to weigh the
relevant factors or the Agency‟s judgment clearly exceeded the limits of
reasonableness, is it appropriate for [OEA] to specify how the Agency‟s penalty
should be amended. [OEA] is guided in this matter by the principles set forth in
Douglas v. Veterans Administration [supra]”) (quoting Employee v. Agency, 29
D.C. Reg. 4565, 4570 (1982)).
12
Section 1-606.03 (d) provides: “Any employee or agency may appeal the
decision of the Office [of Employee Appeals] to the Superior Court of the District
of Columbia for a review of the record and such Court may affirm, reverse,
remove, or modify such decision, or take any other appropriate action the Court
may deem necessary.”
12
proper attention to other functions of his position.” As to Love, the judge ruled
that the record supported only a finding of negligence for classifying Leaks as a
medium security risk and thus work-eligible despite his escape history.
Accordingly, ruled the judge, OEA had upheld the terminations on several
findings of negligence that lacked evidentiary support. For each appellant, Judge
Abrecht concluded, “this court will remand the penalty matter to the OEA for
reconsideration in light of this court‟s findings of the limited nature of [each
appellant‟s] negligence and the tenuous connection of [each appellant‟s]
negligence to the escapes.” On May 13, 2011, OEA ordered DOC to redetermine
appropriate penalties for appellants‟ respective negligent actions based on the
Superior Court‟s rulings.
Department of Corrections—Reconsideration of Penalties (2011)
Before the next DOC decision, Thomas Hoey replaced Devon Brown as
director. On June 30, 2011, Hoey announced his own Douglas analyses based on
appellants‟ personnel files, their adverse action files, relevant portions of the
testimony before Judge Lim, the exhibits of record, and the judges‟ decisions.
Hoey then compared appellants‟ actions to previous DOC disciplinary actions for
similar misconduct, as well as to the D.C. Municipal Regulations Table of
13
Penalties.
In applying ten of the Douglas factors to Bryant‟s case, Hoey acknowledged
that Bryant had no previous disciplinary history and had above average
performance evaluations before the jail break. He concluded, however, that
Bryant‟s negligence had been a contributing factor to the escape, which
jeopardized public safety and embarrassed DOC. Hoey perceived from the record
a steadfast refusal by Bryant to acknowledge that his approval of Leaks for a work
detail had been a mistake. Then, applying Douglas factor 10, Hoey found from
this refusal that Bryant “lacked potential . . . for rehabilitation.”13 Hoey further
found that termination of Bryant‟s employment would be consistent with previous
terminations, meaning that “[a]ll employees who acted negligently in their duties
that contributed to the escape of two inmates on June 3, 2006 were terminated.”
He also relied on the Table of Appropriate Penalties contained in § 1619.1 of the
District of Columbia Personnel Manual, finding that “termination is an appropriate
penalty for a first offense of this nature.” The director summarized: Bryant had
failed “to engage in the most ordinary of security practices” and had also failed to
“comply with the NIPS Post Orders,” which excluded from work-eligibility those
prisoners with more than five years remaining on their sentence. Bryant‟s actions,
13
See supra note 10.
14
concluded Hoey, had compromised DOC and justified termination of employment
as the “appropriate penalty.”
Hoey conducted a similar analysis of Love, finding that Love, violating his
duty as a Specialist, had failed to account properly for Leaks‟s escape history.
Hoey further found that Love had neglected to use the Technical Reference
Manual properly in classifying Leaks as medium security. “Your miscalculation,
twice, of inmate Leaks as a medium custody inmate” (referring to Love‟s initial
classification and reclassification of Leaks) “and your mistake in accounting for his
criminal history were contributing factors to the escape.” Hoey acknowledged that
Leaks and Jones may have escaped notwithstanding Love‟s miscalculation, but
Hoey found that this did not excuse the mistake. Hoey explained (in language
much like the words he applied to Bryant as well) that Love could not be
rehabilitated as a Specialist:
Your potential for rehabilitation is poor based on your
insistence that you did not incorrectly score inmate
Leaks‟ escape history. You continue to argue, with no
corroboration, that you were correct in scoring inmate
Leaks‟ escape history as a 0 because he had not been
convicted of an escape charge in court. Since you cannot
acknowledge that you incorrectly scored his escape
history, you are not likely to be rehabilitated.
Director Hoey thus concluded that Love‟s misconduct sufficiently justified
15
termination as the appropriate penalty. Love and Bryant thereupon appealed to
OEA the DOC decision to let their employment terminations stand.
Office of Employee Appeals—Second Decision (2011)
On August 10, 2011, Judge Lim reviewed Director Hoey‟s re-imposition of
the termination penalties in light of Hoey‟s revised Douglas factor analyses (based
on the limited negligence findings previously sustained by Judge Abrecht). Judge
Lim relied on the record from the 2008 evidentiary hearing, which he had
conducted and Hoey had used for reconsideration. The only remaining question
before OEA, said the judge, was whether Hoey‟s decision to maintain termination
of employment as a penalty was “within the range allowed by law, regulation, or
guidelines and clearly not an error of judgment.”14 After observing that substantial
evidence supported the earlier findings that each appellant had individually
“neglected his duty to properly reclassify an inmate[,]” which “did play a role” in
the escapes; and after according deference to the DOC director‟s managerial
discretion in personnel decisions, Judge Lim concluded that Hoey “did
conscientiously consider the relevant factors and did strike a responsible balance
within tolerable limits of reasonableness.” He then ruled that DOC‟s termination
14
See Employee v. Agency, OEA Matter No. 1601-0158-81, opinion and
order on petition for review, 32 D.C. Reg. 2915, 2916 (1985).
16
penalty for Bryant‟s and Love‟s respective defaults fell within the tolerable limit
allowed by the Table of Penalties and was not a clear error of judgment.
Superior Court—Second Review of the Penalties
Returning to Superior Court, Love and Bryant challenged OEA‟s
affirmances of DOC‟s termination decisions as abuses of discretion. They argued
that Judge Lim had failed to base his decisions on a sufficient nexus between their
negligent acts and the prison escape. Judge Abrecht resumed her consideration of
these cases and concluded that DOC had properly considered the Douglas factors
in determining that termination was a penalty within reasonable standards of
managerial discretion. She found no abuse of discretion in Judge Lim‟s
“conscientious review” of the record and concluded that substantial evidence
supported DOC‟s determinations. This appeal followed.
III.
Appeal to This Court
Bryant and Love appeal (1) the trial court‟s limited affirmance of Judge
Lim‟s findings in his 2009 decision, which included that Bryant and Love had each
17
been negligent in one respect; and (2) the trial court‟s affirmance of the judge‟s
second OEA decision in 2011, sustaining DOC‟s termination of their
employments. This appeal is the first opportunity for appellants to challenge the
terminations in this court after exhausting their administrative remedies before
DOC and OEA.15 For the following reasons, we conclude that OEA relied on
substantial evidence to support DOC‟s findings of negligence, but we reverse
OEA‟s affirmances of DOC‟s punishments. We agree with appellants that
termination of their employments was arbitrary and capricious because Director
Hoey misapplied Douglas factor 10 when he concluded that appellants lacked the
“potential for rehabilitation.”16 We therefore reverse the termination orders and
remand the case of each appellant to OEA for further proceedings as to their
punishments.
Standard of Review
“Although this appeal comes to us from the Superior Court, our scope of
review is „precisely the same‟ as in administrative appeals that come to us
15
See Fair Care Found., A.G. v. District of Columbia Dep’t of Ins. & Sec.
Regulation, 716 A.2d 987, 993 (D.C. 1998) (holding that an appellant must exhaust
its administrative remedy before seeking judicial review).
16
See supra note 10.
18
directly.”17 Therefore, we owe no deference to the trial court and review its
determinations de novo.18 Our review, moreover, is limited to the administrative
record developed by OEA, and we will affirm its decision “so long as [that
decision] is supported by substantial evidence in the record and otherwise in
accordance with law,”19 including conclusions of law that “follow rationally” from
OEA‟s findings.20
“The OEA reviews the severity of a penalty imposed upon an employee
simply to ensure that the employer properly exercised its managerial discretion.”21
17
Johnson v. District of Columbia Office of Employee Appeals, 912 A.2d
1181, 1183 (D.C. 2006) (quoting Murchison v. District of Columbia Dep’t of
Public Works, 813 A.2d 203, 205 (D.C. 2002)).
18
See Johnson, 912 A.2d at 1183.
19
Settlemire v. District of Columbia Office of Employee Appeals, 898 A.2d
902, 905 n.4 (D.C. 2006) (citing Raphael v. Okyiri, 740 A.2d 935, 945 (D.C.
1999)).
20
Murchison, 813 A.2d at 205; Raphael, 740 A.2d at 945.
21
Jahr v. District of Columbia Office of Emp. Appeals, 19 A.3d 334, 340
(D.C. 2011).
19
Thus, OEA‟s “review of an agency-imposed penalty is essentially to assure that the
agency did conscientiously consider the relevant factors and did strike a
responsible balance within tolerable limits of reasonableness.”22 We will reverse
an OEA decision, however, that we conclude is “arbitrary, capricious, or an abuse
of discretion.”23
Sufficiency of the Evidence of Negligence
Bryant
Bryant argues that the record does not contain evidence sufficient to sustain
Judge Lim‟s 2009 finding that he had been negligent in giving his “February 14,
2006, approval of Leaks for off-unit work detail, in spite of the fact that [Leaks]
had more than five years remaining on his sentence” for violating parole. Judge
Lim based his finding, in part, on the testimony of Leona Bennett, who served as
Deputy Warden for Support Services at the time of the jail escape. Bennett
testified that DOC policy prohibited an inmate with more than five years remaining
on his sentence to serve on work detail. Bennett further testified that Bryant‟s
scrutiny of Leaks‟s file in 2006 should have indicated to a Specialist in Bryant‟s
position that Leaks had a detainer reflecting twelve years remaining on his
22
Stokes, 502 A.2d at 1011; Douglas, 5 M.S.P.R. at 306.
23
Jahr, 19 A.3d at 340 (quoting Bagenstose v. District of Columbia Office
of Employee Appeals, 888 A.2d 1155, 1157 (D.C. 2005)).
20
sentence for convictions of violent crimes. To confirm Bennett‟s testimony, DOC
entered in evidence a letter on which Bennett relied from the U.S. Parole
Commissioner dated August 11, 2005, stating that Joseph Poindexter, a pseudonym
for Leaks, had been sentenced as of September 24, 2003, to 4,383 days (twelve
years) in prison on convictions of violent crimes. DOC also entered in evidence
the NIPS training guide, regularly relied on by Bryant, which explains that a
convicted felon whose sentence exceeds five years is not work-eligible.
On appeal, Bryant argues to the contrary, without evidentiary support,24 that
the only information at his disposal had shown that “Leaks was not serving any
sentence; he was merely being held until a hearing occurred.” Judge Lim,
however, credited Bennett‟s testimony and the documentary evidence over
Bryant‟s explanation and found Bryant negligent—substantially a credibility
finding by an “administrative factfinder” to which we “give great deference.”25
We uphold Judge Lim‟s negligence finding because we agree that the record
24
Bryant cites only his own “Petitioners‟ Brief and Request for Hearing,”
which he has not included in the record on appeal.
25
Hutchinson v. District of Columbia Office of Employee Appeals, 710 A.2d
227, 232 (D.C. 1998) (internal citations omitted).
21
on which he relied contains “substantial evidence”26 that Bryant neglected his duty
by classifying Leaks as work-eligible when Leaks had more than five years left on
his sentence for violent crimes. We note in particular that Bryant acknowledged at
the OEA hearing that the NIPS guidelines applied to him and are used “[t]o ensure
that inmates are properly screened for possible work detail.” Bryant also
acknowledged that the NIPS guidelines required a Specialist to review
“supplemental” information. Bryant agreed that such information would have
included Leaks‟s “institutional file” that contained the August 11, 2005, letter of
the U.S. Parole Commissioner confirming the longevity of Leaks‟s sentence—well
beyond the five years that barred him from any work detail.
Love
Like Bryant, Love argues that Judge Lim lacked evidence substantial enough
to find that Love had been negligent when classifying Leaks as eligible for work
detail. Love testified at the OEA evidentiary hearing that Specialists were trained
to assign points only for escapes that resulted in convictions. And Love maintains
that he was “never aware that he was required to count escape history, as opposed
to conviction, in his classification.” He then argues that Leaks‟s escape history,
including a 1992 escape from the D.C. Jail, did not reveal that Leaks had been
26
Brown v. Watts, 993 A.2d 529, 532 (D.C. 2010).
22
convicted for escaping.
Deputy Warden Bennett testified, to the contrary, that based on the training
manual27 available to Specialists, as well on as her own supervisory experience,
Specialists were supposed to assign five points to an inmate who had an escape or
an attempted escape older than ten years. In calculating Leaks‟s score to determine
work-eligibility, however, Love had not included any points for the 1992 escape.
As a result, Love computed Leaks‟s final score as an “eight,” meeting the
standards for medium security and work-eligibility, rather than the required
“eleven,” which would have dictated maximum security and prohibited Leaks from
working.
After explicitly considering Love‟s and Bennett‟s respective testimonies,
and crediting Bennett while discrediting Love, Judge Lim found Love negligent for
ignoring Leaks‟s escape history. Again, after granting the required deference to
27
DOC entered in evidence its training manual, Chapter Two,
“INSTRUCTIONS FOR COMPLETING DOC CUSTODY RECLASSIFICATION FORM,”
as part of its Exhibit 61 during the first OEA hearing. Part C of Chapter Two
explains how to score “History of Escape or Attempts to Escape.” Subsection Five
instructs Specialists to enter five points “if the inmate escaped or attempted escape
from a medium or high security facility over 10 years ago.” There is no mention of
the relevance of a conviction for the escape, only instructions for classification
based on an instance of escape.
23
the judge‟s credibility determinations28 and examining the record as a whole, we
conclude that OEA‟s findings are supported by substantial evidence.29
Potential for Rehabilitation: Alleged Waiver
We turn to appellants‟ argument that Judge Lim abused his discretion in
upholding their job terminations, because Director Hoey did not correctly apply the
Douglas factors in determining the appropriate punishments. Specifically, Bryant
and Love argue that Hoey improperly analyzed their capacity for rehabilitation as
Specialists by imputing to them a fatal “lack of remorse.” As noted earlier, in
Hoey‟s revised Douglas factor analysis he applied factor 10 to conclude that
neither appellant could be rehabilitated because neither had admitted a mistake,
and thus accepting responsibility for contributing to the escape. Bryant and Love
argue that “Hoey‟s conclusions are not supported by any evidence and are
impermissible as a matter of law.”
28
See Hutchinson, 710 A.2d at 232.
29
See Brown v. Watts, 993 A.2d at 532.
24
Citing cases,30 DOC argues on appeal that Bryant and Love have forfeited
their right to challenge Hoey‟s application of Douglas factor 10 because they “did
not raise this issue with OEA and OEA did not pass upon it.” Some of these cases
limit their discussions to forfeiture or waiver of procedural arguments;31 others
appear to impose waiver on merits arguments presented for the first time on
appeal.32 We have also said, however, that “under „exceptional circumstances,‟. . .
where „manifest injustice‟ would otherwise result,” this court will “consider claims
that were not presented to the agency,”33 an exception we have applied with “a
measure of flexibility”34—and do so today. DOC bases its forfeiture argument on
30
Sims v. District of Columbia, 933 A.2d 305, 309 (D.C. 2007); District of
Columbia v. Fremeau, 869 A.2d 711, 718 (D.C. 2005); District of Columbia
Housing Auth. v. District of Columbia Office of Human Rights, 881 A.2d 600 (D.C.
2005).
31
See Fremeau, 869 A.2d at 718; District of Columbia Housing Auth., 881
A.2d at 611 (“We have long held that we will not review a procedural claim that
was not adequately raised at the agency level.”).
32
See Sims, 933 A.2d at 309; Hutchinson, 710 A.2d at 232.
33
Sims, 933 A.2d at 309-10 (citations omitted).
34
See, e.g., Goodman v. District of Columbia Rental Hous. Comm’n, 573
A.2d 1293, 1301 n.4 (D.C. 1990) (“We agree with Professor Davis that a
reviewing court has discretionary authority to consider issues which have not been
raised before the agency. We join the federal courts in holding, however, that this
authority should be exercised only in exceptional circumstances to avoid manifest
injustice.”) (citing Getty Oil Co. v. Andrus, 607 F.2d 253, 256 (9th Cir. 1979); 4
K.C. DAVIS, ADMINISTRATIVE LAW TREATISE § 26.7, at 441-44 (1983)); Rafferty v.
District of Columbia Zoning Comm’n, 583 A.2d 169, 178 (D.C. 1990) (“In the
(continued . . .)
25
the fact that Love and Bryant failed to raise the factor 10 issue at the time Judge
Lim (OEA) was considering Hoey‟s decision.
On OEA‟s remand to DOC after Judge Abrecht‟s 2010 reversal of Judge
Lim‟s OEA decision in 2009, Director Hoey applied the Douglas factors he
considered relevant and affirmed the terminations. Bryant and Love then
challenged Hoey‟s final decision by asking OEA (Judge Lim) to review, a second
time, whether DOC‟s “penalty was appropriate under the circumstances.”
Judge Lim understood the appeal to encompass a challenge to the specifics
of Director Hoey‟s revised Douglas factor analysis. In his opinion, the judge
explicitly addressed factor 10, stating in identical language for each appellant
Hoey‟s conclusion that “the potential for employee Bryant‟s [and Love‟s]
rehabilitation was poor because of Bryant‟s [and Love‟s] insistence that he was not
at fault for his offense.” On appeal to this court, Bryant and Love contend that
Judge Lim‟s attention to Douglas factor 10 means that they adequately presented
the issue to OEA and, in doing so, preserved it for appeal.
(. . . continued)
absence of exceptional circumstances a reviewing court will refuse to consider
contentions not presented before the administrative agency at the appropriate
time.”) (internal citations omitted); James Parreco & Son v. District of Columbia
Rental Hous. Comm’n, 567 A.2d 43, 45 n.4 (D.C. 1989).
26
The fact that Judge Lim considered factor 10, among other Douglas factors,
to be a part of the case does not entirely nullify DOC‟s argument that appellants
had failed to target that factor emphatically enough before OEA to preserve it for
our consideration. Nonetheless, given the tortured history of this litigation, we are
satisfied that we would countenance manifest injustice were we not to consider on
this appeal the importance of a factor, unquestionably in the case, that counsel for
appellants has clearly presented to this court and DOC has forcefully countered.
DOC has had full opportunity to address the Douglas factors twice, based on the
record of the OEA evidentiary hearing. At this point in the proceeding, therefore, a
strictly legal review of the factor 10 issue is required, without new factual
findings—a review that this court is in a position to make without further
assistance from Judge Lim. DOC‟s counsel on appeal has had no greater difficulty
in defending DOC‟s factor 10 decision before us (the matter has been fully briefed
and argued) than counsel would have if the case were returned instead to OAH for
Judge Lim to take another look. Accordingly, we proceed to the merits.
Potential for Rehabilitation: The Merits
Bryant and Love contend that termination of their employments was
arbitrary and capricious—indeed, “impermissible as a matter of law”—because
27
Director Hoey (misapplying Douglas factor 10) concluded that both Bryant and
Love lacked potential for rehabilitation. That lack of potential was clear, Hoey
said, because each had refused to acknowledge his mistake in facilitating Leaks‟s
eligibility for work detail. That reasoning, argue appellants, was an abuse of
discretion because it penalized them merely for defending their actions during
litigation.
Appellants note that the federal Merit Systems Protection Board has ruled
that it is “inappropriate to consider an appellant‟s denial of misconduct as an
aggravating factor in determining the maximum reasonable penalty. Thus, it is
also inappropriate . . . to consider an appellant‟s lack of remorse for the misconduct
when that lack of remorse is a consequence of his denial of misconduct.”35 DOC
would distinguish Smith by arguing that Smith concerned an employee who had
denied the very actions for which he was punished, whereas Love and Bryant
acknowledged at the first OEA hearing that they had taken the actions that led to
their terminations, but then defended those actions as correctly taken. Director
Hoey thus feared that, given the opportunity, Love and Bryant would act no
differently in the future. Hoey then concluded that termination would be
appropriate because each appellant‟s singular misstep was “compounded by [that
35
Smith v. Dep’t of Navy, 62 M.S.P.R. 616, 621 (M.S.P.B. June 2, 1994).
28
appellant‟s] refusal to accept responsibility for his action[.]” Hoey, therefore, re-
imposed the terminations largely because Love and Bryant had not displayed the
proper level of remorse at the OEA evidentiary hearing.
We are not persuaded by DOC‟s argument. The only alleged instances in
the record of Love‟s and Bryant‟s failures to acknowledge their mistakes are their
respective explanations of the reasoning that underlay their actions in dealing with
Leaks‟s case file. As explained in Smith, the mere defense of one‟s actions against
a charge of employee misconduct cannot legitimately be equated with a “lack of
remorse,” relied on to reject the “potential for rehabilitation” under Douglas factor
10.36 We therefore cannot accept DOC‟s justification for terminating employment
merely on the ground (as DOC‟s brief puts it) that appellants‟ legal defenses “gave
no indication they would even accede to DOC‟s view of those requirements.”
DOC has failed to cite any more specific record evidence for Hoey‟s
conclusions that Love‟s and Bryant‟s failure to acknowledge their mistakes would
likely cause them to continue making negligent interpretations of DOC‟s security
regulations. We therefore must conclude that DOC lacked evidence sufficient to
sustain a finding that appellants lacked potential for rehabilitation. DOC‟s
36
See Smith, 62 M.S.P.R. at 621.
29
decision to terminate their employments was arbitrary, capricious, and not in
accordance with the law.37
IV.
For the reasons set forth above, we sustain OEA‟s findings of negligence,
reverse its decision upholding DOC‟s terminations of Bryant‟s and Love‟s
employments, and remand the case to OEA for further proceedings consistent with
this opinion.
So ordered.
37
D.C. Code § 2-510 (a)(3)(A) (2012 Repl.).