Johnnie P. Battle v. District of Columbia

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 12-CV-195
JOHNNIE P. BATTLE, ET AL., APPELLANTS,
V.
DISTRICT OF COLUMBIA, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CAB-9695-10)
(Hon. Michael Rankin, Trial Judge)
(Argued June 4, 2013 Decided December 12, 2013)
Donald M. Temple for appellants.
Richard S. Love, Senior 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.
Before GLICKMAN and MCLEESE, Associate Judges, and REID, Senior Judge.
Opinion for the court by Associate Judge MCLEESE.
Dissenting opinion by Senior Judge REID at page 12.
MCLEESE, Associate Judge: Plaintiffs are former public-school teachers
who filed a lawsuit against the District of Columbia, claiming entitlement to
2
retroactive pay raises and other relief. The trial court dismissed their complaint for
lack of subject-matter jurisdiction, and plaintiffs appealed. We affirm.
I.
Plaintiffs retired from the District of Columbia Public Schools (“DCPS”)
between October 1, 2007, and June 2, 2010. On June 2, 2010, the Washington
Teachers Union and DCPS entered into a new collective-bargaining agreement.
The new agreement provided retroactive pay raises reaching back to October 1,
2007, to “all [Washington Teachers Union] bargaining unit members who were
separated or retired as a result of the November 2009 Reduction-in-Force.”
Plaintiffs were not affected by the November 2009 reduction-in-force.
Plaintiffs assert that DCPS violated the District of Columbia Comprehensive
Merit Personnel Act (“CMPA”), D.C. Code § 1-601.01 et seq. (2012 Repl.), by
giving retroactive pay raises to some, but not all, former teachers for work
performed between October 1, 2007, and June 2, 2010. Count I of the complaint
alleges that the pay raises violated provisions of the CMPA that plaintiffs interpret
as requiring that District employees receive “equal pay for equal work.” D.C.
3
Code §§ 1-611.03 (a)(1), 1-611.11 (d), 1-617.17 (a) (2012 Repl.).1 Count II alleges
that the pay raises violated a provision of the CMPA providing that labor unions
“shall be responsible for representing the interests of all [employees in the unit
they represent] without discrimination and without regard to membership in the
labor organization.” D.C. Code § 1-617.11 (a) (2012 Repl.).
II.
The trial court determined that plaintiffs‟ complaint alleges unfair labor
practices and that the District of Columbia Public Employee Relations Board
(“PERB”) therefore has exclusive primary jurisdiction over the case. In this
appeal, the plaintiffs have not disputed the trial court‟s characterization of their
claims as alleging unfair labor practices. We therefore assume, but do not decide,
that the alleged statutory violations would constitute unfair labor practices under
1
Section 1-611.03 (a)(1) states that “[c]ompensation shall be competitive
with that provided to other public sector employees having comparable duties,
responsibilities, qualifications, and working conditions by occupational groups.”
Section 1-611.11 (d) states that § 1-611.03 (a)(1) applies to employees in the
Educational Service. Section 1-617.17 (a) states that § 1-611.03 applies to
collectively bargained salaries.
4
the CMPA.2
Plaintiffs have asserted only one theory as to why the Superior Court has
jurisdiction over their claims: that the CMPA does not give the PERB jurisdiction
over this action because the plaintiffs are retired employees and “the cause of
action arose after their retirement.” We disagree with that theory for several
reasons.
2
It is not clear that Count I actually does allege an unfair labor practice,
because Count I does not allege that DCPS committed any of the unfair labor
practices listed in the CMPA. See D.C. Code § 1-617.04 (Repl. 2012) (listing
unfair labor practices prohibited by CMPA); Frazer v. Board of Trs. for Univ. of
District of Columbia, No. 11-U-46, 2011 WL 7807219, at *2 (PERB Nov. 30,
2011) (§ 1-617.04 provides “an exhaustive list” of bases for unfair-labor-practice
complaints before PERB); cf. Fraternal Order of Police v. District of Columbia
Metro. Police Dep’t, No. 91-U-18, 1992 WL 12601382, at *2 n.1 (PERB Jan. 10,
1992) (PERB lacks jurisdiction over claimed violation of disciplinary grievance
procedures because claimed violation “does not give rise to an unfair labor
practice”). The plaintiffs, however, have not asserted on appeal a jurisdictional
argument based on the possibility that Count I does not allege an unfair labor
practice. We will not attempt to generate such a theory sua sponte. See, e.g.,
Travelers Prop. Cas. v. Good, 689 F.3d 714, 718 (7th Cir. 2012) (“The court need
not bend over backwards to construct alternative theories to persuade itself that
subject matter jurisdiction exists . . . .”); Eisler v. Stritzler, 535 F.2d 148, 152 (1st
Cir. 1976) (“we normally would be disinclined to note, sua sponte on appeal,
alternative grounds for the district court‟s jurisdiction”); Franson ex rel. v. Micelli,
666 N.E.2d 1188, 1190 (Ill. 1996) (“If some alternative basis existed for invoking
the appellate court‟s jurisdiction, Micelli was obliged to demonstrate it. He has not
done so.”); see generally, e.g., Speights v. 800 Water St., Inc., 4 A.3d 471, 476
(D.C. 2010) (“points not raised on appeal are deemed waived”).
5
First, this court has already held that the CMPA gives the PERB authority
over unfair-labor-practice claims. See Hawkins v. Hall, 537 A.2d 571, 574-75
(D.C. 1988). Plaintiffs concede, moreover, that the PERB‟s authority covers some
claims of former employees. See, e.g., Cooper v. AFSCME, Local 1033, 656 A.2d
1141, 1142-43 (D.C. 1995) (PERB had exclusive jurisdiction over former
employee‟s claim that union breached duty of fair representation). Although
plaintiffs argue that the PERB does not have authority over former employees‟
claims if the alleged violation occurred after the employees‟ separation, our
opinion in Hawkins suggests no such limitation. 537 A.2d at 574-75 (“[The
PERB] has primary jurisdiction to determine whether a particular act or omission
constitutes an unfair labor practice under the CMPA.”).
Second, the language of the CMPA does not support a limitation of the
PERB‟s jurisdiction based on whether the alleged violation occurred while the
claimant was a District employee. The CMPA authorizes the PERB to “[d]ecide
whether unfair labor practices have been committed and issue an appropriate
remedial order.” D.C. Code § 1-605.02 (3) (2012 Repl.). Such unfair labor
practices are defined in D.C. Code § 1-617.04 (2012 Repl.). Neither provision
restricts the PERB‟s jurisdiction based on whether the claimant was a District
employee at the time of the alleged violation. In fact, one of the unfair-labor-
6
practice provisions expressly applies to non-employees. See D.C. Code
§ 1-617.04 (a)(3) (prohibiting the District of Columbia from “[d]iscriminating in
regard to hiring . . . to encourage or discourage membership in any labor
organization”). In addition, the CMPA provision that authorizes “[a]ny person
aggrieved by a final order of the [PERB]” to seek judicial review further supports a
broader interpretation of the PERB‟s jurisdiction. D.C. Code § 1-617.13 (c) (2012
Repl.).
Third, the PERB has previously asserted jurisdiction over claims in which
the alleged violation occurred when the claimant was no longer a District
employee. Teamsters Local Union 639 v. District of Columbia Pub. Schs., No. 11-
U-10, 2011 WL 8197549 (PERB Feb. 23, 2011) (resolving claim on behalf of
former public-school employees that District of Columbia had violated their rights,
where alleged violation occurred after employees‟ separation); Doctors Council v.
District of Columbia Dep’t of Youth Rehab. Servs., No. 07-U-19, 2009 WL
8474155 (PERB Sept. 30, 2009) (resolving claim of retired faculty member where
alleged contract violation occurred after retirement); cf. Stockard v. Moss, 706
A.2d 561, 565 (D.C. 1997) (CMPA preempts Superior Court jurisdiction over
former employee‟s slander claim, where allegedly slanderous statement occurred
after employee‟s discharge).
7
Finally, we see no logical reason for the PERB‟s jurisdiction to turn on
whether the alleged unfair labor practice occurred while the claimant was a public
employee, as long as the alleged violation arose out of the claimant‟s employment
relationship with the District of Columbia.3 The CMPA was enacted to replace the
District of Columbia‟s disjointed, decentralized personnel policies with a uniform,
comprehensive system. See District of Columbia v. Thompson, 593 A.2d 621, 632-
33 (D.C. 1991). In keeping with this theme, the CMPA contains chapters that
govern, among other things, the hiring process, personnel matters, and retirement
benefits. See, e.g., D.C. Code §§ 1-607.01 to 1-607.08 (2012 Repl.) (addressing
equal employment opportunity and employee selection); D.C. Code §§ 1-611.01 to
1-611.21 (2012 Repl.) (addressing employee classification and compensation);
D.C. Code §§ 1-621.01 to 1-623.47 (2012 Repl.) (addressing employee benefits);
D.C. Code §§ 1-626.01 to 1-626.14 (2012 Repl.) (addressing employee
retirement). Given the CMPA‟s objective of uniformity, it would be incongruous
to interpret the CMPA as creating two separate systems of adjudication for the
claims of unfair labor practices, with some unfair-labor-practice claims being
3
Plaintiffs‟ claims plainly arise out of their employment relationship with
the District of Columbia. The gravamen of their complaint is that they were
compensated inadequately for work they performed while they were employed
with DCPS.
8
addressed in the first instance by the PERB and others being addressed in the first
instance by the Superior Court. Cf. Hawkins, 537 A.2d at 573 (noting advantages
of having PERB, as expert agency, resolve unfair-labor-practice claims in first
instance).
Plaintiffs raise two main counterarguments. We do not find those arguments
persuasive.
First, plaintiffs attach great importance to the CMPA‟s definition of
“employee,” asserting that the CMPA refers repeatedly to employees but does not
refer to former employees. We note, however, that numerous provisions of the
CMPA unambiguously apply to former employees. See, e.g., D.C. Code § 1-
629.03 (2012 Repl.) (establishing procedure for collecting debts owed to District of
Columbia by both current and former employees); D.C. Code § 1-626.03 (“The
District shall provide retirement benefits to all employees . . . .”); D.C. Code § 1-
611.06 (providing retroactive pay for retired or deceased employees); D.C. Code
§ 1-626.14 (“a civil action may be brought by a [beneficiary of the District of
Columbia retirement program] . . . to enjoin any act or practice that violates any
provision of this chapter or the terms of the retirement program”). The numerous
references in the CMPA to the rights of former employees provide further support
9
for the conclusion that the PERB has jurisdiction over unfair-labor-practice
complaints brought by former employees.
Second, plaintiffs rely on the contrasting definitions of „employee‟ in the
CMPA and the Whistleblower Protection Amendment Act (“WPAA”). Compare
D.C. Code § 1-603.01 (7) (2012 Repl.) (CMPA defines „employee‟ as “an
individual who performs a function of the District government and who receives
compensation for the performance of such services”), with D.C. Code § 1-
615.52 (a)(3) (2012 Repl.) (WPAA defines „employee‟ as “any person who is a
former or current District employee, or an applicant for employment by the District
government . . .”). The definition of „employee‟ in the WPAA sheds no significant
light, however, on the proper interpretation of the scope of the PERB‟s jurisdiction
under the CMPA, which addresses a different issue and was enacted twenty years
before the enactment of the WPAA.4 See, e.g., Mattox v. Federal Trade Comm’n,
752 F.2d 116, 121-22 (5th Cir. 1985) (declining to adopt uniform interpretation of
two provisions because, among other reasons, provisions “were enacted sixty-two
years apart”).
4
See Comprehensive Merit Personnel Act, D.C. Law 2-139, § 301, 25 D.C.
Reg. 5740, 5770 (1998) (approved on November 22, 1978); Whistleblower
Protection Amendment Act of 1998, D.C. Law 12-160, § 1552 (a)(3), 45 D.C. Reg.
5147, 5148-49, 5168 (1998) (approved on June 23, 1998).
10
We therefore hold that the PERB has exclusive jurisdiction over claims of
retired District of Columbia employees alleging an unfair labor practice under § 1-
617.04 that arises out of the claimants‟ employment relationship with the District
of Columbia. Accordingly, plaintiffs‟ jurisdictional argument lacks merit.
III.
Plaintiffs request, in the alternative, that we remand to the Superior Court
with instructions to remand in turn to the PERB. They contend that remand is
appropriate under Grillo v. District of Columbia, because there is a “substantial
question” as to whether the PERB has jurisdiction over claims of former
employees arising after the end of the employment relationship. 731 A.2d 384,
386-87 (D.C. 1999) (remanding to Superior Court with instructions to remand to
Office of Employee Appeals to afford agency “an opportunity to construe the
statute that it is charged with administering . . . .” because case raised “substantial
question” as to jurisdiction of OEA). For the reasons previously stated, however,
we conclude that plaintiffs have not raised a substantial question on this topic. We
also note that plaintiffs did not ask the trial court to remand to the PERB under
Grillo. Finally, the rationale of Grillo is not applicable here, because the PERB
11
has already asserted jurisdiction over claims of former employees that arose after
the employment relationship ended. See, e.g., Teamsters Local 639, 2011 WL
8197549; Doctors Council, 2009 WL 8474155. Under these circumstances,
remand is not warranted.5
The judgment of the trial court is therefore
Affirmed.
5
As previously noted, see supra pp. 3-4 & n.2, appellants have not raised
on appeal the question whether Count I is properly understood as an unfair-labor-
practice claim. If that question had been properly raised, it might well have been
appropriately decided in the first instance by the PERB. We decline, however, to
raise the question sua sponte and to direct that the question be decided in the first
instance by the PERB. First, as previously noted, see supra p.4 n.2, this court
generally does not consider questions not properly raised and briefed on appeal.
Second, even if this court were otherwise inclined to overlook appellants‟ failure to
raise the question properly, appellants would face serious procedural obstacles if
they sought to obtain administrative relief at this juncture. Specifically, appellants
failed to exhaust their administrative remedies in the PERB before filing suit, and
the time for seeking administrative relief appears to have long since passed. See,
e.g., District of Columbia Metro. Police Dep’t v. Fraternal Order of Police/Metro.
Police Dep’t Labor Comm., 997 A.2d 65, 80-83 (D.C. 2010) (discussing
exhaustion requirement); 6-B DCMR § 520.4 (2013) (unfair-labor-practice claims
must be presented to PERB with 120 days); 6-B DCMR § 538.1 (2013) (challenges
to arbitral awards must be brought before PERB within 20 days); D.C. Code §§ 1-
616.52 (a) (certain grievances must be presented to Office of Employee Appeals
within 10 days), 1-616.53 (b) (certain grievances must be presented within 45
days). This court has in extraordinary circumstances excused compliance with
exhaustion and timeliness requirements. See, e.g., District of Columbia Metro.
Police Dep’t, 997 A.2d at 82 (citing cases); Grillo, 731 A.2d at 387 n.5. We do
not, however, see such extraordinary circumstances in this case.
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REID, Senior Judge, dissenting: Given the nature of this case and this
court‟s precedents, I am unable to join the majority opinion. Appellants, retired
public school teachers, have presented the District of Columbia Courts with a
rather complex case, in which there is a threshold jurisdictional issue.
The District of Columbia filed a motion under Super. Ct. Civ. R. 12 (b)(1)
and (6) to dismiss appellants‟ two-count complaint. In response, the trial court
dismissed the complaint under R. 12 (b)(1), on the ground that “Plaintiffs‟ claims
in each count are fairly and accurately described as an unfair labor practice and
thus are preempted by the CMPA [Comprehensive Merit Personnel Act].”
The majority opinion states that “the CMPA gives the PERB authority over
unfair-labor-practice claims.” It would appear, then, that they assume that
plaintiffs allege an unfair labor practice. The majority conclude that plaintiffs are
still “employees” under CMPA, that their claims arise out of their employment
relationship with the District, and consequently, the PERB has exclusive
jurisdiction over plaintiffs‟ claims. Nevertheless, in footnote 2, the majority assert:
“It is not clear that Count I [of plaintiffs‟ complaint] actually does allege an unfair
labor practice, because Count I does not allege that DCPS committed any of the
unfair labor practices listed in the CMPA.”
13
The majority also state in footnote 2 that: “The plaintiffs . . . have not
asserted on appeal a jurisdictional argument based on the possibility that Count I
does not allege an unfair labor practice.” In footnote 5, the majority insist that
appellants have not raised on appeal whether Count I “is properly understood as an
unfair-labor-practice claim,” and that “[i]f that question had been properly raised, it
might well have been appropriately decided in the first instance by PERB.”
In my view the Count I/unfair labor practice claim is properly before us, not
only because (1) appellants challenge on appeal the trial court‟s dismissal of their
claims under Rule 12 (b)(1) on the ground, as the trial court put it, that:
“Plaintiffs‟ claims in each count are fairly and accurately described as an unfair
labor practice and thus are preempted by the CMPA,” but also because (2) the
Count I/unfair practice issue is subsumed under appellants‟ claim that as teachers
who retired when no collective bargaining agreement was in effect they are not
“employees” within the meaning of CMPA.
I cannot agree with the majority statement and resolution of the
jurisdictional issue, nor with their affirmance of the trial court‟s dismissal of
plaintiffs‟ complaint on the skimpy Rule 12 (b)(1) record before us. For the
14
reasons stated below, I believe that the Superior Court does have jurisdiction over
plaintiffs‟ complaint. But even if the Superior Court does not have jurisdiction, as
the majority hold, it is not clear to me whether the Public Employee Relations
Board (“PERB”), or the Office of Employee Appeals (“OEA”) would have
jurisdiction over plaintiffs‟ complaint; but the question of whether PERB or OEA
would have jurisdiction is an issue that, under our case law, should be resolved in
the first instance by those agencies.
Plaintiffs‟ complaint, which seeks declaratory relief, and on which the Rule
12 (b)(1) dismissal is based, does not mention D.C. Code § 1-617.04 pertaining to
unfair labor practices. But, the majority read into plaintiffs‟ complaint the unfair
labor practices statute, without a sound basis for doing so at this stage of the
litigation. Count I of the complaint focuses on § 1-611.11, found in Title XI of the
CMPA, which covers “classification and compensation policies and procedures for
educational employees.” The complaint also references D.C. Code § 1-611.03which addresses “compensation policy.” Moreover, to the extent that the
complaint must be interpreted within the context of Title XVII of the CMPA,
governing “labor-management relations,” the complaint specifically invokes D.C.
Code § 1-617.17, “collective bargaining concerning compensation,” and does not
invoke § 1-617.04, unfair labor practices. Count I of the complaint also explicitly
15
challenges the District‟s Attorney General‟s June 18, 2010, interpretation of D.C.
Code § 1-611.11 as “merely a classification and salary review process” having
“little or nothing to do with salary increases consequent to a [collective bargaining
agreement].” The gravamen of Count I of plaintiffs‟ complaint centers on the
District‟s compensation policies, specifically, the alleged policy that “similarly-
situated retired employees shall receive equal pay increases.” As the complaint
also states: “Subject to Title XI [of CMPA], Defendant [that is, the District of
Columbia] has a duty to implement compensation systems negotiated under Title
XVII in a manner that is consistent with the principle of equal pay for equal work,
also mandated by D.C. Code § 1-611.03.” Consequently, plaintiffs seek a
declaratory judgment as to whether the District‟s policy of granting a retroactive
pay increase to teachers who retired because of the RIF, but not those [involved in
this lawsuit] who retired outside of a RIF context, violates the District‟s
compensation policies.
Not only do plaintiffs challenge what appears to be an official opinion of the
District‟s Attorney General regarding a CMPA statutory provision, but they also
present an issue of first impression, in my view, that is not controlled by our prior
precedents, that is, are District of Columbia teachers “employees” within the
meaning of the CMPA where they (1) retired when no collective bargaining
16
agreement was in effect, (2) continue to pay dues to the union which has
represented teachers, and (3) challenge their exclusion from retroactive pay, solely
because their employment was not terminated by reduction-in-force procedures? I
do not believe that any of our past cases resolve the jurisdictional and the merit
issues presented by this case.
However, Feaster v. Vance, 832 A.2d 1277 (D.C. 2003) indicates that where
plaintiffs invoke a statutory provision independent of the unfair labor practices
provision, the Superior Court, “a court of general jurisdiction „with the power to
adjudicate any civil action at law or in equity involving local law,‟ has
jurisdiction.” Id. at 1283. Here, plaintiffs invoke D.C. Code § 1-611.03, in Title
XI of the CMPA, concerning compensation policy, and arguably, under the general
principle reflected in Feaster, the Superior Court has jurisdiction over plaintiffs‟
complaint.
Moreover, the cases cited by the majority for the proposition that PERB has
authority over unfair labor practice claims are not applicable to the instant case
where the complaint does not cite or rely on D.C. Code § 1-617.04. Hawkins v.
Hall, 537 A.2d 571, 574-75 (D.C. 1988), involved an issue of union dues and the
complaint in that case, unlike the complaint here, alleged an unfair labor practice.
17
Cooper v. AFSCME, 656 A.2d 1141 (D.C. 1995), concerned a complaint for the
breach of the duty of fair representation of an employee by a union, whereas the
instant case pertains to the District‟s implementation of a compensation policy. In
addition, the majority try to fit the instant case into two non-appellate court cases
where “PERB has previously asserted jurisdiction over claims in which the alleged
violation occurred when the claimant was no longer a District employee.” But
those cases are quite different and do not control the outcome of this case. The
complaints in both non-appellate court PERB cases, one involving accrued sick
leave and the other, the implementation of a grievance settlement agreement
regarding annual leave and retirement, specifically invoked the unfair labor
practices statute. The third cited case, Stockard v. Moss, 706 A.2d 561 (D.C.
1997), related to a slander claim by a former employee, not a challenge to the
District‟s implementation of a compensation policy. Simply put, then, none of the
cases on which the majority opinion relies address the rather complex jurisdictional
and merit issues presented by the plaintiffs in this case.
While I believe that the Superior Court has jurisdiction over plaintiffs‟
complaint, even if there is doubt as to whether the Superior Court or one of the
specialized agencies mentioned in the CMPA, has jurisdiction (PERB if the case is
viewed as challenging the District‟s compensation policy under Title XVII of the
18
CMPA, or OEA if the case is viewed as a challenge to the compensation policy
under Title XI of the CMPA), the proper course would be a remand to the trial
court, with instructions to hold the case in abeyance and to transmit the
jurisdictional issue either to PERB or OEA for resolution of the jurisdictional issue
in the first instance. See Grillo v. District of Columbia, 731 A.2d 384, 387 (D.C.
199) (citing Taggart-Wilson v. District of Columbia, 675 A.2d 28, 29 (D.C. 1996)).
The decision of the majority to resolve the jurisdictional issue itself, by declaring
that PERB has exclusive jurisdiction in this case, runs counter to this court‟s
adherence to a longstanding and fundamental principle, “we cannot impose our
own construction [of an agency‟s statute], but rather defer to the agency‟s
interpretation.” Dupree v. District of Columbia Office of Emp. Appeals, 36 A.3d
826, 834 (D.C. 2011) (citation omitted). We also emphasized in Grillo, supra, that
“the trial judge‟s dismissal of the action was premature, for the suit may proceed if
the OEA concludes that it lacks jurisdiction.” Id. at 387. Therefore, as I read our
cases, even if the majority remain convinced that PERB had jurisdiction, the
proper course is to vacate the trial court‟s order and to remand the case to the trial
court, with instructions to stay the proceedings and to remand the case to PERB
“for a determination as to that agency‟s jurisdiction.” Id. Therefore, I respectfully
dissent.