Johnson v. District of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 2, 2008 Decided December 23, 2008

No. 07-7121

SALLIE L. JOHNSON,
APPELLANT

v.

THE DISTRICT OF COLUMBIA,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 04cv00250)

Mattie P. Johnson argued the cause for the appellant.
Holly M. Johnson, Assistant Attorney General, Office of the
Attorney General for the District of Columbia, argued the cause
for the appellee District of Columbia. Peter J. Nickles, Attorney
General, Todd S. Kim, Solicitor General, and Donna M.
Murasky, Deputy Solicitor General, were on brief. James C.
McKay, Jr., Senior Assistant Attorney General, entered an
appearance.
Before: HENDERSON, RANDOLPH and GARLAND, Circuit
Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
 2

KAREN LECRAFT HENDERSON, Circuit Judge: Sallie L.
Johnson, a former officer in the Youth Services Administration
of the District of Columbia Department of Human Services
(DCDHS), appeals the district court’s dismissal of her complaint
against the District of Columbia (D.C. or District) for wrongful
termination and denial of due process in violation of the Fifth
Amendment to the United States Constitution. Johnson v.
District of Columbia, 244 F.R.D. 1 (D.D.C. 2007) (Johnson II).
The district court dismissed the action on the ground that
Johnson failed to exhaust her administrative remedies as
required by the District Comprehensive Merit Personnel Act
(CMPA), D.C. Code §§ 1-601.01 et seq. See Johnson v. District
of Columbia, 368 F. Supp. 2d 30, 51-52 (D.D.C. 2005) (Johnson
I). We conclude that Johnson was required to pursue her
remedies under the CMPA and under the collective bargaining
agreement (CBA) between her union and the District—and, in
particular, to petition the District Public Employee Relations
Board (PERB) for relief when the District refused to arbitrate
her grievance. Because she failed to do so, we affirm the
dismissal.
I.
On November 12, 2001, three youths escaped from the Oak
Hill Youth Center while Johnson was on duty. The following
day, Johnson was placed on administrative leave pending an
investigation of the escape. On December 13, 2001, the Deputy
Administrator of Secure Facilities presented Johnson with a
fifteen-day advance notice of proposal to remove her from her
position, which referenced nine “attachments” that were not, as
it turned out, attached. Compl. ¶ 21, Johnson v. District of
Columbia, No. 04-cv-00250 (D.D.C. Feb. 17, 2004) (Compl.).
Working with her union, the Fraternal Order of Police (FOP),
Johnson attempted to obtain the missing attachments from
DCDHS and finally succeeded on January 22, 2002.
 3

A DCDHS hearing examiner reviewed the proposal to
remove and issued an Administrative Review on March 8, 2002.
Administrative Review, Adverse Personnel Action, CMPA No.
1022 (DCDHS Mar. 8, 2002). The hearing examiner concluded
that, given Johnson’s long employment history and favorable
evaluations, she “should not receive the harsh penalty of
removal.” Id. at 10. Later the same day, however, the DCDHS
Director issued a notice of final decision “sustain[ing] the
proposal to remove [her] from [her] position for ‘Inexcusable
Neglect of Duty.’ ” Letter from Carolyn W. Colvin, Director,
DCDHS, to Sallie Johnson (Mar. 8, 2002). Johnson’s removal
was effective March 15, 2002.
On March 27, 2002, Johnson’s union commenced a
grievance procedure on Johnson’s behalf pursuant to the CBA
negotiated in 1994 between the District and the American
Federation of Government Employees, which was then the
collective bargaining representative of Johnson’s bargaining
unit. See Master Agreement Between Am. Fed’n of Gov’t
Employees and Gov’t of the District of Columbia (1994 CBA).
The 1994 CBA offers an aggrieved employee the option to
pursue either the statutory or the CBA grievance procedure.
1994 CBA art. 24, § 1, ¶ 3. The 1994 CBA procedure requires
that the aggrieved employee and his union submit a written
grievance to the head of the agency involved within 45 calendar
days of the final notice of adverse action and that the agency
respond within 15 working days. Id. art. 30, § 5, ¶ A. If the
grievance is not “satisfactorily settled” at that stage, “the Union
can invoke arbitration.” Id. art. 30, § 5, ¶ B. Following an
arbitration award, “[e]ither party may submit the award for
reconsideration by filing an Arbitration Review Request with the
[PERB] within the time prescribed by law and regulation.” Id.
art. 30, § 8, ¶ 5.
In a letter dated June 19, 2002 and addressing Johnson’s
grievance, the District informed FOP General Counsel Harold
 4

M. Vaught that it “declined to participate in any further
arbitrations with the [FOP] until such time as the [FOP] and
[DCDHS] have, through negotiations, reached some agreement
to arbitrate grievances.” Letter from Mary E. Leary, Attorney,
D.C. Office of Labor Relations and Collective Bargaining, to
Harold M. Vaught, General Counsel, FOP/DCDHS Labor
Committee (June 19, 2002). In November 2002, because her
union representative “was not returning her calls,” Johnson
contacted Vaught about the status of her grievance. Compl. ¶
41. Vaught informed her he was no longer FOP General Counsel
and referred her to her union representative who, he said, had all
of her files. Between November 2002 and January 2003
Johnson attempted repeatedly but unsuccessfully to contact her
union representative.
In January 2003, the new FOP General Counsel informed
Johnson that an arbitrator had issued a favorable arbitral award
but that the District refused to comply with it. On August 25,
2003, however, the FOP General Counsel told Johnson’s
counsel that her grievance had in fact been “tied up in a dispute
over whether the District has an obligation to arbitrate her
discharge grievance” under the 1994 CBA, which the District
maintained was not in effect. Compl. ¶ 49; see 1994 CBA at
46-47. In October 2003, Johnson learned that, while grievances
from other members of her bargaining unit had gone to
arbitration, hers had not.
On February 17, 2004, Johnson filed this action against the
District and individual District officials, alleging causes of
action for (1) violating her right to procedural due process by
failing to provide timely notice of the proposal to remove and by
refusing to arbitrate her grievance, (2) defamation, (3) wrongful
termination and (4) intentional infliction of emotional distress.
The district court subsequently dismissed the action against the
District and against the individual defendants in their official
capacities. The court concluded that Johnson “d[id] not allege
 5

any facts in her complaint to rebut the District’s contention that
Johnson’s arbitration is merely ‘on hold’ while the dispute over
the validity of the arbitration clause in the collective bargaining
agreement is resolved.” Johnson I, 368 F. Supp. 2d at 35. Thus,
the court reasoned, “Johnson’s arbitration remedy has yet to be
finalized, either by the completion of an arbitration or the
District’s final refusal to arbitrate” and “[u]ntil such time as one
of these two ‘finalizing events’ occurs, Johnson’s administrative
remedies for the claims she asserts here simply cannot have been
exhausted.” Id. The court further noted that “even if . . . the
District refuses to abide by a valid term of the collective
bargaining agreement, it is likely that the plaintiff could seek
[to] petition the PERB for relief.” Id. at 50 n.8.
On November 22, 2005, Johnson filed motions to compel
the District to arbitrate, to stay the action pending resolution of
the motion to compel and to amend the complaint to allege that
arbitrators in two other cases had determined the 1994 CBA’s
arbitration procedure was binding on the District (one of whom
was upheld by the D.C. Superior Court) but that the District
“still refuses to participate in arbitration of [her] grievance.”
Johnson II, 244 F.R.D. at 8 (citing Proposed Mot. to Amend
Compl. ¶¶ 39-40, Johnson v. District of Columbia, No. 04-cv-
00250 (D.D.C. Nov. 22, 2005)). The court construed the motion
to amend as an “attempt[] to plead futility by alleging that the
dispute has been resolved and that the District still refuses to
engage in arbitration,” id., and concluded that the motion itself
was futile because “the claims against the District in Johnson’s
amended complaint suffer from the same flaw that fatally
afflicted her original complaint,” namely, they do not
demonstrate either “administrative exhaustion through
completion of the grievance process” or “that resort to
administrative remedies would be futile.” Id. at 7-8. The court
noted that “ ‘appeal to the PERB on the grounds that the
District’s refusal to abide by a valid collective bargaining
agreement constitutes an unfair labor practice’ is Johnson’s
 6

‘appropriate remedy’ at this stage.” Id. at 9 (quoting Johnson I,
368 F. Supp. 2d at 45 n.5). Accordingly, the court denied all
three motions as to the District and dismissed the action in its
entirety. Id. at 10. Johnson filed a notice of appeal on August
16, 2007.1
II.
Johnson contends the district court erroneously dismissed
her action against the District because she was not required
under District law to exhaust her remedies by petitioning the
PERB for relief. We conclude the district court properly
dismissed the action because Johnson failed to exhaust the
remedy she elected pursuant to D.C. Code
§ 1-616.52(e)—namely the CBA grievance procedure—which
became her exclusive remedy under the CMPA and District case
law.
The CMPA, which governs personnel management,
provides that an employee may, alternatively and at his
discretion, (1) “appeal from a removal . . . to the Office of
Employee Appeals’’ (OEA), D.C. Code § 1-616.52(b), or (2)
use any grievance procedure set out in an applicable CBA “but
not both,” id. § 1-616.52(e). If an employee chooses the
applicable CBA grievance procedure, its provisions “take
precedence over” the statutory procedure. D.C. Code
§ 1-616.52(d). An OEA decision is appealable to the D.C.
Superior Court, id. § 1-606.03(d), while an arbitration award
under a CBA grievance procedure is appealable to the PERB, id.
§ 1-605.02(6), and thence to the D.C. Superior Court, id.
§§ 1-605.02(12), 1-617.13(c). See generally District of
Columbia v. Thompson, 593 A.2d 621, 626-27 (D.C. 1991).
There the D.C. Court of Appeals concluded that the CMPA was

1
Johnson did not appeal the dismissal of her complaint as to the
individual District officials.
 7

“intended . . . to provide District employees with their exclusive
remedies for claims arising out of employer conduct in handling
personnel ratings, employee grievances, and adverse actions.”
Id. at 635 (emphasis added).2 Accordingly, an employee

2
“Exhaustion of administrative remedies” generally refers to one
of two concepts: (1) a nonjurisdictional, judicially created doctrine
which “requir[es] parties who seek to challenge agency action to
exhaust available administrative remedies before bringing their case
to court,” Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C.
Cir. 2004); and (2) a jurisdictional doctrine under which the Congress
“requires resort to the administrative process as a predicate to judicial
review,” id. The District exhaustion doctrine is jurisdictional as
applied by the D.C. Court of Appeals. It requires that an employee
exhaust the administrative remedies prescribed in either the CMPA or
a CBA before obtaining judicial review in the Superior Court. See,
e.g., Bd. of Trustees, Univ. of the Dist. of Columbia v. Myers, 652
A.2d 642, 645 (D.C. 1995). Under the prescribed and exclusive
CMPA procedure, judicial review occurs generally only in the D.C.
courts at the culmination of the administrative appeal or grievance
procedure. See Robinson v. District of Columbia, 748 A.2d 409, 411
n.4 (D.C. 2000) (“The [CMPA] is jurisdictional and provides the
exclusive remedy for almost all claims against public employers, with
an opportunity to appeal to the Superior Court.”). The procedure’s
exclusivity and exhaustion requirements do not, however, necessarily
foreclose a subsequent suit in local or federal court challenging the
adequacy of the process itself. See Thompson v. District of Columbia,
428 F.3d 283 (D.C. Cir. 2005) (reversing dismissal of terminated
employee’s pre-termination due process claim notwithstanding CMPA
stripped federal court of jurisdiction over claim that discharge
constituted intentional infliction of emotional distress). Without
resolving whether this D.C. exhaustion requirement is better
understood as jurisdictional or nonjurisdictional in federal court, we
have no trouble concluding that it applies here. As we note below,
Johnson has waived any challenge to the district court’s conclusion
that each of her claims is subject to the exhaustion requirement.
See infra note 8.
 8

grieving an adverse action must exhaust the remedies prescribed
either by the statute or, under D.C. Code § 1-616.52(e), by the
1994 CBA.3 Thus, once Johnson elected to pursue her CBA
grievance procedure, she was required to exhaust its remedies by
completing arbitration and, if necessary, appealing to the PERB,
id. art. 30, § 8, ¶ 5. Moreover, when the District refused to
arbitrate and the FOP failed to pursue arbitration, Johnson could
not circumvent the procedure prescribed in the CBA—namely,
arbitration and review by the PERB—by filing a lawsuit. See
Bd. of Trustees, Univ. of the Dist. of Columbia v. Myers, 652
A.2d 642, 645 (D.C. 1995) (“Generally, a District employee,
subject to the [CMPA], or to a CMPA-sanctioned collective
bargaining agreement, may not maintain a common law action
in court to remedy a grievance against the employer cognizable
under CMPA, or under such an agreement, unless the employee
has exhausted the administrative procedures provided in that
agreement.”); Robinson v. District of Columbia, 748 A.2d 409,
411 (D.C. 2000) (D.C. Superior Court “is not an ‘alternative
forum’ in this scheme, but rather serves as a ‘last resort’ for
reviewing decisions generated by CMPA procedures.” (quoting
Stockard v. Moss, 706 A.2d 561, 565 (D.C. 1997) (quoting
Thompson, 593 A.2d at 634))). As the D.C. Court of Appeals
has made clear, Johnson’s sole remedy lay in filing an unfair
labor practice complaint with the PERB to obtain relief.
In Thompson, for example, the plaintiff, a former District
employee, sued the District for defamation and intentional
infliction of emotional distress based on memoranda written by
her supervisor. Pursuant to the CBA, her union had filed two

3
Section 1-616.52(e) provides: “Matters covered under this
subchapter that also fall within the coverage of a negotiated grievance
procedure may, in the discretion of the aggrieved employee, be raised
either pursuant to § 1-606.03, or the negotiated grievance procedure,
but not both.” Section 1-606.03 sets out the procedure for appealing
to the OEA and then to the D.C. Superior Court.
 9

grievances with the District on her behalf but did not take the
grievances to arbitration as the CBA provided. The court held
that because Thompson’s tort claims “clearly f[e]ll within the
scope of” the CMPA’s provisions governing performance
ratings, adverse actions and grievances, the CMPA “preclude[d]
litigation of Thompson’s [tort] claims, in the first instance, in
Superior Court.” 593 A.2d at 635. If Thompson was
“dissatisfied with [her union’s] representation,” the proper
remedy, the court suggested, was “to file a complaint with
PERB, subject to judicial review in Superior Court.” Id. at 628
n.15. Since Thompson, the D.C. Court of Appeals has twice
affirmed this view.
First, in Board of Trustees, supra, the court affirmed the
Superior Court’s dismissal of the complaint for failure to
exhaust. The plaintiff, a professor at the University of the
District of Columbia (UDC), alleged breach of contract and tort
claims arising from a rescinded promotion after his union failed
to take his grievance, filed pursuant to the applicable CBA, to
arbitration. The court explained that “under CMPA and the
[CBA]—and under prevailing case law—a UDC union
employee’s only recourse against the UDC Board is arbitration,
and that if the union is unwilling to take the case to arbitration,
the employee’s only remedy at that point is a complaint against
the union filed with the [PERB].” Myers, 652 A.2d at 646.
The D.C. Court of Appeals addressed the issue again in Pitt
v. District of Columbia Department of Corrections, 954 A.2d
978 (D.C. 2008), with the same result. The court there affirmed
the Superior Court’s dismissal of an action for review of an
OEA decision. The OEA had dismissed the appeal by a District
employee whose union declined to invoke arbitration of the
employee’s grievance after the District made clear it believed
the applicable CBA had expired. The Pitt court upheld the
OEA’s determination that the CBA remained in force and that
the employee had failed to exhaust his remedies thereunder.
 10

Citing the just-quoted language from Myers, the court explained:
“Any obstacle that Mr. Pitt had faced in having his claim
reviewed by a ‘neutral decision maker’ ”—which under the
CBA was through arbitration—“could only be resolved in a
claim against the FOP before the PERB.” 954 A.2d at 986.
Likewise here, when the District refused to arbitrate Johnson’s
grievance and the FOP did nothing about it, Johnson’s only
remedy was to file an unfair labor practice complaint with the
PERB. She was not entitled to challenge her removal through
an independent legal action, either in the Superior Court or in
the district court. Notwithstanding the clear District case law,
Johnson offers three arguments why she should not be bound by
the District’s exhaustion of remedies requirement.
First, Johnson asserts that neither the plain language of the
CMPA nor its legislative history requires that an employee
pursuing a CBA arbitration procedure seek relief from the PERB
and that the district court misconstrued the CMPA in finding
such a requirement. The D.C. Court of Appeals, however,
definitively foreclosed this argument in Thompson, Myers and
Pitt. In each case, the court concluded that a District employee
who pursues a grievance pursuant to a CBA procedure must
complete the prescribed procedure and therefore must file an
unfair labor practice, if necessary, to compel arbitration. Under
those cases, Johnson’s sole remedy too was to file a complaint
with the PERB.
Second, Johnson argues that the CMPA does not require
administrative exhaustion if an employee opts for the CBA
grievance procedure because the CMPA expressly provides that
the CBA grievance procedure preempts the statutory procedure.
See D.C. Code § 1-616.52(d) (“Any system of grievance
resolution or review of adverse actions negotiated between the
District and a labor organization shall take precedence over the
procedures of this subchapter for employees in a bargaining unit
 11

represented by a labor organization.”).4 The same preemption
clause was in effect when Thompson, Myers and Pitt were
decided and yet the D.C. Court of Appeals concluded that the
employee in each case was required to seek relief from the
PERB. In any event, there is no conflict here between the
CMPA and the CBA, which both prescribe the same procedure.
Under the 1994 CBA, as under the CMPA, Johnson was free to
choose either the statutory appeal process to the OEA or the
1994 CBA grievance procedure which provided for arbitration
subject to appeal to the PERB and only then, by either
procedure, to court. Compare 1994 CBA art. 24, § 1, ¶ 3 and
art. 30 § 8, ¶ 5 with D.C. Code §§ 1-605.02(12) and 1-617.13(c).
Under District case law, in either event, she was bound to follow
the chosen procedure to its conclusion, including resolving the
arbitration impasse that occurred by filing an unfair labor
practice complaint with the PERB. See Thompson, 593 A.2d at
628 n.15; Myers, 652 A.2d at 646-48; Pitt, 954 A.2d at 985-86.
Finally, Johnson argues, as she did before the district court,
that seeking relief from the PERB would have been futile. See
Myers, 652 A.2d at 645 (“employee may be able to bypass
administrative remedies under a collective bargaining agreement
by showing that pursuit of these remedies would be futile”)
(citing Grover v. St. Louis-S.F. Ry., 393 U.S. 324, 330 (1969);
Winter v. Local 639, Int’l Bhd. of Teamsters, 569 F.2d 146,
149-50 (D.C. Cir. 1977)); see also Univ. of Dist. of Columbia

4
Johnson is wrong in asserting that the CMPA “at no point
indicates or states that the PERB is a part of the administrative remedy
for resolving a District of Columbia employee’s grievance pursuant to
an adverse action by a District of Columbia Agency.” Br. of
Appellant at 16. The CMPA expressly confers on the PERB “the
power to . . . [c]onsider appeals from arbitration awards pursuant to a
grievance procedure.” D.C. Code § 1-605.02(6). The 1994 CBA
itself also provides for appeal to the PERB. 1994 CBA art. 30, § 8,
¶ 5.
 12

Faculty Ass’n v. D.C. Fin. Responsibility & Mgmt. Assistance
Auth., 163 F.3d 616, 624 (D.C. Cir. 1998) (“Under prevailing
D.C. and federal law, an employee may bypass the agreed-upon
arbitration procedures only by showing that the ‘grievance
procedures are unreasonable or that the hostility of union
officials makes a fair hearing impossible’ or that ‘pursuit of
[administrative] remedies would be futile.’ ” (quoting Jordan v.
Wash. Metro. Area Transit Auth., 548 A.2d 792, 797 (D.C.
1988); Myers, 652 A.2d at 645)) (alteration in original). This
exception, however, requires “a clear and positive showing of
futility,” Winter, 569 F.2d at 149 (internal quotation omitted),
giving rise to a “ ‘certainty of an adverse decision, ’ ”
Randolph-Sheppard Vendors of Am. v. Weinberger, 795 F.2d 90,
105 (D.C. Cir. 1986) (quoting K. Davis, Administrative Law
Treatise § 20.07 (1958)). Johnson has not made such a showing.
To support her futility claim, she cites several PERB decisions
in which, she asserts, the PERB has expressed its view that it
“lack[s] jurisdiction over alleged violations that are strictly
contractual in nature,” and that this includes, she claims, a
violation of the obligation to arbitrate under a CBA. Br. of
Appellant at 21-22.5 None of the cases she cites, however,
addresses the precise issue here, namely, whether the PERB has

5
See Butler v. D.C. Dep’t of Corr., 49 D.C. Reg. 1152, 1154
(PERB Feb. 8, 2002) (failure to pay night differential wages under
CBA was ‘‘issue of contract interpretation” and therefore not statutory
unfair labor practice subject to PERB jurisdiction); Am. Fed’n of State,
County & Mun. Employees, D.C. Council 20, Local 2921 v. D.C. Pub.
Sch., 42 D.C. Reg. 5685 (PERB Dec. 4, 1992) (District’s refusal to
provide union with written decision is not statutory unfair labor
practice within PERB jurisdiction because providing decision was
required by CBA); Wash. Teachers’ Union, Local 6 v. D.C. Pub. Sch.,
42 D.C. Reg. 5488, 5489 (PERB Nov. 17, 1992) (“alleged unilateral
change in established and bargainable terms and conditions of
employment” is not statutory unfair labor practice within PERB
jurisdiction).
 13

authority to determine whether a union or the District has
committed an unfair labor practice by failing to pursue—or
submit to—arbitration and, if so, to remediate it. By contrast,
the D.C. Court of Appeals has directly addressed this issue, at
least as to a union,6 and has held that the PERB has such
authority. The Myers court stated unequivocally: “There can be
no doubt that PERB has the power, under D.C. Code
§ 1-605.2(3), to order the union to pursue arbitration of an
employee’s claim against the employer if PERB concludes that
the union’s refusal to arbitrate amounted to an unfair labor
practice.” Myers, 652 A.2d at 646;7 see also Pitt, 954 A.2d at
985 (quoting and affirming Myers). Given the holdings in these
two cases that the PERB has authority to determine that the

6
Although the D.C. Court of Appeals has not addressed the issue,
we have no cause to believe that it would not similarly find the PERB
has authority to determine whether the District commits an unfair
labor practice by failing to arbitrate a grievance pursuant to a CBA, in
derogation of its duty to bargain in good faith, see D.C. Code
§ 1-617.04(a)(5) (prohibiting District from “[r]efusing to bargain
collectively in good faith with the exclusive representative”). In any
event, under Myers and Pitt, Johnson could have, based on the
allegations in her complaint, sought relief from the PERB on the
ground the FOP committed an unfair labor practice when it processed
her grievance ‘‘in perfunctory fashion.” Myers, 652 A.2d at 646
(internal quotation omitted); see Pitt, 954 A.2d at 985-86 (union’s
discretion to submit employee’s grievance to arbitration is “ ‘limited
by the union’s duty to represent all employees fairly in the
enforcement of the collective bargaining agreement,’ and its
‘obligation . . . to investigate a grievance in good faith’ ” (quoting
Myers, 652 A.2d at 646)).
7
Then D.C. Code § 1-605.2(3) (now D.C. Code § 1-605.02(3))
provided “The Board shall have the power to . . . [d]ecide whether
unfair labor practices have been committed and issue an appropriate
remedial order.”
 14

failure to arbitrate under a CBA is an unfair labor practice and
to fashion a remedy therefor, it would not have been futile for
Johnson to seek a remedy from the PERB.
For the foregoing reasons, we conclude that under District
of Columbia law, the district court correctly dismissed
Johnson’s complaint against the District for failure to exhaust
her remedies.8 Accordingly, we affirm the judgment of the

8
To the extent Johnson may be entitled to file a separate action
asserting her due process claims, see, e.g., Thompson v. District of
Columbia, 428 F.3d at 287-88, supra note 2, she has waived any
argument based thereon because she waited until her reply brief, see
Reply Br. at 9, to challenge the district court’s conclusion that all of
her claims, including the due process claims, are subject to the
exhaustion requirement, Johnson I, 368 F. Supp. 2d at 44 (“The fact
that [the due process] claim is couched in constitutional terms is of no
moment for the exhaustion inquiry.”). This challenge comes too late.
See Worldwide Moving & Storage, Inc. v. District of Columbia, 445
F.3d 422, 427 n.7 (D.C. Cir. 2006). In any event, with regard to her
first due process claim—that she did not receive timely notice of the
proposal to remove—Johnson concedes that “[t]he grievance
arbitration process would . . . address whether Ms. Johnson was
illegally terminated pursuant to an untimely and inadequate written
pre-termination notice of proposed termination.” Reply Br. at 9. With
regard to her post-termination claim—based on the District’s refusal
to arbitrate—Johnson acknowledges that she “is not alleging that the
due process procedure she was entitled to pursuant to [the 1994 CBA]
was insufficient or inadequate” but that “in violation of her
constitutional rights the District violated its contractual obligation to
provide the . . . post termination procedural due process rights that she
was entitled to pursuant to the CBA.” Id. As already explained,
however, District law provides a process for Johnson to remedy the
District’s refusal, namely, filing a complaint with the PERB. Thus,
like the employees in Myers and Pitt, Johnson had only to make such
a filing to obtain the process she claims was due. She failed to do so.
 15

district court.9
So ordered.

9
In light of our conclusion that Johnson’s sole path to relief lay
through filing a complaint with the PERB to compel arbitration, we
need not address her argument that the district court abused its
discretion when it denied her motions to amend the complaint and to
compel arbitration.