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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 12-CV-1403
DISTRICT OF COLUMBIA METROPOLITAN
POLICE DEPARTMENT, APPELLANT,
v.
DISTRICT OF COLUMBIA OFFICE OF
EMPLOYEE APPEALS AND JAMES O‟BOYLE, APPELLEES.
Appeal from an Order of the
Superior Court of the District of Columbia
(MPA-2048-10)
(Hon. Brian F. Holeman, Trial Judge)
(Argued January 28, 2014 Decided April 10, 2014)
Holly M. Johnson, 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 appellant.
Robert E. Deso for appellee James O‟Boyle.
Lasheka Brown Bassey filed a statement in lieu of brief for appellee District
of Columbia Office of Employee Appeals.
Before FISHER and THOMPSON, Associate Judges, and PRYOR, Senior Judge.
PRYOR, Senior Judge: Appellant, District of Columbia Metropolitan Police
Department (MPD), appeals the decision of the D.C. Superior Court affirming the
2
District of Columbia Office of Employee Appeals (OEA) order on remand from
the OEA Board that reversed appellee James O‟Boyle‟s termination from MPD
and reduced his four-month suspension without pay to twenty days. On appeal,
appellant first argues that the OEA erred as a matter of law when it held that the
“indefinite suspension without pay” and subsequent termination of appellee
constituted unlawful “double punishment” for his driving while intoxicated
(“DWI”) arrest and conviction. Second, appellant argues that the OEA abused its
discretion when it found that appellant had not legitimately distinguished appellee
from other MPD members arrested and convicted of DWI or driving under the
influence of alcohol (DUI) who had not been terminated. We reverse and remand
for further proceedings consistent with this opinion.
I.
On April 5, 2004, while off-duty, appellee was driving his personal vehicle
when he struck another motorist in Virginia and was arrested for driving while
intoxicated (“DWI”), with a blood-alcohol content of .27—more than three times
the legal limit. The day after the arrest, appellee entered voluntary leave-without-
pay status with MPD to pursue treatment for his alcohol addiction, which consisted
of a five-day, in-hospital program, and twenty-seven days residential treatment
program.
3
On July 21, 2004, appellee was tried and convicted of DWI and sentenced to
180 days in jail with 170 days suspended, his driver‟s license was suspended for a
year, and he was fined $500. Appellee was incarcerated for ten days. On August
11, 2004, MPD served appellee with advance notice of its intent to change his
status from voluntary leave without pay to “Indefinite Suspension Without Pay
pending the final outcome of this case.” Appellee appealed to MPD, but his appeal
was denied on August 30, 2004, and the suspension went into effect on September
14, 2004. MPD‟s final notice of suspension advised appellee that he could appeal
the suspension to the Chief of Police and also pursue arbitration or appeal to OEA.
The record does not reveal that appellee pursued these options.
On September 22, 2004, MPD completed its investigation of appellee,
concluding that he should be cited for adverse action, and on November 8, 2004, it
served appellee with advance notice of termination. Appellee was advised that he
could request a hearing, but he did not request a hearing, offer any mitigating
evidence, or contest the facts of MPD‟s investigative report. On December 3,
2004, MPD concluded, based on the evidence in its report, that appellee‟s conduct
warranted his termination.
4
On December 15, 2004, appellee appealed his termination to the Chief of
Police, arguing that discipline following his suspension without pay amounted to
an impermissible second disciplinary action for the same conduct and that his
discipline was disproportionate to that imposed on other similarly situated MPD
officers. The Chief of Police denied the appeal and set appellee‟s discharge to be
effective January 8, 2005. On February 1, 2005, appellee appealed his termination
to the OEA, reiterating his arguments as stated earlier. On October 17, 2006, the
OEA upheld the termination, finding that the suspension was only an interim
measure, not disciplinary, and that appellee was not similarly situated to the other
MPD employees convicted of DUI or DWI.
On appeal, the OEA Board reversed and remanded the OEA‟s decision,
finding that “suspension of an Employee without pay is a disciplinary adverse
action,” and that appellee‟s “subsequent termination therefore constitutes a double
punishment for the same alleged misconduct.” The Board also found that
appellee‟s termination was unreasonably disproportionate to the penalties imposed
on other MPD employees convicted of DUI or DWI. On remand, the OEA
reduced appellee‟s termination to a thirty-day suspension, with ten days held in
5
abeyance. Appellant appealed the decision of the OEA to the D.C. Superior Court,
which affirmed the OEA‟s decision.
II.
On appeal from the Superior Court, this court reviews decisions of OEA as
though the appeal has been taken directly to this court. Brown v. District of
Columbia Dep’t of Corr., 993 A.2d 529, 532 (D.C. 2010). “When reviewing an []
OEA decision, we . . . „must affirm the OEA‟s decision so long as it is supported
by substantial evidence in the record and otherwise in accordance with law.‟”
Dupree v. District of Columbia Office of Emp. Appeals, 36 A.3d 826, 830 (D.C.
2011) (quoting Settlemire v. District of Columbia Office of Emp. Appeals, 898
A.2d 902, 905 n.4 (D.C. 2006)). “[W]e will only reverse where the OEA‟s action
was arbitrary, capricious, or an abuse of discretion.” Jahr v. District of Columbia
Office of Emp. Appeals, 19 A.3d 334, 340 (D.C. 2011) (internal quotations
omitted). In turn, the OEA‟s review of an agency decision “is limited to simply
ensur[ing] that managerial discretion has been legitimately invoked and properly
exercised.” Id. (internal quotation omitted). The OEA may not “substitute its
judgment for that of the agency in deciding whether a particular penalty is
appropriate.” Stokes v. District of Columbia, 502 A.2d 1006, 1011 (D.C. 1985)
(quotation omitted). It may overturn the agency‟s decision only if it finds that the
6
agency “failed to weigh the relevant factors, or that the agency‟s judgment clearly
exceeded the limits of reasonableness.” Id.
III.
The primary issue in this appeal stems from the order of the OEA which
reversed a termination order relating to appellee and reinstated him as a member of
the police force. As stated, appellant contends that the OEA erred on two grounds
when it vacated the termination order. On the other hand, appellee relies upon the
OEA‟s ruling that his unpaid suspension was an adverse disciplinary action and
therefore appellant‟s subsequent termination of appellee constituted unlawful
“double punishment” for his conviction of driving a vehicle while intoxicated.
Appellee argues that appellant lost its ability to exercise its statutory authority to
impose an interim suspension because it failed to cite the pertinent statutory
provision as the basis for its actions.
(A)
Before suspending an employee without pay, MPD must provide the
employee with written notice of the proposed suspension. D.C. Code § 1-
616.54 (c). Notice may be accomplished in person, D.C. Code § 1-616.54 (c), by
“leaving a copy at the employee‟s home with some person of suitable age and
7
discretion who is present,” DCMR 6-B1620.8 (2013), or by reading the notice to
the employee over the phone prior to actual delivery of the written notice. D.C.
Code § 1-616.54 (c). Written notice must inform the employee of the following:
“(1) The reasons for the proposed enforced leave; (2) The beginning and ending
dates of administrative leave; (3) The beginning date of the proposed enforced
leave; (4) His or her right to respond, orally or in writing, or both, to the notice;
and (5) His or her right to be represented by an attorney or other representative.”
D.C. Code § 1-616.54 (d). Prior to the suspension, MPD must initially place the
employee “on administrative leave for a period of 5 work days, followed by
enforced annual leave or, if no annual leave is available, leave without pay.” D.C.
Code § 1-616.54 (b). MPD is authorized to continue the employee‟s suspension
until “action . . . [is] taken as a result of the event that caused this administrative
[suspension] . . . or a determination is made that no such action . . . will be taken.
D.C. Code § 1-616.54 (b).
Appellant served appellee with written notice of the proposed interim
suspension without pay, “pending resolution of the [ ] administrative action against
[him].” The notice states that the serving officer left the notice at appellee‟s door
on August 17, 2004. The record is unclear whether the notice was posted to the
door, or left with someone of suitable age. In any case, it is clear that appellee
8
received the notice because he made a timely appeal of the proposed suspension on
August 26, 2004.
The notice explained that suspension was being proposed for “conduct
unbecoming an officer,” because “on Wednesday, July 21, 2004, in Fairfax
County, VA, Sergeant James O‟Boyle was convicted of driving while
intoxicated[,] . . . was sentenced to 180 days in jail with 170 days suspended[,] . . .
was fined $500.00 and has a 12-month suspended license.” The notice also stated
that the suspension would not become effective until fifteen days after receipt of
the notice, and that appellee had a right to respond to the proposed action and have
a representative of his choosing. Appellee‟s suspension then went into effect on
September 14, 2004.
When appellee was served with the suspension notice, he was already on
voluntary leave without pay, which he had taken so that he could be available for
his DWI trial, to be incarcerated for the DWI conviction, and undergo two alcohol
treatment programs. On appeal, appellant stated that it first placed appellee on
9
leave without pay because presumably he had already exhausted his administrative
leave with pay and his annual leave.1
(B)
The D.C. Code, DCMR, and MPD‟s General Order No. 1202.1 authorize
MPD to impose interim administrative suspension without pay until the agency
completes its own investigation and determines whether discipline should be
imposed. See D.C. Code §§ 1-616.54 (a)(3), (b), (c); 6B DCMR §§ 1620.1(c),
1620.4, 1620.12(a)-(c), 1620.14, 1620.15; MPD General Order No. 1202.1
(D)2(b)(1). It is expressly provided that such interim suspension “is not a
corrective or adverse action,” 6B DCMR § 1620.2, and is “distinguished from
disciplinary suspension imposed as punishment following a final determination of
misconduct.” MPD General Order No. 1202.1 (D)2(b)(1). This statement of
legislative (and rule-making) administrative procedure, reiterated three times, is an
indication that a thoughtful and comprehensive process is envisioned with regard
to an officer‟s suspension or termination. At bottom, appellee, in viewing the
undisputed evolving events in this case, urges that appellant‟s failure to expressly
cite the pertinent statutory authority pertaining to suspensions from duty
1
Appellee has not presented any evidence in the record demonstrating that
he had any accrued and unused administrative paid-leave or annual leave available.
10
necessarily causes the suspension to be an adverse action. It is not surprising that
there is no precedent or other authority offered to support this contention as there is
no such requirement. Nonetheless we observe it is good practice, in an effort to
avoid litigation, as here, for appellant to state the authority upon which it relies in
matters of this kind. Indeed we also observe that appellee did not pursue some of
the administrative remedies which were available to him.
Applying our standard of review to the findings of fact and evidence of
record determined by the OEA on remand, we conclude that there was not
substantial evidence to support the findings. See Dupree, 36 A.3d at 830. Thus we
conclude that the OEA erred in vacating the order terminating appellee‟s
appointment as an officer of the District of Columbia Police Department.
Appellee‟s unpaid suspension was an authorized interim administrative
suspension—rather than final adverse action—authorized pursuant to the District
of Columbia Comprehensive Merit Personnel Act (“CMPA”), D.C. Code § 1-
616.54 (2006 Repl.), and therefore appellee‟s subsequent termination does not
constitute “double punishment.”
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IV.
Appellant also asserts that the OEA abused its discretion when it found that
there was disparate treatment of appellee because appellant had not legitimately
distinguished appellee from other MPD members arrested and convicted of DWI or
driving under the influence of alcohol (DUI) who had not been terminated. To
justify appellee‟s punishment, appellant was required to prove that it had a
legitimate basis for distinguishing appellee from other MPD members convicted of
DUI or DWI who were not terminated. See Stokes v. District of Columbia, 502
A.2d 1006, 1009-11 (D.C. 1985). When reviewing the penalty imposed by an
agency, the OEA is guided by the principles established in Douglas v. Veterans
Admin., 5 M.S.P.R. 280 (M.S.P.B. 1981). The twelve Douglas factors are:
(1) The nature and seriousness of the offense, and its
relation to the employee‟s duties, position and
responsibilities, including whether the offense was
intentional or technical or inadvertent, or was committed
maliciously or for gain, or was frequently repeated;
(2) the employee‟s job level and type of employment,
including supervisory or fiduciary role, contacts with the
public, and prominence of the position;
(3) the employee‟s past disciplinary record;
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(4) the employee‟s past work record, including length of
service, performance on the job, ability to get along with
fellow workers, and dependability;
(5) the effect of the offense upon the employee‟s ability
to perform at a satisfactory level and its effect upon
supervisors‟ confidence in the employee‟s ability to
perform his assigned duties;
(6) consistency of the penalty with those imposed upon
other employees for the same or similar offenses;
(7) consistency of the penalty with any applicable agency
table of penalties;
(8) the notoriety of the offense and its impact upon the
reputation of the agency;
(9) the clarity with which the employee was on notice of
any rules that were violated in committing the offense, or
had been warned about the conduct in question;
(10) the potential for employee rehabilitation;
(11) mitigating circumstances surrounding the offense
such as unusual job tensions, personality problems,
mental impairment, harassment, or bad faith, malice or
provocation on the part of others involved in the matter;
and
(12) the adequacy and effectiveness of alternative
sanctions to deter such conduct in the future by the
employee or others.
Brown v. Watts, 993 A.2d 529, 532, n.3 (D.C. 2010) (quoting Douglas, 5 MSPB
313, 5 M.S.P.R. at 305-06).
13
On remand, the OEA could overturn appellant‟s decision only if it found that
appellant “failed to weigh the relevant factors, or that the agency‟s judgment
clearly exceeded the limits of reasonableness.” Stokes v. District of Columbia, 502
A.2d 1006, 1011 (D.C. 1985). Without assessing appellant‟s Douglas analysis, or
considering any of the Douglas factors, the OEA concluded that appellee had not
received the same treatment as similarly situated employees and overturned
appellee‟s termination. Appellant had submitted an affidavit from its Director of
Human Resources attesting that the agency had used the Douglas factors and
determined that termination was the appropriate penalty for appellee.
Appellant had addressed several Douglas factors in its rationale for
terminating appellee when it issued its final notice of adverse action. It addressed
the first Douglas factor, finding that appellee‟s misconduct was “of an egregious
nature,” and noting that he had been arrested with a blood-alcohol content “over
three times the legal limit” in Virginia, “served ten (10) days” in jail, and had his
“driver‟s license . . . suspended for 12 months.” Other similarly situated officers
had served no such jail time for their offenses. Appellant also assessed the eighth
Douglas factor, finding that appellee‟s offense “tended to erode public confidence
and respect of [MPD].” Finally, appellant addressed the second and eleventh
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Douglas factors, as appellee held a supervisory rank, had “failed to offer any
evidence to mitigate, exonerate, or controvert” his action, had “shown [his]
disregard for the responsibilities and standards of conduct [he] accepted as a law
enforcement officer,” and his behavior was “unacceptable and contrary to the
expectations of the community.” We conclude that the OEA erred by overturning
appellee‟s termination, which was consistent with the range of penalties permitted
for such conduct, without assessing appellant‟s Douglas analysis or considering
any of the Douglas factors.2
V.
The final issue we address on appeal is whether appellee should be
compensated for lost wages. On remand, OEA ordered that appellant‟s action
suspending appellee from August 30, 2004, until January 8, 2005, would be
modified and reduced to a thirty-day suspension, with ten days held in abeyance,
and that appellant reinstate appellee and reimburse him all pay and benefits lost as
2
We also reject appellee‟s argument that appellant forfeited its right to
distinguish him from other MPD members because it did not articulate its Douglas
analysis before he was terminated. There is no requirement that an agency
articulate its Douglas analysis before terminating an employee. See Boucher v.
USPS, 118 M.S.P.R. 640, 649 (M.S.P.B. 2012) (In fact, “the agency‟s burden
[under Douglas] . . . is triggered by the appellant‟s initial showing that . . . the
agency treated similarly-situated employees differently.”).
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a result of the “removal and excessive suspension.” The only relevant provision on
the record before this court pertaining to the issue of retroactively restoring pay
states, “[i]f the basis for placing an employee on enforced leave pursuant to this
section does not result in the taking of a disciplinary action . . . any annual leave or
pay lost as a result of this administrative action shall be restored retroactively.”
D.C. Code § 1-616.54 (g) (emphasis added).
Given our reversal of OEA‟s order, and our decision to uphold appellant‟s
interim suspension and termination decisions, there is no justification for
reimbursement of lost wages associated with appellee‟s termination or suspension.
Appellee asserts that during his interim suspension, appellant should have first
placed him on paid administrative leave for a period of five work days, and then
allowed him to use annual leave or compensatory time. Appellee, however, was
already on voluntary leave without pay when he was served with the suspension
notice—so that he could undergo two alcohol treatment programs and serve jail-
time for the DWI offense—suggesting that he did not have any available paid
administrative leave, annual leave or compensatory time. Appellee did not present
any evidence or make any argument on the record that he had available paid
administrative leave, annual leave or compensatory time; rather he merely asserts
that appellant did not consider his leave status when it suspended him. We
16
conclude, therefore, that the OEA erred when it ordered appellant to reimburse
appellee for all pay and benefits lost as a result of the “removal and excessive
suspension.” Appellee is not entitled to pay lost as a result of this administrative
action.
Accordingly, the OEA‟s order is hereby
Reversed.