dissenting:
With all deference to my colleagues, I am unable to concur in the affirmance of an agency order which seems to be not only unsupported by evidence on the merits of the case, but also issued in complete disregard of the statute of limitations. I am referring to that portion of the order which transforms a voluntary resignation on the part of the disgruntled employee, Elisa Jan-etis, into a constructive discharge and, on the basis of that erroneous finding, awards heavy damages for backpay , and emotional distress.
I
In my opinion, whatever financial loss complainant suffered was self-inflicted. Even accepting as true the complainant’s own version of the admonitions of her supervisor, Rachel Morgret — the grounds of her original complaint of discrimination — it is apparent that such criticisms were intended to induce the complainant not to quit, but to improve her job performance by eliminating some causes for dissatisfaction with it. Had the supervisor some other purpose in mind, she would have had no occasion on the three month evaluation to have complimented complainant for her phone skills and treatment of visitors, while simultaneously pointing out some aspects of her behavior that this supervisor and other members of the staff found offensive. Only two of these, disheveled hair and overtight blouses, related to “personal appearance.” 1 The other three — rudeness to coworkers and messengers, boisterous behavior, and creating an unfavorable impression — are not matters protected by the D.C. Human Rights Act. It was in response to complainant’s own question, not anything Mrs. Morgret volunteered, that complainant learned of a remark by a company official (McKeithen) that her conduct at an office party was such that “if he had not known better, he would have thought she was a prostitute.”2 Apparently, it was Morgret’s summary of McKeithen’s comment that led Janetis the next day to file a complaint with the Commission, for in defending the Commission’s subsequent action, government counsel argued that this insulting characterization created “intolerable” working conditions which justified complainant in quitting her job. It should be noted, however, that insulting or otherwise, McKeithen’s reaction was not based on complainant’s “personal appearance,” but upon her seemingly flirtatious conduct with one of the guests, a gentleman whose conversation with McKeithen she had interrupted.
Complainant in her testimony also dwells upon previous rebukes by Morgret because of unseemly posture, sleeping on an office sofa, and noisy conduct in a restaurant — all of which she resented. The Commission was at pains to review the conflicting testimony on these incidents — although quite irrelevant to the Human Rights Act — and make findings to the effect that most of these criticisms by Morgret were unjustified.
The majority opinion (note 3) concedes that criticism about behavior is not an element of personal appearance discrimination. Yet, it is clear that these criticisms were the gravamen of Janetis’ complaint of discriminatory treatment. Why such criticisms should be viewed as having any relevance to conduct protected by the statute or treated as the Commission did as “merely pretexts of harassment ... motivated by *1105disapproval of her personal appearance,” is something of a mystery.3
II
Wholly aside from these considerations, however, the majority’s refusal to hold that the Commission was barred by the statute of limitations from entertaining the belated constructive discharge complaint, cannot be supported. Such refusal flies in the face of the wording of the statute, D.C.Code § l-2544(a) (1981), and its authoritative construction in a controlling decision of this court.
This subsection of the code — one of the provisions of the District of Columbia Human Rights Act, id. §§ 1-2501, -2557, inclusive — requires that complaints “shall be filed ... within one year of the occurrence of the unlawful discriminatory practice....” Intervenor’s original complaint was filed on September 26, 1979, while she was still employed by petitioner. The complaint charged her employer with discrimination by harassing her on the basis of personal appearance (manner of dress), sex (female), and race (white). About a week later (October 3, 1979), she submitted a letter of resignation and quit her employment the same day.
Obviously, the last two grounds asserted in the complaint were frivolous, and the Office of Human Rights (OHR) in investigating the charges, found probable cause only to credit the allegations based on personal appearance, but not on race or sex. The report of the investigation shows that OHR was informed that Janetis had resigned from her employment, but there is nothing in the document (referred to in the majority opinion as a “letter of determination” dated May 23, 1980) to indicate that she accused the company of forcing her to quit under circumstances tantamount to a constructive discharge.
It was not until more than two years later after leaving her job that she ever complained to the agency that she had been constructively discharged. According to the final decision of the Commission itself, the issue was raised by counsel for the complainant at a pre-hearing conference on October 28, 1981, conducted by a hearing examiner. The parties were then told to submit memoranda of law. After directing, several months later, that Janetis amend the complaint to include the allegation of constructive discharge, the Commission on the basis of evidence concerning events prior to, but also subsequent to the filing of the original complaint, sustained this allegation in a decision ordering back-pay for a period of some 15 months.4 Such action by the Commission was plainly in excess of its statutory authority. It flouted a decision of this court, Davis v. Poto*1106mac Electric Power Co., 449 A.2d 278 (D.C.1982), where we held:
The Act makes clear that the one year limitation period in which an aggrieved party may file a complaint applies to administrative proceedings before the Office of Human Rights (OHR), D.C. Code § 6-2284(a) (1973).5
Id. at 280.
Having reached this conclusion, we then were confronted with the question of whether this period of limitations should apply to plaintiffs in actions commenced in the Superior Court for redress of discrimination under the Human Rights Act, as well as to persons seeking remedial action by an agency. We decided that it did, and went on to hold that an employee who had begun a suit under the Human Rights Act alleging discrimination in promotion was not entitled to amend his complaint twenty months after his employment was terminated to allege a retaliatory discharge, despite (a) the general three-year statute governing actions at law, and (b) the liberal rules of the trial court, Super.CtCiv.R. 15 (c), on amendments to pleadings. As we pointed out:
The fiction of “relation back” is of obvious importance to one seeking to avoid the bar interposed by the period of limitation. The rule is founded upon the premise that once litigation involving a particular core of fact has commenced, a defendant is not entitled to the protection afforded by a statute of limitations against the subsequent assertion of claims arising out of the events described in the original pleadings. 6 Wright & Miller, Federal Practice and Procedure, Civil, § 1496, at 482-83. However, a new cause of action may not be set forth in an amended complaint by setting up new matter or changed circumstances arising after the filing of the original complaint. Where the claimant attempts to allege an entirely different transaction by amendment, the new claim is subject to the statute of limitations defense. Id. § 1497, at 489-90.
In this instance, appellant was not discharged until approximately two weeks after the original complaint was filed. Rule 15(c) does not rescue allegations based upon events that had not yet occurred at the time the original complaint was filed.
Davis, supra, 449 A.2d at 281.
In disregard of this observation, the Commission’s decision in justifying allowance of the amendment to the complaint on the ground that the employer was then given “sufficient time to prepare a defense,” said: “No prejudice was seen to result to the respondent [i.e., the employer] since the issue of constructive discharge depended upon the same evidence necessary to resolve the issues already before the Commission.”
Again, the Commission misstated the facts, for its disposition of the discharged issue was bolstered by findings relating to events which had not occurred when the original complaint was filed, viz., the threats of retaliation and the recommendation that complainant resign attributed to Twine in his subsequent interviews with complainant and her attorney.
My colleagues in their opinion also lean heavily upon these post-complaint events, pointing out that because the Commission accepted (despite Twine’s denial) the account of these conversations given by Jane-tis and her lawyer, the employer had violated another subsection of the Human Rights Act which makes it unlawful to threaten or retaliate against employees exercising rights granted under the Act. D.C.Code § 1-2525 (1981). But even assuming that the amendment to the complaint (constructive discharge) encompassed Twine’s threats of retaliation, this did not justify the agency in entertaining a charge filed a whole year after the statute of limitations had run. In Davis, supra, we held that a similar motion to amend (retaliatory discharge) was barred by the running of that *1107statute. As we pointed out in that opinion, plaintiff by “setting up new matter or changed circumstances arising after the filing of the original complaint, where the claimant attempts to allege an entirely different transaction by amendment, the new claim is subject to the statute of limitations defense.” 449 A.2d at 281 (citations omitted).
Nor is it true that petitioner, ARCO, suffered no prejudice by the belated raising of the discharge issue. As petitioner points out, such delay deprived it of an opportunity to deal with this issue through conciliation. Even were lack of prejudice relevant in cases where the statute of limitations is pleaded as a defense, the belated filing of the complaint caused severe financial damage to petitioner. Had ARCO received timely notice of a discharge complaint, it could have tolled the running of backpay — quite irrespective of the merits— by offering reinstatement to the employee. But by the date this charge was added, it was impossible to take such a precautionary step as complainant was no longer unemployed.
In an attempt to avoid the dispositive impact of our Davis decision on this case, my colleagues find “ARCO's reliance on Davis to be misplaced.” Instead, they rely upon two opinions of this court that neither dealt or even mentioned the applicable statute of limitations, § 1-2544 (a) supra, viz., Stevens Chevrolet, Inc. v. District of Columbia Commission on Human Rights, 498 A.2d 546 (D.C.1985), and JBG Properties, Inc. v. District of Columbia Office of Human Rights, 364 A.2d 1183 (D.C.1976). A fair reading of these opinions reveals that it is the majority reliance upon them that is misplaced rather than ARCO’s reliance on Davis.
We are told that Stevens Chevrolet distinguished the Davis holding from cases in which the aggrieved party goes to court rather than to an administrative agency for relief. Such observation ignores the explicit premise of Davis, quoted supra, to the effect that the period of limitations in the Human Rights Act clearly applies to an administrative proceeding. Moreover, there is not a word in the Stevens opinion to show that the division which handed down that decision “distinguished the Davis holding.” It would have had no occasion to do so, for the complaint in that case was timely filed — only two months after the complainant’s discharge — thus, foreclosing any of the parties from invoking § 2544(a). What the petitioner in Stevens sought was to set aside an adverse order of the Commission on the ground that the hearing examiner, who had heard the testimony upon which the agency made its ultimate findings, had never filed a report stating his own findings of fact and therefore the final Commission order violated the Administrative Procedure Act. We agreed with this contention, vacated the order, and remanded the case for a new hearing.
What the majority opinion in this case refers to as the rule that should govern here, was our disposition of Steven’s request for additional relief, viz., dismissal because of administrative delay. This was only a minor aspect of the Steyens opinion. In a footnote,6 we denied this request saying that the complainant, as well as the employer, had a right to a proper hearing when the delay was not the fault of either party. Such ruling of course is not peculiar to review of administrative agency orders, but is also applicable to appeals in ■damage actions, where an appellant who successfully argues that a judgment should not be permitted to stand after an erroneous trial ruling precluded a relevant defense, is held entitled to a new trial, but not dismissal.
The notion that OHR in the instant case was some how derelict in its duty by not *1108adding a constructive discharge allegation to the complaint after having learned within the one year period of complainant’s letter of resignation, is something made out of whole cloth by the Corporation Counsel’s office when called upon to defend the challenged order of the Commission. A voluntary resignation, no matter how petulantly worded, does not imply — let alone prove — a constructive discharge. Obviously OHR had no reason to advise complainant that she should amend her complaint when it never occurred to her that her resignation was not purely voluntary. The Commission itself, as I have noted, found that this issue was not raised by complainant until two years after she had resigned. I find it strange that the majority opinion should adopt a theory which the Commission’s own findings — as distinguished from the brief of its defenders — clearly negate.
Reliance on JBG Properties is equally wide of the mark. That case preceded the Davis opinion by several years, but was cited with approval in one of the footnotes to the latter. There we decided that a slightly belated service of process — a breach of the agency rules of practice, not the statute of limitations — was not so prejudicial that the complaint should be dismissed. Such holding was entirely consistent with decisions of this court disapproving of the severe sanction of dismissal in cases where counsel fail to meet deadlines set by Superior Court rules in filing memo-randa or other pleadings, e.g., National Voter Contact, Inc. v. Versace, 511 A.2d 393 (D.C.1986).
Thus, in my view, it is impossible to distinguish this case from Davis. The federal cases cited by the majority did not construe the local statute and have no bearing here. Accordingly, under our own rules of decision, the Commission’s finding of constructive discharge and the back pay award should be vacated. M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971).
. The D.C. Human Rights Act, D.C.Code § 1-2512 (1981), in addition to forbidding discrimination in employment on the basis of race or sex, also forbids discrimination against an employee on the ground of "personal appearance." The complainant in her testimony at the hearing admitted that she could have avoided criticism of her apparel by the office supervisor had she worn clothing more "loose fitting."
. Commission Final Decision and Order No. 9-P-643, p. 9. In view of this disclaimer, the statement in the majority opinion faulting the *1105company for comparing her behavior to that of a prostitute seems a bit exaggerated.
. To sustain this finding as supported by "substantial evidence" disregards repeated holdings of the Supreme Court that "substantial evidence is more than a mere scintilla.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951); Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938). Moreover, if the Commission’s conclusion that complainant’s appearance was "similar to other employees” was justified — as the majority opinion holds — how could such appearance, if merely the product of Mor-gret’s imagination, support Janetis’ “claim that she was treated differently than other employees because of her personal appearance?"
. The Commission attempted to justify this ruling by stating that "the complainant's failure to appreciate the necessity of amending her complaint within one year of her termination was not chargeable to her — a lay person.” The term “lay person” implies that complainant lacked any professional legal advice at the time she voluntarily terminated her own employment. Even were there a clause in the Act authorizing agency waiver of the statute of limitations under such circumstances — which there is not— the findings of the Commission itself .disclose this was not the fact. According to these findings she did consult a lawyer after her conference with the office manager (Twine) and it was at her request that he presented her supposed grievance to Twine a day or two later. It may have been her lawyer’s account of what happened at that interview which prompted her decision to quit her job, but it did not occur to either of them that the resignation was made under circumstances warranting a claim of discharge.
. Now codified in the 1981 revision of the D.C. Code as § l-2544(a), supra.
. Stevens Chevrolet, supra, 498 A.2d at 551 n. 7.