Grant v. District of Columbia

545 A.2d 1262, 1988 D.C. App. LEXIS 151, 1988 WL 88075
District of Columbia Court of Appeals·Decided August 22, 1988·No. No. 87-914·Published·Cited by 4 cases

Opinion

ROGERS, Associate Judge:

In this appeal we must decide whether the District of Columbia Office of Employee Appeals (OEA) abused its discretion in terminating for cause an employee in the Career Service after it found that the employee had threatened others with bodily harm and was carrying a knife, and OEA determined that the District of Columbia Department of Employment Services (DOES) had properly made an exception to the thirty-day notice period for an adverse action because the employee constituted an “immediate hazard” to the workplace. We find no abuse of discretion or error in OEA’s interpretation of the applicable regulation, District of Columbia Personnel Regulation § 1608.6(ll)(b), 30 D.C.Reg. 5874, 5898 (Mar. 20, 1983).1

Appellant Francis D.F. Grant appeals from the trial court’s affirmance of the decision of the OEA to terminate him from his employment with DOES. He contends that the decision is not supported by substantial evidence, that termination was an excessive penalty, and that it was procedurally defective since he did not receive the thirty-day notice of adverse action to which he was entitled under § 1608.3(ll)(b).

Under the District of Columbia Comprehensive Merit Personnel Act, D.C. Code § 1-601.1 et seq. (1981), the Mayor is required to promulgate rules and regulations for adverse action proceedings. D.C. Code § l-617.1(a) (1981). A non-probationary employee in the Career Service, other than a special employee appointed under § 1-610.4(2), who has served for at least one year with average performance, may be removed only for cause. Id. § l-617.1(b). “Cause” is defined in the Act to include inexcusable neglect of duty, insubordination, discourteous treatment of a supervisor or other employee, and “[o]ther failure of good behavior during duty hours which is of such a nature that it causes discredit to his or her agency or his or her employment.” Id. § l-617.1(d)(16). OEA is the final administrative appellate authority of adverse actions, subject to judicial review. Id. § l-617.1(c).

The Act also requires each agency of the District government to establish internal rules and regulations for conducting hearings about individual employees. Id. § l-606.4(a). The agency must give an employee ten days advance written notice of a proposed adverse action but need not await expiration of the ordinary notice period

if the employee’s conduct constitutes an immediate hazard to the agency, to other employees of the government, to the employee, or to the detriment of the public health, safety or welfare.

Id. § l-606.4(b).

Pursuant to the Act, the Mayor promulgated regulations for adverse actions. See 30 D.C.Reg. 5874 (Nov. 11, 1983), reprinted in DISTRICT PERSONNEL MANUAL §§ 1600-1608.6. The regulations provide that an employee is entitled to thirty days written notice of a proposed adverse action. District Personnel Regulation § 1604.6, 30 D.C.Reg. at 5885. The notice must state [1264] “any and all causes for which the employee is charged and the reasons, specifically and in detail, for the proposed action[.]” Id. An exception to the thirty-day notice requirement is provided when

there is reasonable cause to believe that the employee’s conduct constitutes an immediate hazard to the agency, to the employee concerned, to other employees, or to the detriment of the public health, safety, or welfare.

Id. § 1604.27. When this exception is invoked, the employee may be placed immediately on administrative leave for a maximum of twenty days. Id. § 1604.28. The regulations also provide a table of penalties. The penalty for discourteous treatment of a supervisor or other employee can range from a reprimand to removal. Id. § 1608.6(1l)(b).

As is true for the trial court, this court’s review of the decision of OEA is limited to a determination of whether there is substantial evidence to support it. Kegley v. District of Columbia, 440 A.2d 1013, 1018 (D.C.1982). Upon review of the record we conclude that the OEA decision to terminate Grant was supported by substantial evidence. McLean v. District of Columbia Dep’t of Employment Servs., 506 A.2d 1135, 1137 (D.C.1986) (quoting Nova Univ. v. Educational Institution Licensure Comm’n, 483 A.2d 1172, 1190 (D.C.1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1759, 84 L.Ed.2d 822 (1985)). Various employees testified about Grant’s actions and threats to do bodily harm with a knife on April 18, 1984, while he was at work. The evidence suggested that Grant was upset because his supervisor had informed him on April 13, 1984, that no promotions were available. Although Grant denied some statements and tried to explain another, questions of credibility are properly resolved by the person hearing the testimony and are not a matter for this court to resolve. See Gunty v. District of Columbia Dep’t of Employment Servs., 524 A.2d 1192, 1197 (D.C.1987) (agency fact finding involving credibility determinations is given great weight (quoting Dell v. District of Columbia Dep’t of Employment Servs., 499 A.2d 102, 106 (D.C.1985))); accord, George Hyman Constr. Co. v. District of Columbia Dep’t of Employment Servs., 498 A.2d 563, 566 (D.C.1985).

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Grant v. District of Columbia, 545 A.2d 1262, 1988 D.C. App. LEXIS 151, 1988 WL 88075 (D.C. 1988).

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