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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,

2011, 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.”
                                       11


                                       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;
                                       12

           (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
                                        14

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.”).
                                          15

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.
