D.C. Dep't of Health v. D.C. Office of Emp. Appeals

273 A.3d 871

DISTRICT OF COLUMBIA DEPARTMENT OF HEALTH, Appellant,

v.DISTRICT OF COLUMBIA OFFICE OF EMPLOYEE APPEALS & Clarence F. Stanback, Jr., Appellees.

No. 20-CV-655

District of Columbia Court of Appeals.

Argued October 1, 2021

Decided April 28, 2022

Harrison Stark for appellant. Karl A. Racine, Attorney General for the District of the Columbia, Loren AliKhan, Solicitor General (at the time of argument), Caroline S. Van Zile, Principal Deputy Solicitor General (at the time of argument), Ashwin P. Phatak, Deputy Solicitor General, and Mary L. Wilson, Senior Assistant Attorney General, were on the brief for appellant.

Lasheka Brown Bassey filed a Statement in Lieu of Brief on behalf of appellee District of Columbia Office of Employee Appeals.

James E. McCollum, Jr., College Park, MD, for appellee Clarence Stanback.

Before Beckwith, Easterly, and Deahl, Associate Judges.

Deahl, Associate Judge:

Certain District employees, when they are not meeting expectations at work, can be placed on Performance Improvement Plans, or PIPs. A PIP is a "tool designed to offer the employee ... an opportunity to demonstrate improvement in his or her performance." 6B D.C.M.R. § 1410.2 (2017).¹ The regulations governing PIPs provide a two-part timeline that is relevant here: (1) a PIP "shall last for a period of thirty (30) to ninety (90) days," with no extensions permitted beyond the ninetieth day, and (2) any determination that the employee did not satisfactorily meet the PIP requirements, and the resulting consequences, must be communicated in writing to the employee "[w]ithin ten (10) calendar days of the end of the PIP period." 6B D.C.M.R. §§ 1410.3, 1410.5. The regulations also specify that any failure "to issue a written decision within the specified time period will result in the employee's performance having met the PIP requirements." 6B D.C.M.R. § 1410.6.

This appeal concerns the consequences of an employer's failure to comply with the above timeline. The District of Columbia Department of Health (DOH) placed its employee Clarence Stanback on what was purported to be a 101-day PIP—eleven days longer than the regulations permit. DOH then notified Stanback of his termination six days after that period concluded, or on day 107 after the PIP began. That was seven days beyond the maximum 100-day period (ninety plus ten) that the regulations allow in total for a PIP and a written determination to be completed.

Stanback challenged his termination before the Office of Employee Appeals (OEA), which agreed with him that DOH's contravention of the ninety-day PIP period and the 100-day PIP-plus-determination deadline precluded his termination. The D.C. Superior Court affirmed. DOH now appeals and maintains that its violation of the regulatory timeline was harmless so that it was free to terminate Stanback based on its determination that he did not satisfactorily meet the PIP requirements. We disagree and affirm.

I.

In 2004, Clarence Stanback began his employment at DOH as a public health analyst in the Addiction Prevention and Recovery Administration. In September 2016, he was subject to a reduction in force and reassigned to a position in DOH's Office of Health Equity. The responsibilities of Stanback's new position included "review[ing] and analyz[ing] a broad array of programs, projects, health data and information in order to advise policy development and health impact assessments to raise the health standards of residents of the District." Stanback was expected to have "[k]nowledge of, and proficien[cy] in the use of operating a personal computer (PC), utilizing various software (i.e., Microsoft [W]ord, Excel, Access, PowerPoint, etc.), and a willingness to learn new technology associated with assigned work tasks combined with strong analytical skills and experience working with large databases."

After several months on the new job, Stanback's supervisor determined that he was not meeting expectations. Stanback was presented with an Individual Performance Plan (IPP) in January 2017. The IPP identified five "Specific, Measurable, Attainable, Realistic and Time-Related" (S.M.A.R.T.) goals with an attendant deadline for each goal, the last of which fell on September 30, 2017. Dissatisfied with Stanback's progress under the IPP, Stanback's supervisor next presented him with a more formal Performance Improvement Plan (PIP) on June 21, 2017. The PIP informed Stanback that he was failing "to meet the minimum requirements of the position," and articulated the same five S.M.A.R.T. benchmarks that had been identified in his IPP. The PIP also set specific deadlines for meeting each of those five goals. Stanback's due date for meeting the fifth and final benchmark was September 30, 2017, or 101 days after the PIP's June 21, 2017, start date. Stanback filed a grievance complaining that the benchmarks in his PIP were too onerous to satisfy within the permitted ninety-day period, though that initial grievance did not mention or complain that his PIP exceeded the ninety-day period by eleven days.

On October 6, 2017—107 days after the PIP began and six days after its stated end date—Stanback's supervisor informed him via written memo that he had not met the PIP requirements and that she was recommending his termination. DOH subsequently provided Stanback with formal notice of his proposed termination, citing as its sole reason Stanback's failure to meet the PIP benchmarks. A DOH hearing officer reviewed the proposed termination and recommended sustaining it, finding that the goals of the PIP were consistent with Stanback's position. Shortly thereafter, DOH gave Stanback final notice of his termination, effective December 22, 2017. Once again, the only reason provided for Stanback's termination was his failure to meet the PIP requirements.

Stanback timely appealed his termination to the Office of Employee Appeals the following month. In a subsequently filed amended petition he argued, for the first time, that DOH's contravention of the time restrictions on PIPs meant that, by operation of the regulations themselves, he had "met the PIP requirements." See 6B D.C.M.R. § 1410.6. In Stanback's view, he had passed his PIP when his supervisor failed to issue a written decision informing him of his proposed termination within 100 days from the inception of his PIP—taking the maximum ninety-day PIP period and the maximum ten-day determination period together. An OEA Administrative Judge agreed with Stanback and reversed his termination. Because no party petitioned the OEA Board for review, the Administrative Judge's decision became OEA's final decision. See 6B D.C.M.R. § 632. DOH appealed the final decision to the Superior Court, which affirmed on the same basis: that DOH had contravened the mandatory timetable for issuing PIP determinations. DOH now appeals.

II.

Although this is an appeal from a Superior Court judgment upholding an OEA decision, we review OEA's order "precisely the same as in administrative appeals that come to us directly." District of Columbia Fire & Med. Servs. Dep't v. District of Columbia Off. of Emp. Appeals , 986 A.2d 419, 424 (D.C. 2010) (internal quotation marks omitted). We will affirm if OEA's decision "is supported by substantial evidence in the record and otherwise in accordance with law."

Miller v. District of Columbia Off. of Emp. Appeals , 237 A.3d 123, 126 (D.C. 2020) (internal quotation marks omitted). There is no dispute about the evidentiary record in this appeal, which instead concerns only a question about how to interpret the District's personnel regulations. We generally " ‘defer to the OEA's interpretation of the personnel regulations,’ given its ‘expertise in administering and enforcing’ those regulations." Id. at 127 (quoting Hutchinson v. District of Columbia Off. of Emp. Appeals , 710 A.2d 227, 234 (D.C. 1998) ). However, we will not defer to an interpretation that "is unreasonable in light of the prevailing law, inconsistent with the statute [or regulation], or plainly erroneous." Off. of the District of Columbia Controller v. Frost , 638 A.2d 657, 666 (D.C. 1994) (internal quotation marks omitted).

The regulations relevant to this appeal are as follows: (1) a PIP "shall last for a period of thirty (30) to ninety (90) days," with no extensions permitted beyond the ninetieth day, 6B D.C.M.R. §§ 1410.3, 1410.5(a); (2) the employer "shall make a determination" regarding whether the employee has met the PIP's requirements "[w]ithin ten (10) calendar days of the end of the PIP period," 6B D.C.M.R. § 1410.5 ; and (3) "[f]ailure ... to issue a written decision within the specified time period will result in the employee's performance having met the PIP requirements." 6B D.C.M.R. § 1410.6.

We agree with OEA that a straightforward reading of these regulations provides that Stanback's PIP did not extend beyond the ninetieth day from its start date, and thus terminated by September 19, 2017.² That, in turn, means a written determination regarding whether Stanback had met the PIP requirements was due by September 29, 2017. Because no determination was issued before that date, the regulations provide that Stanback is deemed to have met the PIP requirements.

DOH resists this conclusion by taking a divide-and-conquer approach to the regulations. In its view, the PIP lasted until September 30 per its very terms, and while that end date exceeds the ninety-day maximum by eleven days, that is harmless error because the ninety-day cap is "directory" rather than "mandatory." As support for this point, DOH invokes precedents in which we have said that a statute or regulation "imposing a time limit within which a public official must act which does not specify the consequences of noncompliance is meant to be directory" and not a mandatory "limitation of the power of the officer." See Teamsters Loc. Union 1714 v. Pub. Emp. Rels. Bd. , 579 A.2d 706, 710 (D.C. 1990) (citing JBG Props., Inc. v. District of Columbia Off. of Hum. Rts. , 364...