Newman v. District of Columbia

ROGERS, Associate Judge,

concurring in part, dissenting in part:

The majority holds that exclusivity provisions found in the District of Columbia Comprehensive Merit Personnel Act, D.C. Code §§ 1-601.1 to -637.2 (1981 & 1986 Supp.), do not bar appellant Newman from maintaining a common law action for intentional infliction of emotional distress. 1 In reaching its conclusion, the majority gives cursory treatment to the issue whether the District of Columbia Human Rights Act preempts the common law action for intentional infliction of emotional distress, and ignores the separate, secondary question whether employees nonetheless are required to exhaust the available administrative remedies when the underlying facts of the common law action are identical to those covered by the Human Rights Act. Similarly, in holding that the Merit Personnel Act does not preempt the common law action for intentional infliction of emotional distress, the majority fails to address whether employees nonetheless must exhaust available administrative remedies when the underlying facts are covered by the statutory scheme. For the reasons set forth below I conclude that District of Columbia employees first must exhaust their administrative remedies under the Human Rights Act whenever the underlying basis of their complaint involves discrimination in the workplace.

Although related, preemption and exhaustion issues are analytically distinct. Preemption raises the question whether the legislature intended to foreclose a common law right by substituting a new or conflicting provision or by otherwise occupying the field. Brown v. General Services Administration, 425 U.S. 820 , 96 S.Ct. 1961 , 48 L.Ed.2d 402 (1976). The question whether to impose an exhaustion requirement typically involves a more open ended inquiry. The issue is raised whenever the legislature has erected a procedurally and substantively elaborate structure for handling a particular kind of claim. Courts then generally presume that the legislature contemplated an exhaustion requirement, but will engage in a balancing of various factors in certain circumstances. See 4 K. Davis, AdministRative Law TREatise § 26.-1, at 414-15 (1983). Two important factors cutting against imposing the requirement would be the futility of resorting to the agency, Apartment & Office Building Association v. Washington, 343 A.2d 323 (D.C.1975) (challenge of statutory authority), and, where relief would necessarily be incomplete, the time and delay of pursuing other agency relief. Factors cutting in favor of the requirement are the need for *707 coherent and complete development of the factual record, the importance of reflecting the agency’s expertise or policy preferences in the final result, and the probability that the agency will satisfactorily resolve the question without judicial review. See K. Davis, supra, at 414-15.

The D.C. Human Rights Act

The District of Columbia did not raise the argument that the Human Rights Act preempts any common law torts, and the majority concludes that it did not. Supra at p. 702 n. 8. I agree, but would analyze the issue differently.

The majority relies primarily on Alexander v. Gardner-Denver Co., 415 U.S. 36, 47-49 , 94 S.Ct. 1011, 1019-20 , 39 L.Ed.2d 147 (1974), for the proposition that victims of discrimination should not have their avenues of redress curtailed by an act designed to expand their remedies. Supra at 702 n. 8. This begs the question whether the act was in fact designed to expand both remedies and channels. Moreover, the Alexander case involved an interpretation of Title YII of the Civil Rights Act of 1964. The analogy to the Human Rights Act is imperfect because Title VII applied to the context of private employment and thus did not implicate sovereign immunity. More importantly, the legislative history behind Title VII explicitly “manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes.” Alexander, supra, 415 U.S. at 48 , 94 S.Ct. at 1019 ; see also Johnson v. Railway Express Agency, 421 U.S. 454, 459 , 95 S.Ct. 1716, 1719 , 44 L.Ed.2d 295 (1975).

Subsequently, the Supreme Court in Brown v. General Services Administration, supra, reached precisely the opposite preemption conclusion with regard to the federal employment antidiscrimination provisions that were added to the Civil Rights Act by the Equal Employment Opportunity Act of 1972. See also Kizas v. Webster, 227 U.S.App.D.C. 327 , 707 F.2d 524 (1983). From the fact that Congress perceived then current remedies to be ineffective, the Supreme Court inferred that “the congressional intent in 1972 was to create an exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination.” Brown v. General Services Administration, supra, 425 U.S. at 829 , 96 S.Ct. at 1966 . The Court’s primary reliance, however, was on the “balance, completeness, and structural integrity” of the act. Id. at 832 , 96 S.Ct. at 1967 . In upholding the dismissal of the employee’s other statutory claims, the Court wrote that the:

crucial administrative role ... in the eradication of employment discrimination would be eliminated ‘by the simple expedient of putting a different label on [the] pleadings.’ Preiser v. Rodriguez, 411 U.S. 475, 489-90 , [ 93 S.Ct. 1827, 1836 , 36 L.Ed.2d 439 ] (1973). It would require the suspension of disbelief to ascribe to Congress the design to allow its careful and thorough remedial scheme to be circumvented by artful pleading.

Id. at 833, 96 S.Ct. at 1968 . Finally, the Court cited the proposition that, in a variety of contexts, a precisely drawn, detailed statute preempts a more general remedy. Id. at 834 , 96 S.Ct. at 1968 .

Under the D.C. Human Rights Act, only public employees are required to submit their claims through an administrative proceeding. Thus, the instant case is facially more similar to Brown than it is to Alexander . The Human Rights Act is structurally different from the Civil Rights Act and the Equal Employment Act, however, because it makes a single general, and substantively identical, grant of protection from discrimination to the entire public. District Government employees are only treated differently from a procedural perspective. Section 1-2543 provides that:

Notwithstanding any other provision of this chapter, the Mayor shall establish rules of procedure for the investigation, conciliation and hearing of complaints filed against District government agencies, officials and employees alleging vio *708 lations of this chapter. The final determination in such matters shall be made by the Mayor or his designee.

Also, unlike the Equal Employment Act, the Human Rights Act does not impose liability on the District through an elaborate and comprehensive structure. Instead, it merely requires the Mayor to establish a system that will allow the District to process such claims before making an appearance in court. Therefore, in looking at the statute alone, there is insufficient evidence to support the proposition that the Council of the District of Columbia intended to eliminate any common law rights. Accordingly, Alexander would govern the rights given to the public, and the statute gives District Government employees the same protections.

Common law causes of action can also be abrogated by regulations promulgated within the scope of the administrator’s authority. No direct abrogation can be found in this case, but the granting of any additional rights could also be considered evidence that the administrator, in this case the Mayor or his delegate, intended to replace a particular cause of action. Section 101.1 of the Mayor’s “Equal Employment Opportunity Rules,” 31 D.C.Reg. 56, states that the “provisions of these rules shall govern the processing of any matter involving discrimination ...” (emphasis supplied), and other provisions include and define actions such as sexual harassment as a form of discrimination. Still, nothing in these regulations gives any indication of an intent to alter substantive rights, 2 and there is no reference to the intentional infliction of emotional distress or to the pertinent compensatory damages.

The survival of a common law cause of action, however, does not also decide the question whether administrative remedies must be exhausted. In this case, § 101.1 of the Mayor’s rules suggest that all claims arising out of discrimination in the workplace should be processed through the established administrative procedures. While § 1-2543 of the Human Rights Act refers only to “violations of this chapter,” this language does not speak to the question whether other claims supported by the same facts must await administrative adjudication of claims under this chapter. But requiring such exhaustion would ensure coherent, consistent, and complete development of the factual record, would incorporate the agency’s expertise or policy preferences in the final result, and may lead to the satisfactory resolution of many questions without judicial review. See K. Davis, supra, at 414-15.

The objection that requiring Newman to exhaust his administrative remedies would be futile because the agency will not adjudicate a claim for the intentional infliction of emotional distress, and he will inevitably have to enter a court in order to obtain compensatory damages for emotional distress, fails for several reasons. First, the futility doctrine is ordinarily confined to situations in which the agency lacks the power to address the central issue, such as the scope of its authority or a constitutional claim, or in which there is no reasonable chance that it will do so. See, e.g., Apartment & Office Building Association v. Washington, supra (challenge of statutory authority). Second, there is a strong possibility that Newman would be able to obtain a full redress of his injuries through the prescribed proceedings. There are no cases on the subject, but the statutory language of § 1-2556 refers only to “damages,” which presumably would be interpreted in the standard broad fashion. 3 See *709 also Lamont v. Rogers, 479 A.2d 1274, 1277 (D.C.1984) (some compensatory damages available under section 19(b) of May- or’s Order). Finally, the factors in favor of imposing an exhaustion requirement outweigh any futility present. Cf. Williams v. District of Columbia, 467 A.2d 140 , 142 n. 7 (D.C.1983).

The D.C. Comprehensive Merit Personnel Act

Under this analysis, the majority need not have reached the issue whether the Merit Personnel Act preempts all work related common law claims, or the separate issue whether an exhaustion remedy nonetheless applies. Although the majority’s conclusion on the preemption issue may be correct, it would be correct only because worker’s compensation statutes have traditionally been limited to disabilities that have physical manifestations and that limit the ability to work. Thus, exhaustion should not be required for this reason, and because it would be more futile and less helpful than in the employment discrimination context.

The Merit Personnel Act provides specified compensation for “the disability or death of an employee resulting from personal injury sustained while in the performance of his [or her] duty.” D.C.Code § 1-624.2 (1981 & 1986 Supp.). The salient issue is whether the phrase “physical injury” should be construed to include the intentional infliction of emotional distress. 4

The Personnel Act is similar in pertinent part to the Federal Employees Compensation Act, 5 U.S.C. §§ 8101-8193 (1982) (“FECA”) and most other workers’ compensation laws. See majority opinion, supra, at 13-14. In a directly analogous case, as the majority points out, this court has ruled that FECA does not cover claims for emotional distress. 5 Mason v. District of Columbia, 395 A.2d 399 (D.C.1978). The court wrote that mental suffering caused by humiliation and embarrassment “would not be within the ambit of FECA” and. that the plaintiff need not have proceeded thereunder. Id. The court quoted with approval the following language:

The type of injuries covered in 5 U.S.C. § 8101 (5) includes injury by accident and disease; it does not appear to include such claims as are presented here for discrimination, mental distress, or loss of employment.

Id. at 403 , quoting Sullivan v. United States, 428 F.Supp. 79, 81 (E.D.Wis.1977). More recently, another court has written that FECA applies only to “job-related physical injury [and not to] mental suffering, humiliation, embarrassment or loss of employment.” Lawrence v. United States, 631 F.Supp. 631, 636-37 (E.D.Pa.1982). 6 *710 The clear emphasis of workers’ compensation laws is on protecting against physical disability. Compare Tredway v. District of Columbia, 403 A.2d 732, 734 (D.C,), cert. denied, 444 U.S. 867 , 100 S.Ct. 141 , 62 L.Ed.2d 92 (1979); Griffin v. United States, 703 F.2d 321 , 322 n. 3 (8th Cir.1983); 2A A. LaRSon, WoRkmen’s Compensation Law § 65.14, at 12-9 (1982).

For similar reasons, there would be little purpose served by requiring an exhaustion of administrative remedies. There are substantial issues of fact, such as intent and outrageousness, that would not be addressed in an administrative hearing under the Personnel Act. There is only a very small chance that damage claims would be satisfied by any workmen’s compensation schedule. Finally, the agency would have little to offer in the way of expertise or legitimate policy emphasis.

Accordingly, I would affirm the dismissal of both the common law and statutory causes of action for failure to exhaust the administrative remedies under § 1-2543 of the Human Rights Act.

. Neither I nor the majority reach the issue raised by appellant’s breach of contract claim. Supra at 7Ó6 n. 12.

. The inference from § 100.5, that only certain specified rights remain, is too thin a reed on which to find an intent to abolish common law remedies. See, e.g., Shaw v. North Pennsylvania R.R., 101 U.S. (11 Otto) 557, 565, 25 L.Ed. 892 (1879). Section 100.5 provides that D.C. employees retain "certain rights” to file complaints with EEOC, 42 U.S.C. § 2000e-5, and to pursue remedies under the Age Discrimination in Employment Act, 29 U.S.C. § 626 , 633.

. The cases decided under Title VII, 42 U.S.C. § 2000e et seq. are split on the issue whether damages for emotional distress can be recovered. For cases authorizing such damages, see Williams v. Trans World Airlines, 660 F.2d 1267 *709 (8th Cir.1981); Humphrey v. Southwestern Portland Cement Co., 369 F.Supp. 832 , rev'd on other grounds, 488 F.2d 691 (5th Cir.1973).

. The majority assumes that a lack of coverage precludes any finding of preemption, arguing that the workers’ compensation scheme entails a strict quid pro quo. The issue is not so simple. The D.C. Council could have intended to deny emotional distress recovery entirely. Moreover, the "bargain" status of the scheme must be evaluated on the comprehensive programmatic level, and not with respect to specific individual provisions.

. D.C.Code § 1-624.1(5) defines injury as:

In addition to injury by accident, a disease proximately caused by the employment and damage to or destruction of medical braces, artificial limbs and other prosthetic devices which shall be replaced or repaired, and such time lost while such device or appliance is being replaced or repaired: Except, that eyeglasses and hearing aids would not be replaced, repaired or otherwise compensated for, unless the damage or destruction is incident to a personal injury requiring medical services.

The definition of "injury" is identical under § 8101 of FECA.

.In Mason, supra, 395 A.2d at 403 , the court noted state cases that have found coverage of nonphysical injury are less persuasive because they involved psychological conditions that were so severe as to constitute partial or total disability. See Pathfinder Co. v. Industrial Commission, 62 Ill.2d 556 , 343 N.E.2d 913 (1976) (severe emotional shock); Simon v. R.H.H. Steel Laundry, 25 N.J.Super. 50, 95 A.2d 446 (Hudson County Ct.1953) (severe nervous condition); Kalikoff v. John Lucas & Co., 271 App.Div. 942 , 67 N.Y.S.2d 153 (1947) (psychoneurosis). More *710 over, FECA is more similar to, and is the predecessor of, the Merit Personnel Act.