Felton v. NASW

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 22-CV-0176

ELIZABETH FELTON, APPELLANT,

V.

NATIONAL ASSOCIATION OF SOCIAL WORKERS, et al., APPELLEES.

Appeal from the Superior Court

of the District of Columbia

(2020-CA-004634-B)

(Hon. Heidi M. Pasichow, Motions Judge)

(Submitted October 16, 2023 Decided December 7, 2023)

David A. Branch was on the brief for appellant.

Christina Heischmidt was on the brief for appellees.

Before BECKWITH and ALIKHAN, Associate Judges, and THOMPSON, Senior

Judge.

THOMPSON, Senior Judge: This case comes to the court on appeal from the

Superior Court. Petitioner, Elizabeth Felton, seeks reversal and a remand to allow

her to proceed with her retaliation claim against defendants/appellees, National

Association of Social Workers and Angelo McClain, NASW’s Chief Executive

Officer (collectively, “NASW”), which she filed pursuant to the District of

Columbia Human Rights Act (the “DCHRA”). The DCHRA “election of

2

remedies” doctrine requires complainants to elect either an administrative forum

(the District of Columbia Office of Human Rights (“OHR”)) 1 or a judicial forum to

seek redress for claimed DCHRA violations. See D.C. Code § 2-1403.16(a). Here,

the Superior Court ruled that Ms. Felton could not proceed with her DCHRA

retaliation lawsuit because a discrimination complaint she had earlier filed with

OHR was still pending, such that the retaliation lawsuit was barred by the election

of remedies doctrine. For the reasons set forth below, we vacate the Superior

Court’s decision and remand for further proceedings consistent with this opinion.

I. Background

The chronology in this case is as follows. Ms. Felton filed a complaint

alleging race and sex discrimination with OHR on February 1, 2019 (the “February

OHR discrimination complaint” or the “February OHR complaint”). 2 According

to Ms. Felton’s brief, after her February OHR filing, her employer NASW placed

her on administrative leave, revised her job title, expanded her job duties, rejected

1

Under the DCHRA scheme, OHR investigates complaints and determines

whether there is probable cause to believe that there was an unlawful

discriminatory practice, and if it finds probable cause, the Commission on Human

Rights hears the case. See D.C. Code §§ 2-1403.05(a)-(b), 2-1404.02.

2

In May 2022, OHR issued a determination regarding the February 1, 2019,

discrimination claim, finding no probable cause of discrimination based on race or

sex.

3

various requests she made (for jury duty leave, an increased salary, and internal

hearings to address her salary and reprimand), and eventually issued a “final”

reprimand. On July 3, 2019, alleging that these post-February 2019 actions by

NASW were adverse actions that constituted retaliation for engaging in the

protected activity of filing a discrimination claim with OHR and participating in

OHR mediation, Ms. Felton filed a new complaint for retaliation with OHR (the

“July OHR retaliation complaint” or the “July OHR complaint”).

Ms. Felton filed her first lawsuit in Superior Court several months later, on

April 13, 2020 (“Lawsuit #1”). Her one-count complaint alleged that NASW had

violated the DCHRA through the allegedly retaliatory actions described in her July

OHR retaliation complaint. On August 13, 2020, NASW filed a motion to dismiss,

arguing that the then-pending OHR complaints (the February OHR discrimination

complaint and the July OHR retaliation complaint) meant that the lawsuit was

barred under the election of remedies doctrine. Ms. Felton subsequently requested

to withdraw the July OHR complaint, OHR administratively dismissed that

complaint without prejudice on August 26, 2020, and Ms. Felton then informed the

court of the administrative dismissal in her opposition to the motion to dismiss.

Nevertheless, on October 15, 2020, the Superior Court (the Honorable William

Jackson) dismissed Lawsuit #1. Judge Jackson agreed with NASW that the case

“must be dismissed because [it] was filed while [Ms. Felton] still had a claim

4

pending before [OHR],” in contravention of the rule that “the jurisdiction of the

court and OHR are mutually exclusive in the first instance[,]” such that “where one

opts to file with OHR, he or she generally may not also file a complaint in court.”

Judge Jackson concluded that “the filing of [Lawsuit #1] was procedurally

improper.”

On November 6, 2020, a few weeks after Judge Jackson’s dismissal of

Lawsuit #1, Ms. Felton filed her second lawsuit in the Superior Court (“Lawsuit

#2”)—the instant case. Like Lawsuit #1, Lawsuit #2 alleges retaliation in its sole

count. The court (the Honorable Heidi M. Pasichow) noted that at some point Ms.

Felton had two claims pending with OHR and directed Ms. Felton to provide a

status report as to the posture of both claims. After Ms. Felton confirmed that her

February OHR discrimination complaint remained pending, Judge Pasichow

granted NASW’s motion to dismiss the case. Judge Pasichow agreed with NASW

that Ms. Felton “may not proceed in the instant case while an administrative

complaint regarding the same matter remains pending with [OHR].” Judge

Pasichow stated that Ms. Felton’s “filing of the instant matter was, once again,

procedurally improper.” Judge Pasichow granted NASW’s motion to dismiss

“[f]or this sole reason” (declining to address NASW’s argument that Ms. Felton

had failed to state a claim for an adverse action within the meaning of the

DCHRA).

5

Ms. Felton then filed her “Opposed Motion to Alter and Amend Judgment,”

arguing that she “had no obligation to withdraw both [OHR] charges to pursue her

claims in court for only the second charge.” She asserted that the now-withdrawn

July OHR complaint “involved a different set of facts and different legal claims”

than the February OHR complaint. Judge Pasichow denied the motion to alter or

amend on February 24, 2022. In her Order denying the motion, Judge Pasichow

stated that she agreed with NASW that “while Plaintiff has an action pending with

the DCOHR, she cannot proceed with a case in this [c]ourt.” Judge Pasichow also

stated that “[dismissal of [Lawsuit #2] was proper because it was dismissed on the

same grounds as the first lawsuit.”

This appeal followed. Because Judge Pasichow premised her dismissal

ruling on her interpretation of the election of remedies doctrine and did not base

the ruling on any other possible grounds for dismissal, and because, in its brief

filed in this court, NASW has not urged any other ground for affirmance, we

confine our analysis regarding the dismissal order to whether Judge Pasichow erred

in applying the election of remedies doctrine. Our review is de novo because our

analysis turns on an issue of statutory construction. See D.C. Off. of Hum. Rts. v.

D.C. Dep’t of Corr., 40 A.3d 917, 923 (D.C. 2012). We also consider whether the

additional rationale for dismissal that Judge Pasichow articulated in her order

denying the Motion to Alter or Amend warrants letting the dismissal stand.

6

II. Discussion

The DCHRA was designed to “secure an end . . . to discrimination” for any

reason beyond merit and thereby expand remedies for discrimination beyond those

granted by Title VII, 42 U.S.C. § 2000e-2(a) (2003). D.C. Code § 2-1401.01; see

Estenos v. PAHO/WHO Fed. Credit Union, 952 A.2d 878, 887 (D.C. 2008). Citing

that legislative intent, we have said that the DCHRA is a “broad remedial statute”

that is “to be generously construed” in favor of the employee. George Wash. Univ.

v. D.C. Bd. of Zoning Adjustment, 831 A.2d 921, 939 (D.C. 2003); see also

Anderson v. U.S. Safe Deposit Co., 552 A.2d 859, 862 (D.C. 1989) (perceiving no

policy preference in the DCHRA for administrative remedies over resort to the

courts).

The relevant provision of the DCHRA here is D.C. Code § 2-1403.16(a),

which establishes the election of remedies doctrine:

Any person claiming to be aggrieved by an unlawful

discriminatory practice shall have a cause of action in

any court of competent jurisdiction for damages and such

other remedies as may be appropriate, unless such person

has filed a complaint hereunder; provided, that where the

Office [of Human Rights] has dismissed such complaint

on the grounds of administrative convenience, or where

the complainant has withdrawn a complaint, such person

shall maintain all rights to bring suit as if no complaint

has been filed. No person who maintains, in a court of

competent jurisdiction, any action based upon an act

which would be an unlawful discriminatory practice

under this chapter may file the same complaint with the

Office.

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Thus, by its plain language, the “election of remedies” provision of the DCHRA

restricts litigants from proceeding in a judicial forum after filing with OHR unless

(1) OHR dismissed the complaint for convenience or (2) the complainant has

withdrawn the OHR complaint. “[T]o preserve her right to pursue her claims in

court, [a plaintiff is] obliged to withdraw her administrative complaint ‘prior to the

agency’s disposition.’” Carter v. District of Columbia, 980 A.2d 1217, 1223-24

(D.C. 2009) (quoting Brown v. Capitol Hill Club, 425 A.2d 1309, 1312 (D.C.

1981)).

The issue we must decide in this case is whether Ms. Felton’s maintenance of

her February OHR discrimination complaint constituted the election of an

administrative forum, such that Ms. Felton was barred from pursuing in Superior

Court the related retaliation claim that is the sole count of the instant lawsuit.

More generally, the issue is whether the election of remedies doctrine requires a

would-be plaintiff to have withdrawn any pending OHR complaint in order to

proceed in Superior Court on a DCHRA claim, or at least to have withdrawn any

pending OHR claim that is related to the Superior Court action, in order to

withstand a motion to dismiss the Superior Court action. 3 Judge Pasichow

answered these questions in the affirmative, reasoning that the retaliation lawsuit

3

To state the issue more narrowly, the question is whether the DCHRA

should be interpreted to require that a plaintiff bring an underlying discrimination

claim and a subsequent, related retaliation claim in the same forum.

8

was barred on the ground that the February OHR discrimination complaint was “an

administrative complaint regarding the same matter” as the retaliation claim.

NASW defends Judge Pasichow’s reasoning, arguing that the OHR

discrimination complaint and this retaliation lawsuit are “inextricably related.”

NASW highlights Ms. Felton’s assertion in her retaliation lawsuit that the alleged

retaliatory acts stemmed from the filing of her February OHR discrimination

complaint and the mandatory mediation that followed. NASW also highlights that

Ms. Felton’s complaint in the instant retaliation action provided factual details

about both the alleged discrimination and the alleged retaliation. Ms. Felton

counters that her discrimination and retaliation claims did not arise from the same

set of facts, i.e., that the February OHR discrimination complaint “was based on a

specific set of facts which occurred before February 2019,” while the instant

retaliation claim involves facts “which occurred after April 2019.” She asserts that

her claims “never were a single action” and that she had a “right to file multiple

discrimination and retaliation claims.”

For the reasons that follow, we agree with Ms. Felton. We hold (1) that the

DCHRA election of remedies doctrine does not require a complainant to bring an

underlying discrimination claim and a subsequent, related retaliation claim in the

same forum and (2) that, as a matter of law, these claims are not “the same matter.”

9

The second sentence of § 2-1403.16(a) states unambiguously that if a

complainant maintains in a judicial forum “any action based upon an act which

would be an unlawful discriminatory practice under this chapter,” that complainant

cannot bring “the same complaint” in an administrative forum. See also Brown,

425 A.2d at 1311 (“[W]here a person opts to file an unlawful discriminatory

practice suit in court, such person is barred from filing, thereafter, an identical

complaint with OHR.” (emphasis added) (construing the DCHRA as previously

codified)). By contrast, the first sentence of § 2-1403.16(a)—addressing the

converse situation where a complainant has first “filed a complaint hereunder [with

OHR]” and then wishes to proceed to court—does not utilize the “same complaint”

language. However, given that the DCHRA does not incorporate a preference for

administrative resolution of claims brought under the statute, see Anderson, supra,

552 A.2d at 862, we see no reason to think that our legislature intended to apply a

more preclusive standard to complainants who resort first to the OHR

administrative forum and then decide to seek redress in court instead. Thus, we

read the first sentence of § 2-1403.16(a) to authorize “a cause of action in any

court of competent jurisdiction for damages and such other remedies as may be

appropriate, unless such person has filed [the same complaint with OHR]

hereunder” (and the OHR complaint has not been dismissed for administrative

convenience or withdrawn). See Brown, 425 A.2d at 1312 (stating that a

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complainant who “chose not to file his complaint in court but rather, to file with

OHR” thereby “lost his right to bring the same action in court” absent applicability

of one of the statutory exceptions) (emphasis added). It would be contrary to the

legislative objective that the DCHRA be “broad[ly] remedial” to read the first

sentence of § 2-1403.16(a) as denoting that the filing of any complaint with OHR

pursuant to the DCHRA would bar a complainant from thereafter filing a DCHRA

lawsuit based on different conduct. 4 See Locklear v. Dubliner, Inc., 721 F. Supp.

1342, 1343 (D.D.C. 1989) (explaining that the HRA was designed to “expand the

remedies,” not to focus all claims into an administrative channel).

Further, while it seems beyond cavil that the facts underlying a complaint

about retaliatory actions taken in reprisal for filing a discrimination claim will

always be related to the underlying discrimination claim, a retaliation claim is not

“the same matter” as the underlying claim. While the parties have not included

Ms. Felton’s February OHR complaint in the record, we can say as a matter of

logic that actions alleged to have been taken in retaliation for her filing that

complaint (and described in her withdrawn July OHR complaint and in the instant

retaliation lawsuit) must necessarily have arisen after the February OHR

4

Indeed, such a literal reading of the first sentence of § 2-1403.16(a) would

bar a complainant from filing a DCHRA lawsuit even if she had previously filed an

OHR complaint that was totally unrelated to the allegations of the lawsuit.

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discrimination complaint was filed. Thus, the instant retaliation lawsuit cannot be

premised on the same conduct comprehended within that February administrative

filing. Moreover, there can be retaliation for filing a discrimination claim even if it

is found that there actually was no unlawful discrimination. 5 Likewise, there can

be a meritorious discrimination claim even if complained-of subsequent acts

alleged to have been taken in reprisal were not in fact retaliatory. In addition,

OHR investigatory efforts directed at determining whether there is probable cause

to believe that unlawful discrimination occurred do not eliminate the need for

discovery and trial regarding whether there was retaliation for bringing a

discrimination complaint. For these reasons, considerations of adjudicatory

economy and avoidance of duplicative efforts do not persuade us to hold that a

pending OHR discrimination claim bars the maintenance of a retaliation lawsuit.

We conclude for all the foregoing reasons that the Superior Court erred in

ruling that Ms. Felton’s then-pending OHR discrimination claim was “an

administrative complaint regarding the same matter” and required dismissal of her

retaliation lawsuit. We note, moreover, that to hold that Ms. Felton’s maintenance

5

See, e.g., D.C. Dep’t of Pub. Works v. D.C. Office of Hum. Rts., 195 A.3d

483, 487 (D.C. 2018) (noting that OHR made a no-probable-cause finding as to

complainant’s claim that he was subjected to disparate treatment because of his

race, but found probable cause as to the claim that the employer gave the

complainant a retaliatory performance evaluation because the complainant had

filed the racial discrimination claim).

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of her February OHR discrimination complaint precluded her from pursuing her

retaliation lawsuit would effectively deny her a forum in which to pursue her

retaliation claim. Cf. Griffin v. Acacia Life Ins. Co., 925 A.2d 564, 573-74 (D.C.

2007) (broadly construing the “administrative convenience” election doctrine

exception to cover an OHR dismissal pursuant to the agency’s worksharing

agreement with the EEOC because refusing to do so would deny the appellant “any

forum in which to pursue her retaliation claim”); Wilson v. Wal-Mart Stores, 729

A.2d 1006, 1010 (N.J. 1999) (“It would be a paradox if a legislative scheme

intended to increase the choice of remedies for victims of discrimination had the

unintended consequence of leaving a [New Jersey Law of Discrimination]

complainant remediless.”). Ms. Felton cannot now petition to reopen her

withdrawn July 2019 retaliation case because a complainant must submit a request

to reopen “a complaint previously closed for administrative reasons or voluntarily

withdrawn . . . within thirty (30) days of receipt of the order dismissing the

complaint.” 4 D.C.M.R. § 708.3.

As a final matter, we consider whether the alternative rationale Judge

Pasichow gave in her ruling denying the Motion to Alter or Amend provides a

basis for upholding the dismissal ruling. The discussion above has already shown

why the first cited rationale for denying the motion to alter or amend (the rationale

that “while Plaintiff has [a discrimination] action pending with the DCOHR, she

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cannot proceed with a [retaliation] case in this [c]ourt”) does not provide a basis

for upholding the dismissal of Lawsuit #2. In an alternative rationale, Judge

Pasichow stated that “[dismissal of [Lawsuit #2] was proper because it was

dismissed on the same grounds as the first lawsuit.” In adopting that rationale,

Judge Pasichow appeared to accept NASW’s argument that Ms. Felton was

“estopped from relitigating whether she can proceed with a lawsuit purportedly

based upon her [withdrawn] July 3, 2019 Charge while her February 1, 2019

Charge is still pending.” 6 NASW had also asserted that Judge Jackson “held that

the Complaint in Lawsuit #1 must be dismissed in its entirety because the active

February 1, 2019 [c]harge was related to the allegations and claim asserted in

Lawsuit #1.”

However, it appears that neither of these was Judge Jackson’s rationale for

dismissing Lawsuit #1. As NASW asserted elsewhere in its opposition to Ms.

Felton’s Motion to Alter or Amend, Judge Jackson dismissed Lawsuit #1

“[b]ecause both [c]harges were pending before the agency at the time [Ms. Felton]

filed the Complaint in Lawsuit #1.” Because that was not the situation when Ms.

Felton filed Lawsuit #2, there was no occasion to dismiss Lawsuit #2 “on the same

grounds as the first lawsuit” (even if the status of Ms. Felton’s OHR complaints at

6

NASW has not made an estoppel argument in its brief in this appeal.

14

the time she filed her lawsuit had been the relevant inquiry). 7 Nor did Judge

Jackson hold, as NASW claims, “that the Complaint in Lawsuit #1 must be

dismissed in its entirety because the active February 1, 2019 Charge was related to

the allegations and claim asserted in Lawsuit #1.” Judge Jackson made no

statement about the relatedness of the claims in the February OHR complaint and

the claim in Lawsuit #1. It is true that both judges dismissed Ms. Felton’s lawsuits

as “procedurally improper,” but the reasons for those determinations differed.

Accordingly, we discern no basis for upholding the dismissal of Lawsuit #2 for the

reasons cited in the order denying the Motion to Alter or Amend. We are satisfied

7

The relevant inquiry, for evaluating whether a complainant has made an

election of the administrative forum that precludes her from proceeding in court,

should focus on the status of the pending administrative complaint at the time the

complaint is withdrawn, not on whether the complaint was pending at the time a

lawsuit was filed. See Carter, 980 A.2d at 1223-24. Specifically, the relevant

facts include whether OHR was actively investigating the case or had “completed

its investigation,” Brown, 425 A.2d at 1312, and whether it had arrived at a

determination of probable cause vel non. Here, the record contains no evidence

that OHR had progressed to either stage with respect to Ms. Felton’s retaliation

claim.

We note that in applying the New Jersey Law Against Discrimination, N.J.

Stat. Ann. §§ 10:5-13, 10:5-27, which is similar to the DCHRA, courts have

observed that “the purpose of the exclusivity provision was not thwarted by

allowing the plaintiff to proceed with her civil action even though her

[administrative discrimination] complaint was withdrawn after the action was

filed.” Lemke v. International Total Servs., 56 F. Supp. 2d 472, 482-83 (D.N.J.

1999); see also Wilson, 729 A.2d at 1010 (rejecting the “arbitrary result[]” that a

complainant who withdrew an administrative complaint before filing a judicial

action could proceed, while a plaintiff who withdrew after filing could not).

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that Ms. Felton’s challenge to Judge Pasichow’s dismissal ruling did not amount to

a belated challenge to Judge Jackson’s dismissal order.

III. Conclusion

For the foregoing reasons, we vacate the Superior Court’s decision and

remand for proceedings consistent with this opinion.

So ordered.