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District of Columbia Housing Authority v. District of Columbia Office of Human Rights8/25/2005
was added in 1986 to ensure that the statute of limitations does not prevent the District government from bringing suit to enforce public rights. See District of Columbia Water & Sewer Auth. v. Delon Hampton & Assocs., 851 A.2d 410, 414 (D.C. 2004); District of Columbia v. Owens-Corning Fiberglas Corp., 572 A.2d 394, 397 (D.C. 1989). While it is debatable whether the proviso applies to a case such as this one, we need not address it. DCHA petitioned for review in Superior Court within three years of DHR's final decision. Its petition therefore was timely whether or not § 12-301 applied to it.
III.
DCHA asserts that because Brummell did not pursue counseling in accordance with applicable regulations before filing his discrimination complaint, DHR was without authority to adjudicate the matter and its determination was a nullity. We conclude that DPAH and DCHA waived this claim by failing to raise it with DHR or even in the Superior Court. We reach the same conclusion as to DCHA's claim, which also is raised for the first time on appeal, that it was entitled to an evidentiary hearing on Brummell's complaint.
A. Regulatory Framework
Chapter 1 of Title 4 of the District of Columbia Municipal Regulations ("Human Rights and Relations") governs complaints of discrimination in the District of Columbia government. D.C. Mun. Regs. tit. IV, § 100 et seq. (2005). The regulations first were promulgated in 1984, pursuant to D.C. Code § 1-2543 (1981) (re-codified at D.C. Code § 2-1403.03 (a) (2001)), which grants the Mayor authority to "establish rules of procedure for the investigation, conciliation, and hearing of complaints filed against District government agencies, officials and employees alleging violations of [the Human Rights Act]."
The regulations specify that each District government agency must designate one or more "EEO [Equal Employment Opportunity] Officers" and "EEO Counselors." D.C. Mun. Regs. tit. IV, § 104.1. A District government employee who believes he or she has been discriminated against on a prohibited basis (including national origin or age) "shall consult an EEO Counselor within calendar days of the occurrence of the alleged unlawful practice or days of his or her discovery of the occurrence, except that a complaint of sexual harassment may be filed directly with the Office [of Human Rights (or, formerly, DHR)]." Id. § 105.1. Upon notification by the complaining employee, the EEO Counselor is to inquire into the complaint, counsel the employee and seek an informal resolution of the matter. Id. § 105.2.
The EEO Counselor is enjoined to conduct a final interview with the complaining employee within twenty-one days of the date on which the employee brought the matter to his or her attention. Id. § 105.3. During the final interview, the Counselor shall advise the employee in writing of his or her right to file a formal complaint with OHR (or, formerly, DHR) within the following fifteen days if the matter has not been resolved to the complainant's satisfaction. Id. § 105.4. If the Counselor fails to complete the review and action within the prescribed time limits, the complainant is free to file a complaint with OHR (or DHR) (or, alternatively, in Superior Court, see D.C. Code § 2-1403.16) upon the expiration of twenty-one days after the matter was brought to the Counselor's attention. Id. § 105.7. If the EEO Counselor does conduct a timely final interview, the fifteen-calendar-days limit within which the employee may file a complaint must be observed, unless "good cause" prevents timely submission. Id. § 106.1-.2.
Upon the filing of a timely discrimination complaint, the Office (or DHR) investigates the claim
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