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District of Columbia Housing Authority v. District of Columbia Office of Human Rights8/25/2005
to "determine whether reasonable cause exists to believe that a violation has occurred," "based on, and limited to, evidence obtained by the Office." Id. §§ 106.5, 107.1-.6, 108.4. To assist this investigation, the EEO Counselor at the employing agency is to provide a written report on his inquiry and recommendations. Id. § 105.2. If OHR (or DHR) makes a determination of "reasonable cause," the parties are encouraged to attempt "conciliation." Id. § 108.5. If they are unwilling or unable to settle, the complainant is afforded the opportunity to request either a summary determination or a formal hearing on his or her claim. Id. § 108.9.
If, as happened in this case, the complainant does not request a formal hearing, the Director of OHR (DHR) "may make a summary determination on the merits of a complaint based solely upon information in the complaint file." Id. § 109.1; see also § 109.9. The Director is authorized to dismiss the complaint or order remedial action, "including, but not limited to, hiring, reinstatement, promotion, rescission of adverse action, or award of compensatory credits which are authorized by existing personnel regulations and statutes." Id. § 109.2; see also § 109.3 (authorizing dismissal).
Where there has been no formal hearing, the Director's decision "shall be transmitted by letter" to the parties "stating the basis for the decision, including findings of fact, analysis, and conclusions of law." Id. § 114.6. Either party then has fifteen days within which to request reconsideration or reopening of the case. Id. §§ 109.5, 114.4, 114.7. If the Director denies the request, the decision previously issued becomes the final administrative action of the District government in the matter for all purposes, including judicial review. Id. §§ 114.10, 114.7.
B. Brummell's Failure to Consult with an EEO Counselor
DCHA asserts that DHR should have dismissed Brummell's complaint because he did not consult first with an EEO Counselor at DPAH in accordance with the regulatory procedure outlined above. Its own failure to raise this argument before the agency or in Superior Court must be excused, DCHA argues, because Brummell's failure to seek counseling deprived DHR of "jurisdiction" over his complaint. We disagree; even if Brummell's procedural default would have 18 required DHR to dismiss his complaint, had the point been raised, it did not implicate DHR's power to act on his complaint in the relevant sense. DCHA therefore has waived its right to object on the basis of Brummell's misstep.
"We have long held that we will not review a procedural claim that was not adequately raised at the agency level. Administrative and judicial efficiency require that all claims be first raised at the agency level to allow appropriate development and administrative response before judicial review. . . . Failing to object at a time when an error complained of on appeal could be corrected below is sufficient to work a forfeit of that claim on appeal." Fair Care Found. v. District of Columbia Dep't of Ins. & Sec. Regulation, 716 A.2d 987, 993 (D.C. 1998) (internal citations and quotation marks omitted); see also Goodman v. District of Columbia Rental Hous. Comm'n, 573 A.2d 1293, 1301 (D.C. 1990) ("In the absence of exceptional circumstances, a reviewing court will refuse to consider contentions not presented before the administrative agency at the appropriate time."); Jones & Artis Constr. Co. v. District of Columbia Contract Appeals Bd., 549 A.2d 315, 324 (D.C. 1988). " imple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the admin
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