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District of Columbia Housing Authority v. District of Columbia Office of Human Rights8/25/2005
hallenge is to the agency's "inherent" capacity to act, Jones & Artis, 549 A.2d at 324, or where the challenged action is plausibly claimed to be "patently in excess of the agency's authority," Washington Ass'n for Television & Children v. Fed. Commc'ns Comm'n, 229 U.S. App. D.C. 363, 368, 712 F.2d 677, 682 (1983) (internal quotation marks, brackets and citation omitted). Otherwise, the general rule is that even "jurisdictional questions [must] be put to agencies before they are brought to [the reviewing court]." Mitchell, 302 U.S. App. D.C. at 113, 996 F.2d at 379. See, e.g.,Cmty. Hosps. of Cent. Cal. v. Nat'l Labor Relations Bd., 357 U.S. App. D.C. 361, 371, 335 F.3d 1079, 1089 (2003) (finding waived the argument that National Labor Relations Board should not have decided issue not factually related to allegations in unfair labor practice charge); United Transp.Union v. Surface Transp. Bd., 325 U.S. App. D.C. 34, 37-38, 114 F.3d 1242, 1245-46 (1997) (finding waived the argument that Surface Transportation Board exceeded its authority in reviewing arbitration award).
The present case is comparable to Mitchell; it simply does not fall within the narrow Yardmasters category. It is indeed tempting to say, as the District of Columbia Circuit put it in Bayer, that while the requirement to consult an EEO Counselor may be a mandatory administrative remedies exhaustion requirement, it "is not jurisdictional." 294 U.S. App. D.C. at 46, 956 F.2d at 332; see Burton v. District of Columbia, 835 A.2d 1076, 1079 (D.C. 2003) (exhaustion doctrine is not a jurisdictional requirement and is thus subject to waiver, estoppel, and other mitigating factors).
But the outcome here does not turn on labels -- on whether DCHA "contests procedure, not jurisdiction," for example. Jones & Artis, 549 A.2d at 324. It is enough to say that DCHA does not challenge the "composition" or "constitution" of DHR, or DHR's "inherent" capacity to act, and that while it may be unclear whether DHR should have dismissed Brummell's complaint, its failure to do so was not "patently in excess of the agency's authority." We therefore see no sound reason to exercise our discretion to relieve DCHA of the consequences of its acquiescence in DHR's assumption of jurisdiction over Brummell's complaint. Cf. B.J.P. v. R.W.P., 637 A.2d 74, 78-80 (D.C. 1994).
C. DHR's Summary Determination Without an Evidentiary Hearing
The preceding discussion also disposes of DCHA's argument that the Director of DHR should not have decided Brummell's complaint without a full evidentiary hearing. When DCHA was before the DHR, it was content to have the case decided summarily. As DCHA did not request a hearing or object to the Director's decision to render a summary determination (as he was authorized to do by the applicable regulations), and as it failed even to seek reopening of the case when it moved for reconsideration, it forfeited its claim that a hearing was necessary. Acquiescence is waiver, and nothing in this case justifies a deviation from that general rule.
IV.
DCHA's final claim is that the Director's finding of discrimination was not supported by substantial evidence in the record. The Superior Court (Judge Braman) rejected this claim, and we do likewise for essentially the same reasons.
In evaluating claims of discrimination under the D.C. Human Rights Act, we use the same three-part, burden-shifting test adopted by the Supreme Court for discrimination claims under Title VII of the Civil Rights Act of 1964. See Hollins v. Fed. Nat'l Mortgage Ass'n, 760 A.2d 563, 571 (D.C. 2000); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). First, the complaining employee mu
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