If the DC Office of Human Rights dismisses my private-sector discrimination complaint for no probable cause, can I appeal to the DC Commission on Human Rights for review?

Plain-English summary

DC's anti-discrimination process has two stages. The Office of Human Rights (OHR) investigates a complaint and decides whether there is "probable cause" to believe discrimination happened. If there is, the case moves to the Commission on Human Rights for adjudication and remedies. If OHR finds no probable cause, the case is dismissed.

For decades, an old set of procedural rules (Part 4 of Title 8 D.C.R.R., dating to 1971) said a complainant could appeal that no-probable-cause dismissal to the Chairman of the Commission for review by three commissioners. The Commission still claimed this review power into the 1980s. A complainant whose case had been dismissed by OHR pointed to those old rules and asked the Commission to review.

Acting Corporation Counsel Inez Smith Reid concluded that the old review rule had been silently repealed. Here is the chain. In 1971, the same body (the Human Relations Commission) made probable-cause determinations and could delegate the work to its own Executive Director, with internal appeal to a Commission panel. In 1973, the Council restructured everything by enacting Title 34 D.C.R.R., the Human Rights Law. The 1973 law took the probable-cause power away from the Commission and gave it to the Office of Human Rights, with no provision for Commission review. The 1977 Human Rights Act reenacted the same scheme. So the foundation that supported Commission review (its own underlying probable-cause authority) was gone. The Commission cannot keep an appellate role over a power it no longer holds.

The result under the 1983 opinion: a complainant whose case was dismissed by OHR for no probable cause had no internal appeal at the Commission. The opinion suggested that the complainant might seek equitable relief in Superior Court and might also have a Title VII claim.

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Why did the Commission lose its review power in 1973? A: Because the 1973 Council moved the probable-cause determination away from the Commission entirely and assigned it to the Office of Human Rights. The Commission's earlier appellate role was a delegation back to itself; once the power was reassigned outside the Commission, the appellate hook was gone. The Council did not write a new appellate role.

Q: What did the opinion say would be needed to restore Commission review? A: It said an amendment to the Human Rights Act of 1977 would have to expressly grant the Commission that authority. The opinion does not establish the current review process.

Q: What standard of review does Superior Court apply? A: Under Kegley, the Superior Court's review of a no-contested-case agency action is similar to the DC Court of Appeals' review of agency action in a contested case. The court does not retry the facts; it reviews for procedural and substantive propriety. If the agency applied the wrong standard, ignored evidence, or violated procedural rules, the court can vacate.

Q: Will EEOC give weight to OHR's no-probable-cause finding? A: EEOC ordinarily defers to state and local fair employment practices agencies under the workshare arrangement, but a no-probable-cause finding does not bind EEOC's independent investigation. Kremer notes that res judicata only attaches after appellate court review of the determination.

Q: Did the opinion identify a deadline for seeking court review? A: No. It suggested that a complainant might seek equitable relief in Superior Court, but did not discuss any deadline or limitations period.

Q: Does this opinion apply to public-sector discrimination cases too? A: No. Public-sector cases (DC employees vs. DC agencies) follow a different track under Mayor's Order 75-230. This opinion addresses private-sector cases only.

Background and statutory framework

DC has prohibited employment, housing, and public accommodations discrimination since the 1960s. The original framework was Articles 45 and 47 of the Police Regulations, enforced by the Commissioners' Council on Human Relations and its successor, the Human Relations Commission. Article 45 (housing) gave the Commission no adjudicative power; it could only refer cases to the Corporation Counsel for civil or criminal action. Article 47 (employment) authorized the Commission to hear and decide complaints; § 9(a) of Article 47 said the Commission would "hold a hearing to determine whether or not an unlawful employment practice has been committed."

In January 1971, the Human Relations Commission issued procedural rules (17 D.C. Reg. 464). Rule 3(b) delegated probable-cause determinations to the Commission's Executive Director (the screening function). Rule 4 gave a complainant whose case was dismissed by the Director the right to ask the Commission Chairman for review by a three-member panel. The Commission was, in effect, delegating part of its own probable-cause authority to staff while reserving final review for itself.

In July 1971, Mayor Walter Washington issued Commissioner's Order No. 71-224, which restructured the bureaucracy. It created an Office of Human Rights (the new staff office) and a Commission on Human Rights (the new adjudicative body). Order 71-224 did not address probable-cause assignments. An amended set of procedural rules in October 1971 carried over the prior Rule 3 / Rule 4 structure, with the Office Director now making the initial probable-cause determination and the Commission reviewing dismissals.

The major change came in 1973. The Council enacted Title 34 D.C.R.R., the Human Rights Law. The 1973 law expressly conferred probable-cause authority on the Office of Human Rights, with mandatory dismissal upon a no-probable-cause finding. Title 34 contained no provision for Commission review of those dismissals, and the legislative history did not contemplate any.

The 1977 Human Rights Act (D.C. Law 2-38) reenacted the same procedural scheme, without adding Commission review.

The Acting Corporation Counsel applied a foundational administrative-law principle. An administrative agency has only the powers expressly conferred or necessarily implied by the statute under which it operates (Kimberly-Clark Corp. v. Public Service Com'n., 110 Wis. 2d 455 (1983); Mendota Apts. v. District of Columbia Commission on Human Rights, 315 A.2d 832 (D.C. 1974)). The Commission's pre-1973 review authority depended on its own underlying probable-cause power. When the Council reassigned probable-cause power to OHR in 1973 without writing a new appellate hook, the Commission's review power fell with it. Part 4 of Title 8 D.C.R.R. (the 1971 review rules) became inconsistent with the Title 34 / Human Rights Act framework, and a regulatory rule cannot survive when inconsistent with a statute.

The Acting Corporation Counsel also addressed the Commission's argument that denying internal review disadvantaged complainants. The opinion suggested that a complainant might challenge an OHR dismissal through a suit for equitable relief in Superior Court, with appeal to the DC Court of Appeals. Brown v. Capitol Hill Club (interpreting D.C. Code § 6-2296, now § 1-2556) barred abandoning an OHR complaint to bring a fresh discrimination action in Superior Court. The opinion said that case did not prohibit a suit challenging an OHR dismissal to reinstate the administrative complaint. It also noted a possible Title VII claim.

Citations and references

Statutes and regulations:

• Title 8 D.C.R.R., Part 4 (1971 procedural rules)
• Title 34 D.C.R.R. (1973 Human Rights Law)
• Articles 45, 47 of the DC Police Regulations
• D.C. Law 2-38 (Human Rights Act of 1977)
• D.C. Code §§ 1-2501 et seq., 1-2556

Cases:

• Kimberly-Clark Corp. v. Public Service Com'n., 110 Wis. 2d 455, 329 N.W.2d 143 (1983), agency limited to powers expressly conferred or necessarily implied
• Mendota Apts. v. District of Columbia Commission on Human Rights, 315 A.2d 832 (D.C. 1974), Commission has no power to award compensatory damages absent express authorization
• Capitol Hill Restoration Society Inc. v. Moore, 410 A.2d 184 (D.C. 1979), equitable review of agency action in Superior Court
• Kegley v. District of Columbia, 440 A.2d 1013 (D.C. 1982), review standard parallels Court of Appeals review
• Brown v. Capitol Hill Club, 425 A.2d 1309 (D.C. 1981), election-of-remedies bar on refiling
• Kremer v. Chemical Construction Corp., 102 S. Ct. 1883 (1982), res judicata only after appellate review

License

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Source

• Original PDF: https://oag.dc.gov/sites/default/files/2018-02/Opinion-July-2014-Private-Sector-Complaints.pdf

Original opinion text

(1)nnrrntttrnt nf tqr 1ilt.6trtrt 1:lf orI:ll~~b.ta OF.FICE OF THE CORPORATION CO"UNSe.:.··.. DISTRICT BUILDING

WASHINGTON. O. C.

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IN REPLY REFER TO:

LCD:LiO:LNG:pm:ps
(83-187)

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October 4, 1983

OPINION OF THE CORPORATION COUNSEL
SUBJECT: Whether the Commission on Human
Rights has the authority to review
no-probable-cause determiriations made
by the Office of Human Rights in cases
involving private sector complaints of
discrimination.

Ms. Maudine R. Cooper
Acting Director
Office of Ruman Rights
421 8th Street, Northwest
Washington, D.C. 20004
Dear Ms. Cooper:
This is ip reply to the March 10, 1983 request of Anita Bellamy Shelton for an opinion regarding whether the Commission on Human Rights has the authority to review no-probable-cause determinations made by the Office of Ruman Rights in cases involving private sector complaints of discrimination. Based on three provisions contained in Part 4 of Title 8, DCRR ("Rules Governing Procedure and Practice in Relation to Complaints Alleging Unlawful Discriminatory Practices" (hereinafter "Rules"», the Commission apparently asserts such review authority. Ms. Shelton took the position that subsequent legislative actions of the D.C. Council, in particular the promulgation in 1973 of Title 34 DCRR and the enactment in 1977 of the Ruman Rights Act, D.C. Law 2-38, D.C. Code 1981,
§1-2501 et ~, had the effect of superseding those provisions of the Rules giving the Commission the power to review no-probable-cause determinations made by the Office of Ruman Rights. After reviewing the pertinent documents, I am of the opinion that the Commission on Ruman Rights has no authority to review no-probable-cause decisions made by the Office of Human Rights.

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If such review authority ts deEmed qesirable by the· MaYOJE: or the Council of the District of Columbia, it mlst be expi:e~sly. conferred on .the Ccmnission by an . appropriate amendment to the Htnnan Rights Act .·of 1977. The. 'reasons for: my .opinion . are as follows:
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As noted above, the basis for the Carmission' s claim of authority to review no-probab1e-cause determinations made by the Office of Human Rights

is Part 4 of Title 8, DCRR.

Part 4 provides:

Rule
4.1
4.2
4.3

Dismissal of Complaint
Who May Apply and Form
Review by Chairman

Rule 4.1

Dismissal of Complaint.

If the Director shall determine either on the face of the complaint or after investigation that a complaint should be dismissed, an order shall be issued dismissing the cx:xrplaint. Said order shall be served on the complainant and shall advise him of his right to apply to the Chairman for review of such dismissal. Rule 4.2

Who May Apply and Form.

The complainant may apply to the Chairman of the COmmission for a review of the dismissal of his complaint. Such application mlst be in writing, state specifically the grounds upon which it is based, and mlst be filed in duplicate at the Office of Human Rights within 30 days after service of the order of dismissal. Rule 4.3

Review by Chairman.

Upon such applicati9fl, the Chairman and two trembers of the Ccrcmission shall review the dismissal of the carplaint, and accordingly, shall enter an order affirming, reversing or modifying the prior determination or remanding the matter for further investigation and action. A copy of such order shall be served
~pon·the party or parties.
The genesis of Part 4 is the set of rules adopted by the District of Columbia Carrnission on Human Relations on January 14, 1971. See 17 D.C. Reg. 464 (Jan. 25, 1971). A.t that time the "Office of HLUnan Rights" did not exist. There was only one D.C. Government administrative body charged with administe~ing the regulations prohibiting discrimination in housing and errp10yment in the District of Columbia (Articles 45 and 47 of the Police Regulations). That body was then called the HLUnan Relations Commission, and was the successor body to the Commissioners' Council on HLUnan Relations which is referred to in Articles 45 and 47 of the Police Regulations. under Article 45 relating to housing discrimination, the Council and. its successor had no authority to hear and decide the merits of a complaint if conciliation of a complaint was unsuccessful. The Council

-3could only refer the complaint to the "Corporation Cou""tlse~,:for such legal. action, civil or criminal, as, in the judgment of. t~e" 'Cot:poratioti Counsel is available and appropriate." Article 45, §8(~>';:.:'~ "

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With regard to Article 47 pr'ohibiting' -d.iscr"i1!J.inat·10n in' e~pl(;ytllent, however, the Council and its successor had the authority to hea!fand decide the merits of a complaint. (Enforcement of the Council's decisions was assigned to the Corporation Counsel.) See Article 47, §9(a)-(d). Secti~n 9(a) of Article 47 states that if the Council is unable to conciliate
. through confefence and persuasion "a complaint which it believes may im olve
~ violation of this Article," then the Council shall "hold a hearing to determine whether or not an unlawful employment practice has been committed." This language is the closest reference to a probable cause determination that exists in Article 47. Thus, under Article 47, it could be said '~hat
·if "probable cause" was to be determined, it was to be determined by the Council and its successor, the Commission on Human Relations.
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The administration of the Council on Human Relations, and of its successor, the Commission on Ruman Relations, was entrusted to an Executive Director. See Organization Order No. 125, D. C. Code 1967, Title 1 Admin. Appendix p. 161. This Organization Order does not assign to the Executive Director any role in making probable cause determinations with regard to discrimination complaints filed with the Council. The Commission on Human Relations' January 14, 1971 rules of procedure must be analyzed against this structural and functional background. Rules 3 and 4 of these Rules provided in pertinent part (17 D.C. Reg. 470471 (Jan. 25, 1971»: Rule 3.

INVESTIGATION, PROBABLE CAUSE & CONCILIATION:

a.

Investigation: After the filing of a complaint,
the Commission shall make prompt investigation of the allegations of the complaint. The respondent shall be informed of the nature of the charges against him and a copy of the complaint shall be made available to him. Any party has the right to request that the Commission obtain additional information. The Commission shall, on request of a party, share all data acquired during the course of an investigation.

b.

Probable Cause: If after investigation, the Executive Director of the Commission shall find that there is probable cause to credit the complaint, written notice of such finding shall be sent to all parties.

c.

Dismissal: If the Executive Director of the Commission shall determine either on the face of the complaint or

-4after fnvestigation that a complaint sQauld be dismissed, an order shall be 'issued dismissing the' canplaint. Said order shall be served on, the carplainant'· 'and shall advise him of his right to apply to the Chr:'l:ma.t1 for .review 'of . such dismissal in accordance with ';;:.,: ~ 4.;'

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Rule 4.

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REVIEW OF DISMISSAlS:

a.

Who may Apply and Fonn: The canplainant may apply to the Chairman of the Commission for 'a review of he dismissal of his canplaint. Such application ITU.lst be in writing, state specifically the groonds upon which it is based, and must be filed in duplicate in the office of the Ccmnission within 30 days after service of the order of dismissal.

b.

Review by Chairman: Upon such application, the Chairman and two members of the C~ssion shall review the dismissal of the complaint, and accordingly, shall enter an order affinning, reversing or modifying the prior detennination or remanding the matter for further investigation and action. A copy of such order shall be served upon the party or parties. [Einphasis added.]

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Thus, in prarulgating Rule 3b, the Canmission delegated to its Executive Director the function of screening the frivolous from the nonfrivolous complaints throogh the mechanism of making a detennination, after appropriate investigation, of whether "there is probable \~use to credit the canplaint." Not willing to delegate final authority in this matter, however, the Ccmni.ssion, in Rule 4, provided that a canplainant whose complaint was dismissed by the Executive Director for lack of probable cause, could, upon request, have that decision reviewed by three members of the Ccmnission itself, one of whom would be the C h a i r m a n . ' Six nonths after these Rules were adopted, Mayor Washington on July 8, 1971, issued Carmissioner's Order No. 71-224. This order replaced
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organization Order No. 125 and es~ablished an Office of Htnnan R.ights and a ccmnission on Human Rights. Order No. 71-224, however, did not deal with the matter of assigning responsibility for making probable cause detenninations with respect to discrimination complaints. On October 18, 1971, an amended set of rules of procedure applicable to both the Office and the commission was approved. '~ith appropriate changes in tenninology, this amended set of rules continued the previously adopted procedure under the new structure established by Mayor's Order No. 71-224. Namely, the Director of the Office of Htnnan Rights made the initial detenniQation of whether there is probable cause to credit a complaint (Rule 3.2), and the Ccmnission on Htnnan Rights could, upon the request of a complainant, review the propriety of such detennination (Rule 4). In 1973 the D.C. Council ena,cted into law Title 34 r.x::RR, known as the "Human Rights Law." In Title 34, the Council specifically conferred upon

-5the Office of Human Rights the authority to "determip.& ~hether t.here is . probable cause to believe that the respondent has e.ngage·d or is engaging in an unlawful discriminatory practice." If the QU·fc..e determines that "probable cause does not exist the D~rector f(;)-rfhw1:th. 'shall issue 4nd cause to be served on the appropriate' parties ~·. ..an o'rder di slllis sing' the. allegations of the complaint." 34 DCRR §§ 31. 2(b) and (c). 'S:fn1ficantly there is nothing in Title 34 DCRR itself or in its legislative nistory which indicates that the Council intended that the Commission have the power to review no-probab1e-cause determinations made by the Office of 'Human Rights.(; The same procedural scheme was enacted into ·~aw in the Human Rights Act of 1977. See D. C. Code 1981, §l-2545. As in Title ;,4, there is no 1angauge in the Human Rights Act of 1977 which could be construed as conferring upon the Commission the power to review no-prob~ble. cause determinations made by the Office of Human Rights. " Generally an administrative agency "has only those powers which are expressly conferred or which are necessarily implied by the statutes under which it operates." Kimberly-Clark Corp. v. Public Service Com'n., 110 Wis. 2d 455, 329 N.W. 2d 143, 146 (1983); Durant v. Motor Vehicle Accident Indem. Corp., 20 A.D. 2d 242, 246 N.Y.S. 2d 548, 554 (1964); Mendota Apts. v. District of Columbia Commission on Human Rights, D. C. App., 315 A. 2d 832 (1974)(Commission has no power to award compensatory damages absent express authorization by the Commissioners); see generally 1 Am. Jur~ 2d Administrative Law, §72 (1962). The power to review no-probablecause determinations of the Office of Human Rights has not been "expressly conferred" on the Commission on Human Rights. Nor is such power "necesssarily implied" by either Commissioner's Order No. 71-224 or the Human Rights Act of 1977. The Commission's argument that it has the power to review no-probablecause determinations made by the Office of Human Rights is set forth in the first full paragraph of page 3 of the Chairperson's letter to the Corporation Counsel, dated July 25, 1983, as follows: It is the Commission's position that the Council's intent in adopting Title 34 was to expand the subject matter jurisdiction of the District's exist~ng anti-discrimination apparatus, and to lend it the force of its legislative authority, without subtracting from the procedural rights or expectations available to parties under the prior regulations. The inference of the Commission's continued authority to review Office dismissals is necessary in order to carry out the Council's stated intent "to secure an end in the District of Columbia, to discrimination for any reason other than individual merit • • • " (Sec. 1-2501) Denial of the inference would result in an administrative scheme that would not only discriminate against complainants in favor of respondents, but would

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-6discriminate againstc9mplainan~s on the. basis of their inability to pursue priv$te causes ·ot·act10~. This is true because dismissals. of. complaints fil~d in' the Superipr Court of the District of Columbia .can 'bE' appealed to 'the D.C. Court of Appeals. (Rule 41, Super ~.':' Coti~t Rules of Civil Procedure) This argument runs counter to the general rule relating to the determination of the scope of the powers of an administrative agency, noted above. As Stated, I do not believe that such review power, although arguably desirable as a mat'ter of policy (cf. Kremer v. Chemical Construction Corporation, 102 S. Ct.· 1883, 1888 (1982), detailing the procedure followed by New York), is necessarily implied by the express powers conferred upon the Human Rights Commission by Mayor's Order No. 71-224 and the Ruman Rights Act of 1977. I also do not agree with the suggestion that to decide that the Commission has no review power is also to decide that a no-probable-cause determination by the Office of Human Rights is the end of the local line 1/ for the complainant. A complainant whose complaint has been dismissed by the Office of Human Rights on the basis of a no-probable-cause determination might challenge the propriety of that determination by a suit for appropriate equitable relief in the Superior Court. See Capitol Hill Restoration Society Inc. v. Moore, D.C. App., 410 A. 2d 184, 188 (1979). And, of course, the ruling of the Superior Court would be appealable to the D.C. Court of Appeals. Id. See also Kegley v. District of Columbia, D.C. App., 440 A.2d 1013-,-1018, (1982)(Superior Court's review of propriety of agency action in a noncontested case proceeding is similar to Court of Appeals' review of agency action in a contested case proceeding). The decision in Brown v. Capitol Hill Club, D.C. App.; 425 A. 2d 1309 (1981), is not inconsistent with this position. In that case, Mr. Brown sought to abandon his administrative remedy after his complaint had been dismissed on no-probable-cause grounds and bring an action for discrimination in the Superior Court "as i f no [administrative] complaint h.ad been filed.· o 425 A.2d at 1311. The court ruled that under D.C. Code §6-2296 (now codified as §1-2556) Mr. Brown was not entitled to do this. There is nothing in the Human Rights Act, however, which prohibits a suit in Superior Court challenging, on procedural or substantive grounds, the propriety of a no-probable-cause determination by the Office of Human Rights, when the purpose of such suit is the reinstatement of the administrative complaint. In sum, until the promulgation of Title 34 DCRR by the D.C. Council in 1973, it was proper for the Commission to review no-probab1e-cause deter~~nations made by the Office of Human Rights because prior to the promulgation of Title 34, the power to make such determinations in the

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The complainant may also, of course, have a possible Title VII claim. Such a claim would not be precluded by a finding of no probable cause by the Office of Human Rights. See Kremer v. Chemical Construction Corp., 102 S. Ct. 1883, 1891, N.7 (1982)(res judicata preclusion applied where no-probable-cause determination was upheld by a New York appellate court) •

-7first instance resided in the Commission itself by virtu~""ot the language. of §9(a) of Article 47 of the Police Regulations. ~in~e"this was so, the Commdssion had the authority to delegate that po~er"·to·its own Executive Director and later to the Director o~. the Off~ce.of~H~~an Rights a~~ ~o reserve to itself the authority to review deci"s~ons'~~de }jy its delegee .. By the passage of Title 34 in 1973, however, the D. C. Covncil jemoved , from the Commission the power to make probable cause determinat1ons, and. assigned that function to the Office of Human Rights. Since the Commission's review authority derived fro~ its autho:ity
·under Article 47 to make probable cause determinations in the first ins~ance, the removal of that latter authority by the Council in 1973, coupled with the absence of any assignment of review authority to the Commission, indicates
·that the Council intended only the Office of Ruman Rights to be invol~ed in the probable cause determination process. Stated otherwise, Part 4 of Title 8 DCRR seems inconsistent with the procedural structure established by the Council in Title 34 DCRR and the Ruman Rights Act of 1977. Since Title 8 D.CRR is merely a set of agency-promulgated procedural regulations, any inconsistency between such regulations and the provisions of the Human Rights Act of 1977 must be resolved in favor of the latter 2/ Accordingly, it is my opinion that absent express authorization by the Council of the District of Columbia, the Commission on Ruman Rights has no authority "to review no-probab1e-cause determinations made by the Office of Ruman Rights with respect to private sector complaints of discrimination within the purview of the Ruman Rights Act of 1977. 1/ Sincerely,

h1c,;~j
Inez Smith Reid
Acting Corporation Counsel, D. C.

2/

It is interesting to note that in 1978, J. Leon Williams, then Commission on Human Rights Chairman, in a decision in _the case of Barbara L. ·Valentine v. National Education Association, et aI, No. 6-PE-438, arrived at a similar conclusion. What appears to be the ~ost legible copy available of this decision is appended hereto as Appendix ··A".

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I am aware of the reference to Rule 4.2 of the Rules by the D. C. Court of Appeals in Brown v. Capitol Hill Club, D. C. App., 425 A. 2d 1309, 1311·(1981). That case, however, does not purport to decide the question presented here.