In a sweeping decision issued on August 25, 2005, the District of Columbia Court of Appeals ruled that a District government agency's failure to raise timely objections to alleged procedural flaws in an employee's discrimination claim before the Office of Human Rights (OHR) precludes the District from presenting those objections for the first time in judicial review. The Appeals Court held that procedural defects must be raised with OHR, which has the statutory mandate to consider them. If a government employer fails to raise such issues in a timely manner, they are considered waived.
This ruling came as the Court affirmed the Superior Court's disposition of an age and national origin complaint filed by an employee of the District of Columbia Housing Authority (DCHA). The petitioner had alleged that he was passed over for promotion in favor of two individuals from Africa, both of whom were younger than he. Mr. George Brummell filed a complaint before the OHR. The record does not reflect that he followed the mandatory procedure of consultation with an agency EEO counselor, although that issue was never raised by the respondent agency when the case was before the OHR for adjudication. The Court concluded that DCHA's failure to challenge OHR's power to hear the case in these ambiguous circumstances barred it from doing so later. The Court rejected the DCHA argument that the factual question whether Brummell did or did not seek counseling went to the jurisdiction of the reviewing court. Typically, questions of whether the court has jurisdiction to hear a case at all cannot be waived.