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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 20-CV-655

DISTRICT OF COLUMBIA DEPARTMENT OF HEALTH, APPELLANT,

V.

DISTRICT OF COLUMBIA OFFICE OF EMPLOYEE APPEALS &

CLARENCE F. STANBACK, JR., APPELLEES.

Appeal from the Superior Court

of the District of Columbia

(2020-CAP-002154)

(Hon. Shana F. Matini, Trial Judge)

(Argued October 1, 2021 Decided April 28, 2022) 

Harrison Stark for appellant. Karl A. Racine, Attorney General for the District 

of the Columbia, Loren AliKhan, Solicitor General (at the time of argument),

Caroline S. Van Zile, Principal Deputy Solicitor General (at the time of argument),

Ashwin P. Phatak, Deputy Solicitor General, and Mary L. Wilson, Senior Assistant 

Attorney General, were on the brief for appellant. 

Lasheka Brown Bassey filed a Statement in Lieu of Brief on behalf of appellee 

District of Columbia Office of Employee Appeals.

James E. McCollum, Jr. for appellee Clarence Stanback. 

Before BECKWITH, EASTERLY, and DEAHL, Associate Judges.
2

DEAHL, Associate Judge: Certain District employees, when they are not 

meeting expectations at work, can be placed on Performance Improvement Plans, or 

PIPs. A PIP is a “tool designed to offer the employee . . . an opportunity to 

demonstrate improvement in his or her performance.” 6B D.C.M.R. § 1410.2

(2017).

1

 The regulations governing PIPs provide a two-part timeline that is relevant 

here: (1) a PIP “shall last for a period of thirty (30) to ninety (90) days,” with no 

extensions permitted beyond the ninetieth day, and (2) any determination that the

employee did not satisfactorily meet the PIP requirements, and the resulting 

consequences, must be communicated in writing to the employee “[w]ithin ten (10) 

calendar days of the end of the PIP period.” 6B D.C.M.R. §§ 1410.3, 1410.5. The 

regulations also specify that any failure “to issue a written decision within the 

specified time period will result in the employee’s performance having met the PIP 

requirements.” 6B D.C.M.R. § 1410.6. 

This appeal concerns the consequences of an employer’s failure to comply

with the above timeline. The District of Columbia Department of Health (DOH) 

placed its employee Clarence Stanback on what was purported to be a 101-day PIP—

 1 The District amended its regulations concerning PIPs in 2019. See 66 D.C. 

Reg. 005868 (May 10, 2019). This opinion refers to the 2017 regulations, which 

were in effect at the time of Stanback’s termination.
3

eleven days longer than the regulations permit. DOH then notified Stanback of his 

termination six days after that period concluded, or on day 107 after the PIP began. 

That was seven days beyond the maximum 100-day period (ninety plus ten) that the 

regulations allow in total for a PIP and a written determination to be completed. 

Stanback challenged his termination before the Office of Employee Appeals

(OEA), which agreed with him that DOH’s contravention of the ninety-day PIP 

period and the 100-day PIP-plus-determination deadline precluded his termination. 

The D.C. Superior Court affirmed. DOH now appeals and maintains that its 

violation of the regulatory timeline was harmless so that it was free to terminate 

Stanback based on its determination that he did not satisfactorily meet the PIP 

requirements. We disagree and affirm. 

I.

In 2004, Clarence Stanback began his employment at DOH as a public health 

analyst in the Addiction Prevention and Recovery Administration. In September 

2016, he was subject to a reduction in force and reassigned to a position in DOH’s 

Office of Health Equity. The responsibilities of Stanback’s new position included 

“review[ing] and analyz[ing] a broad array of programs, projects, health data and 

information in order to advise policy development and health impact assessments to 
4

raise the health standards of residents of the District.” Stanback was expected to

have “[k]nowledge of, and proficien[cy] in the use of operating a personal computer

(PC), utilizing various software (i.e., Microsoft [W]ord, Excel, Access, PowerPoint, 

etc.), and a willingness to learn new technology associated with assigned work tasks 

combined with strong analytical skills and experience working with large 

databases.” 

After several months on the new job, Stanback’s supervisor determined that 

he was not meeting expectations. Stanback was presented with an Individual 

Performance Plan (IPP) in January 2017. The IPP identified five “Specific, 

Measurable, Attainable, Realistic and Time-Related” (S.M.A.R.T.) goals with an 

attendant deadline for each goal, the last of which fell on September 30, 2017. 

Dissatisfied with Stanback’s progress under the IPP, Stanback’s supervisor next

presented him with a more formal Performance Improvement Plan (PIP) on June 21, 

2017. The PIP informed Stanback that he was failing “to meet the minimum 

requirements of the position,” and articulated the same five S.M.A.R.T. benchmarks 

that had been identified in his IPP. The PIP also set specific deadlines for meeting

each of those five goals. Stanback’s due date for meeting the fifth and final 

benchmark was September 30, 2017, or 101 days after the PIP’s June 21, 2017, start 

date. Stanback filed a grievance complaining that the benchmarks in his PIP were 
5

too onerous to satisfy within the permitted ninety-day period, though that initial 

grievance did not mention or complain that his PIP exceeded the ninety-day period

by eleven days. 

On October 6, 2017—107 days after the PIP began and six days after its stated 

end date—Stanback’s supervisor informed him via written memo that he had not 

met the PIP requirements and that she was recommending his termination. DOH 

subsequently provided Stanback with formal notice of his proposed termination, 

citing as its sole reason Stanback’s failure to meet the PIP benchmarks. A DOH 

hearing officer reviewed the proposed termination and recommended sustaining it, 

finding that the goals of the PIP were consistent with Stanback’s position. Shortly 

thereafter, DOH gave Stanback final notice of his termination, effective December 

22, 2017. Once again, the only reason provided for Stanback’s termination was his

failure to meet the PIP requirements. 

Stanback timely appealed his termination to the Office of Employee Appeals 

the following month. In a subsequently filed amended petition he argued, for the 

first time, that DOH’s contravention of the time restrictions on PIPs meant that, by 

operation of the regulations themselves, he had “met the PIP requirements.” See 6B 

D.C.M.R. § 1410.6. In Stanback’s view, he had passed his PIP when his supervisor 
6

failed to issue a written decision informing him of his proposed termination within 

100 days from the inception of his PIP—taking the maximum ninety-day PIP period 

and the maximum ten-day determination period together. An OEA Administrative 

Judge agreed with Stanback and reversed his termination. Because no party 

petitioned the OEA Board for review, the Administrative Judge’s decision became 

OEA’s final decision. See 6B D.C.M.R. § 632. DOH appealed the final decision to 

the Superior Court, which affirmed on the same basis: that DOH had contravened 

the mandatory timetable for issuing PIP determinations. DOH now appeals.

II.

Although this is an appeal from a Superior Court judgment upholding an OEA 

decision, we review OEA’s order “precisely the same as in administrative appeals 

that come to us directly.” District of Columbia Fire & Med. Servs. Dep’t v. District 

of Columbia Off. of Emp. Appeals, 986 A.2d 419, 424 (D.C. 2010) (internal 

quotation marks omitted). We will affirm if OEA’s decision “is supported by 

substantial evidence in the record and otherwise in accordance with law.” Miller v. 

District of Columbia Off. of Emp. Appeals, 237 A.3d 123, 126 (D.C. 2020) (internal 

quotation marks omitted). There is no dispute about the evidentiary record in this 

appeal, which instead concerns only a question about how to interpret the District’s 
7

personnel regulations. We generally “‘defer to the OEA’s interpretation of the 

personnel regulations,’ given its ‘expertise in administering and enforcing’ those 

regulations.” Id. at 127 (quoting Hutchinson v. District of Columbia Off. of Emp.

Appeals, 710 A.2d 227, 234 (D.C. 1998)). However, we will not defer to an 

interpretation that “is unreasonable in light of the prevailing law, inconsistent with 

the statute [or regulation], or plainly erroneous.” Off. of the District of Columbia

Controller v. Frost, 638 A.2d 657, 666 (D.C. 1994) (internal quotation marks

omitted). 

The regulations relevant to this appeal are as follows: (1) a PIP “shall last for 

a period of thirty (30) to ninety (90) days,” with no extensions permitted beyond the 

ninetieth day, 6B D.C.M.R. §§ 1410.3, 1410.5(a); (2) the employer “shall make a 

determination” regarding whether the employee has met the PIP’s requirements 

“[w]ithin ten (10) calendar days of the end of the PIP period,” 6B D.C.M.R. § 

1410.5; and (3) “[f]ailure . . . to issue a written decision within the specified time 

period will result in the employee’s performance having met the PIP requirements.”

6B D.C.M.R. § 1410.6. 

We agree with OEA that a straightforward reading of these regulations 

provides that Stanback’s PIP did not extend beyond the ninetieth day from its start 
8

date, and thus terminated by September 19, 2017.2

 That, in turn, means a written 

determination regarding whether Stanback had met the PIP requirements was due by 

September 29, 2017. Because no determination was issued before that date, the 

regulations provide that Stanback is deemed to have met the PIP requirements.

DOH resists this conclusion by taking a divide-and-conquer approach to the 

regulations. In its view, the PIP lasted until September 30 per its very terms, and 

while that end date exceedsthe ninety-day maximum by eleven days, that is harmless 

error because the ninety-day cap is “directory” rather than “mandatory.” As support 

for this point, DOH invokes precedents in which we have said that a statute or 

regulation “imposing a time limit within which a public official must act which does 

not specify the consequences of noncompliance is meant to be directory” and not a 

mandatory “limitation of the power of the officer.” See Teamsters Loc. Union 1714

v. Pub. Emp. Rels. Bd., 579 A.2d 706, 710 (D.C. 1990) (citing JBG Props., Inc. v. 

 2 OEA mistakenly determined that September 15, 2017, was the ninetieth day 

from the PIP’s inception, though the parties now agree that September 19, 2017, 

marks the ninetieth day. The discrepancy is immaterial to this dispute. Also, we do 

not foreclose an argument that a PIP is null and void where it exceeds ninety days, 

as that argument is not presented here. Instead, we resolve only the dispute before 

us, in which the parties agree that this PIP was valid but disagree about its effective 

end date.
9

District of Columbia Off. of Hum. Rts., 364 A.2d 1183, 1185 (D.C. 1976)).

3

 Once it 

carves out and pardons its initial misstep, DOH maintains it complied with the tenday notice requirement because the October 6 written determination came within ten 

days of the PIP’s September 30 end date. In DOH’s view, that ten-day deadline is 

the only “specified time period” referenced by 6B D.C.M.R. § 1410.6, so its posited 

compliance with the ten-day notice provision means there is no cause to deem 

Stanback as having met the PIP requirements under that provision. 

DOH’s argument falters at its first step.4

 It is often true that “provisions 

regulating the duties of public officers and specifying the time for their performance” 

 3 DOH also argues that the longer period was really a boon to Stanback,

because it gave him additional time to meet the PIP benchmarks. That is a vast 

oversimplification. Restricting the length of PIPs protects employees both by 

ensuring that their benchmarks are achievable within a reasonably discrete 

timeframe and by protecting against the stress and anxiety of operating under a PIP 

for a more protracted period (during which an employee has little job security). It is 

not for us to second-guess the determination that a ninety-day cap strikes the 

appropriate balance between giving the employee enough time to satisfy the goals 

of their PIP and protecting that employee from the travails of an unnecessarily 

prolonged process.

4 Stanback argues that DOH waived its argument that the ninety-day cap was 

directory rather than mandatory because it did not articulate this point before OEA 

or the Superior Court. While it is true that DOH did not precisely invoke the 

directory/mandatory dichotomy that it now raises, it sufficiently preserved this 

point—that any breaches of the regulatory timelines were harmless—so that this 

claim was adequately preserved for our review. See Yee v. City of Escondido, 503 

U.S. 519, 534 (1992) (“Once a . . . claim is properly presented, a party can make any 
10

provide directory rather than mandatory timelines, at least where the provisions do

not assign any consequences to the officer’s noncompliance. JBG Props., 364 A.2d 

at 1185. But that rule-of-thumb is of no help to DOH because the ninety-day cap on 

PIPs does not meet that description. Section 1410.3 says, as relevant here, that a PIP 

shall neither be fewer than thirty days nor longer than ninety days. See also 6B 

D.C.M.R. § 1410.5(a). It does notset any timetable for government action or specify 

any time by which public officers must carry out their duties, but instead outlines 

the fundamental parameters of a PIP. Substantively, a PIP must identify “specific 

performance areas” and “[p]rovide concrete, measurable action steps”; durationwise, it “shall last for a period of thirty (30) to ninety (90) days.” 6B D.C.M.R.

§ 1410.3. The regulation does not say when (or if) an employer may impose a PIP, 

nor does it require agency action to affirmatively terminate a PIP at any particular 

time once it begins. The rule DOH invokes thus has no application to the ninetyday cap on PIPs, and the cases it relies upon are all inapposite because they involve 

timelines that directly govern when a public official must act, unlike here. See, e.g.,

Teamsters, 579 A.2d at 708 (agency must “render[]” a disciplinary decision within 

45 days of notice); Vann v. District of Columbia Bd. of Funeral Dirs., 441 A.2d 246,

 

argument in support of that claim; parties are not limited to the precise arguments 

they made below.”); Jones v. United States, 990 A.2d 970, 981 n.34 (D.C. 2010) 

(distinguishing between “new legal arguments on appeal to support a claim made 

below” and “an entirely new factual claim”). 
11

247 (D.C. 1982) (agency must “issue” a decision within ninety days of hearing); 

JBG Props., 364 A.2d at 1184-85 (agency must “serve” a complaint within fifteen 

days of filing an investigation and “determine” whether there is probable cause

within 120 days). 

To be sure, a different provision in the regulations, § 1410.5, specifies a 

timeline within which a public official must act, and it is tethered to a PIP’s end date. 

That provision requires a written determination of whether the employee has met

PIP requirements “[w]ithin ten calendar days of the end of the PIP period.” 6B 

D.C.M.R. § 1410.5. But that is of no help to DOH because § 1410.5 is 

unquestionably a mandatory deadline. That is because § 1410.6 specifies the 

consequences for failing “to issue a written decision within the specified time 

period”: the employee is deemed to have met the PIP requirements. The only 

question here is when the ten-day clock begins to run in the situation where a PIP, 

by its own terms, purports to extend beyond the ninety-day maximum. Section 

1410.3’s answer is that the PIP in fact cannot extend beyond the ninetieth day, so 

that the ten-day clock starts to run no later than ninety days from the PIP’s inception

(because that is the last viable end date for a PIP). DOH provides no good reason to 

skirt that straightforward reading of the regulations, much less one that would make 
12

OEA’s natural reading of the regulations “unreasonable” in light of the deference 

we accord to it.5

 Frost, 638 A.2d at 666.

That is also the only reading of the regulations that makes sense of them as a 

whole. See Daly v. District of Columbia Dep’t of Emp’t Servs., 121 A.3d 1257, 1263 

(D.C. 2015) (“[I]t is well-established” that we read statutes and regulations “as a 

whole.”). The ten-day notification period in the regulations makes sense when read 

in tandem with the ninety-day cap on PIPs. Together, those two provisions ensure 

that no employee will be subjected to an unduly protracted PIP, or be left to worry 

about their fate for more than 100 days after its inception. But when the two 

 5 DOH argues this approach will lead to absurdities in those cases where PIPs 

are expressly of a shorter duration. Where a PIP is expressly for just thirty days, for 

instance, DOH argues that under OEA’s “reasoning that the regulation provides one 

combined 100-day period, the supervisor would have 70 days after the PIP’s end to 

issue a decision.” That’s wrong. OEA’s reasoning was that a PIP cannot last longer 

than ninety days—not that it must always last ninety days—and that an employee 

must receive notice of the employer’s determination within ten days of whenever the 

PIP ends. Where the PIP by its express terms is for a shorter period, like thirty days, 

a failure to issue a determination within the ten days after its termination date should

trigger § 1410.6’s command to treat the employee as having met the PIP 

requirements. That a shorter PIP can be extended up to the ninetieth day might leave 

the above scenario more amenable to the type of harmless error analysis that DOH 

invokes here, see infra, but that is a question for another day and is not raised by this 

case. DOH also argues that § 1410.6’s reference to a singular “time period” is at 

odds with reading it to apply to “aggregate plural ‘periods,’” as we have applied it

to the 100-day PIP-plus-determination period. Not so. There is nothing at all 

peculiar about referring to a singular time period that includes multiple points in time 

within it. 
13

provisions are disaggregated in the manner DOH urges, the ten-day notification 

requirement becomes a triviality, because any employer could extend that ten-day 

deadline simply by extending the PIP period in perpetuity. It would make no sense 

for § 1410.6’s default rule—that the employee is deemed to have met the PIP’s 

requirements—to be triggered by a breach of a ten-day deadline where that deadline 

itself could simply be extended by the employer without consequence, via extension 

of the PIP period. In short, the ten-day notification period is inextricably moored to 

the time constraints on PIPs themselves, and the former is toothless without the 

latter. 

DOH’s final retort is that the OEA Board has previously taken a different 

position on this point, and that we should defer to its earlier interpretation. See 

Jackson v. District of Columbia Dep’t of Gen. Servs., OEA Matter No. 1601-0034-

11 (March 29, 2016). In Jackson, the OEA Board upheld the termination of a 

District employee following a PIP that lasted ninety-two days by its terms, with a 

written determination issued to the employee four days later (or ninety-six days from 

the PIP’s inception). Id. at *7 & n.21. In that OEA appeal, the employee argued

that his termination should be reversed because his PIP lasted more than the ninety 

days permitted by the regulations. Id. at *7. OEA disagreed, finding the two-day 

overage “de minimis” because “it did not result in substantial harm” where written 
14

notice of the employee’s failure to meet the PIP requirements was provided four 

days after the PIP’s end date. Id. at *4-5. 

Contrary to DOH’s argument, Jackson is in no tension with the OEA’s 

decision below or with our reasoning today. In Jackson, unlike here, the employee 

received timely notice under § 1410.5 because it came within ten days of the PIP’s 

termination even if (contrary to its terms) the PIP were capped at ninety days. The 

employee received notice of his termination on day ninety-six from the PIP’s 

inception, within the maximum 100-day PIP-plus-determination period provided by 

the regulations. The opposite is true here, where written notice of Stanback’s

proposed termination was not issued until a week after those 100 days had passed, 

thereby triggering § 1410.6’s default rule so that Stanback is deemed to have met 

the PIP requirements. Thus, DOH’s error here—far from causing no “substantial 

harm or prejudice to the employee’s rights,” as was the case in Jackson—was a 

decisive factor in Stanback’s termination. See 6B D.C.M.R. § 631.3.

III.

We affirm the Superior Court’s judgment.

So ordered.