Newsletter - September/October 2011

September
Year: 
2011

100% MWELA Membership Law Firms

Alan Banov and Associates
Alden Law Group, PLLC
Ates Law Firm, P.C.
Bernabei & Wachtel, PLLC
Berry & Berry, PLLC
Beth S. Slavet, P.C.
D'Souza Law Office, LLC
Gary M. Gilbert & Associates, P.C.
Gebhardt & Associates, LLP
Gerardine Delambo, Attorney at Law
Heller, Huron, Chertkof, Lerner, Simon &
Salzman, PLLC
Henrichsen Siegel, P.L.L.C.
Kator, Parks & Weiser, PLLC
Kestell & Associates
Klimaski & Associates, P.C.
Law Office of Jonathan L. Gould
Law Office of Josh F. Bowers, P.C.
Law Office of Mary Ann Kelly
Law Office of Richard T. Seymour, P.L.L.C.
Law Office of Steven J. Silverberg
Law Office of Thomas J. Gagliardo15 MWELA MONTHLY Sept./October 2011
Law Offices of Larry J. Stein, L.L.C.
Lebau & Neuworth, LLC
Michael J. Hoare, PC
Passman and Kaplan, P.C.
The Employment Law Group
The Law Office of Denise M. Clark, PLLC
The Law Offices of Joel P. Bennett, P.C.
The Spencer Firm, LLC

September

Case Summaries: District of Columbia Summaries

September

Court Rules on Privilege Issues

Segar et al. v. Holder et al., No. 77-81 (EGS/JMF) (D.D.C. Sept. 26, 2011).

In the Segar class action against the Department of Justice, pending since 1977, Magistrate Judge Facciola holds:

1. deliberative process privilege may not be used by a federal agency where intent is at issue; and

2. attorney-client privilege objection to discovery is waived if not raised in response within 30 days of service of discovery.

The opinion is available on-line at: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?1977cv0081-334.

– submitted by Joel P. Bennett

September

Court of Appeals Vacates Decision Adopting Heightened Pleading Standards

Mazza v. Housecraft LLC, No. 09-CV-1068 (D.C. 2011). The original decision is at 18 A.3d 786; and the order vacating it is at 22 A.3d 820.

The D.C. Court of Appeals, thanks to an amicus brief filed by the D.C. Trial Lawyers Association (TLA), has vacated its April 28, 2011 opinion in which the court adopted the Twombly / Iqbal pleading standards in a home improvement contract dispute where the plaintiff-appellant was pro se. The DC TLA commissioned the Center for Constitutional Litigation to draft the successful brief.

The decision is availableon - line at: http://www.dcappeals.gov/dccourts/appeals/pdf/09-CV-1068_MTD.PDF (vacating prior opinion).

– submitted by Alan R. Kabat

September

Decision Discusses Standard of Proof for Wrongful Discharge in Violation of Public Policy Claim and Individual Liability

Myers v. Alutiiq Intl. Solutions LLC, et al., No. 10- CV-2041 (ABJ), 2011 WL 4018230 (D.D.C. Sept. 12, 2011).

Judge Amy Jackson of the U.S. District Court recently issued a good decision that addresses two somewhat unsettled issues relating to the commonlaw wrongful termination in violation of public policy claim.

Judge Jackson finds that (1) the employee does not have to prove an actual violation, only that the employee had a reasonable belief that the employer was violating the law; and (2) that there can be individual liability on this claim. In the past, individual defendants usually had to be brought in on a civil conspiracy claim, but if this ruling gets adopted by other courts, then it may be simpler to plead the individual defendants on the wrongful termination claim.

This plaintiff worked for a government contractor that provided services to the Department of State.

Some excerpts follow - emphasis added:

. . . . Plaintiff's complaint raises the question of whether reporting wrongdoing in connection with government contracting falls within the public policy exception to an at-will employment relationship. 5 U.S.C. § 2302 reflects a clear public policy of encouraging government employees to come forward and report possible problems in federal programs, and there are many other whistleblower protection statutes that protect not only government employees, but private sector employees as well. See, e.g., 15 U.S.C. § 2087 (Consumer Product Safety Improvement Act); 18 U.S.C. § 1514A (SarbanesOxley Act); 29 U.S.C. § 660 (Occupational Safety & Health Act).

The Federal Acquisition Regulations ("FAR") express a policy that contractors avoid or mitigate organizational conflicts of interests and state that "[e]ach individual contracting situation should be examined on the basis of its particular facts and the nature of the proposed contract." 48 C.F.R. § 9.505. The FAR also prohibits personal conflicts of interest . . . . 48 C.F.R. § 3.101-1. The FAR further prohibit employers from "discharg[ing], demot[ing] or otherwise discriminat[ing] against an employee as a reprisal for disclosing information to ... an authorized official of an agency ... relating to a substantial violation of law related to a contract...." 48 C.F.R. § 3.903.

Plaintiff alleges that the close personal relationship between the COR, Bailey, and a government contractor, Lori Strickland, violated federal contracting regulations. Compl. ¶ 45. He further alleges that his employers knew that he reported those violations to his supervisors and to the OIG. Id. ¶ 46. Finally, he alleges that he was fired immediately after the OIG concluded that most of his allegations were substantiated and that Bailey and Lori Strickland were subject to discipline. Id. ¶ 47. Accepting plaintiff's allegations as true and resolving all inferences in his favor, as the Court must do at this juncture, plaintiff in this case has alleged sufficient facts to state a claim under the Carl public policy exception to the general rule against wrongful discharge claims by at-will employees. See Ware v. Nicklin Assocs., Inc., 580 F.Supp.2d 158 (D.D.C.2008) (finding that plaintiff stated a wrongful discharge claim where she alleged she had knowledge of an illegal billing scheme, her employers were aware of her knowledge, and she was fired because of that knowledge).

Defendants argue that plaintiff "cannot and does not explain how COR Bailey's alleged actions constituted a 'substantial violation of law' under these sections so as to make applicable FAR 3.903." Defs.' Reply at 3. But plaintiff is not required to establish here that his employers violated any particular provision of the FAR; the FAR provisions are relevant to this motion because they are illustrative of the strong public policy against conflicts of interest and favoring the protection of whistleblowers. In Vreven, the plaintiff had reported concerns to her supervisors that the defendant was evading taxes in violation of the Internal Revenue Code. 604 F.Supp.2d at 11. The court held that the plaintiff stated a claim for wrongful discharge under Twombly and the Carl standard even though she had not specified the manner in which the defendant allegedly violated its tax exempt status. The court found that the allegations "make plausible the conclusion that defendant discharged plaintiff as a result of her objections to alleged violations of defendant's tax exempt status." Id. at 14. Here, plaintiff has alleged sufficient facts to make plausible the conclusion that defendants fired him in retaliation for reporting alleged violations of federal contracting regulations.

ii. Plaintiff states a claim for wrongful termination against the individual defendants

The individual defendants argue that they cannot be held liable as a matter law for a wrongful termination claim. Although the D.C. Court of Appeals has not addressed this question directly, a review of its opinions in the employment area suggests that it would not bar claims for wrongful discharge against individual employees if the facts established that the individuals acted improperly or illegally. Because the Court must draw all reasonable inferences in plaintiff's favor at this stage, it will allow the wrongful termination claim against the individual defendants to proceed.

Defendants cite decisions of other states holding that individual supervisors cannot be held liable for wrongful termination. Defs.' Mem. at 11.While it is true that some states prohibit wrongful termination suits against individual supervisors, it is equally true that several states allow such claims. See Physio GP, Inc. v. Naifeh, 306 S.W.3d 886, 892 n. 2 (Tex.App.2010) (Hudson, J., dissenting) (collecting cases on the split of authority). The states recognizing individual liability reason that individuals are liable for their own torts, even as agents acting on behalf of their employers. See, e.g., Jasper v. H. Nizam, Inc.,764 N.W.2d 751, 775- 76 (Iowa 2009); Ballinger v. Del. River Port Auth., 800 A.2d 97, 110-11 (N.J.2002); Harless v. First Nat'l Bank in Fairmont, 289 S.E.2d 692, 698-99 (W.Va.1982). According to that logic, employees can be liable for a wrongful discharge claim just as any other tort. See, e.g., Jasper, 764 N.W.2d at 775-76; Ballinger, 800 A.2d at 110-11; Harless, 289 S.E.2d at 698-700. These courts "reason that individual liability promotes deterrence and better decision making because it allows the active wrongdoer to be held directly responsible." Physio, 306 S.W.3d at 888, citing Borecki v. E. Int'l Mgmt. Corp.,n 694 F.Supp. 47, 59 (D.N.J.1988); Jasper, 764 N.W.2d at 776.

On the other hand, the states that do not allow wrongful termination claims against individual supervisors explain that "the employment relationship is the source of the duty in wrongful discharge torts." Physio, 306 S.W.3d at 888. That relationship exists only between employer and employee and not between two employees, and only the employer has the power to terminate an employee. Id. (citations omitted). These courts further reason that individual liability is unnecessary to deter employees "because liable employers will likely take their own measures to deter agents or employees from wrongfully exercising termination authority." Id. at 889. Indeed, fear of liability could discourage supervisors from terminating employers under legitimate circumstances. Id. (citations omitted). Finally, these courts express the concern that it can be difficult to determine which individuals should be liable for a decision to terminate. Id. (citations omitted).

The Court finds the reasoning of the states that have allowed claims against individual employees to be more consistent with the law of the District of Columbia. Although the D.C. Court of Appeals has not directly ruled on this issue in the context of a wrongful discharge action, it has recognized that there may be some circumstances where an individual supervisory employee can be liable for tortious interference with another employee's contractual relations with the employer. . . .

. . . . This holding is in keeping with the reasoning of the courts in other states that allowed wrongful termination claims against individual employees because individuals are liable for their own torts, even as agents acting on behalf of their employers. Therefore, reading Sorrells in conjunction with Carl, the Court finds that the D.C. Court of Appeals would allow claims against individual supervisors for wrongful discharge if it was shown that their conduct was sufficiently wrongful and violative of an important public policy.

The decision is available online at: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2010cv2041-7.

– submitted by Alan R. Kabat

September

Summary Judgment Denied on Retaliation Claim

Tarick Ali, by his personal representative, Monica Ali v. District of Columbia, No. 08-01950 (HHK) (D.D.C. Aug. 31, 2011)

We recently received an Order from Judge Kennedy denying summary judgment as to a retaliation claim against the District. He relied upon and potentially expanded Thompson v. N. Am. Stainless, 131 S.Ct. 863 (2011). In our case, Plaintiff was "warned" by his supervisor that his best friend would be terminated if Plaintiff proceeded with his complaint. Judge Kennedy questioned where the "best friend" fact "falls on the continuum between "'firing a close family member,' which 'will almost always meet the Burlington standard,' and 'inflicting a milder reprisal on a mere acquaintance,' which 'will almost never do so'" but held that a reasonable juror could find that Plaintiff was dissuaded from complaining due to the threat against his best friend.

He also provided good case law and solid reasoning against the District's silly argument that essentially contended that all or most of the documents used in support of the Opposition could not be relied upon by the Court since they contained hearsay and other evidentiary objections. The District was confusing the evidentiary standard for trial with the evidentiary standard for dispositive motions. This is an argument that we have been required to respond to from the District on another occasion. Hopefully, the District will learn the proper evidentiary standards and forgo this argument in the future.

As usual, Donna Williams Rucker skillfully handled and dominated opposing counsel in arguing this before Judge Kennedy.

– submitted by Mackenzie Coy

September

Trial Court Properly Waited to Rule on Fee Petition

Purcell v. Thomas, Nos. 09-CV-501 & 10-CV-485 (D.C. Sept. 29, 2011).

In Purcell v. Thomas, Nos. 09-CV-501 & 10-CV-485 (D.C. Sept. 29, 2011), the D.C. Court of Appeals held that the trial court acted properly in waiting until after an appeal on the merits (in which the first appeal affirmed the judgment in employee's favor on her DCHRA claims) to decide the employee's long-pending motion for attorney's fees and costs.

The Court of Appeals rejected the employer's odd argument that the trial court somehow no longer had jurisdiction, or that the passage of time since the verdict meant that the employee could no longer seek fees. Here, the jury award was $165,000 (June 2003), which the Court of Appeals affirmed on June 2007. The trial court then awarded $590,807 to the employee for attorney's fees and costs (March 2009).

However, the Court of Appeals rejected the employee's argument on her cross-appeal that the supersedeas bond posted by the employer on appeal should also be used to cover part of the attorney's fees, since the wording of the bond limited it to the judgment, statutory post-judgment interest, and certain costs, for a total of $212,742 which was paid in April 2010. Evidently the employee wanted to use the balance of the supersedeas bond to collect on her attorney's fee award. The employee will now have to see if the employer or its insurance company can pay the attorney's fees and costs, including additional fees/costs arising from the second appeal.

The decision is available online at http://www.dcappeals.gov/dccourts/appeals/pdf/09-CV-501+_MTD.PDF,

– submitted by Alan R. Kabat

September

“Sham Affidavit” Objection is Rejected

Johnson v. Shinseki, Dep’t of Veteran’s Affairs, No.08-1103 (JDB) (D.D.C. Sept. 19, 2011).

Sham affidavit objection to declaration in opposition to summary judgment will be denied when declaration clarifies prior ambiguous deposition testimony or prior affidavit. Summary judgment denied in hostile work environment case.

The decision is available on-lineat : https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv1103-44.

– submitted by Joel P. Bennett

September

Case Summaries: Maryland Summaries

September

Maryland’s Court of Appeals Reverses Denial of Whistleblower Complaint

Lawson v. Bowie State Univ., 2011 Md. LEXIS 515 (Md. Aug. 16, 2011).

A state employee wrote a letter disclosing potential abuses in the defendant university’s police department. The employee sent the letter to the university’s vice president, after which the vice president notified the Chief of the University Police Department about the information in the letter. The Chief then fired the employee. The former employee then filed a complaint under Maryland Whistleblower’s Act. The complaint was denied, and an administrative law judge affirmed the denial. The Circuit Court for Prince George’s County affirmed the denial, holding that whistleblower protections did not extend to employees who disclosed possible violations due to personal motivations to make changes in the department. The Court of Appeals reversed, holding that the statute requires only that an employee have a reasonable belief that the information disclosed evidences a violation, but not that the employee possess a purely altruistic motive for the disclosure.

September

Maryland’s Court of Special Appeals Reduces Award of Attorney’s Fees and Costs

Friolo v. Frankel, 2011 Md. App. LEXIS 123 (Md. Ct. Spec. App. Sept. 7, 2011) (See Leizer Goldsmith’s summary above).

Joy Friolo filed a complaint against her former employers, a doctor and his medical practice, including claims for violation of the Maryland Wage Payment and Collection Law and the Maryland Wage and Hour Law. After a jury awarded Friolo damages, Friolo sought her counsel fees and costs pursuant to Maryland wage law, which awards fees only to a prevailing party. The Montgomery County Circuit Court awarded Friolo her attorney’s fees and costs and ordered her to pay one-half of the special master’s fee. Friolo appealed these orders. The Court of Special Appeals found that the trial court erred in computing the fee award by straying from the parties’ stipulated rate schedule; by basing the fees on what a hypothetical plaintiff would willingly pay to recover the judgment obtained; by reducing the fees claimed to align with those in cases with judgment of similar amounts; and by demanding proof of appellant’s liability to counsel. Instead, Maryland’s Court of Special Appeals adopted the lodestar analysis. COSA held that the lodestar approach, with its adjustments, is the presumptive methodology to be used where an award of attorney’s fees is warranted under Maryland wage law. COSA then held that where a plaintiff obtains relief under Maryland wage law and then obtains an award for attorney’s fees which is later successfully increased on appeal, then the attorneys’ fees incurred during the appeal should be considered as a part of the lodestar analysis. COSA then stressed that Maryland wage law conditions fee awards on recovery, but it does not require a fee award wherever the plaintiff recovers. COSA went on to say that “it would be unreasonable to award fees where the defendant tenders the plaintiff’s entitlement but the plaintiff refuses to accept that offer and seeks and unjustified amount.” COSA went on to explain that “a defendant’s failure to offer settlement can be in full or in part. In the simple case, a defendant may offer $0 only to have a verdict entered in favor of the plaintiff for the entirety of the claims. If, however, a plaintiff demands $100,000 and obtains a judgment of $50,000 against a defendant who never offered any settlement - - which is to say the defendant ‘offered’ $0 - - both parties will have contributed equally to litigation costs.” After considering Friolo’s degree of success in the case, her relative contribution to causing unnecessary litigation, her overstatement of damages, the former employers’ settlement offer, and the amount of the verdict, COSA held that her degree of success was 88% and reduced her award of counsel fees and costs accordingly. Finally, COSA held that the employers failed in their Answer to deny Friolo’s allegation in her complaint that they withheld her pay “not as a result of a bona fide dispute,” and accordingly the employers admitted the issue as a matter of law.

September

Maryland’s Highest Court Clarifies the Ministerial Exception

Prince of Peace Lutheran Church v. Linklater, 2011 Md. LEXIS 574 (Md. Sept. 21, 2011).

Mary Linklater, a former employee of a church, sued the employer church, along with a synod, a pastor, and a bishop. Linklater filed a number of claims against the defendants, including sexual harassment, discrimination, and intentional infliction of emotional distress. Linklater filed her sexual harassment and discrimination claims pursuant to the Montgomery County Code. The trial court dismissed the discrimination and sexual harassment claims pursuant to the ministerial exception of the First Amendment. The Court of Appeals affirmed the Court of Special Appeals’ holding that the ministerial exception does not operate to bar every claim of sexual harassment asserted against church officials by a former ministerial employee. The Court of Appeals also adopted the reasoning of COSA’s opinion in finding that the continuing violation doctrine applied to the sexual harassment, hostile work environment, and gender discrimination claims. In holding that the continuing violation doctrine applied to the plaintiff’s claims, the Court relied upon a case from the Supreme Court of California, Richards v. CH2M Hill, Inc., 26 Cal. 4 th 798, 111 Cal. Rptr. 2d 87, 29 R. 3d 175 (Cal. 2001), which held that an employer’s persistent failure to reasonably accommodate a disability, or to eliminate a hostile work environment targeting a disabled employee, is a continuing violation if the employer’s unlawful actions are (1) sufficiently similar in kind – recognizing that similar kinds of unlawful employer conduct, such as acts of harassment or failures to reasonably accommodate disability, may take a number of different forms; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence. However, the Court also held that the some of the plaintiff’s state tort claims, her retaliation claim, and her contract claims “would necessarily involve judicial inquiry into church governance, and such an inquiry is prohibited by the First Amendment.”

September

Case Summaries: Merit Systems Protection Board

September

Gross is Not Applicable to Mixed Motive Cases under Amended Americans with Disability Act

Robert Southerland v. Dep’t of Defense, Docket Nos. SF-0752-09-0864-R-1, SF-0752-10-0111-R-1 (MSPB Oct. 5, 2011)

In August 2011, the Merit Systems Protection Board posted its decision in Southerland v. Dep’t of Defense adopting the Gross v. FBL Financial Services mixedmotive standard in application to a post-ADAAA disability discrimination case.

In a reversal of its August 2011 decision, the Board " VACATE[d its] August 25, 2011 Opinion and Order in its entirety, and SUBSTITUTE[d]" the new decision.

It appears that much of the decision is the same as the previous decision in Southerland, but for the major change in determining that the Supreme Court's draconian mixed-motive analysis in Gross IS NOT applicable to disparate treatment claims arising under the ADAA, although it still maintains the opinion that it is applicable for legacy pre-ADAA claims. ("we conclude that a mixed-motive analysis is not appropriate in disability discrimination claims arising under the ADAAA").

The decision is available online at: http://www.mspb.gov/netsearch/viewdocs.aspx?doc number=648915&version=650867&application=A CROBAT.

- submitted by Kevin Owen

September

Indefinite Suspension of Employee During Investigation is Illegal

Greene v. Dep’t of Homeland Security, Docket No. AT-0752-10-1029-I-1 (MSPB Sept. 9, 2011).

AJ Brian Bohlen of the MSPB in Atlanta issued a decision finding that it is impermissible as a matter of law for Transportation Security Administration to indefinitely suspend an employee merely because the agency is conducting an investigation of the employee. The Initial Decision is based upon TSA's Management Directives, which effectively mirror Title 5's efficiency of the service standard, rather than Title 5, which for the most part is not applicable to TSA. The AJ also rejected TSA's reliance on its Handbook to the Management Directive (which permitted indefinite suspensions during an investigation), finding that it was entitled to little respect under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).

Near the end of the case, just before the record was to close, TSA suddenly reversed Mr. Greene's indefinite suspension, reinstated him to paid admin leave, and restored all of his benefits in an attempt to moot the case. However, in the initial appeal I had included a retaliation claim and I timely filed a notice of compensatory damages which rendered the attempt to moot the case ineffective.

The Agency filed a PFR arguing that because it had reversed the suspension and restored all benefits, the AJ only needed to decide the issue of whether my client had been retaliated against, rather than issue a decision on the merits of the entire case. The Agency asserted that issuing a decision on the merits constituted an advisory opinion, which is not allowed. The Board rejected the Agency's argument, reiterated that a case is not rendered moot by rescission of the underlying action when there are claims for compensatory damages, and held that this was not an advisory opinion because an analysis of TSA's policies was relevant to a determination of pretext.

– submitted by Elaine L. Fitch

September

Conferences and Seminars

D.C. Bar Programs

SERIES: ERISA Basics Series, November 7, 14, 21, and 28, 2011. Part 1: ERISA Basics Series: ERISA Introduction; Part 2: ERISA Basics Series: Minimum Standards and Plan Design; Part 3: ERISA Basics Series: Problems in Plan Administration; and Part 4 Only: ERISA Basics Series: Fiduciary Responsibility and Participant Rights. The cost is: $89 for Section members, $99 for D.C. Bar members, $109 for Government lawyers, and $129 for others for a single program. The cost for the entire series are as follows: $259 for Section members, $279 for D.C. Bar members, $289 for Government lawyers, and $309 for others.

D.C. Bar programs are generally held at the D.C. Bar’s new location at 1101 K Street, N.W., First Floor, Washington, D.C. unless otherwise stated. For more information and to register for these programs, please visit: www.dcbar.org.

ABA Sponsors Brown Bag on OSC

ABA Section of Administrative Law and Regulatory Practice Government Operations and Personnel Committee Brown Bag Lunch Series: “Latest Federal Developments at the Office of Special Counsel,” November 3, 2011, 12:00 p.m. – 1:30 p.m. at the ABA Headquarters, 740 15th St. NW, John Marshall Room, 9th Floor, Washington, DC 20005. The cost is $5 In-person participation (ABA Section of Administrative Law member); $10 Inperson participation (Non- ABA Section of Administrative Law member) ; a n d $ 1 5 Teleconference participation (members and nonmembers). For more information or to register, contact Ryan Spagnolo at ryan.spagnolo@americanbar.org or 202-662-1528

MELA Conference

The Maryland Employment Lawyers Association (MELA) conference returns to its fall schedule. Please save the date to join us for the MELA conference on November 18, 2011, at the Doubletree Hotel in Columbia, MD. For more information, contact Julie Martin - K orb at jmartinkorb@gmail.com.

MWELA Case Evaluation Clinic

MWELA's Case Evaluation Clinics on September 28, 2011 provided valuable advice and insight to three lawyers who have pending employment law cases.

The cases involved 1) an ADA claim for a terminated contract employee at NIH, 2) a terminated federal contractor's whistleblower case in the U.S. District Court, and 3) a D.C. Circuit mediation for a foreign born hotel employee in an abusive work environment.

Many thanks to MWELA's Case Evaluators who freely gave of their time and expertise: Gary Brown, Leizer Goldsmith, Jon Gould, John Karl, Jim Klimaski, Donna Rucker, and Yuval Rubinstein, and also to "model juror" Dr. Edith Thomas and to MWELA President Scott Oswald who graciously hosted the Sept. 28 Clinics.

For more information about MWELA's Case Advisory Service or about our next Case Evaluation Clinics, please call me at 202-496-0400 or email me at jgebhardt@gebhardtlaw.com . We are prepared to promptly schedule a Case Evaluation Clinic for any MWELA member with an urgent need for advice on a particular case.

– Joe Gebhardt, Co-Chair, Case Advisory Committee

September

President's Club Members

Leslie Alderman
Alderman, Devorsetz & Hora, PLLC

Elliott Andalman
Andalman & Flynn, PC

John Ates
Ates Law Firm, P.C.

Alan Banov
Alan Banov and Associates

Josh Bowers
Law Office of Joshua F. Bowers, PC

Stephen Bruce
Stephen R. Bruce Law Offices

Marni Byrum
McQuade Byrum P.L.L.C.

Adam Carter
The Employment Law Group, P.C.

David Cashdan
Cashdan & Kane

John Clifford
Clifford & Garde, LLP

Linda Correia
Webster, Fredrickson, Correia & Puth, PLLC

William Farley
Law Office of William P. Farley, P.C.

Bruce Fredrickson
Webster, Fredrickson, Correia, & Puth, PLLC

Jonathan Gould
Law Office of Jonathan L. Gould

Neil Henrichsen
Henrichsen Siegel, PLLC

John Karl, Jr.
McDonald & Karl

Daniel Katz
Andalman & Flynn, PC

Phillip Kete
Law Office of Phillip R Kete

Stephen Lebau
Lebau & Neuworth, LLC

Alan Lescht
Alan Lescht & Associates, PC

Omar Melehy
Melehy & Associates, LLC

Woodley Osborne
Mehri & Skalet, PLLC

R. Scott Oswald
The Employment Law Group P.C.

Patricia Payne
Payne & Associates

Jonathan Puth
Webster, Fredrickson, Correia, & Puth, PLLC

James Rubin
Rubin Employment Law Firm, PC

David Scher
The Employment Law Group, P.C.

Nicholas Woodfield
The Employment Law Group, PC

Jason Zuckerman
The Employment Law Group, P.C.

September

Sustaining Members

Lisa Banks, Katz
Marshall & Banks, LLP

Lynne Bernabei
Bernabei & Wachtel, PLLC

John Berry
Berry & Berry PLLC

Heidi Burakiewicz
Mehri & Skalet, PLLC

Dennis Chong
Michael J. Hoare, PC

Denise Clark
The Law Office of Denise M. Clark, PLLC

Timothy Clinton
Clinton & Peed, PLLC

Boniface Cobbina
Law Offices of Boniface K. Cobbina, P.C.

Eliza Dermody
Bernabei & Wachtel, PLLC

Elaine Fitch
Kalijarvi, Chuzi & Newman, PC

Thomas Gagliardo
The Gagliardo Law Firm

Joseph Gebhardt
Gebhardt & Associates, LLP

Leizer Goldsmith
The Goldsmith Law Firm, LLC

Betty Grdina
Mooney, Green, Baker & Saindon, P.C.

Michael Hoare
Michael J. Hoare, PC14 MWELA MONTHLY Sept./October 2011

Susan Huhta
Washington Lawyers' Committee for Civil Rights and Urban Affairs

Peter Jeffrey,
Mahoney & Jeffrey, PLLC, The Federal Employee's Law Firm

Alan Kabat
Bernabei & Wachtel, PLLC

Steven Kahn
Kahn & Scharman, LLC

June Kalijarvi
Kalijarvi, Chuzi & Newman, P.C.

Debra Katz
Katz, Marshall & Banks, LLP

H. David Kelly, Jr.
Beins, Axelrod, P.C.

James Klimaski
Klimaski & Associates, PC

Daniel Kohrman
AARP Foundation Litigation

Andrea Loveless
Bernabei & Wachtel, PLLC

Kathleen Mahoney
Mahoney & Jeffrey, PLLC, The Federal Employee’s Law Firm

David Marshall
Katz, Marshall & Banks, LLP

Ellen Renaud
Swick & Shapiro, P.C.

Patricia Ricks
Law Offices of Patricia E. Ricks

David Schreiber
David E. Schreiber, P.C.

Lori Searcy
Searcy Law Offices, LLC

Richard Seymour
Law Office of Richard T. Seymour, P.L.L.C.

Beth Slavet
Beth S. Slavet, PC

Donald Temple
Temple Law Offices

Laura Varela
Washington Lawyers Committee

David Wachtel
Bernabei & Wachtel, PLLC

Peter Whelan
Bernabei & Wachtel PLLC

September

Verdicts, Orders & Settlements

September

Court Grants Equitable Relief to MPD Officers

Frazier Caudle et al. v. District of Columbia, No. 08- 00205 (HHK) (D.D.C. Sept. 1, 2011).

Following a jury verdict in favor of the Plaintiffs, who are Metropolitan Police Department Officers, for unlawful retaliation under Title VII, the U.S. District Court for the District of Columbia granted equitable relief to the Plaintiffs in the form of back pay and an injunction against further retaliation. The Court denied the Plaintiffs’ requests for transfers.

– submitted by Jennifer Klar

September

EEOC Awards Melehy $299,000 in Attorney’s Fees

Lois King v. Leon Panetta, Sec’y Dep’t of Defense, EEOC No. 570-2008-00899X (EEOC WFO Sept. 28, 2011).

I am happy to announce an award of attorney's by EEOC Administrative Judge Cynthia McKnight in the amount of $299,000 in a discrimination case against the Defense Intelligence Agency. The Judge ordered, inter alia, that the Complainant be reinstated and awarded back pay, that her record be expunged, that the Agency pay $75,000 in nonpecuniary damages, and that the responsible management officials attend 16 hours of EEO training.

– submitted by Omar Vincent Melehy

September

Friolo Decision on Fees

Friolo v. Frankel, et al., No. 825, Sept. 2010 Term (Md. App. Sept. 7, 2011).

In Friolo IV, released September 7, 2011, the Maryland Court of Special Appeals Panel (Judge Matricciani) reversed Judge Dugan on the Circuit Court’s major points, agreeing with plaintiff Friolo that it was impermissible to peg the fee award to a standard of whether a fee paying client would ever choose to pay more than the damages she could expect to recover for representation. The Panel was persuaded to erase the erroneous circuit court idea that the fee agreement controlled what could be awarded in fee shifting, and held that there was no Rule 1.5 issue inherent in Plaintiff’s counsel attempting to recover attorneys’ fees even after the damages judgment was paid. In one key passage, the Court held: “[l]imits on a client’s liability, whether fixed or contingent, do not make fee award demands exceeding that limit “unreasonable” under the feeshifting statutes in question, and the court erred as a matter of law when it held otherwise[,]” such that it was not a violation of Rule 1.5 for counsel to continue pursuing the case, that considerations of what a hypothetical client would pay for the services was antithetical to legislative intent, and that Friolo would have been entitled to a fully compensatory fee had her success been complete.

There are some wonderful quotes in the opinion: “[I]t would be contrary to legislative intent—as exhaustively set forth in Friolo I and Friolo III—to deny recovery of fees that are reasonably necessary to prosecute successful claims under the Labor and Employment Article.” Slip Op. at 37. if a plaintiff could have recovered only a onethousand dollar verdict by virtue of one-hundredthousand dollars worth of legal work, full compensation requires that those fees be shifted, regardless of their magnitude relative to the verdict. Slip Op. at 38.

For these reasons, limits on a client’s liability, whether fixed or contingent, do not make fee award demands exceeding that limit “unreasonable” under the fee-shifting statutes in question, and the court erred as a matter of law when it held otherwise. Slip Op. at 41.

The Panel also vindicated Friolo’s decade-long argument that Defendant’s failure to plead existence of a bona fide dispute constitutes waiver of that argument, and supported Friolo in finding that that Judge Dugan erred in refusing to follow the parties’ stipulation as to hourly rates.

Having dispensed with virtually all of Judge Dugan’s wisdom, the Panel concludes that the sole issue left for it to determine is: what degree of success did Friolo achieve?

The Panel held that: “[t]he circuit court’s attempts to reconcile her fees and success were improper in light of the legislative intent underlying LE §§ 3-427(d) and 3-507.1(b).” Instead, those statutes require us to balance the parties’ incentives and account for each side’s relative contribution to causing unnecessary litigation. Had Friolo sought only what she deserved, there may have been no need for litigation at all, and had she recovered all she claimed, she would have been entitled to whatever amount of fees that required.” I do not know where this “unnecessary litigation” standard came from.

The Court cited no supportive authority for its novel approach, that since Plaintiff sought $ 79,000 “at trial” stage and won $11,000 in damages, and the record reflects that Defendants offered $3,000.00 as a settlement (even in the absence of a Rule 68 in Maryland) at the time of the pretrial statement, Friolo is 88 percent responsible for the litigation continuing and therefore collects 12% of her fees. Putting aside the novelty of the calculation method, the Court was completely wrong as to the facts of what happened at trial. In fact, out of approximately $17,000 in unpaid wages and overtime ever even mentioned by Friolo or her counsel, the jury awarded $11,778.85.00, which is indicated in the closing argument, referencing two tabular exhibits we submitted, and which is exactly what Friolo asked the jury to award, a fact that we noted in appellate briefing years ago without contravention. I haven’t been able so far to figure out where the $79,000 figure came from. As far as Defendants’ settlement offer, we offered to settle the case for $36,000.00 in a letter which I never thought of putting in the record; I will now try to supplement with it as I move for reconsideration. In any event, even using the Court’s suspect methodology and applying it to the appellate work (see below), the final award would have to be several times greater than the $45,335.28 awarded once the facts are straightened out.

The Court addressed the appellate fees with a quick application of the above analysis, stating:

“In Friolo I, appellant claimed she was entitled to $69,637.50 in fees, while appellees maintained that she should not be awarded any fees at all. Neither of these figures reflected the proper award, which we determined above, of $8,356.50. Thus, the appeal itself was another partial success, and while Friolo demanded $85,745.58 in her petitions for appellate fees, her relative contribution to prolonging these proceedings only entitles her to a portion of that amount. Thus, we again apply our formula to Friolo’s appellate fee petitions and arrive at a proper award of $10,289.47 for fees incurred in connection with Friolo I. Finally, we can iterate our analysis and apply it again to both Friolo II and Friolo III. In those proceedings, Friolo sought a total of $163,353.83 in fees for prior work, whereas the results of that work justified only $18,645.97 in attorney’s fees. Friolo now seeks $219,963.34 for her counsel’s work in Friolo II, Friolo III (and the most recent remand), but her relative contribution to—and limited success in—those proceedings justifies only twelve percent of that amount, $26,395.60.”

The Panel’s logic is weak. For instance, it fails to take into account that there is no way that the drafters of the statute ever intended that a plaintiff should have to accept a mere 30% of her wages or face penalty forever more for seeking the rest, no matter what Stalingrad defense or judicial errors compel her to appeal. This methodology would chill Plaintiffs from seeking what they are really entitled to, and essentially render them losers even when they win significant victories. Julie Martin-Korb has already observed that a settlement offer is not an Offer of Judgment. Furthermore, Rule 68 only results in a diminution in the fee award if the Plaintiff fails to obtain a judgment in excess of the offer. Here, that standard was easily met, but the Court held Friolo to a standard far more strict; she begins to lose her fees merely for not obtaining as much as she “sought” aspirationally, not just what the Defendants were offering.

Furthermore, the Court fails to account for the attorneys’ fees that were already incurred at the point at which the $3,000.00 (or $2,500.00) was offered. Of course the Court made no inquiry into what Plaintiff had demanded in settlement—a more elegant way of applying its approach would have been to consider what Defendant admitted it owed at trial– zero, in contrast to what Plaintiff demanded at that time (here, what she was awarded by the jury and as a judgment), and/or only consider Defendant’s’ pretrial settlement offer in relation to Plaintiff’s pretrial settlement offer (here, $36,000.00, reflected in a letter not previously entered into the record). Alternatively, the Pretrial Statement states that Plaintiffs seek $65,000 and Defendants offer $2,500.00. Critically, the Court excluded fees incurred to date in its calculations. For instance, if Plaintiff’s counsel had performed $30,000.00 worth of work before the trial (or any other number), shouldn’t that amount be considered part of the recovery that Defendants’ offer would be expected to cover? If so, then Plaintiff was that much closer to the actual value the Court claims to be calculating, and Defendants are much further. Thus, if fees incurred to date at any given point had been factored into the Panel’s analysis, that would have changed the ratio and the final result.

Regarding appeals, it is simply untenable for the Court to disregard the public benefits, as well as the private advancement of Friolo’s litigation through the many appeals here. The Court of Appeals already held in Friolo III that it is “the degree of success on appeal” that should control the award for appellate work, something which Master Rowan accepted, leading him to recommend a $225,000.00 fee award. In an unhappy irony, the CSA has ordered plaintiff to pay nearly all of Judge Rowan’s master’s fee for creating the “unnecessary litigation,” even though he would have given plaintiff a far more satisfactory result.

The bottom line seems to be that the Panel came up with an ill-advised formula that I do not believe will be supportable in the Court of Appeals. It also erred glaringly as to the facts regarding who demanded what when, a consideration that should not be significant, but is, if the CSA formula is to be applied. In the coming days, I am sure I won’t be the only one working to take this logic down peg by peg. I am confident that this can be improved upon through reconsideration, and/or once the certiorari petition is, hopefully, granted. One postscript: at oral argument, Defendants’ counsel was asked if he would affirm the $5,000.00 fee award of the Circuit Court and he answered in the affirmative. The the award is now almost ten times that amount, but the CSA would punish Friolo for having brought the appeal that corrected that error, by diminishing her fee award based on her failure to accept a $2,500.00 settlement offer ten years ago at trial. Obviously, this formula is need of some serious revision, and I have a lot of work to do.

The decision is available at http://mdcourts.gov/opinions/cosa/2011/825s10.pdf.

– submitted by Leizer Z. Goldsmith

September

Hampden Lane Loses Petition for Review of Commission’s Award

On August 25, 2011, I had the oral argument on Hampden Lane's petition for review of the County Commission's decision in our favor on Hampden Lane's ugly retaliatory lawsuit against Anissa Harris. Judge Craven presided. He had read all the pertinent materials, as colleagues predicted, and, though the approached things differently from how we would do it, he did honor the following principle:

“The test for determining whether the [agency's] findings of fact are supported by substantial evidence is whether reasoning minds could reach the same conclusion from the facts relied upon by the [agency].” Dept. of Labor, Licensing and Regulation v. Hider, 349 Md. 71, 78, 706 A.2d 1073 (1998). “If the agency's determination is reasonably supported by the evidence in the record, [the court] must uphold the agency's determination although [it] may have come to a different result.” Mayberry v. Board of Education of Anne Arundel County, 131 Md. App. 686, 750 A.2d 677, 685 (2000). See also Marzullo v. Kahl, 366 Md. 158, 171, 783 A.2d 169 (2001); Montgomery County v. Jamsa, 153 Md. App. 346, 836 A. 2d 745, 749 (2003).

Bottom line: He affirmed the finding that the suit was illegal retaliation and he upheld all the remedies awarded by the Commission.

– submitted by Alan Banov

September

Jury Awards $650,00 for Constructive Discharge Claim

I am pleased to report that on September 26, 2011, a Montgomery County jury has returned a verdict in5 MWELA MONTHLY Sept./October 2011 the amount of $650,000 for Donna Jackson in her Montgomery Country Code constructive discharge claim against her former employer, Edgewood Management Corporation, after a 5 day trial. Ms. Jackson was represented at trial by MWELA's own Scott Oswald and Nick Woodfield.

– submitted by David Scher

September

Section 12-309 Does Not Bar Negligence Claim for Liquidated Damages

In Lindsey v. District of Columbia, No. 07-1939 (RBW) (D.D.C. Sept. 15, 2011), Donna Williams Rucker recently received a great Order from Judge Walton on an age discrimination and negligence claim against the District (D.C. Fire and EMS). The Order (attached) is a fun read all around since he roasts the District a bit. However, what is particularly exciting and the reason for posting is that Judge Walton agreed with Plaintiff's 12-309 argument that asserted the negligence claim should not be dismissed in total for not having a 12-309 notice provided to the District. Plaintiff argued that although unliquidated damages may not be available, he was still entitled to liquidated damages (e.g., back pay, front pay, etc), equitable relief and attorney fees (though this is not technically damages but even J. Walton included them in his Order). To sum it up, both our claims survived, and we potentially get attorney fees where we would not otherwise get them on just the age claim.

This is a significant win in the 12-309 battle.

– submitted by Mackenzie Coy

September

Verdict Against WSSC

My partner Tim Maloney, with our associate Joe Creed, won another jury verdict this week against WSSC in Circuit Court for Prince George's County. The Jury awarded our client $637,000.00 ($137,000.00 lost wages, and $500,000.00 compensatory) in this race discrimination case. Here is the link to the Gazette article: http://www.gazette.net/article/20110923/NEWS/709239670/1029 /former-ssc-employee-wins-reverse-discrimination-judgment&template=gazette. This is Tim's second jury verdict against WSSC this year. In June, he obtained a jury verdict of $1,650,000.00 against WSSC, on behalf of an African-American manager in a race discrimination case.

– submitted by Jay P. Holland

September