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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 12-CV-27
CHERYL STEELE, APPELLANT
v.
S. MICAH SALB, et al., APPELLEES
Appeal from the Superior Court of the
District of Columbia
(CAM-8556-09)
(Hon. Judith N. Macaluso, Trial Judge)
(Submitted December 11, 2012 Decided July 3, 2014)
Cheryl Steele filed a brief pro se.
Mariana D. Bravo and Matthew D. Berkowitz were on the brief for
appellees.
Before EASTERLY and MCLEESE, Associate Judges, and TERRY, Senior
Judge.
TERRY, Senior Judge: Appellant Steele sued her attorney, appellee Salb,
for legal malpractice, seeking damages allegedly resulting from Salb’s negligent
2
representation of Steele in her appeal from the entry of summary judgment on her
employment discrimination complaint in federal court (hereafter “Title VII”
complaint or action) against her employer. Specifically, Salb failed to challenge the
entry of summary judgment on Steele’s constructive discharge claim. Salb denied
committing malpractice and filed a counterclaim seeking to collect unpaid legal fees
from Steele for his work on the appeal and the subsequent settlement of Steele’s Title
VII action. The trial court granted Salb’s motions for summary judgment on the legal
malpractice claim and on the counterclaim for unpaid legal fees, and Steele noted this
appeal.
Before this court Steele contends that the trial court erred in granting
summary judgment on the malpractice claim because there was a genuine issue of
material fact as to whether Salb’s alleged negligence caused Steele any harm. Steele
further argues that the court erred in entering summary judgment on the counterclaim
because, first, Salb cannot collect legal fees for his work on the appeal when he
committed malpractice, and second, Salb is not entitled to collect fees for his work
on the settlement because he withdrew as Steele’s counsel before the settlement
agreement was completed. For the reasons that follow, we affirm the judgment in
favor of Salb on the malpractice claim, affirm in part and reverse in part the judgment
3
on Salb’s counterclaim for unpaid legal fees, and remand for further proceedings
consistent with this opinion.
I
A. The Title VII Action
Steele, an African American woman, resigned from her position as an
agricultural economist at the United States Department of Agriculture (“USDA”) on
April 3, 2000, and thereafter filed a complaint of employment discrimination with the
Equal Employment Opportunity Commission (“EEOC”) alleging, among other things,
constructive discharge as a result of intolerable working conditions. The EEOC
referred Steele’s claim to the United States Merit Protection Board (“MPB”) for
adjudication. On May 3, 2001, in a detailed, twenty-page decision, the MPB
concluded that Steele’s “allegations [were] insufficient to establish that her working
conditions were such that a reasonable person in the employee’s position would have
felt compelled to retire.”
4
On March 11, 2002, Steele filed a complaint against the USDA in the
United States District Court for the District of Columbia in which she alleged, inter
alia, retaliation, hostile work environment, and constructive discharge. In support of
her claims, Steele alleged that she was wrongly accused of misuse of a government
credit card, received an incompetent assistant whereas her white counterparts
received competent assistants, was forced to work countless hours of overtime (to
make up for the inadequate work done by the incompetent assistant) resulting in
stress and exhaustion, was denied two cash awards, received a lower performance
rating — as well as lower performance awards relative to her white counterparts —
after she consulted an equal employment opportunity counselor in 1999, was denied
a promotion, was denied an opportunity to work on two grant projects, was initially
not credited for her work on a paper, and was not allowed to participate in a
conference. The USDA filed a motion for summary judgment, which Steele opposed.
In September 2005 the District Court entered summary judgment in favor
of the USDA, concluding that Steele’s claims either were untimely or were not
supported by sufficient evidence to create a genuine issue of material fact. With
respect to Steele’s constructive discharge claim, the court concluded that, although
“Steele alleges that she resigned against her will, [t]he record . . . contains no
5
evidence to support Steele’s claim that she was constructively discharged based on
conditions that were so intolerable, so aggravating, that any reasonable person would
have felt compelled to quit.”
Steele noted a timely appeal to the United States Court of Appeals for the
District of Columbia Circuit. Steele’s then-attorney, Saundra White, filed a statement
in the appellate court of issues to be raised on appeal, which included issues relating
to her retaliation, hostile work environment, and constructive discharge claims.
When Ms. White found it necessary to withdraw from the case on account of illness,
appellee Salb replaced her. Steele entered into an Appeals Retainer Agreement with
Mr. Salb. On July 20, 2007, Salb filed a brief in the United States Court of Appeals
that did not address Steele’s constructive discharge claim; rather, it argued only her
hostile work environment and retaliation claims. At oral argument before the
appellate court, Mr. Salb acknowledged that he did not challenge the entry of
summary judgment on Steele’s constructive discharge claim. See Steele v. Schafer,
383 U.S. App. D.C. 74, 77, 535 F.3d 689, 692 (2008) (noting Salb’s acknowledgment
that he did not raise the constructive discharge issue on appeal).
6
On August 1, 2008, the United States Court of Appeals reversed the
District Court’s dismissal of the hostile work environment and retaliation claims and
remanded the case for further proceedings on those claims only. Id. at 82, 535 F.3d
at 697. Steele then entered into a Litigation Retainer Agreement with Salb for his
work relating to the claims on remand. With the assistance of Salb, Steele began
settlement negotiations with the USDA; however, Salb later withdrew as her
attorney, and Steele completed settlement negotiations with the assistance of another
attorney. Sometime in June 2009, Steele and the USDA settled the case for $150,000.
B. The Legal Malpractice Action
On November 17, 2009, Steele filed a legal malpractice action against Salb
in the District of Columbia Superior Court. In her complaint, Steele alleged that Salb
“told the [United States] Court [of Appeals] that he had dropped th[e] claim [relating
to constructive termination].” Steele further alleged that Salb, “by failing to include
in [his] argument to the Court of Appeals that the District Court had erred when it
held that Appellant was not constructively terminated, even though Appellant
presented clear and convincing evidence that her work conditions were so intolerable
and aggravating that a reasonable person would have felt compelled to quit,”
7
committed legal malpractice and breached his contract with her. Because “[t]he
constructive termination claim would have involved a damage calculation including
back pay and front pay in an amount equal to $750,000, damages not available under
any of the other claims raised in the Title VII Case,” Steele sought $750,000 in
damages allegedly resulting from Salb’s malpractice.
In April 2010 Salb filed a counterclaim seeking unpaid legal fees (for his
work on Steele’s appeal and subsequent settlement in the Title VII litigation) in the
event that the Superior Court concluded that Salb had not committed legal
malpractice. Salb then moved for summary judgment on both Steele’s malpractice
claim and his own counterclaim for unpaid legal fees. Steele opposed Salb’s motion
for summary judgment on the malpractice claim, but failed to oppose his motion for
summary judgment on the counterclaim for attorney’s fees. On August 15, 2011, the
Superior Court granted Salb’s motion for summary judgment on the counterclaim
and ordered Steele to pay him $63,300.42 in unpaid legal fees, finding that “the
motion is taken as conceded” and would be “supported by the record” if a judgment
or verdict were entered that Salb was not liable for legal malpractice. The next day
the court also granted Salb’s motion for summary judgment on the malpractice action,
concluding that there was no genuine issue of material fact as to whether Salb’s
8
negligence caused Steele any harm. The court ordered that the judgment be held in
abeyance until September 2 to provide Salb an opportunity to file a motion to amend
the judgment awarding attorney’s fees. About two weeks later Salb moved to amend
the judgment (to include attorney’s fees for his work pursuing the counterclaim),
which Steele opposed. On December 6, 2011, the trial court granted Salb’s motion
to amend the judgment and ordered Steele to pay an additional $17,095 in attorney’s
fees. Steele timely filed a notice of appeal.
Now proceeding pro se before this court, Steele challenges the trial court’s
orders entering summary judgment in favor of Salb on the malpractice claim and on
the counterclaim. She also contests the order granting Salb’s motion to amend the
judgment.
II
This court reviews challenges to orders granting summary judgment de
novo. See, e.g., Franco v. District of Columbia, 39 A.3d 890, 894 (D.C. 2012). “A
party is entitled to summary judgment when ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
9
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.’” Id. at 894 (quoting Super. Ct. Civ. R. 56 (c)). “In
response to a summary judgment motion . . . the plaintiff . . . must ‘set forth’ by
affidavit or other evidence ‘specific facts’ . . . which for purposes of the summary
judgment motion will be taken to be true.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992) (quoting Fed. R. Civ. P. 56 (e)). However, “[t]he object of [Rule 56
(e)’s ‘specific facts’ requirement] is not to replace conclusory allegations of the
complaint or answer with conclusory allegations of an affidavit.” Lujan v. Nat’l
Wildlife Federation, 497 U.S. 871, 888 (1990). Accordingly, although “we examine
the evidence in the light most favorable to the party opposing the motion, conclusory
allegations by the nonmoving party are insufficient to establish a genuine issue of
material fact or to defeat the entry of summary judgment.” Franco, 39 A.3d at 894
(internal quotation marks and citation omitted).
A. Steele’s Legal Malpractice Claim
A plaintiff alleging legal malpractice must establish “the applicable
standard of care, a breach of that standard, and a causal relationship between the
violation and the harm complained of.” Biomet Inc. v. Finnegan Henderson LLP,
10
967 A.2d 662, 664 (D.C. 2009) (citing O’Neil v. Bergan, 452 A.2d 337, 341 (D.C.
1982)). In determining whether the plaintiff has established the third element of a
legal malpractice claim, the court will often apply the “case within a case” doctrine
to determine whether the plaintiff would have prevailed in the underlying litigation
in the absence of the attorney’s alleged breach. See, e.g., Breezevale, Ltd. v.
Dickinson, 879 A.2d 957, 960 (D.C. 2005). If the plaintiff cannot establish that she
would have “fared better” in the absence of the attorney’s negligence, she cannot
prevail on her legal malpractice claim. See, e.g., Chase v. Gilbert, 499 A.2d 1203,
1212 (D.C. 1985).
As the trial court noted in its order granting summary judgment for Salb on
the legal malpractice claim (and as neither party disputes on appeal), it is not difficult
to “conclud[e] that the record is sufficient [for Steele] to survive the Motion [for
summary judgment] with respect to [standard of care] . . . and breach [of that
standard] . . . .” It is undisputed that an attorney-client relationship existed between
Salb and Steele, and Steele has stated under oath that Salb admitted that he intended
to appeal the constructive discharge claim, but failed to argue it in his brief to the
United States Court of Appeals.
11
We therefore turn to the question whether a genuine issue of material fact
remains as to causation. This requires us to decide whether Steele has shown that it
is more likely than not she would have prevailed in her appeal before the United
States Court of Appeals in the absence of Salb’s failure to challenge the District
Court’s entry of summary judgment on her constructive discharge claim. See
Breezevale, 879 A.2d at 960. Because the District Court entered summary judgment
on Steele’s constructive discharge claim, Steele v. Veneman, No. 1:02cv452, 2005
U.S. Dist. LEXIS 46696, at 21 (D.D.C. September 29, 2005), our determination
whether Steele would more likely than not have prevailed in her appeal to the United
States Court of Appeals in the absence of Salb’s failure to challenge the entry of
summary judgment on the constructive discharge claim requires us to decide whether
that Court of Appeals, reviewing the District Court’s judgment de novo, would more
likely than not have found that a genuine dispute remained as to whether Steele was
constructively discharged. See Steele, 383 U.S. App. D.C. at 77, 535 F.3d at 692.
When, as in this case, a plaintiff alleges a “hostile-environment
constructive discharge” (i.e., “an aggravated case of . . . hostile work environment”),1
1
As the United States Court of Appeals noted, “Steele indisputably
raises a constructive discharge claim premised on a hostile work environment.”
(continued...)
12
she must show not only sufficient facts to prove a hostile work environment,2 but
also “working conditions so intolerable that a reasonable person would have felt
compelled to resign.” Pennsylvania State Police v. Suders, 542 U.S. 129, 147 (2004);
see Atlantic Richfield Co. v. District of Columbia Comm’n on Human Rights, 515
A.2d 1095, 1101 (D.C. 1986) (when reviewing constructive discharge claims, “courts
have focused on the existence of aggravating conditions in the workplace which
would lead a reasonable person to resign”). Therefore, for a constructive discharge
claim to survive a motion for summary judgment, a plaintiff cannot merely assert that
a genuine issue of material fact exists as to her hostile work environment claim;
rather, she must also allege specific facts showing that a genuine issue remains as to
the existence of aggravating factors that would have led a reasonable person to
resign.3
1
(...continued)
Steele, 383 U.S. App. D.C. at 79, 535 F.3d at 694.
2
A plaintiff alleging hostile work environment must show “harassing
behavior ‘sufficiently severe or pervasive to alter the conditions of [her]
employment.’ ” Pennsylvania State Police v. Suders, 542 U.S. 129, 133
(2004) (citations omitted).
3
“[T]o prove constructive discharge, the plaintiff must demonstrate
a greater severity or pervasiveness of harassment than the minimum required
to prove a hostile working environment.” 3 LEX K. LARSON, LABOR AND
(continued...)
13
Although the United States Court of Appeals, in reversing the District
Court’s entry of summary judgment on Steele’s hostile work environment claim,
stopped short of addressing the merits of that claim, there can be no doubt that the
court would have concluded that there was a genuine issue of material fact as to the
first prong of Steele’s constructive discharge claim (i.e., the hostile work environment
prong). What remains to be determined is whether a genuine issue of material fact
remained as to the second prong, viz., whether Steele’s working conditions were so
aggravating that a reasonable person would have felt compelled to resign. Because
we must determine whether Steele more likely than not would have prevailed in her
appeal before the United States Court of Appeals, we look only to those portions of
the record before us that were available to the United States District Court when it
entered summary judgment.4
3
(...continued)
EMPLOYMENT LAW § 59.05 [8] (2010) (internal quotation marks and citations
omitted). “[I]f the plaintiff does not establish a causal connection between the
harassment and the resignation, the constructive discharge claim will fail.” Id.
(citations omitted).
4
We note that in entering summary judgment on Steele’s malpractice
claim, the Superior Court considered more than was necessary when
determining whether she had alleged sufficient facts to show a genuine issue
as to causation. Specifically, the court considered Steele’s expert’s affidavit,
which was submitted as part of the malpractice litigation, and thus was not part
(continued...)
14
Steele asserts in her brief that, had Salb challenged the District Court’s
entry of summary judgment on the constructive discharge claim, the United States
Court of Appeals would have concluded that a genuine issue of material fact
remained as to whether “her working conditions were so intolerable and aggravating
that a reasonable person would have felt compelled to quit.” In support of this
argument, Steele relies primarily on the fact that she prevailed on her appeal from the
entry of summary judgment on her hostile work environment claim.5 Our review of
the record shows, however, that to the extent that Steele purported to allege “specific
facts” to the District Court to show that there was a genuine dispute as to whether her
working conditions were so aggravating that a reasonable person would have been
4
(...continued)
of the record before the District Court when it entered summary judgment on
her constructive discharge claim. Because we focus our attention only on those
portions of the record that were available to the District Court when it entered
that judgment, facts newly offered as part of discovery in the instant
malpractice action have no bearing on our decision.
5
Steele also notes that her expert opined in an affidavit that, more
likely than not, she would have prevailed on her constructive discharge claim.
As we have noted, however, supra note 4, discovery from the instant
malpractice litigation has no bearing on our determination whether Steele
would more likely than not have prevailed in the constructive discharge
litigation. In any event, the affidavit failed to include even a single reference
to the record that would support her assertion that the United States Court of
Appeals would have reversed on the constructive discharge issue.
15
compelled to resign, she relied on the same facts that underlay her hostile work
environment claim.
In her District Court complaint, Steele alleged that the cumulative effect
of her allegedly hostile work environment at the USDA caused her to “resign[ ]
against her will.” However, in her opposition to the USDA’s motion for summary
judgment, Steele merely reiterated her hostile work environment allegations and
conclusorily reasserted that “she resign[ed] involuntarily.” She failed to allege any
specific facts that would indicate that her resignation was involuntary, even though
she offered more than 500 pages of exhibits in support of her opposition. Instead,
Steele merely requested that the District Court “review all materials submitted by
both parties,” stating that she was “certain” that the court, upon such review, would
deny the USDA’s motion. In ruling against her on her constructive discharge claim,
however, the District Court declared that “[t]he record . . . contains no evidence to
support Steele’s claim that she was constructively discharged based on conditions that
was so intolerable, so aggravating, that any reasonable person would have felt
compelled to quit.” Steele v. Veneman, No. 1:02cv452, 2005 U.S. Dist. LEXIS
46696, at *22 (D.D.C. Sept. 29, 2005).
16
Steele’s reliance on the allegations underlying her hostile work
environment claim alone will not permit her constructive discharge claim to survive
summary judgment. See Suders, 542 U.S. at 147. Not only did she fail to allege
specific facts in the District Court litigation that would raise a genuine issue of
material fact as to whether working conditions were so intolerable that a reasonable
person would have felt compelled to resign; she also failed to show that a genuine
dispute remained as to whether she was constructively discharged. We therefore hold
that Steele has failed to meet her burden of showing that she would, more likely than
not, have prevailed in the United States Court of Appeals in the absence of Salb’s
negligent failure to challenge the District Court’s entry of summary judgment on her
constructive discharge claim. It follows that the Superior Court did not err by
entering summary judgment on the malpractice claim in favor of Salb, since Steele
was unable to allege facts showing that a genuine issue of material fact remained as
to causation.
B. Salb’s Counterclaim for Unpaid Legal Fees
Salb’s motion for summary judgment on his counterclaim for $63,300.42
in unpaid legal fees was unopposed by Steele, who was represented by counsel at the
17
time. The trial court treated the motion as conceded and, upon determining that the
motion was supported by the record, entered summary judgment on the counterclaim.
Even when an appellant, as here, has failed to respond to a motion for summary
judgment, we have held that it “it is also important to confirm, on the basis of the
pleadings, affidavits, and other papers, whether the trial court’s summary judgment
order[ ] . . . [is] ‘appropriate.’ ” Lynch v. Meridian Hill Studio Apts., Inc., 491 A.2d
515, 520 (D.C. 1985) (quoting Super. Ct. Civ. R. 56 (e)).
The $63,300.42 in unpaid legal fees includes $20,800.42 for Salb’s work
on Steele’s appeal to the United States Court of Appeals, plus $50,000 for his
contingency fee from the settlement, minus $7,500 for Steele’s retainer payment.
Turning first to the fees relating to Salb’s work on Steele’s appeal, the terms of the
Appeal Retainer Agreement and the detailed invoices submitted by Salb clearly show
that Steele owed $20,800.42 for legal fees. Although Steele appears to dispute that
figure, she points to no facts in the record to support any alleged discrepancy in the
amount owed. To the extent that Steele argues Salb would not be entitled to
attorney’s fees if he committed malpractice, her argument is unavailing in light of her
failure to prove, as a matter of law, that Salb committed legal malpractice. We
18
therefore conclude that there is no genuine issue of material fact as to whether Steele
owed Salb $20,800.42 in unpaid legal fees.
We turn next to the fees relating to Salb’s work on the settlement ($50,000
in contingency fees, minus $7,500 for Steele’s retainer payment). As discussed
above, Salb withdrew as counsel for Steele prior to the execution of the settlement
agreement. We have held that an attorney whose services are terminated by his client
is entitled to the full contingency fee if he has “substantially performed under the
contingency fee agreement and was willing to complete his obligation.” Greenberg
v. Sher, 567 A.2d 882, 886 (D.C. 1989). Steele asserts that “[she] did not terminate
Mr. Salb; . . . he stated that he refused to work with me any more. He stated to me
that he was going to resign [and] would petition the court to be removed based on
irreconcilable differences.” Salb, on the other hand, contends that he was terminated
by Steele before the settlement was finalized. Steele invites our attention to her letter
to Salb, dated March 18, 2009, in which she discussed their telephone conversation
of March 10. In that conversation Salb “explicitly stated” his desire to resign, which
resignation Steele accepted. However, in a letter dated March 16, 2009, Salb stated:
“We are in receipt of your letter of March 11, 2009. Contrary to your statement, we
did not resign and do not desire to resign from representation of you. We understand,
19
though, that you wish to terminate our relationship.” On March 30, 2009, Salb
e-mailed Steele to notify her that he had filed a motion to withdraw as her attorney
and that he “regret[ed] [her] decision to terminate [his] representation of [her].” On
this record, we conclude that the entry of summary judgment on the counterclaim was
inappropriate with respect to the unpaid legal fees for Salb’s work on the settlement,
since a genuine issue of material fact remained as to whether Salb was “willing to
complete his obligation,” Greenberg, 567 A.2d at 886, or whether he chose to resign.
On remand, the resolution of this question will determine whether Salb is, in fact,
entitled to any fees for his work on the settlement agreement.
We do not reach the issue whether the Superior Court abused its discretion
in granting Salb’s motion to amend the judgment to include attorney’s fees for his
work on the counterclaim. Rather, we defer to the trial court on remand to draw its
own conclusions regarding the survival of the counterclaim, which in turn will dictate
whether its ruling on the motion to amend the judgment will require modification.
20
III
In sum, we conclude that the trial court did not err by entering summary
judgment in favor of Salb on Steele’s legal malpractice claim, since there was no
genuine issue of material fact as to whether it was more likely than not that Steele
would have prevailed in her appeal before the United States Court of Appeals in the
absence of Salb’s failure to challenge the District Court’s entry of summary judgment
on her constructive discharge claim. We further hold, with respect to Salb’s
counterclaim for unpaid legal fees, that summary judgment was appropriate as to
Salb’s fees for his work on the appeal of Steele’s Title VII claim, but inappropriate
as to Salb’s fees for his work on Steele’s settlement agreement, since a genuine issue
of material fact remains as to whether Salb was terminated or chose to resign prior to
the completion of that agreement.
Accordingly, the judgment in favor of Salb on the malpractice claim is
affirmed. The judgment on Salb’s counterclaim is affirmed in part and reversed in
part, the order granting Salb’s motion to amend the judgment is vacated, and the case
is remanded to the trial court for further proceedings consistent with this opinion.
21
Affirmed in part, reversed in part, and remanded.