Recent Cases from the Civil Litigation Division
These are among cases handled in recent months by the Office of the Attorney General’s Civil Litigation Division:
NANCY TUCKER V. DISTRICT OF COLUMBIA 2010 CA 0459
DIANE GUSTUS V. DISTRICT OF COLUMBIA 2010 CA 8362
The District won a defense verdict in a lawsuit filed by Nancy Tucker, a former manager in the Office of the Chief Financial Officer (OCFO) who retired in 2009. Tucker filed suit in 2010 asserting claims under the D.C. Human Rights Act (DCHRA) and the D.C. Whistleblower Protection Act (DCWPA). She claimed that she was unlawfully forced to retire because she had complained about alleged mismanagement, including problems with OCFO’s software and certain staffing levels, in violation of the DCWPA. She asserted that the District refused to rehire her for the same position based on her age, in violation of the DCHRA. The trial court dismissed the claims under the DCHRA before the case went to the jury.
At trial, the District’s witnesses explained that Tucker was let go after an investigation of the Harriette Walters case, in which Walters, a former employee in the Real Property Tax Administration unit of OCFO, embezzled some $48 million from the District over 20 years. Tucker was Chief of the Assessment Services Division (a branch of Real Property Tax Administration), and Walters’ direct supervisor from mid-2004 through mid-2006. While there was no evidence that Tucker played any role in Walters’ crimes, she was asked to resign after the OCFO concluded that she had failed to exercise due diligence in her supervision of Walters.
Superior Court Judge Herbert Dixon, Jr. presided over a six-day trial. A jury returned a verdict on January 15, 2014 in the District’s favor, concluding that Tucker’s alleged disclosures had nothing to do with the end of her employment with the District. Plaintiff had sought damages of $1,000,000. The case was tried by Assistant Attorneys General Alex Karpinski and Rick Ferrini. In a second case involving a former OCFO employee, a jury found for the District in a lawsuit brought by Diane Gustus, who was terminated in 2007 after the tax fraud scheme was discovered. She held the position of Real Property Program Specialist with the Real Property Tax Administration unit in July 2007. That year, evidence emerged that Walters was embezzling government funds by initiating and then approving bogus tax refund packets with the assistance of other individuals.
Gustus’ signature appeared on the majority of these packets, and on November 7, 2007, she was arrested for her alleged involvement with the embezzlement scheme. OCFO terminated her employment the same day because she either knowingly participated in the scheme or she grossly failed to perform the duties of her job, which enabled the scheme’s success. While Walters was convicted and is serving time, the criminal charges against Gustus were dismissed. In her civil case, Gustus brought breach of contract claims based on two separate clauses of a union collective bargaining agreement. She alleged that the District breached the agreement by terminating her without completing an investigation and that it was not reasonable for the decision maker to conclude that she was a hazard to the agency. Gustus sought $350,000 in damages.
The jury in the court of Superior Court Judge Neal Kravitz deliberated for approximately four hours, and came back with a verdict in favor of the District on January 10, 2014, on both breach of contract claims.
Assistant Attorneys General Michael Addo and Caliandra Burstein handled the case.
SULLIVAN V. DISTRICT OF COLUMBIA AND ABOVENETCOMMUNICATIONS, 2012 CA 2045 B.
On March 19, 2014, a jury returned a verdict in favor of the District of Columbia in this trip and fall case. Plaintiff Stephen Sullivan tripped and fell over a manhole cover owned by co-defendant Abovenet Communications near the intersection of North Capitol Street and Massachusetts Ave., N.W. Plaintiff failed to see the depression in the roadway around the newly installed manhole cover as he walked from his office to Union Station, and fell and broke his clavicle. Co-defendant Abovenet obtained a permit from the District to perform work at that location. Plaintiff claimed that Abovenet had improperly installed the temporary fill in the trench around the manhole. Plaintiff also alleged that the District had failed to properly inspect Abovenet’s work. The District defended the case on the basis that 1) plaintiff had no evidence of notice to the city of the allegedly hazardous condition; 2) plaintiff contributed to his injuries by crossing the street outside of the marked crosswalk; and 3) and the condition of the roadway was open and obvious such that Plaintiff should have seen and avoided the defect. The District also cross-claimed against Abovenet for indemnification and/or contribution.
During the trial, plaintiff attempted to raise an issue about the design of the intersection and the traffic control devices positioned around it. Although the jury was instructed on design immunity by Judge Laura Cordero, it requested additional instruction on the effect of design immunity as applied to the facts of the case. The jury returned a verdict in favor of the District and against co-defendant Abovenet in the amount of $300,000. The court later quashed the jury’s verdict against Abovenet.
Assistant Attorneys General Michael Addo and Soriy Chhe tried the case. District Department of Transportation employees Matthew Marcou, James Henry, Lamont Hinton and Diana Jordan were extremely helpful during the preparation and trial.
SMITH V. DC. 1:12-cv-002058
Plaintiffs appealed an administrative ruling against them that denied them private school reimbursement and prospective placement for a student at the private Lab School of Washington. The District defended, arguing that the administrative hearing officer correctly ruled that the student could be educated in a DC Public School. The court correctly applied the Least Restrictive Environment (LRE) standard found in the federal Individuals With Disabilities Education Act in determining that the student’s proper “placement” was the recommended DCPS school. U.S. Magistrate Judge Deborah A. Robinson ruled on March 14, 2014 that plaintiff’s evidence failed to address the LRE standards and found no merit to plaintiff’s claim that the hearing officer handled the hearing unfairly simply because she disagreed with plaintiff’s expert witnesses or found them not credible in light of other documentary evidence.
This matter was handled by Assistant Attorney General Laura A. George.
DOWDY V. DISTRICT OF COLUMBIA 2012 CA 000200
The plaintiff is a former D.C. Department Youth Rehabilitation Services employee who claimed that he was fired because he told the agency’s General Counsel that he intended to file an EEO complaint. Plaintiff also alleged that the District breached a contract made by DYRS’s director to give him a raise during a detail to a higher position.
The District argued that no reasonable jury could find for the plaintiff on his breach of contract claim because 1) the language that the plaintiff said the director used (that plaintiff would be “eligible” for a raise after 90 days) did not indicate an intent to be so bound; and 2) the agency director lacked authority to bind the District. The District argued that it was entitled to a verdict on the retaliation claim because 1) plaintiff’s generic threat to file an EEO claim was not protected under the law because he wasn’t complaining about discrimination; and 2) there was no evidence that the person who made the decision to fire plaintiff knew about his threat.
On March 12, 2014, D. C. Superior Court Judge Robert Okun granted the District’s motion for a directed verdict. The Court found that the plaintiff had not engaged in protected activity and that there was no contract based on plaintiff’s own description of his conversation with the agency director.
The case was handled by Assistant Attorneys General Sarah Knapp and Alicia Cullen.
GREBOW V. DISTRICT OF COLUMBIA 2010 CA 009212 B
In 2006, plaintiffs Grebow and Sussman loaned $575,000 to SED LLC to develop a vacant 12 unit apartment building in Southeast D.C. However, SED LLC could not secure financing and the property fell into disrepair. In 2009 the D.C. Department Consumer and Regulatory Affairs (DCRA) made the determination that the building posed an imminent threat to the community and summarily razed the building without first providing notice to SED LLC or the plaintiffs.
Plaintiffs claimed (1) that they were entitled to notice because the DCRA was operating under a statue requiring notice to lien holders and (2) that the building was not an imminent threat. They sought $600,000 in damages. After hearing oral argument, D. C. Superior Court Judge Brian Holman held on Feb. 6, 2014 that the building was indisputably an imminent threat to the community and that as a matter of law the plaintiffs were not entitled to notice. Judge Holman granted the District’s motion for a directed verdict.
Assistant Attorney General Joseph Gonzalez and pro bono attorney Amir Farhangi served as trial counsel.
AMM HOLDINGS, INC., vs. DISTRICT OF COLUMBIA, 2012 CA 002450 B
A judge ruled for the District in a case brought by a small corporation that purchased a parcel of land in Northwest Washington to build a 3-unit apartment building and that argued it had incurred unnecessary costs because a District agency erroneously granted it the permit to build the apartment, and then issued a stop work order halting the construction. In 2010, AMM Holdings, Inc., was granted a construction permit by the D.C. Department of Consumer and Regulatory Affairs to build a 3-unit apartment building at 527 Irving St., N.W. In November of that year, the agency issued a “stop work” order because zoning regulations did not permit construction of a 3-unit building in that zoning area.
The corporation won an appeal from the D.C. Board of Zoning Adjustment, despite the zoning regulation prohibitions, because it had expended substantial funds to construct the apartment in reliance on the permit issued by DCRA. The corporation was allowed to complete construction and in 2012 and 2013, sold all 3 units for a profit. AMM Holdings filed suit, arguing that the District should pay the firm $200,000 in compensation for the time construction was halted, saying it had to pay for security and other costs occasioned by the delay, that its money was frozen by banks when the stop work order was issued, and that it could not make other investments during the period when the stop work order was in effect.
On April 7, 2014, D.C. Superior Court Judge Maurice Ross granted the District’s motion for summary judgment. The District argued that AMM Holdings did not sustain damages because it won the BZA case and was allowed to finish and sell all 3 units at a profit. The judge agreed with the District’s argument that the company did not sustain damages because the District erroneously issued the permit and in fact profited when it sold the three units.
Assistant Attorneys General Rick Ferrini and Stephanie Litos handled the case.