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Smith v. Swick & Shapiro, P.C.

Court of Appeals of Columbia District

September 5, 2013

Mary Joyce SMITH, Appellant,
SWICK & SHAPIRO, P.C., Appellee.

Argued Dec. 12, 2012.

Page 899

Christopher G. Hoge, Washington, DC, with whom Elena Iuga was on the brief, for appellant.

Laura M.K. Hassler, with whom Aaron Handleman, Hanover, was on the brief, for appellee.

Before WASHINGTON, Chief Judge, and BECKWITH, Associate Judge, and REID, Senior Judge.

REID, Senior Judge:

This case involves a legal malpractice action filed by appellant, Mary Joyce Smith, against appellee, Swick & Shapiro, P.C. (" S & S" ), the law firm that represented Ms. Smith in a claim against her former employer, the Federal Deposit Insurance Corporation (" FDIC" ), after she was separated from FDIC during a reduction in force (" RIF" ). Ms. Smith challenges the trial court's order granting summary judgment to S & S. We conclude that (1) there are no genuine issues of material fact that precluded summary judgment, and (2) Ms. Smith did not present sufficient evidence to prevail on the third prong (proximate cause) of her legal malpractice action. Therefore, we affirm the trial court's judgment.

Page 900


The record reveals that the FDIC notified Ms. Smith, a resolutions and receiverships non-supervisory specialist in the Division of Resolutions and Receiverships (" DRR" ), that as a result of its RIF procedures, she would be separated from employment effective September 3, 2005, because " [she did] not have an assignment right to another position in the competitive area." At that time, Ms. Smith was fifty years of age and had been a government employee for over twenty-nine years. Within the FDIC, she had advanced from a grade 12 bank examiner's position in 1980 to her then current grade CG-15 position.

Ms. Smith filed a complaint against the FDIC on September 6, 2005, claiming she was " terminated through improper RIF procedures and/or terminated on the basis of race, gender, age." [1] Approximately one month later, she retained S & S to represent her before the FDIC. The FDIC denied her claims on May 1, 2007, and sent its decision to David Shapiro, Esq. of S & S on the same day. The FDIC specifically indicated that Ms. Smith had a thirty-day period in which to file an appeal, either with the Merit Systems Protection Board (" MSPB" ) or the federal district court. Although Mr. Shapiro left Ms. Smith a voice mail message on May 30, 2007, indicating that he was working on a complaint to be filed in federal court, S & S failed to file an appeal within the thirty-day period, and did not notify Ms. Smith about its failure until approximately five months later.

Subsequently, Ms. Smith filed a legal malpractice action against S & S in the Superior Court of the District of Columbia, on May 28, 2010. Following discovery, S & S lodged a motion for summary judgment, contending in essence that Ms. Smith would not have prevailed on her appeal had it been filed. S & S supported its motion with various exhibits, including documents and affidavits. Ms. Smith opposed S & S's summary judgment motion and attached supporting documents and affidavits. S & S submitted a reply to the opposition.

The Honorable Craig Iscoe, trial judge, issued a detailed twenty-four page order on November 10, 2011. He traced the history of Ms. Smith's complaint against S & S, and he analyzed whether an appeal from the FDIC decision would have been successful, both with respect to her discrimination and RIF claims. Because the FDIC found that Ms. Smith had established " a prima facie case of race, color, and gender discrimination," and because she " concede[d] that the FDIC articulated some legitimate nondiscriminatory reasons for [FDIC's] rejection" of her claims, Judge Iscoe concluded that the key issue was " whether [Ms. Smith] has introduced sufficient evidence of pretext [by the FDIC] on her race, color, and gender discrimination claims."

After reviewing the arguments made and exhibits submitted by S & S and Ms. Smith, the trial court declared that Ms. Smith had not substantiated her claims of pretext; there was no genuine issue of material fact for trial; and the FDIC's RIF was economically motivated and prompted by a decision to move the DRR from a generalist environment to a specialized environment, with employees who had subject matter expertise. Furthermore, Judge Iscoe considered Ms. Smith's arguments regarding the FDIC's RIF procedures, including her assertion that not all

Page 901

of the positions in her competitive level had been abolished, and her contention that she should have received a position in round two of the RIF competition due to her tenure ranking and her " bump" and " retreat" rights, as outlined in the FDIC's Circular 2100.4, and federal regulations at 5 C.F.R. ยง 351. He determined that her first assertion was based on her own affidavit that not only contained " conclusory" statements, but also was " insufficient for purposes of establishing that the FDIC's proffered reasons [for her separation] are false and its motives discriminatory." Moreover, the evidence submitted did not support Ms. Smith's allegations that the FDIC " manipulated" position descriptions " to protect favored employees." Nor could a court " infer discrimination absent a showing that [Ms. Smith's] qualifications were far superior to those of the selectees ....," that is, employees retained during the RIF proceeding. In addition, after examining the evidence, Judge Iscoe stated that " bumping" was not an option for Ms. Smith, and that her " retreat" into positions occupied by two retained employees (with lower retention standing) within the same tenure group was not possible, because the positions no longer were " ‘ the same as, or essentially identical to’ the position previously held by [Ms. Smith]." For these and other reasons, the trial court granted S & S's motion for summary judgment.


Ms. Smith first contends that the trial court improperly " resolved all factual issues," and " improperly resolved all factual inferences in favor of the moving party." Specifically, she asserts that the trial court " relied entirely on the statements and representations of the FDIC managers, ... credited the managers' statements and completely discredited the affidavits and exhibits of [a]ppellant and her witnesses." She sets forth examples of factual disputes she believes the trial court improperly resolved. She also identifies instances in which the trial court allegedly drew factual inferences in favor of the moving party, such as " whether the RIF was implemented in order to reorganize the DRR into a more specialized environment, or whether the DRR remained a generalist environment." She states that the trial court improperly weighed the evidence regarding her qualifications. In response, S & S supports the trial court's judgment, and maintains that Ms. Smith " produced no competent evidence to support her position, there was no genuine issue of material fact, and the [trial] [c]ourt properly found that [S & S] was entitled to judgment as a matter of law."

Standard of Review and Applicable Legal Principles

Before analyzing Ms. Smith's first contention, we articulate our standard of review, as well as other applicable legal principles. " We review a grant of summary judgment de novo, viewing the facts in the light most favorable to the non-moving party." Aziken v. District of Columbia,70 A.3d 213, 218 (D.C.2013) (internal quotation marks omitted) (quoting Wright v. Howard Univ., 60 A.3d 749, 754 (D.C.2013)). " Summary judgment is appropriate only when there are no material facts in issue and when it is clear that the moving party is entitled to judgment as a matter of law." Bradshaw v. District of Columbia, 43 A.3d 318, 323 (D.C.2012) (internal quotation marks and citation omitted). " If a moving defendant has made an initial showing that the record presents no genuine issue of material fact, then the burden shifts to the plaintiff to show such an issue exists." Id. (internal quotation marks ...

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