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Sun v. District of Columbia Government

United States District Court, D. Columbia

September 30, 2015


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          LINDA CHRISTINE SUN, Plaintiff, Pro se, Washington, DC.

         For DISTRICT OF COLUMBIA GOVERNMENT, Defendant: Jonathan Hale Pittman, Joseph Alfonso Gonzalez, LEAD ATTORNEYS, OFFICE OF ATTORNEY GENERAL/DC, Washington, DC; Martha J. Mullen, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Public Interest Division, Washington, DC.

         For JOHANNA SHREVE, Director, Office of the Tenant Advocate, DENNIS TAYLOR, General Counsel, Office of the Tenant Advocate, Defendants: Joseph Alfonso Gonzalez, LEAD ATTORNEY, OFFICE OF ATTORNEY GENERAL/DC, Washington, DC; Martha J. Mullen, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Public Interest Division, Washington, DC.

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         AMY BERMAN JACKSON, United States District Judge.

         Plaintiff Linda Sun, a former employee of the District of Columbia Office of the Tenant Advocate (" OTA" ), has sued the District of Columbia, OTA Director Johanna Shreve, and OTA General Counsel Dennis Taylor for wrongful termination, discrimination, and retaliation. The claims

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against Shreve and Taylor have been brought against them in both their official and individual capacities. The federal claims arise under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, and 42 U.S.C. § 1981, see Second Am. Compl. [Dkt. # 20] (" Am. Compl." ) at 7-8, 9, and plaintiff has also brought state and common law claims, invoking the Court's supplemental jurisdiction. See Am. Compl. at 1, citing 28 U.S.C. § 1367.

         Following a period of discovery, each party moved for summary judgment. See Defs.' Mot. for Summ. J., [Dkt. # 64]; Pl.'s Mot. for Summ. J. [Dkt. # 73]. Upon consideration of the motions, oppositions, replies, and supporting documentation, the Court will grant defendants' motion in part and deny it in part, and it will deny plaintiff's motion. Count VII of the Second Amended Complaint for Assault will remain.

         I. BACKGROUND

         Plaintiff was born in Shanghai, China, and became a naturalized United States citizen in May 1972. Am. Compl. ¶ 3. In 2004, plaintiff graduated from Northwestern California University Law School, but she has not passed a bar exam and is not admitted to practice law in any jurisdiction. Defs.' Statement of Undisputed Material Facts [Dkt. # 64] (" Defs.' SOF" ) at 43-48, ¶ 1. OTA hired plaintiff in September 2007 as a Program Support Specialist. Defs.' SOF ¶ 2. OTA " provides technical advice and other legal services to tenants regarding disputes with landlords, including legal representation through lawyers [it] employe[s]." Defs.' SOF ¶ 2. Plaintiff's job included explaining to tenants " on a daily basis" the D.C. Municipal Regulations covering security deposits and housing code violations. Dep. of Sun [Dkt. # 64-1] (" Sun Dep." ) at 47:15-19. In addition, plaintiff assisted with mediations in the Office of Administrative Hearings, advised clients on strategy, and " collected judicial opinions and constructed a formula for how much of a rebate to request from a specific judge." Defs.' SOF ¶ 4, citing Sun Dec. 14, 2010 Email [Dkt. # 64-4] and Sun Dep. at 68:14-69:12.

         The undisputed evidence reveals that there came a time when defendant Dennis Taylor, who was plaintiff's immediate supervisor, expressed concerns about plaintiff's engaging in the unauthorized practice of law. Sun Dep. at 98:10-14. In February 2009, Taylor sent plaintiff an email titled " Misleading Statement," in which he informed plaintiff that her email to attorney Parag Khandhar asking for help in representing an individual in Small Claims Court since she was " not able to do so myself" was " highly misleading." Taylor Email, Defs.' Ex. 9 [Dkt. # 64-9] at 2. Taylor stated that " [a] reasonable person would read the segment as a peer-to-peer, attorney-to-attorney communication in which you ask Mr. Khandhar to represent a client for you because you have a schedule conflict." Id. Taylor further stated: " [w]e have previously discussed your statements of being an attorney or a lawyer and we have addressed your previous practice of including 'J.D.' in your email signature. However, you must also think of how both a lay person and a lawyer would interpret your words. Please be very careful to not in any way imply that you are a lawyer. I do not want you to run afoul of District law." Id.

         Plaintiff responded by acknowledging that Taylor's " point is well taken if there had been no discussion with Parag and this is the first time we are communicating." Sun Feb. 12, 2009 Email, Defs.' Ex. 9 [Dkt. # 64-9] at 3. Plaintiff explained that she had informed Khandhar in a meeting " several weeks ago" that she was not an attorney and conveyed the difficulties OTA

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clients " who do not speak English well" had in getting help from legal services organization because of the language barrier. Id. Plaintiff then admonished her supervisor:

The danger in statements such as yours once again warn, charge, and insinuate wrongdoing without sufficient background knowledge. Unless you have been in on the discussions from the very beginning going back to several months of communication, it is easy to jump to conclusions based on supervision information. . . . I think it is also important that you take the time to ask before reaching conclusions. One of my law professors who clerked for Justice Thurgood Marshall said he always told his clerks, " Never assume anything, because it makes an ass out of you and me."


         The record reflects the fact that plaintiff's unauthorized practice of law remained an ongoing concern at the agency, and that plaintiff's superiors received complaints from multiple individuals. For example, in May of 2009, the issue was raised by an opposing counsel in a landlord-tenant matter, who wrote Taylor to complain.

After more than two hours, the Tenant . . . and I came to an agreement. Ms. Sun, who referred to [the Tenant] as her 'client; then suggested that she wanted to leave the hearing room with [the Tenant] . . . . I correctly anticipated [that] Ms. Sun was seeking to undo the agreement. At that point, I asked Ms. Sun if she was a lawyer, she responded yes, and volunteered that she was not admitted to practice in D.C. I didn't ask her if she was admitted in any other jurisdiction. You have represented to me that she is not . . . . You and I both know a lawyer is not just a graduate of a law school, but someone admitted to practice in the jurisdiction they're practicing in and in good standing.

         Brodsky May 20, 2009 Letter, Defs.' Ex. 6 [Dkt. # 64-6] at 1.

         The legislative director of OTA raised the issue again in June 2010, sending an email to OTA Director Johanna Shreve and copying Taylor, stating:

[I]n a conversation I had with Judge Jennifer Long about another matter, she alluded to chronic difficulties she and other ALJs are having with Ms. Sun in terms of appearances at hearings and mediations and the " unauthorized practice of law." She said Ms. Sun showed up at a hearing either this week or last week and was turned away, but regardless Judge Long's understanding is that (as a matter of OTA policy or by agreement with OAH?) Ms. Sun would always be accompanied by other OTA staff for purposes of any OAH case. Finally, she said many judges are aware of the work OTA does, but others only know of OTA through Ms. Sun's transgressions and she regrets that the agency's image seems to suffer accordingly.[1]

Cohn June 25, 2010 Email, Defs.' Ex. 7, [Dkt. # 64-7] at 1.

         In March 2011, an OTA attorney filed a formal complaint with Shreve with respect to actions plaintiff had taken in a particular landlord-tenant matter involving a former OTA client who was represented by outside counsel. Gibbs Letter, Defs.' Ex. 8, [Dkt. # 64-8] at 1.[2] In October 2010,

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the OTA attorney, at plaintiff's request, drafted a tenant petition to file with the D.C. Housing Department. Id. at 1. The landlord in turn filed a petition in landlord-tenant court for possession of the tenant's unit. Id. The parties reached a settlement agreement, and upon receipt of the settlement check, the tenant's attorney filed a motion to withdraw the tenant petition. Id. The OTA attorney wrote that when the tenant " received notice that the [settlement] check had deducted a per diem amount pursuant to the agreement," the tenant " breached the agreement by repudiating her motion to withdraw the tenant petition" and dismissed the attorney. Id. The OTA attorney wrote:

It has now come to my attention that Ms. Sun has been speaking with [the tenant] confidentially and providing her with legal advice contrary to that provided by [the tenant's counsel] and myself. Ms. Sun even went so far as to take [the tenant] to consult with a separate attorney yesterday morning. [The tenant] certainly has the right to consult with an attorney, as Mr. Taylor and I recommended she do [in their meeting with the tenant following the filing of the motion to withdraw], but Ms. Sun is an employee and an agent of this office, and must act as such. . . . Until I am confident that Ms. Sun will comply with my instructions I give to her and refrain from offering independent legal advice, I cannot allow her to have contact with any of my clients. As [her] actions have the potential to legally bind me and I cannot with confidence say that she will following any direction I might attempt to give her, I cannot accept any assistance from her whatsoever.

Id. at 1-2.

         The record also reveals that on March 16, 2011, Taylor communicated with Human Resources about replacing an unnamed Case Management Specialist who " [i]n addition to her insubordination, . . . insist[ed] on engaging in the unauthorized practice of law." Taylor Mar. 16, 2011 Email, Defs.' Ex. 12 [Dkt. # 64-12]. He added that " [w]e fear for Bar Counsel retributions." Id. And plaintiff admits that she and Taylor " had this argument about unauthorized practice of law[.]" Sun Dep. at 98:10-11.

         Plaintiff alleges that she was engaged in certain whistleblower activity. According to plaintiff, in February 2012, she questioned another employee about Taylor's residing in Maryland since " it was her understanding" that " legal supervisors employed by the District of Columbia" were required to live in the District. Am. Compl. ¶ 9. Plaintiff also alleges that she learned in February 2012 that Shreve " was running a private [property management company] called 'The Shreve Group LLC'" and, on February 17, 2012, she asked Taylor if that constituted a conflict of interest for Shreve as head of the OTA. Am. Compl. ¶ ¶ 13-15. Taylor replied that Shreve's husband ran the company. Am. Compl. ¶ 15.

         Finally, the record includes a series of statements and emails concerning the manner in which plaintiff went about taking or requesting leave and the manner in which her superiors addressed it. According to plaintiff, in February 2012, during a conversation with plaintiff about a leave request, Taylor allegedly " instructed [p]laintiff to address [Shreve] as though she were a judge [and] stated that [p]laintiff did not understand what was required in 'American culture[.]'" Am. Compl. ¶ 12.

         Plaintiff was fired on February 21, 2012, and was issued a Summary Removal Notice

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on February 24, 2012, signed by Shreve. Removal Notice, Defs.' Ex. 13, [Dkt. # 64-13]. As grounds for plaintiff's termination, the removal notice sets out ten counts:

o Count One -- Misfeasance and Insubordination: Copying the Executive Office of the Mayor with Your Disrespect of Superiors.
o Count Two -- Malfeasance by Unauthorized Practice of Law: Preparation of Legal Documents.
o Count Three -- Malfeasance by Unauthorized Practice of Law; Unauthorized Drafting of Legal Documents.
o Count Four -- Malfeasance by Unauthorized Practice of Law and Insubordination by Violation of OTA Bulletin No. 2010-001: Participation in Mediation Conducted By the Office of Administrative Hearings.
o Count Five -- Malfeasance by Unauthorized Practice of Law: Provision of Legal Advice and Preparation of Legal Documents.
o Count Six -- Malfeasance by Unauthorized Practice of Law: Advising a Tenant to Fire an OTA Attorney.
o Count Seven -- Insubordination: Disobeying a Direct Order From Your Supervisor.
o Count Eight --Misfeasance: Boasting to a Member of the Public of Your Disrespect of a Superior.
o Count Nine -- Unauthorized Practice of Law and Insubordination: Use of Degree Designation 'JD' in Email Signature Block.
o Count Ten -- Insubordination: Disobeying Repeated Direct Orders to Avoid Practice of Law.

         Removal Notice at 1-8. Each count is followed by at least one explanatory paragraph describing the offending behavior.

         The events on the date of plaintiff's actual departure also form the basis for a count in the complaint: according to plaintiff, when Shreve informed plaintiff of her termination, she " demanded that [p]laintiff turn in her employee identification badge and cell phone, and leave the building" or be escorted out by a security guard. Am. Compl. ¶ 16. When plaintiff asked to discuss the matter further, Shreve " stood up and moved closely toward [p]laintiff[,] . . . raised her hand, slammed it on the table, and yelled 'I am done with you!" Am. Compl. ¶ 17. Plaintiff alleges that she " felt physically afraid, and quickly left [Shreve's] office." She " had less than a half hour to remove her belongings . . . and leave the building after four and a half years of service." Am. Compl. ¶ 18.

         Plaintiff alleges that prior to her termination, she " had consistently received good job performance review [and] compliments from the many tenants she . . . served." Am. Compl. ¶ 19. Plaintiff alleges further that she " was just six months away from having fully vested retirement benefits" at the time of her termination. Am. Compl. ¶ 20.

         In the Second Amended Complaint, which was drafted by then-appointed counsel,[3] plaintiff ...

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