Taylor v. Feissner

DAVIS, Judge. On December 2, 1993, Norman H. Taylor filed a complaint in the Circuit Court for Montgomery County against attorney Karl G. Feissner. The complaint alleged that Feissner was negligent in his handling of Taylor’s, claim against the U.S. Department of Commerce for age discrimination. In addition to the value of Taylor’s discrimination claim, the alleged damages included $30,000 in legal fees paid to Feissner over a three-year period.

In response, Feissner filed a motion to dismiss or, in the alternative, a motion for summary judgment. In the motion, Feissner argued that, as a matter of law, his conduct was not the proximate cause of any damages to Taylor. At the close of a hearing on March 23, 1994, the court (Ryan, J.) granted the motion, and stated that the issue of attorney’s fees should be handled through arbitration. Taylor, proceeding pro se, presents fifteen questions (including subparts) for our review, which we restate as follows: I. Did the circuit court err in granting the motion for summary judgment when it concluded, as a matter of law, that appellee’s conduct was not the proximate cause of appellant’s damages?

II

Did the circuit court err when it concluded that it lacked jurisdiction to decide the fee dispute between appellant and appellee?

III

Did the circuit court err in failing to provide appellant an opportunity for rebuttal to a defense raised for the first time at the hearing? For the reasons we shall set forth, we affirm in part and reverse in part the circuit court’s ruling. FACTS On November 4, 1988, Taylor retained Feissner to represent him with regard to a claim against the U.S. Department of Commerce for age discrimination. Prior to the alleged discrimination, Taylor was chief of the supply division at the ³⁶² National Bureau of Standards.

In 1978, the supply division was eliminated during a reorganization, and Taylor’s position was abolished. Taylor was fifty-four years old at the time. Following the reorganization, Taylor was assigned to a series of different positions within the agency, in which he claimed he was given no meaningful work. On three different occasions in 1981, Taylor was placed on a “reduction in force” list, but was removed from the list each time prior to any formal hearing.

He was also required to change offices at least four times during a four-year period. In August 1985, Taylor learned that the “supply” division was to be reinstated as the “supply and procurement” division, and a younger employee was named as the chief. In 1987, the acting director of the agency asked Taylor what his retirement plans were. Taylor was not eligible for retirement at that time.

Taylor was detailed to a temporary administrative position in December 1987. On April 29, 1988, a new acting deputy director also asked Taylor about his retirement plans. On June 7, Taylor was ordered to vacate his private office and was moved to a desk in a reception area. Taylor first began to pursue his claim of age discrimination in June 1988.

He contacted an Equal Employment Opportunity (EEO) counselor regarding his complaints on June 14. The following day, he initiated an administrative grievance procedure with the Department of Commerce. On July 13, 1988, Taylor filed a formal age discrimination complaint with the Equal Employment Opportunity Commission (EEOC). In his complaint, Taylor sought to be reinstated to his original permanent position as chief of the supply and procurement division.

After the complaint was filed, the Director of the National Laboratory restored Taylor to his position of record (“Program Resources Analysis”) and returned him to the private office that he was forced to vacate in June. When Feissner entered the case on November 4, 1988, both the administrative grievance and the EEOC complaint were • still pending. Each of those complaints charged the depart ³⁶³ ment with a series of allegedly discriminatory acts occurring over a ten-year period. In December 1988, the Department of Commerce issued a final decision on the administrative grievance.

The department concluded that relief for most of the alleged wrongdoing was time-barred by provisions in the applicable EEOC regulations, with the sole exception of the department’s removal of Taylor from his private office in June 1988. Because Taylor had been returned to that office, the department concluded that the final issue was moot. In February 1989, the EEOC released a decision that concurred with the department’s conclusions. In his brief, Taylor asserts that Feissner “continuously counseled that appellant’s claim of age discrimination was indeed valid, legitimate, and meritorious.” According to Taylor, Feissner also told him that the administrative procedures must be exhausted before a complaint could be filed in federal court.

Nonetheless, Feissner filed a complaint in the Federal District Court for the District of Maryland on January 24, 1989—one month prior to the EEOC’s final ruling. The amended complaint contained two counts. Count I alleged a violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et. seq. Count II alleged a conspiracy to violate Taylor’s civil rights in violation of 42 U.S.C. § 1985 (3).

After a thorough briefing by both parties, the federal court dismissed Taylor’s claim without a hearing. In a Memorandum and Order dated November 12, 1991, the court (Ramsey, J.) ruled, inter alia, that Taylor had failed to give the EEOC proper notice of his intent to file the district court action. The court also concluded that the EEOC was correct in ruling that relief for the alleged discrimination was either time-barred or moot. With regard to Count II, the court ruled that the § 1985 conspiracy claim was preempted by the ADEA.

Taylor’s pro se appeal to the Fourth Circuit Court of Appeals was still pending when this appeal was filed. Taylor’s claim for legal malpractice alleges, in part, that the lawsuit filed by Feissner was not timely and that Feissner did ³⁶⁴ not properly notify the EEOC of his intent to file the action. The complaint alleges that Feissner’s malpractice resulted in $590,000 in damages, the bulk of which represents the alleged value of Taylor’s claim for age discrimination. The damages also include $30,000 in fees paid to Feissner and expert witnesses, and $10,000 for costs incurred by Taylor in pursuing his pro se appeal to the Fourth Circuit.

In support of his motion to dismiss, Feissner avers: A close examination of the requirements to file an age discrimination suit in District Court, along with the facts of this case, reveals, regardless of Feissner’s alleged failure to timely notify the EEOC, Taylor would not have been able to recover any damages in his age discrimination suit. In short, Feissner asserted that his handling of the case was not the proximate cause of Taylor’s failure to recover damages for his age-discrimination claim. With regard to the dispute over Feissner’s fees and the litigation expenses, Feissner noted that the retainer signed by the parties provides for settlement of such disputes “by arbitration or court action” at his option. In granting Feissner’s motion for summary judgment, the trial court stated: I believe that at the time the suit was filed in the Federal Court the only action that could have been pled correctly or alleged was the removal of [Taylor’s] office and title and that was resolved.

I have considered the entire record, including [the federal district court’s] memorandum and order, and I believe having said that and dismissing this action, the issue of attorney’s fees can now be handled through the arbitration. So, I will grant the motion and dismiss this case. From that ruling, Taylor filed this appeal. LEGAL ANALYSIS I As we noted above, the motion at issue in this case was styled as a “motion to dismiss, or in the alternative, motion for ³⁶⁵ summary judgment.” Maryland Rule 2-322(c) provides in pertinent part: If, on a motion to dismiss for failure to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 2-501---- Here, the court considered more than a dozen exhibits submitted by the parties before it ruled on the motion.

The court plainly treated the motion as one for summary judgment, and we review the matter accordingly. Maryland Rule 2-501(a) provides that a motion for summary judgment may not be granted unless the court concludes that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. In determining whether a factual dispute exists, all inferences that may be drawn from the pleadings, from affidavits, or from admissions must be resolved against the moving party. Berkey v. Delia, 287 Md. 302, 304-05, 413 A.2d 170 (1980).

A disputed fact is not “material” unless resolution of such issue would somehow affect the outcome of the case. King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985); Washington Homes, Inc. v. Interstate Land Dev. Co., 281 Md. 712, 717 , 382 A.2d 555 (1978). In Seaboard Surety Co. v. Richard F. Kline, Inc., 91 Md.App. 236 , 603 A.2d 1357 (1992), we explained that the trial court’s handling of a motion for summary judgment should be akin to the standard applied to a motion for a directed verdict: [T]he judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.

The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. Id. at 244-45 , 603 A.2d at 1361 (quoting Anderson v. Liberty Lobby, Ltd., 477 U.S. 242, 252 , 106 S.Ct. 2505, 2512 , 91 ³⁶⁶ L.Ed.2d 202 (1986)). When reviewing the trial court’s grant of a motion for summary judgment, we must consider whether a dispute of material fact existed and whether the trial judge was legally correct. Lynx, Inc. v. Ordnance Prods.

Inc., 273 Md. 1, 8 , 327 A.2d 502 (1974). In Watson v. Calvert Bldg and Loan Ass’n, 91 Md. 25, 33 , 45 A. 879 (1900), the Court of Appeals stated that an attorney will be hable to his or her client for losses resulting from the attorney’s failure to exercise a “reasonable degree of skill” or a “like degree of diligence.” Accord Stone v. Chicago Title Ins. Co., 330 Md. 329, 335 , 624 A.2d 496 (1993). In a suit against an attorney for negligence, the plaintiff must prove that the attorney’s neglect of a reasonable duty was the proximate cause of injury to the client.

Stone, 330 Md. at 335 , 624 A2d at 499 ; Flaherty v. Weinberg, 303 Md. 116, 128 , 492 A.2d 618 (1985). To establish that proximate cause existed, the plaintiff must show some reasonable connection between the defendant’s alleged negligence and the injury suffered by the plaintiff. As the Court of Appeals explained in Hartford Ins. Co. v. Manor Inn, 335 Md. 135, 156 , 642 A.2d 219 (1994), proximate cause “ultimately involves a conclusion that someone will be held legally responsible for the consequences of an act or omission.” The plaintiff must show, in part, that the alleged negligence was a “cause in fact,” Atlantic Mutual v. Kenney, 323 Md. 116, 127-28 , 591 A.2d 507 (1991), and that “but for” the negligence, the injury would not have occurred.

Peterson v. Underwood, 258 Md. 9, 16 , 264 A.2d 851 (1970). The existence or absence of proximate cause rests upon principles of common sense in light of the surrounding facts and circumstances. See Texas Co. v. Pecora, 208 Md. 281, 293 , 118 A.2d 377 (1955). In the context of this case, Taylor has the burden of proving that, “but for” Feissner’s alleged negligence, Taylor would have prevailed on his age-discrimination claim.

Feissner’s motion for summary judgment cannot be upheld unless no fair-minded jury could return a verdict for Taylor on the evidence presented. Seaboard Surety, 91 Md.App. at 244 , 603 ³⁶⁷ A.2d at 1360-61 . Our decision on that issue requires that we examine the mechanics of bringing a claim under the ADEA. II The Age Discrimination in Employment Act provides two routes by which an aggrieved party may pursue a claim for age discrimination in federal district court.

Under the “direct route,” an ADEA plaintiff may proceed directly to federal court pursuant to 29 U.S.C. § 633a(c) (1988). The only prerequisite for such an action is timely notice to the EEOC as required by § 633a(d). Second, the ADEA provides that a person may pursue the claim administratively via the EEOC, and then bring an action in federal court if he or she is not satisfied with the outcome of the administrative process. 29 U.S.C. § 633a(b), (c) (1988). See Stevens v. Department of Treasury, 500 U.S. 1, 5-6 , 111 S.Ct. 1562, 1566 , 114 L.Ed.2d 1 (1991).

An aggrieved party who files a direct action in federal court must give the EEOC notice of his or her intent to do so “within one hundred and eighty days after the alleged unlawful practice occurred.” 29 U.S.C. § 633a(d) (1988). The claimant is also required to give notice to the EEOC at least thirty days in advance of filing an action. Id. Under the administrative route, the time restrictions are substantially more severe.

The aggrieved employee must bring ... to the attention of the Equal Employment Opportunity Counselor the matter causing him/her to believe he/she had been discriminated against within 30 calendar days of the date of the alleged discriminatory event, the effective date of an alleged discriminatory personnel action, or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action.... 29 C.F.R. § 1613.214 (a)(l)(i) (1994). In ruling on Taylor’s claim, the federal district court concluded that the time limitations under both routes function like statutes of limitation, subject to equitable modification in proper cases. See James ³⁶⁸ v. United States Postal Service, 835 F.2d 1265 , 1267 (8th Cir.1988). The United States Supreme Court addressed a similar situation in United Air Lines, Inc. v. Evans, 431 U.S. 553 , 97 S.Ct. 1885 , 52 L.Ed.2d 571 (1977).

The applicable statute required that a claim of gender discrimination be filed with the EEOC within ninety days after the alleged unlawful conduct. The Court concluded: A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. Evans, 431 U.S. at 558 , 97 S.Ct. at 1889 . The alleged discriminatory acts, the Court said, were “an unfortunate event in history which has no present legal consequences.” Although Evans was decided under Title VII, the same principle has been applied to the time limitations contained in the ADEA.

See Bruno v. Western Elec. Co., 829 F.2d 957 , 960 (10th Cir.1987). In his complaint, Taylor alleged that Feissner negligently failed to give the EEOC thirty days’ notice and that the lack of such notice was the proximate cause of Taylor’s inability to recover damages for the alleged discrimination. In granting Feissner’s motion for summary judgment, the trial court effectively concluded that no fair-minded juror could return a verdict for Taylor on the evidence presented.

We affirm. The federal court’s ruling, together with the applicable statutes and regulations, make it plain that Taylor could have recovered damages only for discriminatory conduct that took place within the thirty-day or 180-day time limitations. If Feissner had given notice to the EEOC on November 4, 1988 (the date that Taylor first contacted him) and filed a direct action thirty days thereafter, Taylor’s claim for damages would have been limited to his removal from a private ³⁶⁹ office in June 1988. The same may be said for an appeal from Taylor’s administrative claim. 1 When Taylor first contacted Feissner in 1988, ten years had passed since the department terminated Taylor’s position, and three years had passed since the department failed to reinstate him as chief of the revived supply and procurement division.

On Taylor’s behalf, Feissner argued to the federal court that the time limitations should not apply to Taylor’s claim for two reasons: first, because Taylor did not “discover” the discrimination until mid-1988; and second, because the removal of Taylor from his private office constituted part of a “continuing violation.” The federal court rejected both theories. 2 With regard to the discovery rule, the court pointed to the direct language of the EEOC regulations, which states that an aggrieved employee must contact an EEO counselor within thirty calendar days of those events “causing him/her to believe” that discrimination had occurred. See 29 C.F.R. § 1613.214 (a)(l)(i) (1994). The court then noted that Taylor, by his own admission, had “suspected discrimination all along,” and only became certain in 1988. Further, the federal court concluded that Taylor was in no position to invoke the “continuing violation” theory, because the doctrine does not apply to a case in which the claimant is denied meaningful work following an allegedly discriminatory event.

See Bruno, 829 F.2d at 960-62 (discussing the continuing violation theory generally); Brewer v. Mosbacher, Civil No. JFM-89-2340