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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.
