Bernabei & Wachtel Blog

DCOHR Finds Probable Cause in Age Discrimination Suit

The District of Columbia Office of Human Rights recently issued a probable cause finding on the age discrimination complaint brought by one of our clients against Potomac Apartment Group, LLC. Steven Leckar of Shainis & Peltzman and Dave Wachtel of Bernabei & Wachtel represent Our Client.                                                    

Our Client, 56 years old at the time of his termination in Spring 2007, worked for Potomac for four years before Potomac replaced him with a man in his twenties.

OHR based its finding on the disparity between Our Client’s age and his replacement’s, and the inconsistency of management’s explanations. Documents showed Potomac claimed the position was eliminated, but when Our Client returned two weeks after his last day to retrieve some belongings, he saw a younger man at his position doing the identical job he had just left. The General Manager then referred to the man behind the desk as “young blood.” Our Client never had a bad performance review, and although Potomac also claims he resigned, there is no resignation letter or evidence to support such a claim and Our Client had no desire or reason to quit since it was a relatively low stress job which suited Our Client.

The parties will convene for conciliation under the auspices of DCOHR. If the conciliation effort is unsuccessful, the District of Columbia Commission on Human Rights will hear the case.

Justin Dreyfuss

Client Wins Civic Courage Award

Mike German, a client of the firm, was honored at a ceremony last Thursday with an award for his courageous acts as an FBI whistleblower. The Joe A. Callaway Award for Civic Courage Ceremony and Reception took place at the Carnegie Institution of Washington Building and 2008 recipients of the award, aside from Mr. German, included George Christian, Peter Chase, Barbara Bailey and Jan Nocek, librarians who challenged the Patriot Act.  Each year The Shafeek Nader Trust for the Community Interest holds an event “to recognize individuals in any area of endeavor who, with integrity and at some personal risk, take a public stand to advance truth and justice, and who challenge unsatisfactory conditions in pursuit of the common good.”

Mr. German worked for sixteen years as an FBI Special Agent before a meeting between domestic and international terrorist organizations was improperly recorded. When Mr. German attempted to report the mishandling, the FBI retaliated against him by removing him from the investigation and denying any wrongdoing. The case was eventually brought before a Senate Judiciary Committee which stated “it is a lot closer to what Michael German described than what the FBI described.”

Justin Dreyfuss

The Firm Welcomes Two New Members

Bernabei & Wachtel, PLLC, is pleased to announce the addition of two bright new attorneys, Andrea Loveless and Julia Graff.

Ms. Loveless comes to us from the Lawyers' Committee where she was the tenth recipient of the George N. Lindsay Fellowship. She graduated from George Mason University School of Law in 2007 where she co-founded and served as President of the school's ACLU Chapter and was President of the Women's Law Association.

Ms. Loveless has shown a passion for civil rights for years now, starting with her first summer in law school where she worked with low income clients at Legal Services of Nothern Virginia. She jumped right into an internship with a civil rights firm that specialized in employment discrimination cases before selecting several more internships that supported and strengthened her interest in public interest.

Ms. Graff graduated summa cum laude from the University of Louisville in 1999 with majors in Political Science and Spanish, and received her J.D. from the American University Washington College of Law in 2005. Prior to joining Bernabei & Wachtel, PLLC, she worked at the Alan Morrison Supreme Court Assistance Project Fellow at Public Citizen Litigation Group, where her responsibilities included coordinating the Litigation Group's pro bono assistance to litigants in Supreme Court cases.

Prior to that, she was a Staff Attorney for two years at the American Civil Liberties Union of Delaware, where she handled cases on prisoners' rights, free speech issues, and the rights of criminal defendants. Between college and law school, Ms. Graff worked for three years for a grassroots human rights organization in Guatemala, Mexico and Colombia.

We are very happy to welcome them both onboard.

ABC News to Run Story Tomorrow on D.C. Firefighters Lack of Training for Mandatory Test

    Andrew McCarren of ABC news will run a report Tuesday, December 9th on the unfair situation many D.C. firefighters, including three firm clients, have found themselves in. Highly qualified firefighters who have passed more than six months of fire instruction and basic EMT training must suddenly pass a more advanced test called the Nation Registry Exam. The D.C. Fire Department did not give them training and many long term residents are unable to pass the advanced test without training. Some firefighters from other states that have already been given the training are passing the test whereas D.C. residents who have not been given the training are failing multiple times.
    The city's apparent solution to this problem of certifying its firefighters is to stick them in a back room where they study a book for eight hours a day thus keeping them off the streets where they could be fighting fires and saving lives. The piece will air tomorrow on Channel 7, at 5:30 pm.

Justin Dreyfuss

DCHRA tolling and individual liability decision

We are pleased to report a favorable D.C. Human Relations Act (DCHRA) decision, issued last week by Chief Judge Lamberth, in one of our firm’s cases. The decision is online at:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2007cv2311-22

Zelaya v. UNICCO Service Co., et al.

, No. 2007-CV-2311, 2008 WL 5008553 (D.D.C. Nov. 26, 2008).

Our firm represents Blanca Zelaya, who worked as a custodian for UNICCO, a contractor that provided cleaning services at several downtown office buildings. During much of her employment there, she was repeatedly subject to sexual harassment by her supervisor and two other male colleagues. In particular, her supervisor (Alarcon) made repeated sexual advances to her during her pregnancy, and he sought the aid of two colleagues to "monitor" her in an attempt to set her up for firing. Even when she returned to work after giving birth, the harassment continued unabated.

She filed her complaint with the DCOHR, which was cross-filed with the EEOC, and one year later, withdrew the DCOHR complaint and obtained a right-to-sue letter from the EEOC. After she filed her complaint, UNICCO retaliated against her by transferring her to another office building, where UNICCO knew it would soon lose the maintenance contract.

The defendants (represented by Jackson Lewis) attempted to argue that the DCHRA claims were not tolled while her complaint was pending with the DCOHR, which Judge Lamberth rejected, pursuant to the 2002 amendments to the DCHRA, as applied by the D.C. Court of Appeals in Estenos v. PAHO, 952 A.2d 878 (D.C. 2008). The court noted that it "declines to adopt defendants’ reading of this statute, which would render the tolling provision wholly ineffective with respect to administratively dismissed or withdrawn complaints."

Judge Lamberth also rejected defendants’ attempts to argue that individual liability under the DCHRA should only be applied to partners or other supervisors with an ownership interest in the company, instead recognizing that anyone who is a statutory employer, including "any person acting in the interest of such employer" can be held individually liable under the DCHRA, regardless of their ownership status.