Law360 (March 28, 2018, 6:40 PM EDT) -- A D.C. federal judge on Tuesday reinstated claims from hundreds of flight service controllers who were dismissed from a long-running age discrimination suit against the U.S. Department of Transportation, saying new evidence suggests their former lawyers misled them about their rights and obligations in the litigation.
U.S. District Judge Paul L. Friedman granted a motion from more than 600 flight service controllers to reconsider a pair of court orders from May 2008 and February 2009 that dismissed them from the suit for failing to respond to court discovery orders, reinstating their claims based on new evidence showing that their former attorneys didn’t properly represent them.
“Instead of holding the dismissed plaintiffs accountable for Gebhardt & Associates’ misleading communications and the firm’s failure to fulfill its ethical and professional obligations to them, justice requires that this court reconsider their dismissals,” Judge Friedman said.
According to the ruling, the plaintiffs had letters and correspondence from their former attorneys at Gebhardt & Associates LLP, a Washington, D.C.-based employment law firm, in early 2007 demanding that each individual plaintiff pay $10,000 each if they wanted the firm to keep representing them in the age discrimination litigation, which first kicked off in 2005 and was organized by the National Association of Air Traffic Specialists. The union had stopped paying the firm because it was no longer receiving dues from affected members who were laid off by the Federal Aviation Administration, according to the ruling.
But the Gebhardt & Associates’ February 2007 letter to clients was misleading because it suggested that the plaintiffs might have to go it alone as pro se plaintiffs, and risk recovering very little from the FAA as a result, if they didn’t pay the $10,000. It didn’t make it clear that Gebhardt & Associates already represented each of the individual plaintiffs and, as a result, the firm had ongoing obligations toward its clients.
The law firm then refused to offer further legal assistance to the several hundred plaintiffs that didn’t pay the $10,000 each, including denying them help with responding to the court’s subsequent discovery requests, according to court documents. Gebhardt & Associates led the court to believe that the firm couldn’t get in touch with the individual plaintiffs who weren’t responding to the court’s discovery and show cause orders. The court also denied the firm’s attempt to withdraw as their counsel. But ultimately, because of their unresponsiveness, the court booted the plaintiffs from the litigation.
But Judge Friedman said Tuesday that the court now has the full picture and those plaintiffs should be let back into the case.
“Now having seen the complete contents of these letters, the court more fully understands the context giving rise to the dismissed plaintiffs’ misunderstandings — for example, that they were not already represented by counsel, that the class action was no longer proceeding, or that they would have no realistic chance of success if they could not pay $10,000 (and possibly more) to Gebhardt & Associates,” the ruling said.“With a more complete view of the attendant circumstances, the conduct of the dismissed plaintiffs now is more understandable. In light of this new evidence, justice requires reconsideration.”
The flight service controllers were all over the age of 40 and accused the DOT of age discrimination after they were laid off when the Federal Aviation Administration outsourced thousands of flight service jobs to defense contractor Lockheed Martin Corp.
The plaintiffs’ attorneys and representatives for the DOT could not be immediately reached for comment on Wednesday.
The air traffic controllers are represented by Joseph M. Sellers, Shaylyn Cochran, Brian Corman of Cohen Milstein Sellers & Toll PLLC and Gary M. Gilbert, Linda A. Kincaid, Stephanie M. Herrera and Michal Shinnar of Gilbert Employment Law.
The federal defendants are represented by Chad A. Readler, Joshua E. Gardner and Lisa Zeidner Marcus of the U.S. Department of Justice.
The case Kathleen Breen et al v. Elaine L. Chao et al, case number 1:05-cv-00654, in the U.S. District Court for the District of Columbia.
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10+ years after the fact. Useless!
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