The FBI Responds

Can The Feds Protect Us From Terrorists? Technically, I Am A Terrorist!

Did you ever wonder how the federal government can protect us from terrorists when they can't even get their communications straight concerning a severely-disturbed fake mental patient?

On the evening of Thursday August 6, 1998 two Special Agents of the US Capitol Police (Threat Investigation Unit) forcibly entered my home, after frisking me for weapons, and proceeded to interrogate me about an allegation made by a DC employee that, earlier in the day, at the height of an enraged argument, I had threatened to kill two federal officers at point-blank range, execution style in the Capitol rotunda. Later investigation by Agent Steven Horan disclosed that said allegation was mistakenly based on a letter I had written to my psychiatrist (Stephen Quint, MD) and copied to a DC agency that factually summarized Dennis M. Race's (202 887-4028) violence-risk determination; my supervisor's homicide-risk determination; as well as the DC Corporation Counsel's determination that my coworkers had formed a reasonable apprehension that I might commit an armed, mass homicide. Though I was exonerated of making unlawful threats, Officer Horan photo ID'd me to all federal officers assigned to the U.S. Capitol Building as a protective measure. Dennis M. Race was a partner at the law firm of Akin, Gump, Strauss, Hauer & Feld in Washington, DC, where I used to work. My supervisor at Akin Gump had told her employees on the day I was fired, October 29, 1991, that she was afraid I might return to the firm's premises and kill her ("or something"). Or something!

On Friday August 7, 1998 I met with Agent Horan at the office of the U.S. Capitol Police on Capitol Hill. Earlier in the morning I met for the first time with my new psychiatrist, Albert H. Taub, MD. Agent Horan advised me that the federal government (unbeknownst to me) had previously placed my name on a national registry of potential terrorists because of a letter I had written in 1996 to a local psychiatric facility (The Meyer Clinic), inquiring into out-patient services. Said letter elaborated Mr. Race's violence-risk determination as well as my supervisor's homicide-risk determination. Dennis Race had determined, in consultation with a psychiatrist, that I was paranoid and potentially violent.

On the afternoon of August 7, 1998 two Special Agents of the U.S. Secret Service placed me under house arrest because of concerns I might pose a risk of harm to President Clinton. The two Secret Service agents were part of a team of six federal special agents who had been assigned to interrogate me and secure my person, over a two-day period (August 6-7, 1998). Federal law enforcement concerns were aroused by a letter I had written and sent to a DC agency that discussed the federal civil rights implications of the DC Corporation Counsel's handling of 96-CV-961. I had sent an identical letter to U.S. Senator Arlen Specter (R.-PA.) on Capitol Hill, who responded with a cordial and personalized reply. Senator Specter, a former prosecutor, saw absolutely nothing threatening about the letter I had written, much less did he see the need to assign six federal special agents to interrogate me and secure my person.

************************************************************

Here's the letter I received from Senator Arlen Specter. He obviously had no problem with the letter I sent to him in late July 1998:

United States Senate
Washington, DC 20510-3802

September 29, 1998

Mr. Gary Freedman
3801 Connecticut Avenue, N.W.
#136
Washington, DC 20008-4530

Dear Mr. Freedman:

Thank you for contacting my office regarding Charles Ruff.

I appreciate your taking the time to bring your views on this important matter to my attention. As a United States Senator, it is essential that I be kept fully informed on the issues of concern to my constituents. Be assured that I will keep your thoughts on this matter in mind if the Senate considers this or related issues during the 105th Congress.

Again, thank you for writing. Please continue to keep me apprised of your views on this and other matters of concern.

Sincerely,

Arlen Specter
United States Senator

AS/cxg

****************************************************************

Here's the letter I sent to Senator Arlen Specter that he then responded to (above).

July 29, 1998
3801 Connecticut Avenue, NW
#136
Washington, DC 20008-4530

Hon. Arlen Specter
U.S. Senate
530 Senate Hart Building
Washington, DC 20510-3802

Dear Senator Specter:

I enclose for the general information of your office a recent document submission I made to the U.S. Secret Service (Phillip C. Leadroot, S.A.) under cover letter dated July 28, 1998.

The documents discuss the professional conduct of chief White House Counsel Charles F.C. Ruff, Esq. in his capacity as Corporation Counsel for the District of Columbia, in the year 1996.

The documents discuss the legal and federal law enforcement consequences of the substantial reliance by Mr. Ruff's office on (1) legally-irrelevant "after-acquired" evidence and (2) evidence of prior professional conduct that was unlawful as of the commencement of the proceedings in the defense by Mr. Ruff's office of a civil rights action (employment discrimination lawsuit) involving the law partners of President Clinton's close friend, Vernon E. Jordan, Jr.

Mr. Ruff assumed the position of chief White House Counsel in 1996 directly from his position as Corporation Counsel for the District of Columbia.

Sincerely,

Gary Freedman

cc: Charles F.C. Ruff, Esq. (cover letter only)

*****************************************************************

Here's the letter I transmitted to Senator Arlen Specter and to the U.S. Secret Service -- and the District of Columbia Office of City Administrator. Senator Specter clearly didn't have a problem with the letter; he sent me a cordial reply. Secret Service Special Agent Philip C. Leadroot didn't have a problem with the letter, either. But the DC Office of City Administrator did have a problem -- a big problem! Apparently, a DC employee telephoned the Secret Service to advise that a homicidal maniac had just threatened to shoot the president! It took several days for the U.S. Secret Service to figure out the problem. -- And these are the people protecting the president? These are the people protecting the homeland from terrorists?

July 28, 1998
3801 Connecticut Avenue, NW
#136
Washington, DC 20008-4530

Phillip C. Leadroot, S.A.
U.S. Secret Service
Washington, DC 20036

Dear Mr. Leadroot:

I request that the U.S. Secret Service refer this communication to the U.S. Department of Justice. I believe that the enclosed letters reflect a clear violation of my civil rights. Further, in the event I begin to send out letters, such as the attached, to prospective employers (particularly to members of the federal judiciary), it would pose a continuing and serious public relations problem for the U.S. Secret Service.

I have prepared the attached letters for the purpose of legal argumentation only. Please note, however, that I have a constitutionally-protected right to seek employment as well as a legal duty to advise prospective employers of any facts pertinent to my mental health and stability--issues placed in controversy by the Government of the District of Columbia--that may affect the employer's legal interests.

I want to add that in the event the D.C. Court of Appeals decides in favor of the District in the currently pending appeal of Freedman v. D.C. Department of Human Rights, D.C.C.A. no. 96-CV-961, I believe that I may have preserved a substantial federal question for the purposes of a writ of cert. to the U.S. Supreme Court. See Brief of Appellant at 39 n. 19.

Sincerely,

Gary Freedman

bcc: D.C. Bar Counsel (Leonard H. Becker, Esq.)
Hon. Arlen Specter
Hon. Alphonse D'Amato

*********************************************************************

I included the following letter in my communication to the Secret Service and to Senator Arlen Specter. I never actually sent the following letter to U.S. Attorney General Janet Reno. The letter attempts to demonstrate that court filings made by Charles F.C. Ruff, Esq. impaired my employability, thereby infringing on my constitutionally-protected right to seek employment.

Hon. Janet Reno
Attorney General of the United States
U.S. Department of Justice
Washington, DC

Dear Attorney General Reno:

I am an attorney, and am licensed to practice in the Commonwealth of Pennsylvania. I qualify for consideration for employment as an attorney in the Office of the Attorney General, and plan to apply at some future time for such employment position.

Preliminary to any future employment application, however, I want to advise the U.S. Department of Justice that the Government of the District of Columbia has affirmed that my former employer, the Washington, DC office of the law firm of Akin, Gump, Strauss, Hauer & Feld terminated my employment in October 1991 on the basis of genuine concerns about my mental health and stability, including the potential for violence. The employer's termination decision was made following an ex parte consultation with a psychiatrist who did not examine me personally. Freedman v. D.C. Department of Human Rights, D.C. Superior Court no. MPA 95-16 (final order, June 10, 1996) (Ellen Segal Huvelle, J.). As of the filing of the complaint in the said proceedings, in October 1995, and at all times thereafter, it was unlawful under the laws of the District of Columbia for a psychiatrist to offer a professional psychiatric opinion about an individual without benefit of personal examination as is strongly recommended by the American Psychiatric Association's Principles of Medical Ethics. The D.C. Code in its latest revision makes it unlawful for a physician to "[fail] to conform to standards of acceptable conduct and prevailing practice within a health profession." See D.C. Code 2-3305.14(26). This provision was added to the District of Columbia Health Occupations Revision Act by D.C. Law 10-247, enacted on March 23, 1995.

The District of Columbia Office of Corporation Counsel (Charles F.C. Ruff, Esq.) expressly affirmed to the D.C. Superior Court in pleadings filed in the above-referenced proceedings, relying on legally-irrelevant "after-acquired" evidence, see McKennon v. Nashville Banner Publishing Co., 115 S.Ct. 879, 885 (1995), that my coworkers had formed genuine (i.e., not motivated by discriminatory animus) fears that I might have been armed and dangerous and poised to carry out a homicidal assault on the firm's premises. The District implicitly asserted that coworkers' concerns about my potential for armed violence were relevant to the employer's decision to terminate my employment.

Because of concerns about my mental health and stability, including concerns about my potential for armed violence and homicide that have been placed in controversy and affirmed as genuine by the District of Columbia, I believe I have a legal duty to advise the U.S. Department of Justice of the following:

During the period September 1992 to June 1995 I received out-patient psychiatric treatment at the George Washington University Medical Center Department of Psychiatry. In connection with my treatment, I prepared and submitted various documents to my treating psychiatrists as part of the process of psychotherapeutic cure and not for the purpose of revealing hidden danger. See Tarasoff v. Regents of University of California, 13 Cal.3d 177, 529 P.2d 553 (Sup. Ct. Ca. 1974).

These documents have discussed the following topics:

my fantasies relating to [a federal crime involving] the President of the United States;

my fantasies relating to the designing of weapons of mass destruction;

my fantasies relating to the commission of [a specified violent felony]; and

my fantasies relating to [a federal felony involving] the government of the United States.

Because of concerns about my mental health and stability, including concerns about my potential for armed violence and homicide that have been placed in controversy and affirmed as genuine by the District of Columbia, I believe The George Washington University Medical Center has a legal duty to apprise any prospective employer of facts in the Medical Center's possession that may relate to my current mental health and stability, including the potential for violence, which facts necessarily concern my suitability for employment and the employer's potential tort liability. See Merchants National Bank & Trust Co. of Fargo v. United States, 272 F.Supp. 409 (D.N.D. 1967).

For the information of the U.S. Department of Justice, I enclose one document on file at the George Washington University Medical Center that discusses my fantasies relating to [a federal crime involving] the President of the United States.

I am confident that concerns about my mental health and stability, including the potential for armed violence and homicide, placed in controversy by the Government of the District of Columbia will not prejudice my chances for employment as an attorney in the Office of the Attorney General.

Sincerely,

Gary Freedman

Did Paranoid Schizophrenia Affect My Legal Reasoning?

Perhaps no other profession stigmatizes mental illness as much as the legal services industry. Only recently have members of the legal community come forth with their stories about struggling with serious mental illnesses. Professor Elyn Saks’ memoir, The Center Cannot Hold: My Journey Through Madness, chronicles her experiences with schizophrenia while she attended Yale Law School and throughout her professional career as a law professor at the University of Southern California. Her book stands out as one of the first works to break the silence about lawyers who suffer from mental illnesses.

Early in their careers, lawyers discover as law students that suffering from a mental illness can be a liability and that it might prevent them from obtaining their license to practice law. Each of the fifty states, the District of Columbia, and the United States territories requires bar applicants to pass a moral character and fitness exam as a condition of being admitted to the bar. The purpose of these exams is to protect the public from unethical lawyers who may suffer from any number of problems including, but not limited to, financial irresponsibility and prior mental illness.

Despite the Americans with Disabilities Act’s protection against discrimination for people with mental illnesses, many moral character and fitness exams ask about the applicant’s mental health. Depending on the state, bar examiners may make broad inquires into whether the applicant has ever been diagnosed or treated for a mental condition, or they may make more narrowly tailored investigations about whether the condition currently affects the applicant’s ability to practice law. For law students aware of potentially having to answer such questions about their mental health, this can have the unfortunate deterrent effect of not seeking otherwise needed psychological counseling and treatment.

1. I was diagnosed with paranoid schizophrenia (a debilitating psychotic mental illness) in February 1996 by Dimitrios Georgoopoulos, MD at the George Washington University Medical Center. See Letter from Dimitrios Georgopoulos, MD, to Gary Freedman, dated February 14, 1996. (see comment to this post).

2. I wrote the following Brief on Appeal in May 1997:

http://dailstrug.blogspot.com/2009/11/freedman-v-dc-dept-mental-health-akin_27.html

I wrote the following Reply Brief in August 1997:

http://dailstrug.blogspot.com/2009/11/freedman-v-dc-dept-mental-health-akin.html

I was not on any medication when I wrote these appeal briefs. According to the U.S. Social Security Administration (SSA) I was disabled and unfit for employment throughout the year 1997. According to the SSA I became disabled and unfit for employment effective October 29, 1991 based on the sworn statements of Dennis M. Race, Esq. of the law firm of Akin, Gump, Strauss, Hauer & Feld, who alleged that he had determined, in consultation with a practicing psychiatrist, that I suffered from a psychiatric "disorder" as of October 29, 1991. See Freedman v. DC Dept. Human Rights, D.C.C.A. 96-VC-961 (Sept. 1, 1998) (a pre-ADA case that found that an employer may lawfully terminate an employee who exhibits the psychiatric disorder "ideas of reference").

3. I was diagnosed with paranoid schizophrenia again in February 1999 by Albert H. Taub, MD of the DC Dept. of Mental Health. See letter of Albert H. Taub, MD to the DC Medical Board, dated February 22, 1999 (see comment to this post).

An Akin Gump Anecdote: Earl L. Segal, Esq.

The following anecdote is drawn from memory. I don't keep a diary.

In late October 1988 I had been employed as a legal assistant at the DC law firm of Akin, Gump, Strauss, Hauer & Feld since March 1988. The partner in charge of the Legal Assistant Program was a real estate lawyer named Earl L. Segal, Esq. The Legal Assistant Administrator was named Maggie Sinnott.

In mid-October 1988 I wrote an autobiographical study called "The Caliban Complex: An Attempt at Self Analysis," and mailed a copy of the document to three paralegals I had worked with at another firm, Hogan & Hartson: Craig W. Dye, Daniel D. Cutler, and Michael J. Wilson, Esq. (now a partner at Morgan, Lewis & Bockius).

I had been terminated by Hogan in late February 1988. A coworker at Hogan, Mary Jane Coolen, said at the time to me: "Think of this as a blessing in disguise."

On a rainy Friday in late October 1988 I arranged to have lunch at The Cafe Mozart, a DC restaurant, with three former coworkers from Hogan: Daniel Cutler, Mary Jane Coolen, and Cindy Rodda. Craig Dye was on vacation at the time. I know the lunch was after I sent Daniel Cutler a copy of my autobiographical study. (I had already formed the theory that someone at Hogan was in communication with someone at Akin Gump concerning me. http://dailstrug.blogspot.com/2009/11/origins-of-my-delusions-about-akin-gump.html)

During the lunch I provided Daniel Cutler the name and telephone number of Maggie Sinnott, the Legal Assistant Administrator at Akin Gump. I was feeling lonely and isolated at Akin Gump, and thought it would be a fun idea if Daniel Cutler got a job at Akin Gump. I thought if Daniel Cutler got a job at Akin Gump, I would have a ready-made friend at the firm. Daniel Cutler seemed eager and interested in pursuing the job lead I gave him. He said he would call Maggie Sinnott.

Coinicidentally, Albert Einstein did the same thing when he worked at the Swiss Patent Office. He had no friends at the Swiss Patent Office, and got a job there for his old friend, Besso.

I remember showing Mary Jane Coolen my pay check that contained the signature of the accounting office manager at Akin Gump, Joseph Blessing. I said to Mary Jane (referring back to the comment she made to me in February at Hogan): "You see, Mary Jane, getting hired at Akin Gump was, in fact, a "Blessing" in disguise. She laughed. This tells me the lunch was on a Friday afternoon, after I got my paycheck.

Be that as it may.

At 5:30 that afternoon, I was leaving the office for the weekend. I worked on the fifth floor at that time. I walked out into the elevator area, and I saw two people: Earl L. Segal, Esq. and the young associate, Amy Cohen, Esq. Earl Segal looked at me in the strangest way. It was a look of strong negative emotion. I believed the look was directed at me, but didn't know what the look meant.

I got on the elevator to leave the building. Amy Cohen got on the elevator with me. The elevator door closed. Amy Cohen said to me: "I forgot my umbrella." (That tells me it was a rainy day.) Then she spurted out: "Are you stupid?" I replied: "I'm not the one who forgot his umbrella."

I reasoned that Daniel Cutler had telephoned Maggie Sinnott or Earl Segal at Akin Gump about my job proposition. Earl Segal thought that I had acted stupidly. I have no other inferences.

Are these "ideas of reference" or expressions of some other psychological phenomena? See Freedman v. D.C. Dept. Human Rights, D.C.C.A. 96-CV-961 (Sept. 1, 1998) (an employer may lawfully determine an employee unfit for employment if he exhibits "ideas of reference").

The Inspector General of the United States -- Glenn A. Fine, Esq.

July 6, 1999
3801 Connecticut Avenue, NW #136
Washington, DC 20008-4530

The Honorable Glenn A Fine
Inspector General of the United States
Room 4706
U.S. Department of Justice
Tenth Street & Constitution Avenue, NW
Washington, DC 20530

Dear Mr. Fine:

I am an attorney licensed to practice in the Commonwealth of Pennsylvania, and qualify for consideration for a position as attorney with the Office of the Inspector General, U.S. Department of Justice.

Preliminary to forwarding a copy of my resume to the Office, I believe I have a legal duty to advise the Office of the following facts regarding concerns about my potential for armed violence or homicide, intent purchase firearms to commit a felony, and the illegal transport of a deadly weapon: concerns placed in controversy and affirmed, by the District of Columbia Office of Corporation Counsel (Charles F.C. Ruff, Esq.), as relating to genuine fears about my criminal intent.

The Government of the District of Columbia has affirmed that my former employer, the Washington, DC office of the law firm of Akin, Gump, Strauss, Hauer & Feld ("Akin Gump") terminated my employment in October 1991 on the basis of genuine concerns about my mental health and stability, including the potential for violence. The employer's termination decision was made following an ex parte consultation with a psychiatrist who did not examine me personally. Freedman v. D.C. Department of Human Rights, D.C. Superior Court no. MPA 95-14 (final order, June 10, 1996) (Ellen Segal Huvelle, judge), affirmed by the D.C. Court of Appeals (Terry, Reid, and King, associate judges), No. 96-CV-961 (Memorandum Opinion and Judgment filed Sept. 1, 1998).

As of the filing of the complaint in the Superior Court proceedings, in October 1995, and at all times thereafter, it was unlawful under the laws of the District of Columbia for a psychiatrist to offer a professional psychiatric opinion about an individual without benefit of personal examination as is strongly recommended by the American Psychiatric Association's Principles of Medical Ethics. The D.C. Code in its latest revision makes it unlawful for a physician to "[fail] to conform to standards of acceptable conduct and prevailing practice within a health profession." See D.C. Code 2-3305.14(26). This provision was added to the District of Columbia Health Occupations Revision Act by D.C. Law 10-247, enacted on March 23, 1995. The Court of Appeals expressly found that the professional psychiatric opinion offered by the psychiatrist to the employer amounted to the diagnosis of a "disorder." See No. 96-CV-961 at 4.

The District of Columbia Superior Court as well as the Court of Appeals did not find that the action of my Akin Gump supervisor in stating to employees that she feared that I might have had plans to kill her, and the action of the supervisor in arranging to have her office secured against such a homicidal assault, see record on appeal at 41, was invidiously motivated. The supervisor (Robertson) is designated by the employer as one of the three decisionmakers who terminated my employment, see record on appeal at 167, which termination decision was based in part on the above-referenced psychiatric evidence that tended to show that I posed a risk of violence. Robertson's termination decision was made in consultation with Dennis M. Race, Esq., a senior Akin Gump partner, see record on appeal at 138 and 167.

Mr. Race has expressly affirmed, under penalty of D.C. Code 1-2529 (D.C. Human Rights Act of 1977: false documents or testimony), that (unspecified) acts of "violence," see record on appeal at 140, that I committed during my tenure at the firm coupled with the firm's reasonable fear that my future conduct might expose the firm to tort liability, see record on appeal at 148 (possibly including tort damages for wrongful death, record on appeal at 41), justified the firm's decision to terminate my employment.

The District of Columbia Office of Corporation Counsel expressly affirmed to the D.C. Superior Court and to the Court of Appeals in pleadings filed in the above-referenced proceedings, relying on legally-relevant "after-acquired" evidence, see McKennon v. Nashville Banner Publishing Co., 115 S.Ct. 879, 885 (1995), that my coworkers had formed genuine fears (i.e., not motivated by discriminatory animus) that I might have been armed and dangerous and poised to carry out a homicidal assault on the firm's premises. See Brief of Appellee District of Columbia Department of Human Rights and Minority Business Development at 9, Freedman v. D.C. Department of Human Rights, D.C. Court of Appeals No. 96-CV-961 (citing record on appeal at 276). The District implicitly asserted that my coworkers' concerns about my potential for armed violence were relevant to the employer's decision to terminate my employment.

I stand by the "Statement of Gary Freedman to the Office of U.S. Attorney for the District of Columbia Regarding Intent to Commit Crime of Violence as Determined by the Law Firm of Akin, Gump, Strauss, Hauer & Feld," ("Statement to the U.S. Attorney") dated April 24, 1995, and made under penalty of criminal sanctions (D.C. Code Ü22-2514).

I want to advise, however, that representations made by the District of Columbia Office of Corporation Counsel (M. Justin Draycott, Esq.) to the District of Columbia Court of Appeals at oral argument in December 1997 that I "admitted" in pleadings that I filed with the D.C. Department of Human Rights that my "coworkers" were genuinely "afraid" of me (specifically with regard to my potential for armed violence or homicide) conflict with the prior Statement to the U.S. Attorney, and that said conflict may give rise to the appearance that the exculpatory representations that I made in the Statement to the U.S. Attorney were misleading, knowingly false, or perjurious.

Additionally, the Court of Appeals has affirmed, see D.C. No. 96-CV-961 at 3 n. 1, that the Department of Human Rights had legally-valid concerns that a document I submitted to the agency (which purports to have been written by the psychiatrist consulted by Akin Gump) may have been inauthentic (i.e., forged or fabricated), see record on appeal at 8. Presumably, according to the agency, I submitted the possibly inauthentic document in order to deny forensic psychiatric evidence filed by Akin Gump with the agency: forensic psychiatric evidence that related to my mental health (specifically relating to a psychiatric "disorder" that my employer had attributed to me, see D.C. No. 96-CV-961 at 4) and stability (specifically relating to my potential for violence). But see Namerdy v. Generalcar, 217 A.2d 109, 111-112 (D.C. 1966) (circumstantial evidence, such as evidence that a letter is written on the author's letterhead, is sufficient for authentication).

Robert R. Chapman, Esq., Assistant U.S. Attorney for the District of Columbia, is familiar with this matter. The telephone number of the U.S. Attorney's Office in Washington is (202) 514-7566.

I am confident that defamatory statements about me that may raise substantial concerns about my mental stability and fitness to practice law, even acts of defamation committed by the law partners of a close friend of former President William Jefferson Clinton (Vernon E. Jordan, Jr., Esq.) and acts of defamation committed by Mr. Clinton's chief White House counsel (Charles F.C. Ruff, Esq.), will in no way impair my chances for fair consideration for employment by the Office of the Inspector General.

This will advise the Department of Justice that I am a disabled American, per the Americans With Disabilities Act of 1990 (the "Act"). The enclosed computer discs contain documents that are pertinent to the nature of my disability, and suggest the reasonable accommodation that I may require per the Act.

Incidentally, Mr. Fine, we worked at the law firm of Hogan and Hartson during the same time - the fall of 1985. I was the individual who worked at a table in the firm's second floor library: the individual with the "brilliant legal mind."

Sincerely,

Gary Freedman

Did Daniel D. Cutler, Esq. Distribute Illegal Drugs on Hogan & Hartson's Premises?

In March 1987 I worked as an agency-supplied temporary employee in the Computer Applications Department (CAD) at the DC law firm of Hogan & Hartson. My fellow employees in CAD worked in an office suite across the street from the firm's main office on 815 Connecticut Avenue, the so called "I Street Office." About a month earlier (February 12, 1987), the CAD supervisor Sheryl Ferguson announced to employees that she was leaving the firm. Shortly thereafter the department devolved into an interpersonal cesspool.

On an afternoon in March 1987 I was working in my office alone, behind a closed door. I could hear my coworkers talking about marijuana. At some point Daniel D. Cutler, Esq. -- one of my coworkers -- left the office, and it became quiet in the office. Some time later, Daniel Cutler returned. I heard him say: "It's not hard to get; they sell it on the street." There was a lot of loud carrying on in the office after Daniel Cutler returned. My "idea of reference," see Freedman v. D.C. Dept. Human Rights, D.C.C.A. 96-CV-961 (Sept. 1, 1998) (an employer may conclude that the psychiatric disorder "ideas of reference" renders an employee unfit for employment), was that Daniel Cutler had purchased marijuana on the street and proceeded to distribute the drug to his coworkers on Hogan & Hartson's premises. Craig W. Dye was not present at that time; I believe he was working at the firm's main office on Connecticut Avenue.

January 3, 1998
3801 Connecticut Avenue, NW
#136
Washington, DC 20008-4530

Benjamin A. Perillo
Acting Deputy Assistant
Administrator
Drug Enforcement Administration
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20537

Dear Mr. Perillo:

I am an attorney, and am currently involved in a job search.

During the period September 1985 to February 1988 I was employed in the Washington, DC office of the law firm of Hogan & Hartson, in the capacity of an agency-supplied temporary employee, assigned to the firm's Computer Applications Department.

In about March or April 1987 I became privy to information relating to the possible purchase by an employee of Hogan of a single quantity of illegal drugs and his subsequent distribution of same to other Hogan employees in the Computer Applications Department, during working hours, on the firm's premises. During that time period the Department was supervised by an interim supervisor, Freddie K. Rios, who is now employed by the law firm of Skadden, Arps, Slate, Meagher & Flom. I have no reason to believe that Freddie K. Rios was aware of this incident.

The employees in question were at that time employed on a document production task for the firm's client Chrysler Corporation, immediately supervised by attorney David A. Kikel, Esq. (202 637 5732). The client's billing partner was James A. Hourihan, Esq. (202 637 6544).

Contemporaneous documentation of my suspicions regarding the above incident is a humorous memo that I prepared and posted in the office suite to which the employees were assigned. A copy of that document is now in the custody of the U.S. Secret Service, Washington Field Office (Phillip C. Leadroot, S.A.)

At the time of the incident the employees were assigned to temporary office space that was located in an office building across the street from the firm's central site at 815 Connecticut Avenue, NW, Washington, DC: the so-called "I Street" annex. The employees were unsupervised at that location.

I recall that in about May 1987 I related details regarding this incident to the Department's secretary, Laura Mayo. Laura Mayo told me, at about that time, that the Department's data base administrator, Esperanza ("Espe") Rebollar herself seemed to suffer from a chemical (alcohol) dependency, and that on one occasion Rebollar arrived at work in an apparent inebriated state. Laura Mayo showed me the draft version of a letter she had written and planned to submit to Freddie K. Rios that detailed Mayo's concerns about and perceptions of Rebollar's professional conduct.

Details regarding the drug incident are contained in a letter that I wrote and submitted in October 1992 to the George Washington University Medical Center Department of Psychiatry (Napoleon Cuenco, M.D.) in connection with my psychiatric treatment at that institution. In about December 1993 I forwarded a copy of that letter, together with several other letters relating to my psychotherapeutic treatment, to the U.S. Social Security Administration (claim no. xxx-xx-xxxx). I no longer have a copy of that letter.

My current dilemma is as follows. I plan to submit a job inquiry to the Chrysler Corporation's legal department. It has been a life-long dream of mine to work as an attorney for the Chrysler Corporation. I fear that if I am hired by Chrysler but fail to disclose information relating to the above incident, that failure to disclose could jeopardize my employment should Chrysler subsequently learn of the incident. Yet if I disclose the incident to Chrysler in connection with my job inquiry I may expose myself to possible defamation liability or even criminal liability relating to the crime of extortion. Also, Hogan, like all law firms, has strict policies relating to disclosure of client names and client information. See e.g. memorandum dated August 7, 1986 from The Executive Committee to All Hogan Personnel re: Confidential Information and Trading in Securities: although in this case I would be revealing to the client itself information regarding the possible criminal conduct of individuals employed by the client's legal representative.

May I request that the Justice Department provide me guidance on how to proceed in this matter?

You may want to review this matter with Hogan's managing partner Bob Glen Odle at 202 637 5639.

Sincerely,

Gary Freedman

Akin Gump: Appellant's Brief on Appeal

IN THE DISTRICT OF COLUMBIA COURT OF APPEALS
______________________________________

Appeal No. 96-CV-961

______________________________________

GARY FREEDMAN

Appellant

v.

DISTRICT OF COLUMBIA
DEPARTMENT OF HUMAN RIGHTS

Appellee
_____________________________________

Appeal from the Superior Court of the
District of Columbia, Civil Division
______________________________________________

BRIEF OF APPELLANT
______________________________________________

Gary Freedman pro se
3801 Connecticut Avenue, NW
Apartment 136
Washington, DC 20008
(202) 362-7064
or (202) 363-3800

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . .i

I. STATEMENT OF JURISDICTION . . . . . . . . . . .1

II. ORDER IN QUESTION . . . . . . . . . . . . . . .2

III. STATEMENT OF QUESTIONS INVOLVED . . . . . . . .3

IV. STATEMENT OF THE CASE . . . . . . . . . . . . .4

A. Form of Action . . . . . . . . . . . . . 4

B. Factual History . . . . . . . . . . . . .6

V. ARGUMENT . . . . . . . . . . . . . . . . . . 12

A. DHR's determination of no probable cause
is arbitrary and capricious in that the
agency's finding that (1.) appellant's
performance evaluations were uniformly
above-average or outstanding throughout his
tenure combined with its finding that (2.)
appellant believed, throughout his tenure,
that he had been subjected to a continuing
pattern of unlawful harassment do not lead
rationally to the agency's determination
that the employer's proffered reason for the
termination (namely, that the nature of
appellant's report of harassment to the
employer prompted the employer to become
reasonably concerned about appellant's
mental stability and suitability for
employment) was nonpretextual and worthy of
credence . . . . . . . . . . . . . 12

B. DHR's determination that the employer's
proffered reason for the termination was
nonpretextual and worthy of credence--given
the employer's concerns regarding
appellant's mental stability and suitability
for employment, based on the statements of
appellant's direct supervisor, co-workers,
and the advice of mental health
professionals--is arbitrary and capricious
or otherwise not in accordance
with law . . . . . . . . . . . . . . . .27

C. DHR's no probable cause determination is
arbitrary and capricious in that a finding
that the employer had a concern for
appellant's mental health and stability
(based partly on the advice of mental health
professionals that appellant needed
counseling and that according to a
psychiatrist could engage in violent
behavior) does not lead rationally to a
conclusion that that concern prompted or
justified the employer's decision to
terminate appellant since appellant was a
beneficiary of the employer's long-term
disability income plan under which he
qualified for long-term medical leave
under the employer's established leave
policy . . . . . . . . . . . . . 41

VI. CONCLUSION . . . . . . . . . . . . . . . . . 47

APPENDIX A . . . . . . . . . . . . . . . . . . . . . . A-1

APPENDIX B . . . . . . . . . . . . . . . . . . . . . .B-1

APPENDIX C . . . . . . . . . . . . . . . . . . . . . .C-1

TABLE OF AUTHORITIES

CASES

Anderson v. Baxter Healthcare Corp.,
13 F.3d 1120 (7th Cir. 1994) . . . . . . . . .25, 45

Betesh v. United States,
400 F.Supp. 238 (D.D.C. 1974) . . . . . . . . . . .46

Bowman Transportation v.
Arkansas-Best Freight System,
419 U.S. 281 (1974) . . . . . . . . . . . .13, 31, 33

Burlington Truck Lines, Inc. v.
United States,
371 U.S. 156 (1962) . . . . . . . . . . . . . . . .13

Citizens to Preserve Overton Park v. Volpe,
401 U.S. 402 (1970) . . . . . . . . . .25, 35, 37, 38

Duffy v. Wheeling Pittsburgh Steel Corp.,
738 F.2d 1393 (3d Cir. 1984),
cert. denied, 469 U.S. 1087 (1984) . . . . . . . .22

Eide v. Kelsey-Hayes Co.,
397 N.W.2d 532 (Mich. App. 1986) . . . . . . . . . 11

Estes v. Dick Smith Ford, Inc.,
856 F.2d 1097 (8th Cir. 1988) . . . . . . . . . . .24

Goldwater v. Ginzburg,
261 F. Supp. (S.D.N.Y. 1969),
reh. denied, 397 U.S. 978 (1969) . . . . . . . . . 39

Goos v. National Ass'n of Realtors,
715 F.Supp. 2 (D.D.C. 1989) . . . . . . . . . . . .28

Hagelthorn v. Kennecott Corp.,
710 F.2d 76 (2d Cir. 1983) . . . . . . . . . . . .22

Hardy v. Marriott Corp.,
670 F.Supp. 385 (D.D.C. 1987) . . . . . . . . . . .27

Hicks v. Gates Rubber Co.,
833 F.2d 1406 (10th Cir. 1987) . . . . . . . . . . 24

Jeppsen v. Wunnicke,
611 F.Supp. 78 (D.C. Alaska 1985) . . . . . . . . .31

Kopff v. District of Columbia ABC BD.,
381 A.2d 1372 (D.C. 1977),
aff'd, 413 A.2d 152 (1980) . . . . . . . . . . . .37

Lindsey v. Baxter Healthcare Corp.,
757 F. Supp. 888 (N.D. Ill. 1991) . . . . .27, 29, 30

McCaskill v. D.C. Dept. of Empl. Services,
572 A.2d 443 (D.C. 1990) . . . . . . . . . . . . . 34

McNeil v. Akin, Gump, Strauss, Hauer & Feld,
no. 93-0477 (D.D.C., Nov. 29,
1993) . . . .6, 7, 8, 19, 21, 23, 24, 26, 33, 34, 39

McNeil v. Economics Laboratory, Inc.,
800 F.2d 111 (7th Cir. 1986) . . . . . . . . . . .26

Meinze v. Holmes,
532 N.E.2d 170 (Ohio App. 1987) . . . . . . . . . .46

Motor Vehicle Mfr's. Ass'n of U.S., v.
State Farm Mut. Automobile Ins. Co.,
463 U.S. 29 (1983) . . . . . . . .12, 13, 14, 42, 43

Namerdy v. Generalcar,
217 A.2d 109 (D.C. 1966) . . . . . . . . . . . . .37

Phillip v. ANR Freight Systems, Inc.,
945 F.2d 1054 (8th Cir. 1991),
cert. denied, 506 U.S. 825 (1992) . . . . . . . . .24

Pico v. Board of Education,
Island Trees Union Free School District,
638 F.2d 404 (2d Cir. 1980),
aff'd, 457 U.S. 853 (1982) . . . . . . . . . .22, 23

Ramseur v. Chase Manhattan Bank,
865 F.2d 460 (2nd Cir. 1989) . . . . . . . . .22, 25

Ravinskas v. Karalekas,
741 F. Supp. 978 (D.D.C. 1990) . . . . . . . . . .28

Robinson v. 12 Lofts Reality, Inc.,
610 F.2d 1032 (2d Cir. 1979) . . . . . . . . . . .22

Rosexpress, Inc. v. District of Columbia
Department of Employment Services,
602 A.2d 659 (D.C. 1992) . . . . . . . . . . .36, 38

Russell v. Acme-Evans Co.,
51 F.3d 64 (7th Cir. 1995) . . . . . . . . . . . .25

Shager v. Upjohn Co.,
913 F.2d 398 (7th Cir. 1990) . . . . . . . . . . . 25

Simpson v. District of Columbia Office of
Human Rights,
597 A.2d 392 (D.C. 1991) . . . . . . . . . .1, 5, 12

Slade v. Billington,
700 F. Supp. 1134 (D.D.C. 1988),
aff'd, 871 F.2d 155 (D.C. Cir. 1989) . . . . . . . 27

Texas Department of Community Affairs v.
Burdine,
450 U.S. 248 (1980) . . . . . . . . . . . .14, 33, 40

Thornbrough v. Columbus & Greenville Railroad Co.,
760 F.2d 633 (5th Cir. 1985) . . . . . . . . . . .22

Timus v. Dept. of Human Rights,
633 A.2d 751 (D.C. 1993) . . . . . . . . . . . . . .1

Uffelman v. Lone Star Steel Co.,
863 F.2d 404 (5th Cir. 1989),
cert. denied, 490 U.S. 1098 (1989) . .6, 7, 8, 9, 26

Universal Camera Corp. v. NLRB,
340 U.S. 474 (1951) . . . . . . . . . . . . . . . .31

Vinson v. Taylor,
753 F.2d 141 (D.C. Cir. 1985),
aff'd in part and rev'd in part,
477 U.S. 57 (1986) . . . . . . . . . . . . . . . . 24

Zuniga v. Kleberg County Hosp.,
Kingsville, Tex.,
692 F.2d 986 (5th Cir. 1982) . . . . . . . . . 43, 44

STATUTES

D.C. Code Ann. 1-2501 et seq. . . . . . . . . . . . . .4

D.C. Code Ann. 1-2525 . . . . . . . . . . . . . . .27, 28

D.C. Code Ann. 11-721(a)(1) . . . . . . . . . . . . . .1

D.C. App. R. 26(a) . . . . . . . . . . . . . . . . . . .5

Agency Review Rule 1 (Superior Court) . . . . . . . . . .5

NONLEGAL MATERIALS

Eastern Requests Bankrupt Status to Cut Strike Loss,
N.Y. Times, Mar. 10, 1989, at 1, col. 1 . . . . . .6

THE PRINCIPLES OF MEDICAL ETHICS (WITH ANNOTATIONS
ESPECIALLY APPLICABLE TO PSYCHIATRY)
9 (Washington, DC: APA 1995) . . . . . . . . . 38, 39

OPINIONS OF THE ETHICS COMMITTEE ON THE PRINCIPLES OF
MEDICAL ETHICS WITH ANNOTATIONS ESPECIALLY APPLICABLE TO
PSYCHIATRY
58 (Washington, DC: APA 1995) . . . . . . . . .39, 40

The Prejudicial Personality: Racism and Anti-Semitism,
65 J. PERSONALITY ASSESSMENT 270 (1995) . . . . . .39

DORLAND'S MEDICAL DICTIONARY
814 (27th ed. 1988) . . . . . . . . . . . . . . . .41

R. NOLL, THE ENCYCLOPEDIA OF SCHIZOPHRENIA &
THE PSYCHOTIC DISORDERS
169 (New York: Facts on File 1992) . . . . . . . .41

I. STATEMENT OF JURISDICTION

In that this is an appeal from an order of the Superior Court of the District of Columbia affirming a prior determination of no probable cause made by the District of Columbia Department of Human Rights, this Court has jurisdiction over same per D.C. Code Ann. 11-721(a)(1). Timus v. Dept. of Human Rights, 633 A.2d 751, 761 (D.C. 1993).

A prior Petition for Review of this matter filed in the District of Columbia Court of Appeals was dismissed by order of the Court for lack of jurisdiction, without prejudice to the timely filing of an appropriate civil action in the Superior Court, per Simpson v. District of Columbia Office of Human Rights, 597 A.2d 392, 400-402 (D.C. 1991). Freedman v. District of Columbia Department of Human Rights, no. 93-AA-1342 (D.C., Jan. 10, 1995) (memorandum opinion and judgment) (as amended per order, Sept. 20, 1995).

II. ORDER IN QUESTION

The order from which this appeal is taken was entered by the Superior Court of the District of Columbia (Ellen Segal Huvelle, J.) on June 10, 1996 in Freedman v. District of Columbia Department of Human Rights, no. MPA 95-14, which affirmed a prior final determination of no probable cause issued by the District Of Columbia Department of Human Rights on September 24, 1993 in the matter of Freedman v. Akin, Gump, Hauer & Feld, agency docket no. 92-087-P(CN) [Superior Court Record 35-39] [hereinafter cited as Sup. Ct. Rec.]

III. STATEMENT OF QUESTIONS INVOLVED

A. Was DHR's determination of no probable cause arbitrary and capricious in that the agency's finding that (1.) appellant's performance evaluations were uniformly above-average or outstanding throughout his tenure combined with its finding that (2.) appellant believed, throughout his tenure, that he had been subjected to a continuing pattern of unlawful harassment failed to lead rationally to the agency's determination that the employer's proffered reason for the termination (namely, that the nature of appellant's report of harassment to the employer prompted the employer to become reasonably concerned about appellant's mental stability and suitability for employment) was nonpretextual and worthy of credence?

B. Was DHR's determination that the employer's proffered reason for the termination was nonpretextual and worthy of credence--given the employer's concerns regarding appellant's mental stability and suitability for employment, based on the statements of appellant's direct supervisor, co-workers, and the advice of mental health professionals--arbitrary and capricious or otherwise not in accordance with law?

C. Was DHR's no probable cause determination arbitrary and capricious in that a finding that the employer had a concern for appellant's mental health and stability (based partly on the advice of mental health professionals that appellant needed counseling, and that according to a psychiatrist could engage in violent behavior) does not lead rationally to a conclusion that that concern prompted or justified the employer's decision to terminate appellant since appellant was a beneficiary of the employer's long-term disability income plan under which he qualified for long-term medical leave under the employer's established leave policy?

IV. STATEMENT OF THE CASE

A. Form of Action

Appellant, Gary Freedman, filed a charge of discrimination based on sexual orientation (homosexual) with Respondent, District of Columbia Department of Human Rights and Minority Business Development (DHR), on February 4, 1992 against his former employer, the law firm of Akin, Gump, Strauss, Hauer & Feld ("the employer" or "the firm") [Agency Record 169-170] [hereinafter cited as Rec.]. Appellant charged that the employer subjected him to unfair terms and conditions of employment based on his sexual orientation by harassing him and terminating his employment in violation of the District of Columbia Human Rights Act of 1977, as amended, D.C. Code Ann. 1-2501, et seq. (Repl. Vol. 1992) ("the Act") [Rec. 169-170].

The employer filed a Response to Interrogatories and Document Request in this matter, dated May 22, 1992 [Rec. 131-167], to which Petitioner filed a Reply, dated January 5, 1993 [Rec. 239-462]; the employer filed a Response to Additional Interrogatories and Request for Documents, dated May 17, 1993 [Rec. 122-129].

DHR issued a no probable cause determination (Letter of Determination) on June 30, 1993 [Rec. 11-20]. Appellant's Application for Reconsideration was filed on July 27, 1993 [Rec. 21-67). DHR's Determination on Reconsideration [Rec. 1-9], issued September 24, 1993, affirmed and incorporated DHR's no probable cause determination (issued June 30, 1993), and was final agency action.

DHR determined that appellant did not present sufficient evidence to support his allegations of disparate treatment because of sexual orientation [Rec. 19-20].

Appellant's petition for review and motion to proceed on appeal in forma pauperis were granted by order of the District of Columbia Court of Appeals, dated December 22, 1993. The petition was argued before the Court of Appeals on October 13, 1994 by appellant pro se; appellee declined to file a brief per "Statement in Lieu of Brief," filed March 4, 1994. The petition for review was dismissed by judgment of the Court of Appeals for lack of jurisdiction, without prejudice to the timely filing of an appropriate civil action in the Superior Court, per Simpson v. District of Columbia Office of Human Rights, 597 A.2d 392, 400-402 (D.C. 1991) (before John M. Ferren and Terry, Judges, and Mack, Senior Judge). Freedman v. District of Columbia Department of Human Rights, no. 93-AA-1342 (D.C., Jan. 10, 1995) (memorandum opinion and judgment) (as amended per order, Sept. 20, 1995).

Appellant thereafter filed in the Superior Court of the District of Columbia, on October 10, 1995, a Petition for Review of Agency Decision, pursuant to Agency Review Rule 1 (i.e., Superior Court review of agency orders pursuant to D.C. Code 1981, Title 1, Ch. 6) [Sup. Ct. Rec. 2-30]. The Superior Court (Ellen Segal Huvelle, J.) affirmed DHR's no probable cause finding, by order dated June 10, 1996 (Superior Court no. MPA 95-14) [Sup. Ct. Rec. 35-40]. Appellant filed in Superior Court a notice of appeal on July 2, 1996 [Sup. Ct. Rec. 41].

Following several preliminary orders issued by the District of Columbia Court of Appeals, the docketing statement, designation of record [Sup. Ct. Rec. 42] and statement regarding transcript [Sup. Ct. Rec. 43] in the instant appeal were late-filed by order of this Court on November 22, 1996, and a briefing schedule was filed by order of this Court on March 31, 1997: whereupon this brief is filed this 12th day of May, 1997, per the extension of time provision of D.C. App. R. 26(a).

B. Factual History

Appellant was hired by the employer on June 13, 1988 as a temporary legal assistant ("paralegal") [Rec. 12]. He was initially assigned to a document production task for a major client, Eastern Airlines [Rec. 138], but with the understanding that he would later be transferred to the employer's legal assistant program to perform substantive paralegal assignments [Rec. 239-240].
Although the client, Eastern Airlines, later filed for bankruptcy protection, the employer thereafter hired appellant as a full-time legal assistant on August 1, 1989 [Rec. 135, 144]. 1/ [footnotes to this brief are included at the conclusion of the text]

Without exception appellant received above average and/or outstanding performance evaluations throughout his tenure [Rec. 12]. However, he was not routinely assigned substantive tasks as he had originally been promised [Rec. 242-243]. Indeed, in March 1990, despite his above average or outstanding job performance appellant was demoted 2/ to the employer's litigation support department, supervised by Christine Robertson ("Robertson"), where the tasks available to appellant required less advanced skills than are required of a legal assistant [Rec. 242-243].

In March 1990, when appellant was reassigned from the legal assistant program to the litigation support department [Rec. 132], his newly-designated supervisor, Robertson, told appellant that upon posting to litigation support, a supervisory position for him was a "distinct possibility" [Rec. 242]. Presumably, opportunities for promotion to the position of "project leader," 3/ or like supervisory position, were available to appellant; appellant was not offered any such supervisory position [Rec. 291-325, 457-462], despite performance evaluations that consistently rated his work above-average or outstanding [Rec. 12], and that acknowledged his supervisory abilities [Rec. 310].

Throughout his tenure, appellant was subjected to harassment on the basis of his perceived sexual orientation (homosexual) by various staff persons, supervisory personnel, and attorneys [Rec. 38, 179-185]. In May 1989 a coworker told appellant that there was a rumor circulating among the employer's personnel that appellant was homosexual [Rec. 341].

On the afternoon of October 23, 1991 appellant met with Earl Segal ("Segal"), the partner in charge of the legal assistant program, to request a change in office assignment 4/ or promotion to the legal assistant program [Rec. 145]. 5/ Appellant discussed with Segal a few incidents of harassment [Rec. 145].

During appellant's tenure one litigation support employee was promoted to the legal assistant program; a second litigation support employee was likewise promoted some time after appellant's termination [Rec. 41]. See McNeil, D.D.C. no. 93-0477 at 2 n. 2. (See Appendix B to this brief). See Uffelman v. Lone Star Steel Co., 863F.2d at 408 (instances of prior disparate treatment are relevant to a finding of pretext in the termination decision).

On October 24, 1991 appellant met with a member of the employer's management team, Malcolm Lassman ("Lassman"), and another partner, Dennis M. Race ("Race"), both of whom wanted to obtain a more detailed account of the harassment previously reported to Segal [Rec. 251-252]. Race and Lassman told appellant that they would investigate appellant's harassment complaint and look into appellant's request for promotion from the litigation support department to the legal assistant program [Rec. 259, 349].

On October 29, 1991 Race 6/, together with Robertson and personnel administrator Laurel Digweed ("Digweed"), met with appellant, and Race advised appellant that a decision had been reached to terminate appellant's employment [Rec. 138]. The employer's personnel records designate Race, Robertson, and Digweed as the three decisionmakers who terminated appellant's employment [Rec. 167]. Race told appellant that he had investigated appellant's complaint, that appellant's charges could not be substantiated, and that there appeared to be a lack of fit between appellant and other firm personnel [Rec. 138-139, 349].

Race also explained that he had discussed the matter with two (unidentified) consultants [Rec. 29]. (The employer later identified the consultants, in interrogatory responses filed with DHR, as an Employee Assistance Program counselor and a psychiatrist [Rec. 137]).

By its own written admissions, the employer acknowledges that it did not advise appellant, at the time of job dismissal, that his employment was being terminated because of the employer's concerns about appellant's mental health and stability, or that his employment difficulties were attributable, in the opinion of a psychiatrist, to an identifiable psychiatric symptom ("ideas of reference") [Rec. 74, 138-139].

At the termination meeting Race told appellant that he had investigated the possibility of transferring appellant to the legal assistant program but that the legal assistant administrator, Maggie Sinnott ("Sinnott"), and the legal assistant coordinator both stated that they could not work with appellant because they found him difficult to work with and were afraid of him [Rec. 349]. 7/

Race told appellant that he had learned during the course of his investigation that appellant ignored directions by fellow employees to correct his work product [Rec. 349, 454], and, by necessary implication, that the quality of appellant's work was adversely affected as a consequence. Race expressly told appellant that the quality of his work product had deteriorated over time [Rec. 277]. 8/

DHR determined that there was no credible evidence that the employer terminated appellant because of his sexual orientation or that appellant was harassed because of his sexual orientation [Rec. 19]. DHR determined that the employer's decision to terminate appellant was based on the employer's concerns about appellant's mental health [Rec. 19]. The employer's concerns, according to DHR, were prompted by the nature of the incidents that appellant communicated to the employer which he perceived as harassment 9/ and statements by appellant's supervisor and coworkers [Rec. 75] that they found appellant's behavior sometimes disruptive and frightening [Rec. 19].

DHR also found that the employer consulted a counselor and a psychiatrist because of the emotional and psychological nature of appellant's allegations and his coworkers' statements [Rec. 17]. The psychiatrist, identified by DHR as Gertrude R. Ticho, M.D. ("Dr. Ticho"), advised the employer that appellant's harassment complaint appeared to be the product of a psychiatric symptom, "ideas of reference," causing him to attach a negative meaning to trivial events, and cautioned that individuals in similar circumstances may become violent [Rec. 17].

DHR concluded that the employer's concern about appellant's mental health, based on the nature of the incidents appellant perceived as harassment and the advice of mental health professionals that appellant needed counseling and that according to a psychiatrist could engage in violent behavior, was sufficient grounds for the employer's action to terminate appellant [Rec. 7].

V. ARGUMENT

A. DHR's determination of no probable cause is arbitrary and capricious in that the agency's finding that (1.) appellant's performance evaluations were uniformly above-average or outstanding throughout his tenure combined with its finding that (2.) appellant believed, throughout his tenure, that he had been subjected to a continuing pattern of unlawful harassment do not lead rationally to the agency's determination that the employer's proffered reason for the termination (namely, that the nature of appellant's report of harassment to the employer prompted the employer to become reasonably concerned about appellant's mental stability and suitability for employment) was nonpretextual and worthy of credence.

While the precise standard for reviewing a determination of no probable cause has yet to be definitively established by the Court of Appeals, see Simpson v. District of Columbia Office of Human Rights, 597 A.2d 392, 406 (D.C. 1991), 10/ the Superior Court in the proceedings below adopted the standard advocated by appellant in Simpson: was the determination "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"? Id. [Sup. Ct. Rec. 35-36].

"The scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfr's. Ass'n. of U.S., Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983). "Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Id. 11/; accord, Bowman Transportation v. Arkansas-Best Freight System, 419 U.S. 281, 285 (1974) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)) (a reviewing court applying the arbitrary and capricious standard must determine whether the agency has articulated a "rational connection between the facts found and the choice made").

In the present matter DHR concluded that the employer's decision to terminate was based on concerns regarding appellant's mental health arising from the nature of the ten incidents appellant submitted that he perceived as harassment [Rec. 7], the details of which incidents are enumerated by DHR as findings of fact 4(a) through 4(j) [Rec. 12-16]. "That concern," concluded DHR, "coupled with advice of mental health professionals that [appellant] needed counseling and that according to one professional could engage in violent behavior, was sufficient grounds for [the employer's] action to terminate [appellant]" [Rec. 7].

A simple reconfiguration of DHR's findings of fact (supplemented by additional pertinent facts from the record) will amply show that DHR's determination of no probable cause is arbitrary and capricious: DHR's finding that appellant's performance evaluations (which rated his work product and conduct as an employee, including his ability to work with other personnel) were uniformly above-average or outstanding throughout his tenure [Finding of Fact 2] taken together with its finding that appellant believed, throughout his tenure, that he had been subjected to a continuing pattern of unlawful harassment [Finding of Fact 4(a) through 4(j)] do not lead rationally to the agency's determination that the employer's proffered reason for the termination (namely, that the nature of appellant's report of harassment to the employer prompted the employer to
become reasonably concerned about appellant's mental stability and suitability for employment) was nonpretextual and worthy of credence.

Indeed, assuming that the employer's proffered reason for the termination is worthy of credence--that the employer did believe that appellant's report that he had been harassed during the entire period of his employment was the product of a psychiatric symptom that rendered him potentially violent--requires the court to infer that it did not strike the employer as a tad askew that appellant was able to perform his job, without exception, in an above-average or outstanding manner notwithstanding his infirmity: and, more, that it did not become evident to the employer's management team that appellant was in fact potentially violent and not suitable for employment until about 3« years into his tenure, in late October 1991--and then, only days after appellant lodged a complaint of harassment against his supervisor, Robertson, and others; advised the employer that he was homosexual; and requested a job promotion.

The following factual analysis demonstrates not only that there is no "rational connection" between the facts found by DHR and the agency's no probable cause finding, as required by the arbitrary and capricious standard, but, additionally, provides persuasive circumstantial evidence that the employer's proffered explanation for the termination is "unworthy of credence," and therefore pretextual in nature. See State Farm, 463 U.S. at 43; Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1980).

1. Finding of Fact 4(a) reflects the determination that appellant had a perception that he was being harassed on about March 4, 1988 [Rec. 13] that was attributable, in the view of a psychiatrist, to a psychiatric symptom ("ideas of reference") that rendered him potentially violent [Rec. 17, 123]; further, the mental state to which the perception of harassment was attributable rendered appellant, in the employer's view, a negligence risk [Rec. 148] and not suitable for employment [Rec. 18].

As of March 4, 1988 appellant was employed by the firm in the capacity of an agency-supplied temporary legal assistant [Rec. 239].

2. Finding of Fact 4(b) reflects the determination that appellant had a perception that he was being harassed some time in May 1988 [Rec. 13] that was attributable, in the view of a psychiatrist, to a psychiatric symptom ("ideas of reference") that rendered him potentially violent [Rec. 17, 123]; further, the mental state to which the perception of harassment was attributable rendered appellant, in the employer's view, a negligence risk [Rec. 148] and not suitable for employment [Rec. 18].

As of May 1988 appellant was employed by the firm in the capacity of an agency-supplied temporary legal assistant [Rec. 239].

3. Finding of Fact 1 reflects that appellant was hired by the employer as a temporary legal assistant in June 1988 [Rec. 12] (specifically, June 13, 1988 [Rec. 239]).

4. Finding of Fact 4(c) reflects the determination that appellant had a perception that he was being harassed some time in mid-June 1988 [Rec. 13]) that was attributable, in the view of a psychiatrist, to a psychiatric symptom ("ideas of reference") that rendered him potentially violent [Rec. 17, 123]; further, the mental state to which the perception of harassment was attributable rendered appellant, in the employer's view, a negligence risk [Rec. 148] and not suitable for employment [Rec. 18].

5. Finding of Fact 2 reflects that appellant received an above-average or outstanding performance evaluation in the fall of 1988 for work quality and professional conduct in the previous six-month period [Rec. 12]). The employer failed to produce this performance evaluation [Rec. 149-165, 358], despite an express request by DHR to the employer for all of appellant's performance evaluations [Rec. 91-92].

6. Finding of Fact 4(d) reflects the determination that appellant had several perceptions that he was being harassed beginning in late March 1989 [Rec. 14] that were attributable, in the view of a psychiatrist, to a psychiatric symptom ("ideas of reference") that rendered him potentially violent [Rec. 17, 123]; further, the mental state to which the perception of harassment was attributable rendered appellant, in the employer's view, a negligence risk [Rec. 148] and not suitable for employment [Rec. 18].

The series of paranoid "ideas of reference" concerned another employee (Stacey Schaar) [Rec. 140] who, reportedly, was later terminated for gross misconduct, in about May 1990 [Rec. 360]. See Appendix A to this brief.

7. Finding of Fact 2 reflects that appellant received an above-average or outstanding performance evaluation in the spring of 1989 for work quality and professional conduct in the previous six-month period [Rec. 12]. The employer failed to produce this performance evaluation [Rec. 149-165, 358], despite an express request by DHR to the employer for all of appellant's performance evaluations [Rec. 91-92].

8. Finding of Fact 1 reflects that the employer hired appellant as a full-time employee with benefits on August 1, 1989 [Rec. 12].

9. Finding of Fact 2 reflects that appellant received an above-average or outstanding performance evaluation in the fall of 1989 for work quality and professional conduct in the previous six-month period [Rec. 12]. The employer failed to produce this performance evaluation [Rec. 149-165, 358], despite an express request by DHR to the employer for all of appellant's performance evaluations [Rec. 91-92].

The performance evaluation states in part, with specific reference to appellant's interpersonal skills: "[appellant] recently trained and supervised five temporary coders who were brought in to expedite the coding of some 200,000 pages of document production. In doing so, he inspired the group who were always eager to work and adopted [appellant's] own sense of commitment to the case" (Constance M. Brown, 11/6/89) [Rec. 310].

10. The employer proffered to DHR, in May 1992, the following description of appellant's mental status and ability to interact with co-workers, as of March 1990: "During his transition from a legal assistant position (paralegal) to his work with the litigation support department [in March 1990 [Rec. 132]], [appellant] had several discussions with his direct supervisor [Robertson] about problems with interacting with co-workers and occasional outbursts" [Rec. 139].

Presumably, according to the employer, appellant's conduct remained intermittently violent and disruptive for the remaining 19 months of his tenure. Appellant's personnel file does not include a record of any oral or written reprimands [Rec. 167].

11. Finding of Fact 4(e) reflects the determination that appellant had a perception that he was harassed--by appellant's direct supervisor, Robertson--on about March 30, 1990 [Rec. 14-15] that was attributable, in the view of a psychiatrist, to a psychiatric symptom ("ideas of reference") that rendered him potentially violent [Rec. 17, 123]; further, the mental state to which the perception of harassment was attributable rendered appellant, in the employer's view, a negligence risk [Rec. 148] and not suitable for employment [Rec. 18].

12. Finding of Fact 2 reflects that appellant received an above-average or outstanding performance evaluation in the Spring of 1990 for work quality and professional conduct in the previous six-month period [Rec. 12].

The performance evaluation dated June 11, 1990--prepared by Constance M. Brown and reviewed by Robertson--does not reflect any discussions with Robertson in March 1990 concerning problems with interacting with co-workers and occasional outbursts [Rec. 311-315], as alleged by the employer [Rec. 139].

13. Finding of Fact 4(j) reflects the determination that appellant had a perception that he was harassed some time in 1990 [Rec. 16] that was attributable, in the view of a psychiatrist, to a psychiatric symptom ("ideas of reference") that rendered him potentially violent [Rec. 17, 123]; further, the mental state to which the perception of harassment was attributable rendered appellant, in the employer's view, a negligence risk [Rec. 148] and not suitable for employment [Rec. 18].

14. Finding of Fact 2 reflects that appellant received an above-average or outstanding performance evaluation in the fall of 1990 for work quality and professional conduct in the previous six-month period [Rec. 12]. The employer failed to produce this performance evaluation [Rec. 149-165, 358], despite an express request by DHR to the employer for all of appellant's performance evaluations [Rec. 91-92].

15. Finding of Fact 4(f) reflects the determination that appellant had a perception that he was harassed--by appellant's direct supervisor, Robertson--some time in April 1991 [Rec. 13] that was attributable, in the view of a psychiatrist, to a psychiatric symptom ("ideas of reference") that rendered him potentially violent [Rec. 17, 123]; further, the mental state to which the perception of harassment was attributable rendered appellant, in the employer's view, a negligence risk [Rec. 148] and not suitable for employment [Rec. 18].

16. Finding of Fact 2 reflects that appellant received an above-average or outstanding performance evaluation in the spring of 1991 for work quality and professional conduct in the previous six-month period [Rec. 12].

The performance evaluation, prepared in May 1991 by Robertson [Rec. 321-325], contains the following comments: "[appellant] seems as close to the perfect employee as it is possible to get!" "He is reliable, hard-working and extremely responsible" [Rec. 325].

17. Finding of Fact 4(g) reflects the determination that appellant had a perception that he was harassed--by appellant's direct supervisor, Robertson--some time in the summer of 1991 [Rec. 15] that was attributable, in the view of a psychiatrist, to a psychiatric symptom ("ideas of reference") that rendered him potentially violent [Rec. 17, 123]; further, the mental state to which the perception of harassment was attributable rendered appellant, in the employer's view, a negligence risk [Rec. 148] and not suitable for employment [Rec. 18].

18. In July 1991 Robertson called a meeting of three of the black employees under her supervision, including a litigation support employee, Patricia A. McNeil ("McNeil"), and asked them if they thought she was prejudiced against blacks [Rec. 58]. Complaint for Damages at 12, McNeil v. Akin, Gump, Strauss, Hauer & Feld, no. 93-0477 (D.D.C., filed Mar. 5, 1993) [Rec. 58]. Robertson explained that her black male receptionist had accused her of being prejudiced against blacks and she wanted to know whether they shared that view [Rec. 58]. All three employees responded in the affirmative and provided her the reasons they felt that way, giving her examples of the way she treated blacks differently than whites [Rec. 58].

19. Finding of Fact 4(h) reflects the determination that appellant had a perception that he was harassed [Rec. 15-16] some time in about early August 1991 that was attributable, in the view of a psychiatrist, to a psychiatric symptom ("ideas of reference") that rendered him potentially violent [Rec. 17, 123]; further, the mental state to which the perception of harassment was attributable rendered appellant, in the employer's view, a negligence risk [Rec. 148] and not suitable for employment [Rec. 18].

20. Finding of Fact 4(i) reflects the determination that appellant had a perception that he was harassed on October 2, 1991 [Rec. 13] that was attributable, in the view of a psychiatrist, to a psychiatric symptom ("ideas of reference") that rendered him potentially violent [Rec. 17, 123]; further, the mental state to which the perception of harassment was attributable rendered appellant, in the employer's view, a negligence risk [Rec. 148] and not suitable for employment [Rec. 18].

21. Finding of Fact 4 reflects the determination that appellant met with attorney managers Segal (on October 23, 1991) and Race and Lassman (on October 24, 1991) to report incidents that he believed constituted unlawful harassment [Rec. 12-13]. Three of the reported incidents concerned appellant's direct supervisor, Robertson [Findings of Fact 4(e); 4(f); and 4(g)] [Rec. 14-15].

22. Segal admits that on the afternoon of October 23, 1991 he and Lassman discussed the possibility of promoting appellant from the litigation support department to the legal assistant program [Rec. 145].

23. On October 24, 1991 Robertson prepared a performance evaluation, which, unlike all prior performance evaluations, included statements critical of appellant's ability to interact with coworkers [Rec. 149-154]. The performance evaluation was not discussed with appellant (and so indicates [Rec. 154]), and is therefore invalid per the employer's own personnel policies [Rec. 150]. And on October 25, 1991 Robertson prepared a memorandum addressed to Race that discussed appellant's alleged difficulties in interacting with coworkers [Rec. 146-147].

The (invalid) performance evaluation prepared by Robertson on October 24, 1991 together with Robertson's memorandum to Race dated October 25, 1991 (in the period after appellant's complaint of harassment) constitute the only contemporaneous written documentation of record, prepared prior to the employer's decision to terminate, that appellant had difficulties interacting with coworkers.

24. On October 29, 1991 Race advised appellant that the employer had decided to terminate appellant's employment, effective immediately [Rec. 138-139]. The termination decision followed the employer's investigation of appellant's allegations of harassment, which investigation involved interviews with some of appellant's coworkers [Finding of Fact 5] [Rec. 17], presumably including black coworkers, in the litigation support department supervised by Robertson.

25. On April 9, 1992, McNeil, a black coworker in the firm's litigation support department supervised by Robertson, was summarily terminated following a disagreement with the firm's Personnel Administrator, Digweed [Rec. 59-60]. On March 5, 1993 McNeil filed a Complaint for Damages in the U.S. District Court for the District of Columbia pursuant to Title VII of the Civil Rights Act of 1964 for redress of injuries sustained as a result of the employer's unlawful conduct terminating her employment after 4« years because of her race. Complaint for Damages, McNeil, D.D.C. no. 93-0477 [Rec. 57-61]. McNeil's complaint alleged that Robertson engaged in a long-standing pattern or practice of racially offensive and discriminatory conduct, and that Robertson colluded with Digweed in terminating McNeil [Rec. 58-60].

On November 29, 1993 the U.S. District Court for the District of Columbia entered summary judgment for the employer, Akin Gump. McNeil, D.D.C. no. 93-0477. (See Appendix B to this brief). The court found that (1) Akin Gump's managers (specifically citing Digweed and the employer's managing partner, Hoffman) had no knowledge (or reason to know) that Robertson had engaged in racially offensive or discriminatory conduct toward black employees under her supervision, and that (2) Robertson had not colluded with Digweed in terminating McNeil. Id. at 7-9. The court found, however, that Robertson exhibited racial animus toward black employees under her supervision. Id. at 8.

The foregoing factual analysis makes abundantly clear that throughout the period June 13, 1988 through October 23, 1991 there is no contemporaneous documentation that supports the employer's proffered explanation for its decision to terminate appellant: namely, contemporaneous evidence that appellant had a long-standing history of conduct that was disruptive and frightening to coworkers, or that appellant's perception that he had been subjected to unlawful harassment could, credibly, be attributed--by knowledgeable and experienced attorney managers--to a psychiatric symptom that rendered him potentially violent, a negligence risk to the employer, and not suitable for employment.

In assessing the inferences to be drawn from the circumstances of the termination, the court must be alert to the fact that "[e]mployers are rarely so cooperative as to include a notation in the personnel file" that the firing is for a reason expressly forbidden by law. Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464-465 (2nd Cir. 1989) quoting Thornbrough v. Columbus & Greenville Railroad Co., 760 F.2d 633, 638 (5th Cir. 1985). Thus, the absence of direct or explicit evidence that a challenged personnel action was motivated by [appellant's membership in a protected class] is not fatal to [an employment discrimination claim]. Id. at 465. A showing that a proffered justification is pretextual is itself sufficient to support an inference that the employer intentionally discriminated. Id. at 465 citing Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1396 (3d Cir. 1984), cert. denied, 469 U.S. 1087 (1984). Further, [appellant] is not required to prove that the employer's proffered reasons are false but only that they were not the only reason and that [appellant's membership in a protected class] made a difference. Id. at 465 citing Hagelthorn v. Kennecott Corp., 710 F.2d 76, 82 (2d Cir. 1983); Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1042 (2d Cir. 1979); Pico v. Board of Education, Island Trees Union Free School District, 638 F.2d 404, 437 (2d Cir. 1980) (Newman, J., concurring in the result), aff'd, 457 U.S. 853 (1982).

In the present case, circumstantial evidence that the employer's proffered justification for the termination was pretextual centers on the fact that the only evidence (credible or otherwise) that supports the employer's personnel action emerged beginning on October 23, 1991, during the time period after appellant (1) lodged a complaint of harassment against his supervisor Robertson, and others; (2) advised the employer that he was homosexual; and (3) requested a job promotion.

It is highly probative of the employer's discriminatory motive and the pretextual nature of its proffered explanation for the termination, therefore, that the employer omitted, misrepresented, or improperly denied, in its sworn interrogatory responses to DHR, material facts relating to (1) appellant's complaint of harassment against Robertson; (2) the employer's knowledge of appellant's sexual orientation; and (3) appellant's request for promotion.

First, appellant's complaint of harassment comprised ten incidents [Finding of Fact 4(a) through 4(j)] [Rec. 12-16]. Three of the ten incidents involved Robertson [Findings of Fact 4(e), 4(f), and 4(g)] [Rec. 14-15]. The employer alleges that appellant's complaint was evidence of appellant's "paranoia" [Rec. 140] and not evidence of unlawful harassment [Rec. 136-137]. It is noteworthy, therefore, that in its own enumeration of the incidents the employer omits all reference to the three incidents relating to Robertson [Rec. 136]. Thus, the employer consistently omitted purportedly probative evidence of appellant's paranoia where that evidence concerned a supervisor known by certain of her employees to engage in a pattern of racially discriminatory and offensive behavior [Rec. 58], and who was later determined by a U.S. District Court to have exhibited racial animus in her dealings with those employees. See McNeil, D.D.C. no. 93-0477 at 8. (See Appendix B to this brief.)

In its own enumeration of appellant's harassment report, the employer lists only six incidents [Rec. 136]. The employer omitted the three incidents relating to Robertson and the one incident relating to Schaar, a legal assistant who was reportedly terminated for gross misconduct in about May 1990 [Rec. 360]; in all other respects the respective enumerations of the appellant [R. 13-16] and the employer correspond. (See Appendix A to this brief). Four of the 10 incidents (40%) involved one employee known by management to have engaged in serious misconduct (Schaar), and a supervisor (Robertson) later determined by a U.S. District Court to have exhibited racial animus. See McNeil, D.D.C. no. 93-0477 at 8. 12/ (See Appendix B to this brief).

The only evidence of record that supports the employer's decision to terminate emerged in the period after appellant complained about Robertson; and the employer omitted in its interrogatory responses all evidence that appellant had ever complained about Robertson [Rec. 135-140]. (See Appendix A to this brief.)

Second, the employer expressly and unequivocally denied to DHR that the subject of appellant's sexual orientation was ever brought up by appellant or anyone "involved directly or indirectly" with appellant's employment during the entire period of appellant's tenure [Rec. 139]; and that "[appellant] never complained of discrimination treatment based on sexual orientation" [Rec. 140]. DHR found, however, that appellant advised the employer of his sexual orientation on October 23, 1991 [Finding of Fact no. 7] [R. 17]. The only evidence of record that supports the employer's decision to terminate emerged in the period after appellant gave the employer notice of his sexual orientation, and the employer improperly denied to DHR that appellant had ever given notice of his sexual
orientation.

The employer's factual misrepresentation of its knowledge of appellant's membership in a protected class is a lie that taints the termination decision as pretextual, and leaves little doubt that the underlying reason for the termination was a forbidden one. See Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995) ("Pretext . . . means a lie, specifically a phony reason for some action."); cf. Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1124 (7th Cir. 1994) ("If the only reason an employer offers for firing an employee is a lie, the inference that the real reason was a forbidden one . . . may rationally be drawn.") quoting Shager v. Upjohn Co., 913 F.2d 398, 401 (7th Cir. 1990). Obviously, for the employer, appellant's sexual orientation "made a difference" in the termination decision, as evidenced by the employer's false assertion to DHR that the employer had no knowledge of appellant's sexual orientation even after October 23, 1991 [Rec. 139]. See Ramseur, 865 F.2d at 465. DHR's determination that the employer's actions were not pretextual [Rec. 7], insofar as that determination excuses the employer's act of improperly denying its knowledge of appellant's sexual orientation even after October 23, 1991 [Rec. 139]--a denial incontrovertibly at odds with DHR's own finding of fact [Finding of Fact no. 7] [R. 17]--is a "clear error of judgment" that renders the agency's action arbitrary and capricious. See Citizens to Preserve Overton Park v. Volpe 401 U.S. 402, 416 (1970) (to determine whether the choice made by the agency was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, the court must consider whether there has been a clear error of judgment).

Third, the employer, in its interrogatory responses [Rec. 73-76, 135-140], omits any reference to the fact that appellant, on October 23, 1991, requested a promotion to the legal assistant program, and that Segal and Lassman had, in fact--as admitted by Segal [Rec. 145]--considered a promotion. The only evidence of record that supports the employer's decision to terminate emerged in the period after appellant requested a promotion. And not only did the employer omit any reference to appellant's request for promotion in its interrogatory responses [Rec. 73-76, 135-140], but it improperly concealed its prior action of demoting appellant in March 1990, deceptively referring to the demotion only as a "transfer" [Rec. 135] or "transition" [Rec. 139]. See McNeil, D.D.C no. 03-0477 at 2 n. 2 (a transfer from Akin Gump's litigation support department to its legal assistant program is a promotion). (See Appendix B to this brief.) See Uffelman v. Lone Star Steel Co., 863 F.2d at 408 (instances of prior disparate treatment are relevant to a finding of pretext in the termination decision).

The employer's act of investigating a possible promotion of appellant in the period immediately prior to the termination [Rec. 145] (and its act of concealing that contemplated corrective action, in its pleadings to DHR [Rec. 73-76, 135-140]) taints the employer's proffered justification for the termination--that appellant was not suitable for employment by reason of mental instability--as pretextual. Cf. McNeil v. Economics Laboratory, Inc. 800 F.2d 111, 114 (7th Cir. 1986) (employer who immediately offered a terminated sales manager a commissioned sales position undermined its attempt to demonstrate that the employee had been fired for behavioral problems, rather than because of his age, thereby violating the Age Discrimination in Employment Act of 1967).

B. DHR's determination that the employer's proffered reason for the termination was nonpretextual and worthy of credence--given the employer's concerns regarding appellant's mental stability and suitability for employment, based on the statements of appellant's direct supervisor, co-workers [Finding of Fact no. 5], and the advice of mental health professionals--is arbitrary and capricious or otherwise not in accordance with law.

1. Appellant's supervisor (one of the three decisionmakers
who terminated appellant's employment) demonstrated
animus against appellant by engaging in several hostile
or offensive acts in the period after appellant
complained to the employer's attorney managers that
appellant had been subjected to sexual and religious
harassment by Robertson.

The employer's personnel records designate appellant's direct supervisor, Robertson, one of the three decision makers who terminated appellant's employment [Rec. 167].

"[E]vidence probative of the actual decisionmaker's motives is relevant" to prove pretext. See Lindsey v. Baxter Healthcare Corp., 757 F. Supp. 888, 896 (N.D. Ill. 1991); accord, Slade v. Billington, 700 F. Supp. 1134, 1142, 1149-1150 (D.D.C. 1988), aff'd, 871 F.2d 155 (D.C. Cir. 1989); Hardy v. Marriott Corp., 670 F. Supp. 385, 392-393 (D.D.C. 1987).

Robertson engaged in several acts of retaliation against appellant in the period after appellant lodged a complaint of harassment against Robertson, on sexual and religious grounds, to the employer's attorney managers. Evidence of Robertson's retaliatory animus is relevant to the issue of pretext. 13/ See Lindsey, 757 F. Supp. at 896.

A prima facie case of retaliation under the Act, D.C. Code Ann. 1-2525, is established by evidence that the employee was engaged in a protected activity and that the employee suffered adverse personnel action as a consequence. Goos v. National Ass'n of Realtors, 715 F.Supp. 2, 3 (D.D.C. 1989). Any adverse personnel action in opposition to an activity protected under the Act may constitute retaliation. D.C. Code Ann. 1-2525 (Repl. Vol. 1992); Ravinskas v. Karalekas, 741 F. Supp. 978, 979-980 (D.D.C. 1990) (retaliation may consist of acts of opposition to various activities and is not limited to actions provoked by filing a complaint with DHR).

Appellant's meetings with the employer's attorney managers on October 23 and October 24, 1991 to lodge a harassment complaint against various employees, including Robertson, was a protected activity under the Act. See Ravinskas v. Karalekas, 741 F. Supp. at 979-980; Goos v. National Ass'n of Realtors, 715 F. Supp. at 3.

The record includes documentary evidence of two adverse personnel actions against appellant immediately following his complaint of harassment, comprising (1) a performance evaluation prepared by Robertson dated October 24, 1991 [Rec. 149-154] and (2) a memorandum by Robertson to Race dated October 25, 1991 [Rec. 146-147].

The performance evaluation dated October 24, 1991, unlike all previous performance evaluations issued to appellant, contains comments critical of appellant's ability to interact with coworkers [Rec. 149-154]. None of the performance evaluations issued prior to October 24, 1991 indicated in any manner that appellant had difficulties in interacting with coworkers [Rec. 290-325]. The performance evaluation was not discussed with appellant (and so indicates [Rec. 154]), contrary to the employer's written policy [Rec. 150], and is therefore invalid on its face. Robertson prepared the performance evaluation the day after appellant's initial report of harassment to Segal, on the afternoon of October 23, 1991 [Rec. 145], and on the very day of appellant's official complaint of harassment to Race and Lassman, which took place at the start of the business day on October 24, 1991 [Rec. 23, 149-154].

Robertson's action in preparing a performance evaluation (1) immediately after appellant had lodged a harassment complaint against her (and others) on sexual and religious grounds, (2) that was per se invalid per the employer's written policy, and (3) that contained false comments about appellant's ability to work with others raises a presumption that the performance evaluation was prepared as an act of retaliation in opposition to appellant's protected activity of complaining of harassment. The preparation of the per se invalid performance evaluation on the day appellant reported to the employer incidents of harassment satisfies the elements of a prima facie retaliation case, and is, moreover, probative of Robertson's discriminatory animus against appellant and the pretextual nature of decisionmaker Robertson's action in terminating appellant's employment. See Lindsey, 757 F. Supp. at 896.

Additional evidence of retaliation is presented by a memorandum written by Robertson to Race dated October 25, 1991--one day after appellant reported incidents of sexual and religious harassment, concerning Robertson, to the employer--in which Robertson states her concerns regarding appellant's fitness as an employee [Rec. 146-147]. The memo's content, which includes numerous factual distortions, contradicted by the employer's own business records [Rec. 356-359], including the egregiously false accusation that Robertson had assigned appellant to a private office because of difficulties he allegedly had with coworkers [Rec. 369-370]--coupled with the timing of the memo--satisfies a prima facie retaliation case, and, again, is probative of Robertson's discriminatory animus against appellant and the pretextual nature of decisionmaker Robertson's action in terminating appellant's employment. See Lindsey, 757 F. Supp. at 896.

So specious were the retaliatory accusations made by Robertson to Race concerning appellant's fitness as an employee that when the employer was called upon, in a supplemental interrogatory posed by DHR [Rec. 124], to clarify the factual basis of its earlier statement to DHR that appellant was "hard to supervise" [Rec. 148], the employer was forced to fall back on a generalized restatement of the employer's factually unsupported assertions contained in its earlier pleadings, offering no new facts, but instead quoting verbatim a portion of its previous interrogatory response [Rec. 124].

The record also reflects that in the period immediately after the termination Robertson advised her employees that she had arranged to have the lock to her department's office suite changed for fear that appellant might return to the office with the intent to kill Robertson [Rec. 41] (presumably, in Robertson's view, in retaliation for Robertson's action in terminating appellant's employment). Robertson's reported statement imputing homicidal intent to appellant [Rec. 41] had no basis in Robertson's prior dealings with appellant [Rec. 146-147, 311-325, 457-462] and appellant's disciplinary record [Rec. 167] and is, therefore, defamatory, hostile, offensive, and probative of Robertson's discriminatory animus against appellant and the pretextual nature of decisionmaker Robertson's action in terminating appellant's employment. See Lindsey, 757 F. Supp. at 896.

2. The generalized accusations of coworkers and appellant's
supervisor made in the period after appellant's
complaint of harassment to the employer's attorney
managers [Finding of Fact no. 5] are controverted by
appellant's personnel record, which personnel record was
in the custody of the employer's personnel administrator
(one of the three decisionmakers who terminated
appellant's employment).

DHR found the employer investigated appellant's allegations, interviewing his supervisor, Robertson, and some of his coworkers [Finding of Fact no. 5] [Rec. 17]. DHR found that the responders to the interviews indicated that appellant was uncomfortable with his coworkers, and that his behavior was sometimes disruptive and frightening to his coworkers [Finding of Fact no. 5] [Rec. 17].

Though an agency's finding may be supported by substantial evidence, it may nonetheless reflect arbitrary and capricious action; "[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Bowman Transportation v. Arkansas-Best Freight System, 419 U.S. at 284 n. 2 quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

In the present case several factors militate against the weight of evidence derived from the employer's interviews of appellant's supervisor and coworkers, all of which evidence concerning appellant's conduct as an employee and ability to interact with coworkers emerged in the period after appellant's complaint of harassment against those very employees.

It is recognized that in a hostile work environment case, a harassment complaint will more likely than not yield diametrically opposed statements from the complaining employee and the alleged offending supervisor and coworkers. See, e.g., Jeppsen v. Wunnicke, 611 F. Supp. 78, 82 (D.C. Alaska 1985). That the employer's attorney managers could have uncritically accepted coworker statements about appellant's past behavior as genuine and unbiased is not worthy of credence in a situation in which the record also reflects that:

---without exception, appellant's performance evaluations
prepared prior to the harassment complaint specifically
rated appellant's ability to work with others at least
average or above average [Rec. 295, 305, 308, 312-313,
317-318, 322-323];

---the performance evaluation prepared in May 1991 (five
months before the termination) includes a notation by
Robertson that appellant was a "team player" [Rec. 323];
and an earlier evaluation prepared in November 1989
describes appellant as having "inspired" his coworkers
[Rec. 310];

---those performance evaluations prepared prior to
appellant's harassment complaint (which, it will be
recalled, consistently rated appellant's fitness as an
employee above-average or outstanding [Finding of Fact
no. 2] [Rec. 12]), memorialize no contemporaneous
concerns about "frightening" or "disruptive" behavior
[Rec. 290-325]; and

---appellant's personnel file includes no record of any
reprimands, oral or written [Rec. 132, 167], despite
what was (according to Robertson's report to firm
management following appellant's harassment
complaint 14/) appellant's history of occasional
outbursts, reportedly violent at times [Rec. 139-140],
extending from at least March 1990 (when appellant was
assigned to Robertson's department [Rec. 132]) until his
termination--19 months later!--in late October 1991.

It bears noting that appellant's performance evaluations (which memorialize appellant's employment history including his conduct as an employee and ability to work with others) together with appellant's personnel file (which, in appellant's case, would reveal that he had no history of reprimands) were in the custody of the firm's personnel department, headed by Digweed, one of the three decisionmakers who terminated appellant's employment [Rec. 167]. Thus, all of the evidence derived from appellant's performance evaluations and personnel file (employee discipline record) that "fairly detracts" from the weight of DHR's finding that appellant's coworkers and direct supervisor found appellant's behavior "frightening" and "disruptive" (as reported in the period after appellant's harassment complaint) was in the custody of decisionmaker Digweed, who, therefore, had at least constructive knowledge of prior recorded evidence that failed to support coworkers' allegations. 15/ See Bowman Transportation v. Arkansas-Best Freight System, 419 U.S. at 284. That the decisionmakers, including Digweed, could have found Robertson's and coworkers' allegations about appellant's prior conduct genuine and unbiased is not worthy of credence, and therefore Digweed's (and the other decisionmakers') termination decision based on those interview responses carries the taint of pretext. 16/ See Burdine, 450 U.S. 248 at 256.

It is further observed that despite the employer's assertion that appellant's conduct was disruptive and occasionally violent, giving rise to reasonable concerns
regarding appellant's mental health and fitness as an employee, the employer does not cite a single, specific instance of disruptive or violent behavior.

The employer did not identify any of the coworkers who were interviewed [Rec. 17, 75]. In response to a specific information request posed by DHR, the employer explained that it did not take any written statements from any coworkers [Rec. 75]. The employer also did not identify any specific acts committed by appellant that allegedly aroused the fear of coworkers [Rec. 17]. Generalized accusations that an employee has engaged in misconduct--such as a vague accusation that the employee's behavior was disruptive and frightening--in the absence of specific facts relating to the acts complained of, are not supported by substantial evidence. Cf. McCaskill v. D.C. Dept. of Empl. Services, 572 A.2d 443, 446 (D.C. 1990) (a finding that an employee has violated company policy, by itself, is not enough to sustain a conclusion that the employee was fired for misconduct). The one arguably specific (and false) reference to disruptive behavior--that appellant used to tell coworkers to "shut up"--is contained in the retaliatory memo dated October 25, 1991, prepared by Robertson [Rec. 146-147]. It is noted, incidentally, that it was the two employees who occupied workspace adjacent to appellant, in the months prior to the termination, Sherri Ann Patrick [Rec. 249] and Lutheria Harrison [Rec. 15-16], who were later rewarded--for whatever reason--with promotions [Rec. 41]. See McNeil, D.D.C. no. 93-0477 at 2 n. 2. (See Appendix B to this brief).

3. The employer's allegation that it consulted two mental
health professionals, including a psychiatrist, is
controverted by the written denials of the mental health
professionals themselves.

DHR's finding that statements and input from consulting mental health professionals contributed to the employer's concerns regarding appellant's mental health and stability (including the concern that appellant was potentially violent), thereby providing a factual basis for the employer's decision to terminate, is not in accordance with law and reflects a "clear error of judgment." See Citizens to Preserve Overton Park v. Volpe, 401 U.S. at 416.

The employer had alleged to DHR that as part of its investigation of appellant's complaint of harassment it had contacted an unnamed counselor from its Employee Assistance Program who "confirmed that removal from the work setting was the appropriate action to take" with respect to appellant [Rec. 122]. In response to a specific information request posed by DHR, Race was unable to state the identity of the Sheppard Pratt counselor with whom he consulted [Rec. 122].

In rebuttal, appellant submitted to DHR a letter dated July 14, 1993 issued by the Director of Washington Operations of Sheppard Pratt Preferred Resources, the employer's Employee Assistance Program Provider, stating that that mental health resource had no record of any communication with either Race or Lassman, the two attorney managers to whom appellant made his harassment complaint on October 24, 1991 [Rec. 63-64]. Sheppard Pratt policy mandates that its counselors prepare a written record--on an Employer Consultation Intake Form--of any communications with employers concerning a potential employee-client and that the record be maintained in a file of mental health information [Rec. 65]; this policy applies even in instances in which the consultation with the employer is not "employee-specific" [R. 65]. The providing of a representation of the kind that the employer claims to have sought 17/ and obtained from an unnamed Sheppard Pratt counselor regarding appellant's suitability for continued employment is not consistent with Sheppard Pratt policy [Rec. 63, 64].

Sheppard Pratt serves as a counseling service that works with the employee and employer to help remediate employment difficulties; Sheppard Pratt does not "confirm" the summary removal of an employee from the work setting [Rec. 63-64], as alleged by the employer [Rec. 122].

DHR accorded no weight to the competent and persuasive documentary rebuttal evidence offered by appellant regarding Sheppard Pratt business policies, which effectively controverted the employer's "production" [Rec. 8]. DHR simply affirmed its initial finding that the consultation, as alleged by the employer, had occurred [Rec. 7-8].

The quantum of documentary evidence that appellant submitted to DHR that controverted the employer's "production" outweighs the quantum of evidence offered by the employer that it had obtained input from Sheppard Pratt. Accordingly, DHR's finding of fact amounts to no more than an impermissible "reiteration of the evidence" offered by the employer in its interrogatory response. See Rosexpress, Inc. v. District of Columbia Department of Employment Services, 602 A.2d 659, 662 (D.C. 1992) (a reiteration of the evidence is not a finding of fact).

The employer had also alleged to DHR that as part of its investigation of appellant's complaint of harassment it had contacted a psychiatrist, later identified by DHR as Dr. Ticho, who purportedly advised the employer that appellant's harassment complaint appeared to be attributable to a psychiatric symptom, "ideas of reference," causing him to attach a negative meaning to trivial events, and that individuals in similar circumstances may become violent [Rec. 17, 137]. The employer alleges that Race and Lassman consulted with Dr. Ticho by conference call [Rec. 122-123].

In rebuttal, appellant submitted to DHR a letter dated July 4, 1993, handwritten and signed by Dr. Ticho, on her letterhead, stating, in response to appellant's inquiry, that she had never spoken with Race and had not seen appellant for a diagnostic psychiatric evaluation [Rec. 62].

DHR accorded no evidentiary weight to the written denial issued by Dr. Ticho, dated July 4, 1993 [Rec. 8]. DHR questioned the letter's authenticity and found that the letter did not present new evidence that would preclude the possibility of a discussion between Dr. Ticho and another of the employer's personnel whereby appellant's case was presented and discussed without the mentioning of appellant's name [Rec. 8].

First, DHR's concern regarding the letter's authenticity lacks merit. Circumstantial evidence is sufficient to authenticate a letter. Namerdy v. Generalcar, 217 A.2d 109, 111-112 (D.C. 1966). Here, the fact that the letter is written on the author's letterhead is such circumstantial evidence. Id. Moreover, this Court recognizes that administrative agencies must apply "generous principles of admissibility." Kopff v. District of Columbia ABC Bd., 381 A.2d 1372, 1385 (D.C. 1977), aff'd, 413 A.2d 152 (1980).

Second, DHR's speculation that someone other than Race may have consulted Dr. Ticho [Rec. 8] is arbitrary and capricious in that it reflects a "clear error of judgment." See Citizens to Preserve Overton Park v. Volpe, 401 U.S. at 416. The employer expressly states that it was Race and Lassman, and no other persons, who consulted Dr. Ticho by conference call [Rec. 122-123]. And Dr. Ticho expressly denies having spoken to Race [Rec. 62] 18/.

Again, the quantum of documentary evidence that appellant submitted to DHR--here, an express denial by Dr. Ticho herself that she had consulted Race [Rec. 62]--outweighs the quantum of evidence offered by the employer to DHR in two interrogatory responses that Race (and Lassman) had consulted Dr. Ticho [Rec. 122-123, 137]. DHR's finding of fact, really an offer of plausible alternative interpretations of Dr. Ticho's letter, amounts to no more than clearly erroneous speculation that improperly reiterates the rebutted evidence offered by the employer and reflects a "clear error of judgment" that renders DHR's no probable cause determination arbitrary and capricious. See Rosexpress, Inc. v. District of Columbia Department of Employment Services, 602 A.2d at 662; Citizens to Preserve Overton Park v. Volpe, 401 U.S. at 416.

Assuming that Lassman and Race in fact consulted Dr. Ticho, it is questionable whether two experienced attorneys such as Lassman and Race, knowledgeable about the factors that might detract from the weight of a professional opinion, could credibly have believed that a complaint of harassment by an employee--with no preexisting record of prior behavioral problems--could be attributed to a psychiatric symptom associated with a risk of violence that rendered the employee not suitable for employment: and then, simply on the basis of a brief telephone conversation with a psychiatrist who never examined the employee personally.

Recognizing the questionable reliability of psychiatric opinions offered without benefit of personal examination, the principles of ethics of the American Psychiatric Association ("APA") state that "it is unethical for a psychiatrist to offer a professional opinion about [a] specific individual unless he/she has conducted an examination and has been granted proper authorization for such a statement." See THE PRINCIPLES OF MEDICAL ETHICS (WITH ANNOTATIONS ESPECIALLY APPLICABLE TO PSYCHIATRY) 9 (Washington, DC: APA 1995) [hereinafter cited as PRINCIPLES]. The APA's Ethics Committee "cautions against drawing clinical conclusions based upon information gleaned outside the clinical setting." OPINIONS OF THE ETHICS COMMITTEE ON THE PRINCIPLES OF MEDICAL ETHICS WITH ANNOTATIONS ESPECIALLY APPLICABLE TO PSYCHIATRY 58 (Washington, DC: APA 1995) [hereinafter cited as OPINIONS].

Appellant was not personally examined by Dr. Ticho 19/ [Rec. 62, 122-123], and the employer does not allege, and DHR did not find, that Dr. Ticho based her professional opinion on a review of appellant's medical records, which would be ethically acceptable per Section 7, Annotation 3 of the PRINCIPLES. See OPINIONS at 57.

A professional opinion made by a psychiatrist about a specific individual without benefit of a personal examination, or not based on a review of medical records or other unbiased or complete information, is deemed unreliable by the APA, as evidenced by the above-referenced annotations and opinions of the APA's Ethics Committee.

Whether or not the employer's attorney managers were aware of the APA's position concerning psychiatric opinions offered without benefit of personal examination, DHR's finding that the employer's attorney managers--skilled in the art of impeachment of expert witnesses and therefore sensitive to the limiting circumstances that can bias an expert professional opinion--could have reasonably concluded, on the basis of the employer's restricted consultation with Dr. Ticho, that appellant's complaint of harassment was attributable to a psychiatric symptom associated with a risk of violence that rendered appellant not suitable for employment is simply "unworthy of credence." See Burdine, 450 U.S. at 256.

C. DHR's no probable cause determination was arbitrary and capricious in that a finding that the employer had a concern for appellant's mental health and stability (based partly on the advice of mental health professionals that appellant needed counseling, and that according to a psychiatrist could engage in violent behavior) does not lead rationally to a conclusion that that concern prompted or justified the employer's decision to terminate appellant since appellant was a beneficiary of the employer's long-term disability income plan under which he qualified for long-term medical leave under the employer's established leave policy.

The term "ideas of reference," employed in Finding of Fact no. 6 [R. 17], is a psychiatric term of art, which is defined as "the assumption by a patient that the words and actions of others refer to himself or the projection of the causes of his own imaginary difficulties upon someone else; called also delusion of reference." DORLAND'S MEDICAL DICTIONARY 814 (27th ed. 1988). "Ideas of reference" are prominent in the severe (psychotic) mental disorders. R. NOLL, THE ENCYCLOPEDIA OF SCHIZOPHRENIA & THE PSYCHOTIC DISORDERS 169 (New York: Facts on File 1992). "[Ideas of reference are] [o]ne of the most common symptoms of the psychotic disorders. It is an idea that certain events or people in a person's immediate environment have a magical 'special meaning' for that person. For example, a song heard on the radio may be interpreted by a psychotic person as having been specifically played at that time to convey a special meaning to him or her." Id. at 169.

Thus, Finding of Fact no. 6 sets forth the conclusions of a psychiatrist regarding appellant's mental health and potential for violence, and employs the clinical terminology ("ideas of reference") appropriate to the description of a mental disorder. DHR also found that the employer recommended that appellant seek counseling [Rec. 17], that appellant's [pathological] hypersensitivity to his work environment prompted the employer's concerns about his mental health and ability to interact with coworkers [Rec. 19], that appellant regularly consulted mental health professionals [Finding of Fact no. 3] [R. 12], and implicitly affirmed the genuineness of the employer's alleged concern that appellant's continued presence on the employer's premises posed a negligence risk for the employer [Rec. 148].

DHR's various findings relating to the employer's concerns about appellant's mental health and stability do not, however, lead rationally to the agency's determination that the employer's concerns about appellant's mental health provided grounds for the employer's action to terminate [Rec. 7]. See State Farm, 463 U.S. at 43 (under the arbitrary and capricious standard the agency must be found to have articulated a rational connection between the facts found and the choice made).

At the time of his termination on October 29, 1991 appellant was a beneficiary of the employer's Long Term Disability Income Plan ("Plan") [Rec. 29, 42-56], underwritten by UNUM Life Insurance Company of America [Rec. 42]. The Plan provides a monthly benefit to the beneficiary-employee who is unable to perform each of the material duties of his regular occupation [Rec. 48] due to sickness or injury [Rec. 49] and who requires the regular attendance of a physician [Rec. 49]. The Plan does not exclude coverage for disability due to mental illness [Rec. 51].

The Plan does require, however, that the beneficiary-employee submit written notice of claim within 30 days of the date disability starts [Rec. 53].

Even assuming the employer had genuine concerns regarding appellant's mental stability and potential for violence [Rec. 123]--and the potential for tort liability [Rec. 148] arising out of appellant's risk of violence--the alleged business necessity for the employer's termination decision is a mere pretext for discrimination since the employer failed to utilize an available, alternative, less discriminatory means of achieving its business purpose. Cf. Zuniga v. Kleberg County Hosp., Kingsville, Tex., 692 F.2d 986, 992 (5th Cir. 1982). 20/ The employer could have avoided terminating appellant's employment while protecting itself and firm personnel by granting appellant a leave of absence in accordance with its own established long-term leave policy. Cf. Zuniga, 692 F.2d at 992.

DHR did not articulate a "rational connection" between the agency's findings that, on the one hand, (1) the employer determined (in consultation with mental health professionals, including a physician-psychiatrist) that appellant needed counseling [Rec. 19] and that (2) appellant consulted "regularly" with mental health counselors, psychologists and physician-psychiatrists [Finding of Fact no. 3] [Rec. 12] and, on the other, DHR's determination that the employer had a valid, nondiscriminatory reason for the termination. Rather, applying Zuniga, these findings simply support appellant's eligibility for a claim under the employer's long-term disability income Plan, which mandates that the beneficiary-employee require the "regular" attendance of a physician [Rec. 49]. See State Farm, 463 U.S. at 43.

Race stated the following business necessity for appellant's termination: "on the basis of disruptive work habits, unusual behavior and discussions with outside [mental health] consultants [including a physician-psychiatrist, who attributed appellant's complaint of harassment to an identifiable psychiatric symptom ("ideas
of reference") that may be associated with a risk of violent behavior], I believe that termination is warranted.

Indeed, to do otherwise may prove to be negligent" [Rec. 148]. The employer could have used alternative means to accomplish the same purpose. Cf. Zuniga, 692 F.2d at 992. Instead of terminating appellant, the employer could have granted a medical leave to appellant consistent with the employer's formal policy permitting leave of absence for reasons of medical disability, as evidenced by the employer's participation in a group Long Term Disability Income Plan [Rec. 42-56]. Cf. Zuniga, 692 F.2d at 992.

Because the employer failed to utilize an alternative, less discriminatory means of preventing harm to incumbent employees posed by an allegedly paranoid [Rec. 140], potentially violent and mentally disturbed employee [Rec. 123], the firm's asserted business purpose stands revealed as pretext, and its business necessity defense must fail. Cf. Zuniga, 692 F.2d at 994. Appellant's termination, and the resultant controversy, could easily have been avoided by the simple expedient of treating appellant no different from all the other employees eligible under the employer's long term disability leave policy. Cf. Zuniga, 692 F.2d at 994.

It is observed, additionally, that the employer effectively precluded appellant from filing a notice of claim under the Plan, which requires that notice be filed within 30 days of onset of disability [Rec. 53]. The employer failed to advise appellant at the termination meeting on October 29, 1991 of his rights under the Plan [Rec. 29] or provide sufficient facts concerning the emotional or psychological reasons for the termination to alert appellant to file a timely claim [Rec. 74, 138-139].

The employer, in its sworn interrogatory responses to DHR [Rec. 123, 138-139], admits that it did not advise appellant at the termination meeting that the termination decision was supported by consultations with two mental health professionals, including a physician-psychiatrist, or that, in the psychiatrist's opinion, appellant's complaint of harassment was attributable to a psychiatric symptom ("ideas of reference") that might be associated with a risk of violent behavior [Rec. 123], which rendered appellant "not suitable for employment" [Rec. 18]. 21/

The employer, in effect, admits that it failed to make information available timely to appellant that was reasonably necessary for appellant to file a valid claim for benefits consistent with the terms of the Plan [Rec. 49].

It was not until December 1992 (more than one year after appellant's
termination on October 29, 1991), upon appellant's receipt of the employer's Response to Interrogatories and Document Request [Rec. 87] filed by the employer with DHR, that appellant was apprised that the employer's termination decision was motivated by the employer's concerns about appellant's mental health and stability, and that the termination decision was supported by the employer's consultation with a physician-psychiatrist [Rec. 30]. Even if appellant had retained insurance coverage by converting to an individual plan under COBRA immediately following the termination on October 29, 1991, the incomplete facts provided at the termination meeting concerning the reasons for the termination [Rec. 123, 138-139] would have been insufficient to alert appellant to file a timely disability claim by November 29, 1991, within the Plan's 30-day notice-of-onset-of-disability requirement [Rec. 30]. 22/

VI. CONCLUSION

Based on the foregoing, this Honorable Court should grant appellant's request that the order of the Superior Court affirming the no probable cause finding of the Department of Human Rights be reversed.

Respectfully submitted,

GARY FREEDMAN pro se
3801 Connecticut Avenue, NW
Apt. 136
Washington, DC 20008-4530
(202) 362-7064 or
363-3800


CERTIFICATE OF SERVICE

I certify that copies of this brief were served on the D.C. Court of Appeals, clerk's office, and hand-delivered on May 12, 1997 to:

Charles L. Reischel, Esq.
Deputy Corporation Counsel
441 4th Street, NW, 6th Floor
Washington, DC 20001
(202) 727-6252

GARY FREEDMAN pro se

FOOTNOTES

1/ A concealed error in the employer's pleadings obscures the fact that the employer upgraded appellant's employment status in August 1989 from temporary to full-time legal assistant despite the fact that Eastern Airlines, the major client to which he had originally been assigned, had filed for bankruptcy protection. The employer states: "Later, [on August 1, 1989 [Rec. 144]] Claimant was employed as a full-time legal assistant ('paralegal') to manage massive amounts of documents for a major client. . . . Shortly thereafter [on March 9, 1989], the client filed for bankruptcy protection and eventually the legal work diminished" [Rec. 135]. See Salpukas, Eastern Requests Bankrupt Status to Cut Strike Loss, N.Y. Times, Mar. 10, 1989, at 1, col. 1 (reporting Eastern bankruptcy filing on Mar. 9, 1989).

2/ The employer conceals the discriminatory nature of appellant's unjustified demotion in March 1990 by characterizing the job downgrade only as a "transfer" [Rec. 135] or "transition" [Rec. 139]. The U.S. District Court for the District of Columbia has expressly found, however, that a move from the employer's litigation support department to its legal assistant program constitutes a promotion. McNeil v. Akin, Gump, Strauss, Hauer & Feld, no. 93-0477 (memorandum opinion and order granting defendant's motion for summary judgment) (D.D.C., Nov. 29, 1993) at 2 n. 2. (See Appendix B to this brief.) Appellant's reverse transfer in March 1990--from the legal assistant program to the litigation support department--was, therefore, according to McNeil, a demotion--disguised by the employer's disingenuous construction as a nondiscriminatory "transfer" or "transition." Evidence of prior instances of disparate treatment of appellant by the employer in other contexts is probative of pretext in the termination decision. See, e.g., Uffelman v. Lone Star Steel Co., 863 F.2d 404, 408 (5th Cir. 1989), cert. denied, 490 U.S. 1098 (1989) (instances of prior disparate treatment of plaintiff in disciplinary matters evidences the employer's discriminatory intent, under the Age Discrimination in Employment Act of 1967, in the plaintiff's selection for termination in a reduction of forces).

3/ One coworker in the litigation support department (who had originally been hired as a data entry operator [Rec. 58], and initially worked part-time) was later promoted, within the litigation support department, to the position of "project leader" in charge of overseeing a large pro bono discrimination case. See McNeil, D.D.C. no. 93-0477 at 1-2. (See Appendix B to this brief). See Uffelman v. Lone Star Steel Co., 863 F.2d at 408 (instances of prior disparate treatment are relevant to a finding of pretext in the termination decision).

4/ The employer admits that the level of professional conduct in the litigation support department, from which appellant sought transfer, was less than optimal [Rec. 59]. See McNeil, D.D.C. no. 93-0477 at 2-3. (See Appendix B to this brief). Reportedly, abuse of telephone privileges and other unprofessional and disruptive conduct in the litigation support department, by employees other than appellant, was a concern to the employer's managers [Rec. 59]. See McNeil, D.D.C. no. 93-0477 at 2-3. (See Appendix B to this brief). On one occasion a disciplinary matter arising out of a disruptive dispute between two employees in the litigation support department was brought to the attention of the employer's managing partner, Laurence J. Hoffman ("Hoffman"), some time after appellant's termination. McNeil, D.D.C. no. 93-0477 at 3. (See Appendix B to this brief). Appellant's concerns about disruptive behavior by coworkers--acknowledged by the employer's managers to be a problem [Rec. 59]--and his reasonable request for private (and therefore quiet) workspace [Rec. 145] was characterized by the employer to DHR as an unreasonable "demand for isolation" [Rec. 13].

5/ The employer omits from its description of the events surrounding the termination any reference to the fact that in the days immediately prior to the termination, after appellant's complaint of harassment, Segal had investigated the possibility of promoting appellant to the firm's legal assistant program [Rec. 135-140]. Segal admits having investigated a promotion, however [Rec. 145]; Segal states that he met with the legal assistant administrative staff and Malcolm Lassman, the member of the firm's management committee who reports to the committee on matters concerning legal assistants, immediately after Segal met with appellant, on the afternoon of October 23, 1991 [Rec. 145].

6/ At the time of appellant's job dismissal, Race served as the employer's hiring partner [Rec. 350]. Appellant is a law school graduate [Rec. 139], and is licensed to practice in Pennsylvania [Rec. 177]. He holds a graduate degree in international law [Rec. 142], which happens to be a major practice area of the employer [Rec. 350]. In 1985, a previous hiring partner advised appellant, in a written reply to appellant's job inquiry, that appellant possessed the credentials to practice law at the firm, and "reluctantly" declined to schedule an interview with appellant [Rec. 354]. During appellant's tenure one agency-supplied temporary employee, who, like appellant, was initially assigned to document production tasks for the client Eastern Airlines, was later promoted to law clerk, and one legal assistant was promoted to associate [Rec. 352]. Notwithstanding his above-average job performance and his exemplary professional credentials, appellant was terminated by the employer's hiring partner, Race, without cause, only days after he requested that the employer rectify its prior discriminatory demotion (see note 2 supra) by transferring him back to the legal assistant program [Rec. 145], and after having lodged a complaint with the employer that he had been subjected to unlawful harassment [Rec. 249-259]. These facts provide additional evidence of prior instances of disparate treatment of appellant by the employer in other contexts that is probative of pretext in the termination decision. See Uffelman v. Lone Star Steel Co., 863 F.2d at 408.

7/ In its interrogatory responses to DHR [Rec. 122-125, 135-140] the employer fails to refer to Race's investigation of a job promotion (but cf. note 5 supra), and fails to indicate that the "former supervisor" referred to by Race [Rec. 124, 137]--who reportedly advised Race that she found appellant difficult to work with and supervise--was none other than Sinnott, the legal assistant administrator [Rec. 240]. Race fails to mention that Sinnott's negative statements about appellant arose in the context of an inquiry by Race into promoting appellant to the legal assistant program [Rec. 349]. Appellant's assertion that Race advised appellant that Sinnott said she had found appellant difficult to work with--at the time of Race's investigation of a job promotion to the legal assistant program [Rec. 349]--is contained in a document that appellant submitted to DHR in late November or early December 1991 [Rec. 334], prior to DHR's discretionary decision to institute the complaint, dated February 4, 1992 [Rec. 170]. Appellant's assertion that Race investigated the possibility of promoting appellant to the legal assistant program, though uncorroborated, is linked to appellant's recital of Sinnott's reported negative statements about appellant [Rec. 349], which statements were against appellant's interest when appellant submitted the document to DHR in late 1991 [Rec. 334].

8/ In its interrogatory responses to DHR the employer fails to cite as a reason for the termination concerns about the quality of appellant's work product [Rec. 74, 139], and, indeed, states that the quality of appellant's work was not a factor in the decision to terminate [Rec. 139].

Appellant's assertion that Race advised appellant that the firm had concerns about the quality of appellant's work product [Rec. 277, 349, 454] is contained in one document that appellant submitted to DHR in late November or early December 1991 [Rec. 334-349], prior to DHR's discretionary decision to institute the complaint, dated February 4, 1992 [Rec. 170]; appellant's assertion, though controverted by the employer's interrogatory response filed May 22, 1992 [Rec. 139], was against appellant's interest when appellant submitted the document to DHR in late 1991 [Rec. 334].

9/ Appellant's complaint of harassment to the employer concerned very subtle harassment. While an unsophisticated, nonlegal employer might plausibly deem an employee's complaint based on such harassment unbelievable, it is far less convincing that knowledgeable attorney managers of a major law firm would credibly find appellant's harassment complaint "baseless as proof of sexual or religious harassment" [Rec. 138]. In fact, a complaint based on subtle harassment is legally cognizable. At least one court (in a foreign jurisdiction), noting that "sexual harassment based on the creation of an offensive, hostile and intimidating environment . . . can take many forms and is often very subtle," has permitted expert testimony to illuminate for the finder of fact the nature of plaintiff's work environment and the sexual connotations of seemingly trivial events. Eide v. Kelsey-Hayes Co., 397 N.W.2d 532, 538 (Mich. App. 1986).

10/ The Court of Appeals in Simpson did not settle on the precise wording that describes the standard to be used in the review of agency findings of no probable cause. In that case, the District argued that the standard was "arbitrary, capricious, or an abuse of discretion." See Simpson, 597 A.2d at 406. Simpson contended that the standard was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." The Court of Appeals noted that Simpson's articulation seemed reasonable but declined to definitively adopt it, finding that the issue was not material to the resolution of that case. Id. [Sup. Ct. Rec. 36].

11/ The Superior Court in the proceedings below relied narrowly on State Farm to support the proposition, prejudicial to appellant's cause, that "under the arbitrary and capricious standard, a court may not substitute its judgment for that of the agency" [Sup. Ct. Rec. 36].

12/ An employer's background of discrimination is relevant to proving whether an employer was more likely than not to have acted from an unlawful motive, and, therefore, evidence of other discrimination lawsuits filed against the employer [Rec. 57-61] is relevant to appellant's charge of discrimination. See Phillip v. ANR Freight Systems, Inc., 945 F.2d 1054, 1056 (8th Cir. 1991), cert. denied, 506 U.S. 825 (1992) (evidence of other age discrimination lawsuits filed against an employer is admissible in an employee's action under the Age Discrimination in Employment Act of 1967) citing Estes v. Dick Smith Ford, Inc., 856 F.2d 1097 (8th Cir. 1988). Moreover, evidence of Robertson's racially discriminatory and racially offensive conduct is, as a matter of law, material to appellant's complaint of sexual and religious harassment. See Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415-1416 (10th Cir. 1987), citing Vinson v. Taylor, 753 F.2d 141 (D.C. Cir. 1985), aff'd in part and rev'd in part, 477 U.S. 57 (1986) (incidents of racial harassment directed at employees other than plaintiff are material to plaintiff's claim of a sexually hostile work environment; evidence of racial hostility may be aggregated with evidence of sexual hostility) [Rec. 13].

13/ The District conceded, in the Superior Court proceedings below, that the retaliation issue appeared to be subsumed in the harassment claim; the unlawful termination complaint filed by DHR does not specifically allege retaliation [Rec. 169-170]. See Brief of Respondent in Opposition to Petition for Review of No Probable Cause Determination by Department of Human Rights at 18. (The aforementioned pleading was not included in the record; the cited page is attached as Appendix C to this brief).

14/ The employer admitted to DHR, in an exhibit appended to an interrogatory response, that under the terms of its Employee Assistance Program, supervisory and management personnel were authorized to seek, on their own initiative, the guidance of a mental health counselor to determine the appropriateness of referring employees whose on-the-job performance or conduct had deteriorated [Rec. 128]. The employer does not allege that any supervisor or firm manager had referred appellant to the Employee Assistance Program, despite Robertson's allegation, prior to the termination, that appellant had had serious behavioral problems, including occasional violent outbursts, during the final 19 months of his tenure [Rec. 132, 139-140].

15/ The employer produced only three of the nine performance evaluations prepared during appellant's tenure [Rec. 149-165, 358], despite DHR's request for all performance evaluations [Rec. 91-92]; the employer did not explain its failure to produce [Rec. 133].

16/ The Court in McNeil found that Digweed had no prior knowledge of Robertson's racial animus [Rec. 59] at the time of Digweed's termination of McNeil in early April 1992 , about five months after appellant's termination in late October 1991. See McNeil, D.D.C no. 93-0477 at 7-8. (See Appendix B to this brief). It will be recalled that appellant's harassment complaint to firm management in late October 1991, which led to appellant's termination by Digweed (and Robertson and Race) [Rec. 167], included a charge against Robertson of sexual and religious animus [Rec. 14-15], and prompted interviews by Race of appellant's coworkers [Rec. 17, 148], presumably including black coworkers, who, reportedly, were well aware of Robertson's racial animus at least as of July 1991 [Rec. 58]. The employer omitted any reference to appellant's complaint against Robertson in the interrogatory response [Rec. 135-140] filed with DHR in this matter on May 22, 1992 [Rec. 130], about six weeks after Digweed fired McNeil in early April 1992 [Rec. 59]. (See Appendix A to this brief.) The employer later was able successfully to overcome McNeil's contention, in her Title VII lawsuit against the employer, that Robertson had colluded with Digweed in McNeil's termination. See McNeil, D.D.C. no. 93-0477 at 4, 7-9. (See Appendix B to this brief).

17/ The employer admits that it had been aware (as far back as November 1988 [Rec. 78]) that Sheppard Pratt's policy was to speak to an employer's management personnel who might seek the guidance of a counselor to determine the appropriateness of referring employees whose work performance had deteriorated [Rec. 79]--(and not to offer input about a contemplated termination). (See note 14 supra.)

18/ A confidential memorandum from Race to his personal file, prepared on the day of the termination (October 29, 1991), is the only contemporaneous written documentation that supports the employer's contention that it consulted two mental health professionals [Rec. 148]. The memo does not identify the names of the mental health professionals consulted [Rec. 148]. The obscure tone of the memo parallels the interrogatory response (dated May 22, 1992) to which it is attached, which, curiously, also fails to identify the mental health professionals Race consulted [Rec. 137]. Race identified Dr. Ticho as the psychiatrist with whom he and Lassman reportedly spoke only in response to a supplemental interrogatory [Rec. 122-123] filed with DHR more than a year later, in May 1993 [Rec. 121]. Oddly, Lassman directed Segal to memorialize Segal's conversation with appellant, which took place on the afternoon of October 23, 1991 [Rec. 135], yet there is no evidence Lassman directed Race to memorialize the reported consultations that Race and Lassman had with the mental health consultants, including Dr. Ticho (or, for that matter, appellant's meeting with Race and Lassman on the morning of October 24, 1991).

19/ It is noted that under case law in some jurisdictions the publication of a psychiatric opinion offered without benefit of a personal examination may, in certain circumstances, be deemed defamatory, regardless of the opinion's seeming reliability or authenticity. See, e.g., Goldwater v. Ginzburg, 261 F. Supp. 784 (S.D.N.Y. 1969), reh. denied, 397 U.S. 978 (1969).

The Superior Court in the proceedings below determined that the adequacy of the employer's investigation of appellant's harassment complaint cannot negate the credibility of the employer's asserted reasons for the termination, which were deemed by the court to be nondiscriminatory [Sup. Ct. Rec. 38-39]. While even an inadequate investigation might pass muster for Title VII purposes, there remains a question as to whether the employer's investigation--even if conducted in good faith--was sufficiently thorough so as to permit a psychiatrist to make a reasoned judgment, consistent with the APA's principles of ethics, about appellant's mental state and potential for violence, thereby rendering a professional psychiatric opinion based solely on information gleaned from that investigation nondefamatory. See OPINIONS at 57 (a psychiatrist, acting in the capacity of consultant, may base a professional opinion upon a review of reports and information gathered about an individual [provided proper authorization has been granted for such a psychiatric review]). The inadequacy of the employer's investigation [Rec. 262-266] might have impaired or precluded a reasoned psychiatric assessment of appellant's complaint of harassment. A psychiatrist, for example, might find evidence of Robertson's racial animus relevant to appellant's complaint of anti-Semitic harassment. See, e.g., The Prejudicial Personality: Racism and Anti-Semitism, 65 J. PERSONALITY ASSESSMENT 270 (1995) (discussing the significant correlation between the personality profiles of racists and anti-Semites). Yet, because of the inadequacy of the employer's investigation, evidence of the supervisor's racial animus, which was well-known to black employees in the supervisor's department [Rec. 58-59]--and, according to the psychological literature, relevant to appellant's complaint of anti-Semitic harassment by that supervisor [Rec. 145]--was not uncovered by the employer. See McNeil, D.D.C. no. 93-0477 at 7-8 (supervisor, Robertson, engaged in racially-inappropriate conduct unknown to senior management [as of the time of appellant's termination in October 1991]). Evidence of the supervisor's racial animus, therefore, could form no part of the consulting psychiatrist's assessment of appellant's harassment complaint and associated risk of violence--an omission that may be relevant to a consideration of the defamatory nature of the published professional opinion.

20/ In Zuniga, a disparate impact sex discrimination case, a hospital's claim that a pregnant X-ray technician was discharged because of the fear of endangering the fetus and exposing itself to negligence liability was deemed not worthy of credence by the court, since the hospital could have achieved its business purpose by granting the plaintiff a leave of absence under the hospital's policy permitting leave of absence for reasons of family health. The court found that the stated business necessity for the termination was merely a pretext for discrimination. Id., 692 F.2d at 992.

21/ Race, the individual who failed to disclose to appellant facts concerning his consultation with a psychiatrist [Rec. 74, 138-139]--facts that were needed by appellant to file a timely disability claim under the Plan--is the same individual who factually misrepresented to DHR his knowledge of appellant's sexual orientation [R. 17, 133, 139, 140]. Race's failure to disclose to appellant facts concerning his consultation with a psychiatrist was, therefore, not simply injurious to appellant; Race's failure to disclose was invidiously based on appellant's membership in a protected class, his knowledge about which Race mendaciously attempted to conceal from DHR. Cf. Anderson v. Baxter Healthcare Corp., 13 F.3d at 1124 ("If the only reason an employer offers for firing an employee is a lie, the inference that the real reason was a forbidden one . . . may rationally be drawn.")

22/ While it is true that the physician, Dr. Ticho, did not conduct a personal examination of appellant, it is nonetheless instructive to observe that an employer has a duty, arising out of common law, to disclose to an employee, prior to or during employment, information the employer acquires when a physician it engages discovers a serious medical problem while examining the employee in accordance with the employer's requirements. See Meinze v. Holmes, 532 N.E.2d 170, 173 (Ohio App. 1987) citing Betesh v. United States, 400 F.Supp. 238, 245 (D.D.C. 1974) (interpreting Maryland common law). In the present case the employer's failure to provide information to appellant, derived from the employer's consultation with a physician, concerning appellant's mental health may have breached a common law duty to disclose. It is noted, incidentally, that Digweed--who, as the employer's personnel administrator, oversees the firm's employee benefits programs [Rec. 480-481]--was present at the termination meeting [Rec. 138]. At the termination meeting Digweed reviewed with appellant issues pertinent to insurance benefits--including appellant's COBRA rights, and health and life insurance issues [Rec. 480-481]--but omitted any mention of appellant's rights under the disability Plan or the employer's consultation with a psychiatrist [Rec. 123, 138-139]. Digweed is designated in the employer's personnel records as one of the three decisionmakers who terminated appellant's employment [Rec. 167].

Appendix A

CONCORDANCE OF INCIDENTS REPORTED BY EMPLOYER TO DHR vs.INCIDENTS REPORTED BY APPELLANT

The following is a verbatim reproduction of the report made by the employer (Akin, Gump, Strauss, Hauer & Feld) to DHR of the incidents that appellant stated to Race and Lassman on October 24, 1991 [Rec. 136]. See Response to Interrogatories and Document Request, Response to Particulars (Attachment A), at p. 2 [Rec. 136] . Note that the employer's list corresponds exactly with DHR's findings of fact, except that the three incidents involving Robertson (a supervisor determined by the U.S. District Court for the District of Columbia to have exhibited racial animus) and the one incident involving Schaar (who was reportedly terminated for gross misconduct in about May 1990 [Rec. 516]) are unaccountably omitted in the employer's recital.

Employer's Recital of Incidents of Harassment [Rec. 136]

1. An attorney once used the word "sweet" while pouring a cup of coffee from a coffee machine [apparently corresponds to Finding of Fact 4(c)];

2. While with a group of co-workers one female employee stated "I bet you have a sexy chest" [apparently corresponds to Finding of Fact 4(a)];

3. One evening after business hours, an attorney got on the elevator with him [appellant] and paced back and forth, looking at Claimant [appellant] but saying nothing [apparently corresponds to Finding of Fact 4(j)];

4. Co-workers in the litigation support group were "trying to make him nervous" [apparently corresponds to Finding of Fact 4(h)];

5. A female co-worker stood by him swinging her hips so as to provoke him [apparently corresponds to Finding of Fact 4(i)]; and

6. A male co-worker had his eyes fixed to Claimant's [appellant's] genital area [apparently corresponds to Finding of Fact 4(b)].

______________________________________________

The following is a list of the incidents that appellant reported to DHR as constituting his report of harassment to Lassman and Race on October 24, 1991 [Rec. 253-257]. DHR incorporated the report in its findings of fact [Rec. 13-16], but designated the report evidence of appellant's paranoia rather than evidence of unlawful harassment.

DHR'S Findings of Fact [Rec. 13-16]

1. Finding of Fact 4(a) involving unidentified male co-worker "with sexy chest" [see (2.), above];

2. Finding of Fact 4(b) involving Paul Wageman staring at genitals [see (6.), above];

3. Finding of Fact 4(c) involving David Hardee at coffee machine [see (1.), above];

4. Finding of Fact 4(d) involving Stacey Schaar; OMITTED BY EMPLOYER;

5. Finding of Fact 4(e) involving Robertson; OMITTED BY EMPLOYER;

6. Finding of Fact 4(f) involving Robertson; OMITTED BY EMPLOYER;

7. Finding of Fact 4(g) involving Robertson; OMITTED BY EMPLOYER;

8. Finding of Fact 4(h) involving co-workers in litigation support group [see (4.), above];

9. Finding of Fact 4(i) involving Katherine Harkness swinging her hips [see (5.), above];

10. Finding of Fact 4(j) involving David Eisenstat on elevator [see (3.), above].

Appendix B

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
)
PATRICIA A. MCNEIL, )
)
Plaintiff, )
)
v. ) Civil Action No. 93-0477(JHG)
)
AKIN, GUMP, STRAUSS, HAUER & )
FELD, )
)
Defendant. )
_____________________________)

MEMORANDUM OPINION AND ORDER

On March 5, 1993, plaintiff Patricia A. McNeil ("McNeil")
initiated this complaint against defendant Akin, Gump, Strauss, Hauer & Feld ("Akin"), alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. 2000e et seq. 1/ Presently pending are plaintiff's motion to amend complaint and defendant's motion for summary judgment. For the reasons stated below, defendant's motion is granted and plaintiff's motion is denied as moot.

BACKGROUND

In September 1987, Laurel Digweed ("Digweed"), the Personnel Administrator at Akin, hired plaintiff, a black female, to work as a part-time data entry operator in the litigation department. In 1988, Chris Robertson ("Robertson") became McNeil's immediate supervisor in that department. Both Digweed and Robertson are white females. Approximately one year later, Digweed promoted McNeil to full-time status. Robertson also promoted McNeil to project leader in charge of overseeing a large pro bono discrimination case filed by Akin against the federal government. Several months later, McNeil resigned from her position on the case because she did not find the case interesting. 2/

In the summer of 1991, McNeil missed one or two days of work a week due to a difficult pregnancy, however, she did not inform Robertson of the reason for the absences until over a month had passed. No adverse action was taken as a result of her absences. Because she ultimately suffered a miscarriage, McNeil was ineligible for maternity leave, nonetheless, Digweed asked the managing partner Lawrence J. Hoffman ("Hoffman") to allow McNeil to receive "additional benefits" without waiting thirty days as was required by firm policy. Hoffman agreed and McNeil was the first Akin employee to receive "additional benefits" without undergoing the thirty-day waiting period.

In April 1992, the assistant supervisor of the litigation support unit, Isabelle Schotz ("Schotz"), whose cubicle was located next to plaintiff's, complained to Robertson that McNeil's excessive telephone use disturbed her. As a result, Robertson requested that McNeil curtail her telephone use and McNeil agreed. Schotz alleges that McNeil then confronted her and called her a "stupid Jew." Plaintiff denies having made that comment.

When informed of the incident between McNeil and Schotz, Digweed attempted to meet with McNeil but was unsuccessful. As a result, she left a message requesting that McNeil see her. Several days later, McNeil met with Digweed and denied Schotz's accusation. During the meeting, McNeil claims that Digweed told her "Pat, shut your goddamned mouth up, bitch." However, Digweed denied using those exact words. According to Digweed, she may have said, "For once in your god damned life, listen to me." After that exchange, McNeil left the office and refused to return despite Digweed's repeated requests that she do so. McNeil told her husband that "I just got a call and Laurel [Digweed] had asked me to come back up to her office. I refused." McNeil Deposition, at 235. McNeil contends that she told Digweed she would only return to Digweed's office if a mediator were present.

Digweed then met with Hoffman and advised him of the events and proposed that the matter be resolved by separating Schotz and McNeil, who had been seated in cubicles adjacent to each other. Hoffman agreed and informed Digweed that if McNeil continued to refuse to meet with her, then she would have to be terminated. Digweed went to plaintiff's cubicle and requested that she meet with her in Robertson's office. McNeil refused to do so. Plaintiff was then advised that failure to do so would result in termination. When McNeil continued in her refusal, she was verbally discharged. In her deposition, McNeil admits telling a coworker that she was fired for refusing to talk to management.

Plaintiff has submitted two affidavits from coworkers stating that Robertson treated black coworkers less favorably than white workers. In addition, Robertson allegedly told a racist joke regarding Oprah Winfrey's skin color. According to these affidavits, Digweed and Robertson are perceived as friends because they have been observed having lunch together. In the spring of 1991, both Digweed and Robertson were responsible for laying off two black workers due to budgetary considerations. Later, two white employees were hired for similar, although not exactly the same, positions.

Akin contends that Robertson was not informed of the discharge until after McNeil was terminated.

DISCUSSION

Summary judgment is appropriate when there is "no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "The inquiry performed is the threshold inquiry of determining whether there is a need for trial--whether, in other words, there are any genuine issues that can properly be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby., Inc., 477 U.S. 242, 250 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his [or her] favor." Id. at 255. At the same time, however, Rule 56(c) placed a burden on the non-moving party to "go beyond the pleadings and by [his or] her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

Title VII prohibits an employer from "discrimina[ting] against an individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's" race. 42 U.S.C. 2000e(a). Disparate treatment occurs under Title VII when a plaintiff demonstrates that his or her "employer treats some people less favorably than others" because of an impermissible factor such as race. See Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978). The order and quantum of proof in disparate treatment cases was articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), and its progeny. To succeed initially, a plaintiff must first establish a prima facie case of discrimination by a preponderance of the evidence. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). In this case, the prima facie case of discrimination requires proof that: (1) Ms. McNeil belongs to a protected group--African Americans; (2) she was qualified for her position; (3) she was fired despite her qualifications; and (4) an individual not of the protected group was treated differently.

Once a prima facie case has been established, a presumption of unlawful discrimination arises, see United States Postal Serv. Bd. of Governors v. Aikens, 460U.S. 711, 714 (1983), and the burden shifts to the employer to "articulate some legitimate, non-discriminatory reason" for the challenged action. McDonnell Douglas, 411 U.S. at 802; see also Burdine, 450 U.S. at 257 (defendant must produce evidence "which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus."). Whether this evidence is "ultimately persuasive or not," defendants will have sustained their burden of production and "placed themselves in a 'better position than if they had remained silent.'" St. Mary's Honor Ctr. v. Hicks, 113 S.Ct. 2742, 2748 (1993). Once "the defendant has succeeded in carrying its burden of prosecution, the McDonnell Douglas framework with its presumptions and burdens is no longer relevant. To resurrect it later after the trier of fact has determined that what was 'produced' to meet the burden of production is not credible, flies in the face of [the] holding in Burdine that to rebut the presumption '[t]he defendant need not persuade the court that it was actually motivated by the proffered reasons.' The presumption, having fulfilled its role of forcing the defendant to come forward with some response, simply drops out of the picture." Id. (citations omitted).

"The defendant's 'production' (whatever its persuasive effect) having been made, the trier of fact proceeds to decide the ultimate question:," id. at 2749, whether plaintiff has "demonstrate[d] that the proffered reason was not the true reason for the employment decision [and] that she has been the victim of intentional discrimination." Burdine, 450 U.S. at 256. To put it another way, the plaintiff must then prove by a preponderance of the evidence that the reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id. at 252-53. Thus, despite the shifting burdens of production, the ultimate burden of persuasion remains at all times with the plaintiff. St. Mary's Honor Ctr., 113 S. Ct. at 2749.

McNeil has demonstrated a prima facie case of discrimination. She is a black female, she received at least satisfactory evaluations, she was terminated from Akin, and others similarly situated were not so terminated. The reason proffered by defendant for the termination is insubordination: McNeil's failure to obey Digweed's repeated requests to meet with her. As plaintiff admits in her opposition memorandum, she "concedes that defendant has articulated a legitimate nondiscriminatory reason for taking the discharge action against plaintiff." Even without this concession, the Court would find that Akin had satisfied its burden of production. Moreover, even a statement made by plaintiff supports this theory. Plaintiff concedes that at the time of the termination she told a coworker "that I had been terminated because I refused to talk -- I'm being terminated for refusing to talk to management."

Plaintiff has adduced no evidence to call into doubt defendant's assertion that insubordination caused plaintiff's termination. McNeil has not disputed defendant's assertion that it was Digweed alone who made the termination decision after consulting only with Hoffman. Because McNeil has set forth no evidence of Digweed's (or Hoffman's) racial bias or evidence of a racial motivation for the termination, she cannot prevail. 3/ The only evidence of racial animus attaches to Robertson, who had no role in McNeil's termination. 4/ "[O]nly evidence probative of the actual decisionmaker's motives is relevant" to prove pretext. Lindsey v. Baxter Healthcare Corp., 757 F. Supp. 888, 896 (N.D. Ill. 1991); accord Slade v. Billington, 700 F. Supp. 1134, 1142, 1149-50 (D.D.C. 1988), aff'd, 871 F.2d 155 (D.C. Cir. 1989); Hardy v. Marriott Corp., 670 F. Supp. 385, 392-93 (D.D.C. 1987). In order to prevail at this stage, McNeil had to produce some evidence that race discrimination was the reason for her termination. See St. Mary's Honor Ctr., 113 S.Ct. at 2749.

"[T]he plain language of Rule 56(c) mandates the entry of summary judgment after an adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 322-23 (emphasis added). McNeil's failure to make a showing of discrimination on the part of the decisionmakers in her case is fatal. Accordingly, for the reasons stated above, it is hereby

ORDERED that Defendant's Motion for Summary Judgment is granted. This case stands dismissed; it is

FURTHER ORDERED that Plaintiff's Motion for Leave to Amend Complaint is denied as moot.

IT IS SO ORDERED.

November 29, 1993.

/s/
JOYCE HENS GREEN
United States District Judge

FOOTNOTES

1/ Plaintiff's complaint cites 29 U.S.C. 2000e et seq. Presumably, this cite is the result of a typographical error.

2/ McNeil could have applied for promotions outside of the department to legal secretary or legal assistant, however, she stated that she was not interested in either position. During her tenure, two of her coworkers, both black, were promoted to legal assistant positions.

3/ In fact, after McNeil suffered a miscarriage, both Digweed and Hoffman obtained unique and substantial benefits for McNeil.

4/ Moreover, McNeil admits that she never informed Akin or Digweed of racial comments allegedly made by Robertson. See McNeil Deposition, at 198-99. Similarly, the fact that Robertson allegedly told a racist joke about Oprah Winfrey was never related to Digweed. See Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Judgment, at 5. Thus, it defies logic that Digweed can now be faulted for failing to counsel Robertson.

Akin Gump: Appellant's Reply Brief

IN THE DISTRICT OF COLUMBIA COURT OF APPEALS

GARY FREEDMAN

Appellant,

v. No. 96-CV-961

D.C. DEPARTMENT OF HUMAN RIGHTS,

Appellee.

APPELLANT'S REPLY TO BRIEF OF APPELLEE DISTRICT OF COLUMBIA DEPARTMENT OF HUMAN RIGHTS AND MINORITY BUSINESS DEVELOPMENT

This memorandum serves as appellant's reply, per D.C. App. R. 31(a)(3), to the brief of appellee District of Columbia Department of Human Rights and Minority Business Development that was filed by the District of Columbia Office of Corporation Counsel on July 25, 1997. 1/

I. THE OFFICE OF CORPORATION COUNSEL'S RECITAL OF INCIDENTS THAT PURPORTEDLY SUMMARIZES APPELLANT'S COMPLAINT OF HARASSMENT RELIES EXTENSIVELY ON LEGALLY-IRRELEVANT AFTER-ACQUIRED EVIDENCE.

In its recital of incidents that purportedly summarizes appellant's complaint of harassment, the Office of Corporation Counsel (the "District") relies improperly--and extensively--on evidence acquired by the Department of Human Rights (DHR) after appellant's job termination by the law firm of Akin, Gump, Strauss, Hauer & Feld ("the employer"): so-called after acquired evidence that played no role in the employer's termination decision or in DHR's no probable cause determination. See Brief of Appellee at 5-12. In relying extensively on legally-irrelevant evidence to support its cause the District unwittingly exposes--with meretricious abundance--the fundamental paucity of its position.

DHR made an express finding of fact that appellant's complaint of harassment to the employer--which comprises the exclusive recital of harassing incidents that appellant made prior to termination--comprised ten incidents only [Finding of Fact 4(a) through 4(j)]. [R. 12-16]. DHR found that the employer's "concern for [appellant] was based on the nature of the ten incidents that [appellant] submitted that he perceived as harassment. The details of these ten incidents are set forth in the Findings of Facts." [R. 7]. 2/

The District has unilaterally expanded the justification for the employer's termination decision by including in its brief a body of seventeen additional allegations that appellant never made to the employer and which therefore played absolutely no role in the employer's termination decision. See Brief of Appellee at 5-12.

An employer could not have been motivated to terminate an employee by knowledge it did not have at the time of termination and it cannot use after-acquired evidence to claim that the employee was fired for the nondiscriminatory reason. McKennon v. Nashville Banner Publishing Co., 115 S.Ct. 879, 885 (1995). The after-acquired evidence at issue in McKennon concerned plaintiff's misconduct: evidence that would have justified plaintiff's termination had the employer known of it at the time of discharge. In the present case, the after-acquired evidence is derived largely from two memoranda--prepared after the job termination and submitted by appellant to DHR prior to the agency's discretionary decision to institute the complaint--that memorialize appellant's retrospective perceptions of his work environment. [R. 178-201, 334-349]. The District admits that its own enumeration of twenty-seven incidents is derived from "materials submitted by [appellant] to [DHR] during its subsequent investigation," but fails to call attention to the fact that, of those twenty-seven incidents, appellant had previously reported only ten incidents to the employer [R. 12-16], and that the additional allegations, therefore, played no role in the employer's termination decision. See Brief of Appellee at 5.

Ironically, a portion of the after-acquired evidence that the District now attempts to use to justify DHR's no probable cause determination is the very evidence that persuaded DHR to institute the complaint in the first place. [R. 178-185]. See Appendix A to this reply. Appellant's letter to DHR dated January 14, 1992, which contains some of the after-acquired evidence cited in the Brief of Appellee, predates and supports DHR's complaint filed on February 4, 1992. [R. 178-185]. DHR was apprised of most of the after-acquired evidence in the period before DHR's discretionary decision to institute the complaint. [R. 178-201, 334-349]. See Appendix A to this reply.

Moreover, the after-acquired evidence that the District now attempts to foist on this Court as additional justification for DHR's no probable cause determination played absolutely no role in the agency's own factual determinations and final action [R. 1-9, 12-17] and is therefore not legally relevant to this Court's assessment of whether the agency action should be upheld. It is well-established that a reviewing court may not accept appellate counsel's post hoc rationalization for agency action; such action must be upheld, if at all, on the basis articulated by the agency itself. Motor Vehicle Mfr's. Ass'n of U.S., Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 50 (1983), appeal after remand, State Farm Mutual Automobile Insurance Co. v. Dole, 802 F.2d 474 (D.C. Cir. 1986), cert. denied, New York v. Dole, 480 U.S. 951 (1987).

The issue before this Court is whether DHR's final determination is supported by the facts articulated by the agency; the issue is not whether there is any evidence in the record that supports the agency's action. "Administrative agency decisions must stand or fall on the basis used by the agency." Club 99 v. D.C. Alcoholic Beverage Control Board, 457 A.2d 773, 775 (D.C. 1982). Facts recited by appellate counsel that do not form a part of the agency's decision are not legally relevant to a reviewing court's assessment of whether an administrative order should be upheld. Cooper v. Department of Employment Services, 588 A.2d 1172, 1176 (D.C. 1991).

This is not a case in which after-acquired evidence of an employee's improperly concealed wrongdoing would have justified the employer's termination decision had the employer known of the wrongdoing; appellant owed the employer no duty to refrain from believing that he was a victim of harassment nor did appellant owe a duty to his employer to reveal his private thoughts about his perceptions of his work environment. Moreover, this is not a case in which an administrative agency itself relied on after-acquired evidence as a basis of its final determination.

Accordingly, this Court should deem the after-acquired evidence proffered by the District, see Brief of Appellee at 5-12, not legally relevant to this Court's assessment of the merits of appellant's cause. Rather, this Court should deem the District's offer of legally-irrelevant evidence a frivolous attempt to divert the Court's attention from the persuasive circumstantial evidence of pretext that emerges from a reasoned consideration of the following statistics:

Of the ten incidents appellant submitted to the employer as constituting his complaint of harassment, three of the incidents (30%) involved his direct supervisor, Christine Robertson ("Robertson"), an individual known by the employer's minority employees to have engaged in a pattern of racially-inappropriate conduct and who, following appellant's termination, was found by the U.S. District Court for the District of Columbia to have engaged in racially-inappropriate conduct in her dealings with minority employees under her supervision. See Brief of Appellant at 23-24. The employer's personnel records designate Robertson one of the three decisionmakers who terminated appellant's employment. [R. 167].

Of the ten incidents found by DHR to constitute appellant's complaint of harassment to the employer, the employer reported to DHR in its interrogatory response only six incidents. See Brief of Appellant at 23-24 and Appendix A attached thereto. The employer omitted in its own enumeration to DHR the three incidents relating to appellant's direct supervisor (Robertson) and the one incident relating to a coworker (Stacey Schaar) who was reportedly terminated for gross misconduct. See Brief of Appellant at 23-24 and Appendix A attached thereto. The interrogatory response submitted by the employer to DHR was prepared by attorney manager Dennis M. Race ("Race") [R. 130], designated by the employer's personnel records a member of the group of three decisionmakers (which included Robertson) who terminated appellant's employment. [R. 167].


II. DHR'S FINDING THAT APPELLANT RECEIVED FAVORABLE PERFORMANCE EVALUATIONS IS INCONSISTENT WITH ITS CONCLUSION THAT HE WAS TERMINATED FOR NON-DISCRIMINATORY REASONS BASED ON GENUINE CONCERNS ABOUT APPELLANT'S ABILITY TO WORK WITH OTHERS.


Appellant's personnel file comprises a contemporaneous written memorial of appellant's work history, including a history of the quality of his interactions with others. It is probative of the retaliatory nature of the accusations made by coworkers against appellant in the period after appellant's complaint of harassment to the employer, and the pretextual nature of the employer's proffered reasons for the termination, therefore, that the record discloses the following facts relating to appellant's personnel file, facts conspicuously ignored by the District:

DHR found that appellant's performance evaluations--which rated his work quality and conduct as an employee--were uniformly above-average or outstanding throughout his tenure [Finding of Fact 2]. [Rec. 12].

Without exception, those performance evaluations prepared prior to appellant's complaint of harassment to the employer specifically rated appellant's ability to work with others average or above-average. [Rec. 295, 305, 308, 312-313, 317-318, 322-323]. The evaluation prepared in May 1991 (five months before the termination) includes a notation by Robertson that appellant was a "team player" [Rec. 323]; and an earlier evaluation prepared in November 1989 described appellant as having "inspired" his coworkers [Rec. 310].

Appellant's personnel file does not contain a record of any reprimands, oral or written. [R. 167].

The District does not cite a single specific instance of unprofessional or disruptive behavior by appellant. See Brief of Appellee at 3-13. Those evaluations prepared prior to appellant's harassment complaint memorialize no pre-existing concerns by coworkers or supervisors about "frightening" or "disruptive" behavior [R. 290-325].

The District does not dispute appellant's contention that generalized accusations, based on coworkers' retrospective perceptions not confirmed by appellant's personnel file, that appellant's behavior was disruptive emerged only in the period after appellant's complaint of harassment to the employer.

The last three (valid) performance evaluations prepared during appellant's tenure, which rated appellant's performance during the period fall 1989 to spring 1991 [R. 311-20], were either written or reviewed by Robertson [R. 311, 316, 321], who was designated by the employer one of the three decisionmakers who terminated appellant's employment.

Robertson prepared a final performance evaluation, dated October 24, 1991, in the period following appellant's complaint of harassment to the employer. [R. 149-154]. The performance evaluation was not reviewed with appellant (and so indicates [R. 154]), and is therefore invalid per the employer's written policy. [R. 150]. The performance evaluation is critical of appellant's ability to work with others [R. 152], and is the only evaluation that contains negative statements about appellant's interpersonal skills. Appellant's complaint of harassment to the employer included three allegations against Robertson relating to sexual and religion-based harassment. [R. 14-15].

Laurel Digweed ("Digweed"), as the employer's personnel administrator, had custody of--and was presumably aware of the contents of--appellant's personnel file, which included copies of appellant's performance evaluations as well as his discipline file (which contained no reprimands). [R. 167]. Digweed is designated by the employer one of the three decisionmakers who terminated appellant's employment. [R. 167]. Digweed therefore actively affirmed the employer's decision to terminate appellant on the basis of concerns about appellant's ability to work well with people notwithstanding Digweed's custody, and presumed knowledge 3/, of appellant's personnel file, which controverted allegations made by coworkers about appellant that arose during the employer's investigation of appellant's harassment complaint--allegations that related back to personnel interactions that occurred, if at all, during the very period covered by the favorable performance evaluations. See Brief of Appellant at 32-33.

Attorney manager Race, designated by the employer as one of the three decisionmakers who terminated appellant's employment [R. 167], acknowledged to appellant at the termination meeting on October 29, 1991 that he had reviewed appellant's personnel file 4/ [R. 525-26] (which would have included all of appellant's performance evaluations and discipline file).

Attorney manager Race, one of the three decisionmakers who terminated appellant's employment [R. 167], is the individual who prepared and filed with DHR the "Response to Interrogatories and Document Request" on May 22, 1992. [R. 130]. Race produced only three of the nine performance evaluations prepared during appellant's tenure [Rec. 149-165, 358], and did not explain his failure to produce the remaining evaluations [Rec. 133]. One of the three evaluations Race did produce was the invalid evaluation prepared by Robertson in the period following appellant's harassment complaint [R. 149-54, 358]: the only evaluation that contained comments critical of appellant's ability to work with others.

The foregoing fact outline highlights the lack of a "rational connection" between, on the one hand, DHR's finding that appellant's performance evaluations (which memorialize his ability to work with others) were uniformly above-average or outstanding throughout his tenure and its conclusion, on the other, that appellant was terminated for non-discriminatory reasons relating to the employer's genuine concerns about appellant's ability to work with others. See State Farm, 463 U.S. at 43 (a court applying the arbitrary or capricious standard must determine whether the agency has articulated a "rational connection between the facts found and the choice made"). Evidence that appellant received favorable performance evaluations during his employment--which evaluations fail to memorialize any pre-existing concerns about "disruptive" or "frightening" behavior, and that were either prepared or reviewed by the very persons who terminated appellant's employment--renders arbitrary or capricious DHR's finding that the employer acted out of a genuine concern that appellant could not work well with other people and presented a risk of violent behavior.

Further, prior recorded evidence contained in the performance evaluations that fails to corroborate negative reports about appellant's past conduct that emerged during the employer's investigation "fairly detracts" from the substantiality of evidence proffered by the employer that, based on interviews of coworkers conducted during the investigation, appellant had a past history of "disruptive" and "frightening" behavior. Though an agency's finding may be supported by substantial evidence, it may nonetheless reflect arbitrary and capricious action; "[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight." See Bowman Transportation v. Arkansas-Best Freight System, 419 U.S. 281, 284 n. 2 quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
See Brief of Appellant at 31.

III. DHR'S FINDING THAT APPELLANT WAS NOT TERMINATED BECAUSE OF HIS SEXUAL ORIENTATION WAS ARBITRARY OR CAPRICIOUS.

The absence of direct or explicit evidence that the employer's termination decision was motivated by appellant's membership in a protected class is not fatal to an employment discrimination claim. Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2nd Cir. 1989). A showing that a proffered justification for the termination is pretextual is itself sufficient to support an inference that the employer intentionally discriminated. Id. at 465. Further, appellant is not required to prove that the employer's proffered reasons are false but only that they were not the only reason and that appellant's membership in a protected class made a difference. Id. at 465. See Brief of Appellant at 22-23.

The District correctly points out that "[e]ven if the evidence showed that [appellant's] employer knew of his sexual orientation at the time the decision was made to terminate him, that knowledge, without more, does not establish that the decision was based on that information." See Brief of Appellee at 19. But, in fact, there is more.

Attorney manager Race expressly and unequivocally denied to DHR that the subject of appellant's sexual orientation was ever brought up by appellant or anyone "involved directly or indirectly" with appellant's employment during the entire period of appellant's tenure [Rec. 139]; and that "[appellant] never complained of discrimination treatment based on sexual orientation" [Rec. 140]. DHR found, however, that appellant advised the employer of his sexual orientation on October 23, 1991 [Finding of Fact no. 7] [R. 17]. The only evidence of record that supports the employer's decision to terminate emerged in the period after appellant gave the employer notice of his sexual orientation, and Race deliberately lied to DHR that appellant had ever given notice of his sexual orientation. See Brief of Appellant at 24-26.

Race's factual misrepresentation of his knowledge of appellant's membership in a protected class is a lie that taints the termination decision as pretextual, and leaves little doubt that the underlying reason for the termination was a forbidden one. See Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995) ("Pretext . . . means a lie, specifically a phony reason for some action."); cf. Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1124 (7th Cir. 1994) ("If the only reason an employer offers for firing an employee is a lie, the inference that the real reason was a forbidden one . . . may rationally be drawn.") quoting Shager v. Upjohn Co., 913 F.2d 398, 401 (7th Cir. 1990). Obviously, for Race, appellant's sexual orientation "made a difference" in the termination decision, as evidenced by his act of lying to DHR that the employer had no knowledge of appellant's sexual orientation even after October 23, 1991 [Rec. 139]. See Ramseur, 865 F.2d at 465. DHR's determination that the employer's actions were not pretextual [Rec. 7], insofar as that determination excuses the employer's act of improperly denying its knowledge of appellant's sexual orientation even after October 23, 1991 [Rec. 139]--a denial incontrovertibly at odds with DHR's own finding of fact [Finding of Fact no. 7] [R. 17]--is a "clear error of judgment" that renders the agency's action arbitrary or capricious. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1970) (to determine whether the choice made by the agency was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, the court must consider whether there has been a clear error of judgment). See Brief of Appellant at 25-26.

The District's argument that "DHR's finding that [appellant] was not harassed because of his sexual orientation was not arbitrary or capricious" misses the point. See Brief of Appellee at 19. Appellant need establish only that the reasons offered by the employer in support of the termination decision were not its true reasons, but were a pretext for discrimination. See Burdine, 450 U.S. at 256 (plaintiff must demonstrate that the proffered reason was merely a pretext for the employment decision and that he was the victim of intentional discrimination).

Appellant showed that each of the three decisionmakers (Race, Robertson, and Digweed [R. 167]) exhibited a discriminatory animus against appellant in the period after appellant lodged a harassment complaint against his direct supervisor, Robertson, and coworkers, and advised the employer of his sexual orientation. See Lindsey v. Baxter Healthcare Corp., 757 F. Supp. 888, 896 (N.D. Ill. 1991) ("evidence probative of the actual decisionmaker's motives is relevant" to prove pretext). See Brief of Appellant at 24-26, 27-30, 32-33.

-- Race deliberately lied to DHR that he was unaware of appellant's sexual orientation even after appellant lodged his harassment complaint on October 23, 1991. See Brief of Appellant at 24-26.

-- Robertson engaged in several hostile, offensive, or retaliatory acts in the period after appellant lodged a harassment complaint against her and others, on sexual and religious grounds. See Brief of Appellant at 27-30.

-- Digweed affirmed a termination decision predicated in part on reports by coworkers that appellant had a past history of difficulties in working with others: concerns that emerged only after appellant lodged a harassment complaint against Robertson (and others) and which concerns about appellant's past conduct and ability to work with others were controverted by appellant's personnel file (a memorial of appellant's past conduct), of which Digweed was custodian. See Brief of Appellant at 32-33.

IV. DHR'S FINDING THAT THE EMPLOYER SOUGHT GUIDANCE FROM TWO MENTAL HEALTH PROFESSIONALS RUNS COUNTER TO THE EVIDENCE BEFORE THE AGENCY.

While it is true that under the arbitrary or capricious standard, it is not the role of this Court to weigh the evidence and substitute its judgment for that of the agency, it is also true that the Court is "compelled" to find the agency's decision arbitrary or capricious if the agency "offer[s] an explanation for its decision that runs counter to the evidence." Puerto Rico Higher Educ. Assistance Corp. v. Riley, 10 F.3d 847, 850 (D.C. Cir. 1993).

DHR found that the employer satisfied its burden of production, thereby rebutting appellant's prima facie harassment case, by its claim that it sought advice from mental health professionals (an employee assistance provider and a psychiatrist) before deciding to terminate appellant, and relied on that advice in making its decision. [R. 17-20].

It is surprising, and contrary to the totality of the evidence, that DHR affirmed that the employer consulted an employee assistance provider and a psychiatrist [R. 17]--even in view of the fact that the attorneys who were involved in the consultations noted that they did so without revealing appellant's identity--given the following additional evidence, which is undisputed by the District:

The employee assistance provider's business policy mandates that its counselors prepare a written record--on an "Employer Consultation Intake Form"--relating to any communications with employers concerning a potential employee-client and that the record be maintained in a file of mental health information [Rec. 65]. This policy applies even in situations where the consultation with the employer is not "employee-specific" [R. 65].

The providing of a representation of the kind that the employer claims to have sought and obtained from an (unidentified) employee assistance program counselor regarding appellant's suitability for continued employment is not consistent with the company's business purpose [R. 63-64, 78-79]. The stated business purpose of the employee assistance provider is to provide counseling services to employees whose performance is suffering, not to confirm the summary dismissal of an employee who might require counseling. [R. 63-64, 78-79].

While the employer expressly states that it was attorney managers Race and Malcolm Lassman, and no other persons, who consulted the psychiatrist [R. 122-123, 137], the psychiatrist herself expressly denies having offered a professional opinion to Race about anyone, anonymously or otherwise [R. 62].

It is observed, additionally, that DHR's findings necessarily carry the following assumptions:

--The employee assistance provider deliberately, with no known reason or motive, deviated from its established business policy of memorializing a consultation with an employer-client concerning an employee that was not "employee-specific."

--The employee assistance provider deliberately, with no known reason or motive, deviated from its established business purpose by confirming the summary dismissal of an employer-client's employee [R. 73], rather than arranging to provide counseling services.

--A practicing psychiatrist [R. 137] deliberately, with no known reason or motive, violated the American Psychiatric Association's Principles of Ethics, which caution psychiatrists against offering a professional opinion about an individual in the absence of a personal examination. See THE PRINCIPLES OF MEDICAL ETHICS (WITH ANNOTATIONS ESPECIALLY APPLICABLE TO PSYCHIATRY) 9 (Washington, DC: APA 1995). See Brief of Appellant at 38-40.

Appellant does not urge this Court to find that the employer "fabricated evidence," as the District contends. See Brief of Appellee at 22. Rather, applying the arbitrary or capricious standard, it is plain that DHR "offered an explanation for its decision that runs counter to the evidence before the agency." See Puerto Rico Higher Educ. Assistance Corp. v. Riley, 10 F.3d at 850.

DHR's finding that the employer consulted an employee assistance provider, notwithstanding documentary evidence submitted by appellant showing that the reported consultation was inconsistent with the company's business policies and uncorroborated by its business records (which would have memorialized a consultation relating to an unidentified employee), constitutes an impermissible "reiteration of the evidence" offered by the employer in its interrogatory response; the finding is therefore contrary to law. See Rosexpress, Inc. v. District of Columbia Department of Employment Services, 602 A.2d 659, 662 (D.C. 1992) (a reiteration of the evidence is not a finding of fact). Further, DHR's finding that the employer consulted a psychiatrist is arbitrary or capricious in that it reflects a "clear error of judgment." See Citizens to Preserve Overton Park v. Volpe, 401 U.S. at 416. The psychiatrist expressly denies having spoken with one of the employer's attorney managers (Race)--under any circumstances [R. 62]--despite the employer's assertion that Race spoke with the psychiatrist. [R. 73-74].

While recognizing that this Court may not reject agency findings of disputed fact based on resolution of witness credibility, cf. Office of D.C. Controller v. Frost, 638 A.2d 657, 660 (D.C. 1994), the fact remains that DHR's own resolution of witness credibility in this matter was based on a "clear error of judgment" that renders its finding arbitrary or capricious. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. at 416. DHR's rank speculation that "some other employee" than Race may have consulted the psychiatrist [R. 8] runs counter to the employer's own production that Race, indeed, consulted the psychiatrist. [R. 73-74].

Finally, the District fails to address appellant's argument that--leaving DHR's factual findings undisturbed--it is simply "unworthy of credence" that the employer's attorney managers, skilled in the art of impeachment of expert witnesses and therefore sensitive to the limiting circumstances that can bias an expert professional opinion, could have honestly concluded, on the basis of the employer's restricted consultation with the psychiatrist, that appellant's complaint of harassment was attributable to a psychiatric symptom associated with a risk of violence that rendered appellant not suitable for employment. See Burdine, 450 U.S. at 256 (1980). See Brief of Appellant at 38-40.

V. DHR'S CONCLUSION THAT THE EMPLOYER'S CONCERNS ABOUT APPELLANT'S MENTAL HEALTH AND STABILITY PROVIDED A VALID REASON TO TERMINATE IS ARBITRARY OR CAPRICIOUS SINCE APPELLANT'S PURPORTED CONDITION QUALIFIED HIM TO FILE FOR BENEFITS UNDER THE EMPLOYER'S ESTABLISHED INSURED LEAVE POLICY.

The District failed to address appellant's argument that DHR's no probable cause determination is arbitrary or capricious in that a finding that the employer had a concern for appellant's mental health and stability (based partly on the advice of mental health professionals that appellant needed counseling and that according to a psychiatrist could engage in violent behavior) does not lead rationally to a conclusion that that concern prompted or justified the employer's decision to terminate appellant since appellant was a beneficiary of the employer's long-term disability income plan under which he qualified for long-term medical leave under the employer's established leave policy. See Brief of Appellant at 41-46.

Appellant had raised with DHR the issue of the employer's denial of disability benefits. [R. 29-31, 42-56]. DHR did not address, or make any findings concerning, the issue.

The District did not object to appellant's raising the issue on appeal; rather, the District simply failed to address the issue.

Conclusion

Based on the foregoing, this Honorable Court should reverse the Superior Court's conclusion that DHR's finding of no probable cause was correct.

Respectfully submitted,

GARY FREEDMAN pro se
3801 Connecticut Avenue, NW
Apt. 136
Washington, DC 20008-4530
Tel: 362-7064 or 363-3800

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was hand-delivered this 11th day of August, 1997, to Charles L. Reischel, Esq., Deputy Corporation Counsel, Office of Corporation Counsel, 441 Fourth Street, NW, One Judiciary Square, Washington, DC 20001, Tel: 727-6252, Ext. 3301.

__________________
GARY FREEDMAN

[The Appendix to the Brief is omitted.]

FOOTNOTES

1/ This reply is filed per the additional time provision of D.C. App. R. 26(c), appellee's brief having been served by mail.

2/ An emended version of pages 5-12 of the brief of appellee indicates the extent of the District's improper reliance on after acquired-evidence. See Appendix A to this reply.

3/ Absence of direct evidence that Digweed had actual knowledge of the contents of appellant's personnel file would not excuse Digweed's "ostrich-like" deliberate ignorance of the content of documents of which she, as the employer's personnel administrator, was official custodian. Cf. Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486, 1530 n. 10 (M.D.Fla. 1991): "The phrase used here is intended to call attention to the analogy between these circumstances and the concept of deliberate ignorance, covered by the so-called ostrich instruction, in the criminal law. See, e.g., United States v. Restrepo-Granda, 575 F.2d 524, 529 (5th Cir.) ('deliberate ignorance is the equivalent of knowledge'), cert. denied, 439 U.S. 935, 99 S.Ct. 331, 58 L.Ed.2d 332 (1978)." [R. 415].

4/ Race's reported admission that he had reviewed the contents of appellant's personnel file prior to the decision to terminate is contained in a letter, dated September 25, 1992, submitted by appellant to DHR during the agency's investigation. [R. 525-26]. Race's reported admission, though uncorroborated, is linked to other statements by appellant contained in that letter that were against appellant's interest when made, in September 1992.

The Utter Worthlessness of the D.C. Dept. of Mental Health

The following is a summary of a psychotherapy session I had with Israella Bash, Ph.D. of the D.C. Department of Mental Health on August 18, 2004. Dr. Bash used to be a professor of psychology at New York University. She is a forensic psychologist who qualifies as an expert on mental competence in judicial proceedings. Dr. Bash is an Israeli immigrant.

[DR. BASH]: Are you still obsessed with Brian?

[FREEDMAN]: Yes.

[DR. BASH]: Did you write him a letter this week?

[FREEDMAN]: Yea. I wrote him a letter, on Monday; it was almost nine pages.

[DR. BASH]: What did you write about?

[FREEDMAN]: It was about Napoleon. You know, Sunday was Napoleon's birthday.

[DR. BASH]: How did you know that?

[FREEDMAN]: Napoleon is a hero of mine.

[DR. BASH]: So you read about that before. So you wrote to Brian about Napoleon.

[FREEDMAN]: Yea. I wrote about Napoleon and you, Dr. Bash. I tell Brian a lot about what we talk about here.

[DR. BASH]: You write to Brian just once a week?

[FREEDMAN]: Yes. At the central library, the Martin Luther King Library, downtown. I go down there. I take the subway. Actually, I go down there partly in hopes of seeing Brian. You know I saw Brian down there on a Monday a couple of months ago, so I figure I might run into him again on a Monday.

[DR. BASH]: What is Brian's last name?

[FREEDMAN]: Brown. Brian Brown.

[DR. BASH]: (laughs heartily).

[FREEDMAN]: Why is that funny?

[DR. BASH]: Maybe it's just me. I think it's a funny name.

[FREEDMAN]: Brian Patrick Brown.

[DR. BASH]: If you got involved with people, you would give up your obsession with Brian. If you made a friend, he would replace Brian in your thinking.

[FREEDMAN]: I'm not so sure about that. I don't think that reality will necessarily obliterate a fantasy. A fantasy can endure even after the wished-for thing is attained. For centuries Jews prayed to return to the Land of Israel. Then the State of Israel was founded. Some orthodox Jews refuse to recognize Israel, the reality, and still pray for, or fantasize about, returning to Israel, even though in reality the State of Israel actually exists. For some Orthodox Jews, the reality of the State of Israel didn't obliterate the fantasy of return.

You know the Hasidim, the ultra-Orthodox Jews? They don't believe in the state of Israel.

[DR. BASH]: Now they do. They used to not recognize Israel, but they do now. There was a rabbi a few years back. He urged them to move to Israel.

[FREEDMAN]: Rabbi Schneerson?

[DR. BASH]: Yes, that was his name. Anyhow, today Jerusalem has a large population of Hasidim. They call them "The Blacks" because of their black clothes. [DR. BASH]: The Hasidim have bought up half the real estate in Jerusalem. They have their own political party. They see to it that no laws are passed that are contrary to the Bible.

[FREEDMAN]: In Jerusalem.

[DR. BASH]: Yes, in Jerusalem.

[FREEDMAN]: Years ago they didn't believe in Israel. There are two factions of Hasidim. The Lubavitchers and the Satmarers. One believes in Israel, the other doesn't.

[DR. BASH]: Now they both recognize Israel. But in your case, you created your own restrictions. You have cut yourself off from what is available in the world by your own actions. It's different from a religious restriction.

[FREEDMAN]: Yes, in my case it's guilt.

[DR. BASH]: What do you feel guilty about?

[FREEDMAN]: Nothing. It's unconscious guilt.

[DR. BASH]: But you must feel guilty about something.

[FREEDMAN]: No. Nothing. It's unconscious. Freud talks about unconscious guilt.

[DR. BASH]: But even Freud, I'm sure, would say you have to feel guilty about something.

[FREEDMAN]: No, nothing. Unconscious guilt is guilt about nothing.

[DR. BASH]: It has to be about something.

(Freud wrote in The Ego and the Id: "In the end we come to see that we are dealing with what may be called a 'moral factor, a sense of guilt, which is finding its satisfaction in the illness and refuses to give up the punishment of suffering. We shall be right in regarding this disheartening explanation as final. But as far as the patient is concerned this sense of guilt is dumb; it does not tell him he is guilty; he does not feel guilty; he feels ill. This sense of guilt expresses itself only as a resistance to recovery which it is extremely difficult to overcome. It is also particularly difficult to convince the patient that this motive lies behind his continuing to be ill; he holds fast to the more obvious explanation that treatment by analysis is not the right remedy for his case."

Freud goes on to explain that a major issue in treating patients where the overriding issue is a sense of guilt is whether "the personality of the analyst allows of the patient's putting him in the place of his ego ideal." Patients who suffer from guilt--unconscious guilt require something -- some idea or person or other gratification -- that will act as a "counteracting force of a similar order of strength" as the sense of guilt that is causing the patient's suffering. Imagine a person who is badly in debt; he feels rotten. A rich banker comes along and agrees to provide an unlimited line of credit to the debtor. The banker acts as a countervailing force to the debt; the banker relieves the debts, and the debtor feels relieved psychologically. To paraphrase a well-worn phrase, the banker pays the debtor's "debt" to society.

My idealized fantasies about Brian, or my other friend (Craig), or other people who I've idealized in the past, act as such a countervailing force. What my fantasies about Brian counteract is not loneliness resulting from a lack of social relations; my obsession with Brian counteracts an intrapsychic sense of guilt, a kind of psychological sense of indebtedness. My obsession with Brian is probably not a substitute for social relations; it counteracts psychological distress, rooted in an unconscious sense of guilt that is grounded in structural defects in my ego. The issue is intrapsychic structures.)

[FREEDMAN]: What about at Pesach in Jerusalem? What do Jews in Jerusalem say at the Seder? Do they still say "Next Year in Jerusalem?"

[DR. BASH]: Yes! (Dr. Bash intones "Next year in Jerusalem" in Hebrew.) They say: "Next year in Jerusalem."

[FREEDMAN]: You see, there's a case where a gratification in the real world does not negate a fantasy. They still say "Next Year in Jerusalem" even though they are now living in Jerusalem.

[DR. BASH]: It's a tradition. They want to keep alive the history of the Jewish experience.

[DR. BASH]: Did your sister marry a Jewish guy?

[FREEDMAN]: Yes. But they sent their daughter to a Catholic school.

[DR. BASH]: I guess it was so she could get a better education.

[FREEDMAN]: But there's no chance to meet other Jewish kids.

[DR. BASH]: That's true, there's no chance to meet other Jewish kids. I would imagine there are very few Jews in a Catholic school.

[FREEDMAN]: They had a friend, my sister and brother-in-law, had a friend who had a barbecue on Yom Kippur.

[DR. BASH]: That's stupid! Why did they do that?

[FREEDMAN]: To show their contempt for the Jewish religion. They thought it was funny.

[DR. BASH]: So they're those kind.

[FREEDMAN]: You know those kind of Jews?

[DR. BASH]: (disdainfully) Yes. (pause.) Do they have boys?

[FREEDMAN]: No, two girls.

[DR. BASH]: Did they have a Bat Mitzvah? A Confirmation?

[FREEDMAN]: No.

[FREEDMAN]: They celebrate Christmas. With a tree and everything. I bought them a Menorah and a Mezuzah.

[DR. BASH]: Do they use them?

[FREEDMAN]: How do you use a mezuzah?

[DR. BASH]: You nail it to the door. Do they use the Menorah?

[FREEDMAN]: Yes. But I was the one who bought it for them. I nailed the Mezuzah to their door.

[DR. BASH]: Did your sister convert?

[FREEDMAN]: No.

[DR. BASH]: You see, that's why he married her. They're alike. People marry people who are similar to themselves.

[FREEDMAN]: Maybe I should try to be friends with a Jew instead of with Brian. Brian is an Irish Catholic. I think he goes to church every Sunday. (Dr. Bash smiles.) He's very proud of his Irish heritage. Maybe I should be friends with somebody who I have something in common with in terms of my heritage.

You know when I go to sleep at night, I lay down, I turn out the light and I say out loud "Good night, Brian." Sometimes Brian doesn't hear me. And I have to repeat. "Good night, Brian!" And Brian says, "Good night, Mr. Freedman." He calls me "Mr. Freedman."

[DR. BASH]: You are the author of that.

[FREEDMAN]: I know. I made it up. But I think it's funny. Brian used to call me "Mr. Freedman" at the library. When I was leaving the building at night, I would say, "Good night, Brian," and he would say "Good night, Mr. Freedman."

[DR. BASH]: Why do you think he calls you "Mr. Freedman?"

[FREEDMAN]: He wants to pretend he doesn't know my first name. But he knows it.

[DR. BASH]: Of course he does.

[FREEDMAN]: Brian likes me.

[DR. BASH]: Brian doesn't like you. He calls you "Mr. Freedman" as an act of formality. He wants to keep things at a professional level. He's trying to show you that he doesn't want a social relationship with you. He doesn't want to be your friend. If he wanted to be your friend, he wouldn't call you "Mr. Freedman."

[FREEDMAN]: I just think there's something relating to something infantile about my obsession with Brian. Something that happened to me in infancy, at a pre-verbal level. You know--and I think this is very significant--you know I love Wagner's music. I've loved his music since I was eleven years old. It's never changed. The feelings I have for that music. And the feeling is one of ecstasy. It's this beautiful feeling of ecstasy I feel. I never fail to experience it. And I have those same feelings when I think about Brian. And I can't put it into words. It's as if I experienced some bliss at an age before I had acquired language, but I felt something, and I can remember it in some way. I simply can't use words to describe that feeling. But I can experience the feeling. It's a beautiful thing. The fact that the feelings are the same when I hear Wagner's music as when I think about Brian or other people who I've idealized, suggests to me that the feelings relate back to the same experience. I try to recapture that feeling.

[DR. BASH]: You know, Wagner was Hitler's favorite composer.

[FREEDMAN]: Yea. You know, they never perform Wagner in Israel.

[DR. BASH]: I know.

[FREEDMAN]: Did you ever hear of the conductor Daniel Barenboim? He conducted a Wagner piece not too ago, in Israel. He had to sneak it into the program. The Wagner piece wasn't listed in the printed program. So he was able to perform the music without anybody knowing beforehand. There was a big protest about that afterwards. I guess some people walked out of the concert.

[DR. BASH]: They'll probably never invite him back. Is he the conductor of the Israel Philharmonic?

[FREEDMAN]: No. Chicago.

[DR. BASH]: Who did you have an obsession with before Wagner?

[FREEDMAN]: Benjamin Franklin. You know, the Founding Father? I was obsessed with him from about age nine or ten, till I discovered Wagner.

You know, I was thinking about something a few days ago in connection with Wagner. I was thinking about what happened to him when he was fifty years old. I'm fifty now. At that time Wagner was at the lowest point in his life. He was debt-ridden.

(In the German language the word "Schuld" means both "debt" and "guilt." The reference to "debt" in connection with Wagner relates back to the reference to "guilt' earlier in the dialogue.)

Wagner was being hounded all over Europe by creditors. He lived on the run. He would have been sent to jail if he got caught. He was very depressed. He was considering suicide. He saw no way out of his problems. He had several operas, manuscripts, he had written, in his suitcase. They hadn't been performed. It seemed that they would never be performed. Then a miracle happened. Truly a miracle. The King of Bavaria at that time was a Wagner enthusiast. He summoned Wagner to his court, and paid off all his debts. The King awarded Wagner an annual stipend. I'm thinking maybe my obsession with President Clinton relates to my wish that President Clinton will rescue me.

[DR. BASH]: Bill Clinton only cares about Bill Clinton.

[FREEDMAN]: Yes, he's a narcissist.

[DR. BASH]: What about the synagogue, Adat, Adas, Adat Israel? You should get involved.

[FREEDMAN]: You think I can make friends?

[DR. BASH]: Yes, with people at the same emotional level as you. You know, people develop relationships with others who are at their emotional level. Mature people develop relationships with each other. Immature people develop relationships with immature people. And it has nothing to do with intelligence. You can have an immature person who is very intelligent; he will bond with an immature person. You can have a mature person who is just average intelligence; he will bond with someone who is mature.

[FREEDMAN]: Yes. I've read about that. Did you ever hear of the pianist Vladimir Horowitz?

[DR. BASH]: Yes.

[FREEDMAN]: He was a musical genius, you know. But they say that he was like a child when you talked to him. He was involved with the piano since he was a small child. He was a prodigy. So he never learned how to interact with people. He never gained the maturity that comes with that interaction. So he remained a child.

[DR. BASH]: It's a shame when that happens. That wouldn't happen nowadays.

Your problem is you have a fear of rejection. You need to overcome that.

[FREEDMAN]: I have reason to fear rejection. Brian called the police on me.

("One common problem in the survivors of the Holocaust," notes Israeli psychiatrist Hillel Klein, "is a profound fear of getting to love someone. Having lost most, if not all, of their early love objects, they now fear that to love anyone means to lose them and go through the pain all over again. Since they have not been able to work through their losses, such a situation threatens overwhelming depression."

It's a psychological consequence common to all persons who have suffered significant emotional loss in childhood; it's not a psychological problem limited to Holocaust survivors. The experts say that "pathological mourning and schizoid detachment are the consequences of early and severe loss; the ensuing withdrawal from all relationships due to anxiety over future loss and guilt over perceived destruction of the object results in further frustration of emotional needs and dissociated lack of awareness of needs.")

[FREEDMAN]: You say I should go to Adas Israel, but, technically, under the Conservative Movement, I'm not even Jewish.

[DR. BASH]: You could convert. But I don't know how they do that nowadays.

[FREEDMAN]: I have a confession to make. Do you promise you won't get angry?

[DR. BASH]: What?

[FREEDMAN]: I wrote a letter to the rabbi. The rabbi at Adas Israel. Rabbi Wohlberg.

[DR. BASH]: You are self-destructive.

[FREEDMAN]: Self-defeating.

[DR. BASH]: Self-defeating, self-destructive. You are self-destructive.

[FREEDMAN]: I told him about my loneliness. How I like Brian.

[DR. BASH]: Why did you tell him about Brian?

[FREEDMAN]: The synagogue is only a couple of blocks from the library. I thought maybe he knows Brian.

[DR. BASH]: He doesn't know Brian. Or maybe he does visit the library, I don't know. Maybe he thinks you're homosexual.

[FREEDMAN]: I just think my life is hopeless. So I turn everything into a joke. Everything has a game-like quality for me.

[DR. BASH]: You are self-destructive. Why did you write to the rabbi?

[FREEDMAN]: I thought maybe he would call me.

[DR. BASH]: Did you give him your number?

[FREEDMAN]: No.

[DR. BASH]: He won't call you. He's not going to look up your number to call you. Why didn't you give him your telephone number?

[FREEDMAN]: I wanted to play hard to get. (pause.) I thought maybe he would call Brian. Maybe he knows Brian, and maybe he would call Brian. I hoped for that. That the rabbi would call Brian. They are in the same neighborhood. (pause.) I told the rabbi I knew somebody in his congregation.

[DR. BASH]: Who?

[FREEDMAN]: Glenn Fine. You know, the guy who works at the Justice Department. The Rhodes Scholar. We both worked at Hogan & Hartson, the law firm, in 1985--well, it's almost twenty years ago.

[DR. BASH]: Time flies.

[FREEDMAN]: Fine is a big contributor to the congregation. I saw Fine's name on the Internet. The synagogue's newsletter lists Fine as a "major contributor."

[DR. BASH]: The rabbi probably does know Fine if he's a major contributor. In any event, go to the synagogue. You don't have to talk to anybody. Just sit and watch. Nobody knows you. The rabbi won't know you, unless you introduce yourself. Don't introduce yourself. Maybe you'll meet a woman there. You don't have to be friends with a man. You can be friends with a woman. Just go and observe. As I say you don't have to speak to anyone.

I see our time is up. (Stands and walks Freedman to the door.) Have a good week.

Clinical Report: My Latent Homosexuality

Summary of Psychotherapy Session: 7/21/09 (Gary Freedman and Abbas Jama, M.D., D.C. Department of Mental Health)

1. Pt. reports he is unhappy with his antidepressant because it causes ejaculatory delay. Pt. reports that he masturbates about once a day, but is only able to achieve orgasm about twice a week. Doctor notes that the ability to achieve orgasm lessens with age. Doctor implicitly reinforces the usefulness of Effexor and seems to imply that the pt. needs to accept the sexual side effects of the medication. Doctor is a black Muslim from the African country of Somalia. Pt. reports a problem with alcohol abuse in the mid-1990s.


2. Pt. states: "I am not sexually attracted to you, but if you offered to have sex with me, I would not say no." Doctor appears irritated and fails to see pt.'s statement as the pt.'s (analyzable) fantasy. Doctor states that his role as a physician precludes his having sex with the pt. Doctor asks: "Aren't you able to find women to have sex with?" (In fact, the pt. has, in the past, had the same thought, or fantasy, in relation to Barack Obama.)

3. Patient reports that he learned, via the internet, that an "Abbas Jama" was a research fellow at the University of Maryland Medical School doing research in the genetics of schizophrenia. Pt. says he feels drawn to doctor because of the doctor's research orientation. Pt. says he believes doctor possesses qualities pt. values, and notes that he thinks the psychoanalytic concept of a "need for merger with an idealized self representation" applies to pt.'s desire for merger with the doctor. Doctor launches into a lecture on the two-way nature of friendship.

Doctor suggests that pt. do volunteer work. Pt. says he believes this action is impossible. (Doctor immediately looks up at the clock on the wall of the office.) Pt. says he fears anything he does will "come to nothing;" says he feels hopeless, that life is futile and meaningless. Pt. says that he feels he is in hiding. "I am in hiding from my destiny," he says. Pt. offers examples that support his feelings of futility and fear that only bad things will happen if he acts in the real world (outside his world of fantasy.) Pt. says he introduced himself to his neighbor, but subsequently, when pt. said hello, neighbor did not respond and turned away. Doctor says maybe the neighbor had other things on his mind and was distracted. Pt. says he identifies with "black hopelessness." He compares his own feelings of hopelessness in the face of repeated frustration in his past life to the despair of black Americans in response to generations of white racism. Doctor points out that Barack Obama is now President of the United States despite his race.

DISCUSSION

1. Pt. begins session with discussion of sexuality. He feels his orgasmic potency is frustrated by the antidepressant medication he is taking. Perhaps the issue is not specifically sexual, but relates to generalized feelings of frustration, powerlessness, and sexual (and social) impotency. Pt. reports that he tries to achieve orgasm every day but on most days he fails. Perhaps pt. is expressing concerns about futility and wasted effort, generally, and not just sexually. Implicitly, pt. is saying that things used to be better for him (sexually), but now he has reached a nadir. Maybe the pt.'s fears about doing volunteer work -- that it would be futile and just wasted effort -- is related to his feelings about lack of orgasmic potency (his act of masturbating without achieving orgasm). Is it possible that the pt. is struggling with an oral regression of phallic narcissism? See Wilhelm Reich, "Character Analysis," Third Enlarged Ed. at 217-224 (New York: Farrar, Straus and Giroux, 1972). Pt. reports a problem with alcohol abuse in the mid-1990s. Note that phallic narcissists typically turn to drugs or alcohol in states of oral regression, according to Reich. Doctor notes that orgasmic potency lessens with age. The issue of "limits" arises three times during the session:

a.) pt. must accept the limits imposed by aging; pt. needs to accept the limits imposed by the Rx;

b.) pt. needs to respect the limits imposed by the doctor/pt. relationship--doctor may not have sex with a pt.;

c.) but doctor totally disregards the limits imposed by pt.'s schizoid disorder and suggests that pt. deny his schizoidal despair and seek out volunteer work.

The doctor has a double standard with regard to the issue of limitations.

2. Pt.'s sexuality. Pt. states a fantasy about sexual relations with the doctor. Doctor asks why pt. brings up the issue. Note how the doctor fails to think about the context of the pt.'s statements and associations. The pt. started the session by talking about orgasmic potency (and, symbolically, about generalized feelings of frustration) . There is probably a relationship in the pt.'s mind between the issue of sexual frustration and orgasmic potency and the topic that follows, namely, his discussion about his fantasy about sexual relations with the doctor.

Doctor emphasizes the sexual nature of the pt.'s fantasy, but perhaps pt. is expressing his feelings of closeness to and identification with the doctor and his desire for a nonsexual relationship. The fact that the pt. has, in the past, had the same fantasy of sexual relations in connection with a successful black man, Barack Obama, suggests that the fantasy is related to pt.'s feelings of despair, prevalent, as pt. says, in black Americans. Pt.'s sexual fantasy may suggest that successful blacks symbolize sexual potency (an erection) for him, while black despair symbolizes sexual impotency (a flaccid penis).

The doctor appears to be personally threatened and responds with the questions "Why are you talking about this?" and "Can't you find women to have sex with?" Note the pt.'s reference to the concept of a "need for merger with an idealized self-representation." The pt.'s fantasy about sex with the doctor may suggest pt.'s need to merge or identify with a successful black man, symbolically speaking, a phallic (sexually potent) male.

Keep in mind that a conscious homosexual fantasy and a need to merge with an idealized self-representation can be derivatives of fundamentally nonsexual core ego defects. Cowan, J. C. "Blutbrüderschaft and Self Psychology in D. H. Lawrence's Women in Love." Annual of Psychoanalysis, volume 20: 191-214 (1972) (relying on the work of the object relations theorist, Heinz Kohut). (Dr. Abraha was supplied a copy of this paper.)

Note that the doctor uses the same defense in two different contexts:

a.) Doctor is personally threatened by the pt.'s sexual fantasy, so he suggests that the pt. go out and have sex with women. Doctor is relying on objects outside the therapeutic relationship to rescue the pt. (and ultimately remedy the doctor's perceived threat to his masculinity [castration anxiety]).

b.) Doctor may be threatened by the refractory nature of the pt.'s disorder and recommends that the pt. do volunteer work. Doctor is again relying on objects outside the therapeutic environment to rescue the pt. (and ultimately remedy the doctor's perceived threat of professional impotence [and castration anxiety]).

3. Pt. researched "Abbas Jama" and learned that the doctor is himself a researcher. Doctor ignores, again, the pt.'s associations. Pt. started the session talking about sexual impotence, and then talks about a sexual fantasy concerning the doctor. Isn't it possible that the act of "research" is sexually cathected by the pt.? Freud viewed intellectual curiosity in the adult as a sublimation of the sexual researches of the child. For the pt. intellectual productions and research may be sublimations of pt.'s sexuality. Is such a sublimation related to phallic narcissism?

Doctor's lecture on the two-way nature of friendship is largely irrelevant. Doctor ignores the pt.'s specific pathological needs and social limitations, and focuses on the mechanics of normal social adjustment. By analogy, it's as if a doctor presented with a case of cirrhosis of the liver (pathology), launches into a lecture on the anatomy and physiology of the liver (how normal things work). The doctor is denying that the pt. has a specific pathology with recognized features:

a.) need for merger with idealized self-representations;

b.) schizoidal fear of harming the external object;

c.) schizoidal fear of future loss ("everything I do comes to nothing");

d.) severe identity disturbance (sexual and otherwise). Note the strong split between the experiencing ego and the observing ego as evidenced by this very writing; and

e.) tendency to retreat into fantasy when social needs are thwarted in the real world.

Doctor needs to acknowledge the deep existential nature of pt.'s despair, hopelessness, and feelings of futility. Doctor denies this and points out that Barack Obama, a black man, is successful. The fact is that President Obama is not struggling with black despair and does not have a psychiatric disorder. Doctor's use of Barack Obama as an example of anything pertinent to the pt.'s disorder is totally irrelevant. Doctor's comments that pt.’s neighbor may have been distracted, accounting for the neighbor's failure to greet pt., is also irrelevant. The fact is that the pt. is, in fact, struggling with deep existential despair, hopelessness, and futility and social (and sexual) impotence, regardless of the value of his comments about his neighbor. (Note that the pt.'s neighbor is a young man who is sexually active (potent); he has (noisy) sex with women and also masturbates (noisily)).

Pt.'s concerns about repeating the same failures and difficulties in his past life are a legitimate recognition by the pt. of the possible role of the repetition compulsion in causing his interpersonal problems. "Early internal objects of a harsh and phantastic nature are constantly being projected onto the external world. Perceptions of real objects in the external world blend with projected images. In subsequent reinternalization the resulting internal objects are partially transformed by the perceptions of real objects. Klein suggests that the early establishment of harsh superego figures actually stimulates object relations in the real world, as the child seeks out allies and sources of reassurance which in turn transform his internal objects. This process is also the basis for the repetition compulsion, which involves a constant attempt to establish external danger situations to represent internal anxieties. . . . To the extent to which one finds confirmation in reality for internally derived anticipations, or is able to induce others to play the anticipated roles, the bad internal objects are reinforced, and the cycle has a negative, regressive direction." Greenberg, J.R. and Mitchell, S.A. "Object Relations in Psychoanalytic Theory" at 132 (Cambridge: Harvard University Press, 1983). See also Fernando, J. "The Exceptions: Dynamic and Structural Features." The Psychoanalytic Study of the Child (1997).

Significant Moments: No End To Litigation

Discussing the board meeting at which he was fired, . . .
Amanda Vaill, Seduction on Trial.
. . . Masson said . . .
Albert Camus, The Stranger.
. . . that Eissler pressured him not to retaliate and "poison Anna Freud's last days," but instead to "live with . . .
Amanda Vaill, Seduction on Trial.
. . . the dismissal . . .
Albert Camus, The Stranger.
. . . in silence . . . because it is the honorable thing to do."
Amanda Vaill, Seduction on Trial.
Otherwise . . .
Albert Camus, The Stranger.
. . . said Eissler . . .
J. Moussaieff Masson, Final Analysis.
. . . there would be no end to litigation.
Albert Camus, The Stranger.
At which Masson, according to . . .
Amanda Vaill, Seduction on Trial.
. . . the press . . .
Albert Camus, The Stranger.
. . . commented, "Well, he had the wrong man."
Amanda Vaill, Seduction on Trial.

Freedman v. D.C. Dept. Human Rights, D.C.C.A. 96-CV-961 (Sept. 1, 1998).

I. STATEMENT OF JURISDICTION

In that this is an appeal from an order of the Superior Court of the District of Columbia affirming a prior determination of no probable cause made by the District of Columbia Department of Human Rights, this Court has jurisdiction over same per D.C. Code Ann. 11-721(a)(1). Timus v. Dept. of Human Rights, 633 A.2d 751, 761 (D.C. 1993).

A prior Petition for Review of this matter filed in the District of Columbia Court of Appeals was dismissed by order of the Court for lack of jurisdiction, without prejudice to the timely filing of an appropriate civil action in the Superior Court, per Simpson v. District of Columbia Office of Human Rights, 597 A.2d 392, 400-402 (D.C. 1991). Freedman v. District of Columbia Department of Human Rights, no. 93-AA-1342 (D.C., Jan. 10, 1995) (memorandum opinion and judgment) (as amended per order, Sept. 20, 1995).

IV. STATEMENT OF THE CASE

A. Form of Action

Appellant, Gary Freedman, filed a charge of discrimination based on sexual orientation (homosexual) with Respondent, District of Columbia Department of Human Rights and Minority Business Development (DHR), on February 4, 1992 against his former employer, the law firm of Akin, Gump, Strauss, Hauer & Feld ("the employer" or "the firm") [Agency Record 169-170] [hereinafter cited as Rec.]. Appellant charged that the employer subjected him to unfair terms and conditions of employment based on his sexual orientation by harassing him and terminating his employment in violation of the District of Columbia Human Rights Act of 1977, as amended, D.C. Code Ann. 1-2501, et seq. (Repl. Vol. 1992) ("the Act") [Rec. 169-170].

The employer filed a Response to Interrogatories and Document Request in this matter, dated May 22, 1992 [Rec. 131-167], to which Petitioner filed a Reply, dated January 5, 1993 [Rec. 239-462]; the employer filed a Response to Additional Interrogatories and Request for Documents, dated May 17, 1993 [Rec. 122-129].

DHR issued a no probable cause determination (Letter of Determination) on June 30, 1993 [Rec. 11-20]. Appellant's Application for Reconsideration was filed on July 27, 1993 [Rec. 21-67). DHR's Determination on Reconsideration [Rec. 1-9], issued September 24, 1993, affirmed and incorporated DHR's no probable cause determination (issued June 30, 1993), and was final agency action.

DHR determined that appellant did not present sufficient evidence to support his allegations of disparate treatment because of sexual orientation [Rec. 19-20].

Appellant's petition for review and motion to proceed on appeal in forma pauperis were granted by order of the District of Columbia Court of Appeals, dated December 22, 1993. The petition was argued before the Court of Appeals on October 13, 1994 by appellant pro se; appellee declined to file a brief per "Statement in Lieu of Brief," filed March 4, 1994. The petition for review was dismissed by judgment of the Court of Appeals for lack of jurisdiction, without prejudice to the timely filing of an appropriate civil action in the Superior Court, per Simpson v. District of Columbia Office of Human Rights, 597 A.2d 392, 400-402 (D.C. 1991) (before John M. Ferren and Terry, Judges, and Mack, Senior Judge). Freedman v. District of Columbia Department of Human Rights, no. 93-AA-1342 (D.C., Jan. 10, 1995) (memorandum opinion and judgment) (as amended per order, Sept. 20, 1995).

Appellant thereafter filed in the Superior Court of the District of Columbia, on October 10, 1995, a Petition for Review of Agency Decision, pursuant to Agency Review Rule 1 (i.e., Superior Court review of agency orders pursuant to D.C. Code 1981, Title 1, Ch. 6) [Sup. Ct. Rec. 2-30]. The Superior Court (Ellen Segal Huvelle, J.) affirmed DHR's no probable cause finding, by order dated June 10, 1996 (Superior Court no. MPA 95-14) [Sup. Ct. Rec. 35-40]. Appellant filed in Superior Court a notice of appeal on July 2, 1996 [Sup. Ct. Rec. 41].

Following several preliminary orders issued by the District of Columbia Court of Appeals, the docketing statement, designation of record [Sup. Ct. Rec. 42] and statement regarding transcript [Sup. Ct. Rec. 43] in the instant appeal were late-filed by order of this Court on November 22, 1996, and a briefing schedule was filed by order of this Court on March 31, 1997: whereupon this brief is filed this 12th day of May, 1997, per the extension of time provision of D.C. App. R. 26(a).

Anti-Semitism: The Repository of Secrets at Akin Gump

In Gold and Iron: Bismarck, Bleichroeder, and the Building of the German Empire, the Columbia historian Fritz Stern discusses the close and confidential relationship between the 19th century German Chancellor Otto von Bismarck and the Jewish banker Gerson Bleichroeder. Stern specifically discusses how Bleichroeder's role as a trusted confident -- a person in possesion of sensitive state secrets -- meshed with the traditional anti-Semitic view of Jews as possessors of secrets.

Stern writes: "Bleichroeder was gradually groping for new roles and a new identity. There was the public scramble for acceptance, but there may also have been the less conscious striving for a new identity to replace the old identity as Jew. He wanted to be a major figure in Bismarck's Christian world, and his ostentatious role as repository of secrets was one way of asserting his new identity. By the same token, Bleichroeder's insistence on a new identity might have enraged those of his Christian enemies who had projected onto him 'entities from [their] psychic world,' and by projecting them to the outside could better protect themselves from these inner threats. In that way, the Christian had a stake in Bleichroeder's Jewish identity and suffered a psychic threat as Bleichroeder sought to minimize the differences between himself and his Christian milieu."

Stern explains by way of footnote: "I owe this paragraph to the striking observation made by David J. Levita, The Concept of Identity, where he discusses the role of 'secrets' and the projective character of anti-Semitism." The anti-Semite who unconsciously projects entities from his psychic world onto the Jew proceeds to view the Jew as a repository of (the anti-Semite's own) secrets.

It's interesting that one of the incidents of harassment that the D.C. Office of Corporation placed in controversy in Freedman v. D.C. Dept. of Human Rights, D.C.C.A. 96-CV-91 (Sept. 1, 1998) concerned the action of my supervisor (and her presumed cohorts) in making me the repository of secrets (in the form of a confidential business document) with the possible intent that I betray those secrets to an employee at another law firm: an act on my part that would constitute gross misconduct and grounds for disciplinary action against me.

I note, incidentally, that homosexuality can be viewed as an act of betrayal: a betrayal of one's gender role.

I continue to believe that certain legal assistants made invidious references to my friendship with a male employee (Craig W. Dye) with whom I had previously worked at the law firm of Hogan & Hartson. At an Akin Gump dinner held in May 1989, another legal assistant (Jesse Raben, Esq.) acknowledged to me that he had heard a rumor that I was homosexual. See Brief of Appellee District of Columbia at 8.

Dye's supervisor at Hogan & Hartson during the period October 1986 to March 1987 was an individual named Sheryl Ferguson, a computer specialist. Ferguson left Hogan in the spring of 1987, and in about mid-year 1989 Dye assumed Ferguson's former supervisory position in that firm's Computer Applications Department.

In 1988 Akin Gump hired Ferguson, who by that time worked at ATLIS, a litigation support company, to perform, as a consultant, a study of Akin Gump's litigation support operation. Ferguson completed the consulting task in early 1989, and submitted a lengthy written report in February 1989. The report acknowledged the cooperation of Christine Robertson, Akin Gump's litigation support administrator, as well as several Akin Gump attorneys including John ("Jack") Gallagher and David Callet, senior partners who represented Eastern Airlines (the major client to which I was assigned), as well as an associate named David Tobin, who subsequently left the firm.

Ferguson had been my direct supervisor at Hogan & Hartson during the period September 1985 to March 1987. My Akin Gump supervisor Constance Brown, on her initiative, supplied me with a copy of Ferguson's written technical report, despite the fact that the report was stamped confidential and despite the fact that, according to Akin Gump, I was, as of February 1989, a dispensable temporary employee who had been hired to perform a specific time-limited clerical task for the client Eastern Airlines.

I continue to believe that Brown supplied me with a copy of the report knowing that the report was confidential, knowing that Ferguson had been my supervisor at another law firm, and anticipating that I would supply a copy of the report to persons I had worked with at Hogan & Hartson, which would have been an act of gross misconduct on my part. Eastern Airlines filed for bankruptcy protection a few weeks later, on March 9, 1989.

Perhaps as of February 1989 my employment at Akin Gump was perceived as vulnerable by certain employees who believed that a serious act of misconduct by me would result in my summary termination. But that's paranoid speculation. I like to think I was always one step ahead of the people who were trying to get me in trouble.

In effect, my supervisor, Constance Brown, made me a repository of firm secrets -- for no practical reason -- by providing me a copy of a confidential business document.

The Governor of Pennsylvania and Akin Gump

Ed Rendell is an American politician and Governor of Pennsylvania. Rendell, a member of the Democratic Party, was elected Governor of Pennsylvania in 2002, and his term of office began January 21, 2003. He is currently a Member of the Democratic Governors Association Executive Committee, and -- like Bob Strauss, founder of Akin, Gump, Strauss, Hauer & Feld -- also served as General Chairman of the Democratic National Committee during the 2000 presidential election. From 2008 to 2009, Governor Rendell was Chairman of the National Governors Association. He is married to Marjorie Rendell, a Federal judge for the United States Court of Appeals for the Third Circuit.

In November 1998 I sent the following unusual letter to Judge Marjorie Rendell inquiring about a possible judicial clerkship. I wonder if Judge Rendell made any telephone calls in connection with this letter. Judge Rendell did not reply to my letter.

November 21, 1998
3801 Connecticut Avenue, NW #136
Washington, DC 20008-4530

Hon. Marjorie O. Rendell
Circuit Judge
U.S. Court of Appeals for the Third Circuit
601 Market Street
Philadelphia, PA 19106

Dear Judge Rendell:

I am an attorney licensed to practice in the Commonwealth of Pennsylvania, and qualify for consideration for a position as clerk to a judge of the U.S. Court of Appeals for the Third Circuit. Preliminary to forwarding a copy of my resume to the court I believe I have a legal duty to advise the court of the following facts regarding concerns about my potential for armed violence or homicide, intent to purchase firearms to commit a felony, and the illegal transport of a deadly weapon: concerns placed in controversy and affirmed, by the District of Columbia Office of Corporation Counsel, as relating to genuine fears about my criminal intent.

The Government of the District of Columbia has affirmed that my former employer, the Washington, DC office of the law firm of Akin, Gump, Strauss, Hauer & Feld ("Akin Gump") terminated my employment in October 1991 on the basis of genuine concerns about my mental health and stability, including the potential for violence. The employer's termination decision was made following an ex parte consultation with a psychiatrist who did not examine me personally. Freedman v. D.C. Department of Human Rights, D.C. Superior Court no. MPA 95-14 (final order, June 10, 1996) (Ellen Segal Huvelle, judge), affirmed by the D.C. Court of Appeals (Terry, Reid, and King, associate judges), No. 96-CV-961 (Memorandum Opinion and Judgment filed Sept. 1, 1998).

As of the filing of the complaint in the Superior Court proceedings, in October 1995, and at all times thereafter, it was unlawful under the laws of the District of Columbia for a psychiatrist to offer a professional psychiatric opinion about an individual without benefit of personal examination as is strongly recommended by the American Psychiatric Association's Principles of Medical Ethics. The D.C. Code in its latest revision makes it unlawful for a physician to "[fail] to conform to standards of acceptable conduct and prevailing practice within a health profession." See D.C. Code 2-3305.14(26). This provision was added to the District of Columbia Health Occupations Revision Act by D.C. Law 10-247, enacted on March 23, 1995. The Court of Appeals expressly found that the professional psychiatric opinion offered by the psychiatrist to the employer amounted to the diagnosis of a "disorder." See No. 96-CV-961 at 4.

The District of Columbia Superior Court as well as the Court of Appeals did not find that the action of my Akin Gump supervisor in stating to employees that she feared that I might have had plans to kill her, and the action of the supervisor in arranging to have her office secured against such a homicidal assault, see record on appeal at 41, was invidiously motivated. The supervisor (Robertson) is designated by the employer as one of the three decisionmakers who terminated my employment, see record on appeal at 167, which termination decision was based in part on the above-referenced psychiatric evidence that tended to show that I posed a risk of violence.

The District of Columbia Office of Corporation Counsel expressly affirmed to the D.C. Superior Court and to the Court of Appeals in pleadings filed in the above-referenced proceedings, relying on legally-irrelevant "after-acquired" evidence, see McKennon v. Nashville Banner Publishing Co., 115 S.Ct. 879, 885 (1995), that my coworkers had formed genuine fears (i.e., not motivated by discriminatory animus) that I might have been armed and dangerous and poised to carry out a homicidal assault on the firm's premises. See Brief of Appellee District of Columbia Department of Human Rights and Minority Business Development at 9, Freedman v. D.C. Department of Human Rights, D.C. Court of Appeals No. 96-CV-961 (citing record on appeal at 276). The District implicitly asserted that my coworkers' concerns about my potential for armed violence were relevant to the employer's decision to terminate my employment.

I stand by the "Statement of Gary Freedman to the Office of U.S. Attorney for the District of Columbia Regarding Intent to Commit Crime of Violence as Determined by the Law Firm of Akin, Gump, Strauss, Hauer & Feld," ("Statement to the U.S. Attorney") dated April 24, 1995, and made under penalty of criminal sanctions (D.C. Code 22-2514).

I want to advise, however, that representations made by the District of Columbia Office of Corporation Counsel (M. Justin Draycott, Esq.) to the District of Columbia Court of Appeals at oral argument in December 1997 that I "admitted" in pleadings that I filed with the D.C. Department of Human Rights that my "coworkers" were genuinely "afraid" of me (specifically with regard to my potential for armed violence or homicide) conflict with the prior Statement to the U.S. Attorney, and that said conflict may give rise to the appearance that the exculpatory representations that I made in the Statement to the U.S. Attorney were unreliable, knowingly false, or perjured.

Additionally, the Court of Appeals has affirmed, see D.C. No. 96-CV-961 at 3 n. 1, that the Department of Human Rights had legally-valid concerns that a document I submitted to the agency may have been inauthentic (i.e., forged or fabricated), see record on appeal at 8; presumably, according to the agency, I submitted the possibly inauthentic document in order to deny forensic psychiatric evidence filed by Akin Gump with the agency: forensic psychiatric evidence relating to my mental health (specifically relating to the psychiatric symptom "ideas of reference") and stability (specifically relating to my potential for violence). But see Namerdy v. Generalcar, 217 A.2d 109, 111-112 (D.C. 1966) (circumstantial evidence, such as evidence that a letter is written on the author's letterhead, is sufficient for authentication).

Robert Chapman, Esq., Assistant U.S. Attorney for the District of Columbia, is familiar with this matter. The telephone number of the U.S. Attorney's Office in Washington is (202) 514-7566.

For the additional information of the court I enclose a document submission I made to the Federal Protective Service (Jerry McGill, S.A.) under cover letter dated September 8, 1997 under compulsion of a criminal investigation.

I am confident that defamatory statements about me that may raise substantial concerns about my mental stability and fitness to practice law, even acts of defamation committed by the law partners of a close friend of the President of the United States (Vernon E. Jordan, Jr., Esq.) and acts of defamation committed by the current chief White House counsel to President Clinton (Charles F.C. Ruff, Esq.), will in no way impair my chances for fair consideration for employment by the U.S. Court of Appeals for the Third Circuit.

Sincerely,

Gary Freedman

They're Watching Me!

On Tuesday afternoon, November 24, 2009, I posted an item on this blog about Douglas J. Feith, Esq.

Douglas Feith is Director of the Hudson Institute. Someone at that organization (possibly Mr. Feith) logged onto the following blog post just hours after I posted it. How did Mr. Feith (or his associate) know about my blog post concerning him? They're watching me!

The post is titled: "The Undersecretary of Defense for Policy" at

http://dailstrug.blogspot.com/2009/11/under-secretary-of-defense-for-policy.html

mail.hudsondc.org (Hudson Institute) [Label IP Address]

District Of Columbia, Washington, United States, 0 returning visit

Date Time WebPage
24th November 2009 04:26:07 PM No referring link
dailstrug.blogspot.com/2009/11/under-secretary-of-defense-for-policy.html

Significant Moments: Any Lengths To Catch Him Out

Talent and Genius, published in 1971, is itself a work of extreme eccentricity. It was written in response to another book, published two years earlier, entitled Brother Animal: The Story of Freud and Tausk, by Paul Roazen, which implicated Freud in the suicide, at the age of forty, of one of his early disciples, Victor Tausk. Roazen's book is trivial and slight. Its scholarship, like that of many other works of pop history, does not hold up under any sort of close scrutiny. But, unlike most pop historians, whose sins against the spirit of fact go undetected because nobody takes the trouble to check up on them, Roazen had the misfortune to attract the notice of someone who was willing to go to any lengths to catch him out. In Talent and Genius, Eissler administers one of the most severe trouncings of one scholar by another in the annals of scholarly quarreling. Like Superman rushing to the aid of a victim of injustice, Eissler hastened to defend Freud against what he believed "may properly be called the most brutal attack ever directed at him"—Roazen's insinuation that Freud was to blame for Tausk's death because, motivated by sexual and professional jealousy, he turned away from him at a crucial moment.
Janet Malcolm, In the Freud Archives.

Did Dennis M. Race, Esq., Commit the Crime of Jury Tampering?

Did Laurence J. Hoffman, Esq. and Dennis M. Race, Esq. of the law firm of Akin, Gump, Strauss, Hauer & Feld (Akin Gump) commit the crime of jury tampering by filing a sworn statement, on May 22, 1992, with the D.C. Department of Human Rights alleging that they had determined, in consultation with a practicing psychiatrist (Gertrude R. Ticho, M.D.), that I suffered from a psychiatric disorder that rendered me unfit for employment (and had the effect of barring me from jury service)? See Freedman v. D.C. Dept. Human Rights, D.C.C.A. 96-CV-961 (Sept. 1, 1998).

Did Mark Justin Draycott, Esq. and William J. Earl, Esq. of the Office of D.C. Corporation Counsel commit the crime of jury tampering by wilfully and deliberately misleading the D.C. Court of Appeals with legally-irrelvant "after-acquired" evidence (proferred in the District's Brief on Appeal) that purported to show that the psychiatric disorder that Gertrude R. Ticho, M.D. diagnosed in consultation with Dennis. M. Race, Esq. of Akin Gump was even more severe than Akin Gump or Dr. Ticho knew? Appellee's Brief on Appeal, Freedman v. D.C. Dept. Human Rights, D.C.C.A. 96-CV-961 (Sept. 1, 1998).

http://dailstrug.blogspot.com/2009/11/i-still-suffer-from-psychiatric.html

Did Bob Strauss Even Know Who I Was?

What I found peculiar was that at the law firm of Akin, Gump, Strauss, Hauer & Feld -- where I worked from 1988 to 1991 -- the billing partner for the client Eastern Airlines, Jack Gallagher, Esq., always treated me like I didn't exist. Whenever I saw him, he never said hello; he would look straight ahead as if I was invisible. I found his behavior peculiar, especially since the top guys in a law firm -- even at The Franklin Institute where I worked from 1970 to 1979 -- always seem to find out about me.

In about the year 1976, the Vice-President of the Franklin Institute in Philadelphia (Alec Peters) (that's pretty high up), sent a written message to my supervisor, Bruce H. Kleinstein, Ph.D., J.D., that acknowledged he was aware of my outstanding work. Alec Peters also directed Bruce Kleinstein to place an "annotation" in my personel file memorializing my good work. Kleinstein showed me the note that Alec Peters had written. I specifically recall the word "annotation."

But then, Alec Peters was a lawyer. He had a law degree from the University of Bucharest in Romania.

Is it so strange to think that Robert S. Strauss, Esq., the founder of Akin Gump, might have taken notice of me? After all, I had a masters degree in International Trade Law from American University Law School and Bob Strauss had served as the Trade Representative of the United States during the Carter Administration. I had submitted a letter of recommendation written by Seymour J. Rubin, Esq. -- a leading expert in the field -- to Akin Gump's Legal Assistant Administrator, Margarita Babb, in the spring of 1988.

Who knows what Bob Strauss knew?

Going Under Cover for Hogan & Hartson

During the period mid-September 1985 to late February 1988 I worked as an agency-supplied temporary employee in the Computer Applications Department of Hogan & Hartson, a law firm in DC. My supervisor was Sheryl Ferguson.

During the period May to July 1986 I worked on a document production task for the client Mercedes-Benz. The matter was an EPA investigation of the German automaker's emission control equipment.

In late June 1986 the client's billing partner, Patrick Raher, called me to his office. (The high-ranking attorneys always seem to find out about me. Why is that?)

Raher told me that representatives of Mercedes were going to be spending a few days at the firm to review Mercedes test data. The documents were housed in one of the firm's conference rooms where the document production task was being carried out by a group of Computer Applications Department employees under the supervison of data base administrator, Esperanza Rebollar, who had just been hired by Hogan. Raher said to me: "I understand that you speak some German." I explained that I knew some German, but not that much. My knowledge of German was sufficient to scan documents and provide a concise summary of the gist of the document. I was self-taught in German. Raher said whatever my level of German, it would be useful for what he had in mind. He explained that the Mercedes engineers were "liars." Yes, he said that. He said he suspected that one of the reasons for the site visit was to abscond with some of the documents. He wanted me to sit in the conference room while the German engineers were reviewing the documents and listen to them. Raher assumed that they would be speaking German. Raher wanted me to report to him if I suspected there was any dirty work afoot.


In the end, I wasn't used for the assignment. The Hogan paralegal Sara Shea was used in place of me.

Here's a memo I wrote to my supervisor about the special assignment:


TO: SHERYL FERGUSON
FROM: GARY FREEDMAN
RE: SPECIAL MERCEDES ASSIGNMENT JULY 1-3, 1986
DATE: JUNE 28, 1986
____________________________________________________________________

As I related on Friday afternoon, I will be engaged on a special assignment for Mercedes on July 1-3 at the request of Mr. Raher. It may prove unfeasible to perform the special assignment with the required diligence while simultaneously performing my customary tasks at the usual production level. This is to advise in advance that my production level as to customary tasks for the 3-day period may be lower, and, perhaps, far lower, than normal.

With regard to time sheets for the relevant period, the weekly production report will indicate "Mercedes Special Project" (of course the work product will not be quantifiable) and, for obvious reasons, the daily attorney time keeper record will state "document coding." Any customary tasks that I will have been able to accomplish will be noted on the production report. However, it must be emphasized that any customary tasks performed should be considered a "windfall".

Don't Mess With Dennis Race, Jr.!

http://www.myspace.com/dennisracejr

Ideas of Reference: Bob Strauss

Did I ever have any ideas of reference about Bob Strauss, founder of the law firm of Akin, Gump, Strauss, Hauer & Feld? Yes, as a matter of fact, I had one. It was back in the year 1989.

In early March the major client for whom I worked, Eastern Airlines, filed for bankruptcy protection.

In mid-March 1989 I was walking in the elevator area of the fifth floor of the firm where I had an office. Bob Strauss was walking toward me. I had worked at the firm since March 1988, about a year earlier. This occasion, in mid-March 1989, was the first time I had ever seen Bob Strauss. His gaze fixed on me. He looked at me intently without smiling.

A few days later I talked to my sister. I said to her: "You know I recently saw Bob Strauss at the firm. He didn't look jolly and friendly, the way he looks on TV. He looked like any other tight-ass 70-year-old lawyer."

On Monday morning April 3, 1989 the firm held a buffet breakfast meeting for legal assistants in one of the firm's conference rooms. The meeting was billed as a "Breakfast with Bob Strauss," and was attended by about 25-30 of the firm's legal assistants. At that time the firm employed about 60 legal assistants. Strauss offered some remarks, then responded to questions posed by legal assistants. During the course of his breakfast remarks, Bob Strauss said: "I'm just a seventy-year-old lawyer." I thought that was a notable coincidence. It seemed to fit into my working theory that my sister was in communication with someone at the firm.

But then, I have a lot of paranoid ideas about Akin Gump.

At noon on Thursday April 6, 1989 the firm's legal assistant administrative staff had arranged a luncheon computer-training seminar for legal assistants. The training was offered by someone from either Westlaw or Lexis (the person's name was Eva [last name? of Greek derivation]). The seminar was attended by about 30 legal assistants, including myself. I sat in the back of the room and could observe all the persons present. Also present was the legal assistant coordinator John D. Neary. Before the training session was completed, legal assistants began to leave the room. It was my impression that the employees' departure from the conference room appeared to be staged: the departures seemed too evenly timed, there was an unnatural quality about the body language, and I could see glances between Neary and some of the legal assistants as they got ready to rise from their chairs that appeared to suggest a kind of cueing behavior. The legal assistants seemed to look at Neary as if they were united against me. Neary appeared to become dejected as time wore on. I specifically recall that when I left the room, I spotted Neary's roommate, Michael Sierra (who was also employed as a legal assistant at the firm); Sierra appeared to turn away and seemed to refuse to look at me while we both waited for an elevator.

http://backgrinfo.blogspot.com/2005/10/why-my-coworkers-despised-me.html

Belgian Neutrality and Akin Gump

On August 3, 1914, Great Britain sent an ultimatum to Germany not to invade Belgium. The next day, German troops were in the neutral country and Great Britain declared war. Great Britain's reasoning was that Belgium was an independent, neutral state whose existence and sovereignty was guaranteed by Great Britain, France, Russia, Austria, and Germany. It's creation dates back to the Treaty of London, signed in 1839. The German Chancellor referred to this document as a "scrap of paper." The German Chancellor stated that "just for a scrap of paper Great Britain was going to make war on a kindred nation who desired nothing better than to be friends with her." The Times, "The Eve of War," August 28, 1914.

Why was Belgian neutrality so important to the Allies? I never understood that. Maybe Claire Hirshfield could answer that question. Was Belgian neutrality so important that it was worth four years of war, millions of lives lost, war costs in the billions of dollars -- and any of the many other unfortunate consequences of World War I?

I just don't understand what was so important about Belgium. Who cares about Belgium anymore? Do you ever hear President Obama talking about Belgium, let alone Belgian neutrality?

In 1990 I worked at the law firm of Akin, Gump, Strauss, Hauer & Feld. I started to see a psychiatrist in January 1990: Stanley R. Palombo, M.D. (202 362 6004). I told him early in our work that I thought he was in communication with my employer. His response: "You must think you're important. You think you are so important that I would talk to your employer about you?" So he attributed my unsupported belief to grandiosity.

Sometimes insignificant people take on significance for other people. Belgium took on significance for the Allies. I might have taken on an importance for the lawyers for whom I worked. Why? Who knows? It may have had little to do with me. As Judge Huvelle might say, the entire matter may have been a concern solely for "The Powers That Be." Yes, I might have taken on significance for The Great Powers irrespective of my intrinsic importance.

I fail to see how Dr. Palombo's comment was pertinent. I don't see my allegation against Dr. Palombo as an arrogation of importance on my part. I don't see how my allegation that I was a victim of a crime (namely, the violation of the D.C. Mental Health Information Act) meant that I was grandiose.

I recently thought of an analogy. A woman claims she was raped. Would the police say to her "You think you're so attractive that a man would want to rape you? On what planet do you spend most of your time? Let me tell you something, sweetheart, you're not that attractive. In fact, you're pretty much of a dog! No man would want to rape you."

Speaking metaphorically, Dr. Palombo, sometimes ugly women get raped. But then, I have a problem with metaphors.

Two Old Friends

I worked at the Franklin Institute in Philadelphia from 1970 to 1979. During the summer of 1974 I worked with an individual named Hilliard Cohen (Central High School, Philadelphia, 1965) and Sidney H. Dorfman (Central High School, Philadelphia, 1966).

I attended Mr. Dorfman's wedding in the summer of 1977. Mr. Cohen knew my sister; they were the same age and were in the same 6th grade class, taught by Olga Kaempfer.

Messrs. Dorfman and Cohen knew me in my premorbid state, before I succumbed to asymptomatic paranoid schizophrenia.

The Under Secretary of Defense for Policy

Douglas J. Feith, Esq. served as Under Secretary of Defense for Policy in the Administration of President George W. Bush. He was one of the architects of the Iraq war (2003). Mr. Feith was a member of my class at The Central High School of Philadelphia (230th class, June 1971). He came from a family of holocaust survivors. I sent Mr. Feith the following letter inquiring into employment as an attorney in his firm, in 1999. I wonder whether Mr. Feith made any calls in connection with this letter. Mr. Feith and I were not friends in high school; I don't think we were even in any of the same classes.

March 20, 1999
3801 Connecticut Avenue, NW #136
Washington, DC 20008-4530

Douglas J. Feith, Esq.
Feith & Zell
Suite 600 - 2300 M Street, NW
Washington, DC 20037
(202) 293-1600

Dear Mr. Feith:

I am an attorney licensed to practice in the Commonwealth of Pennsylvania, and qualify for consideration for a position as associate with the firm of Feith & Zell. Preliminary to forwarding a copy of my resume to Feith & Zell I believe I have a legal duty to advise the firm of the following facts regarding concerns about my potential for armed violence or homicide, intent to purchase firearms to commit a felony, and the illegal transport of a deadly weapon: concerns placed in controversy and affirmed, by the District of Columbia Office of Corporation Counsel (Charles F.C. Ruff, Esq.), as relating to genuine fears about my criminal intent.

The Government of the District of Columbia has affirmed that my former employer, the Washington, DC office of the law firm of Akin, Gump, Strauss, Hauer & Feld ("Akin Gump") terminated my employment in October 1991 on the basis of genuine concerns about my mental health and stability, including the potential for violence. The employer's termination decision was made following an ex parte consultation with a psychiatrist who did not examine me personally. Freedman v. D.C. Department of Human Rights, D.C. Superior Court no. MPA 95-14 (final order, June 10, 1996) (Ellen Segal Huvelle, judge), affirmed by the D.C. Court of Appeals (Terry, Reid, and King, associate judges), No. 96-CV-961 (Memorandum Opinion and Judgment filed Sept. 1, 1998).

As of the filing of the complaint in the Superior Court proceedings, in October 1995, and at all times thereafter, it was unlawful under the laws of the District of Columbia for a psychiatrist to offer a professional psychiatric opinion about an individual without benefit of personal examination as is strongly recommended by the American Psychiatric Association's Principles of Medical Ethics. The D.C. Code in its latest revision makes it unlawful for a physician to "[fail] to conform to standards of acceptable conduct and prevailing practice within a health profession." See D.C. Code 2-3305.14(26). This provision was added to the District of Columbia Health Occupations Revision Act by D.C. Law 10-247, enacted on March 23, 1995. The Court of Appeals expressly found that the professional psychiatric opinion offered by the psychiatrist to the employer amounted to the diagnosis of a "disorder." See No. 96-CV-961 at 4.

The District of Columbia Superior Court as well as the Court of Appeals did not find that the action of my Akin Gump supervisor in stating to employees that she feared that I might have had plans to kill her, and the action of the supervisor in arranging to have her office secured against such a homicidal assault, see record on appeal at 41, was invidiously motivated. The supervisor (Robertson) is designated by the employer as one of the three decisionmakers who terminated my employment, see record on appeal at 167, which termination decision was based in part on the above-referenced psychiatric evidence that tended to show that I posed a risk of violence. Robertson's termination decision was made in consultation with Dennis M. Race, Esq., a senior Akin Gump partner, see record on appeal at 138 and 167.

Mr. Race has expressly affirmed, under penalty of D.C. Code 1-2529 (D.C. Human Rights Act of 1977: false documents or testimony), that (unspecified) acts of "violence," see record on appeal at 140, that I committed during my tenure at the firm coupled with the firm's reasonable fear that my future conduct might expose the firm to tort liability, see record on appeal at 148 (possibly including tort damages for wrongful death, cf. record on appeal at 41), justified the firm's decision to terminate my employment.
The District of Columbia Office of Corporation Counsel expressly affirmed to the D.C. Superior Court and to the Court of Appeals in pleadings filed in the above-referenced proceedings, relying on legally-irrelevant "after-acquired" evidence, see McKennon v. Nashville Banner Publishing Co., 115 S.Ct. 879, 885 (1995), that my coworkers had formed genuine fears (i.e., not motivated by discriminatory animus) that I might have been armed and dangerous and poised to carry out a homicidal assault on the firm's premises. See Brief of Appellee District of Columbia Department of Human Rights and Minority Business Development at 9, Freedman v. D.C. Department of Human Rights, D.C. Court of Appeals No. 96-CV-961 (citing record on appeal at 276). The District implicitly asserted that my coworkers' concerns about my potential for armed violence were relevant to the employer's decision to terminate my employment.

I stand by the "Statement of Gary Freedman to the Office of U.S. Attorney for the District of Columbia Regarding Intent to Commit Crime of Violence as Determined by the Law Firm of Akin, Gump, Strauss, Hauer & Feld," ("Statement to the U.S. Attorney") dated April 24, 1995, and made under penalty of criminal sanctions (D.C. Code 22-2514).

I want to advise, however, that representations made by the District of Columbia Office of Corporation Counsel (M. Justin Draycott, Esq.) to the District of Columbia Court of Appeals at oral argument in December 1997 that I "admitted" in pleadings that I filed with the D.C. Department of Human Rights that my "coworkers" were genuinely "afraid" of me (specifically with regard to my potential for armed violence or homicide) conflict with the prior Statement to the U.S. Attorney, and that said conflict may give rise to the appearance that the exculpatory representations that I made in the Statement to the U.S. Attorney were knowingly false, misleading, or perjurious.

Additionally, the Court of Appeals has affirmed, see D.C. No. 96-CV-961 at 3 n. 1, that the Department of Human Rights had legally-valid concerns that a document I submitted to the agency (which purports to have been written by the psychiatrist consulted by Akin Gump) may have been inauthentic (i.e., forged or fabricated), see record on appeal at 8. Presumably, according to the agency, I submitted the possibly inauthentic document in order to deny forensic psychiatric evidence filed by Akin Gump with the agency: forensic psychiatric evidence that related to my mental health (specifically relating to a psychiatric "disorder" that my employer had attributed to me, see D.C. No. 96-CV-961 at 4) and stability (specifically relating to my potential for violence). But see Namerdy v. Generalcar, 217 A.2d 109, 111-112 (D.C. 1966) (circumstantial evidence, such as evidence that a letter is written on the author's letterhead, is sufficient for authentication).

For your additional information I forward a document submission that I made to the Federal Protective Service (Jerry McGill, S.A.) under cover letter dated Sept. 8, 1997 under penalty of a criminal investigation.

Robert Chapman, Esq., Assistant U.S. Attorney for the District of Columbia, is familiar with this matter. The telephone number of the U.S. Attorney's Office in Washington is (202) 514-7566.

I am confident that defamatory statements about me that may raise substantial concerns about my mental stability and fitness to practice law, even acts of defamation committed by the law partners of a close friend of the President of the United States (Vernon E. Jordan, Jr., Esq.) and acts of defamation committed by the current chief White House counsel to President Clinton (Charles F.C. Ruff, Esq.), will in no way impair my chances for fair consideration for employment by your firm.

Sincerely,

Gary Freedman

A Longstanding Belief of Job Harassment -- Akin Gump

The following are pages 484 and 485 of the record on appeal in Freedman v. D.C. Dept. Human Rights, D.C.C.A. 96-CV-961 (Sept. 1, 1998). In the April 1990 I sent a letter to the Anti-Defamation League inquiring into the anti-semitic nature of the harassment I was experiencing at Akin Gump. The letter establishes the long-standing nature of my beliefs. Akin Gump claimed that my belief that I was a victim of job harassment was the product of "ideas of reference," a technical psychiatric term. I do not know whether definitionally the term "ideas of reference" can apply to longstanding beliefs or whether the term applies only to momentary perceptions that the individual tends to forget over time.

May 10, 1993
3801 Connecticut Avenue, NW
#136
Washington, DC 20008

Mr. Donald M. Stocks
Case Investigations
D.C. Dept. of Human Rights &
Minority Business Development
2000 14th Street, NW
Washington, DC 20009

RE: Docket No.: 92-087-P(N)
Gary Freedman v. Akin, Gump, Hauer & Feld

Dear Mr. Stocks:

Enclosed in connection with the above-referenced matter is a copy of a draft of a letter I sent, on about April 16, 1990, to the Anti-Defamation League, 1640 Rhode Island Avenue, NW, (202) 857-6660.

The sending of the letter establishes that I had complained to a third-party regarding the harassment at least as of April 1990. Further, the letter establishes that my perecption that I was a victim of harassment was longstanding--that my complaint of harassment in late October 1991 was not improperly motivated by any bias against any particular individual at that time.

The letter actually sent, like the enclosed draft, did not identify the name of my employer.

I wrote the letter a few weeks after being transferred ["demoted" per Akin Gump in McNeil v. Akin, Gump, Strauss, Hauer & Feld] to the Respondent's Litigation Support Group under Chris Robertson, in March 1990.

I did not receive a reply to the letter, and did not follow up on the inquiry.

Sincerely,

Gary Freedman

April 14, 1990
3801 Connecticut Avenue, NW
Apartment 136
Washington, DC 20008

Dear Sir:

I am interested in any comments you might offer or any published material you might direct me to that discusses harassment on the job by fellow employees--harassment that is not explicitly anti-semitic but might be motivated by anti-semitism.

Specifically, the harassment includes:

1) the spreading of a rumor that an employee is a homosexual

2) shuning of the employee by fellow employees and alleging, in turn, that the employee is unsociable and perversely chooses not to "join in"

3) repeated use of sexual double entendres and sexual innuendo by fellow employees in an attempt to harass the employee, and

4) repeated attempts to devalue the employee in the eyes of his employer.

Thank you very much for your assistance.

Sincerely,

Gary Freedman

Did Brian Bolter Make Any Calls?

Brian Bolter is an award winning anchor/reporter. He joined Washington, D.C.'s WTTG FOX 5 in November of 1999. Two and a half years later he was named co-anchor of the stations flagship newscast FOX 5 News at Ten and the newly launched FOX 5 News at Five. Brian is now the anchor of The Edge at 11pm. I sent him some letters back in 2005. I wonder if he ever made any calls about me. Mr. Bolter never responded to any of my letters.

May 11, 2005
3801 Connecticut Avenue, NW
Apartment 136
Washington, DC 20008
Telephone: (202) 362 7064

Brian Bolter
WTTG Fox Network Channel 5
News Department
5151 Wisconsin Avenue, NW
Washington, DC 20016

Dear Mr. Bolter:

Enclosed for your information are two computer discs that contain a copy of a manuscript I have written, my autobiography -- the story of my life. The document is about 300 pages long. The manuscript is unusual in structure, and is written entirely in the form of quotations from published material. I spent about ten years writing the document, from the spring of 1993 to about the year 2004.

From 1992 to 1996 I was an outpatient at the Department of Psychiatry of the George Washington University Medical Center Department of Psychiatry, which at that time was chaired by Jerry M. Wiener, M.D. (now deceased). Dr. Wiener served in 1994-1995 as President of the American Psychiatric Association. He had earlier served as President of the American Psychoanalytic Association. Coincidentally, Dr. Wiener was Jewish and a native of Texas, like Bob Strauss (who serves as a trustee of GW's Ronald Reagan Institute of Emergency Medicine). Bob Strauss has an interest in biomedical issues and endowed a chair in neurology at the University of Texas Medical School. Both Bob Strauss and Dr. Wiener were graduates of the University of Texas.

I believe (without proof) that senior Akin Gump managers surreptitiously (and unlawfully) obtained draft versions of my autobiography which I submitted to my psychiatrists at GW. I further believe that Vernon E. Jordan, Jr., Esq. (a senior management partner at Akin Gump) transmitted the draft versions to his close friend and confidant, President Clinton or Hillary Rodham Clinton. If you recall, in the mid-1990s, Mrs. Clinton chaired an ill-fated national health care reform initiative that considered benefits for mental health. I hope you can get a chance to at least peruse the manuscript. It's a good read.

Incidentally, I caught your coverage of the Washington Nationals home opener in mid-April. You did a fantastic job. Your commentary was lively and entertaining throughout. I watched the whole thing, and, as you know, I'm not a sports fan (or a fan of sportscasters).Best of luck in your career endeavors, Brian.

Sincerely,

Gary Freedman

P.S. Please send my regards to Dave Feldman. I can't get that guy out of my mind!

Did Bill Sammon of The Washington Times Make Any Calls?

Bill Sammon is FOX News Channel's (FNC) vice president of News and Washington managing editor.

Prior to joining FNC in 2008 as Washington deputy managing editor, Sammon spent two years as senior White House correspondent for The Washington Examiner. He held the same title at The Washington Times, where he covered the Monica Lewinsky scandal and the impeachment of President Clinton.

I sent the following letters to Mr. Sammon, beginning in early September 1998, after learning of the D.C. Court of Appeals' adverse decision in Freedman v. D.C. Dept. Human Rights on, September 1, 1998. Mr. Sammon did not respond to any of my letters.

September 3, 1998
3801 Connecticut Avenue, NW
#136
Washington, DC 20008-4530
(202) 362-7064

Bill Sammon
Staff Writer
The Washington Times
3600 New York Avenue, NE
Washington, DC 20002

Dear Mr. Sammon:

Enclosed are a collection of documents that concern a recent decision handed down by District of Columbia Court of Appeals, Freedman v. D.C. Department of Human Rights, no. 96-CV-961. The appeal concerns an employment harassment/discrimination lawsuit involving the law firm of Akin, Gump, Strauss, Hauer & Feld, one of whose managers, Vernon E. Jordan, Jr., Esq., is a nationally-prominent civil rights leader and close personal friend of President Clinton.

The enclosed computer disc contains the pleadings I filed in the appeal; the pleadings clearly show that Akin Gump's attorney managers offered inconsistent sworn statements in two separate employment discrimination lawsuits: the state proceedings in which I was involved, and a U.S. District Court case involving a black employee.

I have also submitted these materials to a staff writer at The Washington Post, Peter Baker.

Sincerely,

Gary Freedman

bcc: William Kristol (The Weekly Standard)
Evan Thomas (Newsweek)

September 26, 1998
3801 Connecticut Avenue, NW
#136
Washington, DC 20008-4530
(202) 362-7064

Bill Sammon
Staff Writer
The Washington Times
3600 New York Avenue, NE
Washington, DC 20002

Dear Mr. Sammon:

Further to my letter to you dated September 3, 1998 I submit for your information three computer discs that contain all of my personal computer files (mostly letters) that I prepared in the period November 1996 to the present.

The letters are somewhat bizarre, as you might expect in a situation in which the author has been diagnosed with an apparently rare form of bipolar disorder (manic-depressive psychosis) that has undergone spontaneous remission or an apparently rare form of paranoid schizophrenia (a disabling psychotic disorder) that cannot be detected on comprehensive psychological testing and which has left my intellectual functioning intact. Such are the tragic ravages of mental illness, Mr. Sammon.

Sincerely,

Gary Freedman

October 20, 1998
3801 Connecticut Avenue, NW
#136
Washington, DC 20008-4530
(202) 362-7064

Bill Sammon
Staff Writer
The Washington Times
3600 New York Avenue, NE
Washington, DC 20002

Dear Mr. Sammon:

I am sending along a copy of a letter that I received on October 20, 1998 addressed to me by Senator Arlen Specter (dated September 29, 1998). Senator Specter's letter is in response to a document submission I made to him under cover letter dated July 29, 1998.

The enclosed letter to the U.S. Secret Service sparked a criminal inquiry by the Secret Service and the surveillance of my residence by two agents on Friday August 7, 1998. The agents advised me that day (politely) that if I had any plans to leave my residence, they would follow me.

According to Albert H. Taub, M.D., my current treating psychiatrist at the Community Mental Health Center (North Annex: 3246 P Street, NW), the above-referenced letters support a determination that I suffer from a severe (psychotic) mental disturbance that is consistent with my continued entitlement to approximately $10,000 per year in disability benefits payments. (I have already received about $60,000 from the Social Security Administration).

The ravages of mental illness are indeed tragic, Mr. Sammon.

Sincerely,

Gary Freedman

November 3, 1998
3801 Connecticut Avenue, NW
#136
Washington, DC 20008-4530

Bill Sammon
Staff Writer
The Washington Times
3600 New York Avenue, NE
Washington, DC 20002

Dear Mr. Sammon:

I submit some additional documentation relating to my illness.

1. Letter dated April 29, 1996 addressed to my then treating psychiatrist at the George Washington University Medical Center, Dimitrios Georgopoulos, M.D.

2. Published clinical report about a case of paranoid schizophrenia titled "Under Surveillance." In: Spitzer, Robert L., et al. DSM-III-R Casebook: A Learning Companion to the Diagnostic and Statistical Manual of Mental Disorders (Third Edition, Revised) (Washington, DC: American Psychiatric Press, 1989).

The case report (at page 30) mentions that a sustained mood disturbance (bi-polar disorder) is a rule-out for paranoid schizophrenia, that is, the two diagnoses are mutually inconsistent.

3. Letter dated February 14, 1996 prepared by Dr. Georgopoulos stating diagnosis of paranoid schizophrenia. The diagnosis, which is inconsistent with the previously diagnosed illness (bi-polar disorder), was made just weeks after I submitted a letter to GW (dated January 22, 1996) accusing the Medical Center of unlawfully transmitting confidential mental health information about me to managers at the law firm of Akin, Gump, Strauss, Hauer & Feld, my former employer, which is headed by, among others, Vernon E. Jordan, Jr., Esq.

4. Pharmacy receipt indicating prescription by GW of the drug lithium (lithotabs); the prescription is dated 2/25/93 and was for the illness bi-polar disorder (manic-depression).

It just seems to me, Mr. Sammon, that people who tangle with Vernon Jordan either end up going to an awful lot of job interviews or end up with some really strange mental illnesses. But, of course, I suffer from a rare form of paranoid schizophrenia--I guess the illness has affected my thinking.

Sincerely,

Gary Freedman

January 19, 1999
3801 Connecticut Avenue, NW #136
Washington, DC 20008-4530

Bill Sammon
The Washington Times
Washington, DC 20002

Dear Mr. Sammon:

Further to my previous submissions to you I enclose some additional materials:

1. Tape-recordings of five telephone conversations (made in compliance with D.C. law):

(a.) telephone conversation between me and Patricia McNeill, an Akin Gump coworker, on the evening of July 1, 1993 (see Record on Appeal at 41);

(b.) telephone conversation between me and Alana Baptiste, an employee of Akin Gump's employee assistance provider (Sheppard-Pratt), on the morning of July 2, 1993 (See Appeal Record at 63-66);
(c.) telephone conversation between me and Gertrude R. Ticho, M.D., the psychiatrist allegedly consulted by Dennis M. Race, Esq., an Akin Gump partner--the conversation took place on the morning of July 2, 1993. Dr. Ticho denies ever having spoken to Race;

(d.) telephone conversation between me and Gertrude R. Ticho, M.D., in late October 1993. Dr. Ticho states she had "no contact whatsoever" with Akin Gump concerning me;

(e.) telephone conversation between me and my sister, Mrs. Estelle Jacobson, in August 1993, in which sister states her incredulity at the diagnosis assigned by GW, bi-polar disorder; but see bill from GW dated 9/8/92 indicating diagnosis code 296.70 (bi-polar disorder) (Napoleon Cuenco, M.D.);

2. Copy of sworn interrogatory response filed by Race with the D.C. Department of Human Rights in May 1993 in which Race asserts he consulted with Dr. Ticho. (See Appeal Record at 73-77; 81-85);

3. Copy of one page of Dept. of Human Rights Initial Determination issued June 30, 1993 that includes Findings of Fact no. 5 and no. 6 (See Appeal Record at 17);

4. Notice of Award dated August 17, 1993 issued by the U.S. Social Security Administration stating that I became disabled effective October 29, 1991, the date of my job termination by Akin Gump;

5. Complaint issued by the D.C. Board of Medicine on January 6, 1999 relating to the professional conduct of Albert H. Taub, M.D., my current treating psychiatrist, who is an employee of the D.C. Mental Health Services Admin. I currently receive out-patient psychiatric care from Dr. Taub for a rare form of paranoid schizophrenia and bi-polar disorder (now in long-term spontaneous remission);

6. Letter from the FBI dated September 25, 1998 stating that the Bureau declines to investigate this matter;

7. Letter from Senior Judge James L. Buckley of the U.S. Court of Appeals (D.C. Circuit).

Sincerely,

Gary Freedman

May 12, 1999
3801 Connecticut Avenue, NW
#136
Washington, DC 20008-4530
(202) 362-7064

Bill Sammon
Staff Writer
The Washington Times
3600 New York Avenue, NE
Washington, DC 20002

Dear Mr. Sammon:

Enclosed are several documents relating to the disposition, by the D.C. Board of Medicine, of the complaint filed against Albert H. Taub, M.D., my current treating psychiatrist.

There are two interesting features of Dr. Taub's response, dated February 22, 1999.

1. He fails to address inconsistencies in my treatment that occurred during his watch. My former treating psychiatrist, Dr. Singh (who was being supervised by Dr. Taub and Dr. Quint) stated to me, in Jaunary 1998, that it was the belief of Dr. Singh as well as Dr. Quint that I did not suffer from paranoid schizophrenia or any mental illness for which medication was indicated. See letter to Dr. Singh dated January 24, 1998.

2. He omits any reference to the facts relating to serious law enforcement concerns about me, which arose in August 1998, that prompted his treatment recommendations.

CHRONOLOGY:

1. January 1998: no diagnosable mental illness for which medication was indicated.

2. August 1998: re-instatement of diagnosis made by GW in February 1996, namely, paranoid schizophrenia -- for which Dr. Taub recommended medication (Xyprexa).

Both the medical recommendation in August 1998 and the decision by the clinic to institute weekly consultations with Dr. Taub were made following a letter that I had written that prompted a criminal risk investigation by the U.S. Capitol Police (Stephan J. Horan, S.A.); day-long surveillance of my residence by two agents of the U.S. Secret Service (August 7, 1998); and an emergency site visit by two U.S. Secret Service agents to the P Street Clinic on the morning of August 7, 1998. Dr. Taub's carefully crafted response fails to address these facts that prompted his clinical assessments and treatment recommendations in August 1998.
It's almost as if one could deconstruct Dr. Taub's response to read: Mr. Freedman is a very sick man who suffers from paranoid schizophrenia, but I don't want you to know that that diagnosis was instituted in early August 1998 at the time Mr. Freedman was investigated for actions that could have resulted in his criminal prosecution or involuntary commitment.

Sincerely,

Gary Freedman

October 6, 1999
3801 Connecticut Avenue, NW
#136
Washington, DC 20008-4530
(202) 362-7064

Bill Sammon
Staff Writer
The Washington Times
3600 New York Avenue, NE
Washington, DC 20002

Dear Mr. Sammon:

You may find it ironic that it was Raymond F. Patterson, M.D. (President-elect, Washington Psychiatric Society and Medical Director of St. Elizabeths Hospital) who testified for the government in the trial of Francisco Martin Duran that Duran's claim that he suffered from a delusional disorder was a self-serving fabrication offered by Duran to evade criminal liability for his act of shooting at the White House, in 1994.

Yet, apparently, Dr. Patterson sees absolutely nothing wrong with St. Elizabeths Hospital billing Medicare $10,000 per year to treat a patient who suffers from an apparently rare form of paranoid schizophrenia that has left his intellectual functioning intact and that cannot be detected on comprehensive psychological testing. If Dr. Patterson were to testify to these facts at a competency
hearing, he would be laughed out of the hearing room.

Incidentally, it was Assistant U.S. Attorneys Eric Dubelier and Brenda Johnson who prosecuted Duran.

If you're at all interested, the enclosed computer disc contains the document referenced in the letter addressed to Nancy Shaffer, Ph.D., dated September 22, 1999.

By the way, I am still under surveillance by persons associated with the law firm of Akin, Gump, Strauss, Hauer & Feld. They are watching my every move. And, of course, we know I am being sincere -- or do we?

Sincerely,

Gary Freedman

cc: Marzano Lee, S.A., U.S. Secret Service [now with the LA field office]

January 6, 2000
3801 Connecticut Avenue, NW
#136
Washington, DC 20008-4530
(202) 362-7064

Bill Sammon
Staff Writer
The Washington Times
3600 New York Avenue, NE
Washington, DC 20002

Dear Mr. Sammon:

Enclosed for your information is page 353 of the record on appeal in Freedman v. D.C. Department of Human Rights. It is the last page of a document that I had originally submitted to the D.C. Department of Human Rights during the pendency of that agency's investigation of my unlawful job termination complaint, filed against the law firm of Akin, Gump, Strauss, Hauer & Feld, in 1993.

I draw your specific attention to the next to last paragraph, 16. The paragraph contains a reference to a news story published in 1989 in The Washington Times about an incident that concerned an attorney employed in the Dallas, Texas office of Akin Gump. I do not have a copy of the article and I do not know the date of publication; I believe the article was published in about July or August 1989.

As I recall the article now, a male associate in the Dallas office (name unknown) hired a male prostitute and paid for the services using his Akin Gump credit card. Some time later, the firm's accounting office received the bill, which indicated the nature of the transaction. When the attorney was questioned by Akin Gump managers about the bill he explained that he had requested a female prostitute, but that the service had mistakenly sent over a male. And only as a courtesy to the male prostitute did the attorney agree to pay the going rate, in consideration of the prostitute's time and travel expenses. -- But, of course, the attorney did not actually employ the services of the male prostitute, or so he claimed (I don't know if the attorney was wagging his finger furiously as he made the denial, though). Akin Gump summarily terminated the attorney.

I recall that the Akin Gump management committee at the Washington, DC office (where I was employed at the time) deemed the matter of sufficient importance that it sent a memo to all employees that explained that the Washington Times article was all "speculation and hearsay" and that the firm was continuing to investigate the matter. Employees were cautioned not to credit any of the matters asserted in the article.

Sincerely,

Gary Freedman

January 12, 2000
3801 Connecticut Avenue, NW
#136
Washington, DC 20008-4530
(202) 362-7064

Bill Sammon
Staff Writer
The Washington Times
3600 New York Avenue, NE
Washington, DC 20002

Dear Mr. Sammon:

Enclosed is a portion of a document submission I made to the U.S. Social Security Administration (Paul G. Yessler, M.D., psychiatric consultant) in 1993 in support of my disability claim.

Apparently, the U.S. Social Security Administration determined that the document evidenced mental disturbance and not insight into a subtle job harassment scheme, consistent with Eide v. Kelsey-Hayes Co., 397 N.W.2d 532, 538 (Mich. 1986).

Sincerely,

Gary Freedman

February 4, 2000
3801 Connecticut Avenue, NW
#136
Washington, DC 20008-4530
(202) 362-7064

Bill Sammon
Staff Writer
The Washington Times
3600 New York Avenue, NE
Washington, DC 20002

Dear Mr. Sammon:

Enclosed is a copy of an article from a recent issue of Monitor on Psychology, the official magazine of the American Psychological Association, 750 First Street, N.E., Washington, DC 20002-4242.

The article, by staff writer Kathryn Foxhall, is titled "How Would Your Practice Records Look to the FBI? A Massive Enforcement Push is Combing through Health-Care Records in Search of Fraud and Abuse--and Psychologists May Be Targeted." (January 2000).

The article notes that federal authorities, which are cracking down on Medicare fraud by psychologists, are reviewing patient records for sufficient documentation to indicate medical necessity.

Also enclosed is a computer disc that contains a letter dated February 2, 2000 addressed to my current treating psychologist, Nancy Shaffer, Ph.D. (a member of the APA), that will give you some idea of the things we discuss. The therapy sessions are funded in large part by Medicare ($10,000 per year).

I continue to believe that I am under constant surveillance. I attached importance to the fact that someone left a copy of the above-cited journal (Monitor on Psychology) in the magazine exchange bin at the Cleveland Park Public Library the day after I gave Dr. Shaffer the enclosed letter. These coincidences happen all the time.

Sincerely,

Gary Freedman

cc: Nancy Shaffer, Ph.D. [psychotherapist -- 9/99 to 2/03]

February 8, 2000
3801 Connecticut Avenue, NW
#136
Washington, DC 20008-4530
(202) 362-7064

Bill Sammon
Staff Writer
The Washington Times
3600 New York Avenue, NE
Washington, DC 20002

Dear Mr. Sammon:

Enclosed are three computer discs that contain a collection of letters that I submitted to my former treating psychiatrist at the George Washington University Medical Center Department of Psychiatry, Dimitrios Georgopoulos, M.D., who, in February 1996 diagnosed me as suffering from paranoid schizophrenia.

The letters cover the period mid-year 1995 to May 1996, and summarize my consultations with Dr. Georgopoulos. In the letters I summarize and discuss what I considered important parts of the ongoing sessions.

The discs are not IBM format and, to the best of my knowledge, cannot be downloaded. They are word-processor discs.

I gave similar discs to the U.S. Secret Service, which they were able to print out. You can do the same, if you are interested. Otherwise, you can keep the discs.

The letters are important if only because I submitted most or all of the letters to the U.S. Secret Service. The agent in charge of my case at that time (Philip C. Leadroot, S.A.) said he read all my letters, that he found them interesting--even entertaining--and that he looked forward to reading my letters. He said I had writing talent, and maybe should seek employment as a writer.

At the same time, GW considered the letters consistent with the diagnosis paranoid schizophrenia, and not inconsistent with the determination made by the U.S. Social Security Administration that I was not suitable for employment by reason of serious mental illness.

Two totally different views. Who would you believe? I suspect that the U.S. Secret Service had their own psychiatric consultant read the letters.

Sincerely,

Gary Freedman

bcc: Harold F. Baker, Esq. [GW trustee -- now deceased]

July 15, 2000
3801 Connecticut Avenue, NW
#136
Washington, DC 20008-4530
(202) 362-7064

Bill Sammon
Staff Writer
The Washington Times
3600 New York Avenue, NE
Washington, DC 20002

Dear Mr. Sammon:

Enclosed is a collection of documents that evidences recent decisions made by two different agencies that relate, respectively, to my constitutionally-protected right to serve as a juror and my constitutionally-protected right to a professional license.

1. Documents relating to the decision made on June 15, 2000 by the District of Columbia Superior Court that I do not qualify for jury duty by reason of severe (psychotic) mental illness.

2. Attorney license issued by the Commonwealth of Pennsylvania on July 11, 2000, for the period 2000-2001.

I certainly hope that the decision made by the Superior Court Juror Office that I do not qualify for jury duty will in no way impair my chances for employment with the Court in the capacity of law clerk.

Sincerely,

Gary Freedman

cc: Robert Chapman, Esq. (Assistant U.S. Attorney, DC)

Did Dennis M. Race, Esq., Commit the Crime of Jury Tampering?

Did Laurence J. Hoffman, Esq. and Dennis M. Race, Esq. of the law firm of Akin, Gump, Strauss, Hauer & Feld (Akin Gump) commit the crime of jury tampering by filing a sworn statement, on May 22, 1992, with the D.C. Department of Human Rights alleging that they had determined, in consultation with a practicing psychiatrist (Gertrude R. Ticho, M.D.), that I suffered from a psychiatric disorder that rendered me unfit for employment (and had the effect of barring me from jury service)? See Freedman v. D.C. Dept. Human Rights, D.C.C.A. 96-CV-961 (Sept. 1, 1998).

Did Mark Justin Draycott, Esq. and William J. Earl, Esq. of the Office of D.C. Corporation Counsel commit the crime of jury tampering by willfully and deliberately misleading the D.C. Court of Appeals with legally-irrelvant "after-acquired" evidence (proferred in the District's Brief on Appeal) that purported to show that the psychiatric disorder that Gertrude R. Ticho, M.D. diagnosed in consultation with Dennis M. Race, Esq. of Akin Gump was even more severe than Akin Gump or Dr. Ticho knew? Appellee's Brief on Appeal, Freedman v. D.C. Dept. Human Rights, D.C.C.A. 96-CV-961 (Sept. 1, 1998).

The Government of the District of Columbia has affirmed that my former employer, the Washington, DC office of the law firm of Akin, Gump, Strauss, Hauer & Feld ("Akin Gump") terminated my employment in October 1991 on the basis of genuine concerns about my mental health and stability, including the potential for violence. The employer's termination decision was made following an ex parte consultation with a psychiatrist who did not examine me personally. Freedman v. D.C. Department of Human Rights, D.C. Superior Court no. MPA 95-14 (final order, June 10, 1996) (Ellen Segal Huvelle, judge), affirmed by the D.C. Court of Appeals (Terry, Reid, and King, associate judges), No. 96-CV-961 (Memorandum Opinion and Judgment filed Sept. 1, 1998). As of the filing of the complaint in the Superior Court proceedings, in October 1995, and at all times thereafter, it was unlawful under the laws of the District of Columbia for a psychiatrist to offer a professional psychiatric opinion about an individual without benefit of personal examination as is strongly recommended by the American Psychiatric Association's Principles of Medical Ethics. The D.C. Code in its latest revision makes it unlawful for a physician to "[fail] to conform to standards of acceptable conduct and prevailing practice within a health profession." See D.C. Code 2-3305.14(26). This provision was added to the District of Columbia Health Occupations Revision Act by D.C. Law 10-247, enacted on March 23, 1995.

In their appeal briefs, filed with the D.C. Superior Court and the D.C. Court of Appeals, respectively, in 1996 and 1997 in Freedman v. D.C. Dept. Human Rights, Messrs. Draycott and Earl relied heavily on legally-irrelevant "after-acquired" evidence that played no role in Akin Gump's decision to terminate my employment or in Akin Gump's mental status determination, made in late October 1991. See Appellant's Reply Brief, Freedman v. D.C. Dept. Human Rights at 1-6 and Appendix A (Aug. 11, 1997).

Further, the U.S. Supreme Court has held that a citizen has a constitutionally-protected right to serve on a jury. Any unlawful acts by Mssrs. Race, Hoffman, Draycott, and Earl that improperly prevent me from serving on a jury may constitute a federal civil rights violation.

In the last decade I was barred from jury duty by the D.C. Superior Court by reason of mental illness on two occasions: in June 2000 and in about December 2003.

November 3, 2000
3801 Connecticut Avenue, NW
#136
Washington, DC 20008-4530

Duane B. Delaney
Clerk of the Court
Superior Court of the District of Columbia
500 Indiana Avenue, NW
Washington, DC 20001

DISQUALIFIED PETIT JUROR NO. 401054

Dear Mr. Delaney:

I was summoned for jury duty in June 2000, and was disqualified by reason of mental illness.

This will respectfully advise the Court that I am cooperating fully with the treatment of my illness, a psychiatric disorder that has rendered me not suitable for employment since October 29, 1991.

Sworn statements about the illness that were submitted to a District agency by two attorney managers of my former employer (Dennis M. Race, Esq. and Laurence J. Hoffman, Esq., both members of the D.C. bar) were affirmed as genuine and credible by the District of Columbia Court of Appeals in Freedman v. D.C. Department of Human Rights, No. 96-CV-961 (Sept. 1, 1998, Terry, Reid, and King, associate judges).

The enclosed statement that I have prepared, and signed under penalty of criminal sanctions, details the current status of my beliefs that were placed in controversy by the D.C. Office of Corporation Counsel (Charles L. Reischel, Esq., Mark Justin Draycott, Esq., and William J. Earl, Esq.) in the above-referenced appeal. My beliefs were offered by the Corporation Counsel to support the employer's allegation that my mental health and stability rendered me not suitable for employment.

I have submitted written communications to the Office of U.S. Attorney about this matter (Robert R. Chapman, Esq., assistant U.S. attorney for the District of Columbia).

Sincerely,

Gary Freedman

STATEMENT OF GARY FREEDMAN CONCERNING MENTAL STATUS AFFIRMATION MADE BY THE DISTRICT OF COLUMBIA OFFICE OF CORPORATION COUNSEL

Under penalties of the law, including criminal penalties for false statements under D.C. Code 22-2514, I declare that the following statement truthfully represents my current beliefs, as of November 23, 2009, concerning my employment experience at the Washington, D.C. office of the law firm of Akin, Gump, Strauss, Hauer & Feld ("Akin Gump"), where I was employed from June 13, 1988 to October 29, 1991.

The District of Columbia Office of Corporation Counsel ("The District") (represented by Charles L. Reischel, Esq.; M. Justin Draycott, Esq.; and William J. Earl, Esq.) has affirmed that my allegations concerning my employment experience at Akin Gump reflected genuinely-held beliefs that had been legitimately determined by Akin Gump to be the product of a psychiatric disorder; the District did not argue that those allegations were self-serving fabrications offered to obtain government benefits or to obtain a disqualification from jury service. See Brief of Appellee District of Columbia, Freedman v. D.C. Dept. of Human Rights at 5-12, D.C.C.A. no. 96-CV-961.

This statement details the current status of my beliefs that were offered by the District, in pleadings filed on July 25, 1997 with the D.C. Court of Appeals, in support of the determination made by the D.C. Department of Human Rights and Minority Business Development that my former employer, Akin Gump, had genuine concerns about my mental health and stability that justified the firm's determination that I was not suitable for employment by reason of a psychiatric opinion that indicated that I suffered from a "disorder." See Freedman v. D.C. Dept. of Human Rights, D.C.C.A. no. 96-CV-961 at 4 (Memorandum Opinion and Judgment, Sept. 1, 1998) ("the firm . . . learned [upon consulting a practicing psychiatrist] that [Mr. Freedman's] behavior was indicative of a disorder known as 'ideas of reference,' which is sometimes accompanied by violent behavior.').

I continue to believe that beginning in late October 1988 until the date of my job termination, on October 29, 1991, managing attorneys at Akin Gump had clandestine telephone contacts with my sister, during which my sister recounted details of phone conversations between herself and me. I further believe that my sister faxed to firm management documents relating to me, including my grade school report cards and college exam books, among other material. I also believe that the information obtained by the managing attorneys was disseminated throughout the firm without my consent. See Brief of Appellee District of Columbia at 5-6.

I continue to believe that the legal assistant administrator (Maggie Sinnott) invidiously had me typed as a homosexual, and that her interaction with me was, throughout my tenure, guided by that characterization. The administrator would glance and scowl at my genital area when she saw me. Additionally, at a legal assistant Happy Hour held at Stetson's in the Adams-Morgan neighborhood during the summer of 1989, the administrator (Sinnott) introduced me to women only. See Brief of Appellee District of Columbia at 6. At the said Happy Hour I chatted with a summer intern named Marjorie Levy, daughter of a senior partner at the firm, Charles Levy; I vaguely recall that Marjorie Levy attended Cornell University and that she was writing her autobiography.

I continue to believe that on the second day of my assignment with the firm as an agency-supplied legal assistant, an incident of harassment occurred after I introduced myself to a male employee outside whose office I had been assigned (earlier that day by the legal assistant administrator, Sinnott). A group of employees proceeded to gather in the office adjacent to my assigned work station, and proceeded to engage in a lively and mildly sexually suggestive discussion about the size of the male employee's chest and whether it was hairy or not. The discussion lasted about two minutes. See Brief of Appellee District of Columbia at 6.

I continue to believe that while I was walking down a hallway in the firm's offices, in May 1988, one of the firm's associates (Paul Wageman) who was walking toward me, began to hold a pencil next to his genital area and move it up and down in an intentional act of harassment. See Brief of Appellee District of Columbia at 6-7. Wageman retained eye contact with me as he walked down the hall rubbing the pencil against his genital area.

I continue to believe that soon after I was hired by the firm as a temporary legal assistant in June 1988, the legal assistant coordinator (John D. Neary) invidiously denied me the legal assistant orientation I had been promised. I was also invidiously denied a box of business cards or personalized note pads, which items had also been promised. See Brief of Appellee District of Columbia at 7.

I continue to believe that in mid-June 1988 an incident of harassment occurred near my office. On the first morning in a newly-assigned office, I got a cup of coffee in an adjacent kitchen area. At that time, a firm partner (David Hardee) said to me "I smell something sweet in here. Do you smell something sweet in here?" I replied "no." The attorney repeated, "I smell something sweet in here." See Brief of Appellee District of Columbia at 7. I believe that Hardee's use of the word "sweet" was intended to be homosexual innuendo. Hardee, a native of South Carolina, had professional ties to Vernon E. Jordan, Jr., a member of firm management; Jordan served on the Board of Directors of a corporation (RJR Nabisco) that Hardee represented. I cannot recall any other occasion on which Hardee initiated verbal contact with me. Hardee and I occupied nearby offices from mid-June 1988 to mid-March 1989.

I continue to believe that during the three-and-a-half years that I was employed at the firm, I was intentionally shunned by other employees. Three employees whom I asked to lunch initially agreed to dine with me and later changed their minds. See Brief of Appellee District of Columbia at 7.

I continue to believe that one day during the summer of 1988 I went to the office of another legal assistant (Jesse Raben), who had been coached to harass me. During my conversation with Raben, another employee (the legal assistant coordinator, Neary) walked by and, without saying a word, nodded to Raben. Later, Raben entered the Xerox room where I was making copies and continued the conversation in an affectedly buoyant manner. The next day Raben's earlier buoyant manner was noticeably gone. See Brief of Appellee District of Columbia at 7-8. On an occasion in November 1989 and again in about March 1990 I asked Raben if he would go to lunch with me; he initially agreed but later backed out.

I continue to believe that on a day in February 1989 a stack of documents on my desk had been tampered with in order to provoke a paranoid response from me. See Brief of Appellee District of Columbia at 8. This incident may be an example of "gaslighting." Gaslighting is a form of intimidation or psychological abuse in which false information is presented to the victim, making him doubt his own memory and perception. The classic example of gaslighting is to change things in a person's environment without the person's knowledge, and to explain that he "must be imagining things" when he challenges these changes. At that time I worked on a document production task supervised by Constance Brown. The day after the incident I chatted with Brown, who stated spontaneously and not in reference to anything I had said, that she sometimes thought there were "ghosts" in the building who tampered with things; I registered Brown's comments as a prompt that was calculated to trigger paranoid speculation from me about the previous day's incident concerning the out-of-place documents in my office. During my tenure Brown prepared four written performance evaluations that summarized her work experience with me from May 1988 to May 1990, a two-year period; Brown's written evaluations were, without exception, exemplary. Despite her written depictions of me as a superior employee, there is no evidence that Brown supported my request to firm managers for a job promotion in October 1991, which triggered my job termination, or that she disputed the reported statements of coworkers--offered to firm management immediately prior to the decision to terminate—that I was paranoid, hypersensitive to criticism, or that I had a violent temperament.

I continue to believe that in 1989 I was subjected to harassment (throughout the period late March to late October) after I was assigned to share office space with other legal assistants (including Stacey Schaar). During the period late March to mid-April 1989, several legal assistants would meet in the office space for lunch and conversation. Their conversations were often sexual in nature, and featured details, expressed in double-entendres, derived from my personal life. On one occasion, these legal assistants seemed to review the contents of my apartment with detail and accuracy. I noted that these conversations stopped after I spoke to my sister complaining about this type of interaction, in about mid-April 1989. See Brief of Appellee District of Columbia at 8.

I continue to believe that certain legal assistants made invidious references to my friendship with a male employee (Craig W. Dye) with whom I had previously worked at the law firm of Hogan & Hartson. At an Akin Gump dinner held in May 1989, another legal assistant (Raben) acknowledged to me that he had heard a rumor that I was homosexual. See Brief of Appellee District of Columbia at 8. Dye's supervisor at Hogan & Hartson during the period October 1986 to March 1987 was an individual named Sheryl Ferguson, a computer specialist. Ferguson left Hogan in the spring of 1987, and in about mid-year 1989 Dye assumed Ferguson's former supervisory position in that firm's Computer Applications Department. In 1988 Akin Gump hired Ferguson, who by that time worked at ATLIS, a litigation support company, to perform, as a consultant, a study of Akin Gump's litigation support operation. Ferguson completed the consulting task in early 1989, and submitted a lengthy written report in February 1989. The report acknowledged the cooperation of Christine Robertson, Akin Gump's litigation support administrator, as well as several Akin Gump attorneys including John ("Jack") Gallagher and David Callet, senior partners who represented Eastern Airlines (the major client to which I was assigned), as well as an associate named David Tobin, who subsequently left the firm. Ferguson had been my direct supervisor at Hogan & Hartson during the period September 1985 to March 1987. Brown, on her initiative, supplied me with a copy of Ferguson's written technical report, despite the fact that the report was stamped confidential and despite the fact that, according to Akin Gump, I was, as of February 1989, a dispensable temporary employee who had been hired to perform a specific time-limited clerical task for the client Eastern Airlines. I continue to believe that Brown supplied me with a copy of the report knowing that the report was confidential, knowing that Ferguson had been my supervisor at another law firm, and anticipating that I would supply a copy of the report to persons I had worked with at Hogan & Hartson, which would have been an act of gross misconduct on my part. Eastern Airlines filed for bankruptcy protection a few weeks later, on March 9, 1989.

I continue to believe that during the period March 20 through October 23, 1989, I was covertly observed by a computer systems manager (Richard "Dick" Stanke) at the firm. This individual would watch while I engaged in conversations with others and then go into his office and close his door to report to a third party what he observed. See Brief of Appellee District of Columbia at 8-9. At that time the computer systems manager (Stanke) and I resided in the same apartment building; the resident manager of the building was named Elaine Wranik. At that time Stanke worked in a private office a few feet from the office space occupied by legal assistant Stacey Schaar and me. It was Schaar who said she was afraid of me, see Brief of Appellee District of Columbia at 9. Schaar added that the resident manager of the apartment building (where both Stanke and I resided) was also afraid of me. Schaar and Stanke used to chat occasionally.

I continue to believe that during the summer of 1989, some of the telephone conversations of the legal assistants with whom I shared an office were exaggeratedly sexual in nature, an affected behavior that was calculated to harass me. See Brief of Appellee District of Columbia at 9. On one occasion during the summer of 1989 one of the legal assistants in question (Schaar) had made several photocopies of an article published in The Washington Times that described a homosexual incident involving a male attorney who practiced in the firm's Dallas office, then proceeded to distribute copies of the article to various employees, including me; the legal assistant (Schaar) was later reportedly fired, in May 1990, for gross misconduct.

I continue to believe that I was harassed by intimidating and hostile statements made by one coworker (Schaar) who said to me that she and other employees feared I was homicidal: specifically, Schaar stated to me that she and other employees were afraid that I might buy a gun, bring it to the firm's premises, and carry out a mass homicidal assault. See Brief of Appellee District of Columbia at 9. Schaar also stated to me: "Even the manager of your apartment building is afraid of you." Schaar's statement concerning the resident manager of my apartment building (Wranik) is contained in a document I prepared in June 1993 (addressed to my then treating psychiatrist, Suzanne M. Pitts, M.D.) and which I later forwarded to the U.S. Department of Justice (DOJ) in January 1996; the cover letter I prepared and sent to DOJ contained a statement that prompted a DOJ referral to the U.S. Secret Service, which agency summoned me for questioning concerning the materials, in February 1996. The investigating Secret Service agent was named Philip C. Leadroot.

I continue to believe that at the firm's 1989 Christmas party, one of the firm's attorneys (Larry Tanenbaum), the alcoholic former husband of the firm's legal assistant administrator (Sinnott), invidiously glanced at my genital area. See Brief of Appellee District of Columbia at 9. In the summer of 1990, the same attorney glanced at my genital area during an elevator ride, see Brief of Appellee District of Columbia at 9, in the period after I asked to lunch a summer intern (Matthew Erskine) whose father was an FBI agent. (Erskine later declined to go to lunch with me).

I continue to believe that in early January 1990 employees or members of the firm burglarized my apartment (whose resident manager was Elaine Wranik). These individuals, I believe, inspected many of the books in my apartment and, armed with a video camera, took a video film of my apartment. I believe that a copy of that video film was sent to my sister, who resided in New Jersey. I believe the unlawful entry into my apartment was done with the knowledge and consent of the firm's management committee. See Brief of Appellee District of Columbia at 9.

The class of persons about which, according to the District, I formed a genuine belief conspired to, or, in fact, unlawfully entered my residence, in January 1990, see Brief of Appellee District of Columbia at 9, includes Vernon E. Jordan, Jr., a close personal friend of former President William Jefferson Clinton (an individual whose law license has been suspended in the state of Arkansas by reason of acts of moral turpitude).

I continue to believe that some time in early spring 1990 harassment occurred after I was assigned, by the litigation support administrator (Robertson), to a work station to perform a specified task (for the client Music Corporation of America “MCA”). Upon sitting down, I looked into the trash basket next to the desk and noticed that it contained a baby food jar. The jar had been wiped clean before being placed in the trash basket. This fact was consistent with the jar having been brought from home by someone for the express purpose of placing it in the trash basket with the intent to harass me. The epithet "baby" is stereotypically anti-Semitic. See Brief of Appellee District of Columbia at 9-10. Coincidentally, the client MCA was later purchased by Edgar Bronfman, an individual active in numerous Jewish causes; Bronfman has served as Chairman of the Anti-Defamation League and has headed the World Jewish Congress. Robertson was later found to have made a racially-inappropriate statement about a minority person, and was alleged to have colluded with another supervisor in the discriminatory termination of a black employee. McNeil v. Akin, Gump, Strauss, Hauer & Feld, no. 93-0477 (D.D.C., Nov. 29, 1993).

I continue to believe that on April 13, 1990 I overheard a conversation in which the legal assistant administrator (Sinnott) gave instructions to a legal assistant concerning the bates-stamp numbering of some documents, and that the administrator's repeated use of the word "bates" was a double-entendre: an offensive and intimidating reference to masturbation. See Brief of Appellee District of Columbia at 10. The incident concerning Sinnott occurred on a Friday, hours before my regularly-scheduled appointment with my then treating psychiatrist, Stanley R. Palombo, M.D.; I interpreted the actions of the administrator (Sinnott) as a prompt that was calculated to encourage me to make paranoid comments about the administrator to my psychiatrist, who would communicate my comments back to firm managers.

I continue to believe that during 1990 my coworkers used words and phrases that I had used during private sessions with my psychiatrist (Dr. Palombo). I inferred that the psychiatrist was discussing my case with firm management. The psychiatrist denied that he had any communication with members of the firm. See Brief of Appellee District of Columbia at 10.

I continue to believe that some time in 1990 someone had placed a brochure for a secretarial course on my desk with the intent to harass. The brochure was pink in color and featured photographs of women only. On another occasion, someone left a (Levi-Strauss) clothing catalogue on my desk. The front cover of the catalogue depicted a young woman holding a little boy. See Brief of Appellee District of Columbia at 10. At that time "Levy" and "Strauss" were the names of two senior partners at the firm; their offices were roughly adjacent to each other's. Levy worked in the firm's tax practice group, which also included Hardee. During the summer of 1989, and later that same year during Christmas break, Levy's daughter, Marjorie, a college student, interned at the firm under the supervision of the legal assistant administrator (Sinnott). In early 1990 I had reported to my then treating psychiatrist (Dr. Palombo) that I had had a dream, sexual in nature, that alluded to Marjorie Levy.

I continue to believe that in September or October 1990 my female supervisor (Robertson), who was handing documents to me, pulled the documents back towards herself in such a way that, as I was reaching for them, I touched her breasts, see Brief of Appellee District of Columbia at 11, and that the supervisor's conduct was intentionally sexual in nature. The documents in question concerned trademark litigation involving the client National Football League, a client represented by Tanenbaum. The incident occurred a day or two before I was scheduled to visit my sister and her family in New Jersey. I formed the belief at that time, and continue to believe, that Robertson intended that the transaction serve as an ego-bolstering maneuver, overdetermined in nature and consistent with certain predicate thinking. I believe that the content of the documents Robertson handed to me (relating to the "masculine" sport of football) was insidiously related to her act of having me touch her breast. I believe that Robertson was trying to bolster my sense of masculinity so that I would gain the assurance to make frank comments to my family about my perceptions of coworkers, without fear of reprisal; or, perhaps, take more days off from work than I had originally requested. In terms of predicate thinking I applied the following formula: football = touching female breast = masculinity = absence of castration fears = ability to talk frankly without fear of reprisal or job termination = engage in other risky behavior that might endanger job security (such as taking time off from work). Contrariwise, we have the following formulation: homosexuality = castration fears = job insecurity = fear of job termination = strict adherence to rules (cf. Orthodox Jews) out of fear of being seen and punished = fear of taking risks. Robertson was later found to have made a racially-inappropriate statement about a minority person, and was alleged to have colluded with another supervisor in the discriminatory termination of a black employee. McNeil v. Akin, Gump, Strauss, Hauer & Feld, no. 93-0477 (D.D.C., Nov. 29, 1993). Robertson reportedly told her employees, in the period immediately following my job termination, that she was afraid I might return to the firm’s premises to kill her.

I continue to believe that some time in 1990, while I was riding alone in an elevator with a firm partner (David Eisenstadt), the attorney began to pace back and forth and whistle while glancing at me in an intentionally hostile and intimidating manner. See Brief of Appellee District of Columbia at 11. The partner was married to the firm's attorney recruitment administrator, Nina Eisenstein, who worked for hiring partner, Dennis Race, the individual who terminated my employment.

I continue to believe that in March 1991 an (unidentified) coworker invidiously inserted a letter opener, blade first, into a stack of documents located on my desk. The materials were part of a document production task that was supervised by litigation support employee, Lutheria Harrison; the document production task involved a client (LL&E) that was represented by Tanenbaum. I believe the letter opener was intentionally positioned to give the impression of a symbolic stabbing in order to provoke a paranoid response from me. See Brief of Appellee District of Columbia at 11. Some time during the same week in March 1991 someone had scrawled the phrase "WHITE TRASH" on a piece of paper that had been left on my desk; the piece of paper was a computer printout relating to work for the client LL&E. I believe that the incident was calculated to prompt me to speculate openly that it was a black employee who was harassing me. The litigation support administrator (Robertson) later in 1991 facilitated Harrison's promotion to the legal assistant program, which was supervised by Tanenbaum's former wife, Sinnott; I was terminated in October 1991, despite an exemplary performance record, days after I requested a like promotion and filed a discrimination charge against Robertson: a charge that was dismissed by firm managers as a product of my paranoia.

I continue to believe that some time in April 1991, while I was seated at my desk after returning from lunch, my female supervisor (Robertson) invidiously asked a female employee who was seated nearby, "Are you wet?" I believe that the phrase could be interpreted as alluding to a state of sexual excitation. See Brief of Appellee District of Columbia at 11. Robertson was later found to have made a racially-inappropriate statement about a minority person, and was alleged to have colluded with another supervisor in the discriminatory termination of a black employee. McNeil v. Akin, Gump, Strauss, Hauer & Feld, no. 93-0477 (D.D.C., Nov. 29, 1993).

I continue to believe that on another occasion in the summer of 1991, my supervisor (Robertson), invidiously offered me a piece of chocolate, and stated to me "Here, you look like you need some chocolate." I interpreted the phrase "Here, you look like you need some chocolate" as a reference to anal intercourse. See Brief of Appellee District of Columbia at 11. Robertson was later found to have made a racially-inappropriate statement about a minority person, and was alleged to have colluded with another supervisor in the discriminatory termination of a black employee. McNeil v. Akin, Gump, Strauss, Hauer & Feld, no. 93-0477 (D.D.C., Nov. 29, 1993).

I continue to believe that in early August 1991, a coworker, Lutheria Harrison, who was positioned in a cubicle adjacent to mine, invidiously emphasized the word "July" while she spoke with a coworker about her July telephone bill. Two days later this seemingly meaningless incident assumed some small measure of significance when I overheard this same employee, who was seated at her desk, state in a markedly audible tone of voice the children's rhyme, "liar, liar, pants on fire." On another occasion a brief time later, I heard the same employee utter the Yiddish phrase, "Oy, veh." I believe the word "July" is a homophone for the phrase "Jew Lie," and I believe that these anecdotes suggest that some of my coworkers may have had an anti-Semitic animus. See Brief of Appellee District of Columbia at 11-12. The litigation support administrator (Robertson) later in 1991 facilitated Harrison's promotion to the legal assistant program; I was terminated in October 1991, despite an exemplary performance record, days after I requested a like promotion and filed a discrimination charge against Robertson: a charge that was dismissed by firm managers as a product of my hypersensitivity to trivial goings-on in the workplace.

I continue to believe that on the afternoon of October 2, 1991 a female legal assistant (Katherine Harkness) engaged in acts of overt harassment during my meeting with her in her private office. I was seated in front of the female employee's desk and she was positioned in back of the desk, but leaning over it, supporting her torso with her elbows. As she was reviewing my work for the client Hoechst, she gyrated her hips and rubbed her pelvic region against the desk in a sexual manner suggestive of masturbation while simultaneously expressing her work-related comments in the form of double entendres. See Brief of Appellee District of Columbia at 12. The legal assistant (Harkness) was supervised by the legal assistant administrator (Sinnott). The billing partner for this client (Hoechst) was Callet, who had represented Eastern Airlines—the same client I had worked for almost exclusively for two years (1988-1990). Callet is a graduate of The Pennsylvania State University, my college alma mater. On an occasion in mid-June 1988 Callet and I chatted in his office; Callet was curious about my background. I reviewed this incident with an EEOC investigator, Franklin C. Jones, at EEOC Headquarters in November 1991, a few weeks after my job termination. The EEOC investigator said that it was his opinion that this particular incident was prima facie evidence of unlawful harassment under Title VII.


CERTIFICATION OF GARY FREEDMAN

I, Gary Freedman, certify under penalty of law that the above statements accurately represent my current beliefs about my employment experience at the law firm of Akin, Gump, Strauss, Hauer & Feld. Consistent with the position of the District of Columbia Office of Corporation Counsel, see Brief of Appellee District of Columbia at 5-12, Freedman v. D.C. Department of Human Rights, D.C.C.A. no. 96-CV-961, I affirm that the above statements are based on my genuine beliefs and are not a self-serving fabrication.

I understand that this statement, which affirms my continued adherence to a body of beliefs that were previously offered by the District of Columbia Office of Corporation Counsel to the District of Columbia Court of Appeals as evidence suggestive of a psychiatric "disorder," might impair my ability to serve on a jury, obtain employment, or impair the exercise of other rights and liberties protected by law.

GARY FREEDMAN
November 23, 2009

What Would Happen If Bob Strauss Returned To Akin Gump as a Young Associate? What Then?

I sometimes wonder: What would happen if Bob Strauss -- an individual of judgment, character and integrity -- obtained employment as a young associate at the law firm he founded, Akin, Gump, Strauss, Hauer & Feld? Would he be successful in the firm he created, or would he face job harassment, termination and defamation?

Perhaps a review of Dostoyevsky's masterpiece "The Grand Inquisitor" is instructive. I first read "The Grand Inquisitor" in Ellen Furman's introductory English course at Penn State Abington, during the spring term of my first year of college. I was 18 years old at that time, in 1972. "What you don't know when you're 18 is that you'll be 18 for the rest of your life."

The Grand Inquisitor is a parable told by Ivan to Alyosha in Dostoevsky's novel The Brothers Karamazov (1879-1880). Ivan and Alyosha are brothers; Ivan questions the possibility of a personal, benevolent God and Alyosha is a novice monk.

The Grand Inquisitor is an important part of the novel and one of the best-known passages in modern literature because of its ideas about human nature and freedom, and because of its fundamental ambiguity.

The Parable

The tale is told by Ivan with brief interruptive questions by Alyosha. In the tale, Christ comes back to earth in Seville at the time of the Inquisition. He performs a number of miracles (echoing miracles from the Gospels). The people recognize him and adore him, but he is arrested by Inquisition leaders and sentenced to be burnt to death the next day. The Grand Inquisitor visits him in his cell to tell him that the Church no longer needs him. The main portion of the text is the Inquisitor explaining to Jesus why his return would interfere with the mission of the church.

The Inquisitor frames his denunciation of Jesus around the three questions Satan asked Jesus during the temptation of Christ in the desert. These three are the temptation to turn stones into bread, the temptation to cast Himself from the Temple and be saved by the angels, and the temptation to rule over all the kingdoms of the world. The Inquisitor states that Jesus rejected these three temptations in favor of freedom, but thinks that Jesus has misjudged human nature. He does not believe that the vast majority of humanity can handle the freedom which Jesus has given them. Thus, he implies that Jesus, in giving humans freedom to choose, has excluded the majority of humanity from redemption and doomed it to suffer.

Despite declaring the Inquisitor to be an atheist, Ivan also implies that the Inquisitor and the Catholic Church follow "the wise spirit, the dread spirit of death and destruction," i.e. the Devil, Satan, for he, through compulsion, provided the tools to end all human suffering and unite under the banner of the Church. The multitude then is guided through the Church by the few who are strong enough to take on the burden of freedom. The Inquisitor says that under him, all mankind will live and die happily in ignorance. Though he leads them only to "death and destruction," they will be happy along the way. The Inquisitor will be a self-martyr, spending his life to keep choice from humanity. He states that "Anyone who can appease a man's conscience can take his freedom away from him." The Inquisitor proceeds to explain why Christ was wrong to reject each temptation by Satan. Christ should have turned stones into bread, as men will always follow those who will feed their bellies. The Inquisitor recalls how Christ rejected this saying, "Man cannot live on bread alone," and explains to Christ "Feed men, and then ask of them virtue! That's what they'll write on the banner they'll raise against Thee." Casting himself down from the temple to be caught by angels would cement his godhood in the minds of people, who would follow him forever. Rule over all the kingdoms of the Earth would ensure their salvation, the Grand Inquisitor claims.

The segment ends when Christ, who has been silent throughout, kisses the Inquisitor on his "bloodless, aged lips" instead of answering him. On this, the Inquisitor releases Christ but tells him never to return. Christ, still silent, leaves into "the dark alleys of the city." Not only is the kiss ambiguous, but its effect on the Inquisitor is as well. Ivan concludes, "The kiss glows in his heart, but the old man adheres to his idea."

Christ's kiss may also mirror an event that occurs earlier in the novel when the elder Zosima bows before Dmitri Karamazov. No one seems to understand why Zosima did this. Fyodor Karamazov exclaims, "Was it symbolic of something, or what?"

Not only does the parable function as a philosophical and religious work in its own right, but it also furthers the character development of the larger novel. Clearly, Ivan identifies himself with the Inquisitor. After relating the tale, Ivan asks Alyosha if he "renounces" Ivan for his views. Alyosha responds by giving Ivan a soft kiss on the lips, to which the delighted Ivan replies, "That's plagiarism... Thank you though." The brothers part soon afterward.

November 22, 1963: In Memoriam

In November 1988, twenty-five years after the death of President John F. Kennedy on November 22, 1963, television networks marked the anniversary.

Ted Sorenson was interviewed on one show. The interviewer asked: "Do you still think about President Kennedy?" Sorenson answered: "I think about him every day. Not a day goes by when I don't think about him."

___________

In the beginning was the rule of sacred kings
Who hallowed field, grain, plow, who handed down
The law of sacrifices, set the bounds
To mortal men forever hungering

For the Invisible Ones' just ordinance
That holds the sun and moon in perfect balance
And whose forms in their eternal radiance
Feel no suffering, nor know death's ambiance.

Long ago the sons of the gods, the sacred line,
Passed, and mankind remained alone,
Embroiled in pleasure and pain, cut off from being,
Condemned to change unhallowed, unconfined.

But intimations of the true life never died,
And it is for us, in this time of harm
To keep, in metaphor and symbol and in psalm,
Reminders of that former sacred reverence.

Perhaps some day the darkness will be banned,
Perhaps some day the times will turn about,
The sun will once more rule us as our god
And take the sacrifices from our hands.
Hermann Hesse, Magister Ludi: The Glass Bead Game.

Tanka

Vague and very veiled
Recollections of the past
Gently glide by me,
Then too quicky disappear --
When I grope for them, they're gone.

--James Kahn, CHS 230

Mirror -- Published by the students of the Central High School of Philadelphia, is the oldest High School Magazine in the United States. Volume 84, number 2 -- May, 1969.

James Kahn was a classmate in my ninth-grade English class at Central High School, taught by Mr. Elliott Cades. We were not friends. But we spoke on the telephone several years ago; Mr. Kahn was in charge of a recent class reunion. I reminded him that we were in the same English class in ninth grade. "Mr. Cades? How could I forget that?"

Another student in that class -- in fact he sat next to me the entire school year -- was Elliott R. Feldman, Esq., now a partner in the Philadelphia law firm of Cozen O'Connor. Mr. Feldman is a brilliant young man. I shipped him a copy of my book Significant Moments some time ago. Mr. Feldman and I were not friends and, in fact, never spoke a word to each other.

http://www.cozen.com/attorney_detail.asp?d=1&atid=206