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.