Friday, November 27, 2009

Racism at Vernon Jordan's Law Firm: McNeil v. Akin, Gump, Strauss, Hauer & Feld







Civil Action No. 93-0477(JHG)


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.


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.


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.


November 29, 1993.



United States District Judge


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.

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