Akin Gump: Yet Another Material Lie!

When the law firm of Akin, Gump, Strauss, Hauer & Feld was called upon to justify the termination of my employment, the firm told the District of Columbia Department of Human Rights that my work performance was not a factor in the termination decision.

In an interrogatory response filed with the Dept. of Human Rights dated May 22, 1992, Dennis M. Race, Esq. stated: "Respondent does not dispute that Claimant's written performance evaluations were very good. Claimant was a law school graduate performing paralegal or administrative duties. When terminated, he was told that his actual work product was not a problem." (Record on appeal at 139)

Again, in a response to additional interrogatories filed by the firm with the agency on May 18, 1993, Dennis Race stated: "As previously stated, Complainant's substantive performance, as reflected in his written evaluations, was not an issue in the ultimate decision to terminate."

Yet again, Dennis Race's sworn statements can be shown, using a Nixonian phrase, to be at variance with the facts. In plain English, Dennis Race lied.

The earliest memorial of the termination meeting (that took place on October 29, 1991)is contained in a document I submitted to the D.C. Department of Human Rights in late November or early December 1991, weeks after the termination, to support my application to the agency to file an unlawful termination complaint. The document summarizes my work history at the firm; it details suspicious actions by firm personnel throughout my tenure and, in a final paragraph, records my recollection of the termination meeting. (See record on appeal at 334-349)

The document states:

"41. About noon on Tuesday October 29, 1991 I was called to Mr. Race's office. Present in addition to Mr. Race were the personnel administrator, Ms. Laurel Digweed, and my supervisor, Ms. Christine Robertson. Mr. Race advised me that the firm's management committee had decided to terminate me. Mr. Race explained that there was a "lack of fit" between me and other firm personnel. He said that my allegations of harassment had been investigated and could not be substantiated. He added that during the course of his investigation employees had made allegations about me including statements that I was overly sensitive to criticism and that I simply ignored directions to correct my work.

Chris Robertson said nothing during the course of this meeting; she added nothing by way of corroboration or amplification.

As for my request for private office space, Mr. Race said this was not practicable from the firm's standpoint. And, with regard to my request that I be reassigned to the legal assistant group, Mr. Race stated that J.D. Neary and Maggie Sinnott told him they could not work with me, that they found me difficult to work with, and that they were 'afraid' of me." (Record at 349).

In a six-page letter dated September 17, 1992 addressed to the Department of Human Rights case investigator, Donald M. Stocks, I detailed at length the circumstances surrounding the job termination. (Record at 527-532).

The letter states:

"On Tuesday October 29, 1991 Dennis Race advised me of the decision to terminate. He said that one of the problems with me was that my work was of poor quality 3/, but that no one ever complained to me because I was oversensitive and overreacted to complaints. (This despite the fact that my most recent job evaluation, in May 1991, described me as being 'as close to the perfect employee as is possible to find.')" (Record at 528)

The letter offers a lengthy defense of the quality of my work product.

The significance of the letter is twofold. First, the letter (dated September 17, 1992) was written before I received on about December 28, 1992 (record at 511) Akin Gump's interrogatory response, dated May 22, 1992, in which I learned for the first time that Dennis Race denied that he had ever told me that the quality of my work product was a factor in the termination decision. Thus, the statements I offered to the Department of Human Rights that Dennis Race told me that my work was of poor quality at the termination meeting were admissions against interest on my part. I was admitting to the agency that I was told that the quality of my work product was poor.

Second, generally speaking, a person tends to be defensive about things that he has been accused of. My act of writing a six-page letter addressed to the D.C. Department of Human Rights that defended the quality of my work product is persuasive evidence that Dennis Race, in fact, told me that one of the reasons I was being terminated was that the firm believed the quality of my work was poor.

Query: Was the information that Dennis Race provided to me at the termination meeting on October 29, 1991 sufficient to put me on notice that I should retain long-term disability insurance coverage under COBRA and, further, that I might qualify for long-term disability benefits with the firm's insurance company UNUM Life? Was Dennis Race's failure to provide adequate information to me about the psychological reasons for the termination a fraud on the U.S. Social Security Administration? Shouldn't Dennis Race have provided me -- a mentally impaired employee, as the firm later told the D.C. Department of Human Rights -- a written statement detailing the psychological basis of the firm's termination decision?

I addressed this issue in footnote 22 of my Brief on Appeal, Freedman v. D.C. Dept. Human Rights, D.C.C.A. no. 96-CV-961 (Sept. 1, 1998):

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].

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"When terminated, he was told that his actual work product was not a problem." -- Dennis Race, Esq.

In fact I specifically recall that Dennis Race said that my work had been very good when I worked on Eastern Airlines (during the early part of my tenure), but that the quality had deteriorated after that. He definitely DID NOT SAY that my work was not a problem.

Friday, December 18, 2009