Thursday, December 10, 2009

Significant Moments: A Pattern in the Omissions

As I was reading through the correspondence and preparing the annotations for the first volume of the series, the Freud-Fliess letters, I began to notice what appeared to be a pattern in the omissions made by Anna Freud in the original, abridged edition. In the letters written after September 1897 (when Freud was supposed to have given up his "seduction" theory), all the case histories dealing with the sexual seduction of children had been excised. Moreover, every mention of Emma Eckstein, an early patient of Freud's and Fliess's, who seemed connected in some way with the seduction theory, had been deleted. I was particularly struck by a section of a letter written in December 1897 that brought to light two facts previously unknown: Emma Eckstein was herself seeing patients in analysis (presumably under Freud's supervision); and Freud was inclined to give credence, once again, to the seduction theory.
J. Moussaieff Masson, Freud and the Seduction Theory.
All that had been suppressed and edited out reappeared . . .
Dan Levin, Spinoza.
. . . as clear, as transparent as . . .
Alexandre Dumas, Ten Years Later.
. . . objective.
Paul Wienpahl, On Translating Spinoza.
I asked Anna Freud why she had deleted this section from the letter. She said that she no longer knew why.
J. Moussaieff Masson, Freud and the Seduction Theory.
A masterpiece of evasion.
Don Delillo, The Names.

From Appellant's Brief on Appeal, Freedman v. D.C. Dept. Human Rights, D.C.C.A. No. 96-CV-961 (Sept. 1, 1998):

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

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).

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