Was The D.C. Court of Appeals Having a Bad Day?

In its Response to Interrogatories, a sworn statement, filed with the D.C. Department of Human Rights on May 22, 1992, in Freedman v. Akin, Gump, Hauer & Feld, the law firm of Akin, Gump, Strauss, Hauer and Feld denied categorically that I advised Dennis M. Race, Esq. and Malcolm Lassman, Esq. that I was being harassed at the firm because of my perceived sexual orientation: homosexual.

Dennis M. Race, Esq. stated the following:

"B. Until the filing of this Charge, the subject of Claimant's sexual orientation was never brought up by Claimant or anyone involved directly or indirectly with Claimant's employment. While Claimant raised concerns about sexual and religious harassment, he never stated that it was based on his sexual orientation -- nor was it ever interpreted as such by anyone involved in this matter.

D. Claimant never complained of discrimination treatment based on sexual orientation.

Respondent contends that Claimant was terminated for good cause, nondiscriminatory reasons. Claimant's sexual orientation was not a factor or even known by those involved in any stage of the decision process. Respondent denies any violation of law."

On June 30, 1993 the D.C. Department of Human Rights issued its no probable cause finding in Freedman v. Akin, Gump, Hauer & Feld, signed by the agency director, Margie A. Utley, Esq. (record on appeal at 11-20). The agency enumerated seven specific findings of fact.

The agency specifically found that I lodged a harassment complaint with Akin Gump's managers Malcolm Lassman, Managing Partner and Dennis Race, Partner. "Complainant stated that he was being harassed based on his religion, Jewish and his sexual orientation, homosexual. Complainant described a variety of incidents which he believed constituted unlawful harassment including the following:" (record at 12-13)

Finding of Fact 4(d.) states: "Shortly after, complainant was moved to the sixth floor office space shared with agency-supplied temporary legal assistants, Stacey Schaar and Gwen Lesh. On March 20, 1989, they began repeated references to Complainant's friendship with Craig Dye with whom Complainant had worked at the law firm of Hogan & Hartson.

Complainant expressly recalls having mentioned Mr. Dye; a reference to Mr. Dye would only have arisen in the context of a discussion of harassment based on perceived sexual orientation." Yes, that's the agency speaking! (record at 14).

It cannot be any clearer: Akin Gump lied about a central element in the case in its Response to Interrogatories, filed with the D.C. Department of Human Rights, on May 22, 1992. Akin Gump stated categorically and unequivocally that I never complained to Dennis Race and Malcolm Lassman that I was being harassed because of my perceived sexual orientation. The agency found specifically, categorically and unequivocally that I complained to Dennis Race and Malcolm Lassman on the morning of October 24, 1991 that I was being harassed based on my perceived sexual orientation: homosexual.

Akin Gump lied about a central element of the prima facie case, whether or not the employer Akin Gump knew that I was a member of a protected class.

Akin Gump denied that it knew that I belonged to a protected class. Akin Gump denied that I had complained that I was being harassed because I belonged to a protected class.

The agency found that, in fact, I advised Akin Gump that I belonged to a protected class on October 24, 1991 and that I believed I was being harassed because I belonged to a protected class.

There can be no clearer instance of an agency finding that is contrary to law. The agency clearly found that Akin Gump lied to the agency in the firm's sworn production, dated May 22, 1992. Yet the agency proceeded to find that Akin Gump's proffered reason for my job termination was lawful and nonpretextual.

My Brief on Appeal sets forth the controlling law in the situation where an employer lies about a material fact in an employment discrimination case:

"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. . . .

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."

Should it come as a surprise that the agency director who issued a finding that was clearly contrary to law, Marie A. Utley, Esq., was herself later disbarred by the District of Columbia Court of Appeals for gross professional misconduct that went to the issue of her own truth and veracity?

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