What Should Have Been a Decisive Admission

In its Response to Interrogatories filed on May 22, 1992 with the D.C. Department of Human Rights, the law firm of Akin, Gump, Strauss, Hauer & Feld (Dennis M. Race, Esq.) made the following unequivocal sworn statement concerning the lack of any evidence that I was a member of a protected class (homosexual) under the D.C. Human Rights Act of 1977:

"Until the filing of this Charge, the subject of Claimant’s sexual orientation was never brought up by Claimant or anyone directly or indirectly involved with Claimant's employment. While claimant raised concerns about sexual and religious harassment, he never stated it was based on his sexual orientation -- nor was it ever interpreted as such by anyone involved in this matter." Freedman v. Akin, Gump, Hauer & Feld, Docket No.: 92-087-P(CN), Respondent (Akin Gump) Response to Particulars at 5, record on appeal at 139, Freedman v. D.C. Dept. Human Rights, D.C.C.A. 96-CV-961 (Sept. 1, 1998).

It is remarkable, in light of Akin Gump's denial of evidence of my membership in a protected class, that we find the D.C. Office of Corporation Counsel place in controversy evidence of my membership in a protected class in its Reply Brief filed with the D.C. Court of Appeals:

--"According to Freedman, at a firm dinner in May 1989, another legal assistant acknowledged hearing a rumor that Freedman was gay." R. 329, 341. Reply Brief of the District at 8, Freedman v. D.C. Dept. Human Rights, 96-CV-961.

--"The other legal assistants also made references to Freedman's supposed relationship with an attorney [Craig W. Dye] with whom Freedman had worked at the law firm of Hogan & Hartson." R. 340. Reply Brief of the District at 8, Freedman v. D.C. Dept. Human Rights, 96-CV-961. The record on appeal at 340 states: "The references centered on a supposedly homosexual interest I
had in Craig."

A plaintiff-employee's membership in a protected class is an element of a prima facie case of job discrimination under the D.C. Human Rights Act. For Akin Gump to deny any evidence of my membership in a protected class -- a wrongful denial of fact that was controverted by the District itself in its Reply Brief -- constitutes a lie that goes to the fundamentals of the case.

Akin Gump's lie is, in and of itself, sufficient to support an inference that the employer's proffered justification for the termination was pretextual and that the employer intentionally discriminated. See Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464-465 (2nd Cir. 1989)(a case I cited in my appeal briefs).

I vaguely recall that I raised this issue at oral argument before the D.C. Court of Appeals in December 1997, though perhaps not very artfully.

How could the D.C. Court of Appeals have ignored the glaring inconsistency between Akin Gump's denial of any evidence of my membership in a protected class, on the one hand, and, on the other, the District's use of record evidence concerning my interaction with Akin Gump employees that affirms my membership in that protected class?

Didn't the D.C. Department of Human Rights, in admitting that I established a prima facie case, implicitly affirm that Akin Gump lied when it denied that anyone even "indirectly involved with" my employment knew that I belonged to a protected class?