Thursday, December 10, 2009

Yet Another Bad Day for the D.C. Court of Appeals?

In Freedman v. D.C. Department of Human Rights, the District of Columbia Court of Appeals offers the following factual history of my employment at the law firm of Akin, Gump, Strauss, Hauer & Feld, which terminated me on October 29, 1991, days after I lodged a harassment complaint against my supervisor, Christine Robertson, and several coworkers:

"According to a memorandum prepared by appellant’s supervisor in early 1991 appellant frequently complained of noise and other distractions in the work area normally assigned to litigation staff members. He also complained that he was often the butt of practical jokes and generally felt harassed. Responding to these concerns, the firm arranged for him to have a private office in a different location. After several months, however, appellant was forced to give up his private office because his accessing of certain computer databases from that location was interfering with the rest of the work that was done in that area of the firm." Id. at 2 (emphasis mine).

The Court is in error.

The memorandum cited by the Court, designated as pages 146-147 in the record on appeal, was not written in early 1991. The memorandum was written by my direct supervisor, Christine Robertson, on October 25, 1991, one day after I lodged a harassment complaint against her. The Court was clearly under the misapprehension that the firm's concerns about my employment were longstanding, and memorialized in said memorandum by my supervisor in good faith. The Court was mistaken.

First, there is no evidence in the record whatsoever that any supervisor -- or anyone, for that matter -- memorialized any concerns about my employment prior to the harassment complaint I presented to firm managing attorneys on October 23-24, 1991. Further, the Court's error -- namely, that the memorandum was written in early 1991, months before my harassment complaint -- denudes the memorandum of any retaliatory animus by my supervisor, and, in so doing, obscures important evidence of pretext in decisionmaker Robertson's termination decision.

Akin Gump's deceptive Interrogatory Response, filed by the firm with the D.C. Department of Human Rights on May 22, 1991 (record at 135-140), may have contributed to the Court's error.

First, Akin Gump’s Interrogatory Response conceals the fact that I had lodged a complaint against my supervisor. The Court's factual review of the harassment complaint I presented to firm partners Malcolm Lassman and Dennis M. Race adopts verbatim the firm's own enumeration. Id. at 2.

The Court states: "According to a document prepared [by Akin Gump] in response to interrogatories, appellant cited events such as:

An attorney once used the word 'sweet' while pouring a cup of coffee from a coffee machine;

While with a group of co-workers one female employee stated, 'I bet you have a sexy chest';

One evening after business hours, an attorney got on the elevator with him and paced back and forth, looking at [him] but saying nothing;

Co-workers in the litigation support group were 'trying to make him nervous';

A female co-worker stood by him swinging her hips so as to provoke him; and

A male co-worker had his eyes fixed to [appellant's] genital area; [and]

Once a black employee was heard to use a Yiddish term." Id. at 2.

The Court's language is identical to Akin Gump's interrogatory response (record at 136).

The problem with the Court's enumeration is that the agency itself expressly found that I described three different incidents to Malcolm Lassman and Dennis Race concerning my supervisor, Christine Robertson. The incidents were designated by the agency as Findings of Fact 4(e.); 4(f.); and 4(g.).

By ignoring the agency's findings of fact -- that I had indeed lodged a harassment complaint against my supervisor -- the Court could easily overlook the retaliatory nature of a memorandum written by that supervisor one day after I had complained about her on October 23-24, 1991 (and not in "early 1991," as the Court erroneously believed).

Second, Akin Gump states the following in its Interrogatory Response (record at 139): "During his transition from a legal assistant position (paralegal) to his work with the litigation support department [in March 1990], Claimant had several discussions with his direct supervisor [Robertson] about problems with interacting with co-workers and occasional outbursts (See Attachment 4)."

The referenced Attachment 4 is the retaliatory memorandum written by my supervisor, dated October 25, 1991. The memorandum itself does not support the allegation that I had "several discussions" with my supervisor at the time I was transferred to the Litigation Support Group. Akin Gump's own evidence -- a retaliatory memorandum written by my supervisor -- does not support the factual allegations contained in its Interrogatory Response.

Indeed, the agency's finding of fact No. 2 reflects that I received an above-average or outstanding performance evaluation in the Spring of 1990 for work quality and professional conduct in the previous six-month period (record at 12).

The performance evaluation dated June 11, 1990--prepared by my then direct supervisor, Constance M. Brown and reviewed by Chris Robertson--does not reflect any discussions with Robertson in March 1990 concerning problems with interacting with co-workers and occasional outbursts (record at 311-315), as alleged by Akin Gump (record at 139).

Presumably, the Court was influenced by Akin Gump's false and deceptive Interrogatory Response statements that are not even factually supported by my supervisor's retaliatory memorandum dated October 25, 1991.

I explained these issues in painstaking detail in my Brief on Appeal. The D.C. Court of Appeals chose to rely on Akin Gump's deceptive and false pleadings rather than on the facts I presented on appeal and the findings of fact made by the agency below.

Here is the pertinent portions of the argument I presented to the Court in the Brief on Appeal:

The employer's personnel records designate appellant's direct supervisor, Robertson, one of the three decision makers who terminated appellant's employment [Rec. 167].

"[E]vidence probative of the actual decisionmaker's motives is relevant" to prove pretext. See Lindsey v. Baxter Healthcare Corp., 757 F. Supp. 888, 896 (N.D. Ill. 1991); accord, Slade v. Billington, 700 F. Supp. 1134, 1142, 1149-1150 (D.D.C. 1988), aff'd, 871 F.2d 155 (D.C. Cir. 1989); Hardy v. Marriott Corp., 670 F. Supp. 385, 392-393 (D.D.C. 1987).

Robertson engaged in several acts of retaliation against appellant in the period after appellant lodged a complaint of harassment against Robertson, on sexual and religious grounds, to the employer's attorney managers. Evidence of Robertson's retaliatory animus is relevant to the issue of pretext. 13/ See Lindsey, 757 F. Supp. at 896.

A prima facie case of retaliation under the Act, D.C. Code Ann. 1-2525, is established by evidence that the employee was engaged in a protected activity and that the employee suffered adverse personnel action as a consequence. Goos v. National Ass'n of Realtors, 715 F.Supp. 2, 3 (D.D.C. 1989). Any adverse personnel action in opposition to an activity protected under the Act may constitute retaliation. D.C. Code Ann. 1-2525 (Repl. Vol. 1992); Ravinskas v. Karalekas, 741 F. Supp. 978, 979-980 (D.D.C. 1990) (retaliation may consist of acts of opposition to various activities and is not limited to actions provoked by filing a complaint with DHR).

Appellant's meetings with the employer's attorney managers on October 23 and October 24, 1991 to lodge a harassment complaint against various employees, including Robertson, was a protected activity under the Act. See Ravinskas v. Karalekas, 741 F. Supp. at 979-980; Goos v. National Ass'n of Realtors, 715 F. Supp. at 3.

The record includes documentary evidence of two adverse personnel actions against appellant immediately following his complaint of harassment, comprising (1) a performance evaluation prepared by Robertson dated October 24, 1991 [Rec. 149-154] and (2) a memorandum by Robertson to Race dated October 25, 1991 [Rec. 146-147] (emphasis added)..

[argument concerning retaliatory performance evaluation omitted]

Additional evidence of retaliation is presented by a memorandum written by Robertson to Race dated October 25, 1991--one day after appellant reported incidents of sexual and religious harassment, concerning Robertson, to the employer--in which Robertson states her concerns regarding appellant's fitness as an employee [Rec. 146-147]. The memo's content, which includes numerous factual distortions, contradicted by the employer's own business records [Rec. 356-359], including the egregiously false accusation that Robertson had assigned appellant to a private office because of difficulties he allegedly had with coworkers [Rec. 369-370]--coupled with the timing of the memo--satisfies a prima facie retaliation case, and, again, is probative of Robertson's discriminatory animus against appellant and the pretextual nature of decisionmaker Robertson's action in terminating appellant's employment. See Lindsey, 757 F. Supp. at 896.

So specious were the retaliatory accusations made by Robertson to Race concerning appellant's fitness as an employee that when the employer was called upon, in a supplemental interrogatory posed by DHR [Rec. 124], to clarify the factual basis of its earlier statement to DHR that appellant was "hard to supervise" [Rec. 148], the employer was forced to fall back on a generalized restatement of the employer's factually unsupported assertions contained in its earlier pleadings, offering no new facts, but instead quoting verbatim a portion of its previous interrogatory response [Rec. 124].


So the Court makes a "harmless error" and here we wonderfully are: eleven years and about $150,000 (in federal dollars) later.


Gary Freedman said...

I would have reproduced Chris Robertson's memo -- but I misplaced the first page.

Gary Freedman said...

I could have filed a "Petition for Rehearing" with the Court, but I assumed they would simply say their error constituted "harmless error" under the law and facts of the case.

The Court seemed determined to ignore just about everything I (and the agency) said.

Gary Freedman said...

Here are the findings of fact found by DHR itself re: supervisor Robertson--

4(e) On a Friday in early spring 1990 (possibly March 30, 1990), Constance Brown advised Complainant that since there was little work to be done for the client, Eastern Airlines, she had arranged for Complainant to meet with the administrator of Litigations Support, Chris Robertson, on the following Monday (possibly April 2, 1990) and that Ms. Robertson would provide Complainant with work. On Monday morning, shortly after 9:00 a.m., Complainant reported to Litigation Support, which was housed on the terrace level, and met with Ms. Robertson for about 15 to 20 minutes. Ms. Robertson instructed Complainant on a particular task to be performed for the client MCA. This was Complainant’s first interaction with Ms. Robertson in the relation of employee to supervisor; up until that time Complainant had worked predominantly for Constance Brown on tasks for the client Eastern Airlines. This was also the first time Complainant was assigned to work on the terrace level. At the conclusion of Complainant’s conversation with Chris Robertson, she led Complainant from her office to a work station where Complainant was directed to perform the assigned task. Upon spotting the work station Ms. Robertson stated to Complainant, “You can sit here.” This was at approximately 9:30 a.m. After sitting down at the desk Complainant looked into the trash basket next to the desk. The trash basket was empty except for a baby food jar. The baby food jar had been wiped clean before being placed in the trash basket, consistent with the jar having been brought from home by someone for the express purpose of placing it in the trash basket with the intent to harass. Complainant explained to Messrs. Race and Lassman that the epithet “baby” is stereotypically anti-Semitic.

4(f) Some time in April 1991, when it was warm enough to eat lunch outdoors, Complainant began to eat lunch on a park bench at DuPont Circle. One afternoon upon Complainant’s return to the office from lunch, at about the time he first began to eat lunch at DuPont Circle, as Complainant was seated at his desk, his supervisor, Chris Robertson, said, in loud tone of voice to another employee, Melissa Whitney, seated near Complainant, “Are you wet?”

Complainant could not specifically recall whether he mentioned this incident to Messrs. Race and Lassman. If Complainant did mention this incident he would have explained that he interpreted the phrase “Are you wet?” as alluding to a state of sexual excitation.

4(g) Upon Complainant’s return to the office from lunch one afternoon during the summer of 1991, his supervisor, Chris Robertson, offered Complainant a piece of chocolate, and stated to Complainant the peculiar phrase, “Here, you look like you need some chocolate.”

Complainant specifically recalls that he told Messrs. Race and Lassman that he interpreted the phrase, “Here, you look like you need some chocolate” as a reference to anal intercourse. Complainant specifically recalls his using the phrase “anal intercourse.”