Akin Gump: Application for Reconsideration of No Probable Cause Finding

 July 27, 1993
3801 Connecticut Ave., NW
#136
Washington, DC  20008

Ms. Margie A. Utley
Director
D.C. Dept. of Human Rights and
    Minority Business Development
2000 14th Street, NW
Washington, DC  20009

RE:  Docket No.: 92-087-P(N)
       Gary Freedman v. Akin, Gump, Hauer & Feld

Dear Ms. Utley:

Enclosed is Complainant's Application for Reconsideration of the Department of Human Rights' no probable cause finding in the above-referenced matter, dated June 30, 1993.  Supporting documentation is appended to the application.

Thank you.

Sincerely,

Gary Freedman
__________________________

District of Columbia
Department of Human Rights and
Minority Business Development

In the Matter of:

GARY FREEDMAN, COMPLAINANT

v.

AKIN, GUMP, HAUER & FELD, RESPONDENT

DOCKET NO. 92-087-P(N)

COMPLAINANT’S APPLICATION FOR RECONSIDERATION OF NO PROBABLE CAUSE FINDING

On June 30, 1993 the District of Columbia Department of Human Rights and Minority Business Development (“DOHR”) issued an opinion letter stating its determination that there was no probable cause to believe that the action of Respondent, Akin, Gump, Hauer & Feld, in terminating the employment of Complainant, Gary Freedman, on October 29, 1991, was discriminatory in violation of the D.C. Human Rights Act of 1977, as amended.

Complainant offers the following application for reconsideration of DOHR’s no probable cause finding pursuant to Sect. 719.1 of the Department’s Rules Governing Procedure and Practice for Private Sector Complaints Alleging Unlawful Discriminatory Practices, 33 DCR 6909 (1986).

In the alternative, Complainant petitions the DOHR to transfer this matter to the U.S. Equal Employment Opportunity Commission (“EEOC”), pursuant to the concurrent cross-Complaint filed with the EEOC, so that the EEOC may institute an investigation into Respondent’s discriminatory termination of Respondent in violation of the Americans With Disabilities Act (“ADA”), 42 USCA Sect, 12101, et seq. 1/ [This request, as well as all the references to The Americans With Disabilities Act in this pleading, are inapposite. The ADA was not U.S. law in the year of the termination, 1991.]

The following is a specific statement upon which the request for reconsideration is made, and is limited to new evidence, misapplications of law, and misstatements of material facts with respect to Findings of Fact 2 through 7 of DOHR’s no probable cause letter.

A. FINDING OF FACT 2: Performance Evaluations

DOHR’s enumeration of Complainant’s Performance Evaluations omits a material fact relating to the issue of retaliation. In addition to the Performance Evaluations prepared for the years 1988, 1989, and 1990, Complainant was also issued two Performance Evaluations in 1991, including one dated October 24, 1991 (Response at Attachment G).

The Performance Evaluation dated October 24, 1991, unlike all previous Performance Evaluations issued to Complainant, contains comments critical of Complainant’s ability to interact with his co-workers. None of the Performance Evaluations issued prior to October 24, 1991 indicated in any manner that Complainant had difficulties in interacting with co-workers. The subject Performance Evaluation was not discussed with Complainant, contrary to Respondent’s written policy, and is therefore invalid on its face. It was on the morning of October 24, 1991 -- the day Complainant’s supervisor prepared the subject Performance Evaluation -- that Complainant met with two attorney managers of Respondent, Malcolm Lassman and Dennis M. Race, to discuss incidents of harassment.

The action of Complainant’s supervisor in preparing a Performance Evaluation (1) on the very day Complainant reported incidents of harassment, (2) that was per se invalid per Respondent’s written policy, and (3) that contained spurious comments that tended to support Respondent’s contention that Complainant had difficulties interacting with co-workers raises a presumption that the Performance Evaluation was prepared as an act of retaliation in opposition to Complainant’s protected activity of complaining of harassment. The preparation of the per se invalid Performance Evaluation on the day Complainant reported to Respondent’s managers incidents of harassment satisfies the elements of a prima facie retaliation case. See, Goos v. National Ass’n of Realtors, 715 F.Supp. 2, 3 (D.D.C. 1989).

Retaliation consisting of opposition to activities protected under the D.C. Human Rights Act of 1977, as amended, is prohibited by D.C. Code Sect. 1-2525(a). See, 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 the DOHR).

DOHR’s incomplete enumeration of Complainant’s Performance Evaluations, which fails to acknowledge the preparation of the per se invalid and retaliatory Performance Evaluation dated October 24, 1991, constitutes the omission of a material fact. DOHR’s failure to take notice of evidence of retaliation in violation of D.C. Code Sect. 1-2525(a) constitutes a misapplication of law.

B. FINDING OF FACT 3: Complainant’s consultations with mental health professionals

Evidence of Complainant’s consultations with mental health professionals is not factually material on the issue of whether Complainant was suitable for employment since there is no evidence in the record that Complainant’s consultations with mental health professionals figured in Respondent’s decision to terminate.

Moreover, the ADA precludes DOHR’s use of mere evidence that Complainant consulted mental health professionals for unspecified psychological difficulties to support Respondent’s contention that Complainant was not suitable for employment by reason of mental impairment. Under the ADA, an employer may terminate an employee with an emotional or mental illness only in cases in which the illness substantially impairs the employee’s job performance or in which the mentally-disabled employee poses a threat to the safety of other employees. Therefore, evidence of Complainant’s consultation with mental health professionals is not legally material under the ADA on the issue of whether Complainant was suitable for employment since such evidence relates only to the issue of whether Complainant suffered from a mental disability and not to the issue of whether Complainant could not function in an office environemnt by reason of mental impairment.

Evidence of Complainant’s consultations with mental health professionals is material, however, on the issue of why Complainant's co-workers were frightened by him. One co-worker has stated that fellow employees, aware that Complainant had regular consultations with mental health professionals, on occasion commented, “He must be crazy if he’s seeing all these psychiatrists.” 2/ (See Attachment A).

It is noted by way of explanation that Complainant’s invitation to his supervisor to attend one of his sessions with a psychologist [William D. Brown, Ph.D.] was prompted by his supervisor’s statement of concern to Complainant regarding co-workers’ unprofessional and disruptive conduct. In response to his supervisor’s query, “What do you think of all the craziness in the office” (Reply at 10), Complainant stated, “I’m seeing a psychologist -- you’re welcome to come to a session with me sometime (Reply at 27).

C. FINDING OF FACT 4: Complainant’s meetings with attorney managers

DOHR’s finding that Complainant met with Respondent’s attorney managers Earl Segal, Malcolm Lassman, and Dennis Race together on October 23, 1991 and that all three managers found Complainant’s complaint of harassment incredible is a misstatement of a material fact. DOHR’s factually incorrect finding implies that there was unanimity of opinion among the three managers that Complainant’s allegations of harassment were inherently evidence of Complainant’s disturbed ideation. This conclusion is not supported by the record.

In fact, Complainant met alone with Earl Segal in Mr. Segal’s office on the afternoon of October 23, 1991 to request a change in office assignment or a transfer to the legal assistant program (Response at Attachment E). Complainant stated he was uncomfortable in his present environment, and narrated to Mr. Segal three harassing incidents. The incidents that Complainant cited to Mr. Segal were three of the ten incidents that Complainant again related to Dennis Race and Malcolm Lassman the following day, on October 24, 1991.

There is no evidence in the record that Mr. Segal found the incidents incredible. Immediately after meeting with Complainant on the afternoon of October 23, 1991, Mr. Segal met with three individuals involved in the legal assistant program (Legal Assistant Administrator, Maggie Sinnott; Legal Assistant Coordinator, J.D. Neary; and Managing Partner in charge of legal assistants, Malcolm Lassman) apparently to discuss Complainant’s request for transfer to the legal assistant program (Response at Attachment E). Mr. Segal’s action of following up on Complainant’s request for reassignment to the legal assistant program is inconsistent with a finding that Complainant’s allegations of harassment gave rise to an immediate concern in Mr. Segal’s mind regarding Complainant’s mental health and his suitability for employment.

It was on the morning of October 24, 1991 that Complainant met with Dennis Race and Malcolm Lassman (Reply at 13). Earl Segal was not present at this meeting.

At the termination meeting on October 29, 1991, Mr. Race advised Complainant that he had investigated the possibility of having Complainant transferred to the legal assistant program, but that the Legal Assistant Administrator, Maggie Sinnott and Legal Assistant Coordinator, J.D. Neary said they could not work with Complainant because they were afraid of him. 3/

There is also indirect evidence that Dennis Race had given serious consideration to changing Complainant’s office assignment. At the termination meeting Complainant said to his supervisor, “It’s a shame this had to happen.” Complainant’s supervisor responded, “You would have had to stay in the terrace anyway because of the new computer imaging system.” The supervisor’s statement suggests that Respondent had considered an office reassignment, but that logistical reasons -- and not Complainant’s purported psychological difficulties -- precluded a move from the terrace office.

Mr. Race’s action of investigating the possibility of having Complainant transferred to the legal assistant program (and his possibly investigating an office reassignment) is inconsistent with finding that Complainant’s allegations of harassment were so inherently warped so as to give rise to an immediate concern in Mr. Race’s mind regarding Complainant’s mental health and his suitability for employment.

Apparently, whether Complainant could function in a different position or in a private office was an issue for Respondent, contrary to the conclusion of the DOHR. But for the discriminatory refusal of the Legal Assistant Administrator and the Legal Assistant Coordinator to work with Complainant because of the generalized purported fears 4/ of Complainant, Complainant would have been transferred to Respondent’s legal assistant program and would not have been terminated on the basis of fabricated evidence of a mental disability. Also, presumably, but for logistical problems associated with changing Complainant’s office assignment, Complainant would have been moved from the terrace level office and would not have been terminated on the basis of fabricated evidence of a mental disability.

At the termination meeting on October 29, 1991 Dennis Race advised Complainant that he had investigated Complainant’s allegations of harassment and that the allegations could not be substantiated. Mr. Race’s statement indicates that he rejected Complainant’s allegations because they could not be proven -- and not because the allegations were inherently baseless as evidence of harassment, and thus evidence of disturbed ideation or mental disturbance. Respondent’s assertion that “Claimant was specifically told that the complaints which he raised about employee harassment were deemed baseless as proof of sexual or religious harassment” (Response at Attachment A, page 4) is a misstatement of a material fact regarding what Dennis Race told Complainant at the termination meeting.

At the termination meeting on October 29, 1991 Mr. Race indicated in no way whatsoever that Respondent had determined that Complainant suffered from an emotional or psychological disturbance of any kind or that he was being terminated for that reason Indeed, Mr. Race advised Complainant that one of the reasons for the termination was that Complainant’s work was of poor quality. Mr. Race did not inform Complainant that Respondent had consulted with two mental health professionals, including a psychiatrist. Complainant was merely told that Respondent had conferred with two “consultants;” Complainant assumed at the time that the unidentified consultants were experts in employee relations.

At the time of his termination Complainant was a beneficiary of Respondent’s Long-Term Disability Income Plan (“Plan”), underwritten by UNUM Life (See Attachment B). At the termination meeting Complainant was neither advised of his rights under the Plan nor provided sufficient facts concerning the emotional and psychological reasons for the termination to alert him to file a claim. The Plan requires that a claim be filed within 30 days of the onset of disability. It was not until December 22, 1992, upon Complainant’s receipt of the Response, that Complainant learned that Respondent had determined he was unsuitable for employment by reason of psychological disturbance. Even if Complainant had retained insurance coverage by converting to an individual plan under COBRA immediately following the termination on October 29, 1991, the facts provided Complainant at the termination meeting were insufficient to alert him to file a timely claim on the basis of psychological disturbance.

Respondent’s failure to provide Complainant [with facts that] might alert him to file a timely disability [claim had the] necessary effect of denying Complainant [insurance benefits.]

Respondent’s failure to apprise Complainant [at the] termination meeting of facts reasonably necessary [for him] to file a disability claim raises two logical [inferences:] (1) at the time of the termination Respondent [had not formed] a good faith belief that Complainant was unsuitable for employment by reason of mental impairment, or (2) Respondent intentionally withheld material facts regarding a possible mental impairment with the intent to prevent Complainant from filing a claim for disability benefits. In either case, Respondent’s actions would constitute a violation of the D.C. Human Rights Act of 1977, as amended. If the first inference is correct, then Respondent’s stated justification for the termination -- that Complainant was not suitable for employment by reason of mental impairment -- would be pretextual. If the second inference is correct, Respondent’s actions would constitute the intentional and discriminatory denial of a benefit [in violation of] the D.C. Human Rights Act of 1977, as amended[.]

D. FINDING OF FACT 5: Respondent’s investigation

DOHR’s finding concerning Respondent’s investigation of Complainant’s allegations of harassment omits material facts relating to acts of retaliation by Complainant's supervisor and therefore constitutes a misapplication of law.

The memorandum dated October 25, 1991 from Complainant’s supervisor, Chris Robertson, to Dennis Race (Response at Attachment D) contains numerous malicious misstatements calculated to damage Complainant’s employment relationship with Respondent and was clearly retaliatory. On no occasion did Complainant ever tell a coworker to “shut up,” as the memo alleges. Thus, the only specific instance of Complainant’s reportedly disruptive behavior cited in the record was fabricated by his supervisor. There is no persuasive evidence that Complainant engaged in disruptive telephone conversations, as alleged by his supervisor Indeed, on one occasion, his supervisor told Complainant that she had considered having co-workers’ private telephones disconnected because of their abuse of telephone privileges. Complainant was not assigned to a private office at his request because of difficulties with co-workers, as the memo alleges. That this last allegation may be readily refuted by referring to Respondent’s own business records relates both to the de minimis nature of Respondent’s investigation and the demonstrably false nature of the supervisor’s statements.

DOHR’s failure to take notice of evidence of retaliation by Complainant’s supervisor in violation of D.C. Code Sect. 1-2525(a) constitutes a misapplication of law. See, 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 the DOHR).

New evidence indicates that Complainant’s supervisor had a propensity for making defamatory -- even bizarre -- statements about Complainant, solely calculated to damage his reputation. A brief time after Complainant’s termination, his supervisor advised her employees that she was having the lock to the terrace office changed because she feared that Complainant might return to the office to kill her (See Attachment A). Despite the supervisor’s purported fears of grave bodily harm, she had earlier requested that Complainant remain in the terrace office in close proximity to her own office -- after the termination notice -- to complete the task on which he had been engaged earlier in the morning.

In light of new evidence it now appears that Respondent’s interviews of Complainant’s co-workers elicited only biased and limited information regarding Complainant’s interaction with fellow employees. One co-worker 6/, not interviewed by Respondent, states that she and other employees viewed Complainant as a quiet, hard-working, and professional individual (See Attachment A). Further, there is evidence that co-workers’ knowledge of Complainant’s consultations with mental health professionals formed the basis of co-workers concerns about his mental health (See Attachment A). The limited nature of Respondent’s investigation is indicated by the statement of one co-worker who reports that she was not even aware that any investigation had been conducted (See Attachment A). The evidence that Complainant was uncomfortable with his co-workers and that his behavior was sometimes disruptive and frightening 7/ to his co-workers is not persuasive.

E. FINDING OF FACT 6: Respondent’s consultations with mental health professionals

There is no credible evidence that Respondent sought outside professional guidance with respect to its termination decision, either from a counselor from its Employee Assistance Program or an outside psychiatrist.

Gertrude R. Ticho, M.D., the psychiatrist with whom Respondent claims to have consulted, denies ever having communicated with Respondent (See Attachment D).

Sheppard Pratt Preferred Resources, Respondent’s Employee Assistance Program provider, has no record of any communication with either Dennis Race or Malcolm Lassman concerning Complainant (See Attachment E). Sheppard Pratt policy mandates that its counselors prepare a record of any communications with employers concerning a client and that the record be maintained in the client’s file of mental health information (See Attachment F).

Judy Peres, one of the two Sheppard Pratt counselors with whom Complainant consulted during his employment with Respondent, stated during a telephone conversation with Complainant on January 11, 1993 that she did not recall ever having spoken with Dennis Race concerning Complainant. An internal Sheppard Pratt memorandum prepared by Ms. Peres shortly after her conversation with Complainant on January 11, 1993 does not suggest in any manner that she or any Sheppard Pratt counselor had any communications with Dennis Race (See Attachment G).

Moreover, the providing of a representation of the kind that Respondent claims to have sought and obtained from a Sheppard Pratt counselor regarding Complainant’s mental state is not consistent with Sheppard Pratt policy (See Attachment E).

Respondent’s action of fabricating evidence of consultations with mental health professionals and fabricating evidence that Complainant was potentially violent and not suitable for employment is clear and convincing evidence that Respondent’s stated justification for the termination was pretextual in violation of the D.C. Human Rights Act of 1977, as amended.

Additionally, Respondent’s termination of Complainant on the basis of fabricated evidence that Complainant suffered from a serious mental disorder that rendered him unsuitable for employment constitutes a discriminatory discharge in violation of the ADA, 42 USCA Sect. 12112(a), and subjects Respondent to the jurisdiction of the EEOC in this matter.

F. FINDING OF FACT 7: Notice of Sexual Orientation and Harassment

DOHR’s finding that there is no evidence in the record that Complainant ever told Respondent that he was homosexual or that he was being harassed prior to October 23, 1991 is immaterial in light of new evidence that Respondent’s termination was pretextual, based as it was on fabricated evidence that Respondent had consulted with mental health professionals. (Under Title VII an employer is responsible for its own discriminatory acts regardless of whether it had prohibited the specific acts complained of or had no other notice of their occurrence. 29 CFR Sect. 1604.11(c).)

That Respondent violated the D.C. Human Rights Act of 1977, as amended, by discriminating against Complainant because of Complainant’s sexual orientation is made evident by the following simple and compelling chronology. On October 24, 1991 Complainant apprised two of Respondent’s attorney managers of his sexual orientation; three working days later, on October 29, 1991, Complainant was terminated by Respondent on the basis of evidence fabricated by Respondent that Complainant suffered from a mental disturbance that rendered him unsuitable for employment and (2) a de minimis investigation of Complainant’s allegations of harassment that relied on the demonstrably false, retaliatory and/or biased statements of his supervisor and selected co-workers.

Further, DOHR’s finding that there is no evidence that Complainant ever told Respondent that he was being harassed prior to October 23, 1991 is a misstatement of a material fact. Respondent admits, by virtue of the memorandum dated October 25, 1991 from Chris Robertson to Dennis Race, that Complainant complained of harassment on a previous occasion (Response at Attachment D). In the memorandum dated October 25, 1991 Complainant’s supervisor writes: "[Complainant] spoke of feeling harassed by the other legal assistants. . . .” Complainant had complained to his supervisor at a private meeting in her office during the week of August 12, 1991; the harassing incidents that Complainant related to his supervisor on this occasion occurred during the week of March 11, 1991.

DOHR’s finding that there is no evidence in the record that Complainant ever told Respondent that he was a homosexual or that he was being harassed prior to October 23, 1991 also constitutes a misapplication of law in that it implies that Respondent may not be deemed responsible for the harassing acts of its supervisory personnel absent notice. Respondent’s knowledge of sexually-harassing conduct by its supervisory employees is, as a matter of law, immaterial. Harassment by the head of a department is considered the action of the employer for Title VII purposes, without regard to whether the employer knew of the supervisor’s propensity to harass, because a supervisor has the authority to affect the employee’s job status. Campbell v. Kansas State Univ., 780 F.Supp. 755, 764 (D.Kan. 1991).

The legal assistant administrator, Maggie Sinnott, a supervisory employee, frequently engaged in lewd sexual gestures directed at Complainant during the period of Complainant’s employment, including the period June 13, 1988 through March 1990 when she was Complainant’s immediate supervisor. The legal assistant coordinator, J.D. Neary, a supervisory employee, on occasion engaged in lewd sexual gestures directed at Complainant during the period of Complainant’s employment, including the period June 13, 1988 through March 1990 when he had supervisory authority over Complainant. Each supervisor used to lunge his or her head forward toward Complainant’s genital area, while simultaneously shaking his or her head in a violent motion, all the while grimacing at Complainant. Complainant experienced this sexually harassing conduct as degrading and offensive. During the period June 13, 1988 through March 1990, Respondent’s legal assistant administrator supervised 50-60 employees, including Complainant, and possessed the authority to fire Complainant or otherwise alter his employment status. The legal assistant administrator’s sexually-harassing conduct was, by law, the action of Complainant’s employer.

That the conduct of these supervisory personnel constituted discriminatory harassing actions relating to Complainant’s perceived sexual orientation is made clear by reference to the pervasive sexually-charged nature of Complainant’s work environment. On the evening of May 3, 1989, one of Respondent’s legal assistants, Jesse Raben, confirmed to Complainant that there was a rumor among Respondent’s employees that Complainant was homosexual. On an occasion during the summer of 1989 one of Respondent’s temporary legal assistants, Stacey Schaar, who shared office space with Complainant, stated repeatedly in referring to Complainant, “He’s a fag, he’s a fag.” On an occasion during the summer of 1989 one of Respondent’s temporary legal assistants, Gwen Lesh, who shared office space with Complainant, warned Complainant upon inviting him to a party at her home, “If you try to hit on any of my male friends, they’ll beat the shit out of you.”

Respondent’s knowledge of this sexually-harassing conduct by Complainant’s co-workers is immaterial since, as indicated above, supervisory personnel participated in the conduct. Where a supervisor participates in hostile work environment harassment, the victim need not show that he notified the employer of his co-workers’ conduct in order to establish the employer’s liability, since at least one of the harassers has the actual or apparent authority to affect the employee’s job status. Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 904-905 (11th Cir. 1988).

In light of the new evidence and the misapplications of law and misstatements of material facts stated above, Complainant requests that the DOHR reconsider the no probable cause determination issued in this matter on June 30, 1993. In the alternative, Complainant requests that the DOHR transfer this matter to the EEOC pursuant to the concurrent cross-complaint so that the EEOC may institute an investigation of Respondent’s discriminatory termination of Complainant’s employment in violation of the Americans With Disabilities Act.

I, Gary Freedman, having read the above Complainant’s Application for Reconsideration of No Probable Cause Finding to be filed in Docket No. 92-087-P(N) affirm that the statements herein are true and correct to the best of my knowledge.

Gary Freedman [signed]

Washington, D.C.

SUBSCRIBED AND SWORN to me this 27th day of July, 1993.

Janet Courtney [signed]

Notary Signature

My Commission Expires: 1/31/96


_____________________________________

FOOTNOTES

1/ Complainant is a protected employee within the ADA’s so-called “regarded as disabled test,” 42 USCA Sect. 12102(2)(C). Under the so-called "regarded as disabled test," if an employer can be shown to have made an employment decision because of a perception of a person’s disability, and the employer cannot articulate a nondiscriminatory reason for the decision, an inference can be drawn that the employer regarded the individual as having a disability. Appx to 29 CFR Sect. 1630.2(1). Respondent’s pretextual termination of Complainant on the basis of fabricated evidence of a mental disability clearly places Complainant within the protected class. Further, Respondent admits that there was a belief, however unjustified, among supervisory personnel and selected employees that Complainant suffered from emotional or psychological problems.

2/ This statement of concern by co-workers regarding Complainant’s mental health, however irrational, is additional evidence that fellow employees regarded Complainant as having an impairment, thereby placing Complainant within the so-called “regarded as impaired” protected class of ADA Sect. 12102(2)(C).

3/ Two litigation support employees, Lutheria Harrison and Sherri Ann Patrick, were transferred to the legal assistant program at their request (See Attachment A). Complainant was terminated within days of his request for transfer to the legal assistant program, based on fabricated evidence of a mental disability, in violation of both the D.C. Human Rights Act of 1977, as amended, and the ADA, 42 USCA Sect. 12112(a) and Appx to 29 CFR Sect. 1630.5.

4/ See, Appx to 29 CFR Sect. 1630.5 (prohibiting the termination of an employee with a disability based on generalized fears about the safety of the employee).

5/ Regulations promulgated pursuant to the ADA expressly prohibit an employer from denying a qualified individual with a disability equal access to insurance. Appx to 29 CFR Sect. 1630.16(f).

6/ The employee, Patricia McNeil, was herself unlawfully terminated by Complainant’s supervisor, Chris Robertson, on April 9, 1992. Ms. McNeil filed a lawsuit in federal court against Respondent in March 1993 alleging racial discrimination under Title VII (See Attachment C). Ms. McNeil alleges that Chris Robertson engaged in “offensive conduct such as telling racial jokes, making comments to the effect that blacks are perceived as not working as hard as white employees, are shiftless, lazy [and] incompetent. . . .” (See Attachment C). Incidents of racial harassment directed at employees other than Complainant are material on Complainant’s claim of a sexually hostile work environment; also, evidence of racial hostility may be aggregated with evidence of sexual hostility. See, Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415-1416 (10th Cir. 1987), citing Vinson v. Taylor, 763 F.2d 141 (D.C. Cir. 1985), aff’d in part and rev’d in part, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986).

7/ Note that the ADA prohibits the termination of an employee with a disability based on generalized fears about the safety of the employee. Appx to 29 CFR Sect. 1630.5.