September 8, 1998
3801 Connecticut Avenue, NW #136
Washington, DC 20008-4530
Larry G. Massanari
Office of Disability & Intl. Operations -- SSA
Baltimore, MD 21241-0001
RE: Social Security Disability Claim xxx-xx-xxxx
Dear Mr. Massanari:
This will advise the U.S. Social Security Administration (SSA) that I have filed a formal written request with the U.S. Equal Employment Opportunity Commission (Washington Field Office) that the agency undertake a Substantial Weight Review of the prior determination made by the District of Columbia Department of Human Rights that there was no probable cause to believe that my job termination by the law firm of Akin, Gump, Strauss, Hauer & Feld effective October 29, 1991 (the date my disability began) was discriminatory, but rather, was based on a valid business reason: namely, the employer's determination, made in consultation with a psychiatrist, that I suffered from a psychiatric "disorder" 1/, which rendered me not suitable for employment.
I draw your specific attention to paragraph 5 of the letter addressed to former EEOC Chairman Gilbert F. Casellas dated December 20, 1996 (copy attached) that cites the action of the employer, in the period following the employer's disability determination (i.e., its determination that I suffered from a "disorder" 1/), in failing to advise me of its psychiatric consultation with Gertrude R. Ticho, M.D., which would have alerted me to file a claim for benefits under the employer's private disability income plan. The employer's tortious breach of duty in failing to advise me of the results of its psychiatric consultation 2/ necessarily resulted in my subsequent action in filing for a claim for benefits with the SSA. In effect, the employer shifted the burden of benefits payments from its private insurer onto the SSA.
I invite the SSA to review this matter with the EEOC (Laura Nawrocki, State and Local Coordinator). You may contact Ms. Nawrocki at (202) 275-7377.
cc: Jerome O. Campane, S.A., FBI Washington Field Office (202 252-7801)
1/ The D.C. Court of Appeals expressly found that the professional opinion offered by Gertrude R. Ticho, M.D. to the employer amounted to the diagnosis of a "disorder" ("the firm . . . learned that appellant's behavior was indicative of a disorder"). Freedman v. D.C. Department of Human Rights at 6, No. 96-CV-961 (Memorandum Opinion and Judgment filed Sept. 1, 1998).
2/ An employer has a duty, arising out of common law, to disclose to an employee, prior to or during employment, information the employer acquires when a physician it engages discovers a serious medical problem while examining the employee in accordance with the employer's requirements. See Meinze v. Holmes, 532 N.E.2d 170, 173 (Ohio App. 1987) citing Betesh v. United States, 400 F. Supp. 238, 245 (D.D.C. 1974) (interpreting Maryland common law). Clearly, a "disorder" qualifies as a serious medical problem about which the employer was required to advise me.