What Did Attorney General Eric Holder and GW Know -- And When Did They Know It?

June 8, 1995 (rev’d 6/11/95)
3801 Connecticut Avenue, NW
#136
Washington, DC  20008-4530


Mr. Eric H. Holder, Jr.
U.S. Attorney for the District 
Of Columbia
555 4th Street, NW
Judiciary Center Building
Washington, DC  20001


RE: Freedman v. Akin, Gump, Strauss, Hauer & Feld


Dear Mr. Holder:


The following chronology highlights milestones in the above-referenced matter, and is offered for your general information.


You will observe that by simply reconfiguring the Findings of Fact made by the D.C. Department of Human Rights (DOHR), absurdities in the findings emerge, including the strikingly bizarre implication that I was actually unemployable at the time Akin Gump hired me, in June 1988, but that firm management did not determine that I was mentally disabled and unemployable until more than three years later, in late October 1991.


1.  Finding of Fact 4(a) reflects the determination that I had a paranoid idea of reference indicative of a severe mental disorder that rendered me potentially violent, an imminent threat to persons in my environment, and unemployable on about March 4, 1988.  See DOHR Initial Determination, dated June 30, 1993.  As of March 4, 1988 I was employed at Akin Gump in the capacity of an agency-supplied temporary legal assistant.


2.  Finding of Fact 2(b) reflects the determination that I had a paranoid idea of reference indicative of a severe mental disorder that rendered me potentially violent, an imminent threat to persons in my environment, and unemployable some time in about May 1988.  See DOHR Initial Determination, dated June 30, 1993.  As of May 1988 I was employed at Akin Gump in the capacity of an agency-supplied temporary legal assistant.


3.  Finding of Fact 1 reflects that I was hired by Akin Gump as a temporary legal assistant in June 1988 (specifically, June 13, 1988).  See DOHR Initial Determination, dated June 30, 1993.


4.  Finding of Fact 4(c) reflects the determination that I had a paranoid idea of reference indicative of a severe mental disorder that rendered me potentially violent, an imminent threat to persons in my environment, and unemployable some time in mid-June 1988.  See DOHR Initial Determination, dated June 30, 1993.


5.  Finding of Fact 2 reflects that I received an above-average or outstanding performance evaluation in the fall of 1988 for work quality and professional conduct in the previous six-month period.  See DOHR Initial Determination, dated June 30, 1993.


6.  Finding of Fact 4(d) reflects the determination that I had a series of paranoid ideas of reference indicative of a severe mental disorder that rendered me potentially violent, an imminent threat to persons in my environment, and unemployable beginning in late March 1989.  See DOHR Initial Determination, dated June 30, 1993.  The series of paranoid ideas of reference concerned another employee (Stacey Schaar) who, reportedly, was later terminated for gross misconduct, in about May 1990.  See Petitioner’s Reply at Attachment G, at p. 6


7.  Finding of Fact 2 reflects that I received an above-average or outstanding performance evaluation in the spring of 1989 for work quality and professional conduct in the previous six-month period.  See DOHR Initial Determination, dated June 30, 1993.


8.  Finding of Fact 1 reflects that Akin Gump hired me as a full-time employee with benefits on August 1, 1989.  See DOHR Initial Determination, dated June 30, 1993.


9.  Finding of Fact 2 reflects that I received an above-average or outstanding performance evaluation in the fall of 1989 for work quality and professional conduct in the previous six-month period.  See DOHR Initial Determination,  dated June 30, 1993.  The performance evaluation states in part, with specific reference to my interpersonal skills: “Gary recently trained and supervised five temporary coders who were brought in to expedite the coding of some 200,000 pages of document production.  In doing so, he inspired the group who were always eager to work and adopted Gary’s own sense of commitment to the case.”  (Constance M. Brown, 11/6/89).


10.  Alleged Mental Status as of March 1990: "During his transition form a legal assistant position (paralegal) to his work with the litigation support department [in March 1990], Claimant had several discussions with his direct supervisor [Christine Robertson (“Robertson”)] about problems with interacting with co-workers and occasional outbursts.”  See Akin Gump Response to Particulars (attachment A), at paragraph 3A (p. 5).  Presumably, according to Akin Gump, my conduct remained intermittently violent and disruptive for the remaining 19 months of my tenure.  My personnel file does not include a record of any oral or written reprimands.  See Akin Gump Response, at Attachment H.


11.  Finding of Fact 4(e) reflects the determination that I had a paranoid idea of reference--concerning my direct supervisor, Robertson--indicative of a severe mental disorder that rendered me potentially violent, an imminent threat to persons in my environment and unemployable on about March 30, 1990. See DOHR Initial Determination, dated June 30, 1993.  I reported this incident to attorney managers Dennis M. Race (“Race”) and Malcolm Lassman (“Lassman”), on October 24, 1991.


12.  Finding of Fact 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. See DOHR Initial Determination, dated June 30, 1993.  The performance evaluation dated June 11, 1990--prepared by Constance M. Brown and reviewed by Robertson--does not reflect any discussions with my supervisor in March 1990 concerning problems with interacting with co-workers and/or occasional outbursts, as alleged by Akin Gump in the Response.  See Akin Gump Response to Particulars, at paragraph 3A (p. 5).


13.  Finding of Fact 4(j) reflects the determination that I had a paranoid idea of reference indicative of a severe mental disorder that rendered me potentially violent, an imminent threat to persons in my environment, and unemployable some time in 1990. See DOHR Initial Determination dated June 30, 1993.


15.  Finding of Fact 4(f) reflects the determination that I had a paranoid idea of reference--concerning my direct supervisor, Robertson--indicative of a severe mental disorder that rendered me potentially violent, an imminent threat to persons in my environment, and unemployable some time in April 1991.  See DOHR Initial Determination, dated June 30, 1993.  I reported this incident to attorney managers Race and Lassman, on October 24, 1991.


16.  Finding of Fact 2 reflects that I received an above-average or outstanding performance evaluation in the spring of 1991 for work quality and professional conduct in the previous six-month period.  See DOHR Initial Determination, dated June 30, 1993.  The performance evaluation contains the following comments: “Gary seems as close to the perfect employee as it is possible to get!”  “He is reliable, hard-working and extremely responsible.”  (Robertson, May 1991).


17.  Finding of Fact 4(g) reflects the determination that I had a paranoid idea of reference indicative of a severe mental disorder--concerning my direct supervisor, Robertson--that rendered me potentially violent, an imminent threat to persons in my environment, and unemployable some time in the summer of 1991.  See DOHR Initial Determination, dated June 30, 1993.  I reported this incident to attorney managers Race and Lassman, on October 24, 1991.


18.  In July 1991, my direct supervisor, Robertson, called a meeting of three of the black employees under her supervision, including a litigation support employee, Patricia A. McNeil, (“McNeil”) and asked them if they thought she was prejudiced against blacks.  She explained that her black male receptionist had accused her of being prejudiced against blacks and she wanted to know whether they shared that view.  All three employees responded in the affirmative and provided her the reasons they felt that way, giving her examples of the way she treated blacks differently than whites.  McNeil v. Akin, Gump, Strauss, Hauer & Feld, D.C.D.C. No. 93-0477, Complaint for Damages, paragraph 12.  Appended as Attachment C to Petitioner’s Petition for Reconsideration, filed with DOHR on July 27, 1993.


19.  Finding of Fact 4(h) reflects the determination that I had a paranoid idea of reference indicative of a severe mental disorder that rendered me potentially violent, an imminent threat to persons in my environment, and unemployable some time in about early August 1991.  See DOHR Initial Determination, dated June 30, 1993.


20.  Finding of Fact 4(I) reflects the determination that I had a paranoid idea of reference indicative of a severe mental disorder that rendered me potentially violent, an imminent threat to persons in my environment, and unemployable on October 2, 1991.  See DOHR Initial Determination, dated June 30, 1993.


21.  Finding of Fact 4 reflects the determination that I met with attorney managers Earl L. Segal (“Segal”) (on October 23, 1991) and Race and Lassman (on October 24, 1991) to report a variety of incidents that I believed constituted unlawful harassment  See DOHR Initial Determination, dated June 30, 1993.  Three of the reported incidents concerned my direct supervisor, Robertson Findings of Fact 4(e); 4(f); and 4(g)).


22.  On October 29, 1991 I was advised by Race that the firm had decided to terminate my employment, effective immediately.  The reasons given for the termination were that (1) Race had investigated my allegations of harassment and was unable to substantiate them (Race had spoken with various of my co-workers, presumably including black co-workers, in the litigation support department supervised by Robertson [see Finding of Fact 5, DOHR Initial Determination, dated June 30, 1993]); (2) there was a lack of fit between me and other firm personnel; (3) my work was of poor quality [see Petitioner’s Reply at Attachment M]; (4) my requested transfer to the firm’s legal assistant program [see Akin Gump Response at Attachment E] could not be effectuated because the legal  assistant administrative staff stated to Race that they were afraid of me, found me difficult to work with, and could not work with me.  Race also stated the he had discussed the matter of my termination with two (unidentified) outside consultants who concurred in the decision to terminate; I assumed at the time that these consultants were experts in employee relations, and not mental health professionals.  The firm’s personnel record lists the following as persons recommending termination: Christine Robertson, Laurel Digweed, and Dennis M. Race.  See Akin Gump Response at Attachment H.


23.  On February 4, 1992 I filed an unlawful termination Complaint with DOHR, alleging that Akin Gump’s termination was unlawful under the D.C. Human Rights Act of 1977, Freedman v. Akin, Gump, Hauer & Feld, Docket No. 92-076-P(N).


24.  On April 9, 1992, McNeil, a black co-worker in the firm’s litigation support department supervised by Robertson, was summarily terminated following a disagreement with the firm’s Personnel Administrator, Laurel Digweed.  (McNeil later filed a timely unlawful termination complaint with DOHR; reportedly, Akin Gump filed a response to the complaint, submitted by Race and the firm’s managing partner, Laurence J. Hoffman (“Hoffman”)).


25.  On May 22, 1992 Akin Gump filed with DOHR its Reponses to Interrogatories and Document Request in Freedman v. Akin, Gump, Hauer & Feld, Docket No. 92-087-P(N).  The Response was submitted by Race and Hoffman.  Akin Gump alleged that its decision to terminate my employment, effective October 29, 1991, was lawfully based on the determination, reportedly made in consultation with two mental health professionals including a psychiatrist, that my allegations of harassment were the product of a severe paranoid mental disorder that rendered me potentially violent and unable to interact with co-workers.


The Response states that the quality of my work was not an issue in the decision to terminate.  See Akin Gump Response to Particulars (Attachment A), paragraph A at p. 5.  But see Petitioner’s Reply at Attachment M (memorializing Race’s statements at the termination meeting and later that my work was of poor quality).


The Response omits any reference to the fact that Race had investigated the possibility of promoting me to a legal assistant position following my request to Race and Lassman on October 24, 1991. Segal, however, admits that he investigated the possibility of such a promotion, on the afternoon of October 23, 1991.  See Akin Gump Response at Attachment E.


The employer’s recitation of the incidents that I perceived as harassing omits any reference to the three incidents relating to my former direct supervisor Robertson 1/ (i.e., findings of Fact 4(e); 4(f); and 4(g)).  See Akin Gump Response to Particulars (Attachment A), at p. 2.


(I had no knowledge of the content of Akin Gump’s Response until DOHR forwarded the document to me, which document I received on December 22, 1992).


26.  On January 5, 1993 I filed with DOHR a Reply to Akin Gump’s Response to Interrogatories and Document Request.  My Reply listed 10 incidents of harassment, including 3 incidents concerning my former direct supervisor, Robertson. 2/  DOHR later found that I reported each of these incidents to Race and Lassman on October 24, 1991 (see Findings of Fact 4(a) through 4(j), DOHR Initial Determination, dated June 30, 1993), but that the incidents were not evidence of unlawful harassment; rather the incidents I reported were, according to DOHR, evidence that I suffered from a severe paranoid mental disorder that justified Akin Gump’s termination decision.  See DOHR Initial Determination, dated June 30, 1993.


______________________________________________


1/  The employer’s recitation of the incidents (prepared by Race and Hoffman) also omits any reference to harassment involving Stacey Schaar.  See paragraph 6 (above) and APPENDIX A (attached herewith).  Further the termination chart (presumably prepared by Digweed, or at her direction) listing all terminations by the employer and the reasons therefor during the period January 1, 1990 to December 31, 1991 omits any reference to Stacey Schaar, who was reportedly terminated for gross misconduct in May 1990.  See Akin Gump Response at Attachment H.


NOTE THAT IF (1) THE OMISSION OF ANY REFERENCE TO STACEY SCHAAR BY RACE AND HOFFMAN IN AKIN GUMP’S RECITATION OF HARASSING INCIDENTS WAS INTENTIONAL AND (2) PERSONNEL ADMINISTRATOR DIGWEED’S OMISSION OF ANY REFERENCE TO SCHAAR IN THE TERMINATION CHART WAS INTENTIONAL, THE SIMULTANEOUS OMISSION SUGGESTS COLLUSION AMONG DIGWEED, HOFFMAN, AND RACE TO CONCEAL EVIDENCE.  Compare the gravamen of McNeil’s complaint in McNeil v. Akin, Gump, Strauss, Hauer & Feld, D.C.D.C. 93-0477.


2/  Of the ten reported incidents, one involved an employee (Stacey Schaar) who was reportedly later terminated for gross misconduct, and three involved a supervisor (Robertson) later determined by a Federal District Court to have engaged in racially offensive conduct.  Thus, four of the ten incidents (40%) involved employees known to engage in serious misconduct.  See APPENDIX A, attached herewith.


27.  On March 5, 1993 McNeil filed a Complaint for damages in the U.S. District Court for the District of Columbia pursuant to Title VII of the Civil Rights Act of 1964 for redress of injuries sustained as a result of the defendant’s unlawful conduct terminating her employment after 4 ½ years because of her race, McNeil v. Akin, Gump, Strauss, Hauer & Feld, D.C.D.C. No. 93-0477.  The Complaint alleged that Robertson engaged in a long-standing pattern or practice of racially offensive and discriminatory conduct and that Robertson colluded with Personnel Administrator Digweed in terminating McNeil


28.  On September 24, 1993 DOHR dismissed my unlawful termination Complaint for lack of Probable Cause, incorporating DOHR’s Initial Determination issued June 30, 1993.


29.  On November 29, 1993 the U.S. District Court for the District of Columbia entered summary judgment for Akin Gump in McNeil v. Akin, Gump, Strauss, Hauer & Feld, D.C.D.C. No. 93-0477.  The Court found that (1) Akin Gump’s managers (specifically citing Hoffman and Personnel Administrator Digweed) had no knowledge (or reason to know) that Robertson had engaged in racially offensive or discriminatory conduct toward black employees under her supervision and that (2) Robertson had not colluded with Digweed in terminating McNeil.  The Court found, however, that Robertson exhibited racial animus toward black employees under her supervision.


Sincerely,


Gary Freedman


cc: D. Georgopoulos, M.D. [GW Medical Center Department of Psychiatry]


APPENDIX A


CONCORDANCE OF INCIDENTS REPORTED BY EMPLOYER TO DOHR VS. INCIDENTS REPORTED BY FREEDMAN


The following is a verbatim report made by Akin Gump to DOHR of the incidents that I stated to Dennis M. Race and Malcolm Lassman on October 24, 1991.  See Akin Gump Response to Particulars (Attachment A), at p. 2.  NOTE THAT AKIN GUMP’S LIST CORRESPONDS EXACTLY WITH DOHR’S FINDINGS OF FACT, EXCEPT THAT THE FOUR INCIDENTS INVOLVING ROBERTSON AND SCHAAR--THE TWO PERSONS KNOWN TO HAVE ENGAGED IN SERIOUS MISCONDUCT--ARE UNACCOUNTABLY OMITTED IN AKIN GUMP’S RECITAL.


1.  An attorney once used the word "sweet” while pouring a cup of coffee from a coffee machine (apparently corresponds to Finding of Fact 4(c));


2.  While with a group of co-workers one female employee stated “I bet you have a sexy chest” (apparently corresponds to Finding of Fact 4(a));


3.  One evening after business hours, an attorney got on the elevator with him and paced back and forth, looking at Claimant but saying nothing (apparently corresponds to Finding of Fact 4(j));


4,  Co-workers in the litigation support group were trying to "make him nervous" (apparently corresponds to Finding of Fact 4(h));


5.  A female co-worker stood by him swinging her hips so as to provoke him (apparently corresponds to Finding of Fact 4(I)); and


6.  A male co-worker had his eyes fixed to Claimant’s genital area (apparently corresponds to Finding of Fact 4(b));


The following is a list of the incidents that I reported to DOHR as constituting my report of harassment to Lassman and Race on October 24, 1991.  DOHR incorporated my report in its findings of fact, but designated my report evidence of paranoia rather than evidence of unlawful harassment.


1.  Finding of Fact 4(a) involving unidentified male co-worker "with sexy chest” [see (2.) above];


2.  Finding of Fact 4(b) involving Paul Wageman staring at genitals [see (6,) above];


3.  Finding of Fact 4(c) involving David Hardee at coffee machine [see (1.) above];


4.  Finding of Fact 4(D) involving Stacey Schaar; OMITTED BY EMPLOYER


5.  Finding of Fact 4(e) involving Robertson; OMITTED BY EMPLOYER


6.  Finding of Fact 4(f) involving Robertson; OMITTED BY EMPLOYER


7.  Finding of Fact 4(g) involving Robertson; OMITTED BY EMPLOYER


8.  Finding of Fact 4(h) involving co-workers in litigation support group [see (4.) above]


9. Finding of Fact 4(I) involving Katherine Harkness swinging her hips [see (5.) above]


10.  Finding of Fact 4(j) involving David Eisenstat on elevator [see (3.) above]