Akin Gump: Appellant's Appeal Brief 1997-- Notes: Just When You Thought There Couldn't Be Any More Incriminating Evidence!

The following are notes I prepared in 1997 to assist me in the preparation of my appeal brief in Freedman v. D.C. Department of Human Rights, D.C.C.A. no. 96-CV-961 (Sept. 1, 1998).

The notes contain a reference to an interesting and probative fact about Akin Gump, my former employer, which did not make its way into my brief. Akin Gump admitted (by way of a Sheppard Pratt brochure that it produced on May 22, 1992 with the D.C. Dept. of Human Rights) that a supervisor, on her own initiative, who noticed that an employee was having problems on the job, was free to make an appointment with Sheppard Pratt on behalf of the employee.

Despite the fact that my supervisor, Chris Robertson, alleged that she was having difficulties with me (in a retaliatory memo dated the day after I lodged a harassment complaint against her) she did not arrange to have me meet with a Sheppard Pratt counselor. In its Response to Interrogatories (May 22, 1992) Akin Gump alleged that I was difficult to supervise. There is no evidence that my supervisor took any steps to remediate the problems she was allegedly having with me, which might include making an appointment on my behalf with a Sheppard Pratt counselor.

 the employer admits that the level of professional conduct in the litigation support group was less than optimal (according to the employer abuse of telephone privileges contributed to a disruptive work environment) (facts section-request for change in office space). McNeil v. Akin Gump. One senior firm manager expressed concern about the lack of professional conduct by employees other than petitioner. (record at McNeil complaint). (record evidence).

During Petitioner's tenure, one co-worker (whose performance evaluations were only average)
was promoted to "project leader." Presumably, opportunities for promotion to the position of "project leader" were available to petitioner; petitioner was not offered such a promotion despite performance evaluations that rated his work above average or outstabding and that acknowledged his supervisory abilities.

Section 1: Evidentiary significance of employer's act of denying knowledge of protected status.

Employer failed to produce most performance evaluations (AG Response; notarized letter to DHR)

Legally improper for employer to rely on statements of employees alleged to have engaged in harassing conduct. (See ALR3d)

Use of after-acquired evidence by Complainant to support harassment charge is proper.

Evidence of action of decision-makers is probative of animus. (citation in McNeil) In McNeil plaintiff alleged that Digwed and Robertson colluded in the termination of McNeil.

Code of Professional Conduct--making of diagnostic speculations or conclusions concerning person who was not assessed personally is an ethical violation. Goldwater case. Attorneys are presumed to know the law; therefore, Akin Gump's attorney managers could not have had a good-faith belief that a psychiatric examination by proxy could have had any reliability. DHR expressly acknowledged argument, but said it was not pertinent to its resolution of the case

Employer admits (R. 127) that employee assistance program is available to supervisory or management personel to determine the appropriateness of referring employees whose work performance has deteriorated.


--no supervisor contacted EAP prior to complaint despite supervosor's assertion at time of complaint of harassment that I appeared to have longstanding emotional difficulties that impaired my interpersonal relations

--the nature of the communication claimed by management is inconsistent with the services offered by the EAP (R. 127)

"The Prejudicial Personality: Racism and Anti-Semitism." Journal of Personality Assessment, 65(2): 270-277 (1995). Anti-semitism and racism: (legal issue--evidence of racial bias is also evidence of sexual harassment) .

Finding of Fact re: psychotherapy -- saw psychiatrist recommended by Rothenberg re: creativity (R. 500)

ability to interact with coworkers uniformly rated at least average or above-average by employer

Constance Brown refusal to work for Robertson, and her re-transfer out of litigation support at her request (anything in record on this?)

Race memo dated October 29, 1991 is the only contemporaneous written documention that supports employer's contention that it consulted two mental health professionals, yet it fails to name those mental health professionals. (The oblique tone of the memo parallels the pleadings to which it is attached, which also fail to identify Gertrude R. Ticho, M.D.). Oddly, Lassman directed Segal to memorialize Segal's conversation with Freedman (on October 23, 1991) [R. 135], yet Lassman apparently did not direct Race to memorialize either his meeting with Freedman on October 24, 1991 or the reported consultations with Dr. Ticho or the EAP counselor.

disability insurance: employer does not allege that it advised at termination meeting that it
had consulated a psychiatrist; ("Claimant was advised of the following reasons for the
termination. . ."); it was only in response to a supplemental interrogatory (1« years after the termination) that Akin Gump identified the psychiatrist as Gertrude R. Ticho.