The D.C. Court of Appeals held oral argument in Freedman v. D.C. Department of Human Rights on December 16, 1997. Assistant Corporation Counsel M. Justin Draycott, Esq. appeared for the District. The appeal was the first case argued that morning, at either 9:00 or 9:30 am. The court's appeal panel comprised the Honorable John A. Terry, Inez Reid, and Warren King.
There was an objective peculiarity about Mr. Draycott's argument. First, it was extremely brief. As far as I can recall he said only one thing -- at least that's all I recall.
Mr. Draycott restated to the court a factual assertion contained in the District's brief. He said: "Mr. Freedman admitted that his coworkers were afraid of him." The District's brief at page 9 states: "At about the same time [August 1989], Freedman was informed by one of the legal assistants that she and other legal assistants were afraid of him. Freedman believes this was said to harass him. R. 276." The record on appeal at page 276 quotes the statement of temporary paralegal Stacey Schaar who said: "We're all afraid of you. We're all afraid you're going to buy a gun, bring it in, and shoot everybody."
And that's all I can recall Mr. Draycott telling the Court at oral argument. Not only did Mr. Draycott limit his argument to one factual assertion, but the one factual assertion he made to the court was an item of legally-irrelevant, after-acquired evidence. I had not told the employer about Stacey Schaar's statement. I told the D.C. Department of Human Rights about Stacey Schaar's statement after the job termination. I had offered the statement to the agency as evidence of harassment. A recognized feature of workplace mobbing is that coworkers fear that the mobbing victim will become violent.
The Corporation Counsel had invidiously transformed my allegation that I was a victim of coworkers' irrational perceptions into my "admission" that my coworkers had genuinely and rationally feared me.
So Mr. Draycott limited his argument to the following:
1. One factual assertion that happened to be legally irrelevant;
2. A fact about which the employer had no knowledge, and which therefore could not have played any role in the employer's termination decision;
3. A fact that the agency below, the D.C. Department of Human Rights, totally ignored and which is not cited either in the agency's Initial Determination issued in June 1993 or the agency's Final Determination issued in September 1993.
Let us look at what Mr. Draycott failed to say:
1. Other than the legally-irrelevant (and distorted) fact he cited to the court, Mr. Draycott did not argue any of the facts or law contained in the District's Brief on Appeal;
2. He did not argue the employer's reasons for the job termination or cite anything contained in the employer's pleadings filed with the agency; and
3. He did not argue the agency's reasons for the job termination or cite anything contained in the agency's Initial Determination (June 1993) or the agency's final determination (September 1993).
Now, I'm not an appellate attorney, but I do find Mr. Draycott's argument objectively peculiar. I wonder what the Court made of Mr. Draycott's presentation? I wonder what a lawyer experienced in employment case appeals would make of Mr. Draycott's presentation?
Incidentally, I vaguely recall that Judge Terry stated in one of my appearances before the D.C. Court of Appeals -- either in October 1994 or December 1997 -- that he tape-recorded oral arguments. I don't know whether he was serious or joking.
Another observation, a paranoid observation. My appeal was the first case argued before the court on the morning of December 16, 1997. After the case was argued, I turned to walk out of the court room. As I approached the doorway at the back of the court room, two young men stood up to leave. They were looking at me. When I looked at them, they smiled broadly. I had the paranoid suspicion that they were two paralegals employed by my former employer, the law firm of Akin, Gump, Strauss, Hauer & Feld, sent to observe the argument and report back to the firm. Why would two individuals go to court to hear my case and my case only, smile at me when they saw me, then leave after my case, before any of the other cases were argued?