Friday, March 04, 2011

Akin Gump: Wrongful Denial of Knowledge of Membership in a Protected Class

The following is the text of a 17-page notarized letter dated May 17, 1993 that I submitted to the D.C. Department of Human Rights. The letter is pages 463-479 in the record on Appeal in Freedman v. D.C. Department of Human Rights, D.C.C.A. no. 96-CV-961 (Sept. 1, 1998).

May 17, 1993
3801 Connecticut Avenue, NW
#136
Washington, DC  20008

Mr. Donald M. Stocks
Case Investigations
D.C. Dept. of Human Rights &
  Minority Business Development
2000 14th Street, NW
Washington, DC  20008

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

Dear Mr. Stocks:

I offer this notarized letter in support of the above-referenced matter.

The following statement contained on page 5 of Respondent's Response to Particulars (Attachment A), paragraph 3B, executed May 22, 1992, is, for the reasons set forth below, of dubious veracity.  Respondent's statement reads: "Until the filing of this Charge, the subject of Claimant's sexual orientation was never brought up by Claimant or anyone involved directly or indirectly with Claimant's employment (emphasis added)."

The following is a list of persons who were either involved directly or indirectly with my employment with Respondent, who were either expressly or possibly aware of concerns regarding my sexual orientation, and who may at some time have brought up the subject of my sexual orientation.

1.  Miriam Chilton

Immediately prior to my assignment with Respondent in early March 1988, I had been assigned on a long-term temporary basis, as an employee of Personnel Pool, a temporary agency, to the Computer Applications Department of the law firm of Hogan & Hartson ("Hogan"), located at 555 13th Street, Washington, DC, (Personnel Pool, now Interim Legal Personnel, is located at 1025 Connecticut Ave., NW, Washington, DC, 202 293-9379).  The assignment at Hogan lasted from mid-September 1985 until February 26, 1988.

In about February 1987, while I was on assignment at Hogan, a rumor arose within the Computer Applications Department regarding my sexual orientation.  Some time in about June or July 1987 I spoke with my then supervisor at Hogan, Miriam Chilton, about my concerns in connection with the rumor that I was homosexual.  Ms. Chilton attempted to allay my concerns and mentioned that she had a male cousin who was frequently mistaken for a homosexual because, as Ms. Chilton explained, he had a "narrow waist" and "long hair."  Ms. Chilton stated, "Some men just look gay."  Miriam Chilton therefore had express knowledge of my concerns regarding my perceived sexual orientation.

In late February 1988 Miriam Chilton terminated my assignment with Hogan, effective February 26, 1988.  (The circumstances surrounding my termination at Hogan were uncannily similar to the circumstances surrounding my termination by Respondent (See Attachment A)).  A former co-worker at Hogan, Cindy Rodda, later informed me that Ms. Chilton discussed her plans to terminate my assignment with Hogan's then Legal Assistant Administrator, Freddie Rios (now Legal Assistant Administrator at the law firm of Skadden, Arps, Slate, Meagher & Flom, located at 1330 New York Avenue, Washington, DC, 202 371-7000).  I do not know whether Miriam Chilton discussed concerns regarding my sexual orientation with Freddie Rios in the reported conversation immediately prior to Ms. Chilton's decision to terminate.

In about early June 1988, at the time Respondent was considering an offer to hire me, I obtained from Miriam Chilton her consent to serve as a job reference; at that time Ms. Chilton also provided me the telephone number of my previous supervisor at Hogan, Sheryl Ferguson, whose name I also planned to submit to Respondent as a job reference (See Attachment B).

During a meeting with Respondent's then Legal Assistant Administrator, Margarita Babb, in early June 1988, I submitted a list of references (See Attachment B), which included the names and telephone numbers of Miriam Chilton and Sheryl Ferguson.  On her own initiative, and not at my prompting, Ms. Babb mentioned that she might contact Freddie Rios, Hogan's then Legal Assistant Administrator, an individual with whom Ms. Babb apparently had some prior dealings.

Miriam Chilton, whose name I submitted to Respondent as a job reference, was therefore an individual indirectly involved with my employment with Respondent.  It is possible that Miriam Chilton, who had express knowledge of concerns regarding my sexual orientation, may have discussed these concerns with Respondent's then Legal Assistant Administrator, Margarita Babb, at the time Respondent hired me, effective June 13, 1988.

2.  Sheryl Ferguson

Sheryl Ferguson was my supervisor at Hogan during the period mid-September 1985 until about March 1987.  After leaving Hogan, Ms. Ferguson was retained by the firm as a consultant, and had regular and frequent communications with her successor at Hogan, Miriam Chilton,  It is possible that Ms. Ferguson became aware of concerns regarding my sexual orientation.

Sheryl Ferguson, as an individual whose name I submitted to Respondent as a job reference in June 1988, was therefore indirectly involved with my employment with Respondent.  It is possible that Sheryl Ferguson, who had possible knowledge of concerns regarding my sexual orientation, may have discussed these concerns with Respondent's then Legal Assistant Administrator, Margarita Babb, at the time Respondent hired me, effective June 13, 1988.

In the period immediately prior to early 1989, Sheryl Ferguson, who at that time was an employee of a litigation support contractor, ATLIS Inc., was retained, as an employee of ATLIS, to perform an evaluation of the Respondent's litigation support capability.  During the course of her assignment with Respondent, Ms. Ferguson worked closely with Chris Robertson (who was later to become my supervisor in March 1990) and consulted with Constance Brown, who was my immediate supervisor at that time.  Sheryl Ferguson also consulted with a number of Respondent's attorneys including Jack Gallagher (currently at 1050 Connecticut Avenue, NW, Washington, DC, 202 457-9434), the billing partner for the major client to which I was assigned, and David Callet, another partner who was engaged primarily with the same client.   Thus, Sheryl Ferguson, who had possible knowledge of my prior difficulties at Hogan and who was indirectly involved in my employment with Respondent, had significant contacts with various individuals indirectly involved with my employment with Respondent during the period late 1988 through early 1989. 

3.  Freddie Rios

Miriam Chilton reportedly consulted with Freddie Rios, Hogan's then  Legal Assistant Administrator, prior to Ms. Chilton's decision to terminate my assignment at Hogan in late February 1988.  Ms. Rios may have been apprised by Ms. Chilton at that time of concerns regarding my sexual orientation.

In early June 1988, Respondent's then Legal Assistant Administrator, Margarita Babb, advised me that she planned to contact Freddie Rios in connection with Respondent's offer to hire me.  Freddie Rios is therefore an individual indirectly involved with my employment with Respondent.  I do not know whether Ms. Babb ever in fact contacted Ms. Rios or what they might have discussed if any contacts occurred.

4.  Lilliam Machado

During the period of my initial assignment with Respondent, from March 1988 until about early June 1988, Lilliam Machado was my immediate supervisor, and was therefore directly involved with my employment.  Ms. Machado was employed by Respondent as an associate at the time of my termination on October 29, 1991.

In about early May 1988, a few weeks before Respondent's offer to hire, I showed Ms. Machado a communication, written in late July 1987 by a former co-worker at Hogan named Daniel Cutler (See Attachment C).  Daniel Cutler's communication alludes to certain innuendo that existed at Hogan during the period of my employment at that firm, but does not expressly refer to the issue of my sexual orientation.  Ms. Machado made a few general comments about the communication, but did not inquire as to the specific content of the innuendo.  (In fact, the "scenario" to which the communication refers was the rumor current at Hogan that I had a homosexual interest in another co-worker, Craig Dye; I did not state this fact to Lilliam Machado).  I do not know what inferences, if any, Ms. Machado drew concerning the communication's subtext.

5. Constance Brown

During the period June 1988 until March 1990, Constance Brown was my immediate supervisor, and was therefore directly involved with my employment.  Some time in about October 1988 Ms. Brown recommended in my year-end evaluation that I be offered a permanent position with Respondent. Immediately thereafter, in connection with Ms. Brown's recommendation, I provided Ms. Brown with a Xerox copy of the communication prepared by Daniel Cutler (See Attachment C).  Ms. Brown made a few general comments about the communication but did not inquire as to the specific content of the innuendo.  I did not explain to Constance Brown the subtext of the communication, and I do not know what inferences, if any, she drew.  (Note however, that it was at about the time that I showed Constance Brown the subject communication in October 1988, or shortly thereafter, that Sheryl Ferguson--Daniel Cutler's and my former supervisor at Hogan--was retained by Respondent to perform an evaluation of Respondent's litigation support capability.)

6.  Catherine Dobbins

During the period of my employment with the temporary agency, Personnel Pool (from August 1985 until June 10 1988), Catherine Dobbins served as the agency's assignment coordinator.  During the period of my assignment at Hogan, Ms. Dobbins advised me that she had periodic communications with my supervisor, Miriam Chilton, during which Ms. Dobbins was apprised by Ms. Chilton of my job performance and any difficulties I might be experiencing at the firm.  Ms. Chilton, who had express knowledge of concerns regarding my sexual orientation, may have discussed these concerns with Ms. Dobbins.  I have no specific knowledge of whether the issue of my sexual orientation was discussed, however

It was Catherine Dobbins who, as assignment coordinator at Personnel Pool, assigned me to Respondent, effective as of about March 3, 1988.  Ms. Dobbins was therefore indirectly involved with my employment with Respondent.

As Respondent's then Legal Assistant Coordinator, Maggie Sinnott had regular and frequent communications with Catherine Dobbins, who as assignment coordinator at Personnel Pool supplied Respondent with temporary legal assistants on a a contract basis.  Catherine Dobbins may have discussed with Maggie Sinnott the concerns regarding my sexual orientation that arose during the period of my previous assignment at Hogan.  I have no specific knowledge of whether the issue of my sexual orientation was discussed.  However, it is reasonable to infer that Maggie Sinnott was curious about the reasons for the termination of my prior long-term assignment at Hogan.

7.  Elizabeth Murphy

At the time I was assigned to Respondent, in March 1988, Elizabeth Murphy, an employee of Personnel Pool, assisted Catherine Dobbins as assignment coordinator.  Elizabeth Murphy may have had knowledge of my difficulties at Hogan, specifically concerning the issue of my seual orientation.

Some time in about early 1990 Elizabeth Murphy left her employment with Personnel Pool and was hired by Respondent as a legal assistant and was assigned to Respondent's labor practice group; during the initial period of her employment with Respondent, Ms. Murphy was assigned to the major client to which I was assigned.  As an employee of Respondent, Elizabeth Murphy was indirectly involved with my employment with Respondent.  I do not know whether Ms. Murphy ever brought up concerns regarding my sexual orientation with any of Respondent's employees or managers, however.

8.  Jesse Raben

Jesse Raben was employed as a legal assistant by Respondent during the period June 13, 1988 until early 1990 and was assigned to the Respondent's labor practice group; Mr. Raben was assigned to the Respondent's labor practice group;  Mr. Raben was assigned to the same major client to which I was assigned.  He was therefore indirectly involved with my employment with Respondent.

At the "All Attorneys' Dinner" held at the Westin Hotel on the evening of May 3, 1988, I asked Jesse Raben whether he had heard the tumor about me at the firm.  He responded, "You mean the rumor that you're a homosexual?  Yea, I heard about that."

Sincerely,

Gary Freedman

ATTACHMENT A 

Selected facts relating to the termination of my long-term assignment at Hogan & Hartson on February 26, 1988, immediately prior to my assignment with Respondent.

ATTACHMENT A -- Page 1

The following memorandum is intended to apprise the D.C. Department of Human Rights of selected facts surrounding the termination of my long-term temporary assignment with the law firm of Hogan & Hartson, where I was employed in the period immediately prior to my employment with Respondent.

1. In February 1988, my supervisor at Hogan, Miriam Chilton, issued a memo to me based on information provided to her by another employee, May Jane Coolen. Before issuing the memo, Miriam Chilton apparently did not investigate the truth of the allegations made by Ms. Coolen, since the assertions in the memo were demonstrably false. Miriam Chilton apparently simply accepted the charges made by an employee in the department without verification and without discussing the issue with me.

The memo read as follows:

February 9, 1988
TO:        Gary Freedman
FROM:  Miriam T. Chilton [initialed]
              Mary Jane Coolen [initialed]
RE:        Full Pass QC Shelves

Many painstaking hours have gone into creating an effective file and log system for Full Pass QC. This system enables anyone assigned to Full Pass QC to easily locate the next available batch of IU’s [information units] and the corresponding documents. This system also insures that the QC’ers get a random selection of coders. It is clear that you are not following the system [emphasis added.] The documents are kept sequentially on the fourth shelf from the top. The IU’s and printouts are kept sequentially on the fifth and sixth shelves. The QC’er should take the next available batch. Please do not pick and choose the batches you prefer working on [emphasis added]. Please reorganize the shelves and take batches as they come in order. Thank you.

cc: Espe Rebollar

2. In the following memo, dated February 10, [1988], I clarified the situation for Miriam Chilton. The memo indicates the factual errors contained in Ms. Chilton’s memo dated February 9, 1988. Ms. Chilton did not respond to my memo dated February 10,.

TO:       Miriam T. Chilton
FROM: Gary Freedman’
RE:       Full Pass QC Shelves
DATE:  February 10, 1987 [sic; should read 1988]

Regarding your memo dated February 9, 1987 [sic; should read 1988] concerning the full pass QC shelves, please note that I will arrange the out-of-order batches this evening on my own time. I realize that not keeping the batches in order is a discourtesy to my colleagues and

ATTACHMENT A - page 2

presents an uncalled for inconvenience. I will take special care in the future to keep the batches and the shelves neat.

I would like to note that I do not pick and choose batches, however. Batches that I am now working on or have completed comprise:

380
381
382
383
384

391
392
393
394
395
396
397
398
399
400
401
402

408
409

As you can see these constitute entire series’ of batches sequentially arranged. On Sunday, when I picked up a group of batches to QC I noticed that there were some batches of documents missing. Sandra helped me look for them but they could not be located--I was forced to skip to the next available batch of matching documents/printouts, which explains one of the gaps above.

3. On about February 23, 1988, Miriam Chilton advised me that she was terminating my assignment with Hogan and Hartson effective February 26, 1988. She explained only there there was no longer a backlog of work and that, since I was a temporary employee, my services were no longer required.  (Other temporary employees were kept on, however, despite my senior status in the department. Ms. Chilton’s explanation for my termination was obviously not a complete statement of her rationale.)

4. On the afternoon of about February 23, 1988, shortly after being advised of my termination by Miriam Chilton, I spoke with David Kikel, the attorney who headed the project on which I had been working. He was surprised to learn of Ms. Chilton’s decision, stating that this was the first time he had heard about it. After David Kikel spoke with Miriam Chilton, he explained to me only that Ms. Chilton’s decision to terminate was her prerogative and that he could not interfere.** He stated, however, that my job performance was not an issue in her decision. In sum, neither David Kikel nor Miriam Chilton offered a complete statement of the reason for my termination. ) **Mr. Kikel’s refusal to interfere with Miriam’s decision to terminate was apparently consistent with Hogan policy regarding the autonomy of departmental supervisors. In about February 1987, Sheryl Ferguson stated to me that Mr. James Hourihan, the billing partner on the subject project, was at that time extremely displeased with the progress of work on document coding. Sheryl Ferguson told me that Mr. Hourihan had strongly suggested that

ATTACHMENT A - page 3

she terminate all the document coders assigned to the project except for me (and presumably Matthew Allender); at that time Mary Jane Coolen was assigned to the subject project. [At that time Craig Dye was working predominantly on another assignment.] Sheryl Ferguson explained to me that she refused to follow Mr. Hourihan’s suggestion because of the administrative problems that a mass firing would cause in the midst of an on-going, large-scale coding project.)

5. In February 1987, shortly after Sheryl Ferguson announced to the department that she was leaving Hogan and Hartson, Mary Jane Coolen, referring to another employee, Matthew Allender, said to me: “Once she’s gone [i.e., Sheryl Ferguson] he won’t last a minute. We’ll see to that.” Matthew Allender had been assigned the task of supervisor of the document coders; he was an exceptionally diligent employee, and was the one employee in the department who had the full confidence of Sheryl Ferguson. Matthew Allender’s mature and professional attitude aroused some hostility among certain employees in the department. The statement, “Once she’s gone, he won’t last a minute,” implies that Matthew Allender was being “protected” in some way by Sheryl Ferguson, and that without her “protection” he became vulnerable to the machinations of certain employees in the department. In fact, Matthew Allender left the firm voluntarily on September 25, 1987 to pursue more promising opportunities. Some time in about June 1987 I reported to Miriam Chilton the statement, “Once she’s gone, he won’t last a minute,” but did not identify to Ms. Chilton the person who made the statement.

6. A co-worker at Hogan, Daniel Cutler, who at that time shared an office with Mary Jane Coolen, reportedly related to Craig Dye that on one occasion Ms. Coolen allegedly exposed herself sexually to him. Daniel Cutler was friendly with Ms. Coolen and had no motive to fabricate.

7. Shortly after Craig Dye began working at Hogan & Hartson on October 6, 1986, Mary Jane Coolen reportedly told another employee, Cindy Rodda: “Craig is gay. He is definitely gay. There is no way he’s not gay.” Craig Dye is, in fact, heterosexual.

8. At the time I was terminated from Hogan and Hartson, effective February 26, 1988, I formed the belief that an employee had made the allegation to Miriam Chilton that I had been engaged in a scheme to “generate” overtime. I wrote a memo to Miriam regarding this issue dated February 25, 1988.

[page 472 of record on appeal: Memo dated February 9, 1988 to Gary Freedman From Miriam T. Chilton and Mary Jane Coolen, reproduced above.]

[page 473 of record on appeal: Memo dated February 10, 1987 to Miriam T. Chilton From Gary Freedman, reproduced above.]

ATTACHMENT B

Handwritten notes I prepared in early June 1988 either contemporaneously with or shortly after telephone conversation with Miriam Chilton during which I requested that Ms. Chilton serve as a job reference.

I submitted to Margarita Babb, Respondent’s then Legal Assistant administrator, either this handwritten note or a typed transcript of the note in June 1988 in connection with Respondent’s job offer.

[Handwritten note:]

HOGAN REFERENCES

MIRIAM CHILTON
637-5941
(MGR - COMPUTER APPLICATIONS DEPT.)

SHERYL FERGUSON
(301) 770-3000
(ATLIS LITIGATION SUPPORT)

MAREE SNEED
637-6416 (ASSOCIATE AT HOGAN)

ELLIOT MINCBERG
637-5708 (PARTNER AT HOGAN)


ATTACHMENT C

Handwritten note prepared in late July 1987 by former co-worker at Hogan & Hartson, Daniel Cutler. The “scenario” to which the communication refers was the rumor current at Hogan that I had a homosexual interest in another co-worker, Craig Dye.

I showed this letter to two of Respondent’s employees, Lilliam Machado (in early May 1988) and Constance Brown) (in about October 1988).

Gary,

For the first three months I worked with you I saw you probably a total of three hours. When I did see you some of the things you said made me feel uncomfortable. I don't "understand" you. Yes, you are definitely an enigma.

Moreover, you are the subject of occasional conversation, like everyone else. I don't believe any of these behind the back conversations are malicious or intended to paint anyone in a "hideous hue." People talk and laugh about people and circumstances they don't understand or find unusual.

I think I understand one thing: you feel and see too much sometimes. Sensitivity and strong intellect when taken too far will tear your guts out. That's some free homespun bullshit but while lacking substance it still smells right.

However, your knowledge of this scenario exceeds mine. Personally, psychology depresses me because all summed together everyone consciously or unconsciously puts themselves into positions where they are unhappy, neglected, paranoid, degraded and on and on . . . And most of us lack the will to extricate ourselves from this state of being. We cling to that certain feeling because it is constant and predictable. These big brains we have demand it.

Anyway, rest assured that myths are exaggerated and distorted, including yours. Nevertheless, the dull Daniel or plain Jane rarely have myths written or spoken in their name.

[page 478 of record on appeal: typewritten transcript of Daniel Cutler Communication]

I, Gary Freedman, having read the above letter and attachments to Mr. Donald M. Stocks of the D.C. Department of Human Rights and Minority Business Development dated May 17, 1993 affirm that the statements herein are true and correct to the best of my knowledge.

Gary Freedman
_________________
Signature

SUBSCRIBED AND SWORN to me this 17th day of
May, 1993.

Janet D. Courtney
__________________
Notary Signature

My Commission Expires: 1/31/96.

5 comments:

Gary Freedman said...

Sheryl Ferguson also spoke with Akin Gump associate David C. Tobin, Esq. in the course of preparing her report about Akin Gump's litigation support capability. The report was completed in about February 1989.

Gary Freedman said...

I continue to believe that certain legal assistants made invidious references to my friendship with a male employee (Craig W. Dye) with whom I had previously worked at the law firm of Hogan & Hartson. At an Akin Gump dinner held in May 1989, another legal assistant (Raben) acknowledged to me that he had heard a rumor that I was homosexual. See Brief of Appellee District of Columbia at 8. Dye's supervisor at Hogan & Hartson during the period October 1986 to March 1987 was an individual named Sheryl Ferguson, a computer specialist. Ferguson left Hogan in the spring of 1987, and in about mid-year 1989 Dye assumed Ferguson's former supervisory position in that firm's Computer Applications Department. In 1988 Akin Gump hired Ferguson, who by that time worked at ATLIS, a litigation support company, to perform, as a consultant, a study of Akin Gump's litigation support operation. Ferguson completed the consulting task in early 1989, and submitted a lengthy written report in February 1989. The report acknowledged the cooperation of Christine Robertson, Akin Gump's litigation support administrator, as well as several Akin Gump attorneys including John ("Jack") Gallagher and David Callet, senior partners who represented Eastern Airlines (the major client to which I was assigned), as well as an associate named David Tobin, who subsequently left the firm. Ferguson had been my direct supervisor at Hogan & Hartson during the period September 1985 to March 1987. Brown, on her initiative, supplied me with a copy of Ferguson's written technical report, despite the fact that the report was stamped confidential and despite the fact that, according to Akin Gump, I was, as of February 1989, a dispensable temporary employee who had been hired to perform a specific time-limited clerical task for the client Eastern Airlines. I continue to believe that Brown supplied me with a copy of the report knowing that the report was confidential, knowing that Ferguson had been my supervisor at another law firm, and anticipating that I would supply a copy of the report to persons I had worked with at Hogan & Hartson, which would have been an act of gross misconduct on my part. Eastern Airlines filed for bankruptcy protection a few weeks later, on March 9, 1989.

Gary Freedman said...

The spreading of malicious rumors about an employee is a frequent aspect of workplace mobbing.

In the book MOBBING: Emotional Abuse in the American Workplace, the authors identify mobbing as a particular type of bullying that is not as apparent as most, defining it as "...an emotional assault. It begins when an individual becomes the target of disrespectful and harmful behavior. Through innuendo, rumors, and public discrediting, a hostile environment is created in which one individual gathers others to willingly, or unwillingly, participate in continuous malevolent actions to force a person out of the workplace."

Gary Freedman said...

In denying that there was a rumor that I was homosexual the firm committed two deceptive acts simultaneously:

1. The firm wrongfully denied that it was aware that I was a member of a protected class under the D.C. Human Rights Act of 1977.

2. The firm wrongfully denied that it was aware that I was a victim of acts (the spreading of false and malicious rumor and innuendo) that went into the creation of a hostile working environment.

Gary Freedman said...

In affirming that there was a rumor that I was homosexual the D.C. Corporation Counsel committed two deceptive acts simultaneously:

1. It affirmed that Akin Gump lied when it said that no one even indirectly involved with my employment had ever raised the issue of my sexual orientation.

2. It affirmed that I was in fact a victim of an act that is per se evidence of a hostile working environment (the spreading of a false and malicious rumor).