Freedman v. D.C. Dept. Human Rights: Reply Memorandum

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

CIVIL DIVISION

GARY FREEDMAN,

Petitioner,

v.

DISTRICT OF COLUMBIA
DEPARTMENT OF HUMAN RIGHTS,

Respondent.

95 MPA 0014
Cal. 14, J. xxxxxxx

REPLY MEMORANDUM OF PETITIONER TO BRIEF OF RESPONDENT

IN OPPOSITION TO PETITION FOR REVIEW OF NO PROBABLE CAUSE

DETERMINATION BY DEPARTMENT OF HUMAN RIGHTS

Introduction

This memorandum addresses the single issue 1/ of the improper reliance by the Office of Corporation Counsel--in its brief in opposition to Petitioner’s petition for review of no probable cause determination issued by the District Columbia Department of Human Rights and Minority Business Development (“DHR”)--on evidence acquired by DHR after Petitioner’s job termination by the law firm of Akin, Gump, Strauss, Hauer & Feld (“the employer”): so-called after-acquired evidence that played no role in the employer’s termination decision or in DHR’ no probable cause determination.

Discussion

DHR made an express finding of fact that the employer’s decision to terminate was based in part on Petitioner’s complaint of harassment to the employer that comprised ten incidents only (Finding of Fact 4(a) through 4(j))  [R. 12-16]. DHR found

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1/ The limited scope of the present reply memorandum does not signify petitioner’s acquiescence in any other representations of fact or law contained in the Brief of Respondent.

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that the employer’s “concern for the [Petitioner] was based on the nature of the ten incidents that [Petitioner] submitted that he perceived as harassment. The details of these ten incidents are set forth in the Findings of Facts.” [R. 7]

The Office of Corporation Counsel has unilaterally expanded the justification for the employer’s termination decision by including in its brief a body of allegations that Petitioner never made to the employer and which therefore played absolutely no role in the employer’s termination decision. 2/ See Brief of Respondent at 2-8. 3/
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2/ An employer could not have been motivated to terminate an employee by knowledge it did not have at the time of termination and it cannot use after-acquired evidence to claim that the employee was fired for the nondiscriminatory reason. McKennon v. Nashville Banner Publishing Co., 115 S.Ct. 879, 885 (1995). The after-acquired evidence at issue in McKennon concerned plaintiff’s misconduct: evidence that would have justified plaintiff’s termination had the employer known of it at the time of discharge. In the present case, the after-acquired evidence comprises two memoranda--prepared after the job termination and submitted by Petitioner to DHR prior to the agency’s decision to institute the complaint--that memorialize Petitioner’s retrospective perceptions of his work environment. [R. 178-201, 231, 324]. The Office of Corporation Counsel admits that Petitioner did not present many of the additional allegations to the employer, and, by implication, that the additional allegations played absolutely no role in the employer’s termination decision. See Brief of Respondent at 10.

3/ An emended version of pages 2 through 8 of the Brief of Respondent indicates the extent of the Office of Corporation Counsel’s improper reliance on after-acquired evidence. See Appendix A to this memorandum. Ironically, a portion of the after-acquired evidence that the Office of Corporation Counsel now attempts to use to justify DHR’s no probable cause determination is the very evidence that persuaded DHR to institute the complaint in the first place. [R. 178-185]. See Appendix A to this memorandum.  Petitioner’s letter to DHR dated January 14, 1992, which contains some of the after-acquired evidence cited in the Brief of Respondent, predates and supports DHR’s complaint filed on February 4, 1992. [R. 178-185]. DHR was fully apprised of all of the after-acquired evidence in the period before the agency decided to institute the complaint. [R. 178-201, 321, 334].

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Moreover, the after-acquired evidence that the Office of Corporation Counsel now attempts to foist on this Court as additional justification for DHR’s no probable cause determination played absolutely no role in the agency’s own factual determinations and final action [R. 1-9, 12-17] and is therefore not legally relevant to this Court’s assessment of whether the agency action should be upheld. It is well-established that a reviewing court may not accept appellate counsel’s post hoc rationalizations for agency actions; such action must be upheld, if at all, on the basis articulated by the agency itself. Motor Vehicle Manufacturer’s Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 103 S.Ct. 2856, 2870 (1983), appeal after remand State Farm Mutual Automobile Insurance Co., v. Dole, 802 F.2d 474 (D.C. Cir. 1986), 255 U.S.App.D.C. 398 (1986), cert. denied New York v. Dole, 107 S.Ct. 1616 (1987).

The issue before this Court is whether DHR’s final determination is supported by the facts articulated by the agency; the issue is not whether there is any evidence in the record that supports the agency’s action. “Administrative agency decisions must stand or fall on the basis used by the agency.” Club 99 v. D.C. Alcoholic Beverage Control Board, 457 A.2d 773, 775 (D.C.App. 1982). Facts recited by appellate counsel that do not form a part of the agency’s decision are not legally relevant to a reviewing court’s assessment of whether an administrative order should be upheld. Cooper v. Department of Employment Services, 588 A.2d 1172, 1176 (D.C.App. 1991).

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This is not a case in which after-acquired evidence of an employee’s improperly concealed wrongdoing would have justified the employer’s termination decision had the employer known of the wrongdoing; Petitioner owed the employer no duty to refrain from believing that he was a victim of harassment nor did Petitioner owe a duty to his employer to reveal his private thoughts about his perceptions of his work environment. 4/ Moreover, this is not a case in which an administrative agency itself relied on after-acquired evidence as a basis of its final determination. Accordingly, this Honorable Court should deem the after-acquired evidence proffered by the Office of Corporation Counsel not legally-relevant to this Court’s assessment of whether DHR’s no probable cause finding should be upheld.

Respectfully submitted,

Gary Freedman pro se
3801 Connecticut Ave., NW #136
Washington, DC 20008-4530
(202) 362-7064 or (202) 363-3800
________________________

4/ DHR found that Petitioner’s Performance Evaluations--which rated his work quality and conduct as an employee--were uniformly above-average or outstanding throughout his tenure (Finding of Fact 2). [R. 12]. Without exception, those Performance Evaluations prepared prior to Petitioner’s complaint of harassment to the employer rate Petitioner’s ability to work with others average or above-average. [R. 295, 305, 308, 312-313, 317-318, 322-323]. Petitioner’s personnel file does not contain a record of any reprimands, oral or written. [R. 167]. The Office of Corporation Counsel does not cite a single specific instance of unprofessional or disruptive behavior by Petitioner. See Brief of Respondent at 2-10. The Office of Corporation Counsel does not dispute Petitioner’s contention that generalized accusations that Petitioner’s behavior was disruptive emerged only in the period after Petitioner’s complaint of harassment to the employer that comprised ten incidents. See Brief of Respondent at 2-10.

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RECEIVED

JUN 03 1996

Superior Court
Of the District of Columbia
Washington, DC

___________________________

[Appendix A to this memorandum is omitted. The Office of Corporation Counsel later filed (July 25, 1997) the identical after-acquired evidence with the D.C. Court of Appeals in my appeal of this lawsuit. See Brief of Respondent Freedman v. D.C. Dept. Human Rights, D.C.C.A. no. 96-CV-961 (Sept. 1, 1998).


The following is the text of the after-acquired evidence filed by the Corporation Counsel with the D.C. Court of Appeals (together with editorial comments I added in the year 2011).]

According to materials submitted by Freedman to the Department during its subsequent investigation, the harassment he experienced during his employment included the following:

[Legally-irrelevant, "after-acquired evidence" is highlighted in yellow.]    

-- Freedman believes that beginning in late October 1988 through the date of his termination, the managing attorneys at Akin, Gump had clandestine telephone contacts with his sister, during which the sister recounted details of phone conversations between herself and Freedman.  R. 335.  Freedman further believes that his sister was faxing to the firm’s management documents relating to Freedman, including his grade school report cards and college exam books, among there material.  R. 335.  Freedman also alleges that the information obtained by the managing attorneys was “disseminated throughout the firm without [his] consent.” R. 336.  Freedman provided no explanation as to why the firm was interested in this information and did not describe the facts upon which his belief is grounded.

[It is arguable whether this is an idea of reference as opposed to a logical inference.  Akin Gump admitted in its sworn declaration that it knew I was a law school graduate doing the work of a paralegal; indeed, Akin Gump supplied the Department of Human Rights a copy of my resume that indicated I had earned an LL.M. in International Trade Law (America University Law School, 1984) and that I was licensed to practice in Pennsylvania.  Record 142-143.  International Trade is a major practice area of the firm.  Record 270.  The Corporation Counsel knew that Akin Gump admitted it had a high opinion of my legal credentials and considered me competitive with its associates. See record at 354.]

-- Freedman had the perception that the legal assistant administrator had him “typed as a homosexual and that her interaction with [him] was guided by that characterization.”  This perception stayed with Freedman throughout his employment.  R. 336.  Freedman further claims that this administrator would glance and scowl at his genital area when she saw him.  R. 336.  Additionally, Freedman claims that at a legal assistant happy hour, this administrator introduced him to female employees of the firm, but not to other males.  R. 327, 337.

[“Freedman further claims that this administrator would glance and scowl at his genital area when she saw him.  R. 336.” This is not a description of an “idea of reference,” but rather a description of lewd behavior.  Further, my voluntary attendance at a legal assistant happy hour at a restaurant in Adams-Morgan conflicts with the view, alleged by Akin Gump, that I had difficulty communicating with my peers.]

-- On the second day of his assignment with the firm as an agency-supplied legal assistant, Freedman introduced himself to a male employee outside whose office Freedman was working.  A brief time thereafter, a group of employees gathered in the office adjacent to the work station where Freedman was working.  The employees proceeded “to engage in a lively and mildly sexually suggestive discussion about the size of the male employee’s chest and whether it was hairy or not.”  The discussion lasted about two minutes.  R. 327, 337.

[The Corporation Counsel admits that I suffered from “ideas of reference” as of about March 4, 1988, a disorder that, according to Akin Gump, rendered me unemployable and potentially violent on the second day of my temp assignment with the firm, three months before the firm hired me and three-and-one-half years before I was terminated.  If you check the cited page in the record (page 327) you will see that the Corporation Counsel also admits that my supervisor, Maggie Sinnott, isolated me from other employees on her initiative; I did not request to work in isolation.  The Corporation Counsel admits that Sinnott frequently engaged in lewd gestures directed at me.  See above.]

--While walking down a hallway in the firm’s offices, in May 1988, one of the firm’s associates who was walking toward Freedman began to hold a pencil next to his genital area and move it up and down.  R. 328, 338.

[This is not a description of an idea of reference, but rather a description of a lewd gesture.  The Department of Human Rights found that Dennis Race on October 24, 1991 asked me if the associate (Paul Wageman) maintained eye contact while making the gesture.  The Department of Human Rights found that I affirmed to Race that the associate maintained eye contact.  Record at 13.]

--In mid-June 1988, Freedman was assigned a private office at the firm.  On the first morning in his new office, Freedman went to get a cup of coffee in an adjacent kitchen area.  At that time, a partner at the firm said to him “I smell something sweet in here.  Do you smell something sweet in here?”  Freedman replied “No.”  The attorney repeated, “I smell something sweet in here.”  R. 328, 338.

[I was hired directly by the firm as an Akin Gump temp without benefits effective June 13, 1988.  The Corporation Counsel admits that at the very time I was hired, I suffered from “ideas of reference,” a disorder that, according to Akin Gump, rendered me unfit for employment and potentially violent -- and which would lead to my termination more than three years later.  Keep in mind that mental illness alone does not render an employee unfit for employment and potentially violent.  Further, the Corporation Counsel admits that I was assigned to a private office by the firm (where I worked for a nine-month period), yet depicts as unreasonable my request for a private office in the days before I was terminated.

Note that the perception that Jews have a "sweet odor" can be stereotypically anti-Semitic, a fact that presumably would be known to a state human rights agency.  Julius Streicher, a leading Nazi propagandist (ultimately executed as a war criminal), wrote the following: "Jews often have an unpleasant sweetish odor. If you have a good nose, you can smell the Jews.” ]

-- During the three and a half years that he was employed at the firm, Freedman never had lunch with another employee.  Apparently, three employees whom Freedman asked to lunch initially agreed to dine with him and later changed their minds.  R. 273, 336.

[This is not an idea of reference.  This is evidence that I formed an arguably reasonable inference that I was shunned by coworkers, which is a feature of a hostile work environment.]

-- One day during the summer of 1988 Freedman went to the office of another legal assistant, Jesse Raben, and had a conversation with him.  During the conversation, another employee walked by and, without saying a word, nodded to Mr. Raben.  Later, Mr. Raben came to a Xerox room where Freedman was making copies and continued the conversation “in a lively manner.”  R. 339.  The next day Mr. Raben seemed “more his normal self.” R. 339.

[The Corporation Counsel’s use of the phrase “another employee” obscures the fact that that employee was a supervisor, J.D. Neary, the firm’s legal assistant coordinator.  In the days before I was terminated Dennis Race inquired into promoting me to the legal assistant program (a fact Akin Gump omitted in its sworn declaration) and that Neary advised Race that he found me difficult to work with, that he was afraid of me, and that he couldn’t work with me.  Record 201.  Akin Gump had an improper motive to omit this probative evidence of my lack of suitability for employment because it would require the firm to admit that even after my complaint of harassment the firm still considered me a candidate for possible promotion.  The record discloses that Neary occasionally engaged in lewd sexual gestures directed at me.  Record at 37.]

-- On a day in February 1989, plaintiff returned to his office from lunch and noticed that a stack of documents on his desk appeared to be out of order.  Freedman inferred that the incident was intended to provoke a paranoid response from him.  R. 340.

[The more detailed description of this transaction at page 340 of the record makes it clear that I am arguably describing a recognized form of harassment known as “gaslighting.”

"16.  Shortly after returning to my office from a lunch break on an afternoon in about February 1989, I discovered that a stack of documents, which had been placed in precise order, had been tampered with and were no longer in order.  I simply assumed that perhaps a legal assistant needed a certain document or documents and had inadvertently disturbed the order of the documents.

The following day I was discussing work issues with Ms. Constance Brown.  At the conclusion of the discussion, Ms. Brown said she sometimes felt there must be ghosts in the building because things seemed inexplicably to get mislaid or lost.  She asked me if I noticed that happening to me.  From this conversation, I inferred that perhaps the incident in my office the preceding day had not been as innocent as it had appeared at the time, and that someone had intentionally disturbed the documents in my office with the intent of eliciting some comment from me blaming a particular individual: the ultimate intent being an effort to adduce evidence of my “paranoia.”]

-- At some point in 1989, Freedman was assigned to work in office space shared with other legal assistants.  Apparently, the legal assistants would meet in the office space for lunch and conversation.  According to Freedman, their [“]conversations were often sexual in nature, and would often feature details that seemed to derive from “Freedman’s personal life expressed in double entendres.  On one occasion, these legal assistants seemed to be reviewing the contents of [Freedman’s] apartment with detail and accuracy.  [Freedman] noted that these conversations stopped after [he] spoke with his sister complaining of this type of interaction.[“] R. 340.  

The other legal assistants also made references to Freedman’s supposed relationship with an attorney with whom Freedman had worked at the law firm of Hogan & Hartson. R. 340.

[The legal assistants in question were Stacey Schaar and Gwen Lesh, Esq.  Stacey Schaar was reportedly fired for gross misconduct in about May 1990.  On October 24, 1991 I reported this harassment incident about Schaar to attorney managers Race and Lassman.  Akin Gump’s sworn declaration omitted the incident I reported about Schaar.  The Department of Human Rights affirmed that, indeed, I reported an incident about Schaar.

The cited page of the record (340) states that Schaar made comments about my supposedly homosexual relationship with Craig Dye, a fact omitted in the Corporation Counsel’s brief.  Akin Gump’s sworn declaration deceptively maintained that the issue of my sexual orientation was never raised by anyone related “directly or indirectly” with my employment.

I took Gwen Lesh to lunch (Record 188) at a Thai restaurant on P Street during the summer of 1989.  This is not the typical behavior of a paranoid person in relation to his perceived persecutor .]

-- According to Freedman, at a firm dinner in May 1989, another legal assistant acknowledged hearing a rumor that Freedman was gay.  R. 329, 341.

[The Corporation Counsel admits a fact flatly denied by Akin Gump’s sworn declaration, which states that the issue of my sexual orientation was never raised by anyone involved “directly or indirectly” with my employment.  In so doing the Corporation Counsel implicitly admits that Akin Gump deceived the DHR in its sworn declaration filed with the agency on May 22, 1992, an act expressly prohibited by the D.C. Human Rights Act of 1977.  Further, Akin Gump's act of offering a false sworn statement about a material fact to a District agency might constitute a misdemeanor under the District's criminal statutes.]

-- During the period March 20 through October 23, 1989, Freedman believes that he was being covertly observed by a computer systems manager at the law firm.  According to Freedman, this individual would watch while Freedman was engaged in conversations with others and then go into his office and close his door to report “to a third party what he observed.”  R. 341.

[I asked computer systems manager Richard Stanke to go to lunch with me during the summer of 1989; we ended up never going to lunch.  Record 336.  This is not the typical behavior of a paranoid person relative to his perceived persecutor.

My apparent paranoia did not affect my work performance or my eagerness to socialize with coworkers.  During the cited time-frame I was granted, on about August 1, 1989, a full time position with benefits.  The Corporation Counsel admits that I attended a legal assistant Happy Hour (at a restaurant in Adams Morgan) in early August 1989.

Akin Gump admits that during the time frame May 1989 to October 1989 my work performance and collegiality were exemplary:

In November 1989, my then supervisor at Akin Gump, Constance Brown, wrote the following about my previous six months' work performance:

"Gary is an invaluable, dedicated and highly-motivated individual who takes pride in his work and seems to thrive on heavy volume. 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. In was Gary who had reservations about temporary help and suggested they only code standard information; and he prepared the detailed summary in order to protect the integrity of the database. Also, Gary was instrumental in redesigning the document summary form to aid in more accurate coding an data entry of document production onto the Firm's network. Gary is as capable and conscientious in digesting depositions and hearing transcripts, always staying flexible and catering to individual needs. I appreciate the job that Gary has done and look forward to other projects with Gary's help. Constance M. Brown 11/6/89"  Record at 310.]

-- During the summer of 1989, Freedman eavesdropped on telephone conversations of the legal assistants with whom he shared an office.  Some of the conversations were sexual in nature.  R. 329, 341-2.

[The Corporation Counsel has grossly oversimplified the record and omitted legally-operative facts relating to employee misconduct, and to a sexually-charged and abusive work environment.  See, e.g., Robinson v. Jacksonville Shipyards, Inc., et al. 760 F.Supp. 1486 (M.D. Fla. 1991).  The full text of Robinson is contained in the record at 371-437.  Additional evidence of a sexually-charged workplace (employees displaying photos of scantily-clad male models) is found in the record at 249.


The record at pages 329-330 reads:

“11.  One day during the summer of 1989, while working in  office space shared with legal assistants Stacey Schaar and Gwen Lesh, Ms. Lesh had a vivid telephone conversation with her brother about a sexual encounter he had had the previous evening with a female.  She said, among other things, “You used a rubber, didn’t you?  You used a rubber, I hope.”  Shortly after this telephone conversation, Stacey Schaar arrived in the office with Xerox copies of a newspaper article about a homosexual encounter that had allegedly occurred between an attorney in the firm’s Dallas office and a male prostitute.  Ms. Schaar proceeded to distribute a copy of the article to me and others in private offices in the vicinity.”

The behavior described above tends to prove that my work environment was sexually-charged.

Stacey Schaar was reportedly fired for gross misconduct in about May 1990.

I took Gwen Lesh to lunch (Record 188) at a Thai restaurant on P Street during the summer of 1989.  This is not the typical behavior of a paranoid person in relation to his perceived persecutor .]

-- At about the same time, Freedman was informed by one of the legal assistants that she and other legal assistants were afraid of him.  Freedman believes that this was said to harass him.  R. 276.

[The Corporation Counsel has grossly oversimplified the record and omitted legally-operative facts that tend to prove an abusive work environment.

The legal assistant in question was Stacey Schaar who was reportedly fired for gross misconduct in about May 1990.

Schaar’s exact statement (see record 276) was “We’re all afraid of you.  We’re all afraid you’re going to buy a gun, bring it in and shoot everybody.”  Schaar made the statement in early August 1989.  Akin Gump hired me as a full-time legal assistant with benefits effective about August 1, 1989, thereby demonstrating its confidence in my suitability for employment.  The Corporation Counsel would have the Court believe that there was a widespread fear among my coworkers in August 1989 that I might become armed and extremely dangerous but that those concerns would not have been brought to the attention of the firm’s supervisors and senior attorney managers -- and that I was permitted to work at the firm until late October 1991.

In fact, the literature on workplace harassment states that a typical feature of subtle job harassment known as mobbing is that the mobbers fear the employee-victim will become violent.  This fact would presumably be known to a state human rights agency.]

-- Freedman claims that at the firm’s 1989 Christmas party, one of the firm’s attorneys glanced at his genital area.  R. 344.  In the summer of 1990, the same attorney glanced at Freedman’s genital area during an elevator ride.  R. 330, 344.

[The record discloses that the attorney in question was the alcoholic husband of the firm’s legal assistant administrator, Maggie Sinnott.  The Corporation Counsel admits that Sinnott frequently engaged in lewd sexual gestures directed at me.  Further, the Corporation Counsel is not describing an “idea of reference,” but rather my perception of an arguably lewd gesture.  The Corporation Counsel admits that I voluntarily socialized with coworkers, which controverts Akin Gump’s sworn declaration that I had difficulty communicating with my peers.]

-- Freedman believes that in early January 1990 “employees or members of the firm gained access to [his] apartment without [his] knowledge or consent.  These individuals, [Freedman] believes, inspected many of the books in [his] apartment and, armed with a video camera, took a video film of [his] apartment.  [Freedman] believes that a copy of that video film was sent to [his] sister.  R. 344.  Freedman claims that the unlawful entry into his apartment was done with the knowledge and consent of the firm’s management committee.  R. 344.

[The Corporation Counsel has placed in controversy record evidence upon which a psychiatrist might diagnose the psychiatric illness delusional (paranoid) disorder.  Akin Gump alleged that its psychiatric consultant described my beliefs as “ideas of reference.”  My  belief that the firm’s senior managers  approved an unlawful entry to my residence is evidence that I believed I was a victim of a criminal conspiracy involving nationally-prominent attorneys and government officials such as Ambassador Robert S. Strauss and Vernon E. Jordan, Jr.  The Corporation Counsel’s proffer misleads the Court to believe that a D.C. agency found that my employer terminated my employment on the basis of facts that might lead a psychiatrist to diagnose me with delusional psychosis.]

-- Sometime in early spring 1990, Freedman was assigned to a work station for the performance of a specified task.  Upon sitting down, Freedman looked into the trash basket next to the desk and noticed that it contained a baby food jar.  The jar had been wiped clean before being placed in the trash basket.  In Freedman’s view, this fact was consistent with the jar having been brought from home by someone for the express purpose of placing it in the trash basket with the intent to harass Freedman.  R. 344-5.  According to Freedman, the epithet “baby” is stereotypically anti-Semitic.  R. 345.

[The Corporation Counsel omits legally-operative facts.  The record discloses that I believed it was my (racist) supervisor Chris Robertson who had placed the baby food jar in the trash can with the intent to harass.  Perhaps significantly, I had reported this incident to Akin Gump’s senior attorneys on October 23 and October 24, 1991, but in its sworn declaration filed with the D.C. Department of Human Rights Akin Gump omitted any reference to any of the three harassing incidents relating to Robertson.  The Department of Human Rights made a specific finding of fact that I lodged a harassment complaint against Robertson relating to three harassing incidents.   The record discloses that Akin Gump filed its sworn declaration on May 22, 1992 that omitted any reference to my harassment complaint against Robertson.  The record further discloses that about six weeks earlier, on April 9, 1992, Personnel Administrator Laurel Digweed terminated a black litigation support employee (Pat McNeil) who later filed a charge of discrimination against Akin Gump alleging that Robertson was racist and had colluded in McNeil's termination with Digweed.  Akin Gump clearly had an improper motive as of May 22, 1992 to conceal the fact that I had lodged a harassment complaint against Robertson in late October 1991: a harassment complaint that put Akin Gump on notice that Robertson might have had a propensity to engage in unlawful harassment (and participate in the discriminatory termination of an employee).

Akin Gump admits that the litigation support department was tinged with anti-Semitism.  See record at 57-61.]

-- On April 13, 1990, Freedman eavesdropped on a conversation in which the legal assistant administrator gave instructions to another legal assistant concerning the bates-numbering of some documents.  Freedman believes that her repeated use of the word "bates" was a reference to masturbation.  R. 345.

[The Corporation Counsel omits legally-operative record evidence.  The legal assistant administrator was Maggie Sinnott who the Corporation Counsel admits frequently engaged in lewd sexual gestures directed at me.  The Corporation Counsel admits that Sinnott’s alcoholic husband engaged in lewd sexual gestures directed at me.]

--  During 1990, it appeared to Freedman that his coworkers were using words and phrases that he had used during private sessions with his psychiatrists.  From this, Freedman infers that the psychiatrist was discussing his case with firm management.  R.  The psychiatrist denied that he had any communication with members of the firm.  R. 345.

[Again, the Corporation Counsel is alleging that I believed I was a victim of a criminal conspiracy (namely, the violation of the confidentiality provisions of the D.C. Mental Health Information Act of 1978), and implies that a District agency found that Akin Gump terminated my employment on the basis of facts that might lead a psychiatrist to diagnose me with delusional psychosis.  In fact, the Department of Human Rights found that Akin Gump terminated my employment because it believed that I suffered from “ideas of reference.”]

-- According to Freedman, sometime in 1990 he returned to his desk and noticed that someone had placed a brochure for a secretarial course on his desk.  “The brochure was pink in color and featured photographs of women only.”  R. 331.  On another occasion, someone left a clothing catalogue on Freedman’s desk.  “The front cover depicted a young woman holding a little boy.”  R. 331.

[The Corporation Counsel makes an interesting omission.  The record at 331 reads: “On another occasion someone had placed a Levi-Strauss catalogue on my desk.  The front cover of the catalogue depicted a young women holding a little boy.”

Robert S. Strauss and Charles Levi (both Jewish) were the names of two of the firm’s senior partners.  They had adjoining offices on the firm’s third floor.

The feminization of Jews can be a typical feature of anti-Semitism, a fact that should have been known to a state human rights agency.  For additional authority concerning the feminization of Jews, see Katz, D., Shylock's Gender: Jewish Male Menstruation in Early Modern England. (Purely coincidentally, both my supervisor (Robertson) and Personnel Administrator Laurel Digweed -- two of the three decisionmakers in my termination -- were of British extraction.  Digweed spoke with a British accent and was presumably born and raised in England; Robertson's father lived in England at his death in the summer of 1991.  Akin Gump denied that Robertson and Digweed colluded in April 1992 in the racially-motivated termination of a black employee, Pat McNeil.)
 
Akin Gump admits the firm’s litigation support department was tinged with anti-Semitism.  Record at 57-61. ]

-- In September or October 1990, Freedman’s female supervisor, who was handing documents to him, “pulled [them] back towards herself in such a way that, as I was reaching for them, I touched her breasts.”  R. 331.

[The Corporation Counsel omits a legally-operative fact.  The supervisor in question was the court-adjudicated racist, Chris Robertson.  I had lodged a harassment complaint against Robertson relating to three incidents of harassment but Akin Gump omitted any reference to my complaint against her.  Akin Gump had an improper motive to omit any reference to Robertson in its sworn declaration filed with the Department of Human Rights on May 22, 1992.  See above.]

-- Sometime in 1990, while Freedman was riding alone in an elevator with a firm partner, the attorney began to pace back and forth and whistle while glancing at Freedman.  R. 353.

[The attorney in question was David Eisenstadt who was married to Akin Gump’s attorney recruiter, Nina Eisenstein.   Nina Eisenstein worked closely with Dennis M. Race, the firm’s hiring partner and one of the three decisionmakers (also including Robertson and Digweed) who terminated my employment in October 1991.  The Department of Human Rights made a specific finding that when I recounted this incident to Akin Gump’s attorney managers I myself questioned whether this was in fact an instance of harassment (or just peculiar behavior).  Finding of Fact 4(j) at page 16 of the record.  Persons with severe mental illness generally do not subject their distorted beliefs to the rigors of reality testing, but rather hold fast to their beliefs without question.]

-- In March 1991, Freedman returned to his desk and noticed that a letter opener had been inserted, blade first, into a stack of documents.  Freedman believes the positioning of the letter opener “gave the impression of a symbolic stabbing.”  R. 346-7.

[The incident may be evidence of a recognized form of harassment known as "gaslighting."  Presumably, a state human rights agency would know about the phenomenon of gaslighting.

The account in the record is speculative but arguably shows a degree of sophistication not typical of persons with severe mental disturbance.  The record reads:

“In mid-March 1991 two apparently related incidents, perpetrated anonymously, occurred on successive days.  One morning, probably during the week of March 11, 1991, upon arriving at my desk on the ninth floor, I noticed that someone had taken a dagger shaped letter opener from a drawer in my desk and had positioned it with the blade inserted between the pages and had positioned it with of a bound volume of documents and with the handle protruding from the bound volume.  The letter opener, positioned as it was, gave the impression of a symbolic stabbing.  The next morning, upon arriving at the office, I observed that someone had strewn my desk with pieces of a paper napkin, which  had been shredded into tiny bits.  Also, on a piece of 8.5” x 11” paper placed on my desk, someone had written in bold, upper case letters the phrase, “WHITE TRASH.”

(The bound volume of documents in which the letter opener had been placed was a compilation of exhibits for litigation concerning a client, LL&E.  The 8.5” x 11” piece of paper on which the phrase “WHITE TRASH” had been written was the reverse side of a computer printout relating to the client LL&E.  At that time I was working on LL&E under the direction of Ms. Lutheria Harrison, a black employee assigned to the litigation support group.  It is possible that some third party perpetrated the acts described above in an attempt to prompt me to complain to a supervisory employee or member of management, with the ultimate intent to make it appear that I harbored a racial animus against black employees.  Such contrived “evidence” of a putative racial animus could then be used to counteract any allegations I might make that other employees’ harassing acts were motivated by anti-Semitism.  That is, other employees could argue that my allegations of anti-Semitism were simply a projection of my own unacknowledged racial bias.)”

Akin Gump admits that the litigation support department was tinged with anti-Semitism.  Record at 57-61 .]

--  Sometime in April 1991, while Freedman was seated at his desk after returning from lunch, his female supervisor asked a female employee who was seated nearby, “Are you wet?”  Freedman believes that the phrase “could be interpreted” as alluding to a state of sexual excitation.  R. 331, 347.

[The Corporation Counsel fails to disclose that the supervisor in question was the court-adjudicated racist, Chris Robertson.

With the use of the phrase “could be interpreted” the Corporation Counsel admits that I was well aware that my beliefs were speculative.  Generally, persons with severe mental illness do not acknowledge that their view of reality is subjective and speculative; rather they hold fast to their representations of reality with absolute certainty.  A severely disturbed person would tend to say something such as, “She said ‘wet’ and I knew what she was talking about.”]

-- On another occasion in the summer of 1991, his supervisor, Ms. Robertson offered Freedman a piece of chocolate, and stated to Freedman “Here, you look like you need some chocolate.”  R. 347.  Freedman interpreted the phrase “Here, you look like you need some chocolate” as a reference to anal intercourse.  R. 332.

[This incident is legally-cognizable evidence of sexual harassment and I so advised the D.C. Department of Human Rights.]

-- In early August 1991, while eavesdropping on a coworker in an adjacent cubicle, Freedman noted that the coworker was talking about her July telephone bill, emphasizing the word "July."  Two days later "[t]his seemingly meaningless incident assumed some small measure of significance" when he overheard this same employee, who was seated at her desk, state in a "markedly audible tone of voice" the children's rhyme, "liar, liar, pants on fire."  On another occasion a brief time later, Freedman heard the same employee utter the Yiddish phrase, "Oy veh."  R. 348.  Freedman interprets the word "July" as a homophone for the phrase "Jew Lie," and believes that these anecdotes suggest that some his his coworkers "may have had an anti-semitic animus."  R. 256.

[The coworker in question was Lutheria Harrison who is referenced in the incident above that occurred in March 1991.

The Corporation Counsel admits ("his coworkers ' may have had an anti-semitic animus'") that my beliefs were speculative and not fixed as is typical in persons with severe mental illness.  

In fact, the anti-Semitic use of the word July as a homophone for the phrase "Jew lie" is fairly common.  One would think that a state human rights agency would have been aware of that.


Akin Gump admits that the work environment in the litigation support group was tinged with anti-semitism.  Record at 57-61. ]

-- On the afternoon of October 2, 1991 Freedman met with a female legal assistant in a private office.  He was seated in front of her desk and the female employee was in back of it, but leaning over it, supporting her torso with her elbows.  According to Freedman, as she was reviewing Freedman's work, she gyrated her hips and rubbed her pelvic region against the desk in a "sexually suggestive manner while simultaneously expressing her work-related comments in the form of double entendres."  R. 332, 349.

[In November 1991, a few weeks after I was terminated, I visited the Equal Employment Opportunity Commisson headquarters (in Washington, DC), and spoke with an investigator named Franklin C. Jones about the job harassment I experienced at Akin Gump.  I had hoped to file a complaint with the EEOC. When I recounted the above incident Franklin Jones said that it constituted prima facie evidence of sexual harassment.  (It was Franklin Jones who referred me to the D.C. Department of Human Rights, explaining that perceived sexual orientation is not a protected class under Title VII, the federal anti-discrimination statute.)

A few historical facts, of which a court might take judicial notice, are the following.  As of October 2, 1991, the Senate Judiciary Committee was conidering the nomination of former EEOC Chairman Clarence Thomas to the post of associate justice of the U.S. Supreme Court.  Justice Thomas was alleged to have sexually harassed an employee at the EEOC named Anita Hill.  One of Anita Hill's witnesses was law professor Catherine MacKinnon, from the University of Michigan Law School (who incidentally, was at one time engaged to marry Freud scholar Jeffrey M. Masson).  Record evidence discloses that I referred to Clarence Thomas during my meeting with Earl L. Segal, Esq. on the afternoon of October 23, 1991.

As of October 2, 1991 I worked with the female harasser on a project for the client Hoechst-Celanese for an Akin Gump associate named Katherine MacKinnon (who was young and attractive).  Katherine MacKinnon worked on Hoechst under billing partner David P. Callet.

Non-record evidence discloses that the female harasser was keenly interested in the Thomas confirmation hearings, and, in fact, had brought in a portable TV from home to watch the hearings while she was working.  I specifically recall that on one occasion the female harasser noted the coincidence that law professor Catherine Mackinnon had the same name as Akin Gump associate Katherine MacKinnon.  I specificaly recall responding: "Yea.  But our Katherine spells her name with a "K" not a "C." ]