_________________
COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA
GARY FREEDMAN
Petitioner,
v.
DISTRICT OF COLUMBIA
DEPARTMENT OF HUMAN RIGHTS
Respondent
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No. 93-AA-1342
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SUPPLEMENTAL MEMORANDUM
Petitioner has been requested per order of this Court filed October 17, 1994 to submit a supplemental memorandum addressing the question of whether this Court has jurisdiction to consider this case on direct review under the District of Columbia Administrative Procedures Act (DCAPA), D.C. Code Sec. 1-1510(a).
Discussion
This case presents the novel jurisdictional question of whether the District of Columbia Court of Appeals may consider on direct review under the DCAPA, D.C. Code Sec. 1-1510(a), the legal sufficiency of a no probable cause finding issued by the D.C. Department of Human Rights (DOHR) in a situation in which the agency’s Findings of fact stigmatized Petitioner, may potentially affect Petitioner’s legal status, and in which the agency’s final determination dismissing Petitioner’s complaint therefore functioned as a de facto contested case adjudication.
In Lamont v. Rogers, 479 A.2d 1274, 1278 (D.C. 1984), this Court held that a finding of no probable cause by the Office of Human Rights (OHR; predecessor of the Respondent herein,
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DOHR) was not a decision in a “contested case,” D.C. Code Sec. 1-1510(a), and that such a finding was therefore not directly reviewable in this Court. 1/ In Simpson v. District of Columbia Office of Human Rights, 597 A.2d 392, 397-399 (D.C. 1991), the Court held, citing Lamont and other cases 2/, that a finding of no probable cause by the OHR was subject to judicial review, but only in a civil action filed in the Superior Court.
One central, distinguishing feature sets the instant case apart from prior cases in which complainants sought direct review of DOHR’s determination of no probable cause. In all prior cases the petitioners’ status remained unaffected by the agency’s final determination. Indeed, it is the very rudimentary,
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1/ One of the bases of the Court’s holding in Lamont was that the DCAPA, D.C. Code Sec. 1-1502(8)(A), precluded jurisdiction because the petitioner therein had the right to a trial de novo on her sex discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. See Lamont, 479 A.2d at 1276-77. It is noted that, with respect to the instant case, Petitioner’s claim of discriminatory treatment due to perceived sexual orientation (homosexual) is not cognizable under Title VII; homosexuals are not a protected class under Title VII.
2/ Prior relevant cases cited in Simpson include O’Neill v. District of Columbia Office of Human Rights, 355 A.2d 805 (D.C. 1976), in which the Court dismissed under the DCAPA, D.C. Code Sec. 1-1502(8)(A), because the petitioner had a de novo trial court remedy under the Civil Rights Act of 1964 (as amended); and Brown v. Capitol Hill Club, 425 A.2d 1309 (D.C. 1981) in which the Court held that a complainant who pursued an administrative remedy through OHR was precluded, after a finding of no probable case, “from instituting a de novo proceeding on the same matter in court.” Id. at 1312. Lamont, Brown, and O’Neill were dealing with cases in which the agency had found no probable cause and for which no judicial review of any kind was recognized as an available alternative to a trial de novo. Timus v. District of Columbia Department Rights, 633 A.2d 751, 769 (D.C. 1993) (Ferren, J., concurring in part and dissenting in part).
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inchoate nature of the agency’s action in dismissing a complaint at an investigative stage, prior to petitioner’s accrual of a right to a hearing, that stamps the case uncontested. See D.C. Code Sec. 1-1502(8)(A). As a former Corporation Counsel asserted in O’Neill, the Director of DOHR, aided by her staff, “is primarily engaged in investigating complaints” and not engaged in an essentially adjudicative process. Id., 355 A.2d at 807. In Simpson, for example, the Director of OHR disposed of petitioner’s complaint by way of a written decision stating only that dismissal was required because no probable cause for crediting the complaint had been found during the course of the investigation; the Director’s decision included no discussion of the pertinent facts or law. Id., 597 A.2d at 404.
In the present case, however, DOHR’s final disposition of Petitioner’s complaint was far less benign. In its initial no probable cause determination (dated June 30, 1993), and again in its final no probable cause determination (dated September 24, 1993), DOHR concluded--on the basis of the employer’s dubious allegations--that the employer had determined in consultation with two mental health professional including a psychiatrist that the Petitioner suffered from a severe (paranoid) mental
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disorder that rendered him potentially violent. 3/ DOHR implicitly affirmed the employer’s allegation that the Petitioner’s continued presence on the employer’s premises posed a threat of harm to other employees. See Response to Interrogatories and Document Request at Attachment F. DOHR’s decision to dismiss petitioner’s Complaint--resting as it does on DOHR’s finding of fact that Petitioner’s ideation was dominated by paranoid ideas of reference, that Petitioner’s mental disorder rendered him potentially violent, that Petitioner needed counseling, that Petitioner’s conduct was disruptive and frightening to coworkers--functions as far more then a no probable cause determination. DOHR’s no probable cause determination amounts to nothing less than an administrative adjudication of Petitioner’s mental competence 4/ and, as such,
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3/ DOHR’s seven Findings of Fact are enumerated in the Initial Determination, at 2-7; the Findings of Fact are elaborated throughout the 10 page Initial Determination (dated June 30, 1993) and the 9-page Determination on Reconsideration (“Final Determination”) (dated September 24, 1993). None of the employer’s allegations concerning (1) its purported consultations with mental health professionals, (2) Petitioner’s mental competence, or (3) Petitioner’s disruptive conduct as an employee can be substantiated. See Brief of Petitioner, passim.
4/ To the extent that DOHR exceeded its statutory authority by conducting a de facto adjudication of Petitioner’s mental competence absent a hearing, this Court, alternatively, could treat Petitioner’s Petition for Review as a petition for mandamus, i.e., to compel a trial-like hearing concerning the employer’s allegations that Petitioner suffered from a severe mental disturbance, was potentially violent, and unemployable. See Timus, 633 A.2d 751, 778 n. 6 (D.C. 1993 (Mack, J. separate opinion), citing D.C.App.R. 21; Dillard v. Yeldell, 334 A.2d 578 (D.C. 1975).
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necessarily stigmatizes him and may potentially affect his legal status. 5/ DOHR’s determination that Petitioner suffered from a severe mental disorder was not a subsidiary finding 6/ incidental to the no probable cause finding, but rather the central finding underlying the agency’s ultimate finding of no probable cause. 7/ DOHR found that the employer’s concerns about Petitioner’s mental health based on the nature of his allegations of harassment “coupled with the advice of mental health professionals that [Petitioner] needed counseling and that according to [a psychiatrist] could engage in violent behavior, was sufficient grounds for [the employer’s] action to terminate
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5/ There is some question as to whether DOHR’s action of determining--without affording Petitioner the benefit of a full evidentiary hearing--that Petitioner suffered from a severe mental disturbance that rendered him potentially violent falls short of federal due process requirements. The Supreme Court recognizes that alteration of an individual’s legal status resulting from defamation by state officials justifies the invocation of procedural safeguards. See generally Paul v. Davis, 424 U.S. 693, 47 L.Ed.2d 405, 96 S.Ct. 155 (1976); Bishop v. Wood, 426 U.S. 341, 48 L.Ed.2d 684, 96 S.Ct. 2074 (1976); Board of Regents v.Roth, 408 U.S. 564, 33 L.Ed.2d 548, 92 S.Ct. 2701 (1972). Petitioner has not raised this constitutional claim at any time in this proceedings or before DOHR and appears to be precluded from doing so now. But see Lundahl v. District of Columbia Dep’t of Employment Servs., 596 A.2d 1001 (D.C. 1991). Were this Court sua sponte to consider the constitutional adequacy of DOHR’s decision not to provide Petitioner a full evidentiary hearing as to his employer’s allegations of mental competency, such action by this Court would itself confer “contested case” status to this case per the express provision of the DCAPA, D.C. Code Sec. 1502(8).
6/ DOHR’s finding that the employer had consulted two mental health professionals including a psychiatrist was prejudicial error. Brief of Petitioner, at 15-17.
7/ Petitioner received above average and/or outstanding performance evaluations throughout his tenure. Initial Determination, at 2 (Finding of Fact 2); Final Determination, at 8.
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[Petitioner].” Final Determination, at 7. DOHR’s de facto adjudication of Petitioner’s mental competence is the necessary foundation of the agency’s no probable cause finding.
Unlike the respective no probable cause determinations at issue in O’Neill, Brown, Lamont, and Simpson, DOHR’s no probable cause determination in the present case did not restore Petitioner to the status he would have enjoyed had he never filed a complaint, but, rather, left him stigmatized as mentally disturbed and potentially violent. Keep in mind that the stigmatization that Petitioner has suffered is the sole consequence of the no probable cause determination (and supporting Findings of Fact) issued by DOHR. The employer had not advised Petitioner at the termination meeting on October 29, 1991 that it had determined that Petitioner suffered from a mental disorder or that he was being terminated for that reason. Brief of Petitioner, at 7. The employer’s personnel records are silent as to the reason for Petitioner’s termination. See Response to Interrogatories and Document Request, at Attachment H. A memorandum prepared on the day of the job termination by the partner who terminated Petitioner’s employment is the only contemporaneous documentation supporting the employer’s allegation that it had consulted a psychiatrist regarding Petitioner’s mental state and that memorandum was placed in the partner’s confidential file and apparently not copied to the employer’s personnel administrator or anyone else. See Response to Interrogatories and Document Request, at Attachment F.
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DOHR’s no probable cause finding (and the supporting Findings of Fact) poses a specific threat of harm to Petitioner’s legal status in two readily identifiable ways.
First, Petitioner is a law school graduate, licensed to practice in Pennsylvania. See Response to Interrogatories and Document Request at Attachment B. Petitioner satisfies the core requirements for admission to the bar of the District of Columbia on motion to this Court, and might seek bar membership in other jurisdictions as well. The mental fitness of applicants to the bar is a material issue considered by state licensing authorities. Prior findings by a state agency (in this case, DOHR) that an applicant to the bar has suffered from a severe mental disturbance that rendered him potentially violent and a threat to others might credibly impair or encumber Petitioner’s ability to gain bar membership in jurisdictions of his choosing.
Second, Petitioner is a citizen of the United States and a resident of the District of Columbia, and may be summoned at any time to serve on a jury of the Superior Court or the U.S. District Court for the District of Columbia. DOHR’s findings concerning Petitioner’s mental health necessarily relate to his competence and fitness to serve as a juror, and may disqualify Petitioner from jury duty. See Exhibit A. 8/
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8/ Resort to nonrecord evidence, extrinsic to the agency proceedings, is logically unavoidable to establish a credible claim that Petitioner’s legal status may be affected by the agency’s final action, viz., the no probable cause finding, and that the finding was therefore adjudicative.
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Indeed, an employee of the Jury Division of the U.S. District Court for the District of Colombia has already advised Petitioner that if he is summoned to jury duty he will be required to submit documentation concerning DOHR’s findings to the District Court for its review. See Exhibit B. 9/
Regardless of how immediate or severe the effect of DOHR’s no probable cause determination on petitioner’s legal status, that the determination should have any identifiable credible effect on Petitioner’s legal status points to the essentially adjudicative, contested nature of the agency’s action notwithstanding its manifest posture as a no probable cause finding.
Clearly, then, DOHR’s no probable cause determination, in terms of its effect on Petitioner’s legal status and reputation, functions as an adjudication of Petitioner’s mental competence. It is proper, therefore, that this Court consider on direct review under the DCAPA, D.C. Code Sec. 1-1510(a), the legal sufficiency of DOHR’s no probable cause finding since that finding--unlike the respective no probable cause findings at issue in O’Neill, Brown, Lamont, and Simpson--was the product of a de facto contested case adjudication.
Conclusion
For the foregoing reasons, it is respectfully submitted that this Court has jurisdiction to consider this case on direct review under the DCAPA, D.C. Code Sec. 1-1510(a).
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9/ Id.
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Respectfully submitted,
Gary Freedman, pro se
3801 Connecticut Avenue, NW
Apartment 136
Washington, DC 20008
Certificate of Service
I HEREBY CERTIFY that a copy of the foregoing Supplemental Memorandum was mailed, first class, postage prepaid, this 7th day of November, 1994, to the following addresses: Charles L. Reischel, Esq., Deputy Corporation Counsel, 6th Floor, 441 4th Street, NW, Washington, DC 20001, (202) 727-6248; and Dennis M. Race, Esq., 1333 New Hampshire Avenue, NW, Suite 400, Washington, DC 20036 (202) 887-4000.
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GARY FREEDMAN
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EXHIBIT A
August 4, 1994
3801 Connecticut Ave., NW
#136
Washington, DC 20008
Dennis M. Race, Esq.
Akin, Gump, Strauss, Hauer & Feld
1333 New Hampshire Ave., NW
Washington, DC
Dear Mr. Race:
As a resident of the District of Columbia and a citizen of the United States, I may be summoned at any time to serve on a jury of the United States District Court for the District of Columbia or the Superior Court of the District of Columbia ("Courts").
Sworn statements filed by the law firm of Akin, Gump, Strauss, Hauer & Feld in D.C. Department of Human Rights and Minority Business Development Investigation docket no. 92-087-P(CN) concerning my mental health necessarily relate to my competence and fitness to serve as a juror and may, indeed, disqualify me from jury duty.
You are advised that should I be summoned for jury duty by either of the Courts, the subsequent failure by attorney managers of the law firm of Akin, Gump, Strauss, Hauer & Feld affirmatively to disavow to the Courts any prior misrepresentations said managers may have made regarding my mental health, and which failure by said managers causes either of the Courts to disqualify me from jury duty by reason of mental impairment, may constitute an unlawful act of interference by said attorney managers in the jury selection process of the Courts in violation of the laws of the United States and the District of Columbia.
This communication is offered as a courtesy to Akin, Gump, Strauss, Hauer & Feld, and is intended respectfully to advise that regardless of the bona fides of sworn statements filed by the firm with the D.C. Department of Human Rights, I am nonetheless in possession of documentary evidence that raises serious questions about the veracity of said sworn statements and may, ultimately, raise a fraud issue under either 28 U.S.C. Sec. 1865(b)(4) or D.C. Code Sec. 11-1906(b)(2)(A) should I be summoned of jury duty.
Sincerely,
Gary Freedman
cc: U.S. Attorney for the District of Columbia [Eric H. Holder, Jr.]
Federal Bureau of Investigation
Jury Division, U.S. District Court for D.C.
Juror Office, D.C. Superior Court
Charles Reischel, Deputy D.C. Corporation Counsel
EXHIBIT B
[telephone message pink slip prepared by front desk secretarial service employee at 3801 Connecticut Avenue, Washington, DC: residence of Petitioner]
To: G. Freedman
Ms. Walker [U.S. District Court juror office, D.C.]
PHONE 273-0410
TELEPHONED (x)
PLEASE CALL (x)
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Comment added May 16, 2011
D.C. Department of Human Rights Finding of Fact 6 states:
6. Respondent also sought outside professional guidance because of the emotional and psychological nature of Complainant’s allegations and his coworkers responses. Respondent contacted an unnamed counselor from its Employee Assistance Program and an outside psychiatrist. Dr. Gertrude Ticho identified Complainant’s behavior, putting a negative meaning to virtually every event as “ideas of reference” and cautioned that individuals in similar circumstances may become violent. After Respondent’s investigators consulted with Complainant’s supervisor and Respondent’s Management team, Respondent terminated Complainant’s employment.
(a.) The Department has thus made an express finding that a psychiatric expert (Gertrude R. Ticho, MD) offered a professional opinion about my mental health and stability to an attorney employer, and that the attorney employer altered my employment status on the basis of that expert opinion. An expert offered an expert opinion (in violation of the precepts of her profession) to a licensed attorney employer.
It is perhaps well to consider other possible permutations of these facts, and the legal and de facto implications of those permutations both as to the good faith of the employer and the degree to which third parties might rely on the employer's actions.
(b.) The Department made an express finding that a psychiatric expert offered a professional opinion about an employee's mental health and stability (in violation of the precepts of her profession) to a nonattorney employer (such as a candy store owner), and that the nonattorney employer altered an employee's employment status on the basis of that expert opinion. An expert offered an expert opinion (in violation of the precepts of her profession) to a nonattorney employer.
(c.) The Department made an express finding that a non-expert (such as a butcher) offered a layman's opinion about an employee's mental health and stability to a nonattorney employer (such as a candy store owner), and that the nonattorney employer altered an employee's employment status on the basis of that layman's opinion. A layman offered an opinion about an employee's mental health and stability to a nonattorney employer.
(d.) The Department made an express finding that a non-expert (such as a butcher) offered a layman's opinion about an employee's mental health and stability to an attorney employer, and that the attorney altered an employee's employment status on the basis of that layman's opinion. A layman offered an opinion about an employee's mental health and stability to an attorney employer.
In my own case the expert happened to be a nationally-prominent psychiatrist and the attorney managers had a law partner who happened to be an expert in expert opinions. Further, I happened to be working for that expert-in-expert-opinions at the time of my job termination.
http://dailstrug.blogspot.com/2011/02/open-letter-to-david-p-callet-greenberg.html
1 comment:
Petition for Rehearing (DC Court of Appeals):
http://dailstrug.blogspot.com/2011/05/dc-court-of-appeals-petition-for.html
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