Monday, May 02, 2011

What Am I Not Getting?

In 1991 the law firm of Akin, Gump, Strauss, Hauer & Feld terminated my employment as a paralegal after I lodged a harassment complaint against my supervisor and others.  The firm later claimed it spoke with a psychiatrist who had advised the employer my harassment complaint was the product of a psychiatric "disorder" that rendered me potentially violent.  The D.C. Department of Human Rights (DHR), which brought an unlawful job termination complaint against the employer, made a specific finding of fact in ruling against me:

Finding of Fact No. "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."

I later sued the agency in D.C. Superior Court alleging that the agency exceeded its authority in determining (de facto) that I suffered from a psychiatric "disorder."

The D.C Superior Court ruled against my argument stating: "Contrary to the petitioner’s argument, DHR did not find that petitioner suffered from a mental illness.  Rather, DHR concluded that the law firm was not motivated by a discriminatory animus based on petitioner’s sexual orientation, but rather by a concern for his mental stability, and this constituted a legitimate business reason for his termination."

Yes, the court is correct; the agency did not make a finding that I suffered from a psychiatric disorder.  But for all practical purposes, the agency did the next best thing.  The agency found that Akin Gump's production that it spoke to a psychiatrist who advised I had a psychiatric "disorder" was genuine and worthy of credence (under Burdine).

What's the difference between the following two statements:

1. The agency found Freedman had a psychiatric disorder.

2. The agency found that the belief of the employer -- senior attorney managers of a major law firm  (who are themselves licensed professionals whose work involves assessing the credibility of expert opinions) -- that Freedman had a disorder was genuine and credible and based on a psychiatrist's opinion.  (Note that the employer in this case is not "The Mom and Pop Candy Shop").

In either case, the agency is affirming that a psychiatrist had opined that I had a psychiatric disorder.

1 comment:

Gary Freedman said...

So Mom and Pop, owners of the Mom and Pop Candy Shop, spoke to a psychiatrist about their employee, Bill. They didn't know they weren't supposed to do that, just being a Mom and Pop who had an 8th grade education; they were not aware that a psychiatrist's failure to personally examine an individual renders the psychiatrist's opinion unreliable.

In any event, regardless of the value of the psychiatrist's opinion, Mom and Pop decided Bill could become violent and resolved to terminate Bill, a black employee. Mom and Pop are not bad people who discriminate. They're just not too bright.

Where did we see this argument before?

William Hundley, Esq. of the law firm of Akin, Gump, Strauss, Hauer & Feld, who later served as Vernon Jordan's lawyer in the Starr Investigation of the Monica Lewinsky matter, tried to pull the same trick with the Fourth Circuit Court of Appeals in 1991. The Fourth Circuit didn't buy it. But the D.C. Courts did in Freedman v. D.C. Department of Human Rights, D.C. Superior Court (1996). Akin Gump conned the D.C. Government, and I scored big time!

Believe me, Akin Gump is no Mom and Pop operation; -- and sometimes Mom and Pop aren't even a mom and pop!