Thursday, June 23, 2011

Akin Gump: Circumstantial Evidence of Misdemeanor False Statements

The following is the transcript of a telephone conversation I had on the morning of July 2, 1993 with Alana Baptiste, an employee of Sheppard Pratt Employee Assistance Programs.  In a sworn declaration (May 22, 1992) my former employer, the law firm of Akin, Gump, Strauss, Hauer & Feld said that it consulted an unidentified Sheppard Pratt counselor who did not object to the firm's decision to terminate my employment effective October 29, 1991.   In a subsequent response to interrogatories filed by the firm (May 17, 1993) with the D.C. Department of Human Rights, Akin Gump alleged that it could not recall the name of the counselor the firm consulted.  Attorney manager Dennis M. Race did not memorialize the name of the counselor in the only contemporaneous documentation of the alleged consult.

BAPTISTE: Sheppard Pratt. This is Alana.

FREEDMAN: Yes. May I speak to Judy Peres please?

BAPTISTE: Sorry. She’s not with us anymore.

FREEDMAN: Oh, she isn’t?


FREEDMAN: Ah. Listen, ah, OK. Um, can I tell you my problem?


FREEDMAN: OK. I used to work for a law firm named Akin Gump.


FREEDMAN: And you were the designated Employee Assistance Program.


FREEDMAN: Um, in late October of 1991.


FREEDMAN: I was terminated from my job after I had made an allegation of harassment. And I filed a complaint with the Department of Human Rights. And my former employer stated that it had contacted you, a counselor at the Sheppard Pratt Employee Assistance Program . . .


FREEDMAN: . . . and that the counselor had advised that, um, I should seek counseling and did not object to my employer’s intention to terminate my employment.


FREEDMAN: It, in effect, sought a representation regarding my mental status from Sheppard Pratt.


FREEDMAN: I talked to Judy [Peres] about that back in January [1993] and she said she could not recall ever having given such information to my former employer.

BAPTISTE: I remember this situation. [telephone rings] Could you give me a second?





BAPTISTE: OK. So. Whatever happened? Judy said that nothing like that was ever done. I mean, we have a policy about confidentiality. And we can’t really release any information to employers, family members or whatever. So it just seems highly unlikely that, you know, they would have advised to fire you.

FREEDMAN: Yes.  The problem is that the document that I received from the Department of Human Rights states that it was an unnamed counselor. So its very difficult to substantiate whether or not it actually happened. You know, 'cause, you know, who do I contact? And this is way back in 1991. Ah, if I could obtain some kind of statement from you saying that it’s not our policy to provide such information and we have no record that any such information was given out.


FREEDMAN: Would that be possible?

BAPTISTE: Um. Yes. Our director would probably have to do that.

FREEDMAN: Um hum. Could I have the name of the director?

BAPTISTE: So you’re saying that your employer told you that we advised them to fire you due to your mental health?

FREEDMAN: More or less. Yes, that’s correct.

BAPTISTE: That is so stu . . . [exasperated sigh] We, I mean [clears throat] that is, ha-ha, that just sounds so fabricated. Because I mean we’re an Employee Assistance Program, and they hire us to help . . .


BAPTISTE: . . . not to terminate. We’re supposed to help in order to, um, so that you can keep your job. If they’re unhappy. I mean, it happens all the time. I mean, that people come here and they see us for the maximum number of sessions and then we give them affiliate referrals, and then the problem still exists, and the employer’s too tired to deal with it. So they will just go and do that. But if you’re saying that they’re blaming us. They’re saying that we advised them, I mean, we can say a letter, I mean, we can write a letter saying that we didn’t advise them to be fired. It’s just ah, I'm concerned because Judy’s not here anymore, so um, I don’t know where . . .

FREEDMAN: What, what would you advise an employer who sought such a representation from you?  In other words, who said we have an employee here who we think has emotional problems and we’re thinking of firing him. Ah, what is your opinion on this matter?

BAPTISTE: We will automatically say, “Bring the employee to us. And make an appointment." It's called . . . We do an employer consult and we find out exactly what they think the problem is and, we will make . . .  tell the employee and make a formal referral to the EAP, if it it’s that grave a situation.


BAPTISTE: And then the, an employee would call us and then they would come in and they would go through the sessions. And at the end, um, we would have the employee sign a consent to release. Did you sign any consent for Release of  Information Form?

FREEDMAN: No, I did not.

BAPTISTE: Let me look up your file, OK?


BAPTISTE: What's your name?

FREEDMAN: Gary Freedman. F-R-E-E-D-M-A-N.

BAPTISTE: OK. And it’s Akin Gump?


BAPTISTE: And you said it's around ‘91?

FREEDMAN: That’s right.

BAPTISTE: OK. If you want to hold for me, I will pull the file, and I will tell you exactly what’s in it. OK?

FREEDMAN: That’s fine. Yea, I’ll hold.

BAPTISTE: Hold on a second.


BAPTISTE: Yea. I see some activity in January [1993] It says [reads aloud from Judy Peres memo].

FREEDMAN: Does Judy in fact state that she investigated the matter and found that Sheppard Pratt did not provide a representation?

BAPTISTE: Let me see. [pause] I’ll read to you what it says.


BAPTISTE: In his letter he also attaches [continues to read aloud from Judy Peres memo]. “The D.C. Office has no record of a contact by Dennis Race or Malcolm Lassman concerning this client.” That’s what she says.

FREEDMAN: Oh. Well, that’s great. Well, could I stop down to the office and male a copy of that? That’s exactly the information I need.

BAPTISTE: OK. Um. Hold on one second. “In addition the client has sent an authorization [continues to read aloud from Judy Peres memo] . . .

BAPTISTE: [telephone rings] Just one second.

[telephone call inadvertently cut off.]


Gary Freedman said...

Sheppard Pratt Preferred Resources, Inc.

July 14, 1993

Gary Freedman
3801 Connecticut Avenue, NW
Washington, DC 20008

Dear Mr. Freedman

This letter is in response to your recent inquiry about your case file.

With regard to your question concerning EAP consultation with Akin, Gump, Strauss, Hauer & Feld:

We have no record of contact concerning you with either Dennis Race or Malcolm Lassman.

With regard to your question about Sheppard Pratt EAP's role in providing consultation to employers regarding employees whose job performance is affected by personal problems (attendance, quality/quantity of work or workplace conduct):

When an employer calls to discuss a troubled employee, we inquire about the history of documentation to determine if the employee's problem is chronic or in early stages. If the employer hasn't documented any earlier problem we suggest a statement of concern and an informal referral to the EAP. This can often prevent the problems from intensifying if the client follows up with recommendations. If the problem is chronic and there is documentation of a pattern of behavior impacting on job performance over a long period of time, we recommend a formal referral to the EAP. The purpose is to provide confidential intervention/support or accommodation to the problem which if addressed could ultimately lead to termination.

We do not tell employers to terminate employees. If an employer has months of documentation and has followed internal disciplinary procedures, i.e., providing verbal, written and suspension as counseling techniques it is the company's decision to fire for cause. Generally, employers do not call to ask EAP advice about terminating employees. They may call us to inform us about their decision if they know the employee was referred to the EAP, yet the performance problems continued over a long period of time. If we do not oppose the decision, this does not imply that we concur in the decision to terminate the employee.


Suzanne Reynolds, M.A., CEAP
Assistant Director
Director -- Washington Operations
Employee Assistance Programs


record on appeal at 63-64

Gary Freedman said...

For the chapter: Not Worthy of Credence