Tuesday, October 25, 2011

D.C. Superior Court: Petition for Review from the D.C. Department of Human Rights

 The following post contains several pages missing from the original posting of the Petitioner's brief in  Freedman v. D.C. Dept. Human Rights, D.C. Superior Court no. 95-MPA-0014.  Pages included in this post include 22-23 and 49-61 plus Appendix A and Appendix B.

The following is the brief I filed in the D.C. Superior Court in Freedman v. D.C. Department of Human Rights, appealing the final agency finding that there was no probable cause to believe that my former employer, the law firm of Akin, Gump, Strauss, Hauer & Feld, terminated my employment on October 29, 1991 in violation of the D.C. Human Rights Act of 1977.  Several pages of the brief are missing.

A word about the brief.  I consider it to be a piece of garbage.  First, I did not want to be in the D.C. Superior Court.  I had filed an appeal in the D.C. Court of Appeals in 1993; the Court dismissed the appeal without prejudice for lack of jurisdiction and directed me to file a civil action in Superior Court.  My intent in the D.C. Superior Court was to, as they say, throw all the spaghetti against the wall and see what stuck.  I was not seeking to prevail in Superior Court.  I knew that even if I lost in Superior Court, I could file an appeal in the D.C. Court of Appeals.  Fundamentally, what I was looking for was an opinion from the Superior Court that would provide a road map to how I should proceed in the Court of Appeals; I wanted to know what arguments were viable, what arguments were weak or not legally supportable.  

The Superior Court handed down its judgment on June 10, 1996.  I was in psychotherapy at the George Washington University Medical Center at that time with Dimitrios Georgopoulos, M.D.  I specifically recall telling Dr. Georgopoulos the following: "I lost my case before the D.C. Superior Court.  But I think the judge did me a favor.  Her opinion told me everything I need to know to proceed with an appeal in the D.C. Court of Appeals.  I could have gone to a private attorney and have him review my brief.  And he would have charged me a couple hundred dollars.  But I got a judge -- a seasoned attorney -- to critique my pleadings for the $50 filing fee the Court charged me to file my brief.  Yea, I think I got the best of the deal."  The notion that I was angry with the Court for ruling against me is preposterous and not at all consistent with what I told Dr. Georgopoulos in June 1996.

Material added as of August 2011 is highlighted in yellow.


The Superior Court Decision can be found at the following site:

http://dailstrug.blogspot.com/2011/04/superior-court-decision-freedman-v-dc.html

 IN THE
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
____________________________________________

No. 95-MPA-0014
Calendar 14

Before the Honorable XXXXX XXXXX XXXXXXX
____________________________________________

GARY FREEDMAN

Petitioner

v.

DISTRICT OF COLUMBIA
DEPARTMENT OF HUMAN RIGHTS

Respondent

_______________________________________

Petition for Review from the District of Columbia
Department of Human Rights 

_______________________________________

BRIEF OF PETITIONER
_______________________________________


Gary Freedman pro se
3801 Connecticut Avenue, NW
Apartment 136
Washington, DC  20008
(202 362-7064
or (202) 363-3800

__________________________________________ 

TABLE OF CONTENTS

                                                                            PAGE

TABLE OF AUTHORITIES . . . . . . . . . . . . .. . . . i

I.  STATEMENT OF JURISDICTION . . . . . . .. . 1

II.  FINAL AGENCY ACTION IN QUESTION . . . . . 2

III.  STATEMENT OF QUESTIONS INVOLVED . . . . . 3

IV.   STATEMENT OF THE CASE . . . . . 5

     A.  Form of Action  . . . . . 5

     B.  Factual History  . . . . . 7

V.  SUMMARY OF ARGUMENT  . . . . . 13

VI.  ARGUMENT . . . . . 15

1.  DHR’S determination of no probable cause is unsupported by substantial evidence in that DHR’s finding that Petitioner’s performance evaluations were uniformly above-average or outstanding throughout his tenure taken together with its finding that Petitioner believed, throughout his tenure, that he was subjected to a continuing pattern of unlawful harassment do not lead rationally to the agency’s ultimate determination that Petitioner’s belief that he had been subjected to harassment was the product of a serious mental disturbance that rendered him potentially violent and not suitable for employment . . . . . 15

2.  DHR exceeded its statutory authority under the Act, D.C. Code Section 1-2545(c), by issuing a no probable cause determination that adopted the employer’s allegations concerning Petitioner’s supposedly disturbed mental status and potential for violence . . . . 28

3.  DHR erred in finding no probable cause that Petitioner’s job termination was discriminatory since substantial evidence, ignored by DHR, showed that the employer (1) may have fabricated evidence that Petitioner suffered from a debilitating mental disorder, (2) failed adequately to investigate Petitioner’s complaint of harassment, and (3) retaliated against Petitioner . . . . 35

4.  DHR erred in finding that Petitioner’s failure to provide notice of harassment and his membership in protected class prior to October 23, 1991 excused the employer of liability under the Act since the employer is liable for (1) its own discriminatory acts as of the time of notice and (2)  prior discriminatory acts of supervisors . . . . . 52

VII.  CONCLUSION . . . . . . 61

APPENDIX A

APPENDIX B

TABLE OF AUTHORITIES

CASES                                                              PAGE

Bakers Local 118 v. District of
Columbia Bd. Of Zoning Adjustment,
437 A.2d 176, 180 (D.C. 1981) . . . . . . . . . . . . 34

Bishop v. Wood,
426 U.S. 341 (1976) . . . . . 31

Board of Regents v. Roth,
408 U.S. 564 (1972) . . . . . 31

Brewington v. Board of Appeals & Review,
299 A.2d 145, 147 (D.C. 1973) . . . . . . 33

Burlington Trunk Lines, Inc. v.
United States,
371 U.S. 156, 168 (1962) . . . . . 33

Campbell v. Kansas State Univ.,
780 F.Supp. 755, 764 (D. Kan. 1991)  . . . . . 58, 59

Citizens Ass’n of Georgetown, Inc. v. District of
Columbia Zoning Comm’n,
402 A.2d 36, 41, 42 (D.C. 1979) . . . . . 15, 33

Davis v. District of Columbia Dep’t of Employment
Services,
542 A.2d 815, 819 (D.C. 1988) . . . . . 52

Dietrich v. Tarleton,
154 U.S.App.D.C. 47, 49, 473 F.2d 177, 179
(1972) . . . . . . . 47

Eide v. Kelsey-Hayes Co.,
397 N.W.2d 532, 538 (Mich. App. 1986) . . . . . 11

Freedman v. District of Columbia Dept. of
Human Rights,
No. 93-AA-1342 (D.C. App., filed Jan. 10, 1995),
amended, (D.C. App., filed Sept. 20, 1995) . . . . . 1, 6

Goos v. National Ass’n of Realtors,
715 F.Supp. 2, 3 (D.C.C. 1989) . . .  47, 48, 49, 50, 51

Hicks v. Gates Rubber Co.,
833 F.2d 1406, 1415-1416 (10th Cir. 1987) . . . .  44

Huddleston v. Roger Dean Chevrolet, Inc.,
845 F.2d 900, 904-905 (11th Cir. 1988) . . . . 60

Jameson’s Liquors, Inc. v. District of Columbia
ABC Bd.,
384 A.2d 412, 419 (D.C.App. 1978) . . . . . 42

Kopff v. District of Columbia ABC Bd.,
381 A.2d 1372, 1385 (D.C. App. 1977),
aff'd, 413 A.2d 152 (D.C.App. 1980) . . . . . . . . . . . .38

Liberty v. Police and Fireman’s Retirement and
Relief Board,
410 A.2d 191, 194 (D.C. App. 1979), aff’d,
452 A.2d 1187 (D.C.App. 1982) . . . . . 41, 47

McCaskill v. D.C. Dept. of Empl. Services,
572 A.2d 443 (D.C. 1990) . . . . . . . . . . . . . 46
No. 93-0477 (D.D.C., filed Nov. 29,
1993) . . . .8, 9, 24, 26, 27, 28, 44, 46

Munford v. James T. Barnes & Co.,
441 F.Supp. 459, 466 (E.D.Mich. 1977) . . . . 42, 53

Namerdy v. Generalcar,
217 A.2d 109, 111-112 (D.C.App. 1966) . . . . . . . . . . . . .38

O’Neill v. District of Columbia Office of
Human Rights,
355 A.2d 805, 807 (D.C. 1976) . . . . . . 29, 32

Paul v. Davis,
424 U.S. 693 (1976) . . . . . 31

Rafferty v. District of Columbia Zoning Commission,
583 A.2d 169, 175 (D.C.App. 1990) . . . . . . 52

Ravinskas v. Karalekas,
741 F. Supp. 978, 979-980 (D.D.C. 1990) . . . . . . . . 48, 49, 51

Robinson v. Jacksonville Shipyards, Inc.,
760 F.Supp. 1486, 1530-1531 (M.D.Fla. 1991)  . . . . . 53

Rosexpress, Inc. v. District of Columbia
Department of Employment Services,
602 A.2d 659, 662 (D.C.App. 1992) . . . .  .37, 39, 45

Simpson v. District of Columbia Office of
Human Rights,
597 A.2d 392 (D.C. 1991) . . . . .. . .1, 6, 29, 32

Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1980) . . . . . . . . . . . 17

Vinson v. Taylor (Meritor Savings Bank v. Vinson),
763 F.2d 141 (D.C. Cir. 1985), aff’d in part
and rev’d in part, 477 U.S. 57, 106 S.Ct. 2399,
91 L.Ed.2d 49 (1986) . . . . . 44

Zuniga v. Kleberg County Hosp.,
Kingsville, Tex.,
692 F.2d 986 (5th Cir. 1982) . . . . . . . . . 56

STATUTES                                        PAGE

42 U.S.C. Section 2000 et seq. . . . . . 42, 43

29 CFR Section 1604.11(c) . . . . . 52

D.C. Code Section 1-1510(b) . . . . . 41

D.C. Code Section 1-2501 et seq. . . . . 3, 4, 5

D.C. Code Section 1-2512(a)(1) . . . . . 51, 54, 56

D.C. Code Section 1-2525 . . . . . 47, 48, 49, 50, 51, 57

D.C. Code Section 1-2528(a) . . . . . 57

D.C. Code Section 1-2529 . . . . . 57

D.C. Code Section 1-2545(c) . . . . . 3, 28

Agency Review Rule 1 (Superior Court) . . . . . 1, 6, 15

NONLEGAL MATERIALS                       PAGE

Eastern Requests Bankrupt Status
To Cut Strike Loss,
     N.Y. Times, Mar, 10, 1989, at 1, col. 1 . . . . . 7

DORLAND’S MEDICAL DICTIONARY,
     814 (27th ed. 1988) . .  . . . . . . . . . . . . . . . . 34

R. Noll, THE ENCYCLOPEDIA OF SCHIZOPHRENIA
& THE PSYCHOTIC DISORDERS
     169 (New York: Facts on File 1992) . . . . . . 34

I. STATEMENT OF JURISDICTION

In that this is a Petition for Review of final agency action of the District of Columbia Department of Human Rights, this Court has jurisdiction over same by virtue of Simpson v. District of Columbia Office of Human Rights, 597 A.2d 392, 400-402 (D.C.App. 1991) that a District of Columbia Department of Human Rights finding of no probable cause is subject to judicial review in a civil action in the Superior Court of the District of Columbia per Agency Review Rule 1, Superior Court review of agency orders pursuant to D.C. Code 1981, Title 1, Ch. 6.

A prior Petition for Review of this matter filed in the District of Columbia Court of Appeals was dismissed by order of that Court for lack of jurisdiction, without prejudice to the timely filing of an appropriate civil action in the Superior Court, per Simpson.  Freedman v. District of Columbia Department of Human Rights, No. 93-AA-1342 (D.C. App., filed Jan. 10, 1995) (Memorandum Opinion and Judgment) (as amended per Order, filed Sept. 20, 1995).

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II. FINAL AGENCY ACTION IN QUESTION

Petitioner seeks review of the District of Columbia Department of Human Rights’ Determination on Reconsideration, issued September 24, 1993, in the mater of Freedman v. Akin Gump, Hauer & Feld, agency docket no. 92-087-P(CN), which affirmed and incorporated the agency’s no probable cause determination (Letter of Determination, dated June 30, 1993).  Said Determination on Reconsideration, issued September 24, 1993, was final agency action.

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III. STATEMENT OF QUESTIONS INVOLVED

A.  Does DHR’s finding that Petitioner’s performance evaluations were uniformly above-average or outstanding throughout his tenure taken together with its finding that Petitioner believed, throughout his tenure, that he was subjected to a continuing pattern of unlawful harassment lead rationally to the agency’s ultimate determination that Petitioner’s belief that he had been subjected to harassment was the product of a serious mental disturbance that rendered him potentially violent and not suitable for employment, thereby providing a legitimate nondiscriminatory basis for Petitioner’s termination?

B.  Did DHR exceed its statutory authority under the D.C. Human Rights Act of 1977, D.C. Code Section 1-2545(C), by issuing a no probable cause determination that adopted the employer’s allegations concerning Petitioner’s supposedly disturbed mental status and potential for violence?

C.  Did DHR err in finding no probable cause that Petitioner’s job termination was discriminatory under the D.C. Human Rights Act of 1977, D.C. Code Section 1-2501, et seq., by failing to credit substantial evidence that the employer (1) may have fabricated evidence that Petitioner suffered

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from a debilitating mental disorder, (2) failed adequately to investigate Petitioner’s complaint of harassment, and (3) retaliated against Petitioner?

D.  Did DHR’s reliance on the fact that Petitioner did not advise his employer prior to October 23, 1991 that he was a member of a protected class under the D.C. Human Rights Act of 1977, D.C. Code Section 1-2501, et seq., and that he was being harassed, improperly (1) excuse the employer for its own discriminatory acts during the period after the employer had express notice and (2) excuse the employer of responsibility for prior discriminatory acts of its supervisory personnel?

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IV.  STATEMENT OF THE CASE

      A.  Form of Action

Petitioner, Gary Freedman, filed a charge of discrimination based on sexual orientation (homosexual) with Respondent, District of Columbia Department of Human Rights and Minority Business Development (DHR), on February 4, 1992 against his former employer, the law firm of Akin, Gump, Strauss, Hauer & Feld (“the employer,” “Akin Gump,” or “firm”) (R. 169-170).  Petitioner charged that the employer subjected him to unfair terms and conditions of employment based on his sexual orientation by harassing him and terminating his employment in violation of the District of Columbia Human Rights Act of 1977, as amended, D.C. Code Sections 1-2501, et seq. (Reply. Vol. 1992) (“the Act”) (R. 169-170).

The employer filed a Response to Interrogatories and Document Request in this matter, dated May 22, 1992 (R. 131-167), to which Petitioner filed a Reply, dated January 5, 1993 (R. 239-462).

DHR issued a no probable cause determination (Letter of Determination) on June 30, 1993 (R. 11-20).  Petitioner’s Application for Reconsideration was filed on July 27, 1993 (R. 21-67).  DHR’s Determination on Reconsideration (R. 1-9), issued September 24, 1993, affirmed and incorporated DHR’s no probable cause determination (issued June 30, 1993), and was final agency action.

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DHR determined that Petitioner did not present sufficient evidence to support his allegations of disparate treatment because of sexual orientation (R. 19-20).

Petitioner’s petition for review and motion to proceed on appeal in forma pauperis were granted by order of the District of Columbia Court of Appeals, dated December 22, 1993.  The petition was argued before the Court of Appeals on October 13, 1994 by Petitioner pro se; Respondent declined to file a brief per “Statement in Lieu of Brief,” filed March 4, 1994.  The petition for review was dismissed by Judgment of the Court of Appeals for lack of jurisdiction, without prejudice to the timely filing of an appropriate civil action in the Superior Court, per Simpson v. District of Columbia Office of Human Rights, 597 A.2d 392, 400-402 (D.C. 1991).  Freedman v. District of Columbia Department of Human Rights, No. 93-AA-1342 (D.C. App., filed Jan. 10, 1995) (Memorandum Opinion and Judgment) (as amended per Order, filed Sept. 20, 1995).

Petitioner thereafter filed in the Superior Court of the District of Columbia, on October 10, 1995, the instant Petition for Review of Agency Decision, pursuant to Agency Review Rule 1 (i.e., Superior Court review of agency orders pursuant to D.C. Code 1981, Title 1, Ch. 6).  The instant brief is filed per the Court’s scheduling order, entered January 26, 1996.

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      B.  Factual History

Petitioner was hired by the employer on June 13, 1988 as a temporary legal assistant (“paralegal”) (R. 12).  He was initially assigned to a document production task for a major client, Eastern Airlines (R. 138), but with the understanding that he would later be transferred to the employer’s legal assistant program to perform substantive paralegal assignments (R. 239-240).

Although the client, Eastern Airlines, later filed for bankruptcy protection, the employer thereafter hired Petitioner as a full-time legal assistant on August 1, 1989 (R 135 and R. 144). 1/

Without exception Petitioner received above average and/or outstanding performance evaluations throughout his tenure (R. 12).  However, he was not routinely assigned substantive tasks as he had originally been promised (R. 242-243).  Indeed, in March 1990, despite his above-average or outstanding job
________________

1/ A concealed error in the employer’s pleadings obscures the fact that the employer upgraded Petitioner’s employment status in August 1989 from temporary to full-time legal assistant despite the fact that Eastern Airlines, the major client to which he had originally been assigned, had filed for bankruptcy protection.  The employer states: “Later, [on August 1, 1989 (R. 144)] Claimant was employed as a full-time legal assistant (‘paralegal’) to manage massive amounts of documents for a major client. . . .  Shortly thereafter [on March 9, 1989], the client filed for bankruptcy protection and eventually the legal work diminished” (R. 135).  See Salpukas, Eastern Requests Bankrupt Status to Cut Strike Loss, N.Y. Times, Mar. 10, 1989, at 1, col. 1 (reporting Eastern bankruptcy filing on Mar. 9, 1989).

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performance Petitioner was demoted 2/ to the employer’s litigation support department, supervised by Christine Robertson (“Robertson”), where the tasks available to Petitioner required less advanced skills than are required of a legal assistant (R. 242-243).

Throughout his tenure, Petitioner was subjected to harassment on the basis of his perceived sexual orientation (homosexual) by various staff persons, supervisory personnel, and attorneys (R. 38; R. 179-185).  In May 1989 a coworker told Petitioner that there was a rumor circulating among the employer’s personnel that Petitioner was homosexual (R. 341 at paragraph 20).

On the afternoon of October 23, 1991 Petitioner met with Earl Segal (“Segal”), the partner in charge of the legal assistant program, to request a change in office assignment
_______________________

2/  The employer conceals the discriminatory nature of Petitioner’s unjustified demotion in March 1990 by characterizing the job downgrade as a “transfer” (R. 135) or “transition” (R. 139).  A federal court has expressly found, however, that a move from the employer’s litigation support department to its legal assistant program constitutes a promotion.  McNeil v. Akin, Gump, Strauss, Hauer & Feld, No. 93-0477 (D.D.C., filed Nov. 29, 1993) at 2, n. 2.  (See Appendix A to this brief).  Petitioner’s reverse transfer in March 1990--from the legal assistant program to the litigation support department--was, therefore, according to McNeil, a demotion--disguised by the employer’s disingenuous construction as a nondiscriminatory “transfer” or “transition.”

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or promotion to the legal assistant program (R. 145). 3/  Petitioner discussed with Segal a few incidents of harassment (R. 145).

During Petitioner’s tenure one litigation support employee [Lutheria Harrison] was promoted to the legal assistant program at her request; a second litigation support employee [Sherry Ann Patrick] was likewise promoted some time after Petitioner’s termination (R. 41 at paragraph 8).  See McNeil v. Akin, Gump, Strauss, Hauer & Feld, No. 93-0477 (D.D.C., filed Nov. 29, 1993) at 2, no. 2. (See Appendix A to this brief).

On October 24, 1991 Petitioner met with a member of the employer’s management team, Malcolm Lassman (“Lassman”), and another partner, Dennis M. Race (“Race”) 4/, both of whom wanted
_____________________________

3/  The employer omits from its enumeration of the circumstances concerning the termination any reference to the fact that in the days immediately prior to the termination, after Petitioner’s complaint of harassment, Segal had investigated the possibility of promoting Petitioner to the firm’s legal assistant program (R. 135-137).  Segal admits having investigated a promotion, however (R. 145).

4/  At the time of appellant's job dismissal, Race served as the employer's hiring partner (Rec. 350). Petitioner is a law school graduate (Rec. 139), and is licensed to practice in Pennsylvania (Rec. 177). He holds a graduate degree in international law (Rec. 142), which happens to be a major practice area of the employer (Rec. 350). In 1985, a previous hiring partner advised Petitioner, in a written reply to appellant's job inquiry, that appellant possessed the credentials to practice law at the firm, and "reluctantly" declined to schedule an interview with Petitioner (Rec. 354). During Petitioner's tenure one agency-supplied temporary employee [Jan Fraser Smith], who, like appellant, was initially assigned to document production tasks for the client Eastern Airlines, was later promoted to law clerk, and one legal assistant was promoted to associate [Brian Burns] (Rec. 352). Notwithstanding his above-average job performance and his exemplary professional credentials, appellant was terminated by the employer's hiring partner, Race, without cause, only days after he requested that the employer rectify its prior discriminatory demotion (see note 2 above) by transferring him back to the legal assistant program (Rec. 145), and after having lodged a complaint with the employer that he had been subjected to unlawful harassment (Rec. 249-259).

[added to brief on appeal (1997): These facts provide additional evidence of prior instances of disparate treatment of appellant by the employer in other contexts that is probative of pretext in the termination decision. See Uffelman v. Lone Star Steel Co., 863 F.2d at 408.]

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to obtain a more detailed account of the harassment previously reported to Segal (R. 251-252).  Race and Lassman told Petitioner that they would investigate Petitioner’s harassment complaint and look into Petitioner’s request for promotion from the litigation support department to the legal assistant program (R. 259 and R. 349 at paragraph 41).

On October 29, 1991 Race advised Petitioner that a decision had been reached to terminate Petitioner’s employment (R. 138).  Race told Petitioner that he had investigated Petitioner’s complaint, that Petitioner’s charges could not be substantiated, and that there appeared to be a lack of fit between Petitioner and other firm personnel (R. 349 at paragraph 41).

Race also explained that he had discussed the matter with two (unidentified) consultants (R. 29).  (The employer later identified the consultants, in pleadings filed with DHR as an (unnamed) Employee Assistance Program counselor and an (unnamed) psychiatrist (R. 137)).

By its own written admissions the employer acknowledges that it did not advise Petitioner, at the time of job dismissal, that his employment was being terminated by reason of an identifiable pathological mental process that impaired his employability, or that his employment difficulties were attributable, in the opinion of a psychiatrist, to an identifiable psychiatric disturbance (i.e., “ideas of reference”) (R. 74 and R. 138-139).

At the termination meeting Race told Petitioner that he had investigated the possibility of transferring Petitioner

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to the legal assistant program but that the legal assistant administrator, Maggie Sinnott (“Sinnott”), and the legal assistant coordinator both stated that they could not work with Petitioner because they found him difficult to work with and were afraid of him (R. 349 at paragraph 41).

Race also told Petitioner that he had learned during the course of his investigation that Petitioner’s work was of poor quality (R. 349 at 41 and R. 454). 5/

DHR determined that there was no credible evidence that the employer terminated Petitioner because of his sexual orientation or that Petitioner was harassed because of his sexual orientation (R. 19).  DHR determined that the employer’s decision to terminate Petitioner was based on the employer’s concerns about Petitioner’s mental health (R. 19).  The employer’s concerns, according to DHR, were prompted the nature of the incidents that Petitioner related to the employer which he perceived as harassment 6/ and statements by Petitioner’s
____________________

5/  In its later written submissions to DHR the employer implicitly disavowed statements made to Petitioner at the termination meeting that there were problems with Petitioner’s work performance (R. 43-44).

6/  DHR does not disclose whether it weighed the employer’s allegations that Petitioner’s complaint of harassment was the product of a morbid hypersensitivity to his work environment against the equally possible view that Petitioner’s perceptions were an accurate representation of very subtle harassment.  At least one court (in a foreign jurisdiction), noting that “sexual harassment based on the creation of an offensive, hostile and intimidating environment . . . can take many forms and is often very subtle,” has permitted expert testimony to illuminate for the finder of fact the nature of plaintiff’s work environment and the sexual connotations of seemingly trivial events.  Eide v. Kelsey-Hayes Co., 397 N.W.2d 532, 538 (Mich. App. 1986).

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supervisor and coworkers (R. 75) that they found Petitioner’s behavior sometimes disruptive and frightening (R. 19).

DHR also found that the employer consulted a counselor and a psychiatrist because of the emotional and psychological nature of Petitioner’s allegations and his coworkers statements (R. 17).  The psychiatrist, identified by DHR as Dr. Gertrude R. Ticho, advised the employer that Petitioner’s ideation was dominated by “ideas of reference,” causing him to attach a negative meaning to trivial events, and cautioned that individuals in similar circumstances may become violent (R. 17).

DHR concluded that the employer’s concern about Petitioner’s mental health, based on the nature of the incidents Petitioner perceived as harassment and 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 Petitioner (R. 7).

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V.  SUMMARY OF ARGUMENT

DHR erred in relying on the employer’s unsupported claim that it had determined in consultation with two mental health professionals that Petitioner was mentally impaired and not suitable for employment.  In accepting the employer’s claim that  it had consulted two mental health professionals as definitive proof that the consultations had in fact occurred, DHR prejudicially narrowed the focus solely to a mix of facts relating to Petitioner’s mental health.  DHR thereby rendered immaterial all other facts, and in so doing precluded those other facts from assuming actual significance as evidence of direct discrimination, retaliation, or pretext warranting a different determination.  DHR improperly excluded from consideration evidence relating to the employer’s conduct, including documentary evidence of a hostile work environment, retaliation, and fabrication of evidence.  Further, DHR overlooked compelling evidence that the employer knowingly omitted, improperly denied, or willfully misrepresented material facts to DHR relating to (1) Petitioner’s complaint of harassment and (2) the employer’s steps to undertake corrective action by promoting Petitioner to another department.  Further, DHR ignored persuasive evidence that the employer’s investigation of Petitioner’s complaint of harassment was of such limited scope that it amounted to no investigation at all.

DHR’s emphasis on the fact that the employer was not advised, until shortly before the termination, of Petitioner’s sexual orientation, or that he was being harassed, improperly excused the employer of responsibility for its own discriminatory acts in the period after the employer had express notice of Petitioner’s sexual orientation, and improperly excused the employer of responsibility for the prior discriminatory conduct of its supervisory personnel.

Finally, DHR exceeded its statutory authority by issuing a no probable cause determination that expressly adopted the employer’s mental status determination that Petitioner suffered from an identifiable psychiatric disturbance (“ideas of reference”) that rendered him potentially violent.

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VI.  ARGUMENT
  • DHR’S DETERMINATION OF NO PROBABLE CAUSE IS UNSUPPORTED BY SUBSTANTIAL EVIDENCE IN THAT DHR’S FINDING THAT PETITIONER’S PERFORMANCE EVALUATIONS WERE UNIFORMLY ABOVE-AVERAGE OR OUTSTANDING THROUGHOUT HIS TENURE TAKEN TOGETHER WITH ITS FINDING THAT PETITIONER BELIEVED, THROUGHOUT HIS TENURE, THAT HE WAS SUBJECTED TO A CONTINUING PATTERN OF UNLAWFUL HARASSMENT DO NOT LEAD  RATIONALLY TO THE AGENCY’S ULTIMATE DETERMINATION THAT PETITIONER’S BELIEF THE HE HAD BEEN SUBJECTED TO HARASSMENT WAS THE PRODUCT OF A SERIOUS MENTAL DISTURBANCE THAT RENDERED HIM POTENTIALLY VIOLENT AND NOT SUITABLE FOR EMPLOYMENT
    In the present matter DHR concluded that the employer’s decision to terminate was based on concerns regarding Petitioner’s mental health based on the nature of the ten incidents Petitioner submitted that he perceived as harassment (R. 7), the details of which incidents are enumerated by DHR as Findings

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    of Fact 4(a) through 4(j) (R. 12-16).  “That concern, “ concluded DHR, “coupled with advice of mental health professionals that [Petitioner] needed counseling and that according to one professional could engage in violent behavior, was sufficient grounds for [the employer’s] action to terminate [Petitioner]” (R. 7).

    A simple reconfiguration of DHR’s findings of fact (supplemented by additional pertinent facts from the record) amply shows that DHR’s determination of no probable cause is unsupported by substantial evidence in that DHR’s finding that Petitioner’s Performance Evaluations (which rated his word product and conduct as an employee) were uniformly above-average or outstanding throughout his tenure [Finding of Fact 2] taken together with its finding that Petitioner believed, throughout his tenure, that he was subjected to a continuing pattern of unlawful harassment [Finding of Fact 4(a) though 4(j)] do not lead rationally to the agency’s ultimate determination that Petitioner’s belief that he had been subjected to harassment--communicated by Petitioner to attorney managers of the employer immediately prior to the termination--was the product of a serious mental disturbance that rendered him not suitable for employment and potentially violent.

    Indeed, applying DHR’s analysis one is left with the strikingly bizarre conclusion that Petitioner was actually not suitable for employment at the time the employer hired Petitioner, in June 1988, but that it did not become apparent to the employer’s management team that Petitioner was in fact mentally disabled, potentially violent, and not suitable form employment

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    until approximately three-and-one-half years later, in late October 1991--and then, only days after Petitioner lodged a complaint of harassment against his supervisor, Robertson, and others; advised the employer that he was homosexual; and requested a job promotion.

    The following factual analysis demonstrates not only that DHR’s no probable cause determination does not flow rationally from the facts found by the agency, as required by the substantial evidence test, but, additionally, provides persuasive circumstantial evidence that the employer’s proffered explanation for the termination is unworthy of credence, and therefore pretextual in nature.  See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1980).

    1.  Finding of Fact 4(a) reflects the determination that Petitioner experienced a paranoid “idea of reference” on about March 4, 1988 (R. 13) that was attributable, in the view of a psychiatrist, to a mental disturbance that rendered him potentially violent (R. 17), an imminent threat to persons in his environment, and not suitable for employment (R. 7).

    As of March 4, 1988 Petitioner was employed by the employer in the capacity of  an agency-supplied temporary legal assistant (R. 239).

    2.  Finding of Fact 4(b) reflects the determination that Petitioner experienced a paranoid “idea of reference” in about May 1988 that was attributable, in the view of a psychiatrist, to a mental disturbance that rendered him potentially violent (R. 17), an imminent threat to persons in his environment, and not suitable for employment (R. 7).

    As of May 1988 Petitioner was employed at Akin Gump in the capacity of an agency-supplied temporary legal assistant.

    3.  Finding of Fact 1 reflects that Petitioner was hired by the employer as a temporary legal assistant in June 1988 (R. 12) (specifically, June 13, 1988 (R. 239)).

    4.  Finding of Fact 4(c) reflects the determination that Petitioner experienced a paranoid “idea of reference” some time in mid-June 1988 (R. 13) that was attributable, in the view of a psychiatrist, to a mental disturbance that rendered him potentially violent (R. 17), an imminent threat to persons in his environment, and not suitable for employment (R. 7).

    5.  Finding of Fact 2 reflects that Petitioner received an above-average or outstanding performance evaluation in the fall of 1988 for work quality and professional conduct in the previous six-month period (R. 12).

    6.  Finding of Fact 4(d) reflects the determination tat Petitioner experienced a series of paranoid “ideas of reference” beginning in late March 1989 (R. 14) that were attributable, in the view of a psychiatrist, to a mental disturbance that rendered him potentially violent (R. 17), an imminent threat to persons in his environment, and not suitable for employment (R. 7).

    The series of paranoid “ideas of reference” concerned another employee (Stacey Schaar) (R. 14) who, reportedly, was later terminated for gross misconduct, in about May 1990 (R. 360).  See Appendix B to this brief.

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    7.  Finding of Fact 2 reflects that Petitioner received an above-average or outstanding performance evaluation in the spring of 1989 for work quality and professional conduct in the previous six-month period (R. 12).

    8.  Finding of Fact 1 reflects that the employer hired Petitioner as a full-time employee with benefits on August 1, 1989 (R. 12).

    [The record reflects that in early August 1989 temporary paralegal Stacey Schaar said to me: "We're all afraid of you.  We're all afraid you're going to buy a gun, bring it in, and shoot everybody."  The D.C. Corporation Counsel cited this fact as evidence that I "admitted" that my coworkers were afraid of me.  The Corporation Counsel presented this fact to the D.C. Court of Appeals at oral argument on December 16, 1997.]

    9.  Finding of Fact 2 reflects that Petitioner received an above-average or outstanding performance evaluation in the fall of 1989 for work quality and professional conduct in the previous six-month period (R. 12).

    The performance evaluation states in part, with specific reference to Petitioner’s interpersonal skills: “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 so doing, he inspired the group who were always eager to work and adopted Gary’s own sense of commitment to the case” (Constance M. Brown, 11/6/89) (R. 310).

    10.  The employer proffered to DHR the following description of Petitioner’s mental status and ability to interact with co-workers, as of March 1990: "During his transition from a legal assistant position (paralegal) to his work with the litigation support department [in March 1990 (R. 132)], Claimant had several discussions with his direct supervisor [Robertson] about problems with interacting with co-workers and occasional outbursts” (R. 139).

    Presumably, according to the employer, Petitioner’s conduct remained intermittently violent and disruptive for the remaining 19 months of his tenure.  Petitioner’s personnel file does not include a record of any oral or written reprimands (R. 167).

    11.  Finding of Fact 4(e) reflects the determination that Petitioner experienced a paranoid “idea of reference”--concerning Petitioner’s direct supervisor, Robertson--on about March 30, 1990 (R. 14-15) that was attributable, in the view of a psychiatrist, to a mental disturbance that rendered him potentially violent (R. 17), an imminent threat to persons in his environment, and not suitable of employment (R. 7).

    12.  Finding of Fact 2 reflects that Petitioner received an above-average or outstanding performance evaluation in the Spring of 1990 for work quality and professional conduct in the previous six-month period (R. 12).

    The performance evaluation dated June 11, 1990--prepared by Constance M. Brown and reviewed by Robertson--does not reflect any discussions with Robertson in March 1990 concerning problems with interacting with co-workers and/or occasional outbursts (R. 311-315), as alleged by the employer (R. 139).

    13.  Finding of Fact 4(j) reflects the determination that Petitioner experienced a paranoid “:idea of reference” some time in 1990 (R. 16) that was attributable, in the view of a psychiatrist, to a mental disturbance that rendered him potentially violent (R. 17), an imminent threat to persons in his environment, and not suitable for employment (R. 7).

    14.  Finding of Fact 2 reflects that Petitioner received an above-average or outstanding performance evaluation in the

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    fall of 1990 for work quality and professional conduct in the previous six-month period (R. 12).

    15.  Finding of Fact 4(f) reflects the determination that Petitioner experienced a paranoid “idea of reference”--concerning Petitioner’s direct supervisor, Robertson--some time in  April 1991 (R. 13) that was attributable, in the view of a psychiatrist, to a mental disturbance that rendered him potentially violent (R. 17), an imminent threat to persons in his environment, and not suitable for employment (R. 17).

    16.  Finding of Fact 2 reflects that Petitioner received an above-average or outstanding performance evaluation in the spring of 1991 for work quality and professional conduct in the previous six-month period (R. 2).

    The performance evaluation, prepared in May 1991 by Robertson (R. 321-325), contains the following comments: “Gary seems as close to the perfect employee as it is possible to get!”  “He is reliable, hard-working and extremely responsible” (R. 325).

    17.  Finding of Fact 4(g) reflects the determination that Petitioner experienced a paranoid “idea of reference”--concerning Petitioner’s direct supervisor, Robertson--some time in the summer of 1991 (R. 15) that was attributable, in the view of a psychiatrist, to a mental disturbance that rendered him potentially violent (R. 17), an imminent threat to persons in his environment, and not suitable for employment (R. 7),.

    18.  In July 1991 Robertson called a meeting of three of the black employees under her supervision, including a litigation

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    support employee, Patricia A. McNeil (“McNeil”), and asked them if they thought she was prejudiced against blacks (R. 58).  Complaint for Damages at paragraph 12, McNeil v. Akin Gump, Strauss, Hauer & Feld, No. 93-0477 (D.D.C., filed Mar 5, 1993) (R. 57-61).  She explained that her black male receptionist had accused her of being prejudiced against blacks and she wanted to know whether they shared that view (R. 58).  All three employees responded in the affirmative and provided her the reasons they felt that way, giving her examples of the way she treated backs differently than whites (R. 58).

    19.  Finding of Fact 4(h) reflects the determination that Petitioner experienced a paranoid “idea of reference” (R. 15-16) some time in about early August 1991 that was attributable, in the view of a psychiatrist, to a mental disturbance that rendered him potentially violent (R. 1), an imminent threat to persons in his environment, and not suitable for employment (R. 7).

    20.  Finding of Fact 4(I) reflects the determination that Petitioner experienced a paranoid “idea of reference” on October 2, 1991 (R. 13) that was attributable, in the view of a psychiatrist, to a mental disturbance that rendered him potentially violent (R. 17), an imminent threat to persons in his environment, and not suitable for employment (R. 7).

    21.  Finding of fact 4 reflects the determination that Petitioner met with attorney managers Segal (on October 23, 1991) and Race and Lassman (on October 24, 1991) to report incidents that he believed constituted unlawful harassment (R. 12-13).

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    Three of the reported incidents concerned Petitioner’s direct supervisor, Robertson (Findings of Fact 4(e); 4(f); and 4(g)) (R. 14-15).

    22.  Segal admits that on the afternoon of October 23, 1991 he and Lassman discussed the possibility of promoting Petitioner from the litigation support department to the legal assistant program (R. 145).

    23.  On October 24, 1991 Robertson prepared a Performance Evaluation, which, unlike all prior Performance Evaluations, included statements critical of Petitioner’s ability to interact with coworkers (R. 149-154).  The Performance Evaluation was not discussed with Petitioner (and so indicates (R. 154)), and is therefore invalid per the employer’s own personnel policies (R. 150).  And on October 25 1991 Robertson prepared a memorandum addressed to Race that discussed Petitioner’s alleged difficulties in interacting with coworkers (R. 146-147).

    The (invalid) Performance Evaluation prepared by Robertson on October 24, 1991 together with Robertson’s memorandum to Race dated October 25, 1991 (in the period after Petitioner’s complaint of harassment) constitute the only contemporaneous written documentation of record, prepared by a supervisor, that Petitioner had difficulties interacting with coworkers.

    24.  On October 29, 1991 Race advised Petitioner that the employer had decided to terminate Petitioner’s employment, effective immediately (R. 138-139).  The termination decision followed the employer’s investigation of Petitioner’s allegations of harassment, which investigation involved interview with some

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    of  Petitioner’s coworkers [Finding of Fact 5] (R. 17), presumably including black coworkers, in the litigation support department supervised by Robertson.

    25.  On April 9, 1992, McNeil a black co-worker in the firm’s litigation support department supervised by Robertson, was summarily terminated following a disagreement with the firm's Personnel Administrator, Laurel Digweed (R. 59-60).  On March 5, 1993 McNeil filed a Complaint for damages in the U.S. District Court for the District of Columbia pursuant to Title VII of the Civil Rights Act of 1964 for redress of injuries sustained as a result of the employer’s unlawful conduct terminating her employment after 4½ years because of her race.  Complaint for Damages, McNeil v. Akin, Gump, Strauss, Hauer & Feld, No. 93-0477 (D.D.C., filed Mar. 5, 1993) (R. 57-61).  McNeil’s Complaint alleged that Robertson engaged in long-standing pattern or practice of racially offensive and discriminatory conduct, and that Robertson colluded with Personnel Administrator Digweed in terminating McNeil (R. 58-60).

    On November 29, 1993 the U.S. District Court for the District of Columbia entered summary judgment for the employer, Akin Gump.  McNeil v. Akin, Gump, Strauss, Hauer & Feld, No. 93-0477 (D.D.C., filed Nov. 29, 1993) (memorandum opinion and order granting defendant’s motion for summary judgment).  (See Appendix A to this brief).  The Court found that (1) Akin Gump’s managers (specifically citing the employer’s managing partner Laurence J. Hoffman and Personnel Administrator Digweed) had no knowledge (or reason to know) that Robertson had engaged

    - 24 -

    in racially offensive or discriminatory conduct toward black employees under her supervision, and that (2) Robertson had not colluded with Digweed in terminating McNeil. Id. At 7-9.  The Court found, however, that Robertson exhibited racial animus toward black employees under her supervision.  Id. At 8.

    The foregoing factual analysis makes abundantly clear that throughout the period June 13, 1988 through October 23, 1991 there is no contemporaneous documentation to support the employer’s proffered explanation for its decision to terminate Petitioner: namely, that Petitioner had a longstanding history of conduct that was disruptive and frightening to coworkers, or that Petitioner’s perception that he had been subjected to unlawful harassment could reasonably be attributed to a mental disturbance that rendered him potentially violent and not suitable for employment.

    The only evidence in the record that supports the employer’s proffered explanation for the termination emerged beginning on October 24, 1991, during the time period after Petitioner (1) lodged a complaint of harassment against his supervisor, Robertson, and others; (2) advised the employer that he was homosexual; and (3) requested a job promotion.

    It is highly probative of the employer’s discriminatory motive and the pretextual nature of its proffered explanation for the termination, therefore, that the employer omitted, misrepresented, or improperly denied material facts relating to (1) Petitioner’s complaint of harassment against Robertson; (2) Petitioner’s sexual preference; and (3) Petitioner’s request

    - 25 -
    for promotion.

    First, Petitioner’s complaint of harassment comprised ten incidents [Finding of Fact 4(a) through 4(j)] (R. 12-16).  Three of the ten incidents involved Robertson [Findings of Fact 4(e), 4(f), and 4(g)] (R. 14-15).  The employer alleges that Petitioner’s complaint was evidence of Petitioner’s paranoia and not evidence of unlawful harassment (R. 1326-137).  It is noteworthy, therefore, that in its own enumeration of the incidents the employer omits all reference to the three incidents relating to Robertson (R. 136). 9/  Thus, the employer consistently omitted purportedly probative evidence of Petitioner’s paranoia where that evidence related to a supervisor known by certain of her employees to engage in a pattern of racially discriminatory and offensive behavior (R. 58) and who was later determined by a federal district court to have exhibited racial animus.  McNeil v. Akin, Gump, Strauss, Hauer & Feld, No. 93-0477 (D.D.C., filed Nov. 29, 1993) at 8.  (See Appendix A to this brief.)  The only evidence of record that supports the employer’s decision to terminate emerged in the period after Petitioner complained
    _______________________________

    8/  In it sworn enumeration, the employer lists only six incidents (R. 136).  The employer omitted the three incidents relating to Robertson and the one incident relating to Schaar, a legal assistant who was reportedly terminated for gross misconduct in about May 1990 (R. 360); in all other respects the enumerations of Petitioner and the employer correspond.  (See Appendix B to this brief.)  Thus, four of the 10 incidents (40%) comprised one employee known by management to have engaged in serious misconduct (Schaar), and a supervisor (Robertson) later determined by a federal district court to have exhibited racial animus.  See McNeil v. Akin, Gump, Strauss, Hauer & Feld, No. 93-0477 (D.D.C., filed Nov. 29, 1993) (memorandum opinion and order granting defendant’s motion for summary judgment ) at 8.  (See Appendix A to this brief).

    - 26 -

    about Robertson and the employer omitted in its pleadings to DHR all evidence that Petitioner had ever complained about Robertson (R. 135-140).  (See Appendix B to this brief.)

    Second, the employer expressly denied to DHR that the subject of Petitioner’s sexual orientation was ever brought up by Petitioner or anyone “involved directly or indirectly” with Petitioner’s employment during the entire period of Petitioner’s tenure (R. 139-140).  DHR found, however, that Petitioner advised the employer of his sexual preference on October 23, 1991 [Finding of Fact 7] (R. 17).  The only evidence of record that supports the employer’s decision to terminate emerged in the period after Petitioner gave the employer notice of his sexual preference; and the employer improperly denied to DHR that Petitioner had ever given notice of his sexual preference (R. 139-140).

    Third, the employer, in its Response to Interrogatories (R. 135-140), omits any reference to the fact that Petitioner, on October 23, 1991, requested a promotion to the legal assistant program, and that Segal and Lassman had, in fact, discussed a promotion (R. 145).  The only evidence of  record that supports the employer’s decision to terminate emerged in the period after Petitioner requested a promotion.  And not only did the employer omit any reference to Petitioner’s request for promotion in its Response to Interrogatories, but improperly concealed its prior action of demoting Petitioner in March 1990, deceptively referring to the demotion as a “transfer” (R. 135) or “transition” (R. 139).  See McNeil v. Akin, Gump, Strauss, Hauer & Feld,

    - 27 -

    No. 93-0477 (D.D.C., filed Nov. 29, 1993) (memorandum opinion and order granting defendant’s motion for summary judgment) at 2, no. 2 (a transfer from Akin Gump’s litigation support department to its legal assistant program is a promotion).  (See Appendix A to this brief.)

    • DHR EXCEEDED ITS STATUTORY AUTHORITY UNDER THE ACT, D.C. CODE SECTION 1-2545(C), BY ISSUING  A NO PROBABLE CAUSE DETERMINATION THAT ADOPTED THE EMPLOYER'S ALLEGATIONS CONCERNING PETITIONER'S SUPPOSEDLY DISTURBED MENTAL STATUS AND POTENTIAL FOR VIOLENCE

    Under the Act, D.C. Code Section 1-2545(c), “[if DHR] finds . . . probable cause does not exist the Director forthwith shall issue and cause to be served on the appropriate parties, an order dismissing the allegations of the complaint.”

    In the present matter DHR did more than simply dismiss the allegations of the complaint.  DHR’s no probable cause determination expressly adopted as fact the empoyer’s allegation that the employer had determined, in consultation with two mental health professionals including a psychiatrist, that Petitioner’s perception that he had been subjected to unlawful harassment during his tenure was the product of a pathological mental process (i.e., “ideas of reference”) that rendered him potentially violent (R. 17).

    Typically, a Complainant’s status remains unaffected by a no probable cause determination issued by DHR.  A former Corporation Counsel stated in a prior case involving the appeal of a DHR no probable cause determination that the Director of DHR, aided by her staff, “is primarily engaged in investigating

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    Complaints” and not engaged in an essentially adjudicative process. O’Neill v. District of Columbia Office of Human Rights, 355 A.2d 805, 807 (D.C. 1976).  In another similar case the Director of the Office of Human Rights (predecessor of DHR) 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.  Simpson v. District of Columbia Office of Human Rights, 597 A.2d 392, 404 (D.C. 1991).

    In the present case, however, DHR’s final disposition of Petitioner’s complaint was far less benign.  In its initial no probable cause determination (dated June 30, 1993) (R. 11-20), and again in its final no probable cause determination (dated September 24, 1993) (R. 1-9), DHR concluded--on the basis of the employer’s dubious allegations--that the employer had determined in consultation with a psychiatrist that Petitioner’s allegation of harassment was the product of a paranoid mental process specifically identified as “ideas of reference,” a mental process that rendered Petitioner potentially violent (R. 17).  DHR implicitly affirmed the employer’s allegation that Petitioner’s continued presence on the employer’s premises posed a threat of harm to other employees (R. 148).

    DHR’s decision to dismiss Petitioner’s Complaint--resting as it does on DHR’s findings of fact that Petitiner’s ideation was dominated by paranoid ideas of reference (R. 17), that

    - 29 -

    Erratum

    Error in pagination text continues from p. 29 to p. 31.

    - 30 -

    Petitioner’s ideations were the product of a paranoid process that rendered him potentially violent (R. 17), that Petitioner needed counseling (R. 17), and that Petitioner’s job-related interpersonal difficulties were the product of a pathological hypersensitivity to his environment (R. 19)--functions as far more than a no probable cause determination.  DHR’s no probable cause determination amounts to nothing less than an administrative adjudication of Petitioner’s mental competence and, as such, necessarily stigmatizes him as mentally disturbed and potentially violent. 9/  DHR’s determination that Petitioner suffered from a mental disorder of such severity so as to justify his job dismissal [on October 29, 1991] was not a subsidiary finding incidental to the no probable cause finding, but rather the central finding underlying the agency’s ultimate finding of no probable cause.  DHR found that the employer’s concerns about Petitioner’s mental health based on the nature of his allegations of harassment “coupled with 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 [Petitioner]” (R. 7).
    ________________________

    9/  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).
    [Note that in the State of Texas Application for Driver’s License the applicant is asked under penalty of criminal prosecution for making false statements: “Within the past two years, have you been diagnosed with, been hospitalized for or are you now receiving treatment for a psychiatric disorder.”  According to the D.C. Court of Appeals Akin Gump’s mental status determination amounted to the diagnosis of a “disorder.”  Freedman v. D.C. Department of Human Rights, D.C.C.A. no. 96-CV-961 at 4 (Sept. 1, 1998) ("the firm . . . learned [upon consulting a practicing psychiatrist] that [Mr. Freedman's] behavior was indicative of a disorder known as 'ideas of reference,' which is sometimes accompanied by violent behavior.') Clearly, Akin Gump’s diagnosis of a psychiatric “disorder” -- affirmed as genuine and credible under Burdine by the D.C. Department of Human Rights in its no probable cause determination -- affected my legal status in at least one identifiable arena separate from the litigation.]

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    DHR’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 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 (R. 17).  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 DHR. 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 (R. 123 and R. 138-139).  The employer’s personnel records are silent as to the reason for Petitioner’s termination (R. 167).  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 (R. 148).

    Admittedly, the clear language of DHR’s ultimate decision “that there is no probable cause to believe that discrimination

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    has occurred in this matter” (R. 20) fully disposes of Petitioner’s discrimination complaint.  DHR’s general and nonspecific conclusion neither expressly adjudicates Petitioner’s mental competence nor does it refer in any manner to Petitioner’s mental competence.

    DHR’s ultimate conclusion dismissing the complaint, however nonspecific as to Petitioner’s mental competence, nonetheless incorporates, as a matter of law, each of DHR’s seven particularized findings, including Finding of Fact No. 6 that Petitioner’s employer had consulted two mental health professionals, including a psychiatrist who advised the employer that Petitioner suffered from a mental disorder that rendered him potentially violent (R. 17).

    An agency’s particularized findings of fact are as a matter of law and logic necessarily subsumed in the agency’s ultimate conclusion, regardless of how general and nonspecific the ultimate conclusion. Cf. generally Citizens Ass’n of Georgetown, Inc. v. District of Columbia Zoning Comm’n, 402 A.2d 36, 42 (D.C. 1979) (an agency’s ultimate decision must rest on findings of basic facts). An agency’s ultimate decision, resting as it does on particularized factual findings, logically incorporates, or subsumes, those factual findings. Cf. generally Brewington v. Board of Appeals & Review, 299 A.2d 145, 147 (D.C. 1973) (quoting Burlington Truck Lines, Inc., v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962) (there must be a “rational connection between the facts found and the choice made’”).

    - 33 -

    DHR’s Finding of Fact No. 6 sets forth the agency’s specific findings with respect to Petitioner’s mental competence:
    • [The employer] also sought outside professional guidance because of the emotional and psychological nature of [Petitioner’s] allegations and his coworkers responses. [The employer] contacted an unnamed counselor from his Employee Assistance Program and an outside psychiatrist. Both agreed that [Petitioner] should seek counseling. Dr. Gertrude Ticho [M.D.] identified [Petitioner’s] behavior, putting a negative meaning to virtually every event as “ideas of reference” and cautioned that individuals in similar circumstances may become violent. . . .” (R. 17).
    DHR’s Finding of Fact No. 6, which sets forth the conclusions of a psychiatrist regarding petitioner’s mental state and employs the clinical terminology appropriate to the description of mental disorder 10/ represents a definite determination on a disputed issue of fact, namely, Petitioner’s mental competence. See Bakers Local 118 v. District of Columbia Bd. Of Zoning Adjustment, 437 A.2d 176, 180 (D.C. 1981) (an agency’s finding represents a definite determination on a disputed issue of fact).
    _____________________

    10/ The term “ideas of reference,” employed in Finding of Fact No. 6, is a psychiatric term of art, which is defined as “the assumption by a patient that the words and actions of others refer to himself or the projection of the causes of his own imaginary difficulties upon someone else; called also delusion of reference.” DORLAND’S MEDICAL DICTIONARY 814 (27th ed. 1988). “Ideas of reference” are prominent in the severe (psychotic) mental disorders. R. NOLL, THE ENCYCLOPEDIA OF SCHIZOPHRENIA & THE PSYCHOTIC DISORDER 169 (New York Facts on File 1992). “[Ideas of reference are] [o]ne of the most common symptoms of the psychotic disorders. It is an idea that certain events or people in a person’s immediate environment have a magical “special meaning” for that person. For example, a song heard on the radio may be interpreted by a psychotic person as having been specifically played at that time to convey a special meaning to him or her.” Id. at 169.  DHR’s additional findings that Petitioner’s purportedly disturbed cognition rendered him potentially violent is strongly suggestive of a mental disorder of considerable severity.

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    DHR’s final action dismissing Petitioner’s discrimination complaint, though stated in language that does not refer to any factual basis for the dismissal, incorporates as a matter of law each of DHR’s particularized Findings of Fact, including Finding of fact No. 6 that represents DHR’s definite determination regarding Petitioner’s purportedly pathological mental state and his potential for violence.  DHR’s action in basing a no probable cause determination on specific factual findings relating to Petitioner’s mental status and consequent potential for violence exceeds the agency’s statutory authority.

    • DHR ERRED IN FINDING NO PROBABLE CAUSE THAT PETITIONER'S JOB TERMINATION WAS DISCRIMINATORY SINCE SUBSTANTIAL EVIDENCE, IGNORED BY DHR, SHOWED THAT THE EMPLOYER (1) MAY HAVE FABRICATED EVIDENCE THAT PETITIONER SUFFERED FROM A DEBILITATING MENTAL DISORDER, (2) FAILED ADEQUATELY TO INVESTIGATE PETITIONER'S COMPLAINT OF HARASSMENT, AND (3) RETALIATED AGAINST PETITIONER

    1.  DHR's Finding that the Employer Consulted Two Mental Health Professionals Is Unsupported By Substantial Evidence

    DHR's finding that statements and input from consulting mental health professionals contributed to the employer's concerns regarding Petitioner's mental state (including the concern that Petitioner was potentially violent), thereby providing a factual basis for the employer's decision to terminate, is not supported by substantial evidence.

    [Under D.C. Superior Court Agency Review Rule 1, the court may set aside agency action that is not supported by substantial evidence or clearly erroneous as a matter of law.

    The U.S. Supreme Court in Burdine has set forth the respective evidentiary burdens of a plaintiff-employee and a defendant-employer in a Title VII discrimination case as follows:


    The ultimate burden of persuading the trier of fact that the defendant [employer] intentionally discriminated against the plaintiff [employee] remains at all times with the plaintiff. See Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 439 U. S. 25, n. 2 (1978); id. at 439 U.S. 29 (STEVENS, J., dissenting). See generally 9 J. Wigmore, Evidence § 2489 (3d ed.1940) (the burden of persuasion "never shifts"). The McDonnell Douglas division of intermediate evidentiary burdens serves to bring the litigants and the court expeditiously and fairly to this ultimate question.


    The burden of establishing a prima facie case of disparate treatment is not onerous. The plaintiff must prove by a preponderance of the evidence that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.  The prima facie case serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff's rejection. See Teamsters v. United States, 431 U.S. 324, 431 U.S. 358, and n. 44 (1977). As the Court explained in Furnco Construction Corp. v. Waters, 438 U. S. 567,  438 U. S. 577 (1978), the prima facie case "raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors."


    Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. If the trier of fact believes the plaintiff's evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case. 


    The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. See Sweeney, supra at 439 U.S. 25. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. 


    To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. Placing this burden of production on the defendant thus serves simultaneously to meet the plaintiff's prima facie case by presenting a legitimate reason for the action and to frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext. The sufficiency of the defendant's evidence should be evaluated by the extent to which it fulfills these functions.


    The plaintiff retains the burden of persuasion. She now must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence. See McDonnell Douglas, 411 U.S. at 411 U.S. 804-805.  Texas Dept. of Commun. Affairs v. Burdine, 450 U.S. 248 (1981). 

    The Superior Court opinion in Freedman is devoid of any analysis under the substantial evidence standard.  Rather the Court offered the following summary conclusion: "[T]here was substantial evidence in the record to support DHR’s determination, and it was in accordance with the governing principles of law." 

    The Superior Court does not refer to Burdine or address the conflict between the distinct evidentiary demands of Burdine and the substantial evidence standard.  But see, e.g., Perfetti v. First National Bank of Chicago, 950 F.2d 449 (7th Cir. 1992).]

    The employer had alleged that as part of its investigation of Petitioner's complaint of harassment it had contacted an unnamed counselor from its Employee Assistant Program who

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    “confirmed that removal from the work setting was the appropriate action to take” with respect to Petitioner (R. 122).  In response to a specific information request posed by DHR, Race was unable to state the identity of the Sheppard Pratt counselor with whom he consulted (R.  122).

    In rebuttal, Petitioner submitted a letter dated July 14, 1993 issued by the Director of Washington Operations of Sheppard Pratt Preferred Resources, the employer’s Employee Assistance Program Provider, stating that that mental health resource had no record of any communication with either Race or Lassman, the two attorney managers to whom Petitioner reported incidents of harassment on October 24, 1991 (R. 63-64).  Sheppard Pratt policy mandates that its counselors prepare a record of any communications with employers concerning a client and that the record be maintained in the client’s file of mental health information (R. 65).  Further, the providing of a representation of the kind that the employer claims to have sought and obtained from an unnamed Sheppard Pratt counselor regarding Petitioner’s mental state is not consistent with Sheppard Pratt policy (R. 63-64).  Sheppard Pratt serves as a counseling service that works with the employee and employer to help remediate employment difficulties Sheppard Pratt does not “confirm” the summary removal of an employee from the work setting (R. 63-64), as alleged by the employer (R. 122).

    DHR accorded no weight to the competent and persuasive evidence offered by Petitioner that the employer had not in fact insulted a Sheppard Pratt counselor (R. 8).  DHR simply

    - 36 -

    affirmed without comment (except for general references to “mental health professionals”) its initial finding that the alleged consultation had occurred (R. 7-8).

    The quantum of documentary evidence that Petitioner submitted to DHR that the employer had not in fact consulted a Sheppard Pratt counselor outweighs the quantum of evidence offered by the employer that it had obtained input from Sheppard Pratt.  Accordingly, DHR’s finding of fact amounts to no more than an impermissible “reiteration of the evidence” offered by the employer, which was no more than a bare allegation.  See Rosexpress, Inc. v. District of Columbia Department of Employment Services, 602 A.2d 659, 662 (D.C. 1992) (a reiteration of the evidence is not a finding of fact).

    The employer had also alleged that as part of its investigation of Petitioner’s complaint of harassment it had contacted a psychiatrist, later identified by DHR as Gertrude R. Ticho, M.D., who purportedly advised the employer that Petitioner’s ideation was characterized by “ideas of reference,” causing him to attach a negative meaning to trivial events, and that individuals in similar circumstances may become violent (R. 137; R. 17).  The employer alleges that Race and Lassman consulted with Dr. Ticho by conference call (R. 122-123).

    In rebuttal, Petitioner submitted to DHR a letter dated July 4, 1993, handwritten and signed by Gertrude R. Ticho, M.D., on her letterhead, stating that she had never spoken with Race and had not seen Petitioner for a diagnostic psychiatric evaluation (R. 62).
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    DHR accorded no evidentiary weight to the written denial issued by Dr. Ticho, dated July 4, 1993 (R. 80).  DHR questioned the letter’s authenticity and found that the letter did not present new evidence that would preclude the possibility of a discussion between Gertrude R. Ticho, M.D. and another of the employer’s personnel whereby Petitioner’s case was presented and discussed without the mentioning of Petitioner’s name (R. 8).

    First, DHR’s concern regarding the letter’s authenticity lacks merit.  Circumstantial evidence is sufficient to authenticate a letter.  Namerdy v. Generalcar, 217 A.2d 109, 111-112 (D.C. 1966).  Here, the fact that the letter is written on the author’s letterhead is such circumstantial evidence.  Moreover, this Court recognizes that administrative agencies must apply “generous principles of admissibility.” Kopff v. District of Columbia ABC BD., 381 A.2d 1372, 1385 (D.C. 1977), aff’d, 413 A.2d 152 (D.C. 1980).

    Second, DHR’s speculation that someone other than Race may have consulted with Dr. Ticho (R. 8) is clearly erroneous.  The employer expressly states that it was Race and Lassman, and no other persons, who consulted with Dr. Ticho by conference call (R. 122-123).  And Dr. Ticho expressly denied having spoken to Race (R. 62).

    Once again, the quantum of documentary evidence that Petitioner submitted to DHR that the employer had not in fact consulted Dr. Ticho outweighs the quantum of evidence offered by the employer that it had obtained input from Dr. Ticho.

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    DHR’s finding of fact, really an offer of plausible alternative interpretations of Dr. Ticho’s letter, amounts to no more than clearly erroneous speculation that improperly reiterates the rebutted evidence offered by the employer.  See Rosexpress, Inc. V. District of Columbia Department of Employment Services, supra, 602 A.2d at 662.

    Dr. Ticho’s disavowal of contact with Race--in a situation where Race expressly claims to have spoken with Dr. Ticho--when combined with evidence that Sheppard Pratt could not substantiate any contact with the employer (Race or Lassman) should at a minimum have alerted DHR to the need for additional fact finding.

    DHR’s reliance on insubstantial evidence offered by the employer that it had consulted two mental health professionals and DHR’s failure to engage in additional fact finding to determine with certainty whether the employer had in fact consulted with the mental health professionals was prejudicial error.

    DHR’s finding that the employer’s bare allegations that it had consulted with two mental health professionals was substantial evidence that the consultations had in fact occurred, despite persuasive contrary documentary evidence submitted by Petitioner, forms the foundation  of a complex of subsidiary findings that as a whole comprise the basis of DHR’s ultimate determination that the employer’s decision to terminate was based on a legitimate business reason, namely, the employer’s concerns regarding Petitioner’s mental health.

    Only if one assumes the employer in fact obtained the advice of a psychiatrist that Petitioner's ideation was dominated by

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    paranoid “ideas of reference" and that he was potentially violent, may one conclude that the following subsidiary findings, based as they are on a psychiatric conclusion, are rational and supportable: that the employer had formed a good-faith belief that (a) Petitioner’s continued presence on the employer’s premises posed a danger to coworkers (b) Petitioner’s perceptions that he was a victim of harassment was a product of his paranoid thought process; and (c) statements made by coworkers that Petitioner’s behavior was frightening were credibly attributable to Petitioner’s mental disturbance.

    In accepting a priori the employer’s allegation that it had consulted a psychiatrist and mental health counselor as definitive proof that the consultations had occurred, DHR prejudicially narrowed the focus of its investigation to a mix of facts relating to Petitioner’s mental health.  DHR thereby rendered immaterial all other facts and in so doing precluded those other facts, discussed more fully below, from assuming actual significance as evidence of direct discrimination.  Within the narrow focus defined by DHR, the employer’s bare allegation that it had consulted two mental health professionals assumed legal significance and logical plausibility as justification for a lawful termination, while other facts, outside the narrow focus, were prevented from assuming either legal or logical significance that would upset DHR’s own a priori assumption.  In the end, the discriminatory, pretextual, and

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    retaliatory nature of the employer’s very allegation that it had determined that Petitioner suffered from a serious mental disturbance and was potentially violent was itself obscured.

    It is obvious, therefore, that DHR’s finding that the employer consulted with two mental health professionals, including a psychiatrist who advised that Petitioner suffered from severe emotional problems and was potentially violent, was not a subsidiary finding.  The finding is central to DHR’s ultimate determination that the employer’s decision to terminate was based on a legitimate business reason, namely, concerns regarding Petitioner’s mental health.  Indeed DHR found that the employer’s concerns about Petitioner’s mental health based on the nature of his allegations of harassment “coupled with advice of mental health professionals that [Petitioner] needed counseling and that according to one professional could engage in violent behavior, was sufficient grounds for the employer’s action to terminate [Petitioner]” (R. 7).

    Further, DHR’s a priori assumption that the employer did in fact consult two mental health professionals, based as it was on insubstantial evidence, is erroneous.

    Remand for further investigation is appropriate since there is substantial doubt whether DHR would have made the same ultimate determination with the erroneous findings removed from the picture.  Cf. Liberty v. Police and Firemen’s Retirement and Relief Board, 410 A.2d 191, 194 (D.C. 1979), aff’d, 452 A.2d 1197 (D.C. 1982) (discussing the power of the Court of Appeals, under D.C. Code Section 1-1510(b), to invoke the “rule

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    of prejudicial error” in administrative proceedings); Jameson’s Liquors, Inc. v. District of Columbia Alcoholic Beverage Control Board, 384 A.2d 412, 419 (D.C. 1978).

    2.  The Employer Failed Adequately to Investigate Petitioner's Complaint of Harassment

    Under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000 et seq. ("Title VII"), an employer has an affirmative duty to promptly and thoroughly investigate an employee's harassment complaint.  E.g., Munford v. James T Barnes & Co., 441 F.Supp. 459, 466 (E.D. Mich 1977).

    [The D.C. Superior Court's opinion states: "[N]either DHR nor this Court need 'determine whether or not defendant adequately investigated the charges of . . . discrimination before discharging plaintiff.'  Evans v. Bally’s Health and Tennis, 64 FEP Case. 33, 38 (D.Md. 1994).  See also Bradshaw v. Brookdale Hosp. Medical Ctr., 1993 Westlaw 289435 (E.D.N.Y. 1993) (even if defendant’s investigation resulted in an inaccurate determination, plaintiff offers no evidence that defendant acted with discriminatory intent). Consistent with the holdings of these cases, the Court concludes that any allegations regarding the adequacy of the firm’s investigation cannot negate the credibility of the respondent’s asserted reasons for the termination."

    Note that the D.C. Superior Court cited inapposite case law.  Evans v. Bally's is not even a Title VII case; plaintiff in that case was an alleged harasser whose lawsuit contended that the employer had terminated his employment after inadequately investigating the alleged victim's harassment complaint.  Plaintiff was not an alleged victim of discrimination.

    Where there is common knowledge of harassing and discriminatory behavior directed at plaintiff, an employer's investigation that fails to uncover even that common knowledge is evidence of pretext in the termination decision (citation?). 

    Akin Gump admits that conducting an effective investigation requires careful consideration of the issues and thoughtful planning.  It will be noted that the attorney manager who conducted the investigation of my case (Dennis M. Race) started his career as a labor lawyer, working in the Office of Solicitor of the U.S. Department of Labor.  The firm's managing partner (Laurence J. Hoffman), who executed the Response to Interrogatories filed with DHR on May 22, 1992 also started his career as a labor lawyer, starting his career at the National Labor Relations Board.

    Even a minimal investigation of my harassment complaint would have disclosed the following facts admitted by the D.C. Corporation Counsel and Akin Gump itself.

    1. The D.C. Corporation Counsel admitted that "at a firm dinner in May 1989, another legal assistant [Jesse Raben] acknowledged hearing a rumor that [I] was gay." (R. 329, 341).  Brief of Appellee District of Columbia at 8.  Under the common law, publication of false statements that an individual is homosexual constitutes defamation per se.  The D.C. Corporation Counsel admitted that I was a victim of tortious conduct by coworkers and/or supervisors and that it was known among firm personnel at least 2 1/2 years before I lodged a harassment complaint.

    2.  DHR found that my job performance evaluations, which rated my work quality as well as professional conduct (and which would have recorded instances of misconduct), were uniformly above-average or outstanding (DHR Finding of Fact 2).  In response to a DHR document request Akin Gump produced only 3 of 9 of the evaluations prepared during my employment.  Was Dennis Race even aware of my exemplary employment history at the time of his Title VII investigation?  On October 30, 1991, the day after my termination, I telephoned Race to obtain approval for an unemployment compensation claim I planned to file.  At that time, Race advised that the quality of my work had deteriorated since I stopped working for Eastern Airlines in 1990.  Yet a memo prepared by my direct supervisor Robertson on October 25, 1991, during Race's Title VII investigation, states: "Gary's work continues to be exemplary."

    3. Robertson's memo to Race dated October 25, 1991 prepared after I lodged a harassment complaint against her (and others) was retaliatory since its allegations contradict the employer's own business records.  Why didn't Race investigate the veracity of supervisor Robertson?

    4. The D.C. Corporation Counsel admits that in early August 1989 there was a widespread fear that I might become armed and extremely dangerous -- more than two years before I was terminated.  Brief of Appellee District of Columbia at 9.   Why didn't the employer investigate this?   (Fears by coworkers that an employee might become violent are a symptom of subtle job harassment known as mobbing.)

    5. The record contains a Complaint for Damages filed in U.S. District Court by coworker Pat McNeil, who was supervised by Robertson.  The complaint alleges widespread knowledge that supervisor Robertson was viewed as a racist by black employees.  The McNeil Complaint for Damages establishes complaints by employees about Robertson as of July 1991 -- 3 months before my termination.  Why did Dennis Race not uncover the fact that Robertson was a Title VII problem during his investigation of my complaint in late October 1991, and why didn't Race question Robertson's veracity?

    6. As of the filing of Akin Gump's Response to Interrogatories on May 22, 1992 with DHR the employer was aware that the Litigation Support Department was tinged with anti-Semitism. See McNeil Complaint for Damages at paragraph 18: "18. On April 9, 1992, plaintiff {McNeil] was asked to meet with Laurel Digweed from Personnel. Ms. Digweed told plaintiff that she had been advised by Ms. Robertson that plaintiff had called Isabelle Schotz a "Jewish bitch" and that the two of them then got into a shoving and fighting match."

    7. Akin Gump's attorney managers either knew or should have investigated relevant law showing that there is a phenomenon of subtle job harassment cognizable by the courts.  See, e.g., Eide v. Kelsey-Hayes (Michigan).

    8.  Record evidence shows that employees in the litigation support department were not even aware that Dennis Race had conducted an investigation. See Record at 41: "6.  Dennis Race didn't question anybody in the Department. He never talked to me. If he did an investigation, wouldn't you think that he'd have talked to various ones in the Department? I don't know of anyone in the Department he talked to. Maybe he only talked to selected people Chris Robertson picked, Chris' favorites. [Note that Pat McNeil's conjecture suggests a violation by my supervisor, Chris Robertson, of D.C. Code sec. 1-2525(b), prohibiting the aiding or abetting of retaliation.]"

    9.  Akin Gump admitted, and the U.S. District Court for the District of Columbia found in McNeil, that a transfer from the litigation support department to the paralegal program constituted a promotion.  The employer admits it knew I was transferred from paralegal program to litigation support in March 1990.  Why didn't Race investigate the reason for the discriminatory demotion in March 1990 by legal assistant administrator Maggie Sinnott and litigation support supervisor Robertson (a known racist)?

    10.  The D.C. Corporation Counsel admitted that I routinely socialized with coworkers -- controverting supervisor Robertson's allegation to Race that I had difficulty communicating with my peers.  Why didn't Race investigate Robertson's veracity?
    • According to Freedman, at a firm dinner in May 1989, another legal assistant acknowledged hearing a rumor that Freedman was gay.  R. 329, 341.  Brief of Appellee District of Columbia at 8.
    • 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.  Brief of Appellee District of Columbia at 6.
    • 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.  Brief of Appellee District of Columbia at 9.

    DHR found that the employer investigated Petitioner’s allegations of harassment, interviewing his supervisor, Robertson, and some of his coworkers (R. 17).  DHR further found that the employer determined that the responders to the interviews stated that Petitioner was uncomfortable with his coworkers and that his behavior was sometimes frightening to his coworkers (R. 17).

    In rebuttal, Petitioner submitted to DHR persuasive documentary evidence that the employer’s investigation was at best de minimis, falling far short of the requisite thoroughness (R. 41 and R. 57-61).

    In support of his claim that his workplace was a hostile work environment, Petitioner submitted to DHR a copy of a Complaint for Damages against the employer filed in U.S. District Court, District of Columbia, McNeil v. Akin, Gump, Strauss, Hauer & Feld, No. 93-0477 (D.D.C., filed Mar. 5, 1993) (R. 57-61).  The plaintiff in the action, McNeil, a black female,

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    who had worked in the employer’s litigation support department together with Petitioner, had alleged that her termination on April 9, 1992 (about five months after Petitioner’s termination) was racially motivated in violation of Title VII (R. 57-61).

    McNeil alleged that her supervisor, Robertson, a white female, had engaged in a pattern of racially discriminatory and racially offensive behavior, and that Robertson’s conduct was well known to black employees in the department (R. 57-61).  McNeil related a specific incident that occurred in July 1991, three months before Petitioner’s termination on October 29, 1991 in which three of the black employees in the department met with Robertson to discuss their concerns that Robertson’s behavior toward black employees was racially discriminatory (R. 58 at paragraph 12).

    Thus, irrespective of the merits of Petitioner’s allegations of harassment, a diligent investigation by the employer in late October 1991 of Petitioner’s complaint of sexual and religious harassment would have disclosed that it was well known to employees within the department supervised by Robertson that that supervisor had a disposition to engage in racially discriminatory, and at times racially offensive, behavior.  Yet, the employer’s obviously de minimis investigation failed to uncover even common knowledge of racially discriminatory conduct by Petitioner’s supervisor.

    Evidence of Robertson’s racially discriminatory and racially offensive conduct is, as a matter of law, material to Petitioner’s complaint of sexual and religious harassment.

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    See Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415-1416 (10th Cir. 1987), citing Vinson v. Taylor, 763 F.2d 141 (D.C. Cir. 1985), aff’d in part and rev’d in part, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (incidents of racial harassment directed at employees other than plaintiff are material to plaintiff’s claim of a sexually hostile work environment; evidence of racial hostility may be aggregated with evidence of sexual hostility) (R. 13 at no. 6).

    DHR accorded no weight to the employer’s failure to uncover even common knowledge of discriminatory and offensive conduct by Robertson 11/ that was material, as a matter of law, to Petitioner’s complaint of harassment--a serious oversight by the employer that should have prompted DHR to question the thoroughness and reliability of the employer’s investigation generally.

    Further, DHR accorded no weight to evidence that the employer accepted without question false and specious statements of Robertson and selected coworkers regarding Petitioner’s fitness as an employee.

    Robertson advised the employer during its investigation that earlier in the year she had arranged to have Petitioner
    ___________________________

    11/  The court’s finding in McNeil that at the time of McNeil’s termination in early April 1992 the employer had no prior knowledge of Robertson’s racial animus is probative on the issue of the legal sufficiency of the employer's investigation of Petitioner’s complaint of harassment.  See McNeil v. Akin, Gump, Strauss, Hauer & Feld, No. 93-0477 (D.D.C., filed Nov. 29, 1993) at 8, n. 4 (See Appendix A to this Brief).  If the employer had conducted a thorough investigation of Petitioner’s complaint of harassment five months earlier in late October 1991, the employer would have obtained evidence of Robertson’s racial animus, which, at least as of July 1991, was well known to certain employees assigned to Robertson’s department (R. 58).

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    placed in a private office because of Petitioner’s alleged difficulties with coworkers (R. 146-147).  In fact, Robertson had not placed Petitioner in a private office; a minimal investigation by the employer of its own business records would have disclosed that Robertson’s damaging allegation was false (R. 356-357).  Also, Robertson advised the employer during its investigation that she had had several discussions with Petitioner concerning his interaction with coworkers and occasional outbursts at the time of his transition from a legal assistant position to his work with the litigation support department in March 1990 (R. 139 and R. 2 at paragraph 13(c)).  Yet Petitioner’s Performance Evaluations, which consistently rated Petitioner’s fitness as an employee above-average or outstanding, record no concerns regarding Petitioner’s interaction with coworkers or outbursts (R. 290-325).  And Petitioner’s personnel file includes no record of any reprimands, oral or written, despite what was, according to Robertson, Petitioner’s history of occasional outbursts, reportedly violent at times, extending from at least about March 1990 until his termination--19 months later!--in late October 1991 (R. 167).

    DHR’s finding that the employer had determined that Petitioner’s behavior was disruptive to coworkers is simply an impermissible reiteration of the nonspecific (and patently illogical) allegations of the employer.  See Rosexpress, Inc. v. District of Columbia Department of Employment Services, supra, 602 A.2d at 662.  Despite the employer’s repeated assertion that Petitioner’s conduct was disruptive and occasionally violent, giving

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    rise to reasonable concerns regarding Petitioner’s mental health and fitness as an employee, the employer does not cite a single, specific instance of disruptive or violent behavior. 12/

    The employer’s generalized allegations regarding Petitioner’s conduct and selected coworkers' negative perceptions of him were effectively rebutted by the specific statements of one coworker who said she viewed Petitioner as a quiet, professional person, and that Petitioner’s termination was inexplicable (R. 41).  Further, Petitioner was apparently highly regarded by the employer’s attorneys, as evidenced by the statement of one attorney who knew of Petitioner by reputation only (R. 274).
    _________________________

    12/  The employer did not identity any of the coworkers who were interviewed (R 17 and R. 75).  In response to a specific information request posed by DHR, the employer explained that it did not take any written statements from any coworkers (R. 75).  The employer also did not identity any specific acts committed by Petitioner that inspired the fear of coworkers (R. 17).  Generalized accusations that an employee has engaged in misconduct--such as a vague accusation that the employee’s behavior was disruptive and frightening in the absence of specific facts relating to the acts complained of, are not supported by substantial evidence.  Cf. McCaskill v. District of Columbia Dept. of Employment Services, 572 A.2d 443 (D.C. 1990) (a finding that an employee has violated company policy, by itself, is not enough to sustain a conclusion that the employee was fired for misconduct).  The one arguably specific (and false) reference to disruptive behavior--that Petitioner used to tell coworkers to “shut up”--is contained in the retaliatory memo dated October 25, 1991, prepared by Robertson (R. 146-147).  The limited scope of the employer’s investigation of Petitioner’s complaint of harassment is indicated by the report of one coworker assigned to the department supervised by Robertson who stated that she was unaware that the employer had conducted any investigation at all (R. 41 at paragraph 6).  It is noted, incidentally, that it was the two employees who occupied workspace adjacent to Petitioner in the months prior to his termination, Sherri Ann  Patrick (R. 249) and Lutheria Harrison (R. 15), who were later rewarded--for whatever reason--with promotions (R. 41).  See McNeil v. Akin, Gump, Strauss, Hauer & Feld, No. 93-0477 (D.D.C., filed Nov. 29, 1993) at 2, n. 2. (See Appendix A to this brief).

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    DHR offered no findings on the issue of the legal sufficiency of the employer’s investigation of Petitioner’s complaint of harassment, a material contested issue of fact in this matter.  In accepting a priori the employer’s allegation that it had consulted a psychiatrist and mental health counselor as definitive proof that the consultations had occurred and that Petitioner’s complaint of harassment was therefore the product of a mental disturbance, DHR prejudicially rendered immaterial facts relating to the legal sufficiency of the employer’s investigation.  DHR’s erroneous finding, based on insubstantial evidence, that the employer had determined in consultation with a psychiatrist that Petitioner suffered from a paranoid disorder was therefore an “invalid ground [for the termination] that affected the entire decision,” necessitating remand to DHR for further investigation. See Liberty v. Police and Firemen’s Retirement and Relief Board, et al., supra, 410 A.2d at 194, citing Dietrich v. Tarleton, 154 U.S.App.D.C. 47, 49, 473 F.2d 177, 179 (1972).

    3.  The Employer’s Supervisory Personnel Retaliated Against Petitioner

    DHR offered no findings on the issue of retaliation, a material contested issue of fact in this matter.

    [This is a misstatement.  The DHR complaint did not charge the employer with retaliation.]

    A prima facie case of retaliation under the Act, D.C. Code Section 1-2525, is established by evidence that the employee was engaged in a protected activity and that the employee suffered adverse personnel action as a consequence.  Goos v. National Ass’n of

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    Realtors, 715 F.Supp. 2, 3 (D.D.C. 1989).  Any adverse personnel action in opposition to an activity protected under the Act may constitute retaliation.  D.C. Code Section 1-2525 (Reply. Vol. 1992); Ravinskas v, Karalekas, 741 F. Supp. 978, 979-980 (D.D.C. 1990) (retaliation may consist of acts of opposition to various activities and is not limited to actions provoked by filing a complaint with the DHR).

    Petitioner’s meetings with the employer’s attorney managers on October 23 and October 24, 1991 to lodge a complaint of harassment against various employees, including Robertson, was a protected activity under the Act.  See Ravinskas v. Karalekas, supra, 741 F. Supp. at 979-980; Goos v. National Ass’n of Realtors, supra, 715 F. Supp. at 3.

    The record includes documentary evidence of two adverse personnel actions against Petitioner immediately following his complaint of harassment, comprising (1) a Performance Evaluation prepared by Robertson dated October 24, 1991 (R. 149-154) and (2) a memorandum by Robertson to Race dated October 25, 1991 (R. 146-147).

    The Performance Evaluation dated October 24, 10991, unlike all previous Performance Evaluations issued to Petitioner, contains comments critical of Petitioner’s ability to interact with coworkers (R. 149-154).  None of the Performance Evaluations issued prior to October 24, 1991 indicated in any manner that Complainant had difficulties in interacting with coworkers (R. 290-325.  The Performance Evaluation was not discussed with

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    Petitioner (and so indicates (R. 154)), contrary to the employer’s written policy (R. 150), and is therefore invalid on its face.  Robertson prepared the Performance Evaluation the day after Petitioner’s initial report of harassment to Segal on the afternoon of October 23, 1991 (R. 145), and on the very day of Petitioner’s official complaint of harassment to Race and Lassman, which took place at the start of the business day on October 24, 1991 (R. 23 and R. 149-154).

    The action of Petitioner’s supervisor in preparing a Performance Evaluation (1) at the very time Petitioner reported incidents of harassment, (2) that was per se invalid per the employer’s written policy, and (3) that contained specious comments that tended to support the employer’s contention that Petitioner had difficulties interacting with coworkers raises a presumption that the Performance Evaluation was prepared as an act of retaliation in opposition to Complainant’s protected activity of complaining of harassment.  The preparation of the per se invalid Performance Evaluation on the day Petitioner reported to the employer incidents of harassment satisfies the elements of a prima facie retaliation case.  See D.C. Code section 1-2525; Ravinskas v. Karalekas, supra, 741 F. Supp. At 979-980; Goos v. National Ass’n of Realtors, supra, 715 F.Supp. at 3.

    Additional evidence of retaliation is presented by the memorandum written by Robertson to Race dated October 25, 1991--one day after Petitioner reported incidents of harassment to the employer--in which the supervisor states her concerns regarding Petitioner’s fitness as an employee (R. 146-147).

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    The memo’s numerous factual distortions, contradicted by the employer’s own business records, including the egregiously false accusation that the supervisor had assigned Petitioner to a private office because of difficulties with coworkers (R. 369-370)--coupled with the timing of the memo--satisfies a prima facie retaliation case.  See D.C. Code section 1-2525 (Reply. Vol. 1992); Goos v. National Ass’n of Realtors, supra, 715 F. Supp. at 3.

    The record includes evidence of an additional adverse personnel action that occurred during the employer’s investigation, taken by the employer’s legal assistant administrator, Sinnott (R. 268-269).  At the time of the investigation, both Segal and Lassman looked into the possibility of transferring Petitioner to the legal assistant program pursuant to Petitioner’s request (R. 145 and R. 268-269).  Race advised Petitioner at the termination meeting that such a transfer was not possible (R. 268).  Race stated that Sinnott had told him that she could not work with Petitioner because she was afraid of Petitioner and found him difficult to work with (R. 268).

    The record indicates, however, that Sinnott’s statement to the employer at the time of the investigation was disingenuous (R. 269).  Months prior to the investigation, Sinnott had sought out Petitioner to work on a project (and the employer’s business records so indicate) despite the fact that Petitioner was not then one of Sinnott’s employees (R. 346 at paragraph 35).

    The reasons cited by Sinnott, following Petitioner’s complaint of harassment, for refusing to permit Petitioner to

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    be transferred to the legal assistant program, which were not supported by Sinnott’s prior conduct, unfairly contributed to the employer’s determination that Petitioner was not suitable for employment, and are  therefore elements of a prima facie retaliation case.  See D.C. Code section 1-2525 (Repl. Vo. 1992); Ravinskas v. Karalekas, supra, 741 F. Supp. at 979-980; Goos v. National Ass’n of Realtors, supra, 715 F. Supp. at 3.

    Further, Sinnott’s discriminatory 13/ refusal to permit Petitioner’s promotion to the  legal assistant program, despite an outstanding work history at the firm and fine professional credentials--thereby denying Petitioner promotion to a position for which he had originally been hired (R. 289)--was an unlawful discriminatory practice in employment in that it deprived or tended to deprive Petitioner of an employment opportunity, in violation of the Act, D.C. Code section 1-2512(a)(1). 14/

    The limited focus of DHR’s inquiry prejudicially pre-empted retaliation as a material issue.  Remand for findings on the issue of retaliation is therefore appropriate since “this court cannot fill the gap by making its own determination from the
    ____________________
    13/  Sinnott routinely engaged in sexually offensive behaviors directed at Petitioner throughout his tenure (R. 37).

    14/  Sinnott’s refusal to permit Petitioner’s promotion denied Petitioner an opportunity to interact with individuals at his level of education and professional experience, adversely affecting his status as an employee (R. 243).  Opportunities for meaningful interaction with attorneys would have been available to Petitioner had he been promoted to the legal assistant program (R. 243).

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    record, but must remand the case for findings on that issue.”  Rafferty v. District of Columbia Zoning Commission, 583 A.2d 169, 175 (D.C. 1990), citing Davis v. District of Columbia Dep’t of Employment Servs., 542 A.2d 815, 819 (D.C. 1988).
    • DHR ERRED IN FINDING THAT PETITIONER’S FAILURE TO PROVIDE NOTICE OF HARASSMENT AND HIS MEMBERSHIP IN A PROTECTED CLASS PRIOR TO OCTOBER 23, 1991 EXCUSED THE EMPLOYER OF LIABILITY UNDER THE ACT SINCE THE EMPLOYER IS LIABLE FOR (1) ITS OWN DISCRIMINATORY ACTS AS OF TIME OF NOTICE AND (2) PRIOR DISCRIMINATORY ACTS OF SUPERVISORS

    1. Employer Is Liable For Its Own Discriminatory Acts

    DHR’s reliance on the fact that Petitioner did not advise his employer that he was homosexual prior to October 23, 1991 is not in accordance with law in that the finding excuses the employer of its own acts of discrimination during the period after the employer had express knowledge of Petitioner’s sexual preference.

    DHR found that Petitioner advised the employer of his sexual preference on October 23, 1991 (R. 17).  Direct liability therefore attaches to the employer as of October 23, 1991 for its own acts of discrimination.  Under Title VII an employer is responsible for its own discriminatory acts regardless of whether it had prohibited the specific acts complained of or had no other notice of their occurrence.  Equal Employment Opportunity Comm. Sexual Harassment Guidelines 29 CFR section 1604.11(c) [45 FR 74677, Nov. 10, 1980.]

    The record indicates that the employer committed several discriminatory acts in the period after October 23, 1991

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    First, the employer had an affirmative duty to conduct a fair and complete investigation of Petitioner’s complaint of harassment.  See, e.g., Munford v. James T. Barnes & Co., supra, 441 F. Supp. At 466 (employer has an affirmative duty to investigate complaints of sexual harassment and deal appropriately with the offending personnel).  As amply demonstrated earlier in the argument, the employer’s investigation, which commenced on October 23, 1991, fell so far short of the requisite thoroughness so as to amount to no investigation at all.  Direct liability attaches to the employer for its failure to conduct an adequate investigation of Petitioner’s complaint of harassment  See e.g., Robinson v. Jacksonville Shipyards, Inc., et al., 760 F. Supp. 1486, 1530-1531 (M.D. Fla. 1991);  cf., e.g., Munford v. James T. Barnes & Co., supra, 441 F. Supp. At 466 (an employer’s total failure to investigate gives tacit approval to the discrimination).

    Additionally, the employer’s failure to conduct an inquiry into the manifestly false statements of Robertson concerning Petitioner’s fitness as an employee, certain of which were not supported by the employer’s business and personnel records (R. 356-357), made in the memo to Race dated October 25, 1991 (R. 369-370), constitutes a ratification by the employer of Robertson’s acts of retaliation.  See e.g., Munford v. James T. Barnes & Co., supra, 441 F. Supp. At 466.

    The employer’s actions in connection with its investigation of Petitioner’s complaint of harassment, commencing October 23, 1991, and the employer’s consequent personnel action in

    - 53 -
    terminating Petitioner’s employment therefore constituted unlawful discriminatory practices in employment in violation of the Act, D.C. Code section 1-2512(a)(1).

    Second, the employer discriminated against Petitioner with respect to privileges of employment in violation of the Act, D.C. Code section 1-2512(a)(1), in the period after October 23, 1991.

    At the time of his termination on October 29, 1991 Petitioner was a beneficiary of the employer’s Long Term Disability Income Plan (“Plan”) (R. 29 and R. 42-56).  At the termination meeting Race did not advise Petitioner of his rights under the Plan or provide sufficient facts concerning the emotional or psychological reasons for the termination to alert Petitioner to file a claim (R. 74 and R. 138-139).   The Plan requires that a claim be filed within 30 days of the onset of disability (R. 53).  It was not until December 22, 1992, upon Petitioner’s receipt of the employer’s Response to Interrogatories and Document Request (R. 87) filed by the employer with DHR, that Petitioner learned that the employer had purportedly determined that he was unsuitable for employment by reason of psychological disturbance.  Even if Petitioner had retained insurance coverage by converting to an individual plan under COBRA immediately following the termination on October 29, 1991, the facts provided at the termination meeting were insufficient to alert Petitioner to file a timely claim on the basis of psychological disturbance.

    - 54 -

    (R. 74 and R. 138-139).  15/

    The employer’s failure to provide Petitioner any facts that might alert him to file a timely disability claim had the necessary effect of denying Petitioner benefit rights.

    The employer’s failure to apprise Petitioner at the termination meeting of facts reasonably necessary to alert him to file a timely disability claim raises two logical inferences: (1) at the time of the termination the employer had not formed a good-faith belief that Petitioner was unsuitable for employment by reason of mental impairment, or (2) the employer intentionally withheld material facts regarding a possible mental impairment with the intent to prevent Petitioner from filing a claim for disability benefits  In either case, the employer’s actions would constitute discrimination under the Act.  If the first inference is correct, then the employer’s stated justification for the termination--that Petitioner was not suitable for employment by reason of mental impairment--would be
    ________________
    15/  At the termination meeting on October 29, 1991 Race indicated in no way whatsoever that he had determined that Petitioner suffered from an emotional or psychological disturbance of any kind or that he was being terminated for that reason (R; 74 and R. 138-139).  Indeed, Race advised Petitioner that one of the reasons for the termination was that Petitioner’s work was of poor quality (R. 282 and R. 454).  Race did not inform Petitioner that he had consulted two mental health professionals (R. 74 and R. 138-139), including a psychiatrist who attributed Petitioner’s ideations to an identifiable psychiatric disturbance that rendered Petitioner potentially violent.  Race merely told Petitioner that he had conferred with two “consultants;” Petitioner assumed at the time that the unidentified consultants were exerts in employee relations (R. 29).

    - 55 -

    pretextual. 16/  If the second inference is correct, the employer’s actions would constitute the discriminatory denial of a benefit right, an unlawful discriminatory practice in employment in violation of the Act, D.C. Code section 1-2512(a)(1).

    DHR presented no findings concerning the employer’s actions in connection with the disability benefit plan despite the fact that the employer’s actions are per se evidence of discrimination necessarily relating to (1) the pretextual termination of Petitioner on the basis of fabricated evidence of mental impairment or (2) the discriminatory denial of benefit rights
    ___________________________
    16/  Cf. Zuniga v. Kleberg County Hosp., Kingsville, Tex., 692 F.2d 986 (5th Cir. 1982).  In Zuniga, a disparate impact sex discrimination case, a hospital’s claim that a pregnant X-ray technician was discharged because of the fear of endangering the fetus and exposing itself to negligence liability was deemed not worthy of credence by the court, since the hospital could have achieved its business purpose by granting the plaintiff a leave of absence under the hospital’s policy permitting leave of absence for reasons of family health.  The court found that the state business necessity for the termination was merely a pretext for discrimination.  Id. at 989.  In the present matter Race states the following business necessity for Petitioner’s termination: “on the basis of disruptive work habits, unusual behavior and discussions with outside [mental health] consultants [including a psychiatrist, who stated that Petitioner suffers from an identifiable psychiatric disturbance], I believe that termination is warranted.  Indeed, to do otherwise may prove to be negligent” (R. 148).  Keep in mind that Akin Gump would have used alternative means to accomplish the same purpose.  Cf. Zuniga at 989.  Instead of terminating Petitioner, the employer could have granted a medical leave to Petitioner under Akin Gump’s formal policy permitting leave of absence for reasons of medical disability, as evidenced by the firm’s participation in a group Long Term Disability Income Plan, underwritten by UNUM Life (R. 42-56).  Cf. Zuniga (R. 51)).  Because Akin Gump failed to utilize an alternative, less discriminatory means of achieving its stated goal of preventing harm to incumbent employees posed by a potentially violent, mentally disabled employee (R. 123), the firm’s business purpose stands revealed as pretext, and its business necessity defense must fail.  Cf. Zuniga at 994.

    - 56 -

    to a qualified employee whom the employer had determined, in consultation with a psychiatrist, to suffer from a mental disability.

    Finally, the employer’s action in filing apparently false evidence of consultations with mental health professionals in response to DHR’s Interrogatories and Document Request pursuant to DHR’s investigation of Petitioner’s unlawful termination complaint constitutes an act of retaliation or coercion in violation of the Act, D.C. Code Section 1-2525.

    The action of the employer in defaming Petitioner by including in its Response to Interrogatories and Document Request, dated May 22 1992, apparently false evidence that it had determined in consultation with a psychiatrist that Petitioner suffered from a severe mental disorder, was potentially violent, and not suitable for employment, constitutes an outrageous discriminatory act.  The employer’s apparent abuse of process, which is manifestly linked to Petitioner’s protected activity of filing a discrimination complaint, is an act of retaliation or coercion prohibited by the Act. 17/  See D.C. Code section 1-2525.
    __________________
    17/  The filing of willfully false documents or testimony with DHR in connection with a discrimination investigation is unlawful under the Act, D.C. Code Section 1-2529.  The filing of willfully false documents or testimony concerning a material disputed issue may constitute an obstruction of an investigation in violation of the Act, D.C. Code section 1-2528(a).

    - 57 -

    2. The Employer is Liable for Prior Discriminatory Acts of Supervisory Personnel

    DHR’s reliance on the fact that Petitioner did not advise his employer that he was homosexual prior to October 23, 1991 is not in accordance with law in that the finding excuses the employer of responsibility for prior discriminatory actions of its supervisory personnel.

    The employer’s knowledge of sexually-harassing conduct by its supervisory employees based on Petitioner’s perceived sexual preference is, as a matter of law, immaterial.  Harassment by the head of a department is considered the action of the employer for Title VII purposes, without regard to whether the employer knew of the supervisor’s propensity to harass, because a supervisor has the authority to affect the employee’s job status.  Campbell v. Kansas State Univ., 780 F. Supp. 755, 764 (D. Kan. 1991).

    The legal assistant administrator, Sinnott, a supervisory employee, frequently engaged in lewd sexual gestures directed at petitioner during Petitioner’s tenure, including the period June 13, 1988 through March 1990 when she was Petitioner’s immediate supervisor (R. 37).  The legal assistant coordinator, J.D. Neary, a supervisory employee, on occasion engaged in lewd sexual gestures directed at Petitioner during Petitioner’s tenure, including the period June 13, 1988 through March 1990 when he had supervisory authority over Petitioner (R. 37).  Each supervisor used to lunge his or her head forward toward Petitioner’s genital area, while simultaneously shaking his or her head in a violent shaking motion, all the while grimacing

    - 58 -

    at Petitioner (R. 37).  Petitioner experienced this sexually harassing conduct as degrading and offensive (R. 37).  During the period June 13, 1988 through March 1990 the employer’s legal assistant administrator supervised 50-60 employees, including Petitioner, and possessed the authority to fire Petitioner or otherwise alter his employment status (R. 37-38).  The legal assistant administrator’s sexually-harassing conduct was, by law, the action of Petitioner’s employer.  See Campbell v. Kansas State Univ., supra, 780 F. Supp. At 764.

    That the conduct of these supervisory personnel constituted discriminatory harassing actions relating to Petitioners perceived sexual orientation is made clear by reference to the pervasive sexually-charged nature of Petitioner’s work environment.  On the evening of May 3, 1989, one of the employer’s legal assistants, Jesse Raben, confirmed to Petitioner that there was a rumor among the employer’s personnel that Petitioner was homosexual (R. 341 at paragraph 20).  On an occasion during the summer of 1989 one of the employer’s temporary legal assistants, Stacey Schaar, who shared office space with Petitioner, stated repeatedly in referring to Petitioner, “he’s a fag, he’s a fag” (R. 38). 18/  On an occasion during the summer of 1989 one of the employer’s temporary legal assistants, Gwen Lesh, who shared office space with Petitioner, warned Petitioner
    ___________________________
    18/ DHR found that Petitioner complained to firm management concerning harassment by Schaar (R. 14), but termed the complaint an "idea of reference” (R. 17).  The employer, however, failed to acknowledge even that Petitioner had complained about Schaar (R. 136).  See Appendix B to this brief.

    - 59 -

    upon inviting him to a party at her home, “If you try to hit on any of my male friends, they’ll beat the shit out of you” (R. 38).

    The employer’s knowledge of this sexually-harassing conduct by Petitioner’s coworkers is immaterial since, as indicated above, supervisory personnel participated in the conduct.  Where a supervisor participates in hostile work environment harassment, the victim need not show that he notified the employer of his coworkers’ conduct in order to establish the employer’s liability, since at least one of the harassers has the actual or apparent authority to affect the employee’s job status.  Huddleston v Roger Dean Chevrolet, Inc., 845 F. 2d 900, 904-905 (11th Cir. 1988).

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    VII.  CONCLUSION

    For the foregoing reasons, it is respectfully requested that this Court reverse and remand for further investigation the determination of no probable cause issued by the District of Columbia Department of Human Rights.

    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 Petition for Review was hand-delivered, this 29th day of March, 1996, to the following address: William J. Earl, Esq., Assistant Corporation counsel, Office of D.C. Corporation Counsel, 6th Floor 441 4th Street, NW, Washington, DC  20001, (202) 727-9350.

    ___________________
    GARY FREEDMAN

    - 61 -

    APPENDIX A

    APPENDIX B

    CONCORDANCE OF INCIDENTS REPORTED BY EMPLOYER TO DHR vs. INCIDENTS REPORTED BY APPELLANT

    The following is a verbatim reproduction of the report made by the employer (Akin, Gump, Strauss, Hauer & Feld) to DHR of the incidents that appellant stated to Race and Lassman on October 24, 1991 [Rec. 136]. See Response to Interrogatories and Document Request, Response to Particulars (Attachment A), at p. 2 [Rec. 136] . Note that the employer's list corresponds exactly with DHR's findings of fact, except that the three incidents involving Robertson (a supervisor determined by the U.S. District Court for the District of Columbia to have exhibited racial animus) and the one incident involving Schaar (who was reportedly terminated for gross misconduct in about May 1990 [Rec. 516]) are unaccountably omitted in the employer's recital.

    Employer's Recital of Incidents of Harassment [Rec. 136]

    1. An attorney once used the word "sweet" while pouring a cup of coffee from a coffee machine [apparently corresponds to Finding of Fact 4(c)];

    2. While with a group of co-workers one female employee stated "I bet you have a sexy chest" [apparently corresponds to Finding of Fact 4(a)];

    3. One evening after business hours, an attorney got on the elevator with him [appellant] and paced back and forth, looking at Claimant [appellant] but saying nothing [apparently corresponds to Finding of Fact 4(j)];

    4. Co-workers in the litigation support group were "trying to make him nervous" [apparently corresponds to Finding of Fact 4(h)];

    5. A female co-worker stood by him swinging her hips so as to provoke him [apparently corresponds to Finding of Fact 4(i)]; and

    6. A male co-worker had his eyes fixed to Claimant's [appellant's] genital area [apparently corresponds to Finding of Fact 4(b)].

    ______________________________________________

    The following is a list of the incidents that appellant reported to DHR as constituting his report of harassment to Lassman and Race on October 24, 1991 [Rec. 253-257]. DHR incorporated the report in its findings of fact [Rec. 13-16], but designated the report evidence of appellant's paranoia rather than evidence of unlawful harassment.

    DHR'S Findings of Fact [Rec. 13-16]

    1. Finding of Fact 4(a) involving unidentified male co-worker "with sexy chest" [see (2.), above];

    2. Finding of Fact 4(b) involving Paul Wageman staring at genitals [see (6.), above];

    3. Finding of Fact 4(c) involving David Hardee at coffee machine [see (1.), above];

    4. Finding of Fact 4(d) involving Stacey Schaar; OMITTED BY EMPLOYER;

    5. Finding of Fact 4(e) involving Robertson; OMITTED BY EMPLOYER;

    6. Finding of Fact 4(f) involving Robertson; OMITTED BY EMPLOYER;

    7. Finding of Fact 4(g) involving Robertson; OMITTED BY EMPLOYER;

    8. Finding of Fact 4(h) involving co-workers in litigation support group [see (4.), above];

    9. Finding of Fact 4(i) involving Katherine Harkness swinging her hips [see (5.), above];

    10. Finding of Fact 4(j) involving David Eisenstat on elevator [see (3.), above].

    10 comments:

    Gary Freedman said...

    According to the George Washington University Medical Center Department of Psychiatry I suffered from paranoid schizophrenia when I wrote this brief, which was filed March 29, 1996. I was not on any medication when I wrote this brief:
    ____________

    George Washington University Medical Center
    Department of Psychiatry and Behavioral Sciences

    February 14, 1996

    Dear Mr. Freedman,

    This letter is being written per your request to know your diagnoses.

    In my opinion my working diagnosis has been: Schizophrenia, Paranoid Type (295.30).

    Sincerely,

    [signed]

    Dimitrios Georgopoulos, M.D.

    Gary Freedman said...

    Interview of a schizophrenic patient:

    http://www.youtube.com/watch?v=xXkllm50lYU

    Gary Freedman said...

    Interview of schizophrenic patient:

    http://www.youtube.com/watch?v=i4b-_bNsajY

    Gary Freedman said...

    Petitioner's Reply Memorandum filed in D.C. Superior Court lawsuit:

    http://dailstrug.blogspot.com/2011/04/freedman-v-dc-dept-human-rights-reply.html

    Gary Freedman said...

    Facts probative of an intent to deceive by Akin Gump.

    1. Late October 1991: I complained that I was harassed by Robertson. Management was placed on notice that Robertson posed a Title VII problem.

    I was terminated 10/29/91.

    2. 4/9/92 Black employee supervised by Robertson was fired by Digweed (and Robertson?)

    3. 5/22/92 Race and Hoffman filed Response to Interrogatories in Freedman with DHR. Race and Hoffman deceptively denied that I had alleged that Robertson harassed me on three occasions (i.e., that they had been placed on notice that Robertson posed a Title VII problem). Akin Gump listed Race, Robertson, and Digweed as the three decisionmakers in my termination.

    4. 3/5/93 McNeil files Title VII Complaint in U.S. Dist. Court alleging that Robertson (a known racist) colluded with Digweed in terminating McNeil. Akin Gump denied any collusion and alleged Digweed alone terminated McNeil.

    5. 11/29/93 Dist. Court grants summary judgment for Akin Gump. Court concludes that Robertson did not collude with Digweed in terminating McNeil.

    Clearly, Akin Gump had an improper motive to deny on 5/22/92 (see 3. above) that I had ever complained about Robertson; i.e., that the firm knew that Robertson was a Title VII problem.

    Gary Freedman said...

    The Petition argues that the DHR engaged in the ultra vires act of engaging in a de facto adjudication of my mental competence by finding that a psychiatrist in consultation with my employer (senior attorney managers of a law firm) diagnosed me with a symptom frequently found in severe (psychotic) mental disorders and cautioned that I might become violent.

    According to the D.C. courts DHR's finding that attorneys (licensed professionals whose craft is based on the assessment of facts) found credible a psychiatrist's opinion that I suffered from a symptom characteristically found in psychotic disorders -- and further, under Burdine, found that an attorney-employer's sworn statements as to his beliefs and motivations were worthy of credence -- only goes to the issue of the mental state of the attorney managers and does not signify that I in fact suffer from a psychiatric disorder.

    When President Obama states that American forces killed Osama bin Laden, it does not mean that Osama bin Laden is dead. It simply means that a rational and intelligent adult believes that American forces killed Osama bin Laden and that the President's statements as to his beliefs are worthy of credence. I find that proposition ridiculous. Our judicial system is based on the assumption that when twelve individuals who are rational and intelligent adults form the belief after careful assessment of the facts -- based on the credible statements as to the beliefs of witnesses -- that an individual is guilty of a crime, it means that that individual did in fact commit a crime.

    Gary Freedman said...

    Applying Freedman to the Bernie Madoff case:

    Madoff: "I didn't commit a crime. No. Twelve people formed the belief that I committed a crime. That's all. The verdict only goes to the jurors' mental state. As for me, I'm as pure as the driven snow!!"

    Gary Freedman said...

    Burdens of Proof:

    http://www.attiglawfirm.com/blog/mspb-appeals/federal-employment-law-posts/mspb-and-eeo-burdens-of-proof/

    Gary Freedman said...

    Covington & Burling (216.200.93.134) [Label IP Address] 0 returning visits
    United States FlagWashington, District Of Columbia, United States

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    Gary Freedman said...

    The complete administrative and court docket in Freedman v. D.C. Department of Human Rights can be found at the following site:


    http://dailstrug.blogspot.com/2011/03/freedman-v-dc-dept-human-rights-docket.html