Meeting with James Kestell, Esq. -- 1993 -- Declination of Legal Representation

On April 9, 1992 Patricia McNeil, a black employee who worked in the Litigation Support Department of the law firm of Akin, Gump, Strauss, was fired.  Mrs. McNeil had been my coworker until my job termination on October 29, 1991, six months earlier.  Mrs. McNeil later obtained the representation of James L. Kestell, Esq. in a Title VII action filed in the U.S. District Court for the District of Columbia.  (The attorney for Akin Gump was Robert J. Higgins, Esq. of Dickstein Shapiro).

In April 1993 I met with Mr. Kestell at his office at his request.  He asked me several questions pertinent to his representation of Mrs. McNeil.  We talked about my unlawful termination complaint filed by the D.C. Department of Human Rights.  Mr. Kestell declined to represent me.  He thought I had a weak case.  He told me that I was relatively young (I was 39 years old at the time), and that I should forget about Akin Gump and move on with my life.  During our discussion of my case he seemed to consistently take the side of Akin Gump and Dennis Race (the attorney who terminated my employment) in particular.  I found his attitude peculiar; perhaps he was playing devil's advocate.

When I met with Mr. Kestell in April 1993, the D.C. Department of Human Rights had not yet issued its Initial Determination (June 30, 1993) in my case.
______________________

May 3, 1993
3801 Connecticut Avenue, NW
#136
Washington, DC  20008

James L. Kestell, Esq.
Suite 1010
1101 15th Street, NW
Washington, DC  20005

Dear Mr. Kestell:

Thank you for meeting with me on Friday, April 30th.  I appreciate the time you took to speak with me regarding my DOHR unlawful termination Complaint against Akin Gump.

I would like to clarify a few points regarding some of the issues we discussed regarding the Complaint.

1.  While it is true that the firm provided severance pay to cover the cost of insurance to be borne by me, there was no mention at the termination meeting that the cost of premiums for Long-Term Disability Insurance was to be borne by me under COBRA.  The only insurance issues discussed at the termination meeting were (1) converting my life insurance from the firm's group plan, (2) continuing my health insurance (under Northwestern National Life Insurance Company), and (3) continuing my EAP.  I was not advised of my right to continue my disability insurance, which was with a separate insurer, UNUM Life Insurance Company of America.  (Enclosed is a copy of all the forms I was supplied at the termination meeting.)

2.  Regarding the lack of animus by Dennis Race against homosexuals, I argue in my Reply filed with DOHR that the lack of such animus is immaterial.  I argue that Dennis Race's manifestly flawed investigation constitutes a de facto ratification by the firm of the hostile work environment created by its employees.  An essential ingredient of that hostile work environment was the rumor that I was a homosexual and harassment based on that perception.  (Enclosed is page 41 of my Reply which discusses this issue.)

3.  Regarding my seemingly bizarre complaint to Dennis Race that Chris Robertson on one occasion offered me a piece of chocolate with the peculiar phrase, "Here, you look like you need some chocolate," I found some case law on this issue: Monge v. Superior Court (Crown Gibraltar Graphic Center, Inc.), 176 Cal. App.3d 503 (1986).  Though obviously not controlling law in my case, the opinion carries implications  regarding the merits of my Complaint and my chances of prevailing.

In Monge an office worker found the seemingly innocuous and sexually-ambiguous phrase "How about a little head?" flashed across her computer terminal from an unknown source within the company.  She reported it to her supervisor, who was a woman, and the two women reported the incident to higher management.  In response to the complaint the company embarked on a campaign of downgrading their jobs and benefits until both women were forced to resign.

The court held that the injuries suffered by the two women were in retaliation for their reporting the sexual harassment incident.  The legal consequences of these acts of retaliation were the same as if the injuries had resulted from the sexual harassment.  It is important to recognize that the company probably would not have been held responsible for the original act of harassment, which was slight and ambiguous.  The plaintiffs prevailed based on the company's retaliation against the plaintiffs for having complained about the slight harassment.  (Enclosed is a copy of the opinion.)

Thank you very much.

Sincerely,

Gary Freedman