D.C. Court of Appeals -- Freedman v. D.C. Dept.Human Rights: 96-CV-961 (Sept. 1, 1998)

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 96-CV-961

GARY FREEDMAN, APPELLANT

v.

DISTRICT OF COLUMBIA DEPARTMENT OF HUMAN RIGHTS, APPELLEE

Appeal from the Superior Court of the

District of Columbia

(Hon. xxxxx x xxxxxxx, Trial Judge)

(MPA-95-14)

(Argued December 16, 1997               Decided September 1, 1998)

Before TERRY and REID, Associate Judges, and KING, Associate Judge, Retired*

MEMORANDUM OPINION AND JUDGMENT

Appellant claimed that he was the victim of sexual harassment and discrimination by his former employer, a large local law firm (“the firm”), because of his sexual orientation.  After an investigation, the Department of Human Rights (DHR) determined that there was no probable cause to believe that unlawful harassment or discrimination had occurred.  The Superior Court affirmed that determination.  From that ruling appellant brings this appeal; we affirm.

I

In March 1988 appellant began working at the firm, first as a temporary legal assistant, then as a full-time legal assistant, and eventually as a member of the firm’s litigation support staff.   Throughout his tenure with the firm, appellant received generally favorable performance evaluations.
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*  Judge King was an Associate Judge of the court at the time of argument.  His status changed to Associate Judge, Retired, on September 1, 1998

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According to a memorandum prepared by appellant’s supervisor in early 1991, appellant frequently complained of noise and other distractions in the work area normally assigned to litigation staff members.  He also complained that he was often the butt of practical jokes and generally felt harassed.  Responding to these concerns, the firm arranged for him to have a private office in a different location.  After several months, however appellant was forced to give up his private office because his accessing of certain computer databases from that location was interfering with the rest of the work that was done in that area of the firm.  On October 23, 1991, appellant complained to the partner responsible for overseeing legal assistants that he had been the victim of both sexual and religious harassment.  The following day appellant met with this partner and two other attorneys responsible for personnel matters at the firm to discuss his allegations.  At that meeting appellant recounted a litany of events over the previous three years which he believed were examples of sexual harassment and anti-Semitic behavior.  According to a document prepared in response to interrogatories, appellant cited events such as:

An attorney once used the word “sweet” while pouring a cup of coffee from a coffee machine;

While with a group of co-workers one female employee stated, “I bet you have a sexy chest”;

One evening after business hours, an attorney got on the elevator with him and paced back and forth, looking at [him] but saying nothing;

Co-workers in the litigation support group were “trying to make him nervous”;

A female co-worker stood by him swinging her hips so as to provoke him; and

A male co-worker had his eyes fixed to [appellant’s] genital area; and

Once a black employee was heard to use a Yiddish term.

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After the meeting, the firm investigated appellant’s allegations by interviewing appellant’s supervisor and co-workers.

[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.  See ROBINSON v. JACKSONVILLE SHIPYARDS, 1760 F.Supp. 1486 (M.D. Fla. 1991) (where an employer receives adequate actual knowledge of the state of the work environment but, like an ostrich, the company elects to bury its head in the sand rather than learn more about the conditions to which an employee complains, the employer is liable for hostile work environment harassment).

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 began his career as a labor lawyer, working for the National Labor Relations Board.  Malcolm Lassman, who reported to the management committee on issues relating to paralegals, started out as a labor lawyer.

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).

A harassment complaint based on “very subtle” behavior by coworkers is legally cognizable, and I directed the Court to the following:

“9/ Appellant's complaint of harassment to the employer concerned very subtle harassment. While an unsophisticated, nonlegal employer might plausibly deem an employee's complaint based on such harassment unbelievable, it is far less convincing that knowledgeable attorney managers of a major law firm would credibly find appellant's harassment complaint "baseless as proof of sexual or religious harassment" [Rec. 138]. In fact, a complaint based on subtle harassment is legally cognizable. 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).”

My recital of harassing incidents could have led to one of three conclusions by Akin Gump’s attorney managers (both Dennis M. Race and managing partner Laurence Hoffman started their careers as labor lawyers): (1) I was simply mistaken but not mentally ill; (2) I was a victim of very subtle harassment (see Eide, above) and not simply mentally ill; (3) I was mentally ill. Akin Gump’s sworn declaration implies that it could have reached only one conclusion: that I was mentally ill and not suitable for employment.

The subtle form of job harassment known as mobbing or bullying to which I may have been subjected has been recognized in the literature since the 1970s. The fact that the D.C. Human Rights Act does not provide a legal remedy for mobbing victims does not vitiate the fact that the very existence of a subtle form of workplace harassment known as mobbing (or the subtle harassment considered by the Court in Eide, above) detracts from Akin Gump's implied assertion that it was compelled to view my allegation of subtle harassment as necessarily the product of mental illness and not something else.

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.

11.  Akin Gump probably knew that there were Title VII problems concerning my direct supervisor, Chris Robertson, as of the time of its investigation of my harassment complaint in late October 1991 which should have placed the firm on notice to carefully scrutinize her statements concerning me.

12.  My recital of harassing conduct, adopted as fact by DHR, cited three incidents involving my direct supervisor Robertson.  Why did DHR not question the fact that the employer, in its recital, omitted those three incidents involving Robertson -- indeed, failed to mention anywhere that I had ever complained about Robertson?]

On the basis of those interviews and appellant’s own statements, the firm concluded that appellant was uncomfortable with his co-workers and that he sometimes conducted himself in a manner that was disruptive and even frightening to other employees.  In a response filed with the DHR, a partner with the firm said that after its investigation of appellant’s allegations, the firm consulted with mental health professionals, including a psychiatrist, Dr. Gertrude Ticho. 1/  Without disclosing appellant’s identity to these professionals, representatives of the firm described the behavior that the investigation had revealed and recounted the incidents which appellant believed were examples of harassment .  One psychiatrist identified appellant’s “habit of putting a negative meaning to virtually every event as ‘ideas of reference’ and cautioned that individuals in similar circumstances may become violent.”

On October 29, 1991, the firm told appellant that it had concluded that he could not function in a group setting and that it did not have a position which allowed him to work alone and isolated from other employees.  Accordingly, appellant’s employment with the firm was terminated as of October 31.

II

On February 4, 1992, appellant filed an administrative complaint with DHR, alleging that the firm had “subjected[ed him] to differential treatment in terms and conditions of employment, harass[ed him] and terminat[ed his] employment because of sexual orientation (homosexual).” 2/  Accompanying
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1/  Attached to a pleading appellant filed with the DHR was a handwritten letter from Dr. Ticho indicating that she never met or spoke to the member of the firm who said he had consulted with her.  DHR questioned the authenticity of this letter.

2/  Appellant did not claim, however, he had been fired in retaliation for his complaints of harassment and discrimination.

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the complaint were numerous letters, memoranda, charts, and other documents detailing the incidents which he believed were examples of unlawful harassment.

On June 30, 1993, following an investigation pursuant to D.C. Code Section 1-2545 (1992), the Director of DHR sent appellant a ten-page, single-spaced letter in which she concluded that there was no probable cause to believe that he had been the victim of discrimination.  The Director’s findings (here paraphrased) included the following:

That appellant regularly received above-average or outstanding performance evaluations;

That appellant consulted regularly with mental health professionals as early as 1989 and had twenty-eight such consultations during 1991;

That after he complained in October 1991 that he was being harassed, the firm investigated his allegations and at that time learned from his workers that he was uncomfortable with them and that his behavior was sometimes disruptive and frightening;

That the firm consulted with outside mental health professional and learned that appellant’s behavior was indicative of a disorder known as “ideas of reference.” which is sometimes accompanied by violent behavior; and

That the record contained no evidence that appellant ever informed the firm that he was homosexual or that he was being harassed prior to October 23, 1991.

Applying the analysis set forth in Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-253 (1981), the Director determined both that appellant had presented a prima facie case of unlawful discrimination and that the firm in turn had shown a legitimate business reason for its decision to fire him, but that appellant had failed to satisfy his ultimate burden of demonstrating that the proffered reason was

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pretextual and that he was in fact a victim of unlawful discrimination. 3/  Specifically, the Director stated:

• There is no credible evidence in the record that [the firm] terminated [appellant] because of his sexual orientation or that [appellant] was harassed because of his sexual orientation  [appellant’s] perceptions of activity in his work environment in this matter is so hypersensitive that it triggered [the firms] concern about his mental health as well as concern about his daily interaction with his coworkers.  [The firm’s] actions were based on [appellant’s] own statements along with those of his coworkers and the consultation mental health professionals.

Appellant moved for reconsideration on the ground of new evidence, asserting in addition that the Director’s ruling omitted material facts, misstated material facts, relied on immaterial facts, and applied the law incorrectly to the facts.  On September 24, 1993, the Director noted that, on reconsideration, she must determine whether the previous conclusion “based on the evidence and application of the law followed rationally from the material contested issues of facts . . . [and] whether pertinent facts were either misstated or omitted resulting in a significant alteration of the ‘total mix’ of information made available resulting in a misapplication of law.”  She reiterated the applicable standard of analysis, recounted the findings of facts she had initially made, and reviewed appellant’s claims of new evidence and misstated facts.  The Director determined that there was no new evidence, but only new and unsupported allegations, and that if there were any misstatements of fact, they were immaterial to the outcome of the case.  She concluded that the evidence of record contained nothing to convince her that the initial determination was incorrect.
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3/  See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 (1993) (plaintiff claiming discrimination “at all times bears 'the ultimate burden of persuasion‘.” (citations omitted)).

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Appellant then filed in this court a petition for review of DHR’s determination of no probable cause.  This court, however, in an unpublished Memorandum Opinion and Judgment, dismissed his petition for lack of jurisdiction, without prejudice to the filing of a civil action in the Superior Court.  Freedman v. District of Columbia Department of Human Rights, No. 93-AA-1342 (D.C. January 10, 1995, amended by order filed September 20, 1995).  Accordingly, on October 10, 1995, appellant filed a petition in the Superior Court for review of DHR’s decision.

In an order filed June 11, 1996, the trial court denied appellant’s petition and affirmed DHR’s determination of no probable cause, finding that it was supported by substantial evidence and that appellant had failed to demonstrate the decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”  See D.C. Code Section 1-1510 (a)(3)(A) (1992).

III

The standard for review for a DHR determination of no probable cause has been conclusively established.  According to Simpson v. District of Columbia Office of Human Rights, 597 A. 2d 392, 406 (D.C. 1991), the standard is broader than “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”  In this case, however, even if we apply the latter standard, which is more favorable to appellant than the former (as the trial judge recognized), we can find no basis for overturning the finding of no probable cause.  We agree with the assertion in DHR’s brief that that determination should be affirmed “under any reasonable standard.”

Agency action is presumed to be correct, and neither this court nor the trial court may substitute its judgment for that of the agency.  Cohen v. Rental Housing Comm’n, 496 A.2d 603, 605 (D.C. 1985); accord, Rental Housing Comm’n 496 A.2d 603, 605 (D.C. 1985); accord, Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43 (1983).  A determination of no probable cause, like any other agency decision, should not be disturbed unless the challenging party demonstrates “no rational connection between the facts found and the choice made” by the agency.  Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43; Cohen v. Rental Housing Comm’n, 496 A.2d at 605 (challenging party bears the burden of demonstrating error).

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In the present case, DHR’s determination was anything but arbitrary and capricious and certainly reflected reasoned decision-making.  The Director clearly articulated reasoned decision-making.  The Director clearly articulated the facts she relied upon and explained how those facts did not add up to a finding of unlawful conduct on the part of the firm.  Appellant’s argument that it was irrational for DHR to accept the validity of the firm’s proferred explanation for its adverse employment action, given the positive performance evaluations, is without merit.  The firm did not claim that it discharged appellant because he was not doing his job well, but because it was concerned about his mental health and his inability to work with others.  The Director could reasonably conclude, as DHR states in its brief, that the incidents of alleged harassment were “trivial" 
and that his reaction to them “reflected over-sensitivity on his part rather than intolerance on the part of his co-workers.”  There is nothing in the record to persuade us -- and appellant bears that burden of persuasion -- that either the Director’s finding of no probable cause or the trial court’s decision was erroneous.

The judgment is accordingly

                 Affirmed.

FOR THE COURT:

Joy A. Chapper
Acting Clerk of the Court

Copies to:

Honorable xxxxx x xxxxxxx
Clerk, Superior Court

Gary Freedman
3801 Connecticut Ave., NW
Suite 136
Washington, DC  20008

Charles L. Reischel, Esquire
Deputy Corporation Counsel