The District's brief features two glaring omissions. My Brief on Appeal contained an extensive discussion of the law relating to employer pretext and the persuasive evidence that Akin Gump's proffered reasons for the termination were pretextual. The District did not address the issue of pretext and, in fact, doesn't even use the word "pretext" anywhere in its pleading (except in quoting the agency decision or in a footnote).
My Brief on Appeal includes an extensive discussion of an essential element of the "arbitrary and capricious" standard of judicial review: namely, the requirement that the agency articulate a "rational connection" between the facts found by the agency and it's final action (the no probable cause finding). The District deceptively omits any reference to the "rational connection" test.
There is an old French saying: "Qui s'excuse, s'accuse," which translates: He who excuses himself, accuses himself. With its crucial omissions -- its failure to address pretext and its failure to explain the rational connections between the facts found and the agency's final decision -- the District tacitly admits that the crux of this appeal is (1) pretext (the employer's proffer of a false and deceptive rationale for my termination); (2) the lack of a rational connection between the agency finding that prior to my harassment complaint there was no documentation I was anything but an exemplary employee and the agency finding that throughout my tenure, from March 4, 1988 until October 2, 1991, I suffered from a psychiatric "disorder" that rendered me potentially violent and not suitable for employment; and (3) the lack of a rational connection between, on the one hand, the agency's findings that my termination was nondiscriminatory and that I told the employer I was homosexual on October 23, 1991 and, on the other, the employer's sworn production that it had no knowledge of my sexual orientation at any time until February 4, 1992 (upon my filing of a complaint with the agency).
My Reply Brief can be found at the following link:
http://dailstrug.blogspot.com/2009/11/freedman-v-dc-dept-mental-health-akin.html
IN THE DISTRICT OF COLUMBIA COURT OF APPEALS
_________________________
No. 96-CV-961
_________________________
GARY FREEDMAN,
Appellant,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF HUMAN
RIGHTS AND MINORITY BUSINESS DEVELOPMENT,
Appellee.
_________________________
On Appeal From The Superior Court
Of the District of Columbia, Civil Division
____________________________
BRIEF OF APPELLEE
DISTRICT OF COLUMBIA DEPARTMENT OF HUMAN RIGHTS
AND MINORITY BUSINESS DEVELOPMENT
______________________________
JO ANNE ROBINSON
Interim Corporation Counsel
*CHARLES L. REISCHEL
Deputy Corporation Counsel
Appellate Division
Office of the Corporation
441 4th Street, N.W., 6th Fl. South
Washington, D.C. 20001
(202) 727-6252
*Counsel expected to argue case
Justin Draycott
Trial Assistant
July 25, 1997
TABLE OF CONTENTS Page
ISSUE PRESENTED . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . 2
A. Proceedings Below . . . . . . . . . . 2
B. Statement of Facts . . . . . . . . . . . 3
1. Freedman’s Employment . . . . . . 3
2. The Allegations of Harassment . . 5
3. The Department’s Investigation and
Decision . . . . . . . . . . . . . . . . . . . 12
4. The Superior Court Decision . . . . 13
SUMMARY OF ARGUMENT . . . . 14
ARGUMENT . . . . . . . . . . . . . . . . . . 15
I. THE DEPARTMENT’S FINDING OF NO PROBABLE CAUSE MUST
BE UPHELD UNLESS FOUND TO BE ARBITRARY, CAPRICIOUS,
AN ABUSE OF DISCRETION OR OTHERWISE NOT IN ACCORDANCE
WITH THE LAW . . . . . . . . . . . . . . . . 15
II. THE DEPARTMENT DID NOT FAIL TO CONSIDER OR PROPERLY
EVALUATE THE EVIDENCE . . . . 17
A. The Department’s Finding That Freedman Received Favorable Performance Evaluations Is Not Inconsistent with Its Conclusion That He Was Terminated
For Non-Discriminatory Reasons . . . . 18
B. The Department’s Finding That Freedman Was Not
Harassed Because Of His Sexual Orientation Was
Not Arbitrary Or Capricious . . . . . . . . . . . 19
C. The Evidence Does Not Cast Doubt On The Legitimacy
Of The Employer’s Reliance On Advice Obtained From
Mental Health Professionals . . . . . . . 21
CONCLUSION . . . . . . . . . . . . . . . . . 23
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TABLE OF AUTHORITIES
CASES:
*Cohen v. Rental Housing Comm’n
496 A.2d 603 *D.C. 1985 . . . . . . . 15
Lamont v. Rogers,
479 A.2d 1274 (D.C. 1984) . . . . . . 2
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co.,
463 U.S. 29, 103 S.Ct. 2856 (1983) . . . . 16
Office of D.C. Controller v. Frost,
638 A.2d 657 (D.C. 1994) . . . . . . . . . . 22
*Puerto Rico Higher Educ. Assistance Corp. v. Riley,
10 F.3d 847 (D.C. Cir. 1993) . . . . . . . . 22
St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993) . . . . . . 18
*Simpson v. District of Columbia Office of Human Rights,
597 A.2d 392 (D.C. 1991) . . . . . . . . . . . . . . . . . . 2, 3, 15
Steel Mfrs. Ass’n v. Environmental Protection Agency,
27 F.3d 642, 307 U.S. App. D.C. 192 (1994) . . . . . . 16
STATUTES
District of Columbia Human Rights Act of 1977, D.C. Code
Sec. 1-2512 . . . . . . . . . . . . . . . . . . . . . 2
D.C. Code Sec. 12-301(8) (1989) . . . . . . . . 3
__________________________________
*Authorities chiefly relied upon are marked by an asterisk.
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IN THE DISTRICT OF COLUMBIA COURT OF APPEALS
____________________________
No. 96-CV-961
____________________________
GARY FREEDMAN,
Appellant,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF HUMAN
RIGHTS AND MINORITY BUSINESS DEVELOPMENT,
Appellee.
___________________________
On Appeal From The Superior Court
Of the District of Columbia, Civil Division
___________________________
BRIEF OF APPELLEE
DISTRICT OF COLUMBIA DEPARTMENT OF HUMAN RIGHTS
AND MINORITY BUSINESS DEVELOPMENT
___________________________
ISSUE PRESENTED
Was the determination by the Department of Human Rights and Minority Business Development that there was no probable cause to believe that Gary Freedman’s employer had discriminated against him on account of his sexual orientation arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law?
STATEMENT OF THE CASE
A. Proceedings Below
On February 4, 1992 appellant Gary Freedman filed a charge of discrimination with the District of Columbia Department of Human Rights and Minority Business Development, claiming that his former employer had subjected him to disparate terms of employment because of his sexual orientation and had discharged him in retaliation for having complained about that harassment, in violation of the District of Columbia Human Rights Act of 1977, D.C. Code Sec. 1-2512. R. 169-70. 1/ After conducting an investigation, the Department of Human Rights issued a “no probable cause” determination on June 30, 1993. R. 11-20. Freedman subsequently filed a motion for reconsideration (R. 21-67), which the Department denied on September 24, 1993. R. 1-9.
Freedman filed a petition for review of the Department’s decision with this Court. On January 10, 1995, this Court dismissed his petition for lack of jurisdiction, without prejudice to his right to file a civil action with the Superior Court. 2. Freedman v. District of Columbia Department of Human
_____________
1/ References to “R.__” are to the pages of the administrative record as certified to the Superior Court by the Department of Human Rights and Minority Business Development. References to “Rec. __” are to the pages of the record in the Superior Court.
2/ Citing Simpson v. District of Columbia Office of Human Rights, 597 A.2d 392 (D.C. 1991), and Lamont v. Rogers, 479 A.2d 1274 (D.C. 1984), this Court held that a finding of no probable cause is subject to judicial review only in a civil action filed in Superior Court.
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Rights, No. 93-AA-1342 (D.C. Jan. 10, 1995, amended Sept 20, 1995).
Freedman filed a petition with the Superior Court for review of the Department’s decision on reconsideration on October 10, 1995. 3/ Rec. 2-30. On June 10, 1996, after reviewing Freedman’s petition, the Department’s response, and Freedman’s reply, Judge ------- issued an order affirming the Department’s decision, finding that it was supported by substantial evidence and the Freedman had failed to show that it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Rec. 35-40.
Freedman timely filed a notice of appeal from Judge -------’s decision on July 2, 1996. Rec. 41.
B. Statement of Facts
1. Freedman’s Employment
Freedman was hired by the law firm of Akin, Gump, Strauss, Hauer & Feld, L.L.P. on June 13, 1988 as a temporary legal assistant. R. 335. Shortly thereafter, he became a full-time employee, first as a legal assistant and later as a member of the firm’s litigation support staff. Because Freedman frequently complained of noise and other distractions in the work areas normally assigned to litigation staffers, efforts were made to
_________________________
3/ In Simpson, 597 A.2d at 400, this Court indicated that the filing of a petition with the Superior Court for review of a decision of the Department of Human Rights is subject to the three year statute of limitations set forth in D.C. Code Sec 12-301(8) (1989).
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provide him with a private office. R. 146. Throughout his employment he received generally laudatory performance reviews.
[Akin Gump failed to produce most of the evaluations in response to an agency document-production request.]
On October 23 and 24, 1991, Freedman for the first time brought to the attention of the attorneys in the firm responsible for overseeing the legal assistants and other personnel matters his belief that he was being sexually harassed at the office. R. 348, 253-83. Those attorneys promptly undertook to investigate the allegations interviewing Freedman’s supervisor and coworkers. Based on these interviews and Freedman’s own descriptions of the alleged incidents that prompted his complaint, the attorneys concluded that Freedman was uncomfortable with his coworkers and that his behavior was sometimes disruptive and frightening to other employees. R. 145-47, 276, 369-70.
Because of the unusual nature of Freedman’s allegations 4/ and the effect that he was having on other employees, and alarmed at some of the volatile behavior by Freedman himself that they were hearing about for the first time, the attorneys sought guidance from mental health professionals. R. 73-74. 137. Without identifying Freedman by name, they described for the
______________________
4/ According to information supplied by Freedman to the Department during its subsequent investigation, beginning at least as early as 1989, petitioner had consulted regularly with mental health counselors, psychologists and psychiatrists, with 28 consultations between January 1 and October 8, 1991. Some of those consultations were with professionals connected with Akin, Gump’s employee assistance program, which provides professional counseling services for employees experiencing emotional distress, depression, stress, or other personal difficulties. R. 362, 440-1, 502-3.
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professionals the behavior that their investigation had uncovered. One psychiatrist identified Freedman’s tendency to put a negative meaning to virtually every event as a condition known as "ideas of reference,” and cautioned the attorneys that individuals in similar circumstances may become violent. R. 137. After consultation with Freedman’s supervisor and other managing attorneys at the firm, on October 29, 1991, Akin Gump advised Freedman that because efforts to accommodate his difficulties in working with others had not been successful and there was no position at the firm that would permit him to work alone, he was being terminated. R. 138.
2. The Allegations of Harassment
According to materials submitted by Freedman to the Department during its subsequent investigation, the harassment he experienced during his employment included the following:
[Legally-irrelevant, "after-acquired evidence" is highlighted in yellow. The employer's sworn declaration states that I advised the employer of 6 incidents of harassment only. The Department of Human Rights found that I described ten incidents of harassment to Akin Gump, including three incidents omitted by Akin Gump relating to my direct supervisor Chris Robertson and one incident omitted by Akin Gump relating to Stacey Schaar, a paralegal who was reportedly terminated by the firm for gross misconduct in May 1990. Additional allegations of harassment enumerated in this Reply Brief by the Corporation Counsel played no role in Akin Gump's termination decision and were not relied on by the Department of Human Rights in its no probable cause finding. Also, the "after-acquired" evidence proferred by the Corporation Counsel is not evidence of employee misconduct that would have justifed my termination had the employer known of it; rather, the additional incidents comprise my retrospective perceptions of the workplace that I wrote up and submitted to the Department of Human Rights after the termination.]
-- Freedman believes that beginning in late October 1988 through the date of his termination, the managing attorneys at Akin, Gump had clandestine telephone contacts with his sister, during which the sister recounted details of phone conversations between herself and Freedman. R. 335. Freedman further believes that his sister was faxing to the firm’s management documents relating to Freedman, including his grade school report cards and college exam books, among there material. R. 335. Freedman also alleges that the information obtained by the managing attorneys was “disseminated throughout the firm without [his] consent.” R. 336. Freedman provided no explanation as to why the firm was
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interested in this information and did not describe the facts upon which his belief is grounded.
- 5 -
interested in this information and did not describe the facts upon which his belief is grounded.
[It is arguable whether this is an idea of reference as opposed to a logical inference. Akin Gump admitted in its sworn declaration that it knew I was a law school graduate doing the work of a paralegal; indeed, Akin Gump supplied the Department of Human Rights a copy of my resume that indicated I had earned an LL.M. in International Trade Law (America University Law School, 1984) and that I was licensed to practice in Pennsylvania. Record 142-143. International Trade is a major practice area of the firm. Record 270. The Corporation Counsel knew that Akin Gump admitted it had a high opinion of my legal credentials and considered me competitive with its associates. See record at 354.]
-- Freedman had the perception that the legal assistant administrator had him “typed as a homosexual and that her interaction with [him] was guided by that characterization.” This perception stayed with Freedman throughout his employment. R. 336. Freedman further claims that this administrator would glance and scowl at his genital area when she saw him. R. 336. 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.
[“Freedman further claims that this administrator would glance and scowl at his genital area when she saw him. R. 336.” This is not a description of an “idea of reference,” but rather a description of lewd behavior. Further, my voluntary attendance at a legal assistant happy hour at a restaurant in Adams-Morgan conflicts with the view, alleged by Akin Gump, that I had difficulty communicating with my peers.]
-- On the second day of his assignment with the firm as an agency-supplied legal assistant , 5/ Freedman introduced himself to a male employee outside whose office Freedman was working. A brief time thereafter, a group of employees gathered in the office adjacent to the work station where Freedman was working. The employees proceeded “to engage in a lively and mildly sexually suggestive discussion about the size of the male employee’s chest and whether it was hairy or not.” The discussion lasted about two minutes. R. 327, 337.
[The Corporation Counsel admits that I suffered from “ideas of reference” as of about March 4, 1988, a disorder that, according to Akin Gump, rendered me unemployable and potentially violent on the second day of my temp assignment with the firm, three months before the firm hired me and three-and-one-half years before I was terminated. If you check the cited page in the record (page 327) you will see that the Corporation Counsel also admits that my supervisor, Maggie Sinnott, isolated me from other employees on her initiative; I did not request to work in isolation. The Corporation Counsel admits that Sinnott frequently engaged in lewd gestures directed at me. See above.]
--While walking down a hallway in the firm’s offices, in May 1988, one of the firm’s associates who was walking toward
__________________
5/ Prior to being hired by Akin, Gump, petitioner was assigned to the law firm for a specific project through a temporary employment agency.
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Freedman began to hold a pencil next to his genital area and move it up and down. R. 328, 338.
[This is not a description of an idea of reference, but rather a description of a lewd gesture. The Department of Human Rights found that Dennis Race on October 24, 1991 asked me if the associate (Paul Wageman) maintained eye contact while making the gesture. The Department of Human Rights found that I affirmed to Race that the associate maintained eye contact. Record at 13.]
--In mid-June 1988, Freedman was assigned a private office at the firm. On the first morning in his new office, Freedman went to get a cup of coffee in an adjacent kitchen area. At that time, a partner at the firm said to him “I smell something sweet in here. Do you smell something sweet in here?” Freedman replied “No.” The attorney repeated, “I smell something sweet in here.” R. 328, 338.
[I was hired directly by the firm as an Akin Gump temp without benefits effective June 13, 1988. The Corporation Counsel admits that at the very time I was hired, I suffered from “ideas of reference,” a disorder that, according to Akin Gump, rendered me unfit for employment and potentially violent -- and which would lead to my termination more than three years later. Keep in mind that mental illness alone does not render an employee unfit for employment and potentially violent. Further, the Corporation Counsel admits that I was assigned to a private office by the firm (where I worked for a nine-month period), yet depicts as unreasonable my request for a private office in the days before I was terminated.]
-- During the three and a half years that he was employed at the firm, Freedman never had lunch with another employee. Apparently, three employees whom Freedman asked to lunch initially agreed to dine with him and later changed their minds. R. 273, 336.
[This is not an idea of reference. This is evidence that I formed an arguably reasonable inference that I was shunned by coworkers, which is a feature of a hostile work environment.]
-- One day during the summer of 1988 Freedman went to the office of another legal assistant, Jesse Raben, and had a conversation with him. During the conversation, another employee walked by and, without saying a word, nodded to Mr. Raben. Later, Mr. Raben came to a Xerox room where Freedman was making copies and continued the conversation “in a lively manner.” R.
- 7 -
339. The next day Mr. Raben seemed “more his normal self.” R. 339.
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339. The next day Mr. Raben seemed “more his normal self.” R. 339.
[The Corporation Counsel’s use of the phrase “another employee” obscures the fact that that employee was a supervisor, J.D. Neary, the firm’s legal assistant coordinator. In the days before I was terminated Dennis Race inquired into promoting me to the legal assistant program (a fact Akin Gump omitted in its sworn declaration) and that Neary advised Race that he found me difficult to work with, that he was afraid of me, and that he couldn’t work with me. Record 201. Akin Gump had an improper motive to omit this probative evidence of my lack of suitability for employment because it would require the firm to admit that even after my complaint of harassment the firm still considered me a candidate for possible promotion. The record discloses that Neary occasionally engaged in lewd sexual gestures directed at me. Record at 37.]
-- On a day in February 1989, plaintiff returned to his office from lunch and noticed that a stack of documents on his desk appeared to be out of order. Freedman inferred that the incident was intended to provoke a paranoid response from him. R. 340.
[The more detailed description of this transaction at page 340 of the record makes it clear that I am arguably describing a recognized form of harassment known as “gaslighting.”
"16. Shortly after returning to my office from a lunch break on an afternoon in about February 1989, I discovered that a stack of documents, which had been placed in precise order, had been tampered with and were no longer in order. I simply assumed that perhaps a legal assistant needed a certain document or documents and had inadvertently disturbed the order of the documents.
The following day I was discussing work issues with Ms. Constance Brown. At the conclusion of the discussion, Ms. Brown said she sometimes felt there must be ghosts in the building because things seemed inexplicably to get mislaid or lost. She asked me if I noticed that happening to me. From this conversation, I inferred that perhaps the incident in my office the preceding day had not been as innocent as it had appeared at the time, and that someone had intentionally disturbed the documents in my office with the intent of eliciting some comment from me blaming a particular individual: the ultimate intent being an effort to adduce evidence of my “paranoia.”]
-- At some point in 1989, Freedman was assigned to work in office space shared with other legal assistants. Apparently, the legal assistants would meet in the office space for lunch and conversation. According to Freedman, their [“]conversations were often sexual in nature, and would often feature details that seemed to derive from “Freedman’s personal life expressed in double entendres. On one occasion, these legal assistants seemed to be reviewing the contents of [Freedman’s] apartment with detail and accuracy. [Freedman] noted that these conversations stopped after [he] spoke with his sister complaining of this type of interaction.[“] R. 340.
The other legal assistants also made references to Freedman’s supposed relationship with an attorney with whom Freedman had worked at the law firm of Hogan & Hartson. R. 340.
[The legal assistants in question were Stacey Schaar and Gwen Lesh, Esq. Stacey Schaar was reportedly fired for gross misconduct in about May 1990. On October 24, 1991 I reported this harassment incident about Schaar to attorney managers Race and Lassman. Akin Gump’s sworn declaration omitted the incident I reported about Schaar. The Department of Human Rights affirmed that, indeed, I reported an incident about Schaar.
The cited page of the record (340) states that Schaar made comments about my supposedly homosexual relationship with Craig Dye, a fact omitted in the Corporation Counsel’s brief. Akin Gump’s sworn declaration deceptively maintained that the issue of my sexual orientation was never raised by anyone related “directly or indirectly” with my employment.
I took Gwen Lesh to lunch (Record 188) at a Thai restaurant on P Street during the summer of 1989. This is not the typical behavior of a paranoid person in relation to his perceived persecutor.]
-- According to Freedman, at a firm dinner in May 1989, another legal assistant acknowledged hearing a rumor that Freedman was gay. R. 329, 341.
[The Corporation Counsel admits a fact flatly denied by Akin Gump’s sworn declaration, which states that the issue of my sexual orientation was never raised by anyone involved “directly or indirectly” with my employment.]
-- During the period March 20 through October 23, 1989, Freedman believes that he was being covertly observed by a computer systems manager at the law firm. According to Freedman, this individual would watch while Freedman was engaged in
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conversations with others and then go into his office and close his door to report “to a third party what he observed.” R. 341.
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conversations with others and then go into his office and close his door to report “to a third party what he observed.” R. 341.
[I asked computer systems manager Richard Stanke to go to lunch with me during the summer of 1989; we ended up never going to lunch. Record 336. This is not the typical behavior of a paranoid person relative to his perceived persecutor.
My apparent paranoia did not affect my work performance or my eagerness to socialize with coworkers. During the cited time-frame I was granted, on about August 1, 1989, a full time position with benefits. The Corporation Counsel admits that I attended a legal assistant Happy Hour (at a restaurant in Adams Morgan) in early August 1989.
Akin Gump admits that during the time frame May 1989 to October 1989 my work performance and collegiality were exemplary:
In November 1989, my then supervisor at Akin Gump, Constance Brown, wrote the following about my previous six months' work performance:
"Gary is an invaluable, dedicated and highly-motivated individual who takes pride in his work and seems to thrive on heavy volume. 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 doing so, he inspired the group who were always eager to work and adopted Gary's own sense of commitment to the case. In was Gary who had reservations about temporary help and suggested they only code standard information; and he prepared the detailed summary in order to protect the integrity of the database. Also, Gary was instrumental in redesigning the document summary form to aid in more accurate coding an data entry of document production onto the Firm's network. Gary is as capable and conscientious in digesting depositions and hearing transcripts, always staying flexible and catering to individual needs. I appreciate the job that Gary has done and look forward to other projects with Gary's help. Constance M. Brown 11/6/89" Record at 310.
-- During the summer of 1989, Freedman eavesdropped on telephone conversations of the legal assistants with whom he shared an office. Some of the conversations were sexual in nature. R. 329, 341-2.
[The Corporation Counsel has grossly oversimplified the record and omitted legally-operative facts relating to employee misconduct, and to a sexually-charged and abusive work environment. The record at pages 329-330 reads:
“11. One day during the summer of 1989, while working in office space shared with legal assistants Stacey Schaar and Gwen Lesh, Ms. Lesh had a vivid telephone conversation with her brother about a sexual encounter he had had the previous evening with a female. She said, among other things, “You used a rubber, didn’t you? You used a rubber, I hope.” Shortly after this telephone conversation, Stacey Schaar arrived in the office with Xerox copies of a newspaper article about a homosexual encounter that had allegedly occurred between an attorney in the firm’s Dallas office and a male prostitute. Ms. Schaar proceeded to distribute a copy of the article to me and others in private offices in the vicinity.”
The behavior described above tends to prove that my work environment was sexually-charged.
Stacey Schaar was reportedly fired for gross misconduct in about May 1990.
I took Gwen Lesh to lunch (Record 188) at a Thai restaurant on P Street during the summer of 1989. This is not the typical behavior of a paranoid person in relation to his perceived persecutor.]
-- At about the same time, Freedman was informed by one of the legal assistants that she and other legal assistants were afraid of him. Freedman believes that this was said to harass him. R. 276.
[The Corporation Counsel has grossly oversimplified the record and omitted legally-operative facts that tend to prove an abusive work environment.
The legal assistant in question was Stacey Schaar who was reportedly fired for gross misconduct in about May 1990.
Schaar’s exact statement (see record 276) was “We’re all afraid of you. We’re all afraid you’re going to buy a gun, bring it in and shoot everybody.” Schaar made the statement in early August 1989. Akin Gump hired me as a full-time legal assistant with benefits effective about August 1, 1989, thereby demonstrating its confidence in my suitability for employment. The Corporation Counsel would have the Court believe that there was a widespread fear among my coworkers in August 1989 that I might become armed and extremely dangerous but that those concerns would not have been brought to the attention of the firm’s supervisors and senior attorney managers -- and that I was permitted to work at the firm until late October 1991.
In fact, the literature on workplace harassment states that a typical feature of subtle job harassment known as mobbing is that the mobbers fear the employee-victim will become violent. This fact would presumably be known to a state human rights agency.]
-- 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.
[The record discloses that the attorney in question was the alcoholic husband of the firm’s legal assistant administrator, Maggie Sinnott. The Corporation Counsel admits that Sinnott frequently engaged in lewd sexual gestures directed at me. Further, the Corporation Counsel is not describing an “idea of reference,” but rather my perception of an arguably lewd gesture. The Corporation Counsel admits that I voluntarily socialized with coworkers, which controverts Akin Gump’s sworn declaration that I had difficulty communicating with my peers.]
-- Freedman believes that in early January 1990 “employees or members of the firm gained access to [his] apartment without [his] knowledge or consent. These individuals, [Freedman] believes, inspected many of the books in [his] apartment and, armed with a video camera, took a video film of [his] apartment. [Freedman] believes that a copy of that video film was sent to [his] sister. R. 344. Freedman claims that the unlawful entry into his apartment was done with the knowledge and consent of the firm’s management committee. R. 344.
[The Corporation Counsel has placed in controversy record evidence upon which a psychiatrist might diagnose the psychiatric illness delusional (paranoid) disorder. Akin Gump alleged that its psychiatric consultant described my beliefs as “ideas of reference.” My belief that the firm’s senior managers approved an unlawful entry to my residence is evidence that I believed I was a victim of a criminal conspiracy involving nationally-prominent attorneys and government officials such as Ambassador Robert S. Strauss and Vernon E. Jordan, Jr. The Corporation Counsel’s proffer misleads the Court to believe that a D.C. agency found that my employer terminated my employment on the basis of facts that might lead a psychiatrist to diagnose me with delusional psychosis.]
-- Sometime in early spring 1990, Freedman was assigned to a work station for the performance of a specified task. Upon sitting down, Freedman looked into the trash basket next to the desk and noticed that it contained a baby food jar. The jar had
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been wiped clean before being placed in the trash basket. In Freedman’s view, this fact was consistent with the jar having been brought from home by someone for the express purpose of placing it in the trash basket with the intent to harass Freedman. R. 344-5. According to Freedman, the epithet “baby” is stereotypically anti-Semitic. R. 345.
[The Corporation Counsel omits legally-operative facts. The record discloses that I believed it was my (racist) supervisor Chris Robertson who had placed the baby food jar in the trash can with the intent to harass. Perhaps significantly, I had reported this incident to Akin Gump’s senior attorneys on October 23 and October 24, 1991, but in its sworn declaration filed with the D.C. Department of Human Rights Akin Gump omitted any reference to any of the three harassing incidents relating to Robertson. The Department of Human Rights made a specific finding of fact that I lodged a harassment complaint against Robertson relating to three harassing incidents. The record discloses that Akin Gump filed its sworn declaration on May 22, 1992 that omitted any reference to my harassment complaint against Robertson. The record further discloses that about six weeks earlier, on April 9, 1992, Personnel Administrator Laurel Digweed terminated a black litigation support employee (Pat McNeil) who later filed a charge of discrimination against Akin Gump alleging that Robertson was racist and had colluded in McNeil's termination with Digweed. Akin Gump clearly had an improper motive as of May 22, 1992 to conceal the fact that I had lodged a harassment complaint against Robertson in late October 1991.
Akin Gump admits that the litigation support department was tinged with anti-Semitism. See record at 57-61.]
-- On April 13, 1990, Freedman eavesdropped on a conversation in which the legal assistant administrator gave instructions to another legal assistant concerning the bates-numbering of some documents. Freedman believes that her repeated use of the word "bates" was a reference to masturbation. R. 345.
[The Corporation Counsel omits legally-operative record evidence. The legal assistant administrator was Maggie Sinnott who the Corporation Counsel admits frequently engaged in lewd sexual gestures directed at me. The Corporation Counsel admits that Sinnott’s alcoholic husband engaged in lewd sexual gestures directed at me.]
-- During 1990, it appeared to Freedman that his coworkers were using words and phrases that he had used during private sessions with his psychiatrists. From this, Freedman infers that the psychiatrist was discussing his case with firm management. R. The psychiatrist denied that he had any communication with members of the firm. R. 345.
[Again, the Corporation Counsel is alleging that I believed I was a victim of a criminal conspiracy (namely, the violation of the confidentiality provisions of the D.C. Mental Health Information Act of 1978), and implies that a District agency found that Akin Gump terminated my employment on the basis of facts that might lead a psychiatrist to diagnose me with delusional psychosis. In fact, the Department of Human Rights found that Akin Gump terminated my employment because it believed that I suffered from “ideas of reference.”
-- According to Freedman, sometime in 1990 he returned to his desk and noticed that someone had placed a brochure for a secretarial course on his desk. “The brochure was pink in color and featured photographs of women only.” R. 331. On another occasion, someone left a clothing catalogue on Freedman’s desk. “The front cover depicted a young woman holding a little boy.” R. 331.
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[The Corporation Counsel makes an interesting omission. The record at 331 reads: “On another occasion someone had placed a Levi-Strauss catalogue on my desk. The front cover of the catalogue depicted a young women holding a little boy.”
Robert S. Strauss and Charles Levi (both Jewish) were the names of two of the firm’s senior partners. They had adjoining offices on the firm’s third floor.
The feminization of Jews can be a typical feature of anti-Semitism, a fact that should have been known to a state human rights agency.
Akin Gump admits the firm’s litigation support department was tinged with anti-Semitism. Record at 57-61.]
-- In September or October 1990, Freedman’s female supervisor, who was handing documents to him, “pulled [them] back towards herself in such a way that, as I was reaching for them, I touched her breasts.” R. 331.
[The Corporation Counsel omits a legally-operative fact. The supervisor in question was the court-adjudicated racist, Chris Robertson. I had lodged a harassment complaint against Robertson relating to three incidents of harassment but Akin Gump omitted any reference to my complaint against her. Akin Gump had an improper motive to omit any reference to Robertson in its sworn declaration filed with the Department of Human Rights on May 22, 1992. See above.]
-- Sometime in 1990, while Freedman was riding alone in an elevator with a firm partner, the attorney began to pace back and forth and whistle while glancing at Freedman. R. 353.
[The attorney in question was David Eisenstadt who was married to Akin Gump’s attorney recruiter, Nina Eisenstein. Nina Eisenstein worked closely with Dennis M. Race, the firm’s hiring partner and one of the three decisionmakers (also including Robertson and Digweed) who terminated my employment in October 1991. The Department of Human Rights made a specific finding that when I recounted this incident to Akin Gump’s attorney managers I myself questioned whether this was in fact an instance of harassment (or just peculiar behavior). Finding of Fact 4(j) at page 16 of the record. Persons with severe mental illness generally do not subject their distorted beliefs to the rigors of reality testing, but rather hold fast to their beliefs without question.]
-- In March 1991, Freedman returned to his desk and noticed that a letter opener had been inserted, blade first, into a stack of documents. Freedman believes the positioning of the letter opener “gave the impression of a symbolic stabbing.” R. 346-7.
[The incident may be evidence of a recognized form of harassment known as "gaslighting." Presumably, a state human rights agency would know about the phenomenon of gaslighting.
The account in the record is speculative but arguably shows a degree of sophistication not typical of persons with severe mental disturbance. The record reads:
“In mid-March 1991 two apparently related incidents, perpetrated anonymously, occurred on successive days. One morning, probably during the week of March 11, 1991, upon arriving at my desk on the ninth floor, I noticed that someone had taken a dagger shaped letter opener from a drawer in my desk and had positioned it with the blade inserted between the pages and had positioned it with of a bound volume of documents and with the handle protruding from the bound volume. The letter opener, positioned as it was, gave the impression of a symbolic stabbing. The next morning, upon arriving at the office, I observed that someone had strewn my desk with pieces of a paper napkin, which had been shredded into tiny bits. Also, on a piece of 8.5” x 11” paper placed on my desk, someone had written in bold, upper case letters the phrase, “WHITE TRASH.”
(The bound volume of documents in which the letter opener had been placed was a compilation of exhibits for litigation concerning a client, LL&E. The 8.5” x 11” piece of paper on which the phrase “WHITE TRASH” had been written was the reverse side of a computer printout relating to the client LL&E. At that time I was working on LL&E under the direction of Ms. Lutheria Harrison, a black employee assigned to the litigation support group. It is possible that some third party perpetrated the acts described above in an attempt to prompt me to complain to a supervisory employee or member of management, with the ultimate intent to make it appear that I harbored a racial animus against black employees. Such contrived “evidence” of a putative racial animus could then be used to counteract any allegations I might make that other employees’ harassing acts were motivated by anti-Semitism. That is, other employees could argue that my allegations of anti-Semitism were simply a projection of my own unacknowledged racial bias.)”
Akin Gump admits that the litigation support department was tinged with anti-Semitism. Record at 57-61.]
-- Sometime in April 1991, while Freedman was seated at his desk after returning from lunch, his female supervisor asked a female employee who was seated nearby, “Are you wet?” Freedman believes that the phrase “could be interpreted” as alluding to a state of sexual excitation. R. 331, 347.
[The Corporation Counsel fails to disclose that the supervisor in question was the court-adjudicated racist, Chris Robertson.
With the use of the phrase “could be interpreted” the Corporation Counsel admits that I was well aware that my beliefs were speculative. Generally, persons with severe mental illness do not acknowledge that their view of reality is subjective and speculative; rather they hold fast to their representations of reality with absolute certainty. A severely disturbed person would tend to say something such as, “She said ‘wet’ and I knew what she was talking about.”]
-- On another occasion in the summer of 1991, his supervisor, Ms. Robertson offered Freedman a piece of chocolate, and stated to Freedman “Here, you look like you need some chocolate.” R. 347. Freedman interpreted the phrase “Here, you look like you need some chocolate” as a reference to anal intercourse. R. 332.
[This incident is legally-cognizable evidence of sexual harassment and I so advised the D.C. Department of Human Rights.]
-- In early August 1991, while eavesdropping on a coworker in an adjacent cubicle, Freedman noted that the coworker was talking about her July telephone bill, emphasizing the word
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"July." Two days later "[t]his seemingly meaningless incident assumed some small measure of significance" when he overheard this same employee, who was seated at her desk, state in a "markedly audible tone of voice" the children's rhyme, "liar, liar, pants on fire." On another occasion a brief time later, Freedman heard the same employee utter the Yiddish phrase, "Oy veh." R. 348. Freedman interprets the word "July" as a homophone for the phrase "Jew Lie," and believes that these anecdotes suggest that some his his coworkers "may have had an anti-semitic animus." R. 256.
[The coworker in question was Lutheria Harrison who is referenced in the incident above that occurred in March 1991.
The Corporation Counsel admits ("his coworkers 'may have had an anti-semitic animus'") that my beliefs were speculative and not fixed as is typical in persons with severe mental illness.
In fact, the anti-Semitic use of the word July as a homophone for the phrase Jew lie is fairly common. One would think that a state human rights agency would have been aware of that.
Akin Gump admits that the work environment in the litigation support group was tinged with anti-Semitism. Record at 57-61.]
-- On the afternoon of October 2, 1991 Freedman met with a female legal assistant in a private office. He was seated in front of her desk and the female employee was in back of it, but leaning over it, supporting her torso with her elbows. According to Freedman, as she was reviewing Freedman's work, she gyrated her hips and rubbed her pelvic region against the desk in a "sexually suggestive manner while simultaneously expressing her work-related comments in the form of double entendres." R. 332, 349.
[In November 1991, a few weeks after I was terminated, I visited the Equal Employment Opportunity Commisson headquarters (in Washington, DC), and spoke with an investigator named Franklin C. Jones about the job harassment I experienced at Akin Gump. I had hoped to file a complaint with the EEOC. When I recounted the above incident Franklin Jones said that it constituted prima facie evidence of sexual harassment. (It was Franklin Jones who referred me to the D.C. Department of Human Rights, explaining that perceived sexual orientation is not a protected class under Title VII, the federal anti-discrimination statute.)
A few historical facts, of which a finder of fact might take judicial notice, are the following. As of October 2, 1991, the Senate Judiciary Committee was conidering the nomination of former EEOC Chairman Clarence Thomas to the post of associate justice of the U.S. Supreme Court. Justice Thomas was alleged to have sexually harassed an employee at the EEOC named Anita Hill. One of Anita Hill's witnesses was law professor Catherine MacKinnon, from the University of Michigan Law School (who incidentally, was at one time engaged to marry Freud scholar Jeffrey M. Masson). Record evidence discloses that I referred to Clarence Thomas during my meeting with Earl L. Segal, Esq. on the afternoon of October 23, 1991.
As of October 2, 1991 I worked with the female harasser on a project for the client Hoechst-Celanese for an Akin Gump associate named Katherine MacKinnon (who was young and attractive). Katherine MacKinnon worked on Hoechst under billing partner David P. Callet.
Non-record evidence discloses that the female harasser was keenly interested in the Thomas confirmation hearings, and, in fact, had brought in a portable TV from home to watch the hearings while she was working. I specifically recall that on one occasion the female harasser noted the coincidence that law professor Catherine Mackinnon had the same name as Akin Gump associate Katherine MacKinnon. I specificaly recall responding: "Yea. But our Katherine spells her name with a "K" not a "C."]
3. The Department’s Investigation and Decision
After filing his charge, Freedman supplied the Department with numerous letters, memoranda, charts, and other information detailing the incidents described above to support his allegation of harassment. See, e.g., R. 68-72, 101-104, 326-68, 452-54, 463-67, 511-19, 521-23, 525-26, 527-32. The Department issued a
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10-page, single-spaced decision discussing Freedman’s allegations but finding that they did support his claim. R. 11-20.
“There is no credible evidence in the record that Respondent terminated Complainant because of his sexual orientation or that Complainant was harassed because of his sexual orientation. Complainant’s perception of activity in his work environment in this matter is so hypersensitive that it triggered Respondent’s concern about his mental health as well as concern about his daily interactions with his coworkers. Respondent’s actions were based on Complainant’s own statements along with those of his coworkers and the consulting mental health professionals. . . . Respondent has submitted legitimate business reasons for its actions which have not been found to be pretext.” R. 20-21
After receiving this decision, Freedman submitted to the Department a 21-page application for reconsideration (with 25 additional pages of exhibits) in which he challenged several of the Department’s factual determinations. R. 21-46. The Department issued a 9-page, single-spaced ruling that carefully considered each of Freedman’s arguments but concluded that he had offered “nothing to convince us that the Initial Decision was incorrect.” R. 1-9.
4. The Superior Court’s Decision
In his “Petition for Review of Agency Decision” filed with the Superior Court, Freedman raised the same arguments presented to the Department on his application for reconsideration. Compare Rec. at 2-5 with R. 21-46. As did the Department, the Superior Court determined that Freedman’s arguments were either
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based on a misreading of the Department’s ruling or that the Department had properly rejected them.
[Note that under District law, as interpreted by prior decisions of the D.C. Court of Appeals, judicial review of a Department of Human Rights no probable cause finding is limited to the agency decision only; the intermediate judgment and opinion of the D.C. Superior Court has no legal meaning. Citation? The Superior Court decision in this matter is legally irrelevant and carries no legal weight in the Court of Appeals.]
SUMMARY OF ARGUMENT
The finding of no probable cause by the Department of Human Rights was neither arbitrary, capricious an abuse of discretion, nor inconsistent with applicable law. Evidence that Freedman received favorable performance evaluations during his employment does not render arbitrary or capricious the Department’s finding that Freedman’s employer acted out of a genuine concern that he could not work well with other people and presented a risk of violent behavior. Much of the information that gave rise to those concerns became known to the individuals who made the decision to terminate him long after the evaluations were made, and the decision was based on additional information not known to the evaluators. Review of the incidents that Freedman relies on to establish harassment confirms that the Department reasonably found them to be too trivial to constitute substantial evidence of bias on the part of Freedman’s supervisor and co-workers. The Department’s conclusion that Freedman’s employer relied on information obtained from those individuals in making its decision was not arbitrary or capricious. The Department’s finding that the employer relied on advice from mental health professionals in making the decision to terminate his employment was not rendered arbitrary or capricious by Freedman’s proffer of evidence that those professionals did not have records showing his name, because the employer acknowledged that
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Freedman was not identified by name in those consultations. In sum, Freedman has shown no error in the Department’s consideration of his allegations of discrimination or of the evidence he proffered in support of his claim, and its finding of no probable cause therefore must be upheld.
ARGUMENT
I. THE DEPARTMENT’S FINDING OF NO PROBABLE CAUSE MUST BE UPHELD UNLESS FOUND TO BE ARBITRARY, CAPRICIOUS, AN ABUSE OF DISCRETION OR OTHERWISE NOT IN ACCORDANCE WITH THE LAW.
The Department of Human Right’s determination that there is no probable cause to believe that Freedman had been discriminated against can be set aside only it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” See Simpson v. D.C. Office of Human Rights, 597 A.2d 392, 406 (1991). 6/ Review of the Department’s decision must start from “the premise that the agency’s decision . . . is presumed to be correct, so that the burden of demonstrating error is on the appellant or petitioner who challenges the decision,” Cohen v.
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6/ This Court in Simpson did not settle on the precise wording that describes the standard to be used in the review of agency findings of no probable cause. In that case, the District argued that the standard was “arbitrary, capricious, or an abuse of discretion.” See Simpson, 597 A.2d at 406. Simpson contended that the standard was “arbitrary, capricious, or an abuse of discretion, or otherwise not in accordance with the law.” Id. (emphasis added). This Court noted that Simpson’s articulation seemed reasonable but declined to definitively adopt it, finding that the issue was not material to the resolution of that case. Id. It is unclear whether or to what extent the parties were proposing materially different standards. As was the case in Simpson, the result in the case at bar will not turn on which wording is used -- the Department’s determination should be affirmed “under any reasonable standard.”
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Rental Housing Comm’n, 496 A.2d 603 (D.C. 1985). See also Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 103 S.Ct. 2856 (1983) (under arbitrary and capricious standard court may not substitute its judgment for that of agency); Steel Mfrs. Ass’n v. Environmental Protection Agency, 27 F.3d 642, 307 U.S. App. D.C. 192 (1994) (in assessing whether agency decisions are arbitrary and capricious, court must afford agency “significant leeway” and may not substitute its judgment for that of agency but shall require “only that the agency’s decisions reflect represented decision making”).
In this case, the Department reviewed Freedman’s allegations, made particularized findings of fact, and determined that there was no probable cause to believe that he had been discriminated against by his employer based in his sexual orientation. R. 11-20. The Department gave similar careful consideration to Freedman’s petition for reconsideration, but again concluded that the evidence did not support the charge. R. 1-9. Both the original decision and the decision on reconsideration show that the Department’s conclusion was neither arbitrary nor capricious but rather reflect its careful evaluation of the evidence against proper legal standards. Similarly, nothing in Freedman’s submissions suggests that the Department abused its discretion in any respect or that its conclusion was not in accordance with applicable law.
The arguments that Freeman advanced before the Superior Court and again here are either identical to those presented to
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the Department, or are minor variations on those arguments. As discussed below, however, those arguments fail to establish any error or deficiency in the department’s ruling. Freedman seeks to have the Court substitute its judgment for that of the Department, and this Court’s precedents make clear that such a request is improper.
II. THE DEPARTMENT DID NOT FAIL TO CONSIDER OR PROPERLY EVALUATE THE EVIDENCE.
Freedman bases his challenge to the Department’s ruling on essentially three arguments. Reduced to its essence, his first argument appears to be that the Department could not rationally find his employer’s reasons for terminating him to be credible in light of the uniformly laudatory performance evaluations he received during his employment (Brief of Appellant at 12-26). His second argument appears to be that the comments of his supervisors and co-workers on which the employer relied in deciding to terminate him were biased and retaliatory (Brief of Appellant at 27-34). His third argument appears to be a challenge to the validity of the employer’s claim to have relied on the advise of professional medical counselors in evaluating his belief and deciding to terminate him (Brief of Appellant at 34-40 and 41-46). None of these arguments provides this Court with sufficient grounds to set aside the Department’s finding of no probable cause.
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A. The Department’s Finding That Freedman Received Favorable Performance Evaluations Is Not Inconsistent With Its Conclusion That He Was Terminated For Non-Discriminatory Reasons.
Although Freedman’s arguments overlap to some extent, the essential point of his first argument (Brief of Appellant at 12-26) seems to be that because his employer did not find fault with him prior to his meeting with management attorneys on October 23 and 24, 1991, to complain about harassment, his termination a few days later must have been based on his sexual orientation. The Department was unquestionably aware of this argument: it made an express finding that his performance evaluations over the course of his employment had been either above average or outstanding. R. 12. Indeed, the Department implicitly gave Freedman the benefit of this finding in ruling that he had made out a prima facie case. Nevertheless, the Department correctly found that the decision to terminate Freedman was predicated on concerns raised by Freedman’s own recitation of the incidents that he alleged constituted harassment, which led his employer to interview Freedman’s co-workers and to consult with mental health professionals. “That concern coupled with the advice of mental health professionals that Complainant needed counseling and that according to one professional could engage in violent behavior, was sufficient grounds for Complainant’s termination.” R. 19. 7/
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7/ The Department also found “There is no credible evidence in the record that Respondent terminated Complainant because of his sexual orientation or that Complainant was harassed because of his sexual orientation.” R. 19. Thus, even had the employer’s reasons been pretextual, there still would have been no basis to infer discrimination. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).
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Freedman’s reliance on his performance prior to his employer’s investigation of his allegations is thus misplaced. Freedman was not terminated because of poor performance, he was terminated because of legitimate concerns about his past and potential future behavior toward his co-workers. Even if the evidence showed that Freedman’s employer knew of his sexual orientation at the time the decision was made to terminate him, that knowledge, without more, does not establish that the decision was based on that information. The Department correctly found that the evidence did not support Freedman’s claim that he had been terminated because of his sexual orientation.
REALITY CHECK:
1. My performance evaluations rated both my work performance and my conduct as an employee. Any statement or implication that the performance evaluations did not rate my conduct and ability to work with peers is ludicrous. The absence of evidence in the performance evaluations that I had difficulty working with peers is not evidence that the performance evaluations did not rate my collegiality; rather, the absence of evidence of bad conduct in the performance evaluations throughout my tenure means that I did not engage in any bad conduct throughout my tenure.
2. The Department’s Finding of Fact 4 found that I suffered from “ideas of reference” from March 4, 1988 until October 2, 1991 (virtually my entire tenure), a disorder that, according to Akin Gump, rendered me unsuitable for employment and potentially violent. By Akin Gump’s criteria I was not employable the entire time I was employed at the firm. The irrationality of that proposition renders Akin Gump's stated reasons for the termination "not worthy of credence" under Burdine.
3. My personnel file did not contain a record of any reprimands oral or written. During the three and one half years (March 1988 to October 1991) that according to Akin Gump I suffered from a psychiatric disorder that rendered me potentially violent I had never committed a violent act, engaged in a fight, or had a disruptive argument with a coworker.
4. The Department’s finding that I was not terminated because of my sexual orientation is a clear error in light of the fact that the Department found that I advised Akin Gump of my sexual orientation on October 23, 1991 while Akin Gump’s sworn production states categorically that I had never raised the issue of my sexual orientation at any time during my tenure. Clearly, Akin Gump lied in its sworn production when it denied I had advised the employer of my sexual orientation. Akin Gump denied it knew I was a member of a protected class under the D.C. Human Rights Act of 1977. The Department's failure to find that Akin Gump's lie tainted the employer's proffered reason for the termination pretextual was contrary to law.
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The following timeline, based on facts not controverted by the Corporation Counsel, indicates the absurdity of the District's argument.
a. I started working at Akin Gump as an agency-supplied temp on about March 3, 1988.
b. Throughout the period March 4, 1988 to October 2, 1991 I exhibited the psychiatric disorder "ideas of reference," which, according to Akin Gump, rendered me not suitable for employment and potentially violent.
c. Throughout my employment I received laudatory performance evaluations (in the custody of Personnel Administrator Laurel Digweed) that did not record any bad conduct despite the fact that according to Akin Gump I suffered from a psychiatric disorder that rendered me potentially violent and not suitable for employment throughout my tenure. Digweed was named by the firm as one of the three decisionmakers who terminated my employment effective October 29, 1991.
d. My personnel file (in the custody of decisionmaker Digweed) did include any reprimands (oral or written) for bad conduct at any time during my tenure despite the fact that according to Akin Gump I suffered from a psychiatric disorder that rendered me potentially violent and not suitable for employment throughout my tenure.
e. There is no documentation of any bad conduct throughout my tenure. The first document critical of my conduct came into existence only after I lodged a harassment complaint on October 23-24, 1991.
f. I lodged a harassment complaint against my direct supervisor Robertson (and other firm personnel) on October 23 and October 24 1991.
g. Robertson wrote a seemingly retaliatory memo about me on October 24, 1991 and prepared a seemingly retaliatory performance evaluation. Robertson was named by the firm as one of the three decisionmakers who terminated my employment effective October 29, 1991. Dennis Race prepared a memo to his file dated October 29, 1991 that states that his investigation of my harassment complaint disclosed that my behavior was disruptive and bizarre, but does not identify any complaining parties by name and does not cite any specific incidents. These three documents -- all written after October 23, 1991-- are the only contemporaneous documents alleging that I engaged in bad conduct: two documents prepared by Robertson (against whom I had lodged a harassment complaint) and one document prepared by Race who lied when he advised the Department of Human Rights that he had no knowledge of my sexual orientation and who invidiously failed to advise the Department of Human Rights that I had lodged a harassment complaint against my supervisor, Robertson.
h. The firm terminated my employment effective October 29, 1991.
i. On May 22, 1992 Akin Gump filed a sworn declaration with the Department of Human Rights alleging that it had determined in consultation with mental health professionals, including practicing psychiatrist who did personally examine me, that I suffered from a "disorder" that caused me to attach a negative meaning to trivial events and that rendered me potentially violent. The sworn declaration does not cite a single instance of bad conduct, but alleges retroactively that an investigation in late October 1991 by Dennis Race disclosed that some of my coworkers viewed my behavior as disruptive and bizarre. Akin Gump did not identify any of these individuals -- even after the Department of Human Rights expressly asked Akin Gump to do so. The sworn declaration filed by Dennis Race (one of the three decisionmakers who terminated my employment) fails to indicate that I had lodged a harassment complaint against my supervisor Robertson, thereby denuding Robertson's seemingly retaliatory acts of any retaliatory animus.
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B. The Department's Finding That Freedman Was Not Harassed Because Of His Sexual Orientation Was Not Arbitrary or Capricious.
Freedman’s second argument (Brief of Appellant at 27-34) seems to be that the comments of his co-workers on which his employer relied in making its decision were biased, and again he points to the favorable evaluations as evidence that his employer’s concerns about his ability to work well with people could not have been legitimate. The Department rejected this argument, stating that Freedman’s “perception of activity in his work environment in this matter is so hypersensitive that it triggered Respondent’s concern about his mental health as well as concern about his daily interactions with his coworkers.” R. 19.
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The Department also stated that it did not believe that you can “make a hostile work environment out of incidents such as an empty baby food jar in a waste basket, an offer of a piece of chocolate, a question to a third person returning from lunch 'are you wet' or the remark of a non Jewish coworker stating “Oy veh” when entering a staff meeting." Id.
A review of Freedman’s litany of alleged harassment confirms the Department’s view that the incidents on which he relied were trivial, and reflected over-sensitivity on his part rather than intolerance on the part of his co-workers. The fact that these incidents came to his employer’s attention only after he complained in no way supports his argument that the employer’s reliance on them was improper. Freedman himself was the one who brought them to the attention of the managing attorneys. His co-workers only described their own experiences with him, and those descriptions merely confirmed the impression of over-sensitivity created by Freedman’s own recitation of events. Although Freedman may have honestly believed that everything that happened to him had sexual overtones, the nature of the evidence precludes a finding that the Department’s contrary conclusion was in any way arbitrary or capricious.
Freedman also argues that his supervisor retaliated against him based on his complaint of harassment. See Brief of Appellant at 27-30. It bears noting that the complaint filed with DHR alleged discrimination based on sexual orientation, not retaliation -- hence DHR was not required to make a specific
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finding on this claim. Technical requirements aside, the retaliation issue appears to be subsumed in the harassment claim in any event. With respect to the actions taken by the employer after Freedman complained to members of the firm, the Department considered the assertions offered by Freedman and his former employer concerning how the firm’s attorneys responded to the harassment allegations once they came to light. R. 12-17. Accordingly, the issue of retaliation was fully considered by the Department in reaching its finding of no probable cause.
REALITY CHECK
1. 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.
One of the leading figures in mobbing research, Heinz Leymann, drew up a bibliography of publications pertinent to understanding the phenomenon; papers published before my job termination are listed below:
Bachrach, P. & Baratz. M. 1962: The two faces of power. American Political Science review 56: 947-52.
Brodsky, C. M. (1976): The harassed worker. Lexington: Lexington Books.
This was the first book ever to deal with mobbing/harassment in the workplace. In 1976, unfortunately, the author was not yet able to differ between what today is called mobbing and other topics, such as industrial accidents, stress due to heavy work loads, chemical pollution in the workplace etc. The author looked at the stressed worker as being a victim of his own powerlessness. Because of poor discrimination between workplace problems of various sorts, this book never made any impression. Nevertheless, this is the first time that some mobbing cases were published.
Jones, Edvard E. (1984): Social stigma - The psychology of marked relationships. New York: W. H. Freeman.
Karasek, Robert. & Theorell, Töres. (1990): Healthy work: Stress, productivity and the reconstruction of working life. New York: Basic Book.
Lazarus, Richard S. & Folkman, Susan. (1984): Stress, appraisal and coping. New York: Springer Publishing Company.
Leymann, Heinz. (1990): Mobbing and psychological terror at workplaces. Violence and Victims, 5. (2).
The first publication in the USA on mobbing.
Leymann, Heinz & Kornbluh Hy. (1989): Socialization and Learning at Work. A new approach to the Learning Process in the Workplace and Society. Aldershot Hants: Gower Publishing Avebury.
Toohey, John. (1991): Occupational stress. Managing a metaphor. Sydney: Macquarie University.
Walton, Richard E. (1969): Interpersonal peacemaking: Confrontations and third party consultation. Reading: Addison- Wesley.
(Non record evidence discloses that Akin Gump's reported psychiatric consultant, Gertrude R. Ticho, M.D., was an expert in creativity studies, a field that recognizes that some individuals (namely, creative individuals) can be especially sensitive to subtle or implied messages such as those communicated in a mobbing environment.)
2. “The fact that these [allegedly harassing] incidents came to his employer’s attention only after he complained in no way supports his argument that the employer’s reliance on them was improper. Freedman himself was the one who brought them to the attention of the managing attorneys.” The Corporation Counsel’s statement suggests some confusion about Title VII. On October 23, 1991 I met with Earl Segal, the partner in charge of the legal assistant program, to request a private office and a promotion to the legal assistant program. My intent was not to lodge a formal harassment complaint, though I did mention a few incidents to bolster my request for transfer and assignment to a private office. Under Title VII Segal was legally required to institute a formal inquiry. Accordingly, I was instructed to meet with Dennis Race and Malcolm Lassman, on their initiative, the following morning, October 24, 1991. The fact that I instituted a formal complaint with the firm did not reflect my desire to bring the incidents “to the attention of the managing attorneys." Rather, my meeting with Race and Lassman, at their insistence, at which I was directed by the attorney managers themselves to detail my beliefs, reflected the requirements imposed by Title VII and not the urgency and weight of my concerns.
3. “His co-workers only described their own experiences with him, and those descriptions merely confirmed the impression of over-sensitivity created by Freedman’s own recitation of events.”
-- Akin Gump did not produce the names of any employees who complained about me. Akin Gump admitted in response to a Department of Human Rights interrogatory that it did not take any formal statements from any employees.
-- Akin Gump’s sworn declaration does not cite a single incident of disruptive or unprofessional conduct.
-- Akin Gump did not allege, and in fact did not, provide me an opportunity to respond to purported complaints lodged against me by coworkers.
-- The law recognizes that in a hostile work environment case, a harassment complaint will more likely than not yield diametrically opposed statements from the complaining employee and the alleged offending supervisor and co-workers. See, e.g., Jeppsen v. Wunnicke, 611 F.Supp. 78, 82 (D.C. Alaska 1985). Akin Gump's attorney managers had to have known that an employee-victim who lodges a harassment complaint will provoke negative appraisals from harassers and those who side with them.
4. “Freedman also argues that his supervisor retaliated against him based on his complaint of harassment. See Brief of Appellant at 27-30.” Notice how the Corporation Counsel tap dances around the issue of pretext.
-- The Corporation Counsel omits the fact that the supervisor in question, Robertson, was one of the three individuals designated by Akin Gump as decisionmakers who terminated my employment. Record 167. These individuals were my direct supervisor Robertson, the Personnel Director Digweed, and the hiring partner, Dennis M. Race.
-- As a matter of law evidence probative of the actual decisionmaker’s motives is relevant to prove pretext. See Lindsey v. Baxter Healthcare Corp., 757 F. Supp. 888, 896 (N.D. Ill, 1991); accord, Slade v. Billington, 700 F.Supp. 1134, 1142, 1149-1150 (D.D.C. 1988), aff’d, 871 F.2d 155 (D.C. Cir. 1989); Hardy v. Marriott Corp., 670 F.Supp. 385, 392-393 (D.D.C. 1987).
--Evidence of Robertson’s motives that taints her termination decision as pretextual are the following:
A.) Robertson wrote a retaliatory memo to Race after I lodged a harassment complaint against her;
B.) Robertson prepared a performance evaluation critical of my conduct after I lodged a harassment against her. The performance evaluation was never shown to me for signature and was therefore invalid per the firm’s own protocol; and
C.) Robertson advised her employees, a brief time after my termination, that she feared I might return to the firm to kill her, and, in a self-serving gesture, had the firm change the lock to the litigation support suite to prevent my entry.
--Evidence of Digweed’s motives that taints her termination decision as pretextual is the following:
A.) Digweed affirmed a termination decision predicated in part on reports by coworkers that I had a past history of difficulties in working with others: concerns that emerged only after I lodged a harassment complaint against Robertson (and others) and which concerns about my past conduct and ability to work with others were controverted by my personnel file (a memorial of my past conduct), of which Digweed was custodian.
-- Evidence of Race’s motives that taints his termination decision as pretextual are the following:
A.) Race deliberately lied to the Department of Human Rights that he was unaware of my sexual orientation even after I lodged my harassment complaint on October 23, 1991; and
B.) Race invidiously denied that I had lodged a harassment complaint against my direct supervisor Robertson in the firm’s sworn declaration to the Department of Human Rights thereby denuding Robertson's retaliatory memo of its retaliatory animus.
C. The Evidence Does Not Cast Doubt On The Legitimacy of The Employer’s Reliance On Advice Obtained From Mental Health Professionals.
Freedman’s final argument appears to be a challenge to his employer’s claim that it sought advice from mental health professionals before deciding to terminate him (Brief of Appellant at 34-40), and relied on that advice in making its decision (Brief of Appellant at 41-46). As he did before the Department, Freedman claims that he contacted the Employee Assistance Program provider for the firm and the psychiatrist that the firm consulted, and that both the employee assistance provider and the psychiatrist denied having consulted with specific individuals at the law firm concerning Freedman. To document this claim, plaintiff submitted a letter from the employee assistance provider which states that the company had no record of being contacted by the law firm about Freedman (R. 63), and a letter from the psychiatrist to the same effect (R. 62).
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Neither document establishes that the firm fabricated evidence, as Freedman apparently believes. The attorneys who were involved in the consultations specifically noted that they did so without revealing Freedman’s identity. R. 122. Accordingly, it is neither surprising nor significant that neither the employee assistance provider nor the psychiatrist had a record relating to a consultation specifically about Freedman.
In any event, these arguments were raised with the Department, which evaluated them and found them unpersuasive. See R. 8. Under the arbitrary or capricious standard, it is not the role of this Court to weight the evidence and substitute its judgment for that of the Department. See, e.g., Puerto Rico Higher Educ. Assist. Corp. v. Rile, 10 F.3d 847 (D.C. Cir. 1993). Cf. Office of D.C. Controller v. Frost, 638 A.2d 657, 660 (D.C. 1994) (court may not reject agency findings of disputed fact based on resolution of witness credibility). Rather, the question is whether the Department failed to consider relevant factors and/or evidence. The record is clear that the Department considered the very argument raised in Freedman’s brief and articulated why it was not sufficient to overturn the no probable cause determination.
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REALITY CHECK
1. The Corporation Counsel misrepresents the record evidence relating to Akin Gump’s reported consult with the employee assistance provider. The employee assistance provider Sheppard Pratt not only stated it had no record of any communication with Lassman or Race concerning me. Sheppard Pratt also stated that its protocol does not permit the type of communication that Akin Gump alleges to have occurred. Akin Gump is implicitly alleging that a business violated its own protocol without explaining why it would do so. Sheppard Pratt policy mandates that its counselors prepare a written record--on an Employer Consultation Intake Form--of any communications with employers concerning a potential employee-client and that the record be maintained in a file of mental health information (Record 65); this policy applies even in instances in which the consultation with the employer is not “employee-specific” (Record 65). Given Sheppard Pratt’s business protocol, the absence of a record of a consult between Akin Gump and Sheppard Pratt is not evidence that I was discussed anonymously. The absence of a written record in Sheppard Pratt files (i.e., a completed Employer Consultation Intake Form) is evidence that no such consult ever occurred. This is the letter at 63-64 of the record.
Sheppard Pratt Preferred Resources, Inc.
July 14, 1993
Gary Freedman
3801 Connecticut Avenue, NW
#136
Washington, DC 20008
Dear Mr. Freedman
This letter is in response to your recent inquiry about your case file.
With regard to your question concerning EAP consultation with Akin, Gump, Strauss, Hauer & Feld:
We have no record of contact concerning you with either Dennis Race or Malcolm Lassman.
With regard to your question about Sheppard Pratt EAP's role in providing consultation to employers regarding employees whose job performance is affected by personal problems (attendance, quality/quantity of work or workplace conduct):
When an employer calls to discuss a troubled employee, we inquire about the history of documentation to determine if the employee's problem is chronic or in early stages. If the employer hasn't documented any earlier problem we suggest a statement of concern and an informal referral to the EAP. This can often prevent the problems from intensifying if the client follows up with recommendations. If the problem is chronic and there is documentation of a pattern of behavior impacting on job performance over a long period of time, we recommend a formal referral to the EAP. The purpose is to provide confidential intervention/support or accommodation to the problem which if addressed could ultimately lead to termination.
We do not tell employers to terminate employees. If an employer has months of documentation and has followed internal disciplinary procedures, i.e., providing verbal, written and suspension as counseling techniques it is the company's decision to fire for cause. Generally, employers do not call to ask EAP advice about terminating employees. They may call us to inform us about their decision if they know the employee was referred to the EAP, yet the performance problems continued over a long period of time. If we do not oppose the decision, this does not imply that we concur in the decision to terminate the employee.
Sincerely,
Suzanne Reynolds, M.A., CEAP
Assistant Director
Director -- Washington Operations
Employee Assistance Programs
SR/ab
2. Akin Gump did not identify the Sheppard Pratt employee it allegedly spoke to. In response to a specific interrogatory question, Akin Gump said it could not recall the name of the person the firm spoke to. This leads to several conclusions: either the consult never occurred; Akin Gump was shielding the counselor it spoke to because it knew that the counselor violated Sheppard Pratt policy; and/or Akin Gump did not memorialize the consult in a writing (but why would lawyers have failed to do so?).
3. The Corporation Counsel misrepresents the record evidence relating to Akin Gump’s reported consult with the psychiatrist, Gertrude R. Ticho, M.D. Dr. Ticho’s letter does not state that she had no record of a consult with Akin Gump. Rather, her letter expressly states that she had never spoken to anyone named Dennis Race.
Gertrude R. Ticho, M.D.
3120 Brandywine Street, N.W.
Washington, D.C. 20008
_____
Telephone: 202-244-2113
July 4, 1993
Dear Mr. Freedman,
When you called me on the morning of July 2, 1993 you asked me two questions, which I promised to answer in writing.
1.) I never met, nor have I ever spoken to a Mr. Dennis R. Rice [sic].
2.) I do not know your identity, Mr. Gary Freedman nor have I ever seen you for a diagnostic evaluation.
Sincerely,
Gertrude R. Ticho, M.D.
[Record on appeal at 62, Freedman v. D.C. Dept. Human Rights, D.C.C.A. 96-CV-961 (Sept. 1, 1998)]
4. Akin Gump’s sworn declaration states that Race and Lassman spoke to Dr. Ticho in a telephone conference call. Dr. Ticho expressly denied speaking to Race. (I did not ask Dr. Ticho if she had ever spoken to Lassman; she had no reason to deny she spoke with him). The Department of Human Rights finding that Dr. Ticho might have spoken with someone other than Race (Record 8) is rank speculation directly controverted by Akin Gump’s sworn production and is therefore arbitrary and capricious.
5. Akin Gump alleges that it spoke with Dr. Ticho, a practicing psychiatrist, without mentioning my name. Under the American Psychiatric Association’s professional rules of ethics a psychiatrist may not offer a professional psychiatric opinion about someone without first having examined the individual personally, and then only if the individual consents to the publication of the opinion. I did not personally consult Dr. Ticho. Akin Gump's attorney managers (who are themselves licensed professionals) are alleging that a psychiatrist violated the canons of her profession without explaining why she did so and the firm is alleging that a psychiatrist offered a professional psychiatric opinion about me that would be considered inherently unreliable by the American Psychiatric Association.
6. Note that the Corporation Counsel is placing its imprimatur on a professional psychiatric opinion that the Office knew or should have known was inherently unreliable and that was offered in violation of the Code of Ethics of the American Psychiatric Association. The Office knew or should have foreseen that anyone, such as the Social Security Administration, who justifiably relied on the imprimatur of the Office of Corporation Counsel would be a victim of fraud.
CONCLUSION
Based on the foregoing, this Court should affirm the Superior Court's conclusion that the Department's finding of no probable cause was correct.
Respectfully submitted,
JO ANNE ROBINSON
Interim Corporation Counsel, D.C.
[s]__________________
CHARLES L. REISCHEL, #116681
Deputy Corporation Counsel
Appellate Division
Office of the Corporation Counsel
441 Fourth Street, N.W.
One Judiciary Square
Washington, D.C. 20001
Tel: 727-6252, Ext. 3301
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was mailed, postage prepaid this 25th day of July, 1997, to Gary Freedman, 3801 Connecticut Ave., N.W. Apartment 136, Washington, DC 20008.
[s]
__________________________
CHARLES L. REISCHEL
Deputy Corporation Counsel
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