Akin Gump: Final Agency Action

GOVERNMENT OF THE DISTRICT OF COLUMBIA
DEPARTMENT OF HUMAN RIGHTS AND MINORITY BUSINESS DEVELOPMENT

IN THE MATTER OF:

GARY FREEDMAN, Complainant
3801 Connecticut Avenue, N.W.
#136
Washington, D.C. 20008

v.

AKIN, GUMP, HAUER & FELD, Respondent
1333 New Hampshire Ave., N.W.
Washington, D.C. 20036

DETERMINATION ON RECONSIDERATION

The Department of Human Rights and Minority Business Development (“the Department”) has completed its Reconsideration of the subject complaint. Having considered the entire record herein, and pursuant to the District of Columbia Human Rights Act of 1977, D.C. Code Ann., Sections 1-2501, et seq. (Repl. Vol. 1987) (“the Act”), and Section 719 of the Rules Governing Procedure and Practice for Private Sector Complaints Alleging Unlawful Discriminatory Practices, 33 D.C. Reg. 6909, 6918 (1986), the following determination is issued on behalf of the Department.

When we refer to the Complainant in this Determination, we are referring to Mr. Gary Freedman, and when we refer to the Respondent we are referring to the law firm of Akin, Gump, Hauer & Feld.

II. PROCEDURAL POSTURE OF THE CASE

Complainant filed a charge of discrimination based on sexual orientation (homosexual) with the Department on February 4, 1992 against his employer, the law firm of Akin, Gump, Hauer & Feld. The Department issued a NO PROBABLE CAUSE DETERMINATION on June 30, 1993. The Complainant’s Request for Reconsideration of the Department’s Determination was received on July 27, 1993.

III. STATEMENT OF THE CASE

Complainant charged that the Respondent subjected him to unfair terms and conditions of employment based on his sexual orientation (homosexual). In addition, Complainant alleged the following:

1. That he was hired by Respondent on June 13, 1988 as a Legal Assistant;

2. That during his tenure with Respondent he always received outstanding performance evaluations;

3. That during his tenure he was subjected to harassment because of his sexual orientation; That in October, 1991 he complained to Respondent about being harassed; and

4. That Respondent ultimately terminated him from his position as a Legal Assistant on October 31, 1991.

Respondent denies discriminating against Complainant because of his sexual orientation (homosexual) and denies that Complainant was terminated because of his sexual orientation. Respondent states that Complainant was terminated because of his own emotional problems that adversely affected his work. Further, Respondent stated that Complainant’s behavior had been disruptive with occasional violent outbursts that frightened his co-workers.

IV. FINDINGS OF FACTS

The Findings of Fact in the initial Letter of Determination are hereby adopted for this decision, and incorporated by reference as if set forth separately in this Determination on Reconsideration.

V. DETERMINATION

Section 719.1 of the Department’s Rules Governing Procedure and Practice for Private Sector Complaints Alleging Unlawful Discriminatory Practices, 33 D.C. Reg. 6909, 6918 (1986) limit’s the grounds upon which reconsideration may be based to: new evidence, misapplication of law, or misstatement of material fact.

Complainant states that he bases his Request for Reconsideration on the grounds that the Department’s Determination, specifically its Findings of Facts 2 through 7, are based on misapplication of law, misstatement of material facts, and the production of new evidence. Specifically, Complainant asserts the following:

1. That DOHR’s enumeration of Complainant’s Performance Evaluations in its Finging of Fact No. 2 omits a material fact relating to the issue retaliation;

2. That evidence of Complainant’s consultations with mental health professionals in DOHR’s Finding of Fact No. 3 is not factually material on the issue of whether Complainant was suitable for employment since there is no evidence that such consultations figured in Respondent’s decision to terminate;

3. That DOHR’s Finding of Fact No. 4 that Complainant met with Respondent’s attorney managers Earl Segal, Malcolm Lassman, and Dennis Race together on October 23, 1991 and that all three managers found Complainant’s complaint of harassment incredible is a misstatement of material fact;

4. That DOHR’s Finding of Fact No. 5 concerning Respondent’s investigation of Complainant’s allegations of harassment omits material facts relating to acts of retaliation by Complainant’s supervisor and therefore constitutes a misapplication of law, and new evidence indicates that Complainant’s supervisor had a propensity for making defamatory -- even bizarre -- statements about Complainant, solely calculated to damage Complainant’s reputation;

5. That DOHR’s Finding of Fact No. 6 is unsupported by any credible evidence that Respondent sought outside professional guidance with respect to its termination decision and a decision to terminate Complainant based on such fabricated evidence is evidence and that Respondent’s stated justification for the termination was pretextual in violation of the Act, and the ADA, 42 USCA Section 12112(a); and

6. That DOHR’s Finding of Fact No. 7 that there is no evidence in the record that Complainant ever told Respondent that he was a homosexual or that he was being harassed prior to October 23, 1991 is immaterial in light of new evidence that Respondent’s termination decision was pretextual, constitutes a misstatement of material fact, and involves misapplication of law.

The issue for Reconsideration in the instant case is whether the Department’s conclusion based on the evidence and application of law followed rationally from the material contested issues of fact. In addition, the Department must determine 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. Specifically, whether the omitted facts would have assumed actual significance warranting a different determination.

The order and burden of proof to be applied under the Act to cases of employment discrimination is the general standard enunciated by the Supreme Court in McDonnell Douglas v. Green, 93 S.Ct. 1817 (1987). Under the McDonnell Douglas standard, the plaintiff in an employment discrimination case has the burden of first establishing a prima facie case of discrimination. Id. At 1824. If the plaintiff succeeds in this endeavor, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for taking the questioned employment action. Id. The Court further determined that the inquiry did not end here; courts must also look to whether the employer is using the employee's conduct as a pretext for actual discrimination. Id. at 1825. Direct proof of discrimination is not required at this initial stage. All that is needed is that the Complainant establish facts adequate to permit an inference of discriminatory motive. Thompson v. Int’l Ass’n of Machinists and Aerospace Workers, 614 F.Supp. 1002 (D.D.C. 1985). See also Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).

The latter inquiry stated in McDonnell Douglas regarding pretext was explained further in Burdine. If the employer succeeds in carrying its burden of production, the burden shifts back to the plaintiff-employee to prove that the employer’s stated reasons for the action are pretextual, or unworthy of credence. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-56 (1981). At this pretext stage, the plaintiff’s burden merges with his ultimate burden of proving that he has been the victim of unlawful discrimination. Id. At 256. See also U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983). Moreover, the employer’s burden to articulate is satisfied by setting forth, through admissible evidence, the reasons for making the decision the Complainant alleges is discriminatory. Burdine, 450 U.S. at 255. This burden may be satisfied by the Respondent’s production of evidence which provides a factual basis for its decision. Id. at 255-56.

The decision in McDonnell Douglas thus provides the general formula for establishing a prima facie case under Title VII of the Civil Rights Act of 1964, 43 U.S.C. Sections 2000e, et seq. (1982). This general formula requires that the Complainant establish that (1) he belongs to a protected group; (2) he was qualified for the job that is the subject of the complaint; (3) he was adversely treated in that he was rejected as an applicant or that he was adversely affected by some other personnel action; and (4) the employer treated others not in the Complainant’s protected class differently from Complainant. McDonnell Douglas, 93 S.Ct. at 1824.

In the Letter of Determination, the Department concluded that, with respect to all allegations, the Complainant had established a prima facie case of harassment and discrimination based on his sexual orientation. In adopting the standard applied in McDonnell Douglas, the Department determined that the Complainant was a member of a protected category under the Act (sexual orientation-homosexual). He was also qualified for the position that he held as a Legal Assistant and he was satisfying the normal requirements of the job. Further, the Complainant was adversely treated in that he was terminated, and there were others treated differently.

The Department next considered the shifting burden of proof that is required in analyzing discrimination case. The initial Determination calculated that Respondent had provided a legitimate nondiscriminatory reason for its actions. The alleged reason was Respondent’s concern about Complainant, given the nature of the ten enumerated incidents of harassment alleged by Complainant which are set forth in the Findings of Fact, coupled with information and advice from Complainant’s co-workers. The Department initially concluded that statements by the Respondent satisfied its burden of providing a legitimate nondiscriminatory reason of its actions. The Department recognized that the Respondent need not persuade us that it was actually motivated by this proferred reason. Burdine, 450 U.S. at 254. It is sufficient that the Respondent raises a genuine issue of material fact as to whether it discriminated against the Complainant. Id. at 254-55.

The Department found that the Respondent’s actions were not pretextual. This Determination was based, first, on the lack of evidence in the record that would indicate that Respondent had any knowledge of Complainant’s sexual orientation prior to his complaints on October 23, 1991. [What about the fact that Akin Gump lied when it denied it was ever aware that I was a member of a protected class?] While it is true, as stated by Complainant in his Request for Reconsideration, that a memorandum dated October 25, 1991 made reference to complaints by Complainant regarding harassment there is no evidence (new or otherwise) presented that Complainant had notified Respondent, or his representative(s), prior to October 23, 1991 of being harassed or that he had previously notified Respondent, or his representative(s) that he was homosexual.

Secondly, the Department found that Respondent’s concern for the Complainant was based on the nature of the ten incidents Complainant submitted that he perceived as harassment. The details of these ten incidents are set forth in the Findings of Facts. 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 Respondent’s action to terminate Complainant.

We agree with the Initial Determination that there is insufficient evidence on the record to support a finding of PROBABLE CAUSE that Respondent terminated Complainant because of his sexual orientation or that Complainant was harassed because of his sexual orientation. We agree that Complainant’s perception of the events and activity giving rise to what he felt was harassment was based, in part, on Complainant’s hypersensitivity to his environment and goings-on in the work place, as is further supported, in our opinion, by Complainant’s preference to work in isolation.

Respondent’s actions were based on several compounding factors: Complainant’s own statement, those of his co-workers, and statements and input from consulting mental health professionals. It is our finding that the Department’s conclusions, based on the evidence and applicable law, followed rationally from the material contested issues of fact.

When reviewing Complainant’s Request for Reconsideration, and the bases therefor and assertions therein made, there is no, per se, material new evidence being presented, and any misstatement of fact or omissions of material facts, e.g., the dates when all three of Respondent’s attorney managers Earl Segal, Malcolm Lassman, and Dennis Race met together, or in the Department’s omission of other performance evaluations which were written after 1990, is harmless error at best. Coincidentally, nowhere in the Department’s determination was a statement made by the Department that all three managers found Complainant’s complaint of harassment incredible and this assertion is therefore not a misstatement of material fact.

Exhibit D of Complainant’s Request for Reconsideration, a hand-written letter from Dr. Gertrude Ticho, presents evidentiary questions regarding authenticity. Furthermore, the letter does not present new evidence that would preclude the possibility of a discussion between Dr. Gertrude Ticho and some other employee of Respondent whereby the incidents of harassment may have been presented and discussed without the mentioning of Complainant’s name.

CONCLUSION:

Respondent’s evidence adequately rebuts Complainant’s allegations. Complainant has offered no new evidence, during the investigation, nor in his Request for Reconsideration, that would be relevant to showing that Respondent terminated Complainant because of his sexual orientation or that Complainant was harassed because of his sexual orientation. The evidence on the record offers nothing to convince us that the initial Decision was incorrect.

Complainant has raised the issue of Respondent’s violation of the Americans with Disabilities Act, 42 USCA, Sections 12101, et seq. regarding notice of termination based on a disability. The Department will not address this issue as it presents a new issue which could be a different charge in itself, however requiring an amendment to the original complaint which now is untimely to do. It fails to qualify as new evidence, misapplication of law, or misstatement of material fact mandating reconsideration.

Based on the above considerations, the Department hereby AFFIRMS its original Determination of NO PROBABLE CAUSE.

This concludes the Department’s processing of this complaint and is a final agency decision in this matter.

Margie A. Utley
Director

September 24, 1993