D.C. Department of Human Rights: Initial Determination

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

June 30, 1993

Mr. Gary Freedman
3801 Connecticut Avenue, N.W.
Apartment 136
Washington, D.C. 200008

RE: Docket No.: 92-087-P(N)
Gary Freedman v. Akin, Gump, Hauer & Feld

Dear Mr. Freedman:

The Department of Human Rights/Minority Business Development has completed the investigation of the above-referenced Complaint. The Department has determined that there is NO PROBABLE CAUSE to believe that discrimination has occurred in this matter. The Department’s determination was based on the following information gathered during the course of this investigation. When we use the word “COMPLAINANT” we are referring to you. When we use “RESPONDENT” we are referring to Akin, Gump, Hauer & Feld. When we use “the Act” we are referring to the D.C. Human Rights Act of 1977 as amended.

ISSUE

Was Complainant subjected to disparate treatment in the terms and conditions of his employment including termination because of his sexual orientation (homosexual)?

RESPONDENT’S BACKGROUND

Respondent is a private law firm with offices in Washington, D.C., where the discriminatory conduct is alleged to have occurred. It is not exempt for any known reason from the laws of the District of Columbia and therefore is subject to the jurisdiction of this Department.

COMPLAINANT’S ALLEGATIONS

Complainant whose sexual orientation is homosexual alleged the following:

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

2. That during the approximately three years he worked for Respondent he always received outstanding performance evaluations.

3. That during his tenure with Respondent he was subjected to harassment because of his sexual orientation. In October 1991 he complained to Respondent’s management officials about being harassed.

4. On October 31, 1991 when he was terminated he was told that it was because he did not fit in with the other personnel at the firm.

RESPONDENT’S RESPONSE

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

FINDINGS OF FACT

1. In June 1988, Complainant was hired by Respondent as a temporary Legal Assistant. On August 1, 1989, Complainant was hired as a regular employee.

2. Complainant received above average and/or outstanding performance evaluations for the years 1988, 1989 and 1990.

3. Complainant consulted regularly with Mental Health Counselors, Psychologists and Psychiatrists starting in 1989 with 28 consultations between January 1 and October 8, 1991. Some of those consultations were with professionals connected with Respondent’s Employee Assistance Program. Complainant invited his supervisor to attend one of his sessions with a psychologist.

4. On October 23, 1991 at his request, Complainant met with Respondent’s managers, Earl Segal, partner in charge of Legal Assistants, Malcolm Lassman, Managing Partner and Dennis Race, Partner. Complainant stated that he was being harassed based on his religion, Jewish and his sexual orientation, homosexual. Complainant described a variety of incidents which he believed constituted unlawful harassment including the following:

(a) On the second day of Complainant’s assignment with Respondent as an agency-supplied temporary employee, March 4, 1988, Complainant introduced himself to a male employee outside whose office Complainant was working. A brief time after Complainant introduced himself, a group of employees gathered in the office adjacent to the work station where Complainant 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.

(b) While walking down a hallway on the second floor, in about May 1988, an associate, Paul Wageman, who was walking toward Complainant, began to hold a pencil next to his genital area.

In response to a request by Mr. Race, Complainant stood and showed how Mr. Wageman manipulated the pencil as he was walking. Also, in response to a question posed by Mr. Race, Complainant explained that Mr. Wageman maintained eye contact during the interaction.

(c) In mid-June 1988, at about the time Complainant was hired by the Respondent, Complainant was assigned a private office on the fifth floor. On the first morning in that office space, as Complainant was getting a cup of coffee in an adjacent kitchen area, an attorney, whom Complainant later learned was a partner named David Hardee, said to Complainant, “I smell something sweet in here. Do you smell something sweet in here?” Complainant said, “No.” Mr. Hardee repeated, “I smell something sweet in here.”

Complainant stated that he ascribed a homosexual meaning to Mr. Hardees’s comments. Mr. Race asked Complainant why Complainant ascribed a homosexual meaning to Mr. Hardees’s comments.

(d) Shortly after, complainant was moved to the sixth floor office space shared with agency-supplied temporary legal assistants, Stacey Schaar and Gwen Lesh. On March 20, 1989, they began repeated references to Complainant’s friendship with Craig Dye with whom Complainant had worked at the law firm of Hogan & Hartson.

Complainant expressly recalls having mentioned Mr. Dye; a reference to Mr. Dye would only have arisen in the context of a discussion of harassment based on perceived sexual orientation.

(e) On a Friday in early spring 1990 (possibly March 30, 1990), Constance Brown advised Complainant that since there was little work to be done for the client, Eastern Airlines, she had arranged for Complainant to meet with the administrator of Litigations Support, Chris Robertson, on the following Monday (possibly April 2, 1990) and that Ms. Robertson would provide Complainant with work. On Monday morning, shortly after 9:00 a.m., Complainant reported to Litigation Support, which was housed on the terrace level, and met with Ms. Robertson for about 15 to 20 minutes. Ms. Robertson instructed Complainant on a particular task to be performed for the client MCA. This was Complainant’s first interaction with Ms. Robertson in the relation of employee to supervisor; up until that time Complainant had worked predominantly for Constance Brown on tasks for the client Eastern Airlines. This was also the first time Complainant was assigned to work on the terrace level. At the conclusion of Complainant’s conversation with Chris Robertson, she led Complainant from her office to a work station where Complainant was directed to perform the assigned task. Upon spotting the work station Ms. Robertson stated to Complainant, “You can sit here.” This was at approximately 9:30 a.m. After sitting down at the desk Complainant looked into the trash basket next to the desk. The trash basket was empty except for a baby food jar. The baby food jar had been wiped clean before being placed in the trash basket, 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. Complainant explained to Messrs. Race and Lassman that the epithet “baby” is stereotypically anti-Semitic.

(f) Some time in April 1991, when it was warm enough to eat lunch outdoors, Complainant began to eat lunch on a park bench at DuPont Circle. One afternoon upon Complainant’s return to the office from lunch, at about the time he first began to eat lunch at DuPont Circle, as Complainant was seated at his desk, his supervisor, Chris Robertson, said, in loud tone of voice to another employee, Melissa Whitney, seated near Complainant, “Are you wet?”

Complainant could not specifically recall whether he mentioned this incident to Messrs. Race and Lassman. If Complainant did mention this incident he would have explained that he interpreted the phrase “Are you wet?” as alluding to a state of sexual excitation.

(g) Upon Complainant’s return to the office from lunch one afternoon during the summer of 1991, his supervisor, Chris Robertson, offered Complainant a piece of chocolate, and stated to Complainant the peculiar phrase, “Here, you look like you need some chocolate.”

Complainant specifically recalls that he told Messrs. Race and Lassman that he interpreted the phrase, “Here, you look like you need some chocolate” as a reference to anal intercourse. Complainant specifically recalls his using the phrase “anal intercourse.”

(h) On or about early August 1991 an employee, Lutheria Harrison, who at that time was assigned to a work cubicle adjacent to the Complainant, was talking to another employee, Beatrice Spates, about her July telephone bill, emphasizing the word at her desk, stated in a markedly audible tone of voice the children’s rhyme, “liar, liar, pants on fire.” On another occasion a brief time later, Lutheria Harrison, upon entering Chris Robertson’s office to attend a weekly Litigation Support staff meeting, sighed the Yiddish phrase, Oy, veh.”

Complainant told Messrs. Race and Lassman that he interpreted the word “July” as a homophone for the phrase “Jew Lie,” and that these anecdotes suggested that some of his coworkers may have had an anti-semitic animus. Mr. Lassman requested that Complainant provide additional anecdotes that might suggest an anti-Semitic bias by employees. In response to Mr. Lassman’s question, and not on Complainant’s initiative, Complainant mentioned that the mascot of the Litigation Support group was a pig. (At this point Mr. Lassman turned to Mr. Race and said, “Dennis, you’re not Jewish. Jews aren’t allowed to eat pork.”)

(I) On the afternoon of October 2, 1991 Complainant met with legal assistant Katherine Harkness in her private office on the fifth floor to review some work with Complainant had been doing under her direction. Complainant was seated in front of her desk. Ms. Harkness was in back of her desk, but leaning over it, supporting her torso with her elbows. As she was reviewing the work she proceeded in a continuous motion to gyrate her hips and rub her pelvic region against the desk in a sexually suggestive manner while simultaneously expressing her work-related comments in the form of double entendres. This lasted for about two to four minutes.

(j) Some time in 1990, while Complainant was riding alone in an elevator with a partner, David Eisenstat, Mr. Eisenstat began to pace back and forth and whistle, all the while glancing at Complainant.

Mr. Race asked Complainant why Complainant interpreted Mr. Eisenstat’s behavior as relating to Complainant. Mr. Race, offering a possible explanation for Mr. Eisenstat’s behavior, stated that Mr. Eisenstat is an “intense guy.” Complainant added that he believed that Mr. Eisenstat may be Jewish, and stated that the anecdote concerning Mr. Eisenstat raised a question as to whether the harassment was based on an anti-Semitic animus.

5. Respondent investigated Complainant’s allegations, interviewing his supervisor and some of his co-workers. The responders to the interviews indicated that Complainant was uncomfortable with his coworkers, and his behavior was sometimes disruptive and frightening to his coworkers.

6. Respondent also sought outside professional guidance because of the emotional and psychological nature of Complainant’s allegations and his coworkers responses. Respondent contacted an unnamed counselor from its Employee Assistance Program and an outside psychiatrist. Dr. Gertrude Ticho identified Complainant’s behavior, putting a negative meaning to virtually every event as “ideas of reference” and cautioned that individuals in similar circumstances may become violent. After Respondent’s investigators consulted with Complainant’s supervisor and Respondent’s Management team, Respondent terminated Complainant’s employment.

7. There is no evidence in the record that Complainant ever told Respondent that he was homosexual or that he was being harassed prior to October 23, 1991.

ANALYSIS

Complainant has alleged that he was discriminated against because of his sexual orientation (homosexual).

Specifically, he maintains that Respondent harassed him and terminated his employment because of his protected class.

We will examine this matter in accordance with the burdens set forth in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-253 (1981). Complainant must first establish a prima facie case of discrimination. Next, Respondent must articulate (and produce evidence to support) a legitimate, non-discriminatory reason for its actions. Third, Complainant must produce evidence that persuades the Department that Respondent’s proffered reason is a pretext, articulated for the purpose of covering up actual discriminatory behavior.

We will first examine whether Complainant has established a prima facie case. In order to do so, Complainant must demonstrate that Complainant: (1) belongs to a protected group; (2) was qualified for and satisfying the normal requirements of the job; (3) was adversely treated; and (4) that others not in the protected class were treated more favorably.

Complainant is not required to provide direct proof of discrimination at the first stage, but need only establish facts adequate to permit an inference of discriminatory motive. See Thompson v. International Association of Machinists and Aerospace Workers, 614 F.Supp. 1002, 1012 (D.D.C. 1985) and Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978), “[p]laintiff carries the initial burden of showing actions taken by the employer from which one can later infer, if such actions remain unexplained, by the employer that it is more likely than not that such actions were ‘based on a discriminatory criterion illegal under the Act,’” (quoting Teamsters v. United States, 431 U.S. 324, 358 (1977).

Complainant has met the requirements of a prima facie case.

Respondent has submitted sworn responses to the Complaint stating the following:

1. Complainant was hired by Respondent in 1988.

2. On October 23, 1991, Complainant told Respondent’s managers that he believed that he was being harassed because he was Jewish and because he was homosexual. [This finding is clearly erroneous. Respondent Akin Gump produced a sworn statement that expressly denied that I ever told Dennis Race and Malcolm Lassman that I was homosexual.]

3. Respondent found the specific examples of harassment articulated by Complainant to be incredulous. Respondent also believed that Complainant’s examples indicated that Complainant might have mental health problems.

4. Respondent investigated the allegations by questioning Complainant’s coworkers and supervisor. The coworkers and supervisor stated that Complainant had problems interacting with them. Respondent also consulted mental health professionals who advised that Complainant did in fact need counseling and may exhibit violent behavior.

5. Respondent, after consultation with its management team, terminated Complainant’s employment. Respondent’s decision was based on its conclusion following the investigation that Complainant was not suitable for employment and was a potential risk to those who might work around him.

Complainant submitted a 45 page response plus attachments as well as other correspondence in response to Respondent’s submission. Complainant contends that because of the harassment, among other things, he was in a hostile work environment. He contends that Respondent did not recognize such and as a result of that its investigation was flawed. He also contended that Respondent’s reliance upon the advice of the mental health professionals as conclusory and reached without personally examining him, was flawed. Complainant raised a variety of other issues including possible criminal violations. We do not believe it is necessary to analyze and respond to each of them to reach a determination in this matter.

Essentially it must be determined whether Respondent’s decision to terminate Complainant’s employment was based on Complainant’s sexual orientation or on a legitimate business reason. We note that there is nothing in the record that indicates that Respondent had any knowledge of Complainant’s sexual orientation prior to his complaint on October 23, 1991. [Note that in later litigation the D.C. Corporation Counsel expressly admitted -- based on evidence in the record that was ignored by the Department -- that there was a rumor in the firm that I was homosexual, directly contradicting the Department’s Initial Determination. Brief of Appellee District of Columbia at 8, citing record at 329, 341 Freedman v. D.C. Dept. Human Rights, D.C.C.A. no. 96-CV-961 (Sept. 1, 1998), to wit: "According to Freedman, at a firm dinner in May 1989, another legal assistant [Jesse Raben] acknowledged hearing a rumor that Freedman was gay." See also Finding of Fact 4(d), above.]

Complainant stated in his submission ten incidents that he perceived as harassment. This was, according to Complainant, the same information he gave to Respondent’s managers on October 23, 1991. The details of these ten incidents are set forth in the Findings of Facts. The incidents gave rise to Respondent’s concern about Complainant. That concern coupled with the advise 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. Whether or not Complainant could function in an office environment with additional counseling, in a different position or in a private office is not the issue. Further, this Department does not believe that you cannot 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.

There is no credible evidence in the record that Respondent terminated Complainant because of his sexual orientation or that Complainant’s 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. To conclude otherwise would require the Department to determine that Complainant’s perceptions and conduct were based on his sexual orientation and therefore if Respondent acted on the basis of Complainant’s perceptions and actions it was discriminating against him because of sexual orientation. We find no reason, in logic or law, to support such a conclusion. [What about the fact that Akin Gump deliberately lied when it said I did not report to Dennis Race and Malcolm Lassman that I was being harassed on the basis of perceived sexual orientation?] Respondent has submitted legitimate business reasons for its actions which have been found to be pretext.

Sufficient evidence has not been presented to support Complainant’s allegations of disparate treatment because of his sexual orientation (homosexual). Therefore, the Department has determined that a finding of NO PROBABLE CAUSE is appropriate in this matter, and IT IS SO ORDERED.

Complainant may apply for reconsideration of this decision pursuant to Section 719.1 of the Department’s Rules Governing Procedure and Practice for Private Sector Complaints Alleging Unlawful Discriminatory Practices, 33 DCR 6909 (1986). Such application along with all supporting documentation must be submitted to the Director, in writing, within (30) days from receipt of this letter.

The grounds for reconsideration are limited to new evidence, misapplication of laws, or misstatements of material facts. The request must, therefore, be based on one or more of these grounds. If the request is not based on one of these grounds, or not timely filed, it will be subject to dismissal. COMPLAINANT MUST INCLUDE ALL SUPPORTING DOCUMENTATION AND REASONS FOR THE APPEAL IN THE ORIGINAL REQUEST FOR RECONSIDERATION.

A copy of any request for reconsideration along with all supporting documentation will be forwarded to the other party for response within five (5) calendar days after receipt by this Department.

Sincerely yours,

Margie A. Utley
Director

MAU:dms:alm