Akin Gump: Wrongful Demotion and Failure to Honor Promise for Advancement

I submitted the following letter to the Director of the D.C. Department of Human Rights in March 1992 following the agency’s complaint issued February 4, 1992 in Freedman v. Akin, Gump, Hauer & Feld.  Inexplicably, Director Utley did not place the letter, which was copied to the case investigator Donald M. Stocks, in the administrative file.  Emendations to the following letter as of this posting (January 12, 2012) are highlighted in yellow.

March 14, 1992
3801 Connecticut Avenue, N.W.
Apartment 136
Washington, DC  20008

Ms. Margie A. Utley
Director
Government of the District of Columbia
Department of Human Rights and
     Minority Business Development
2000 14th Street, N.W.
Washington, DC  20008

Re:  Docket No.: 90-087-P(CN)
       Gary Freedman -v- Akin, Gump, Hauer & Feld

Dear Ms. Utley:

In the interest of a timely and cost-efficient resolution of the above matter, you may wish to inform the Respondent that it is in its strategic interest to accept mediation of the dispute now with a view toward returning me to my position as legal assistant.  If the Respondent does not accept mediation and elects to allow the investigation to proceed, the Respondent may risk a determination by the Department of Human Rights that its failure to offer me an associate position, or at least an associate-track legal assistant position, constitutes an unlawful discriminatory practice on the basis of sexual orientation, in violation of the District of Columbia Human Rights Act of 1977.

I offer the following facts in support of the claim that the Respondent’s failure to offer an associate position, or associate-track legal assistant position, was an unlawful discriminatory practice.

1.  I am licensed to practice law.  I am admitted to the bar of Pennsylvania, having been awarded the degree of J.D. by Temple University School of Law.  I also hold the degree of LL.M. in International Legal Studies from The Washington College of Law, The American University.  The field of International Law is a major practice area of the Respondent.  I am not a member of the D.C. bar.

2.  During the course of my association with the Respondent, I was employed in a position far below my level of education and experience, notwithstanding the Respondent’s knowledge of my educational and professional background.

[Respondent states: "Claimant was a law school graduate performing paralegal or administrative duties."]

3.  At no time during the course of my association with the Respondent did I request in any manner that I be considered for an associate position.  Upon being hired in June 1988 I was warned by the Respondent’s then Legal Assistant Administrator, Ms. Margarita Babb, that I should not view my position as legal assistant as a stepping stone to an associate position.  The Legal Assistant Administrator’s warning carried the implicit threat of disciplinary action for failure to comply.

4.  During a discussion with the then Legal Assistant Administrator, Ms. Margarita Babb, in June 1988, prior to being hired as a full-time legal assistant, I was advised that when the largely menial document coding assignment for the client, Eastern Airlines, was completed, I would be assigned to the Legal Assistant group.  In February [sic] 1990, however, as the flow of work on Eastern slowed, I was assigned to the Litigation Support group to continue the menial task of document coding rather than being assigned to substantive tasks in the Legal Assistant group.

[My unexplained transition to the Litigation Support Group in March 1990 constituted a demotion, a possible unlawfully discriminatory act under the D.C Human Rights Act of 1977.]

5.  During my three year tenure with the Respondent I was harassed, on the basis of perceived sexual orientation, by staff persons, associates and partners of the Respondent.  As a result of the harassment, I formed the belief that my employment with the Respondent was in jeopardy, which combined with the warning of the legal Assistant Administrator, militated against my inquiring as to an associate position with the Respondent.

6.  During a meeting with my supervisor, Ms. Christine Robertson, in early August 1991, I requested that she consider my being reassigned to the legal assistant group under Mr. J.D. Neary and Ms. Maggie Sinnott so that I might have the opportunity to perform more substantive assignments.  I was never advised by Ms. Robertson that she had followed up on my request.  On October 23, 1991, in a meeting with Mr. Earl L. Segal, the partner who oversees the Legal Assistant program, I again requested that the firm consider my being reassigned to the Legal Assistant group, implicitly stating a desire to be provided an opportunity to perform more substantive assignments.  Four days later, on October 29, 1991, I was advised that the Respondent had decided to terminate me.  I believe that I was terminated on the basis of my perceived sexual orientation.

6.  Some time in 1990, Mr. Brian Burns, a legal assistant who had been employed by the Respondent since about 1985, was granted an associate position.  Mr. Burns is a member of the D.C. Bar.  To the best of my knowledge, Mr. Burns is not a homosexual.  I believe that during his tenure with the Respondent, Mr. Burns was consistently granted substantive assignments that eased his transition from legal assistant to practicing attorney.  In effect, Mr. Burns’ position with the Respondent was an “associate-track” legal assistant position.  My educational and professional experience also qualified me for an associate-track legal assistant position with the Respondent; a like position was never offered to me.  The harassment that I underwent during my tenure, which carried with it the implied threat of termination, precluded me from requesting an associate-track legal assistant position.

7.  The Respondent has a policy requiring that prospective associates be admitted to the D.C. bar.  I do not know when this policy was adopted or how strictly the policy is enforced.  The policy would, of course, not have barred me from being employed in an associate-track legal assistant position, with the understanding that I be offered an associate position upon admission to the D.C. bar.

8.  In a letter dated February 7, 1985, before my employment with the Respondent, I submitted a resume to the Respondent’s hiring committee, requesting consideration for an associate position.  I was not a member of the D.C. bar in February 1985.  The Respondent’s Hiring Committee advised me by letter dated February 14, 1985 that, regrettably, it had to deny my request for an interview despite my excellent credentials because of the limited number of openings then available.  The Respondent did not cite as a reason for denying me an interview the fact that I was not a member of the D.C. bar.

9.  Mr. Brian Burns is employed as an associate in the Respondent’s tax group.  The Respondent’s tax group is headed by a partner named Mr. David Hardee.  During my tenure with the Respondent, I experienced a number of harassing interactions with Mr. Hardee, arguably evidencing an anti-homosexual bias by Mr. Hardee.

[2.  During my three and one-half years association with the firm attempts to be friendly with employees, including attorneys, were frequently met with a hostile reaction.  For example, one morning in about late June 1988, while walking behind attorney David Hardee, near whose office I worked for a time, I asked wither the plastic bag he was carrying contained his breakfast.  He responded in a rude tone of voice, “No, it’s drugs!”

One morning in late October 1988, I had a brief conversation with Lisa Hassell, who was David Hardee’s secretary.  The next morning I attempted to engage her in conversation again.  She seemed to freeze, and look over her shoulder into her bosses’ office.  I inferred that Mr. Hardee had told Ms. Hassell not to talk to me.

* * * *

[David Hardee was a tax partner who had professional ties to Vernon Jordan.  Jordan served on the Board of Directors of RJR Nabisco, a client that Hardee represented.  The head of the firm's tax practice group was Charles Levy whose office was adjacent to that of Bob Strauss.  Hardee was active in Democratic party politics and attended the 1988 Democratic presidential nominating convention.  Hardee seemed consistently hostile to me, more so than any other attorney at the firm.

I was assigned to work in a private office on the fifth floor by my supervisor, Maggie Sinnott, on her initiative, in mid-June 1988, a brief time after I was hired as an Akin Gump temporary employee, effective June 13, 1988.  I did not request a private office.  It is interesting to note that Akin Gump alleged in an interrogatory response filed with the D.C. Department of Human Rights that I demanded to work in total isolation.  In this instance my supervisor isolated me, on her initiative.  I remained in this office, adjacent to that of David Hardee, until March 17, 1989.

* * * *

11.  In mid-June 1988, shortly after being hired as a firm temporary employee, I was  assigned a private office on the fifth floor.  On the first morning in that office space as I was getting a cup of coffee in an adjacent kitchen area, an attorney, whom I later learned was named David Hardee, said to me, “I smell something sweet in here.  Do you smell something sweet in here?”  I said, “No.” He repeated, “I smell something sweet in here.”

The D.C. Department of Human Rights made a specific finding that I told Akin Gump about this incident.  The incident, characterized by the DHR as an "idea of reference," might be more accurately described as innuendo.  Note also that the notion that Jews have an unpleasant sweet odor is stereotypically anti-Semitic.

DHR Finding of Fact 4(c):

(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.]

10.  Some time during the summer of 1989, The Washington Times reported on an alleged homosexual incident involving an attorney in the Respondent’s Dallas office.  One would like to know how the Respondent’s management handled this incident, specifically how the handling of the matter reflected management’s attitudes and policies regarding attorneys suspected of homosexual activities.

[21.  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.]

11.  To the best of my knowledge there are no homosexual attorneys in the Respondent’s Washington office.  One would like to know whether the Respondent has an unstated policy excluding homosexual attorneys or attorneys suspected of homosexual orientation.

[In fact, during my tenure one of the Respondent's partners, Clint Batterton, Esq., was openly-homosexual.  See Comment No. 16 contributed by Clint Batterton.]

12.  Some time in the first half of 1990, while riding alone in an elevator with a partner of the Respondent. Mr. David Essential, Mr. Eisenstat proceeded to pace back and forth and whistle, all the while grimacing at me.  I experienced Mr. Eisenstat behavior as offensive and intimidating.  Mr. Eisenstat is the husband of the Respondent’s attorney recruitment administrator, Ms. Nina Eisenstein.  Around noon on October 29, 1991, after having been advised of my termination, shortly after I got off the elevator in the lobby area to leave the building, Ms. Eisenstein glared at my genital area.

[See Department of Human Rights Finding of Fact 4(j):

(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.]
________________________

Arguably, the above facts raise a question as to whether the Respondent’s failure to offer me an associate position or an associate-track legal assistant position constitutes an unlawful discriminatory practice on the basis of sexual orientation, in violation of the District of Columbia Human Rights Act of 1977.

Sincerely,

Gary Freedman

cc: Donald M. Stocks
___________________________

The following are pertinent portions of Complainant's Reply to Respondent's Response to Interrogatories and Document Request, which I filed with DHR on January 5, 1993:

10. Respondent's assertion that Dennis Race advised Complainant at the termination meeting on October 29, 1991 that it did not have a position similar to his job tasks for client Eastern Airline (R. 4) and that "there did not appear to be a good fit" with other employees (R. 5) is misleading and conceals Respondent's discriminatory denial of opportunities for promotion.

Complainant’s education, background and professional experience qualified him for consideration for three types of positions with Respondent: legal assistant, law clerk, or associate.

In response to Complainant’s request that he be considered for reassignment to the Legal Assistant program Dennis Race advised Complainant at the termination meeting on October 29, 1991 that he had spoken to Legal Assistant Administrator, Maggie Sinnott and Legal Assistant Coordinator, John D. Neary about such a reassignment. Mr. Race advised Complainant that both Ms. Sinnott and Mr. Neary had told him that they could not work with Complainant, that they found him difficult to work with, and that they were afraid of Complainant.

(The Response omits details concerning Complainant’s request or reassignment to the Legal Assistant program and the comments Dennis Race made at the termination meeting regarding Complainant’s request for reassignment. Respondent, however, admits that Complainant made a request for reassignment to the Legal Assistant program (See Attachment D [Memo of Earl. L. Segal to Personal File dated October 23, 1991])).

Dennis Race failed to investigate the possibility that the comments of Ms. Sinnott and Mr. Neary may have been made in retaliation for Complainant's allegations of harassment or may have been an unlawful discriminatory practice aimed at depriving Complainant of employment opportunities.

The actions of Ms. Sinnott during the summer of 1990 are at variance with her assertion at the time of Mr. Race's investigation that she could not work with Complainant, or that she was afraid of him. Sometime during the summer of 1990, after Complainant had been reassigned to the Litigation Support group, Maggie Sinnott went out of her way to advise Complainant that transcript digesting work was available--work typically performed by other legal assistants and not Litigation Support employees. At that time Maggie Sinnott was no longer Complainant’s supervisor. Maggie Sinnott's comments about Complainant to Dennis Race at the time of the job termination, which contributed to Mr. Race's conclusion that "there did not appear to be a good fit" with other employees, was apparently not made in good faith.

Mr. Race's statement that it did not have a position similar to Complainant’s job tasks for the client Eastern Airlines or that "there did not appear to be a good fit" conceals the fact that Mr. Race did not investigate the possibility of having the Complainant employed on other positions for which he is qualified, namely law clerk or associate.

Mr. Race's failure to investigate the possibility of employing Complainant in the position of law clerk or associate was an unlawful discriminatory practice (See Attachment F).

Complainant is licensed to practice law. He is a member of the bar of the Commonwealth of Pennsylvania and was awarded the degree of J.D. by Temple University School of Law. Complainant also holds the degree of LL.M. in International Legal Studies from The Washington College of Law, The American University. The field of international law is a major practice area of the Respondent.

During the entire period of Complainant's employment with the Respondent Complainant was harassed, on the basis of perceived sexual orientation, by staff persons, associates, and partners of the Respondent. As a result of the harassment, Complainant formed the belief that his employment with the Respondent was in jeopardy.

The hostile work environment to which Complainant was subjected deprived him of the opportunity to seek a position with the Respondent for which he was qualified. Other employees of the Respondent, however, were not similarly deprived of employment opportunities. The limitation on Complainant’s opportunities for promotion was discriminatory.

Jan Fraser-Smith, an agency-supplied temporary employee, who began her assignment with the Respondent at about the same time as the Complainant, in March 1988, and who worked as a document coder on the same project as the Complainant, was later hired by the Respondent as a law clerk. Though Complainant is qualified to work as a law clerk he was never offered such a position. The harassment that Complainant suffered during his employment, which carried the implied threat of termination, precluded Complainant from requesting a more substantive position with the Respondent.

Sometime in 1990, Brian Burns, a legal assistant who had been employed by the Respondent since about 1985, was granted a position as associate. Complainant believes that Brian Burns is not a homosexual. During his employment with the respondent as a legal assistant, Brian Burns was consistently granted substantive assignments that eased his transition from legal assistant to practicing attorney. In effect, Brian Burns' position with the Respondent was an "associate-track" legal assistant position. Complainant's education and professional experience also qualified him for an associate-track legal assistant position with the Respondent; a like position was never offered to Complainant. The harassment that Complainant suffered during his employment, which carried the implied threat of termination, precluded Complainant from requesting an associate-track legal assistant position.

In a letter dated February 7, 1985, before Complainant’s employment with Respondent, Complainant submitted a resume to the Respondent's Hiring Committee requesting consideration for an associate position. The Respondent's Hiring Committee advised the Complainant by letter dated February 14, 1985 that, regrettably, it had to deny Complainant's request for an interview despite his excellent credentials because of the limited number of openings then available (See Attachment F).

Dennis Race's statement that "there did not appear to be a good fit" between Complainant and other employees conceals Respondent's discriminatory failure, or refusal, to investigate the possibility of employing Complainant in other positions for which he qualified.