Freedman v. DC Dept. Human Rights (Akin Gump)

IN THE DISTRICT OF COLUMBIA COURT OF APPEALS
______________________________________

Appeal No. 96-CV-961

______________________________________

GARY FREEDMAN

Appellant

v.

DISTRICT OF COLUMBIA
DEPARTMENT OF HUMAN RIGHTS

Appellee
_____________________________________

Appeal from the Superior Court of the
District of Columbia, Civil Division
______________________________________________

BRIEF OF APPELLANT
______________________________________________

Gary Freedman pro se
3801 Connecticut Avenue, NW
Apartment 136
Washington, DC 20008
(202) 362-7064
or (202) 363-3800

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . .i

I. STATEMENT OF JURISDICTION . . . . . . . . . . .1

II. ORDER IN QUESTION . . . . . . . . . . . . . . .2

III. STATEMENT OF QUESTIONS INVOLVED . . . . . . . .3

IV. STATEMENT OF THE CASE . . . . . . . . . . . . .4

A. Form of Action . . . . . . . . . . . . . 4

B. Factual History . . . . . . . . . . . . .6

V. ARGUMENT . . . . . . . . . . . . . . . . . . 12

A. DHR's determination of no probable cause
is arbitrary and capricious in that the
agency's finding that (1.) appellant's
performance evaluations were uniformly
above-average or outstanding throughout his
tenure combined with its finding that (2.)
appellant believed, throughout his tenure,
that he had been subjected to a continuing
pattern of unlawful harassment do not lead
rationally to the agency's determination
that the employer's proffered reason for the
termination (namely, that the nature of
appellant's report of harassment to the
employer prompted the employer to become
reasonably concerned about appellant's
mental stability and suitability for
employment) was nonpretextual and worthy of
credence . . . . . . . . . . . . . 12

B. DHR's determination that the employer's
proffered reason for the termination was
nonpretextual and worthy of credence--given
the employer's concerns regarding
appellant's mental stability and suitability
for employment, based on the statements of
appellant's direct supervisor, co-workers,
and the advice of mental health
professionals--is arbitrary and capricious
or otherwise not in accordance
with law . . . . . . . . . . . . . . . .27

C. DHR's no probable cause determination is
arbitrary and capricious in that a finding
that the employer had a concern for
appellant's mental health and stability
(based partly on the advice of mental health
professionals that appellant needed
counseling and that according to a
psychiatrist could engage in violent
behavior) does not lead rationally to a
conclusion that that concern prompted or
justified the employer's decision to
terminate appellant since appellant was a
beneficiary of the employer's long-term
disability income plan under which he
qualified for long-term medical leave
under the employer's established leave
policy . . . . . . . . . . . . . 41

VI. CONCLUSION . . . . . . . . . . . . . . . . . 47

APPENDIX A . . . . . . . . . . . . . . . . . . . . . . A-1

APPENDIX B . . . . . . . . . . . . . . . . . . . . . .B-1

APPENDIX C . . . . . . . . . . . . . . . . . . . . . .C-1

TABLE OF AUTHORITIES

CASES

Anderson v. Baxter Healthcare Corp.,
13 F.3d 1120 (7th Cir. 1994) . . . . . . . . .25, 45

Betesh v. United States,
400 F.Supp. 238 (D.D.C. 1974) . . . . . . . . . . .46

Bowman Transportation v.
Arkansas-Best Freight System,
419 U.S. 281 (1974) . . . . . . . . . . . .13, 31, 33

Burlington Truck Lines, Inc. v.
United States,
371 U.S. 156 (1962) . . . . . . . . . . . . . . . .13

Citizens to Preserve Overton Park v. Volpe,
401 U.S. 402 (1970) . . . . . . . . . .25, 35, 37, 38

Duffy v. Wheeling Pittsburgh Steel Corp.,
738 F.2d 1393 (3d Cir. 1984),
cert. denied, 469 U.S. 1087 (1984) . . . . . . . .22

Eide v. Kelsey-Hayes Co.,
397 N.W.2d 532 (Mich. App. 1986) . . . . . . . . . 11

Estes v. Dick Smith Ford, Inc.,
856 F.2d 1097 (8th Cir. 1988) . . . . . . . . . . .24

Goldwater v. Ginzburg,
261 F. Supp. (S.D.N.Y. 1969),
reh. denied, 397 U.S. 978 (1969) . . . . . . . . . 39

Goos v. National Ass'n of Realtors,
715 F.Supp. 2 (D.D.C. 1989) . . . . . . . . . . . .28

Hagelthorn v. Kennecott Corp.,
710 F.2d 76 (2d Cir. 1983) . . . . . . . . . . . .22

Hardy v. Marriott Corp.,
670 F.Supp. 385 (D.D.C. 1987) . . . . . . . . . . .27

Hicks v. Gates Rubber Co.,
833 F.2d 1406 (10th Cir. 1987) . . . . . . . . . . 24

Jeppsen v. Wunnicke,
611 F.Supp. 78 (D.C. Alaska 1985) . . . . . . . . .31

Kopff v. District of Columbia ABC BD.,
381 A.2d 1372 (D.C. 1977),
aff'd, 413 A.2d 152 (1980) . . . . . . . . . . . .37

Lindsey v. Baxter Healthcare Corp.,
757 F. Supp. 888 (N.D. Ill. 1991) . . . . .27, 29, 30

McCaskill v. D.C. Dept. of Empl. Services,
572 A.2d 443 (D.C. 1990) . . . . . . . . . . . . . 34

McNeil v. Akin, Gump, Strauss, Hauer & Feld,
no. 93-0477 (D.D.C., Nov. 29,
1993) . . . .6, 7, 8, 19, 21, 23, 24, 26, 33, 34, 39

McNeil v. Economics Laboratory, Inc.,
800 F.2d 111 (7th Cir. 1986) . . . . . . . . . . .26

Meinze v. Holmes,
532 N.E.2d 170 (Ohio App. 1987) . . . . . . . . . .46

Motor Vehicle Mfr's. Ass'n of U.S., v.
State Farm Mut. Automobile Ins. Co.,
463 U.S. 29 (1983) . . . . . . . .12, 13, 14, 42, 43

Namerdy v. Generalcar,
217 A.2d 109 (D.C. 1966) . . . . . . . . . . . . .37

Phillip v. ANR Freight Systems, Inc.,
945 F.2d 1054 (8th Cir. 1991),
cert. denied, 506 U.S. 825 (1992) . . . . . . . . .24

Pico v. Board of Education,
Island Trees Union Free School District,
638 F.2d 404 (2d Cir. 1980),
aff'd, 457 U.S. 853 (1982) . . . . . . . . . .22, 23

Ramseur v. Chase Manhattan Bank,
865 F.2d 460 (2nd Cir. 1989) . . . . . . . . .22, 25

Ravinskas v. Karalekas,
741 F. Supp. 978 (D.D.C. 1990) . . . . . . . . . .28

Robinson v. 12 Lofts Reality, Inc.,
610 F.2d 1032 (2d Cir. 1979) . . . . . . . . . . .22

Rosexpress, Inc. v. District of Columbia
Department of Employment Services,
602 A.2d 659 (D.C. 1992) . . . . . . . . . . .36, 38

Russell v. Acme-Evans Co.,
51 F.3d 64 (7th Cir. 1995) . . . . . . . . . . . .25

Shager v. Upjohn Co.,
913 F.2d 398 (7th Cir. 1990) . . . . . . . . . . . 25

Simpson v. District of Columbia Office of
Human Rights,
597 A.2d 392 (D.C. 1991) . . . . . . . . . .1, 5, 12

Slade v. Billington,
700 F. Supp. 1134 (D.D.C. 1988),
aff'd, 871 F.2d 155 (D.C. Cir. 1989) . . . . . . . 27

Texas Department of Community Affairs v.
Burdine,
450 U.S. 248 (1980) . . . . . . . . . . . .14, 33, 40

Thornbrough v. Columbus & Greenville Railroad Co.,
760 F.2d 633 (5th Cir. 1985) . . . . . . . . . . .22

Timus v. Dept. of Human Rights,
633 A.2d 751 (D.C. 1993) . . . . . . . . . . . . . .1

Uffelman v. Lone Star Steel Co.,
863 F.2d 404 (5th Cir. 1989),
cert. denied, 490 U.S. 1098 (1989) . .6, 7, 8, 9, 26

Universal Camera Corp. v. NLRB,
340 U.S. 474 (1951) . . . . . . . . . . . . . . . .31

Vinson v. Taylor,
753 F.2d 141 (D.C. Cir. 1985),
aff'd in part and rev'd in part,
477 U.S. 57 (1986) . . . . . . . . . . . . . . . . 24

Zuniga v. Kleberg County Hosp.,
Kingsville, Tex.,
692 F.2d 986 (5th Cir. 1982) . . . . . . . . . 43, 44

STATUTES

D.C. Code Ann. 1-2501 et seq. . . . . . . . . . . . . .4

D.C. Code Ann. 1-2525 . . . . . . . . . . . . . . .27, 28

D.C. Code Ann. 11-721(a)(1) . . . . . . . . . . . . . .1

D.C. App. R. 26(a) . . . . . . . . . . . . . . . . . . .5

Agency Review Rule 1 (Superior Court) . . . . . . . . . .5

NONLEGAL MATERIALS

Eastern Requests Bankrupt Status to Cut Strike Loss,
N.Y. Times, Mar. 10, 1989, at 1, col. 1 . . . . . .6

THE PRINCIPLES OF MEDICAL ETHICS (WITH ANNOTATIONS
ESPECIALLY APPLICABLE TO PSYCHIATRY)
9 (Washington, DC: APA 1995) . . . . . . . . . 38, 39

OPINIONS OF THE ETHICS COMMITTEE ON THE PRINCIPLES OF
MEDICAL ETHICS WITH ANNOTATIONS ESPECIALLY APPLICABLE TO
PSYCHIATRY
58 (Washington, DC: APA 1995) . . . . . . . . .39, 40

The Prejudicial Personality: Racism and Anti-Semitism,
65 J. PERSONALITY ASSESSMENT 270 (1995) . . . . . .39

DORLAND'S MEDICAL DICTIONARY
814 (27th ed. 1988) . . . . . . . . . . . . . . . .41

R. NOLL, THE ENCYCLOPEDIA OF SCHIZOPHRENIA &
THE PSYCHOTIC DISORDERS
169 (New York: Facts on File 1992) . . . . . . . .41

I. STATEMENT OF JURISDICTION

In that this is an appeal from an order of the Superior Court of the District of Columbia affirming a prior determination of no probable cause made by the District of Columbia Department of Human Rights, this Court has jurisdiction over same per D.C. Code Ann. 11-721(a)(1). Timus v. Dept. of Human Rights, 633 A.2d 751, 761 (D.C. 1993).

A prior Petition for Review of this matter filed in the District of Columbia Court of Appeals was dismissed by order of the Court for lack of jurisdiction, without prejudice to the timely filing of an appropriate civil action in the Superior Court, per Simpson v. District of Columbia Office of Human Rights, 597 A.2d 392, 400-402 (D.C. 1991). Freedman v. District of Columbia Department of Human Rights, no. 93-AA-1342 (D.C., Jan. 10, 1995) (memorandum opinion and judgment) (as amended per order, Sept. 20, 1995).

II. ORDER IN QUESTION

The order from which this appeal is taken was entered by the Superior Court of the District of Columbia [redacted] on June 10, 1996 in Freedman v. District of Columbia Department of Human Rights, no. MPA 95-14, which affirmed a prior final determination of no probable cause issued by the District Of Columbia Department of Human Rights on September 24, 1993 in the matter of Freedman v. Akin, Gump, Hauer & Feld, agency docket no. 92-087-P(CN) [Superior Court Record 35-39] [hereinafter cited as Sup. Ct. Rec.]

III. STATEMENT OF QUESTIONS INVOLVED

A. Was DHR's determination of no probable cause arbitrary and capricious in that the agency's finding that (1.) appellant's performance evaluations were uniformly above-average or outstanding throughout his tenure combined with its finding that (2.) appellant believed, throughout his tenure, that he had been subjected to a continuing pattern of unlawful harassment failed to lead rationally to the agency's determination that the employer's proffered reason for the termination (namely, that the nature of appellant's report of harassment to the employer prompted the employer to become reasonably concerned about appellant's mental stability and suitability for employment) was nonpretextual and worthy of credence?

B. Was DHR's determination that the employer's proffered reason for the termination was nonpretextual and worthy of credence--given the employer's concerns regarding appellant's mental stability and suitability for employment, based on the statements of appellant's direct supervisor, co-workers, and the advice of mental health professionals--arbitrary and capricious or otherwise not in accordance with law?

C. Was DHR's no probable cause determination arbitrary and capricious in that a finding that the employer had a concern for appellant's mental health and stability (based partly on the advice of mental health professionals that appellant needed counseling, and that according to a psychiatrist could engage in violent behavior) does not lead rationally to a conclusion that that concern prompted or justified the employer's decision to terminate appellant since appellant was a beneficiary of the employer's long-term disability income plan under which he qualified for long-term medical leave under the employer's established leave policy?

IV. STATEMENT OF THE CASE

A. Form of Action

Appellant, Gary Freedman, filed a charge of discrimination based on sexual orientation (homosexual) with Respondent, District of Columbia Department of Human Rights and Minority Business Development (DHR), on February 4, 1992 against his former employer, the law firm of Akin, Gump, Strauss, Hauer & Feld ("the employer" or "the firm") [Agency Record 169-170] [hereinafter cited as Rec.]. Appellant charged that the employer subjected him to unfair terms and conditions of employment based on his sexual orientation by harassing him and terminating his employment in violation of the District of Columbia Human Rights Act of 1977, as amended, D.C. Code Ann. 1-2501, et seq. (Repl. Vol. 1992) ("the Act") [Rec. 169-170].

The employer filed a Response to Interrogatories and Document Request in this matter, dated May 22, 1992 [Rec. 131-167], to which Petitioner filed a Reply, dated January 5, 1993 [Rec. 239-462]; the employer filed a Response to Additional Interrogatories and Request for Documents, dated May 17, 1993 [Rec. 122-129].

DHR issued a no probable cause determination (Letter of Determination) on June 30, 1993 [Rec. 11-20]. Appellant's Application for Reconsideration was filed on July 27, 1993 [Rec. 21-67). DHR's Determination on Reconsideration [Rec. 1-9], issued September 24, 1993, affirmed and incorporated DHR's no probable cause determination (issued June 30, 1993), and was final agency action.

DHR determined that appellant did not present sufficient evidence to support his allegations of disparate treatment because of sexual orientation [Rec. 19-20].

Appellant's petition for review and motion to proceed on appeal in forma pauperis were granted by order of the District of Columbia Court of Appeals, dated December 22, 1993. The petition was argued before the Court of Appeals on October 13, 1994 by appellant pro se; appellee declined to file a brief per "Statement in Lieu of Brief," filed March 4, 1994. The petition for review was dismissed by judgment of the Court of Appeals for lack of jurisdiction, without prejudice to the timely filing of an appropriate civil action in the Superior Court, per Simpson v. District of Columbia Office of Human Rights, 597 A.2d 392, 400-402 (D.C. 1991) (before John M. Ferren and Terry, Judges, and Mack, Senior Judge). Freedman v. District of Columbia Department of Human Rights, no. 93-AA-1342 (D.C., Jan. 10, 1995) (memorandum opinion and judgment) (as amended per order, Sept. 20, 1995).

Appellant thereafter filed in the Superior Court of the District of Columbia, on October 10, 1995, a Petition for Review of Agency Decision, pursuant to Agency Review Rule 1 (i.e., Superior Court review of agency orders pursuant to D.C. Code 1981, Title 1, Ch. 6) [Sup. Ct. Rec. 2-30]. The Superior Court [redacted] affirmed DHR's no probable cause finding, by order dated June 10, 1996 (Superior Court no. MPA 95-14) [Sup. Ct. Rec. 35-40]. Appellant filed in Superior Court a notice of appeal on July 2, 1996 [Sup. Ct. Rec. 41].

Following several preliminary orders issued by the District of Columbia Court of Appeals, the docketing statement, designation of record [Sup. Ct. Rec. 42] and statement regarding transcript [Sup. Ct. Rec. 43] in the instant appeal were late-filed by order of this Court on November 22, 1996, and a briefing schedule was filed by order of this Court on March 31, 1997: whereupon this brief is filed this 12th day of May, 1997, per the extension of time provision of D.C. App. R. 26(a).

B. Factual History

Appellant was hired by the employer on June 13, 1988 as a temporary legal assistant ("paralegal") [Rec. 12]. He was initially assigned to a document production task for a major client, Eastern Airlines [Rec. 138], but with the understanding that he would later be transferred to the employer's legal assistant program to perform substantive paralegal assignments [Rec. 239-240].
Although the client, Eastern Airlines, later filed for bankruptcy protection, the employer thereafter hired appellant as a full-time legal assistant on August 1, 1989 [Rec. 135, 144]. 1/ [footnotes to this brief are included at the conclusion of the text]

Without exception appellant received above average and/or outstanding performance evaluations throughout his tenure [Rec. 12]. However, he was not routinely assigned substantive tasks as he had originally been promised [Rec. 242-243]. Indeed, in March 1990, despite his above average or outstanding job performance appellant was demoted 2/ to the employer's litigation support department, supervised by Christine Robertson ("Robertson"), where the tasks available to appellant required less advanced skills than are required of a legal assistant [Rec. 242-243].

In March 1990, when appellant was reassigned from the legal assistant program to the litigation support department [Rec. 132], his newly-designated supervisor, Robertson, told appellant that upon posting to litigation support, a supervisory position for him was a "distinct possibility" [Rec. 242]. Presumably, opportunities for promotion to the position of "project leader," 3/ or like supervisory position, were available to appellant; appellant was not offered any such supervisory position [Rec. 291-325, 457-462], despite performance evaluations that consistently rated his work above-average or outstanding [Rec. 12], and that acknowledged his supervisory abilities [Rec. 310].

Throughout his tenure, appellant was subjected to harassment on the basis of his perceived sexual orientation (homosexual) by various staff persons, supervisory personnel, and attorneys [Rec. 38, 179-185]. In May 1989 a coworker told appellant that there was a rumor circulating among the employer's personnel that appellant was homosexual [Rec. 341].

On the afternoon of October 23, 1991 appellant met with Earl Segal ("Segal"), the partner in charge of the legal assistant program, to request a change in office assignment 4/ or promotion to the legal assistant program [Rec. 145]. 5/ Appellant discussed with Segal a few incidents of harassment [Rec. 145].

During appellant's tenure one litigation support employee was promoted to the legal assistant program; a second litigation support employee was likewise promoted some time after appellant's termination [Rec. 41]. See McNeil, D.D.C. no. 93-0477 at 2 n. 2. (See Appendix B to this brief). See Uffelman v. Lone Star Steel Co., 863F.2d at 408 (instances of prior disparate treatment are relevant to a finding of pretext in the termination decision).

On October 24, 1991 appellant met with a member of the employer's management team, Malcolm Lassman ("Lassman"), and another partner, Dennis M. Race ("Race"), both of whom wanted to obtain a more detailed account of the harassment previously reported to Segal [Rec. 251-252]. Race and Lassman told appellant that they would investigate appellant's harassment complaint and look into appellant's request for promotion from the litigation support department to the legal assistant program [Rec. 259, 349].

On October 29, 1991 Race 6/, together with Robertson and personnel administrator Laurel Digweed ("Digweed"), met with appellant, and Race advised appellant that a decision had been reached to terminate appellant's employment [Rec. 138]. The employer's personnel records designate Race, Robertson, and Digweed as the three decisionmakers who terminated appellant's employment [Rec. 167]. Race told appellant that he had investigated appellant's complaint, that appellant's charges could not be substantiated, and that there appeared to be a lack of fit between appellant and other firm personnel [Rec. 138-139, 349].

Race also explained that he had discussed the matter with two (unidentified) consultants [Rec. 29]. (The employer later identified the consultants, in interrogatory responses filed with DHR, as an Employee Assistance Program counselor and a psychiatrist [Rec. 137]).

By its own written admissions, the employer acknowledges that it did not advise appellant, at the time of job dismissal, that his employment was being terminated because of the employer's concerns about appellant's mental health and stability, or that his employment difficulties were attributable, in the opinion of a psychiatrist, to an identifiable psychiatric symptom ("ideas of reference") [Rec. 74, 138-139].

At the termination meeting Race told appellant that he had investigated the possibility of transferring appellant to the legal assistant program but that the legal assistant administrator, Maggie Sinnott ("Sinnott"), and the legal assistant coordinator both stated that they could not work with appellant because they found him difficult to work with and were afraid of him [Rec. 349]. 7/

Race told appellant that he had learned during the course of his investigation that appellant ignored directions by fellow employees to correct his work product [Rec. 349, 454], and, by necessary implication, that the quality of appellant's work was adversely affected as a consequence. Race expressly told appellant that the quality of his work product had deteriorated over time [Rec. 277]. 8/

DHR determined that there was no credible evidence that the employer terminated appellant because of his sexual orientation or that appellant was harassed because of his sexual orientation [Rec. 19]. DHR determined that the employer's decision to terminate appellant was based on the employer's concerns about appellant's mental health [Rec. 19]. The employer's concerns, according to DHR, were prompted by the nature of the incidents that appellant communicated to the employer which he perceived as harassment 9/ and statements by appellant's supervisor and coworkers [Rec. 75] that they found appellant's behavior sometimes disruptive and frightening [Rec. 19].

DHR also found that the employer consulted a counselor and a psychiatrist because of the emotional and psychological nature of appellant's allegations and his coworkers' statements [Rec. 17]. The psychiatrist, identified by DHR as Gertrude R. Ticho, M.D. ("Dr. Ticho"), advised the employer that appellant's harassment complaint appeared to be the product of a psychiatric symptom, "ideas of reference," causing him to attach a negative meaning to trivial events, and cautioned that individuals in similar circumstances may become violent [Rec. 17].

DHR concluded that the employer's concern about appellant's mental health, based on the nature of the incidents appellant perceived as harassment and the advice of mental health professionals that appellant needed counseling and that according to a psychiatrist could engage in violent behavior, was sufficient grounds for the employer's action to terminate appellant [Rec. 7].

V. ARGUMENT

A. DHR's determination of no probable cause is arbitrary and capricious in that the agency's finding that (1.) appellant's performance evaluations were uniformly above-average or outstanding throughout his tenure combined with its finding that (2.) appellant believed, throughout his tenure, that he had been subjected to a continuing pattern of unlawful harassment do not lead rationally to the agency's determination that the employer's proffered reason for the termination (namely, that the nature of appellant's report of harassment to the employer prompted the employer to become reasonably concerned about appellant's mental stability and suitability for employment) was nonpretextual and worthy of credence.

While the precise standard for reviewing a determination of no probable cause has yet to be definitively established by the Court of Appeals, see Simpson v. District of Columbia Office of Human Rights, 597 A.2d 392, 406 (D.C. 1991), 10/ the Superior Court in the proceedings below adopted the standard advocated by appellant in Simpson: was the determination "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"? Id. [Sup. Ct. Rec. 35-36].

"The scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfr's. Ass'n. of U.S., Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983). "Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Id. 11/; accord, Bowman Transportation v. Arkansas-Best Freight System, 419 U.S. 281, 285 (1974) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)) (a reviewing court applying the arbitrary and capricious standard must determine whether the agency has articulated a "rational connection between the facts found and the choice made").

In the present matter DHR concluded that the employer's decision to terminate was based on concerns regarding appellant's mental health arising from the nature of the ten incidents appellant submitted that he perceived as harassment [Rec. 7], the details of which incidents are enumerated by DHR as findings of fact 4(a) through 4(j) [Rec. 12-16]. "That concern," concluded DHR, "coupled with advice of mental health professionals that [appellant] needed counseling and that according to one professional could engage in violent behavior, was sufficient grounds for [the employer's] action to terminate [appellant]" [Rec. 7].

A simple reconfiguration of DHR's findings of fact (supplemented by additional pertinent facts from the record) will amply show that DHR's determination of no probable cause is arbitrary and capricious: DHR's finding that appellant's performance evaluations (which rated his work product and conduct as an employee, including his ability to work with other personnel) were uniformly above-average or outstanding throughout his tenure [Finding of Fact 2] taken together with its finding that appellant believed, throughout his tenure, that he had been subjected to a continuing pattern of unlawful harassment [Finding of Fact 4(a) through 4(j)] do not lead rationally to the agency's determination that the employer's proffered reason for the termination (namely, that the nature of appellant's report of harassment to the employer prompted the employer to
become reasonably concerned about appellant's mental stability and suitability for employment) was nonpretextual and worthy of credence.

Indeed, assuming that the employer's proffered reason for the termination is worthy of credence--that the employer did believe that appellant's report that he had been harassed during the entire period of his employment was the product of a psychiatric symptom that rendered him potentially violent--requires the court to infer that it did not strike the employer as a tad askew that appellant was able to perform his job, without exception, in an above-average or outstanding manner notwithstanding his infirmity: and, more, that it did not become evident to the employer's management team that appellant was in fact potentially violent and not suitable for employment until about 3« years into his tenure, in late October 1991--and then, only days after appellant lodged a complaint of harassment against his supervisor, Robertson, and others; advised the employer that he was homosexual; and requested a job promotion.

The following factual analysis demonstrates not only that there is no "rational connection" between the facts found by DHR and the agency's no probable cause finding, as required by the arbitrary and capricious standard, but, additionally, provides persuasive circumstantial evidence that the employer's proffered explanation for the termination is "unworthy of credence," and therefore pretextual in nature. See State Farm, 463 U.S. at 43; Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1980).

1. Finding of Fact 4(a) reflects the determination that appellant had a perception that he was being harassed on about March 4, 1988 [Rec. 13] that was attributable, in the view of a psychiatrist, to a psychiatric symptom ("ideas of reference") that rendered him potentially violent [Rec. 17, 123]; further, the mental state to which the perception of harassment was attributable rendered appellant, in the employer's view, a negligence risk [Rec. 148] and not suitable for employment [Rec. 18].

As of March 4, 1988 appellant was employed by the firm in the capacity of an agency-supplied temporary legal assistant [Rec. 239].

2. Finding of Fact 4(b) reflects the determination that appellant had a perception that he was being harassed some time in May 1988 [Rec. 13] that was attributable, in the view of a psychiatrist, to a psychiatric symptom ("ideas of reference") that rendered him potentially violent [Rec. 17, 123]; further, the mental state to which the perception of harassment was attributable rendered appellant, in the employer's view, a negligence risk [Rec. 148] and not suitable for employment [Rec. 18].

As of May 1988 appellant was employed by the firm in the capacity of an agency-supplied temporary legal assistant [Rec. 239].

3. Finding of Fact 1 reflects that appellant was hired by the employer as a temporary legal assistant in June 1988 [Rec. 12] (specifically, June 13, 1988 [Rec. 239]).

4. Finding of Fact 4(c) reflects the determination that appellant had a perception that he was being harassed some time in mid-June 1988 [Rec. 13]) that was attributable, in the view of a psychiatrist, to a psychiatric symptom ("ideas of reference") that rendered him potentially violent [Rec. 17, 123]; further, the mental state to which the perception of harassment was attributable rendered appellant, in the employer's view, a negligence risk [Rec. 148] and not suitable for employment [Rec. 18].

5. Finding of Fact 2 reflects that appellant received an above-average or outstanding performance evaluation in the fall of 1988 for work quality and professional conduct in the previous six-month period [Rec. 12]). The employer failed to produce this performance evaluation [Rec. 149-165, 358], despite an express request by DHR to the employer for all of appellant's performance evaluations [Rec. 91-92].

6. Finding of Fact 4(d) reflects the determination that appellant had several perceptions that he was being harassed beginning in late March 1989 [Rec. 14] that were attributable, in the view of a psychiatrist, to a psychiatric symptom ("ideas of reference") that rendered him potentially violent [Rec. 17, 123]; further, the mental state to which the perception of harassment was attributable rendered appellant, in the employer's view, a negligence risk [Rec. 148] and not suitable for employment [Rec. 18].

The series of paranoid "ideas of reference" concerned another employee (Stacey Schaar) [Rec. 140] who, reportedly, was later terminated for gross misconduct, in about May 1990 [Rec. 360]. See Appendix A to this brief.

7. Finding of Fact 2 reflects that appellant received an above-average or outstanding performance evaluation in the spring of 1989 for work quality and professional conduct in the previous six-month period [Rec. 12]. The employer failed to produce this performance evaluation [Rec. 149-165, 358], despite an express request by DHR to the employer for all of appellant's performance evaluations [Rec. 91-92].

8. Finding of Fact 1 reflects that the employer hired appellant as a full-time employee with benefits on August 1, 1989 [Rec. 12].

9. Finding of Fact 2 reflects that appellant received an above-average or outstanding performance evaluation in the fall of 1989 for work quality and professional conduct in the previous six-month period [Rec. 12]. The employer failed to produce this performance evaluation [Rec. 149-165, 358], despite an express request by DHR to the employer for all of appellant's performance evaluations [Rec. 91-92].

The performance evaluation states in part, with specific reference to appellant's interpersonal skills: "[appellant] 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 [appellant's] own sense of commitment to the case" (Constance M. Brown, 11/6/89) [Rec. 310].

10. The employer proffered to DHR, in May 1992, the following description of appellant's mental status and ability to interact with co-workers, as of March 1990: "During his transition from a legal assistant position (paralegal) to his work with the litigation support department [in March 1990 [Rec. 132]], [appellant] had several discussions with his direct supervisor [Robertson] about problems with interacting with co-workers and occasional outbursts" [Rec. 139].

Presumably, according to the employer, appellant's conduct remained intermittently violent and disruptive for the remaining 19 months of his tenure. Appellant's personnel file does not include a record of any oral or written reprimands [Rec. 167].

11. Finding of Fact 4(e) reflects the determination that appellant had a perception that he was harassed--by appellant's direct supervisor, Robertson--on about March 30, 1990 [Rec. 14-15] that was attributable, in the view of a psychiatrist, to a psychiatric symptom ("ideas of reference") that rendered him potentially violent [Rec. 17, 123]; further, the mental state to which the perception of harassment was attributable rendered appellant, in the employer's view, a negligence risk [Rec. 148] and not suitable for employment [Rec. 18].

12. Finding of Fact 2 reflects that appellant received an above-average or outstanding performance evaluation in the Spring of 1990 for work quality and professional conduct in the previous six-month period [Rec. 12].

The performance evaluation dated June 11, 1990--prepared by Constance M. Brown and reviewed by Robertson--does not reflect any discussions with Robertson in March 1990 concerning problems with interacting with co-workers and occasional outbursts [Rec. 311-315], as alleged by the employer [Rec. 139].

13. Finding of Fact 4(j) reflects the determination that appellant had a perception that he was harassed some time in 1990 [Rec. 16] that was attributable, in the view of a psychiatrist, to a psychiatric symptom ("ideas of reference") that rendered him potentially violent [Rec. 17, 123]; further, the mental state to which the perception of harassment was attributable rendered appellant, in the employer's view, a negligence risk [Rec. 148] and not suitable for employment [Rec. 18].

14. Finding of Fact 2 reflects that appellant received an above-average or outstanding performance evaluation in the fall of 1990 for work quality and professional conduct in the previous six-month period [Rec. 12]. The employer failed to produce this performance evaluation [Rec. 149-165, 358], despite an express request by DHR to the employer for all of appellant's performance evaluations [Rec. 91-92].

15. Finding of Fact 4(f) reflects the determination that appellant had a perception that he was harassed--by appellant's direct supervisor, Robertson--some time in April 1991 [Rec. 13] that was attributable, in the view of a psychiatrist, to a psychiatric symptom ("ideas of reference") that rendered him potentially violent [Rec. 17, 123]; further, the mental state to which the perception of harassment was attributable rendered appellant, in the employer's view, a negligence risk [Rec. 148] and not suitable for employment [Rec. 18].

16. Finding of Fact 2 reflects that appellant received an above-average or outstanding performance evaluation in the spring of 1991 for work quality and professional conduct in the previous six-month period [Rec. 12].

The performance evaluation, prepared in May 1991 by Robertson [Rec. 321-325], contains the following comments: "[appellant] seems as close to the perfect employee as it is possible to get!" "He is reliable, hard-working and extremely responsible" [Rec. 325].

17. Finding of Fact 4(g) reflects the determination that appellant had a perception that he was harassed--by appellant's direct supervisor, Robertson--some time in the summer of 1991 [Rec. 15] that was attributable, in the view of a psychiatrist, to a psychiatric symptom ("ideas of reference") that rendered him potentially violent [Rec. 17, 123]; further, the mental state to which the perception of harassment was attributable rendered appellant, in the employer's view, a negligence risk [Rec. 148] and not suitable for employment [Rec. 18].

18. In July 1991 Robertson called a meeting of three of the black employees under her supervision, including a litigation support employee, Patricia A. McNeil ("McNeil"), and asked them if they thought she was prejudiced against blacks [Rec. 58]. Complaint for Damages at 12, McNeil v. Akin, Gump, Strauss, Hauer & Feld, no. 93-0477 (D.D.C., filed Mar. 5, 1993) [Rec. 58]. Robertson explained that her black male receptionist had accused her of being prejudiced against blacks and she wanted to know whether they shared that view [Rec. 58]. All three employees responded in the affirmative and provided her the reasons they felt that way, giving her examples of the way she treated blacks differently than whites [Rec. 58].

19. Finding of Fact 4(h) reflects the determination that appellant had a perception that he was harassed [Rec. 15-16] some time in about early August 1991 that was attributable, in the view of a psychiatrist, to a psychiatric symptom ("ideas of reference") that rendered him potentially violent [Rec. 17, 123]; further, the mental state to which the perception of harassment was attributable rendered appellant, in the employer's view, a negligence risk [Rec. 148] and not suitable for employment [Rec. 18].

20. Finding of Fact 4(i) reflects the determination that appellant had a perception that he was harassed on October 2, 1991 [Rec. 13] that was attributable, in the view of a psychiatrist, to a psychiatric symptom ("ideas of reference") that rendered him potentially violent [Rec. 17, 123]; further, the mental state to which the perception of harassment was attributable rendered appellant, in the employer's view, a negligence risk [Rec. 148] and not suitable for employment [Rec. 18].

21. Finding of Fact 4 reflects the determination that appellant met with attorney managers Segal (on October 23, 1991) and Race and Lassman (on October 24, 1991) to report incidents that he believed constituted unlawful harassment [Rec. 12-13]. Three of the reported incidents concerned appellant's direct supervisor, Robertson [Findings of Fact 4(e); 4(f); and 4(g)] [Rec. 14-15].

22. Segal admits that on the afternoon of October 23, 1991 he and Lassman discussed the possibility of promoting appellant from the litigation support department to the legal assistant program [Rec. 145].

23. On October 24, 1991 Robertson prepared a performance evaluation, which, unlike all prior performance evaluations, included statements critical of appellant's ability to interact with coworkers [Rec. 149-154]. The performance evaluation was not discussed with appellant (and so indicates [Rec. 154]), and is therefore invalid per the employer's own personnel policies [Rec. 150]. And on October 25, 1991 Robertson prepared a memorandum addressed to Race that discussed appellant's alleged difficulties in interacting with coworkers [Rec. 146-147].

The (invalid) performance evaluation prepared by Robertson on October 24, 1991 together with Robertson's memorandum to Race dated October 25, 1991 (in the period after appellant's complaint of harassment) constitute the only contemporaneous written documentation of record, prepared prior to the employer's decision to terminate, that appellant had difficulties interacting with coworkers.

24. On October 29, 1991 Race advised appellant that the employer had decided to terminate appellant's employment, effective immediately [Rec. 138-139]. The termination decision followed the employer's investigation of appellant's allegations of harassment, which investigation involved interviews with some of appellant's coworkers [Finding of Fact 5] [Rec. 17], presumably including black coworkers, in the litigation support department supervised by Robertson.

25. On April 9, 1992, McNeil, a black coworker in the firm's litigation support department supervised by Robertson, was summarily terminated following a disagreement with the firm's Personnel Administrator, Digweed [Rec. 59-60]. On March 5, 1993 McNeil filed a Complaint for Damages in the U.S. District Court for the District of Columbia pursuant to Title VII of the Civil Rights Act of 1964 for redress of injuries sustained as a result of the employer's unlawful conduct terminating her employment after 4« years because of her race. Complaint for Damages, McNeil, D.D.C. no. 93-0477 [Rec. 57-61]. McNeil's complaint alleged that Robertson engaged in a long-standing pattern or practice of racially offensive and discriminatory conduct, and that Robertson colluded with Digweed in terminating McNeil [Rec. 58-60].

On November 29, 1993 the U.S. District Court for the District of Columbia entered summary judgment for the employer, Akin Gump. McNeil, D.D.C. no. 93-0477. (See Appendix B to this brief). The court found that (1) Akin Gump's managers (specifically citing Digweed and the employer's managing partner, Hoffman) had no knowledge (or reason to know) that Robertson had engaged in racially offensive or discriminatory conduct toward black employees under her supervision, and that (2) Robertson had not colluded with Digweed in terminating McNeil. Id. at 7-9. The court found, however, that Robertson exhibited racial animus toward black employees under her supervision. Id. at 8.

The foregoing factual analysis makes abundantly clear that throughout the period June 13, 1988 through October 23, 1991 there is no contemporaneous documentation that supports the employer's proffered explanation for its decision to terminate appellant: namely, contemporaneous evidence that appellant had a long-standing history of conduct that was disruptive and frightening to coworkers, or that appellant's perception that he had been subjected to unlawful harassment could, credibly, be attributed--by knowledgeable and experienced attorney managers--to a psychiatric symptom that rendered him potentially violent, a negligence risk to the employer, and not suitable for employment.

In assessing the inferences to be drawn from the circumstances of the termination, the court must be alert to the fact that "[e]mployers are rarely so cooperative as to include a notation in the personnel file" that the firing is for a reason expressly forbidden by law. Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464-465 (2nd Cir. 1989) quoting Thornbrough v. Columbus & Greenville Railroad Co., 760 F.2d 633, 638 (5th Cir. 1985). Thus, the absence of direct or explicit evidence that a challenged personnel action was motivated by [appellant's membership in a protected class] is not fatal to [an employment discrimination claim]. Id. at 465. A showing that a proffered justification is pretextual is itself sufficient to support an inference that the employer intentionally discriminated. Id. at 465 citing Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1396 (3d Cir. 1984), cert. denied, 469 U.S. 1087 (1984). Further, [appellant] is not required to prove that the employer's proffered reasons are false but only that they were not the only reason and that [appellant's membership in a protected class] made a difference. Id. at 465 citing Hagelthorn v. Kennecott Corp., 710 F.2d 76, 82 (2d Cir. 1983); Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1042 (2d Cir. 1979); Pico v. Board of Education, Island Trees Union Free School District, 638 F.2d 404, 437 (2d Cir. 1980) (Newman, J., concurring in the result), aff'd, 457 U.S. 853 (1982).

In the present case, circumstantial evidence that the employer's proffered justification for the termination was pretextual centers on the fact that the only evidence (credible or otherwise) that supports the employer's personnel action emerged beginning on October 23, 1991, during the time period after appellant (1) lodged a complaint of harassment against his supervisor Robertson, and others; (2) advised the employer that he was homosexual; and (3) requested a job promotion.

It is highly probative of the employer's discriminatory motive and the pretextual nature of its proffered explanation for the termination, therefore, that the employer omitted, misrepresented, or improperly denied, in its sworn interrogatory responses to DHR, material facts relating to (1) appellant's complaint of harassment against Robertson; (2) the employer's knowledge of appellant's sexual orientation; and (3) appellant's request for promotion.

First, appellant's complaint of harassment comprised ten incidents [Finding of Fact 4(a) through 4(j)] [Rec. 12-16]. Three of the ten incidents involved Robertson [Findings of Fact 4(e), 4(f), and 4(g)] [Rec. 14-15]. The employer alleges that appellant's complaint was evidence of appellant's "paranoia" [Rec. 140] and not evidence of unlawful harassment [Rec. 136-137]. It is noteworthy, therefore, that in its own enumeration of the incidents the employer omits all reference to the three incidents relating to Robertson [Rec. 136]. Thus, the employer consistently omitted purportedly probative evidence of appellant's paranoia where that evidence concerned a supervisor known by certain of her employees to engage in a pattern of racially discriminatory and offensive behavior [Rec. 58], and who was later determined by a U.S. District Court to have exhibited racial animus in her dealings with those employees. See McNeil, D.D.C. no. 93-0477 at 8. (See Appendix B to this brief.)

In its own enumeration of appellant's harassment report, the employer lists only six incidents [Rec. 136]. The employer omitted the three incidents relating to Robertson and the one incident relating to Schaar, a legal assistant who was reportedly terminated for gross misconduct in about May 1990 [Rec. 360]; in all other respects the respective enumerations of the appellant [R. 13-16] and the employer correspond. (See Appendix A to this brief). Four of the 10 incidents (40%) involved one employee known by management to have engaged in serious misconduct (Schaar), and a supervisor (Robertson) later determined by a U.S. District Court to have exhibited racial animus. See McNeil, D.D.C. no. 93-0477 at 8. 12/ (See Appendix B to this brief).

The only evidence of record that supports the employer's decision to terminate emerged in the period after appellant complained about Robertson; and the employer omitted in its interrogatory responses all evidence that appellant had ever complained about Robertson [Rec. 135-140]. (See Appendix A to this brief.)

Second, the employer expressly and unequivocally denied to DHR that the subject of appellant's sexual orientation was ever brought up by appellant or anyone "involved directly or indirectly" with appellant's employment during the entire period of appellant's tenure [Rec. 139]; and that "[appellant] never complained of discrimination treatment based on sexual orientation" [Rec. 140]. DHR found, however, that appellant advised the employer of his sexual orientation on October 23, 1991 [Finding of Fact no. 7] [R. 17]. The only evidence of record that supports the employer's decision to terminate emerged in the period after appellant gave the employer notice of his sexual orientation, and the employer improperly denied to DHR that appellant had ever given notice of his sexual
orientation.

The employer's factual misrepresentation of its knowledge of appellant's membership in a protected class is a lie that taints the termination decision as pretextual, and leaves little doubt that the underlying reason for the termination was a forbidden one. See Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995) ("Pretext . . . means a lie, specifically a phony reason for some action."); cf. Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1124 (7th Cir. 1994) ("If the only reason an employer offers for firing an employee is a lie, the inference that the real reason was a forbidden one . . . may rationally be drawn.") quoting Shager v. Upjohn Co., 913 F.2d 398, 401 (7th Cir. 1990). Obviously, for the employer, appellant's sexual orientation "made a difference" in the termination decision, as evidenced by the employer's false assertion to DHR that the employer had no knowledge of appellant's sexual orientation even after October 23, 1991 [Rec. 139]. See Ramseur, 865 F.2d at 465. DHR's determination that the employer's actions were not pretextual [Rec. 7], insofar as that determination excuses the employer's act of improperly denying its knowledge of appellant's sexual orientation even after October 23, 1991 [Rec. 139]--a denial incontrovertibly at odds with DHR's own finding of fact [Finding of Fact no. 7] [R. 17]--is a "clear error of judgment" that renders the agency's action arbitrary and capricious. See Citizens to Preserve Overton Park v. Volpe 401 U.S. 402, 416 (1970) (to determine whether the choice made by the agency was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, the court must consider whether there has been a clear error of judgment).

Third, the employer, in its interrogatory responses [Rec. 73-76, 135-140], omits any reference to the fact that appellant, on October 23, 1991, requested a promotion to the legal assistant program, and that Segal and Lassman had, in fact--as admitted by Segal [Rec. 145]--considered a promotion. The only evidence of record that supports the employer's decision to terminate emerged in the period after appellant requested a promotion. And not only did the employer omit any reference to appellant's request for promotion in its interrogatory responses [Rec. 73-76, 135-140], but it improperly concealed its prior action of demoting appellant in March 1990, deceptively referring to the demotion only as a "transfer" [Rec. 135] or "transition" [Rec. 139]. See McNeil, D.D.C no. 03-0477 at 2 n. 2 (a transfer from Akin Gump's litigation support department to its legal assistant program is a promotion). (See Appendix B to this brief.) See Uffelman v. Lone Star Steel Co.,
863 F.2d at 408 (instances of prior disparate treatment are relevant to a finding of pretext in the termination decision).

The employer's act of investigating a possible promotion of appellant in the period immediately prior to the termination [Rec. 145] (and its act of concealing that contemplated corrective action, in its pleadings to DHR [Rec. 73-76, 135-140]) taints the employer's proffered justification for the termination--that appellant was not suitable for employment by reason of mental instability--as pretextual. Cf. McNeil v. Economics Laboratory, Inc. 800 F.2d 111, 114 (7th Cir. 1986) (employer who immediately offered a terminated sales manager a commissioned sales position undermined its attempt to demonstrate that the employee had been fired for behavioral problems, rather than because of his age, thereby violating the Age Discrimination in Employment Act of 1967).

B. DHR's determination that the employer's proffered reason for the termination was nonpretextual and worthy of credence--given the employer's concerns regarding appellant's mental stability and suitability for employment, based on the statements of appellant's direct supervisor, co-workers [Finding of Fact no. 5], and the advice of mental health professionals--is arbitrary and capricious or otherwise not in accordance with law.

1. Appellant's supervisor (one of the three decisionmakers
who terminated appellant's employment) demonstrated
animus against appellant by engaging in several hostile
or offensive acts in the period after appellant
complained to the employer's attorney managers that
appellant had been subjected to sexual and religious
harassment by Robertson.

The employer's personnel records designate appellant's direct supervisor, Robertson, one of the three decision makers who terminated appellant's employment [Rec. 167].

"[E]vidence 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).

Robertson engaged in several acts of retaliation against appellant in the period after appellant lodged a complaint of harassment against Robertson, on sexual and religious grounds, to the employer's attorney managers. Evidence of Robertson's retaliatory animus is relevant to the issue of pretext. 13/ See Lindsey, 757 F. Supp. at 896.

A prima facie case of retaliation under the Act, D.C. Code Ann. 1-2525, is established by evidence that the employee was engaged in a protected activity and that the employee suffered adverse personnel action as a consequence. Goos v. National Ass'n of Realtors, 715 F.Supp. 2, 3 (D.D.C. 1989). Any adverse personnel action in opposition to an activity protected under the Act may constitute retaliation. D.C. Code Ann. 1-2525 (Repl. Vol. 1992); Ravinskas v. Karalekas, 741 F. Supp. 978, 979-980 (D.D.C. 1990) (retaliation may consist of acts of opposition to various activities and is not limited to actions provoked by filing a complaint with DHR).

Appellant's meetings with the employer's attorney managers on October 23 and October 24, 1991 to lodge a harassment complaint against various employees, including Robertson, was a protected activity under the Act. See Ravinskas v. Karalekas, 741 F. Supp. at 979-980; Goos v. National Ass'n of Realtors, 715 F. Supp. at 3.

The record includes documentary evidence of two adverse personnel actions against appellant immediately following his complaint of harassment, comprising (1) a performance evaluation prepared by Robertson dated October 24, 1991 [Rec. 149-154] and (2) a memorandum by Robertson to Race dated October 25, 1991 [Rec. 146-147].

The performance evaluation dated October 24, 1991, unlike all previous performance evaluations issued to appellant, contains comments critical of appellant's ability to interact with coworkers [Rec. 149-154]. None of the performance evaluations issued prior to October 24, 1991 indicated in any manner that appellant had difficulties in interacting with coworkers [Rec. 290-325]. The performance evaluation was not discussed with appellant (and so indicates [Rec. 154]), contrary to the employer's written policy [Rec. 150], and is therefore invalid on its face. Robertson prepared the performance evaluation the day after appellant's initial report of harassment to Segal, on the afternoon of October 23, 1991 [Rec. 145], and on the very day of appellant's official complaint of harassment to Race and Lassman, which took place at the start of the business day on October 24, 1991 [Rec. 23, 149-154].

Robertson's action in preparing a performance evaluation (1) immediately after appellant had lodged a harassment complaint against her (and others) on sexual and religious grounds, (2) that was per se invalid per the employer's written policy, and (3) that contained false comments about appellant's ability to work with others raises a presumption that the performance evaluation was prepared as an act of retaliation in opposition to appellant's protected activity of complaining of harassment. The preparation of the per se invalid performance evaluation on the day appellant reported to the employer incidents of harassment satisfies the elements of a prima facie retaliation case, and is, moreover, probative of Robertson's discriminatory animus against appellant and the pretextual nature of decisionmaker Robertson's action in terminating appellant's employment. See Lindsey, 757 F. Supp. at 896.

Additional evidence of retaliation is presented by a memorandum written by Robertson to Race dated October 25, 1991--one day after appellant reported incidents of sexual and religious harassment, concerning Robertson, to the employer--in which Robertson states her concerns regarding appellant's fitness as an employee [Rec. 146-147]. The memo's content, which includes numerous factual distortions, contradicted by the employer's own business records [Rec. 356-359], including the egregiously false accusation that Robertson had assigned appellant to a private office because of difficulties he allegedly had with coworkers [Rec. 369-370]--coupled with the timing of the memo--satisfies a prima facie retaliation case, and, again, is probative of Robertson's discriminatory animus against appellant and the pretextual nature of decisionmaker Robertson's action in terminating appellant's employment. See Lindsey, 757 F. Supp. at 896.

So specious were the retaliatory accusations made by Robertson to Race concerning appellant's fitness as an employee that when the employer was called upon, in a supplemental interrogatory posed by DHR [Rec. 124], to clarify the factual basis of its earlier statement to DHR that appellant was "hard to supervise" [Rec. 148], the employer was forced to fall back on a generalized restatement of the employer's factually unsupported assertions contained in its earlier pleadings, offering no new facts, but instead quoting verbatim a portion of its previous interrogatory response [Rec. 124].

The record also reflects that in the period immediately after the termination Robertson advised her employees that she had arranged to have the lock to her department's office suite changed for fear that appellant might return to the office with the intent to kill Robertson [Rec. 41] (presumably, in Robertson's view, in retaliation for Robertson's action in terminating appellant's employment). Robertson's reported statement imputing homicidal intent to appellant [Rec. 41] had no basis in Robertson's prior dealings with appellant [Rec. 146-147, 311-325, 457-462] and appellant's disciplinary record [Rec. 167] and is, therefore, defamatory, hostile, offensive, and probative of Robertson's discriminatory animus against appellant and the pretextual nature of decisionmaker Robertson's action in terminating appellant's employment. See Lindsey, 757 F. Supp. at 896.

2. The generalized accusations of coworkers and appellant's
supervisor made in the period after appellant's
complaint of harassment to the employer's attorney
managers [Finding of Fact no. 5] are controverted by
appellant's personnel record, which personnel record was
in the custody of the employer's personnel administrator
(one of the three decisionmakers who terminated
appellant's employment).

DHR found the employer investigated appellant's allegations, interviewing his supervisor, Robertson, and some of his coworkers [Finding of Fact no. 5] [Rec. 17]. DHR found that the responders to the interviews indicated that appellant was uncomfortable with his coworkers, and that his behavior was sometimes disruptive and frightening to his coworkers [Finding of Fact no. 5] [Rec. 17].

Though an agency's finding may be supported by substantial evidence, it may nonetheless reflect arbitrary and capricious action; "[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Bowman Transportation v. Arkansas-Best Freight System, 419 U.S. at 284 n. 2 quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

In the present case several factors militate against the weight of evidence derived from the employer's interviews of appellant's supervisor and coworkers, all of which evidence concerning appellant's conduct as an employee and ability to interact with coworkers emerged in the period after appellant's complaint of harassment against those very employees.

It is recognized 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 coworkers. See, e.g., Jeppsen v. Wunnicke, 611 F. Supp. 78, 82 (D.C. Alaska 1985). That the employer's attorney managers could have uncritically accepted coworker statements about appellant's past behavior as genuine and unbiased is not worthy of credence in a situation in which the record also reflects that:

---without exception, appellant's performance evaluations
prepared prior to the harassment complaint specifically
rated appellant's ability to work with others at least
average or above average [Rec. 295, 305, 308, 312-313,
317-318, 322-323];

---the performance evaluation prepared in May 1991 (five
months before the termination) includes a notation by
Robertson that appellant was a "team player" [Rec. 323];
and an earlier evaluation prepared in November 1989
describes appellant as having "inspired" his coworkers
[Rec. 310];

---those performance evaluations prepared prior to
appellant's harassment complaint (which, it will be
recalled, consistently rated appellant's fitness as an
employee above-average or outstanding [Finding of Fact
no. 2] [Rec. 12]), memorialize no contemporaneous
concerns about "frightening" or "disruptive" behavior
[Rec. 290-325]; and

---appellant's personnel file includes no record of any
reprimands, oral or written [Rec. 132, 167], despite
what was (according to Robertson's report to firm
management following appellant's harassment
complaint 14/) appellant's history of occasional
outbursts, reportedly violent at times [Rec. 139-140],
extending from at least March 1990 (when appellant was
assigned to Robertson's department [Rec. 132]) until his
termination--19 months later!--in late October 1991.

It bears noting that appellant's performance evaluations (which memorialize appellant's employment history including his conduct as an employee and ability to work with others) together with appellant's personnel file (which, in appellant's case, would reveal that he had no history of reprimands) were in the custody of the firm's personnel department, headed by Digweed, one of the three decisionmakers who terminated appellant's employment [Rec. 167]. Thus, all of the evidence derived from appellant's performance evaluations and personnel file (employee discipline record) that "fairly detracts" from the weight of DHR's finding that appellant's coworkers and direct supervisor found appellant's behavior "frightening" and "disruptive" (as reported in the period after appellant's harassment complaint) was in the custody of decisionmaker Digweed, who, therefore, had at least constructive knowledge of prior recorded evidence that failed to support coworkers' allegations. 15/ See Bowman Transportation v. Arkansas-Best Freight System, 419 U.S. at 284. That the decisionmakers, including Digweed, could have found Robertson's and coworkers' allegations about appellant's prior conduct genuine and unbiased is not worthy of credence, and therefore Digweed's (and the other decisionmakers') termination decision based on those interview responses carries the taint of pretext. 16/ See Burdine, 450 U.S. 248 at 256.

It is further observed that despite the employer's assertion that appellant's conduct was disruptive and occasionally violent, giving rise to reasonable concerns
regarding appellant's mental health and fitness as an employee, the employer does not cite a single, specific instance of disruptive or violent behavior.

The employer did not identify any of the coworkers who were interviewed [Rec. 17, 75]. In response to a specific information request posed by DHR, the employer explained that it did not take any written statements from any coworkers [Rec. 75]. The employer also did not identify any specific acts committed by appellant that allegedly aroused the fear of coworkers [Rec. 17]. Generalized accusations that an employee has engaged in misconduct--such as a vague accusation that the employee's behavior was disruptive and frightening--in the absence of specific facts relating to the acts complained of, are not supported by substantial evidence. Cf. McCaskill v. D.C. Dept. of Empl. Services, 572 A.2d 443, 446 (D.C. 1990) (a finding that an employee has violated company policy, by itself, is not enough to sustain a conclusion that the employee was fired for misconduct). The one arguably specific (and false) reference to disruptive behavior--that appellant used to tell coworkers to "shut up"--is contained in the retaliatory memo dated October 25, 1991, prepared by Robertson [Rec. 146-147]. It is noted, incidentally, that it was the two employees who occupied workspace adjacent to appellant, in the months prior to the termination, Sherri Ann Patrick [Rec. 249] and Lutheria Harrison [Rec. 15-16], who were later rewarded--for whatever reason--with promotions [Rec. 41]. See McNeil, D.D.C. no. 93-0477 at 2 n. 2. (See Appendix B to this brief).

3. The employer's allegation that it consulted two mental
health professionals, including a psychiatrist, is
controverted by the written denials of the mental health
professionals themselves.

DHR's finding that statements and input from consulting mental health professionals contributed to the employer's concerns regarding appellant's mental health and stability (including the concern that appellant was potentially violent), thereby providing a factual basis for the employer's decision to terminate, is not in accordance with law and reflects a "clear error of judgment." See Citizens to Preserve Overton Park v. Volpe, 401 U.S. at 416.

The employer had alleged to DHR that as part of its investigation of appellant's complaint of harassment it had contacted an unnamed counselor from its Employee Assistance Program who "confirmed that removal from the work setting was the appropriate action to take" with respect to appellant [Rec. 122]. In response to a specific information request posed by DHR, Race was unable to state the identity of the Sheppard Pratt counselor with whom he consulted [Rec. 122].

In rebuttal, appellant submitted to DHR a letter dated July 14, 1993 issued by the Director of Washington Operations of Sheppard Pratt Preferred Resources, the employer's Employee Assistance Program Provider, stating that that mental health resource had no record of any communication with either Race or Lassman, the two attorney managers to whom appellant made his harassment complaint on October 24, 1991 [Rec. 63-64]. 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 [Rec. 65]; this policy applies even in instances in which the consultation with the employer is not "employee-specific" [R. 65]. The providing of a representation of the kind that the employer claims to have sought 17/ and obtained from an unnamed Sheppard Pratt counselor regarding appellant's suitability for continued employment is not consistent with Sheppard Pratt policy [Rec. 63, 64].

Sheppard Pratt serves as a counseling service that works with the employee and employer to help remediate employment difficulties; Sheppard Pratt does not "confirm" the summary removal of an employee from the work setting [Rec. 63-64], as alleged by the employer [Rec. 122].

DHR accorded no weight to the competent and persuasive documentary rebuttal evidence offered by appellant regarding Sheppard Pratt business policies, which effectively controverted the employer's "production" [Rec. 8]. DHR simply affirmed its initial finding that the consultation, as alleged by the employer, had occurred [Rec. 7-8].

The quantum of documentary evidence that appellant submitted to DHR that controverted the employer's "production" outweighs the quantum of evidence offered by the employer that it had obtained input from Sheppard Pratt. Accordingly, DHR's finding of fact amounts to no more than an impermissible "reiteration of the evidence" offered by the employer in its interrogatory response. See Rosexpress, Inc. v. District of Columbia Department of Employment Services, 602 A.2d 659, 662 (D.C. 1992) (a reiteration of the evidence is not a finding of fact).

The employer had also alleged to DHR that as part of its investigation of appellant's complaint of harassment it had contacted a psychiatrist, later identified by DHR as Dr. Ticho, who purportedly advised the employer that appellant's harassment complaint appeared to be attributable to a psychiatric symptom, "ideas of reference," causing him to attach a negative meaning to trivial events, and that individuals in similar circumstances may become violent [Rec. 17, 137]. The employer alleges that Race and Lassman consulted with Dr. Ticho by conference call [Rec. 122-123].

In rebuttal, appellant submitted to DHR a letter dated July 4, 1993, handwritten and signed by Dr. Ticho, on her letterhead, stating, in response to appellant's inquiry, that she had never spoken with Race and had not seen appellant for a diagnostic psychiatric evaluation [Rec. 62].

DHR accorded no evidentiary weight to the written denial issued by Dr. Ticho, dated July 4, 1993 [Rec. 8]. DHR questioned the letter's authenticity and found that the letter did not present new evidence that would preclude the possibility of a discussion between Dr. Ticho and another of the employer's personnel whereby appellant's case was presented and discussed without the mentioning of appellant's name [Rec. 8].

First, DHR's concern regarding the letter's authenticity lacks merit. Circumstantial evidence is sufficient to authenticate a letter. Namerdy v. Generalcar, 217 A.2d 109, 111-112 (D.C. 1966). Here, the fact that the letter is written on the author's letterhead is such circumstantial evidence. Id. Moreover, this Court recognizes that administrative agencies must apply "generous principles of admissibility." Kopff v. District of Columbia ABC Bd., 381 A.2d 1372, 1385 (D.C. 1977), aff'd, 413 A.2d 152 (1980).

Second, DHR's speculation that someone other than Race may have consulted Dr. Ticho [Rec. 8] is arbitrary and capricious in that it reflects a "clear error of judgment." See Citizens to Preserve Overton Park v. Volpe, 401 U.S. at 416. The employer expressly states that it was Race and Lassman, and no other persons, who consulted Dr. Ticho by conference call [Rec. 122-123]. And Dr. Ticho expressly denies having spoken to Race [Rec. 62] 18/.

Again, the quantum of documentary evidence that appellant submitted to DHR--here, an express denial by Dr. Ticho herself that she had consulted Race [Rec. 62]--outweighs the quantum of evidence offered by the employer to DHR in two interrogatory responses that Race (and Lassman) had consulted Dr. Ticho [Rec. 122-123, 137]. DHR's finding of fact, really an offer of plausible alternative interpretations of Dr. Ticho's letter, amounts to no more than clearly erroneous speculation that improperly reiterates the rebutted evidence offered by the employer and reflects a "clear error of judgment" that renders DHR's no probable cause determination arbitrary and capricious. See Rosexpress, Inc. v. District of Columbia Department of Employment Services, 602 A.2d at 662; Citizens to Preserve Overton Park v. Volpe, 401 U.S. at 416.

Assuming that Lassman and Race in fact consulted Dr. Ticho, it is questionable whether two experienced attorneys such as Lassman and Race, knowledgeable about the factors that might detract from the weight of a professional opinion, could credibly have believed that a complaint of harassment by an employee--with no preexisting record of prior behavioral problems--could be attributed to a psychiatric symptom associated with a risk of violence that rendered the employee not suitable for employment: and then, simply on the basis of a brief telephone conversation with a psychiatrist who never examined the employee personally.

Recognizing the questionable reliability of psychiatric opinions offered without benefit of personal examination, the principles of ethics of the American Psychiatric Association ("APA") state that "it is unethical for a psychiatrist to offer a professional opinion about [a] specific individual unless he/she has conducted an examination and has been granted proper authorization for such a statement." See THE PRINCIPLES OF MEDICAL ETHICS (WITH ANNOTATIONS ESPECIALLY APPLICABLE TO PSYCHIATRY) 9 (Washington, DC: APA 1995) [hereinafter cited as PRINCIPLES]. The APA's Ethics Committee "cautions against drawing clinical conclusions based upon information gleaned outside the clinical setting." OPINIONS OF THE ETHICS COMMITTEE ON THE PRINCIPLES OF MEDICAL ETHICS WITH ANNOTATIONS ESPECIALLY APPLICABLE TO PSYCHIATRY 58 (Washington, DC: APA 1995) [hereinafter cited as OPINIONS].

Appellant was not personally examined by Dr. Ticho 19/ [Rec. 62, 122-123], and the employer does not allege, and DHR did not find, that Dr. Ticho based her professional opinion on a review of appellant's medical records, which would be ethically acceptable per Section 7, Annotation 3 of the PRINCIPLES. See OPINIONS at 57.

A professional opinion made by a psychiatrist about a specific individual without benefit of a personal examination, or not based on a review of medical records or other unbiased or complete information, is deemed unreliable by the APA, as evidenced by the above-referenced annotations and opinions of the APA's Ethics Committee.

Whether or not the employer's attorney managers were aware of the APA's position concerning psychiatric opinions offered without benefit of personal examination, DHR's finding that the employer's attorney managers--skilled in the art of impeachment of expert witnesses and therefore sensitive to the limiting circumstances that can bias an expert professional opinion--could have reasonably concluded, on the basis of the employer's restricted consultation with Dr. Ticho, that appellant's complaint of harassment was attributable to a psychiatric symptom associated with a risk of violence that rendered appellant not suitable for employment is simply "unworthy of credence." See Burdine, 450 U.S. at 256.

C. DHR's no probable cause determination was arbitrary and capricious in that a finding that the employer had a concern for appellant's mental health and stability (based partly on the advice of mental health professionals that appellant needed counseling, and that according to a psychiatrist could engage in violent behavior) does not lead rationally to a conclusion that that concern prompted or justified the employer's decision to terminate appellant since appellant was a beneficiary of the employer's long-term disability income plan under which he qualified for long-term medical leave under the employer's established leave policy.

The term "ideas of reference," employed in Finding of Fact no. 6 [R. 17], is a psychiatric term of art, which is defined as "the assumption by a patient that the words and actions of others refer to himself or the projection of the causes of his own imaginary difficulties upon someone else; called also delusion of reference." DORLAND'S MEDICAL DICTIONARY 814 (27th ed. 1988). "Ideas of reference" are prominent in the severe (psychotic) mental disorders. R. NOLL, THE ENCYCLOPEDIA OF SCHIZOPHRENIA & THE PSYCHOTIC DISORDERS 169 (New York: Facts on File 1992). "[Ideas of reference are] [o]ne of the most common symptoms of the psychotic disorders. It is an idea that certain events or people in a person's immediate environment have a magical 'special meaning' for that person. For example, a song heard on the radio may be interpreted by a psychotic person as having been specifically played at that time to convey a special meaning to him or her." Id. at 169.

Thus, Finding of Fact no. 6 sets forth the conclusions of a psychiatrist regarding appellant's mental health and potential for violence, and employs the clinical terminology ("ideas of reference") appropriate to the description of a mental disorder. DHR also found that the employer recommended that appellant seek counseling [Rec. 17], that appellant's [pathological] hypersensitivity to his work environment prompted the employer's concerns about his mental health and ability to interact with coworkers [Rec. 19], that appellant regularly consulted mental health professionals [Finding of Fact no. 3] [R. 12], and implicitly affirmed the genuineness of the employer's alleged concern that appellant's continued presence on the employer's premises posed a negligence risk for the employer [Rec. 148].

DHR's various findings relating to the employer's concerns about appellant's mental health and stability do not, however, lead rationally to the agency's determination that the employer's concerns about appellant's mental health provided grounds for the employer's action to terminate [Rec. 7]. See State Farm, 463 U.S. at 43 (under the arbitrary and capricious standard the agency must be found to have articulated a rational connection between the facts found and the choice made).

At the time of his termination on October 29, 1991 appellant was a beneficiary of the employer's Long Term Disability Income Plan ("Plan") [Rec. 29, 42-56], underwritten by UNUM Life Insurance Company of America [Rec. 42]. The Plan provides a monthly benefit to the beneficiary-employee who is unable to perform each of the material duties of his regular occupation [Rec. 48] due to sickness or injury [Rec. 49] and who requires the regular attendance of a physician [Rec. 49]. The Plan does not exclude coverage for disability due to mental illness [Rec. 51].

The Plan does require, however, that the beneficiary-employee submit written notice of claim within 30 days of the date disability starts [Rec. 53].

Even assuming the employer had genuine concerns regarding appellant's mental stability and potential for violence [Rec. 123]--and the potential for tort liability [Rec. 148] arising out of appellant's risk of violence--the alleged business necessity for the employer's termination decision is a mere pretext for discrimination since the employer failed to utilize an available, alternative, less discriminatory means of achieving its business purpose. Cf. Zuniga v. Kleberg County Hosp., Kingsville, Tex., 692 F.2d 986, 992 (5th Cir. 1982). 20/ The employer could have avoided terminating appellant's employment while protecting itself and firm personnel by granting appellant a leave of absence in accordance with its own established long-term leave policy. Cf. Zuniga, 692 F.2d at 992.

DHR did not articulate a "rational connection" between the agency's findings that, on the one hand, (1) the employer determined (in consultation with mental health professionals, including a physician-psychiatrist) that appellant needed counseling [Rec. 19] and that (2) appellant consulted "regularly" with mental health counselors, psychologists and physician-psychiatrists [Finding of Fact no. 3] [Rec. 12] and, on the other, DHR's determination that the employer had a valid, nondiscriminatory reason for the termination. Rather, applying Zuniga, these findings simply support appellant's eligibility for a claim under the employer's long-term disability income Plan, which mandates that the beneficiary-employee require the "regular" attendance of a physician [Rec. 49]. See State Farm, 463 U.S. at 43.

Race stated the following business necessity for appellant's termination: "on the basis of disruptive work habits, unusual behavior and discussions with outside [mental health] consultants [including a physician-psychiatrist, who attributed appellant's complaint of harassment to an identifiable psychiatric symptom ("ideas
of reference") that may be associated with a risk of violent behavior], I believe that termination is warranted.

Indeed, to do otherwise may prove to be negligent" [Rec. 148]. The employer could have used alternative means to accomplish the same purpose. Cf. Zuniga, 692 F.2d at 992. Instead of terminating appellant, the employer could have granted a medical leave to appellant consistent with the employer's formal policy permitting leave of absence for reasons of medical disability, as evidenced by the employer's participation in a group Long Term Disability Income Plan [Rec. 42-56]. Cf. Zuniga, 692 F.2d at 992.

Because the employer failed to utilize an alternative, less discriminatory means of preventing harm to incumbent employees posed by an allegedly paranoid [Rec. 140], potentially violent and mentally disturbed employee [Rec. 123], the firm's asserted business purpose stands revealed as pretext, and its business necessity defense must fail. Cf. Zuniga, 692 F.2d at 994. Appellant's termination, and the resultant controversy, could easily have been avoided by the simple expedient of treating appellant no different from all the other employees eligible under the employer's long term disability leave policy. Cf. Zuniga, 692 F.2d at 994.

It is observed, additionally, that the employer effectively precluded appellant from filing a notice of claim under the Plan, which requires that notice be filed within 30 days of onset of disability [Rec. 53]. The employer failed to advise appellant at the termination meeting on October 29, 1991 of his rights under the Plan [Rec. 29] or provide sufficient facts concerning the emotional or psychological reasons for the termination to alert appellant to file a timely claim [Rec. 74, 138-139].

The employer, in its sworn interrogatory responses to DHR [Rec. 123, 138-139], admits that it did not advise appellant at the termination meeting that the termination decision was supported by consultations with two mental health professionals, including a physician-psychiatrist, or that, in the psychiatrist's opinion, appellant's complaint of harassment was attributable to a psychiatric symptom ("ideas of reference") that might be associated with a risk of violent behavior [Rec. 123], which rendered appellant "not suitable for employment" [Rec. 18]. 21/

The employer, in effect, admits that it failed to make information available timely to appellant that was reasonably necessary for appellant to file a valid claim for benefits consistent with the terms of the Plan [Rec. 49].

It was not until December 1992 (more than one year after appellant's
termination on October 29, 1991), upon appellant's receipt of the employer's Response to Interrogatories and Document Request [Rec. 87] filed by the employer with DHR, that appellant was apprised that the employer's termination decision was motivated by the employer's concerns about appellant's mental health and stability, and that the termination decision was supported by the employer's consultation with a physician-psychiatrist [Rec. 30]. Even if appellant had retained insurance coverage by converting to an individual plan under COBRA immediately following the termination on October 29, 1991, the incomplete facts provided at the termination meeting concerning the reasons for the termination [Rec. 123, 138-139] would have been insufficient to alert appellant to file a timely disability claim by November 29, 1991, within the Plan's 30-day notice-of-onset-of-disability requirement [Rec. 30]. 22/

VI. CONCLUSION

Based on the foregoing, this Honorable Court should grant appellant's request that the order of the Superior Court affirming the no probable cause finding of the Department of Human Rights be reversed.

Respectfully submitted,

GARY FREEDMAN pro se
3801 Connecticut Avenue, NW
Apt. 136
Washington, DC 20008-4530
(202) 362-7064 or
363-3800


CERTIFICATE OF SERVICE

I certify that copies of this brief were served on the D.C. Court of Appeals, clerk's office, and hand-delivered on May 12, 1997 to:

Charles L. Reischel, Esq.
Deputy Corporation Counsel
441 4th Street, NW, 6th Floor
Washington, DC 20001
(202) 727-6252

GARY FREEDMAN pro se

FOOTNOTES

1/ A concealed error in the employer's pleadings obscures the fact that the employer upgraded appellant's employment status in August 1989 from temporary to full-time legal assistant despite the fact that Eastern Airlines, the major client to which he had originally been assigned, had filed for bankruptcy protection. The employer states: "Later, [on August 1, 1989 [Rec. 144]] Claimant was employed as a full-time legal assistant ('paralegal') to manage massive amounts of documents for a major client. . . . Shortly thereafter [on March 9, 1989], the client filed for bankruptcy protection and eventually the legal work diminished" [Rec. 135]. See Salpukas, Eastern Requests Bankrupt Status to Cut Strike Loss, N.Y. Times, Mar. 10, 1989, at 1, col. 1 (reporting Eastern bankruptcy filing on Mar. 9, 1989).

2/ The employer conceals the discriminatory nature of appellant's unjustified demotion in March 1990 by characterizing the job downgrade only as a "transfer" [Rec. 135] or "transition" [Rec. 139]. The U.S. District Court for the District of Columbia has expressly found, however, that a move from the employer's litigation support department to its legal assistant program constitutes a promotion. McNeil v. Akin, Gump, Strauss, Hauer & Feld, no. 93-0477 (memorandum opinion and order granting defendant's motion for summary judgment) (D.D.C., Nov. 29, 1993) at 2 n. 2. (See Appendix B to this brief.) Appellant's reverse transfer in March 1990--from the legal assistant program to the litigation support department--was, therefore, according to McNeil, a demotion--disguised by the employer's disingenuous construction as a nondiscriminatory "transfer" or "transition." Evidence of prior instances of disparate treatment of appellant by the employer in other contexts is probative of pretext in the termination decision. See, e.g., Uffelman v. Lone Star Steel Co., 863 F.2d 404, 408 (5th Cir. 1989), cert. denied, 490 U.S. 1098 (1989) (instances of prior disparate treatment of plaintiff in disciplinary matters evidences the employer's discriminatory intent, under the Age Discrimination in Employment Act of 1967, in the plaintiff's selection for termination in a reduction of forces).

3/ One coworker in the litigation support department (who had originally been hired as a data entry operator [Rec. 58], and initially worked part-time) was later promoted, within the litigation support department, to the position of "project leader" in charge of overseeing a large pro bono discrimination case. See McNeil, D.D.C. no. 93-0477 at 1-2. (See Appendix B to this brief). See Uffelman v. Lone Star Steel Co., 863 F.2d at 408 (instances of prior disparate treatment are relevant to a finding of pretext in the termination decision).

4/ The employer admits that the level of professional conduct in the litigation support department, from which appellant sought transfer, was less than optimal [Rec. 59]. See McNeil, D.D.C. no. 93-0477 at 2-3. (See Appendix B to this brief). Reportedly, abuse of telephone privileges and other unprofessional and disruptive conduct in the litigation support department, by employees other than appellant, was a concern to the employer's managers [Rec. 59]. See McNeil, D.D.C. no. 93-0477 at 2-3. (See Appendix B to this brief). On one occasion a disciplinary matter arising out of a disruptive dispute between two employees in the litigation support department was brought to the attention of the employer's managing partner, Laurence J. Hoffman ("Hoffman"), some time after appellant's termination. McNeil, D.D.C. no. 93-0477 at 3. (See Appendix B to this brief). Appellant's concerns about disruptive behavior by coworkers--acknowledged by the employer's managers to be a problem [Rec. 59]--and his reasonable request for private (and therefore quiet) workspace [Rec. 145] was characterized by the employer to DHR as an unreasonable "demand for isolation" [Rec. 13].

5/ The employer omits from its description of the events surrounding the termination any reference to the fact that in the days immediately prior to the termination, after appellant's complaint of harassment, Segal had investigated the possibility of promoting appellant to the firm's legal assistant program [Rec. 135-140]. Segal admits having investigated a promotion, however [Rec. 145]; Segal states that he met with the legal assistant administrative staff and Malcolm Lassman, the member of the firm's management committee who reports to the committee on matters concerning legal assistants, immediately after Segal met with appellant, on the afternoon of October 23, 1991 [Rec. 145].

6/ At the time of appellant's job dismissal, Race served as the employer's hiring partner [Rec. 350]. Appellant is a law school graduate [Rec. 139], and is licensed to practice in Pennsylvania [Rec. 177]. He holds a graduate degree in international law [Rec. 142], which happens to be a major practice area of the employer [Rec. 350]. In 1985, a previous hiring partner advised appellant, in a written reply to appellant's job inquiry, that appellant possessed the credentials to practice law at the firm, and "reluctantly" declined to schedule an interview with appellant [Rec. 354]. During appellant's tenure one agency-supplied temporary employee, who, like appellant, was initially assigned to document production tasks for the client Eastern Airlines, was later promoted to law clerk, and one legal assistant was promoted to associate [Rec. 352]. Notwithstanding his above-average job performance and his exemplary professional credentials, appellant was terminated by the employer's hiring partner, Race, without cause, only days after he requested that the employer rectify its prior discriminatory demotion (see note 2 supra) by transferring him back to the legal assistant program [Rec. 145], and after having lodged a complaint with the employer that he had been subjected to unlawful harassment [Rec. 249-259]. These facts provide additional evidence of prior instances of disparate treatment of appellant by the employer in other contexts that is probative of pretext in the termination decision. See Uffelman v. Lone Star Steel Co., 863 F.2d at 408.

7/ In its interrogatory responses to DHR [Rec. 122-125, 135-140] the employer fails to refer to Race's investigation of a job promotion (but cf. note 5 supra), and fails to indicate that the "former supervisor" referred to by Race [Rec. 124, 137]--who reportedly advised Race that she found appellant difficult to work with and supervise--was none other than Sinnott, the legal assistant administrator [Rec. 240]. Race fails to mention that Sinnott's negative statements about appellant arose in the context of an inquiry by Race into promoting appellant to the legal assistant program [Rec. 349]. Appellant's assertion that Race advised appellant that Sinnott said she had found appellant difficult to work with--at the time of Race's investigation of a job promotion to the legal assistant program [Rec. 349]--is contained in a document that appellant submitted to DHR in late November or early December 1991 [Rec. 334], prior to DHR's discretionary decision to institute the complaint, dated February 4, 1992 [Rec. 170]. Appellant's assertion that Race investigated the possibility of promoting appellant to the legal assistant program, though uncorroborated, is linked to appellant's recital of Sinnott's reported negative statements about appellant [Rec. 349], which statements were against appellant's interest when appellant submitted the document to DHR in late 1991 [Rec. 334].

8/ In its interrogatory responses to DHR the employer fails to cite as a reason for the termination concerns about the quality of appellant's work product [Rec. 74, 139], and, indeed, states that the quality of appellant's work was not a factor in the decision to terminate [Rec. 139].

Appellant's assertion that Race advised appellant that the firm had concerns about the quality of appellant's work product [Rec. 277, 349, 454] is contained in one document that appellant submitted to DHR in late November or early December 1991 [Rec. 334-349], prior to DHR's discretionary decision to institute the complaint, dated February 4, 1992 [Rec. 170]; appellant's assertion, though controverted by the employer's interrogatory response filed May 22, 1992 [Rec. 139], was against appellant's interest when appellant submitted the document to DHR in late 1991 [Rec. 334].

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).

10/ The Court of Appeals 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, an abuse of discretion, or otherwise not in accordance with law." The Court of Appeals 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. [Sup. Ct. Rec. 36].

11/ The Superior Court in the proceedings below relied narrowly on State Farm to support the proposition, prejudicial to appellant's cause, that "under the arbitrary and capricious standard, a court may not substitute its judgment for that of the agency" [Sup. Ct. Rec. 36].

12/ An employer's background of discrimination is relevant to proving whether an employer was more likely than not to have acted from an unlawful motive, and, therefore, evidence of other discrimination lawsuits filed against the employer [Rec. 57-61] is relevant to appellant's charge of discrimination. See Phillip v. ANR Freight Systems, Inc., 945 F.2d 1054, 1056 (8th Cir. 1991), cert. denied, 506 U.S. 825 (1992) (evidence of other age discrimination lawsuits filed against an employer is admissible in an employee's action under the Age Discrimination in Employment Act of 1967) citing Estes v. Dick Smith Ford, Inc., 856 F.2d 1097 (8th Cir. 1988). Moreover, evidence of Robertson's racially discriminatory and racially offensive conduct is, as a matter of law, material to appellant's complaint of sexual and religious harassment. See Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415-1416 (10th Cir. 1987), citing Vinson v. Taylor, 753 F.2d 141 (D.C. Cir. 1985), aff'd in part and rev'd in part, 477 U.S. 57 (1986) (incidents of racial harassment directed at employees other than plaintiff are material to plaintiff's claim of a sexually hostile work environment; evidence of racial hostility may be aggregated with evidence of sexual hostility) [Rec. 13].

13/ The District conceded, in the Superior Court proceedings below, that the retaliation issue appeared to be subsumed in the harassment claim; the unlawful termination complaint filed by DHR does not specifically allege retaliation [Rec. 169-170]. See Brief of Respondent in Opposition to Petition for Review of No Probable Cause Determination by Department of Human Rights at 18. (The aforementioned pleading was not included in the record; the cited page is attached as Appendix C to this brief).

14/ The employer admitted to DHR, in an exhibit appended to an interrogatory response, that under the terms of its Employee Assistance Program, supervisory and management personnel were authorized to seek, on their own initiative, the guidance of a mental health counselor to determine the appropriateness of referring employees whose on-the-job performance or conduct had deteriorated [Rec. 128]. The employer does not allege that any supervisor or firm manager had referred appellant to the Employee Assistance Program, despite Robertson's allegation, prior to the termination, that appellant had had serious behavioral problems, including occasional violent outbursts, during the final 19 months of his tenure [Rec. 132, 139-140].

15/ The employer produced only three of the nine performance evaluations prepared during appellant's tenure [Rec. 149-165, 358], despite DHR's request for all performance evaluations [Rec. 91-92]; the employer did not explain its failure to produce [Rec. 133].

16/ The Court in McNeil found that Digweed had no prior knowledge of Robertson's racial animus [Rec. 59] at the time of Digweed's termination of McNeil in early April 1992 , about five months after appellant's termination in late October 1991. See McNeil, D.D.C no. 93-0477 at 7-8. (See Appendix B to this brief). It will be recalled that appellant's harassment complaint to firm management in late October 1991, which led to appellant's termination by Digweed (and Robertson and Race) [Rec. 167], included a charge against Robertson of sexual and religious animus [Rec. 14-15], and prompted interviews by Race of appellant's coworkers [Rec. 17, 148], presumably including black coworkers, who, reportedly, were well aware of Robertson's racial animus at least as of July 1991 [Rec. 58]. The employer omitted any reference to appellant's complaint against Robertson in the interrogatory response [Rec. 135-140] filed with DHR in this matter on May 22, 1992 [Rec. 130], about six weeks after Digweed fired McNeil in early April 1992 [Rec. 59]. (See Appendix A to this brief.) The employer later was able successfully to overcome McNeil's contention, in her Title VII lawsuit against the employer, that Robertson had colluded with Digweed in McNeil's termination. See McNeil, D.D.C. no. 93-0477 at 4, 7-9. (See Appendix B to this brief).

17/ The employer admits that it had been aware (as far back as November 1988 [Rec. 78]) that Sheppard Pratt's policy was to speak to an employer's management personnel who might seek the guidance of a counselor to determine the appropriateness of referring employees whose work performance had deteriorated [Rec. 79]--(and not to offer input about a contemplated termination). (See note 14 supra.)

18/ A confidential memorandum from Race to his personal file, prepared on the day of the termination (October 29, 1991), is the only contemporaneous written documentation that supports the employer's contention that it consulted two mental health professionals [Rec. 148]. The memo does not identify the names of the mental health professionals consulted [Rec. 148]. The obscure tone of the memo parallels the interrogatory response (dated May 22, 1992) to which it is attached, which, curiously, also fails to identify the mental health professionals Race consulted [Rec. 137]. Race identified Dr. Ticho as the psychiatrist with whom he and Lassman reportedly spoke only in response to a supplemental interrogatory [Rec. 122-123] filed with DHR more than a year later, in May 1993 [Rec. 121]. Oddly, Lassman directed Segal to memorialize Segal's conversation with appellant, which took place on the afternoon of October 23, 1991 [Rec. 135], yet there is no evidence Lassman directed Race to memorialize the reported consultations that Race and Lassman had with the mental health consultants, including Dr. Ticho (or, for that matter, appellant's meeting with Race and Lassman on the morning of October 24, 1991).

19/ It is noted that under case law in some jurisdictions the publication of a psychiatric opinion offered without benefit of a personal examination may, in certain circumstances, be deemed defamatory, regardless of the opinion's seeming reliability or authenticity. See, e.g., Goldwater v. Ginzburg, 261 F. Supp. 784 (S.D.N.Y. 1969), reh. denied, 397 U.S. 978 (1969).

The Superior Court in the proceedings below determined that the adequacy of the employer's investigation of appellant's harassment complaint cannot negate the credibility of the employer's asserted reasons for the termination, which were deemed by the court to be nondiscriminatory [Sup. Ct. Rec. 38-39]. While even an inadequate investigation might pass muster for Title VII purposes, there remains a question as to whether the employer's investigation--even if conducted in good faith--was sufficiently thorough so as to permit a psychiatrist to make a reasoned judgment, consistent with the APA's principles of ethics, about appellant's mental state and potential for violence, thereby rendering a professional psychiatric opinion based solely on information gleaned from that investigation nondefamatory. See OPINIONS at 57 (a psychiatrist, acting in the capacity of consultant, may base a professional opinion upon a review of reports and information gathered about an individual [provided proper authorization has been granted for such a psychiatric review]). The inadequacy of the employer's investigation [Rec. 262-266] might have impaired or precluded a reasoned psychiatric assessment of appellant's complaint of harassment. A psychiatrist, for example, might find evidence of Robertson's racial animus relevant to appellant's complaint of anti-Semitic harassment. See, e.g., The Prejudicial Personality: Racism and Anti-Semitism, 65 J. PERSONALITY ASSESSMENT 270 (1995) (discussing the significant correlation between the personality profiles of racists and anti-Semites). Yet, because of the inadequacy of the employer's investigation, evidence of the supervisor's racial animus, which was well-known to black employees in the supervisor's department [Rec. 58-59]--and, according to the psychological literature, relevant to appellant's complaint of anti-Semitic harassment by that supervisor [Rec. 145]--was not uncovered by the employer. See McNeil, D.D.C. no. 93-0477 at 7-8 (supervisor, Robertson, engaged in racially-inappropriate conduct unknown to senior management [as of the time of appellant's termination in October 1991]). Evidence of the supervisor's racial animus, therefore, could form no part of the consulting psychiatrist's assessment of appellant's harassment complaint and associated risk of violence--an omission that may be relevant to a consideration of the defamatory nature of the published professional opinion.

20/ In Zuniga, a disparate impact sex discrimination case, a hospital's claim that a pregnant X-ray technician was discharged because of the fear of endangering the fetus and exposing itself to negligence liability was deemed not worthy of credence by the court, since the hospital could have achieved its business purpose by granting the plaintiff a leave of absence under the hospital's policy permitting leave of absence for reasons of family health. The court found that the stated business necessity for the termination was merely a pretext for discrimination. Id., 692 F.2d at 992.

21/ Race, the individual who failed to disclose to appellant facts concerning his consultation with a psychiatrist [Rec. 74, 138-139]--facts that were needed by appellant to file a timely disability claim under the Plan--is the same individual who factually misrepresented to DHR his knowledge of appellant's sexual orientation [R. 17, 133, 139, 140]. Race's failure to disclose to appellant facts concerning his consultation with a psychiatrist was, therefore, not simply injurious to appellant; Race's failure to disclose was invidiously based on appellant's membership in a protected class, his knowledge about which Race mendaciously attempted to conceal from DHR. Cf. Anderson v. Baxter Healthcare Corp., 13 F.3d at 1124 ("If the only reason an employer offers for firing an employee is a lie, the inference that the real reason was a forbidden one . . . may rationally be drawn.")

22/ While it is true that the physician, Dr. Ticho, did not conduct a personal examination of appellant, it is nonetheless instructive to observe that an employer has a duty, arising out of common law, to disclose to an employee, prior to or during employment, information the employer acquires when a physician it engages discovers a serious medical problem while examining the employee in accordance with the employer's requirements. See Meinze v. Holmes, 532 N.E.2d 170, 173 (Ohio App. 1987) citing Betesh v. United States, 400 F.Supp. 238, 245 (D.D.C. 1974) (interpreting Maryland common law). In the present case the employer's failure to provide information to appellant, derived from the employer's consultation with a physician, concerning appellant's mental health may have breached a common law duty to disclose. It is noted, incidentally, that Digweed--who, as the employer's personnel administrator, oversees the firm's employee benefits programs [Rec. 480-481]--was present at the termination meeting [Rec. 138]. At the termination meeting Digweed reviewed with appellant issues pertinent to insurance benefits--including appellant's COBRA rights, and health and life insurance issues [Rec. 480-481]--but omitted any mention of appellant's rights under the disability Plan or the employer's consultation with a psychiatrist [Rec. 123, 138-139]. Digweed is designated in the employer's personnel records as one of the three decisionmakers who terminated appellant's employment [Rec. 167].

Appendix A

CONCORDANCE OF INCIDENTS REPORTED BY EMPLOYER TO DHR vs.INCIDENTS REPORTED BY APPELLANT

The following is a verbatim reproduction of the report made by the employer (Akin, Gump, Strauss, Hauer & Feld) to DHR of the incidents that appellant stated to Race and Lassman on October 24, 1991 [Rec. 136]. See Response to Interrogatories and Document Request, Response to Particulars (Attachment A), at p. 2 [Rec. 136] . Note that the employer's list corresponds exactly with DHR's findings of fact, except that the three incidents involving Robertson (a supervisor determined by the U.S. District Court for the District of Columbia to have exhibited racial animus) and the one incident involving Schaar (who was reportedly terminated for gross misconduct in about May 1990 [Rec. 516]) are unaccountably omitted in the employer's recital.

Employer's Recital of Incidents of Harassment [Rec. 136]

1. An attorney once used the word "sweet" while pouring a cup of coffee from a coffee machine [apparently corresponds to Finding of Fact 4(c)];

2. While with a group of co-workers one female employee stated "I bet you have a sexy chest" [apparently corresponds to Finding of Fact 4(a)];

3. One evening after business hours, an attorney got on the elevator with him [appellant] and paced back and forth, looking at Claimant [appellant] but saying nothing [apparently corresponds to Finding of Fact 4(j)];

4. Co-workers in the litigation support group were "trying to make him nervous" [apparently corresponds to Finding of Fact 4(h)];

5. A female co-worker stood by him swinging her hips so as to provoke him [apparently corresponds to Finding of Fact 4(i)]; and

6. A male co-worker had his eyes fixed to Claimant's [appellant's] genital area [apparently corresponds to Finding of Fact 4(b)].

______________________________________________

The following is a list of the incidents that appellant reported to DHR as constituting his report of harassment to Lassman and Race on October 24, 1991 [Rec. 253-257]. DHR incorporated the report in its findings of fact [Rec. 13-16], but designated the report evidence of appellant's paranoia rather than evidence of unlawful harassment.

DHR'S Findings of Fact [Rec. 13-16]

1. Finding of Fact 4(a) involving unidentified male co-worker "with sexy chest" [see (2.), above];

2. Finding of Fact 4(b) involving Paul Wageman staring at genitals [see (6.), above];

3. Finding of Fact 4(c) involving David Hardee at coffee machine [see (1.), above];

4. Finding of Fact 4(d) involving Stacey Schaar; OMITTED BY EMPLOYER;

5. Finding of Fact 4(e) involving Robertson; OMITTED BY EMPLOYER;

6. Finding of Fact 4(f) involving Robertson; OMITTED BY EMPLOYER;

7. Finding of Fact 4(g) involving Robertson; OMITTED BY EMPLOYER;

8. Finding of Fact 4(h) involving co-workers in litigation support group [see (4.), above];

9. Finding of Fact 4(i) involving Katherine Harkness swinging her hips [see (5.), above];

10. Finding of Fact 4(j) involving David Eisenstat on elevator [see (3.), above].

Appendix B

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
)
PATRICIA A. MCNEIL, )
)
Plaintiff, )
)
v. ) Civil Action No. 93-0477(JHG)
)
AKIN, GUMP, STRAUSS, HAUER & )
FELD, )
)
Defendant. )
_____________________________)

MEMORANDUM OPINION AND ORDER

On March 5, 1993, plaintiff Patricia A. McNeil ("McNeil")
initiated this complaint against defendant Akin, Gump, Strauss, Hauer & Feld ("Akin"), alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. 2000e et seq. 1/ Presently pending are plaintiff's motion to amend complaint and defendant's motion for summary judgment. For the reasons stated below, defendant's motion is granted and plaintiff's motion is denied as moot.

BACKGROUND

In September 1987, Laurel Digweed ("Digweed"), the Personnel Administrator at Akin, hired plaintiff, a black female, to work as a part-time data entry operator in the litigation department. In 1988, Chris Robertson ("Robertson") became McNeil's immediate supervisor in that department. Both Digweed and Robertson are white females. Approximately one year later, Digweed promoted McNeil to full-time status. Robertson also promoted McNeil to project leader in charge of overseeing a large pro bono discrimination case filed by Akin against the federal government. Several months later, McNeil resigned from her position on the case because she did not find the case interesting. 2/

In the summer of 1991, McNeil missed one or two days of work a week due to a difficult pregnancy, however, she did not inform Robertson of the reason for the absences until over a month had passed. No adverse action was taken as a result of her absences. Because she ultimately suffered a miscarriage, McNeil was ineligible for maternity leave, nonetheless, Digweed asked the managing partner Lawrence J. Hoffman ("Hoffman") to allow McNeil to receive "additional benefits" without waiting thirty days as was required by firm policy. Hoffman agreed and McNeil was the first Akin employee to receive "additional benefits" without undergoing the thirty-day waiting period.

In April 1992, the assistant supervisor of the litigation support unit, Isabelle Schotz ("Schotz"), whose cubicle was located next to plaintiff's, complained to Robertson that McNeil's excessive telephone use disturbed her. As a result, Robertson requested that McNeil curtail her telephone use and McNeil agreed. Schotz alleges that McNeil then confronted her and called her a "stupid Jew." Plaintiff denies having made that comment.

When informed of the incident between McNeil and Schotz, Digweed attempted to meet with McNeil but was unsuccessful. As a result, she left a message requesting that McNeil see her. Several days later, McNeil met with Digweed and denied Schotz's accusation. During the meeting, McNeil claims that Digweed told her "Pat, shut your goddamned mouth up, bitch." However, Digweed denied using those exact words. According to Digweed, she may have said, "For once in your god damned life, listen to me." After that exchange, McNeil left the office and refused to return despite Digweed's repeated requests that she do so. McNeil told her husband that "I just got a call and Laurel [Digweed] had asked me to come back up to her office. I refused." McNeil Deposition, at 235. McNeil contends that she told Digweed she would only return to Digweed's office if a mediator were present.

Digweed then met with Hoffman and advised him of the events and proposed that the matter be resolved by separating Schotz and McNeil, who had been seated in cubicles adjacent to each other. Hoffman agreed and informed Digweed that if McNeil continued to refuse to meet with her, then she would have to be terminated. Digweed went to plaintiff's cubicle and requested that she meet with her in Robertson's office. McNeil refused to do so. Plaintiff was then advised that failure to do so would result in termination. When McNeil continued in her refusal, she was verbally discharged. In her deposition, McNeil admits telling a coworker that she was fired for refusing to talk to management.

Plaintiff has submitted two affidavits from coworkers stating that Robertson treated black coworkers less favorably than white workers. In addition, Robertson allegedly told a racist joke regarding Oprah Winfrey's skin color. According to these affidavits, Digweed and Robertson are perceived as friends because they have been observed having lunch together. In the spring of 1991, both Digweed and Robertson were responsible for laying off two black workers due to budgetary considerations. Later, two white employees were hired for similar, although not exactly the same, positions.

Akin contends that Robertson was not informed of the discharge until after McNeil was terminated.

DISCUSSION

Summary judgment is appropriate when there is "no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "The inquiry performed is the threshold inquiry of determining whether there is a need for trial--whether, in other words, there are any genuine issues that can properly be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby., Inc., 477 U.S. 242, 250 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his [or her] favor." Id. at 255. At the same time, however, Rule 56(c) placed a burden on the non-moving party to "go beyond the pleadings and by [his or] her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

Title VII prohibits an employer from "discrimina[ting] against an individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's" race. 42 U.S.C. 2000e(a). Disparate treatment occurs under Title VII when a plaintiff demonstrates that his or her "employer treats some people less favorably than others" because of an impermissible factor such as race. See Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978). The order and quantum of proof in disparate treatment cases was articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), and its progeny. To succeed initially, a plaintiff must first establish a prima facie case of discrimination by a preponderance of the evidence. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). In this case, the prima facie case of discrimination requires proof that: (1) Ms. McNeil belongs to a protected group--African Americans; (2) she was qualified for her position; (3) she was fired despite her qualifications; and (4) an individual not of the protected group was treated differently.

Once a prima facie case has been established, a presumption of unlawful discrimination arises, see United States Postal Serv. Bd. of Governors v. Aikens, 460U.S. 711, 714 (1983), and the burden shifts to the employer to "articulate some legitimate, non-discriminatory reason" for the challenged action. McDonnell Douglas, 411 U.S. at 802; see also Burdine, 450 U.S. at 257 (defendant must produce evidence "which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus."). Whether this evidence is "ultimately persuasive or not," defendants will have sustained their burden of production and "placed themselves in a 'better position than if they had remained silent.'" St. Mary's Honor Ctr. v. Hicks, 113 S.Ct. 2742, 2748 (1993). Once "the defendant has succeeded in carrying its burden of prosecution, the McDonnell Douglas framework with its presumptions and burdens is no longer relevant. To resurrect it later after the trier of fact has determined that what was 'produced' to meet the burden of production is not credible, flies in the face of [the] holding in Burdine that to rebut the presumption '[t]he defendant need not persuade the court that it was actually motivated by the proffered reasons.' The presumption, having fulfilled its role of forcing the defendant to come forward with some response, simply drops out of the picture." Id. (citations omitted).

"The defendant's 'production' (whatever its persuasive effect) having been made, the trier of fact proceeds to decide the ultimate question:," id. at 2749, whether plaintiff has "demonstrate[d] that the proffered reason was not the true reason for the employment decision [and] that she has been the victim of intentional discrimination." Burdine, 450 U.S. at 256. To put it another way, the plaintiff must then prove by a preponderance of the evidence that the reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id. at 252-53. Thus, despite the shifting burdens of production, the ultimate burden of persuasion remains at all times with the plaintiff. St. Mary's Honor Ctr., 113 S. Ct. at 2749.

McNeil has demonstrated a prima facie case of discrimination. She is a black female, she received at least satisfactory evaluations, she was terminated from Akin, and others similarly situated were not so terminated. The reason proffered by defendant for the termination is insubordination: McNeil's failure to obey Digweed's repeated requests to meet with her. As plaintiff admits in her opposition memorandum, she "concedes that defendant has articulated a legitimate nondiscriminatory reason for taking the discharge action against plaintiff." Even without this concession, the Court would find that Akin had satisfied its burden of production. Moreover, even a statement made by plaintiff supports this theory. Plaintiff concedes that at the time of the termination she told a coworker "that I had been terminated because I refused to talk -- I'm being terminated for refusing to talk to management."

Plaintiff has adduced no evidence to call into doubt defendant's assertion that insubordination caused plaintiff's termination. McNeil has not disputed defendant's assertion that it was Digweed alone who made the termination decision after consulting only with Hoffman. Because McNeil has set forth no evidence of Digweed's (or Hoffman's) racial bias or evidence of a racial motivation for the termination, she cannot prevail. 3/ The only evidence of racial animus attaches to Robertson, who had no role in McNeil's termination. 4/ "[O]nly evidence probative of the actual decisionmaker's motives is relevant" to prove pretext. Lindsey v. Baxter Healthcare Corp., 757 F. Supp. 888, 896 (N.D. Ill. 1991); accord Slade v. Billington, 700 F. Supp. 1134, 1142, 1149-50 (D.D.C. 1988), aff'd, 871 F.2d 155 (D.C. Cir. 1989); Hardy v. Marriott Corp., 670 F. Supp. 385, 392-93 (D.D.C. 1987). In order to prevail at this stage, McNeil had to produce some evidence that race discrimination was the reason for her termination. See St. Mary's Honor Ctr., 113 S.Ct. at 2749.

"[T]he plain language of Rule 56(c) mandates the entry of summary judgment after an adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 322-23 (emphasis added). McNeil's failure to make a showing of discrimination on the part of the decisionmakers in her case is fatal. Accordingly, for the reasons stated above, it is hereby

ORDERED that Defendant's Motion for Summary Judgment is granted. This case stands dismissed; it is

FURTHER ORDERED that Plaintiff's Motion for Leave to Amend Complaint is denied as moot.

IT IS SO ORDERED.

November 29, 1993.

/s/
JOYCE HENS GREEN
United States District Judge

FOOTNOTES

1/ Plaintiff's complaint cites 29 U.S.C. 2000e et seq. Presumably, this cite is the result of a typographical error.

2/ McNeil could have applied for promotions outside of the department to legal secretary or legal assistant, however, she stated that she was not interested in either position. During her tenure, two of her coworkers, both black, were promoted to legal assistant positions.

3/ In fact, after McNeil suffered a miscarriage, both Digweed and Hoffman obtained unique and substantial benefits for McNeil.

4/ Moreover, McNeil admits that she never informed Akin or Digweed of racial comments allegedly made by Robertson. See McNeil Deposition, at 198-99. Similarly, the fact that Robertson allegedly told a racist joke about Oprah Winfrey was never related to Digweed. See Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Judgment, at 5. Thus, it defies logic that Digweed can now be faulted for failing to counsel Robertson.

Character Study

CHARACTER STUDY

Subject is a 50-year-old male. He has been unemployed and profoundly isolated for years. Other than consultations with mental health professionals, subject has no social contacts of any kind with family, acquaintances, or friends. Subject trained as a lawyer, and has two law degrees.

Years earlier, while subject was employed, he had several acquaintances whom he would have liked to befriend. Each of the acquaintances was acutely ambitious, inner-directed, intelligent, idealistic, and independent in thought and action.

Subject is highly intelligent, verbally fluent, and creative. He devoted about ten years of his unemployment writing a lengthy autobiographical study that was unusual in structure. The content of the writing features subject's identification with historical and literary figures who were compulsive letter writers; who developed exclusive, idealized friendships; whose privacy rights were violated; and who struggled with the experience of loss, exile or banishment.

Subject visits his neighborhood library daily. Subject has a paranoid fantasy that the library manager is in daily communication with his former employer, a local law firm. Subject believes that the employer informs the library manager of subject's personal goings on, and that the manager reports back to the employer on subject's activities at the library. For some years subject had a vague notion that the manager might one day become his friend.

Subject imagines that the manager likes him and that the manager would welcome a social overture from him. Subject imagines that he receives subtle cues from the manager that the manager feels some personal connection with subject.

The manager appears to be a highly intelligent, underachiever who has little in common with any of his colleagues at the library. The manager is in his mid-forties, married, but childless. Subject imagines that the library manager is an individual who, from early life, had strong ambitions for success, fame, and independence, but that his early dreams and promise were not realized. The manager has worked his entire adult life in libraries, and subject imagines that the manager has severely repressed feelings of dissatisfaction with his life. The librarian has three siblings, all female. He majored in history in college, and subject imagines that perhaps the librarian had had a desire to attend law school.

At some point, many years into subject's unemployment, subject begins to write daily letters to the manager and save them on the public computer's hard-drive. Subject discusses in these letter his thoughts and feelings; the tone of the letters is friendly, informal and at times humorous. Subject imagines that the manager reads the letters and finds them interesting and entertaining. Subject further imagines that the manager transmits copies of the letters to the subject's former employer who, subject imagines, retains a personal interest in him. At the point subject begins his letter writing activity, his feelings for the manger grow in intensity. Subject becomes obsessed with the manager, who dominates subject's thoughts. Subject begins to experience a feeling "of mounting self-confidence to the point of excitement and feeling as though" he and the library manager will become friends, possibly close friends. See Fernando, J. "The Exceptions: Structural and Dynamic Aspects." The Psychoanalytic Study of the Child, vol. 52 at 19 (1997) (discussing a patient's feelings associated with her repetition compulsion).

After a year of this letter writing activity, the manager summons the police to request that subject be ejected from the library and that he be banned from the library for a period of six months. The manager tells the police that he had chanced upon a letter that subject had written and saved to the computer hard-drive. In the manager's opinion the letter is threatening in tone and evidences a disturbed mental state. The police do not concur with the manager's assessment of the letter, but agree to enforce the manager's request that subject be banned from visiting the library. Subject willingly honors the police action, but continues to write letters to the manager that he transmits to subject's own e-mail account. Subject imagines that unidentified persons continue to read the letters and transmit the letters to the library manager.

Subject continues to imagine that he and the library manager will someday become friends, though he understands realistically that this will probably not happen. Subject remains suspicious of the circumstances underlying the manager's action in having subject banned from the library. Subject responds emotionally to the ban with feelings of "anxiety, anger, confusion, and humiliation." See Fernando, J. "The Exceptions: Structural and Dynamic Aspects." The Psychoanalytic Study of the Child, vol. 52 at 19 (1997) (discussing a patient's feelings associated with her repetition compulsion). Subject is convinced that the manager lied to the police when he told them that he, the manager, had read only one of subject's letters. Subject imagines that he was the victim of a personalized vendetta by the library manager, whose actions (so subject believes) were prompted by irrational psychological motives that centered on the manager's own repressed feelings about subject.

The following material traces the evolution of subject's personality from infancy, with particular reference to those capacities, experiences, adaptations, and disturbances in subject's background and psychological development that supported his action in adulthood of creating a fantasized friendship with another adult male, as well as subject's action in writing letters to that imaginary friend.

INFANCY -- DISSOCIATION -- IDEALIZATION OF AN IMAGINED MOTHER -- CREATIVITY PRECURSORS

BIOGRAPHICAL MATERIAL:

It appears that since infancy, subject showed an innate capacity for dissociation. It is likely that subject had the ability to withdraw his emotional investment in his real mother, and redirect that emotional investment in fantasy to an idealized image of an imagined mother. It is also likely that the dissociation occurred independently of need gratifications. Subject's innate capacity for dissociation may have been a precursor for creative activities, such as letter writing, in later life.

THEORETICAL MATERIAL:

Philip Weissman believed that the future artist, as an infant, had the ability to hallucinate the mother's breast independently of oral needs. According to him the unusual capacities of the artist "may be retraced to the infancy and childhood of the artist wherein we may find that he is driven by the nature of his artistic endowment to preserve (or immortalize) his hallucinated response to the mother's breast independent of his need gratifications."

One major concept of Weissman is the "dissociative function of the ego." With the aid of this dissociative function, the creative person "may partially decathect the external object (mother's breast) and hypercathect his imaginative perception of it. He may then further elaborate and synthesize these self-created perceptions as anlagen or precursors of creative activity which must then await full maturation and development of his ego and his talent for true creative expression." In simple words, according to Weissman, the child who will become a creative person has the ability to diverge the energy originally invested in primitive personal objects and to invest it again in creative work. Or in still different words, the creative person is able to dissociate his early personal life from what will be the creative work, although this work derived from the same early personal life. Weissman, P. "Psychological Concomitants of Ego Functioning in Creativity." International Journal of Psycho-Analysis, 49: 464-469 (1968) (as discussed and quoted by S. Arieti).

COMORBIDITY:

An innate capacity for dissociation can serve as a mediating factor in the development of a massive splitting defense in cases where the individual's early environment is characterized by abuse and deprivation. See Phillips, R.A., Introduction to "When Rabbit Howls: The Troops for Truddi Chase." (New York: Jove Books, 1990) (Phillips has been a clinical psychologist practicing in Chevy Chase, MD); and Shengold, L. "Soul Murder: The Effects of Childhood Abuse and Deprivation." (New Haven: Yale University Press, 1989).

Paradoxically, the emergence of a massive splitting defense (in the face of an abusive environment) that is mediated by an innate capacity for dissociation can be seen as a compromise with a more grave outcome, namely overt psychosis. In dissociative identity disorder (formerly called multiple personality disorder) dissociation is spoken of as a "capacity" that permits the development of discrete, fully functional identities in a single person in the face of abuse or deprivation; though a single cohesive personality, either normal or psychotic, does not develop. "[N]ot every child who suffers abuse or a major loss or trauma has the [dissociative] capacity to develop multiple personalities. Those who do have the capacity also have normal ways of coping, and most of these vulnerable children are sufficiently protected and soothed by adults, so dissociative identity disorder does not develop." THE MERCK MANUAL OF MEDICAL INFORMATION. SECOND HOME EDITION at 638 (Whitehouse Station, NJ: Merck Research Laboratories, 2003).

INFANCY -- BONDING WITH TWO MOTHERS -- OBJECT LOSS -- MATERNAL DEFICIENCIES -- RAGE -- IDEALIZATION AS DEFENSE

BIOGRAPHICAL MATTER:

When subject was born, his parents (and six-year older sister) lived at his grandmother's house, while the parents looked for a house to buy. They had been living in an apartment but had moved out of the apartment just before subject was born. Subject was raised for the first six months by two mothers: his maternal grandmother and his mother. Subject was bottle-fed, so that mother and grandmother were able to share the feeding and caring duties. Subject might have bonded with both mother and grandmother, so that when his parents moved, when subject was six months old, he may have experienced the loss of his grandmother as traumatic or at least disruptive.

Subject's activity of writing letters to an idealized imaginary friend may be a derivative of his early experience of deficiencies in maternal caretaking or loss of a maternal attachment object. Subject's idealization or obsessive preoccupation with the library manager may be a defense against feelings of rage--with maternal deficiencies or maternal loss both precursors of that rage. In sum, subject's obsession with the library manager may reflect subject's "quest for an idealized figure as restitution" for early maternal deficiencies and loss. See Goldsmith, G. "Freud's Aesthetic Response to Michelangelo's Moses." The Annual of Psychoanalysis, vol. 20 at 267 (1992).

THEORETICAL MATTER:

Freud had two mothers: his biological mother and a nanny on whom he was very dependent. Goldsmith argues that the experience was important for Freud's early development: that Freud experienced an infantile depression as a result of the loss of his nanny and that his repressed rage was expressed through its opposite--namely, idealization. Goldsmith at 259-61.

Goldsmith argues that the reactivation of archaic derivatives of maternal loss in Freud, where disruptions in rapprochement could have led to an instability of the ego states of love, caused Freud's "inordinate demand for exclusive possession of the loved one" during his engagement to his future wife. Goldsmith at 266 (quoting Ernest Jones).

Perhaps similar dynamics were at play in Freud's intense and exclusive adult friendship with Wilhelm Fliess and his similarly intense and exclusive adolescent friendship with Edward Silberstein. In adulthood Freud carried on a largely epistolary relationship with an individual named Wilhelm Fliess, his best and perhaps only friend. Freud's friendship with Fliess was passionate but, as a largely epistolary relationship, it was restrained and distant; in the letters it is as though Freud were in a dialogue with himself. The intensity with which Freud entered into his largely epistolary relationship with Fliess must have been a reflection of his disappointment with reality and his need to seek an idealized friend who existed only as a projection of his own needs. For Freud the ideal friend had to be an extension of himself. Grosskurth, P. The Secret Ring: Freud's Inner Circle and the Politics of Psychoanalysis.

SEPARATION/INDIVIDUATION -- RAPPROCHEMENT SUBPHASE -- TODDLER'S WOOING BEHAVIOR TOWARD MOTHER -- LACK OF MATERNAL INTEREST

BIOGRAPHICAL MATTER:

Subject's mother, though overprotective, was largely uninvolved and uninterested in subject's play or other activities. Mother interacted with subject, but in her own way and on her own terms; she was unwilling or incapable of immersing herself in or participating in her child's own world.

It is telling that in the first grade, subject's teacher summoned the mother to school to admonish her to help subject with his homework and to read to him. Subject's mother had never read to her son. Subject's mother used to say unashamedly: "I hate books!" It is interesting that as an adult, subject's interests and outlook do not match those of his mother; in terms of interests and outlook it is as if subject developed independently from his mother, though he was emotionally dependent on her.

Subject's activity in adulthood of visiting the library and sharing physical space with the uninvolved library manager, while at the same time covertly wooing the manager with undelivered letters, may be a derivative of his early interaction with an uninterested and uninvolved mother who ignored her toddler son's secret entreaties for attention.

THEORETICAL MATTER:

The rapprochement subphase (usually between fifteen months and eighteen months) is ushered in by the toddler's dawning realization that the mother is actually a separate person, one who will not always be available to help him in dealing with his newly enlarged world. Mother must now be approached on a new, higher level of interaction, characterized especially by sharing new discoveries in the "outside" world and by language. The early months of the rapprochement subphase are typified by "wooing" behavior of the child toward his mother, in which he tries to obtain her participation in his world within the context of some recognition of his separateness. Greenberg, J.R. and Mitchell, S.A. Object Relations in Psychoanalytic Theory. (Cambridge: Harvard University Press, 1983).

CHILDHOOD INJURY -- SUPEREGO DISTURBANCE -- INABILITY TO RELINQUISH EARLY IDEALIZED IMAGE OF PARENTS -- IDEALIZATION -- REBELLION

BIOGRAPHICAL MATERIAL:

Subject suffered an injury to the oral cavity when he was two-and-a-half years old. While mother was cleaning some kitchen curtains, subject put a curtain-rod in his mouth; he fell, and the curtain rod punctured the soft-palette. The wound bled profusely and had to be cauterized. Subject's father blamed the accident on mother's overindulgence of subject and her "spoiling" of him.

As an adult, subject exhibits the trait of rebellion. Results of psychological testing state that subject "has a tendency to challenge or denounce social sanctions to the point where he may lose sight of his own best interests."

Subject's obsessive preoccupation with the library manager reflects his need to recapture in adulthood the early idealized images of his parents, which he never relinquished.

THEORETICAL MATERIAL:

Fernando describes details from the history of an analytic patient who had severely repressed demands for recompense for an injury she suffered in childhood and who for this reason was attracted to (more accurately, obsessed by) persons who displayed the character type of the "exceptions." The patient herself showed some signs of being an "exception." Fernando, J. "The Exceptions: Structural and Dynamic Aspects." The Psychoanalytic Study of the Child, vol. 52: 17-28 (1997).

The patient, a young adult, had suffered a broken leg in early childhood. According to Fernando, the injury and its aftermath (parental blaming behavior) caused a disturbance in her superego maturation, and led to the character type that Freud termed the "exceptions." In the "exceptions," the early idealized parental images are never metabolized as in the normal person, and the individual's superego remains warped. Such individuals attempt to recapture in their interpersonal relations in adulthood representations of their early idealized parental images. Fernando's patient was obsessed with two persons, her only friends. The patient was not simply lonely; she wanted to affiliate closely with these two persons because they matched her internalized and idealized images of her parents.

The patient's development foundered on her inability to accomplish one of the major tasks of late adolescence: the integration of previously unresolved traumas into the character structure, or what Peter Blos calls the "characterological stabilization of residual trauma."

The relative lack of superego maturation and integration in the exceptions affects the maturation of the ego ideal. It interferes with the deconcretization of the ego ideal and its integration into the personality as a substructure within the superego system, a process that normally takes place definitively in late adolescence. This interference was evident in Fernando's patient who found it impossible to relinquish her attachment to the idealized images of her parents and instead began a prolonged attempt, beginning in late adolescence, to recapture her ideals in concrete form in her relationship with her two friends.

The accident and hospitalization of this patient were traumatic in the narrow sense of the term. During and immediately following the accident there was a breaching of the stimulus barrier. Ego functions (motility, perception, judgment, time sense) were temporarily overwhelmed (the period of numbness). The subsequent attempts at mastery by turning passive into active and through sexualization led to a lifelong fate neurosis: Throughout her life in small ways and large the patient repeated the sequence of mounting self-confidence that preceded the accident to the point of excitement and feeling as though she were "flying," followed by a period of "numbness," and finally by a repetition of the feelings of anxiety, anger, confusion, and humiliation associated with the hospitalization. She repeated this sequence over and over in the analysis.

The ego attitude of justified rebellion or entitlement, which is characteristic of the "exceptions," develops because of early mistreatment, injury, or maternal deficiencies; such disturbed experiences lead to a distortion in ego-superego interaction and interfere with normal superego maturation.

PRE-OEDIPAL FATHER ATTACHMENT -- FEAR OF MATERNAL ENGULFMENT -- IDEALIZATION OF PRE-OEDIPAL FATHER -- TENDENCY TO REBELLION

BIOGRAPHICAL MATERIAL:

Subject grew up in an environment dominated by female maternal figures, which promoted misogynist attitudes in adulthood. (Compare the early environment and personality of the philosopher Friedrich Nietzsche). Subject unconsciously desired to affiliate with his father as a defense against female (maternal) engulfment. Subject's actual affiliation with father, though, was disapproved by subject's mother who wanted to dominate her son's affections.

Father was in many ways a weak man who submitted to female domination. (Note the parallel with the library manager who works in a professional environment traditionally dominated by females and that employs a fair quota of male homosexuals). Father felt dominated by his wife, his wife's overbearing sister, and mother-in-law. A former psychiatrist stated to subject on one occasion: "I have no respect for your father at all: that he should have put up with that family situation for all those years." Father likely seduced his son into an alliance against "bitches" to justify his personal failure as a man. Lowen, A. Narcissism: Denial of the True Self at 116 (New York: Collier Books, 1985) (the author refers to this type of "seduction" as homosexual in nature).

Like the library manager, subject's father was an underachiever. Father quit a selective academic high school restricted to college-bound students in the tenth grade, despite a superior IQ that was measured at 125 in the U.S. Army (95th percentile). Father worked in menial factory jobs his entire adult life. Also, in some way vaguely similar to the library manager, subject's father carved out some measure of autonomy and a leadership role by being active in his union; he served for many years as shop chairman in his place of employment and was a delegate to the union's national convention, held in New York City, when subject was ten years old.

At the time subject's obsession with the library manager began, subject's interpersonal contacts were limited to three females, all of whom he disliked: a female psychiatrist, a female psychotherapist, and a female case manager.

Subject exhibits the personality trend of rebellion, a fact that is pertinent to the following theoretical discussion which links rebellion to the intensity of the early father idealization. Psychological testing of subject disclosed that he "has a tendency to challenge and denounce social sanctions to the point where he may lose sight of his own best interests."

THEORETICAL MATERIAL:

The role of the early father, writes psychoanalyst Peter Blos, was that of a rescuer or savior at the time when the small [male] child normally makes his determined effort to gain independence from the first and exclusive caretaking person, usually the mother. At this juncture the father attachment offers an indispensable and irreplaceable help to the infant's effort to resist the regressive pull to total maternal dependency, thus enabling the child to give free rein to the innate strivings of physiological and psychological progression, i.e., maturation. We find the roots of the boy's father complex at this point in the boy's development. The reverberations of this complex are never totally extinguished in the life of any man: they remain active and alive from "the cradle to the grave." We can hardly overrate their contribution to the process of growing up, of being a grownup, and of growing old. The resolution of the boy's paternal attachment is normally left incomplete at the end of childhood because developmental pressures of a somatic, cognitive, and social nature outweigh the completion of this task of infancy. Normally, the irresistible beckoning of the latency period wins out. In adolescence, the interrupted processes of psychological growth must be taken up again because they cannot tolerate further delay when the irrevocable termination of psychological childhood is in sight.

The boy's extinguished yearning for the comforting comradeship with father turns into a frightening prospect at adolescence, when the regressive pull to the state of dependency on the paternal savior grows in intensity, especially in case he becomes resurrected as the little boy's idealized hero. This psychic constellation is experienced by the adolescent as an intolerable conflict. I have frequently made the observation that the boy's adolescent revolt against his father asserts itself with more boundless violence, the more profound the son's early [actual or wished- for] father attachment had been and the more unaltered this [actual or wished-for] attachment (usually successfully repressed) had remained in the boy's emotional life. Regardless of how successfully--or shall we say, how normally--the decline of the early father attachment proceeded over time, the tendency to idealization represents a lifelong problem for every man. Blos, P. "Freud and the Father Complex." The Psychoanalytic Study of the Child, vol. 42 at 426-7 (1987).

RESCUE FANTASY -- OMNIPOTENT PARENT -- PASSIVE HOMOSEXUAL VARIANT -- SUBMISSIVE AND PASSIVE ADAPTATION TO FATHER'S LIBIDINIZED EXPECTATIONS

Subject's obsession with the library manager may reflect a rescue fantasy characterized by subject's hope to be rescued from his painful state of loneliness, as well as his anxieties surrounding maternal engulfment, by regaining the idealized omnipotent parent. See Gillman, R.D. "Rescue Fantasies and the Secret Benefactor." The Psychoanalytic Study of the Child, vol. 47 at 282 (1992).

Subject's obsession with the library manager may also be seen as a submissive homosexual fantasy in which subject has placed himself in the role of the passive "damsel in distress," while assigning to the library manager the "heroic" task of redeeming subject from his state of lonely isolation and castration.

The latter passive homosexual fantasy seems pertinent to Blos' observation that a son's subordination of his life's work, ambition, dedication, and achievement to the libidinized expectations of his father are experienced by the son as a submissive and passive adaptation. The effort to surmount this never quite ego-syntonic position of a boy's active-passive balance in the mastery of self and environment reaches a crucial impasse at the closure of adolescence. At that juncture this unresolved imbalance frequently merges with associative identity fragments of a feminine self representation. If this emerging conflict cannot be contained or resolved, an abnormal psychic accommodation will take its course. Blos, P. "Freud and the Father Complex." The Psychoanalytic Study of the Child, vol. 42 at 440 (1987)..

SEPARATION/INDIVIDUATION -- FINAL RESOLUTION -- UNMETABOLIZED SUPEREGO PRECURSORS -- IDEALIZATION

BIOGRAPHICAL MATTER:

Subject, like many creative persons, "is loss-sensitive and separation-prone." Goldsmith at 267 (quoting Gilbert Rose). Subject would have experienced even relatively minor failures of maternal empathy as rejection. Subject's mother, though overprotective, was in fact unempathic and largely uninterested in her son's developing selfhood.

Subject's experience of his mother's lack of empathy as rejection resulted in a defensive resolution of the task of separation/individuation that was achieved ultimately by the rapid internalization of the dual aspect of the mother as both a gratifying and a frustrating (or critical) object.

Subject experiences a special need for a friend who will serve as a brother-figure or comrade-in-arms to restore his sense of narcissistic integrity.

THEORETICAL MATTER:

In cases in which internalization of the ambivalently-cathected maternal object (that embodies the combined functions of negative sanction and endowing approval) occurs abruptly and prematurely, without adequate neutralization of ego-ideal and superego precursor, shame and castration anxiety do not become integrated into a smoothly operating unconscious guilt mechanism. Pathological guilt, shame and castration anxiety together with a tendency to intense primitive idealization will be seen in pathological manifestations. Freeman, D.M.A., Foulks, E.F., and Freeman, P.A. "Superego Development and Psychopathology." The Psychoanalytic Study of Society, vol. 7 at 121 (1976) (Gertrude R. Ticho, M.D., contributing editor).

In such cases the male patient may have a special need for a "brother" or comrade-in-arms to serve as an alter ego or "narcissistic object" to moderate the demands of his harsh, primitive superego. The choice of such a friend is based on characteristics that the individual feels he needs in order to complete himself and restore his original feeling of narcissistic safety and well-being. In this narcissistic position, he will not be ready to feel or empathize with others or participate in close relationships. Freeman, D.M.A., Foulks, E.F., and Freeman, P.A. "Ghost Sickness and Superego Development in the Kiowa Apache Male." The Psychoanalytic Study of Society, vol. 7 at 145 (1976) (Gertrude R. Ticho, M.D., contributing editor).

OEDIPAL RAGE -- ANNIHILATION ANXIETY -- IDEALIZATION -- DISSOCIATION -- THE FANTASY OF HAVING A TWIN

BIOGRAPHICAL MATTER:

Subject experienced rage against his parents in childhood owing to the frustration of his oedipal wishes, and proceeded to annihilate his parents in fantasy. To remedy his consequent loneliness subject created, during the latency period, an imaginary twin sibling: a dissociated image of his ideal self. The imaginary twin sibling comforted subject in his loneliness.

Subject's obsessive preoccupation with the library manager as an imaginary, comforting brother figure may be a derivative of subject's latency period fantasy. Significantly, the dynamics of the fantasy of having a twin sibling center on the use of idealization as a defense against (oedipal) rage, a sequence that is overdetermined in subject's personality. See discussion above relating to INFANCY -- BONDING WITH TWO MOTHERS -- OBJECT LOSS -- RAGE -- IDEALIZATION AS DEFENSE.

THEORETICAL MATTER:

A common daydream which in spite of its frequency has received very little attention to-date is the fantasy of possessing a twin. It is a conscious fantasy, built up in the latency period as the result of disappointment by the parents in the oedipus situation, in the child's search for a partner who will give him all the attention, love and companionship he desires and who will provide an escape from loneliness and solitude. The same emotional conditions are the basis of the family romance. In that well-known daydream the child in the latency period develops fantasies of having a better, kinder and worthier family than his own, which has so bitterly disappointed and disillusioned him. The parents have been unable to gratify the child's instinctual wishes; in disappointment his love turns to hate; he now despises his family and, in revenge, turns against it. He has death-wishes against the former love-objects, and as a result feels alone and forsaken in the world. Burlingham, D.T. "The Fantasy of Having a Twin." In: The Psychoanalytic Study of the Child. Vol. 1 at 205 (1945). A further element in many daydreams of having a twin is that of the imaginary twin being a complement to the daydreamer. The latter endows his twin with all the qualities and talents that he misses in himself and desires for himself. The twin thus represents his superego. Id. at 209.

HOW PRESIDENT CLINTON GOT INVOLVED IN MY PERSONAL LIFE

October 3, 2005
3801 Connecticut Avenue, NW
Apartment 136
Washington, DC 20008
Telephone: (202) 362 7064

The Honorable Kenneth Wainstein
U.S. Attorney for the District of Columbia
U.S. Department of Justice
555 Fourth Street, NW
Washington, DC 20001

Dear Mr. Wainstein:

The full text of my autobiography titled "Significant Moments" can be accessed on the web at http://signmomentsone.blogspot.com/. The manuscript is unusual in structure, and is written entirely in the form of quotations from published material. I spent about ten years writing the document, from the spring of 1993 to about the year 2004.From June 1988 to October 1991 I was employed at the law firm of Akin, Gump, Strauss, Hauer & Feld, two of whose executive managers are Robert S. Strauss, Esq. and Vernon E. Jordan, Jr., Esq. Dennis M. Race, Esq. of Akin Gump designated himself the contact person regarding questions about my employment (202 887 4028).

From 1992 to 1996 I was an outpatient at the Department of Psychiatry of the George Washington University Medical Center, which at that time was chaired by Jerry M. Wiener, M.D. (now deceased). Dr. Wiener served in 1994-1995 as President of the American Psychiatric Association. He had earlier served as President of the American Psychoanalytic Association. Coincidentally, Dr. Wiener was Jewish and a native of Texas, (like Robert S. Strauss, who serves as a trustee of GW's Ronald Reagan Institute of Emergency Medicine). Robert S. Strauss has an interest in biomedical issues and endowed a chair in neurology at the University of Texas Medical School. Both Mr. Strauss and Dr. Wiener were graduates of the University of Texas.

I believe (without proof) that senior Akin Gump managers surreptitiously (and unlawfully) obtained draft versions of my autobiography which I submitted to my psychiatrists at GW. I further believe that Vernon E. Jordan, Jr., Esq. transmitted the draft versions to his close friend and confidant, former President William Jefferson Clinton or Hillary Rodham Clinton. If you recall, in the mid-1990s, Mrs. Clinton chaired an ill-fated national health care reform initiative that considered benefits for mental health treatment.

I understand that the willful fabrication of delusional symptoms to bolster a Social Security disability mental health claim would constitute a prosecutable act of criminal fraud.


Sincerely,



Gary Freedman

cc: Eugene Lambert, Esq., trustee, GW
David Kendall, Esq.



January 5, 2005
3801 Connecticut Avenue, NW
Apartment 136
Washington, DC 20008

U.S. Secret Service
245 Murray Drive
Building 410
Washington, DC 20223

Dear Sir:

This will advise the U.S. Secret Service that I have been the victim of an ongoing fraud and racketeering conspiracy run by attorney managers of the Washington, DC law firm of Akin, Gump, Strauss, Hauer & Feld: a criminal enterprise that has involved The George Washington University Medical Center Medical Faculty Associates, The District of Columbia Public Library (Richard Jackson, Interim Director), as well as several high-level federal officials including former President William Jefferson Clinton, former Treasury Secretary Robert E. Rubin, and former Treasury General Counsel, Edward S. Knight, Esq.

The Government of the District of Columbia (Office of The Corporation Counsel) determined (in 1997) that I formed a genuine and good-faith belief (though unsupported by fact) that in January 1990 members of the law firm of Akin, Gump, Strauss, Hauer & Feld (a class of persons that included Edward S. Knight, Esq.) gained unlawful entry to my apartment (at the above address), and that the unlawful entry was made with the knowledge and consent of the firm's management committee (a class of persons that includes Robert S. Strauss, Esq. and Vernon E. Jordan, Jr., Esq.). Freedman v. D.C. Dept. of Human Rights, 96-CV-961 (DCCA, Sept. 1998), Brief of Appellee District of Columbia at 9. The firm did not dispute the District's determination or its legal or factual relevance.

Vernon E. Jordan, Jr., Esq. is a close personal friend of former President Clinton's.

Secret Service Special Agent Philip C. Leadroot (now retired) is familiar with this matter.

Enclosed is a collection of pertinent documents.


Sincerely,


Gary Freedman

DISABILITY DISCRIMINATION: HOW I GOT BANNED FROM THE DC PUBLIC LIBRARY

April 29, 2004
3801 Connecticut Avenue, NW
Apartment 136
Washington, DC 20008-4530
Telephone: (202) 362 7064


National Alliance for the Mentally Ill
422 8th Street, SE
Washington, DC 20003
E-mail: namidc@juno.com
Telephone: (202) 546-0646

Dear Sir:

I am a 50-year-old disabled American who suffers from severe mental illness, and I believe I was treated unfairly by the District of Columbia Library (Cleveland Park Branch) because of my illness.

On Wednesday April 21, 2004 an associate librarian, William Decosta, at the direction of Branch Librarian Brian P. Brown, summoned the Metropolitan Police of the District of Columbia to the Cleveland Park Branch in connection with a letter I had written to Mr. Brown on Friday April 16, 2004. Mr. Dacosta advised the Police (Officer J.E. Williams, Badge 1226, Second District, 202 282 0070) that the letter I had written and transmitted to Mr. Brown had aroused serious concerns about my mental health and stability.

The specific statements in the letter that aroused concerns were the following:

(1.) I said I was in a "dark place," psychologically.

(2.) I stated that I had stopped taking the anti-psychotic medication that my psychiatrist had prescribed.

(3.) I said that I was in deep emotional pain and that the persons who had caused the pain would "pay for my pain."

The Police (Officer Williams and his partner) questioned me about the letter. I explained that I am a licensed attorney and that the statement that "others will pay for my pain" referred to my contemplated act of pursuing legal remedies, a form of protected speech. I explained that I was a nonviolent person with no arrest record and that any references to any future action on my part against any persons related solely to my pursuing legal remedies.

The Police (Officer Williams and his partner) were assured that the letter did not contain an unlawful threat to commit a crime of violence. Librarian Decosta also advised the Police (Officer Williams) that I had engaged in a practice of altering the computer menu icons, an act of misconduct.

Librarian William Decosta stated that the Branch Librarian Brian Brown would like me to stay away from the Cleveland Park Branch for the next six months (i.e., until October 21, 2004). I was free to patronize any other District of Columbia Library and use the libraries' computer facilities.

The Police (Officer Williams) agreed that the Branch librarian's requested remediation was reasonable and advised me that I had to honor it. It was made plain to me that my failure to comply with the six-month ban at the Cleveland Park Branch would result in my expulsion and the possible filing of criminal charges against me.

I fully intend to comply with the six-month ban. However I do believe the ban is excessive, and request that the ban be lifted. I offer the following facts in support of my request.

1. I suffer from severe mental illness, which has been diagnosed as paranoid schizophrenia. The illness was first diagnosed by Dimitrios Georgopoulos, M.D. (George Washington University Medical Center) in February 1996. The diagnosis was confirmed by Albert H. Taub, M.D. in February 1999. My current treating psychiatrist, Betsy Jane Cooper, M.D. (D.C. Department of Mental Health, 202 576 6510) has stated that my current psychiatric symptoms fall within the diagnostic ambit of paranoid schizophrenia.

2. My psychotic symptoms include a fixed delusional system of longstanding duration. The delusional system arose in late October 1988 and centers on the belief that attorney managers of my former employer, the firm of Akin, Gump, Strauss, Hauer & Feld ("Akin Gump") have had me under surveillance. I believe that my psychiatrists have transmitted confidential mental health information about me to Akin Gump managers. I further believe that confidential information about me has been transmitted by said managers to various persons including former President William Jefferson Clinton. Senior partners at Akin Gump include Vernon E. Jordan, Jr., Esq., a close personal friend of former President Clinton, and Robert S. Strauss, Esq., former U.S. Ambassador to Russia and Chairman of the Democratic National Committee.

I also "hear voices," a symptom that first arose in the spring of 1993. Typically I hear the voices of historical figures and fictional characters from literature. For example, I hear the voices of President Franklin D. Roosevelt and Rodion Raskolnikov, a character from Dostoyevsky's novel Crime and Punishment. Since 1993 I have been writing down the voices I hear and have been compiling the quotations in a kind of continuous novel; my "novel" is now about 400 pages in length and is contained on three computer discs. The voices I hear are for the most part benign and ego-syntonic. The voices do not direct me to commit any acts, criminal or otherwise. I find the voices entertaining and reassuring, in fact, rather than tormenting. In stressful situations, the voices become intense, but reassuring.

My illness has been refractory to three different anti-psychotic medications: Zyprexa, Abilify, and Risperdal. Clinical trials of these three antipsychotic medications at therapeutic doses have failed to modify my psychotic symptoms of delusions and hallucinations. I experience fatigue while on these medications, but no therapeutic effects. I resumed the Zyprexa on April 21, 2004, following the above-referenced incident at the D.C. Library. At this time I continue to suffer from delusions and hallucinations.

3. Until late October 1991 I was employed at the law firm of Akin Gump as a paralegal. My employment was terminated on October 29, 1991 by Dennis M. Race, Esq. (a senior manager, 202 887 4028), after I had lodged a complaint of harassment against coworkers that was subsequently determined by Mr. Race to be symtomatic of mental illness.

4. The U.S. Social Security Administration determined that I became disabled and qualified for disability benefits as of the date of the job termination, October 29, 1991. I have not worked since the date of the termination (a period of about 13 years), and live on disability benefits and food stamps.

5. Since the date of the termination (in late October 1991) I have visited the Cleveland Park branch of the D.C. Library almost daily. Brian Patrick Brown has been employed as librarian at the Cleveland Park branch since 1988. Mr. Brown has seen me almost daily for 13 years. I have consistently deported myself at the library in a quiet, respectful, and courteous manner. One of Mr. Brown's colleagues, librarian Barbara Gauntt, has referred to me as an ideal library patron. Prior to the incident on April 16, 2004 I had no inappropriate interactions with any librarians, staff persons, or patrons.

6. I believe that Mr. Brown has had me under surveillance at the library since my job termination in October 1991. I believe that he has been in daily communication with a person or persons associated with Akin Gump, possibly Earl L. Segal, Esq. (the head of the paralegal program) and Malcolm Lassman, Esq. (a senior partner who reports to the firm's management committee on issues relating to paralegals). I believe that Mr. Brown has received confidential mental health information about me via persons associated with Akin Gump and that Mr. Brown has shared that information with fellow library employees. I believe that on occasion Mr. Brown and his colleagues have harassed me with said confidential information by their use of double entendres.

7. I am totally isolated socially. I have no friends. The last time I had any social interaction was in early February 1992 (12 years ago), when I had lunch with a friend. I have no family in the area. I have not spoken with my only relative, an older sister, since February 1996. I have not seen my sister since the fall of 1992. Since 1992 my interpersonal interaction has been limited to consultations with mental health professionals.

8. I have taken a liking to Branch Librarian Brian Patrick Brown, who I have seen almost daily since 1991. I think of him as an imaginary friend. I have imaginary conversations with Brian and fantasize about our getting together for conversation or other activities. Since April 2003 (one year ago), I have been writing letters to Brian and saving them on the library's computer hard-drive; I engaged in the act of altering the computer menu icons in order to get Brian's attention. I believe that Brian has been reading the letters since the inception of my letter-writing activity and that he has acquired considerable knowledge about my personal history and my personality. I believe that Brian has found the letters entertaining.

It was the letter dated April 16, 2004, referenced above, that aroused Brian's concerns about my mental health and stability.

9. I have spoken with three treating mental health persons about my activity of writing letters to Brian and saving them on the library's computer hard-drive, namely, Dr. Betsy Jane Cooper (my treating psychiatrist), Dr. Meghana Tembe (my treating psychologist at the GW Center Clinic for Professional Psychology), and Dr. Israela Bash (my D.C. mental health case worker). None of the parties attempted to dissuade me from the activity, although each of them stated that if I wanted to be friendly with Brian I should engage in conversation directly with him. Dr. Bash expressly suggested that I ask Brian to go to lunch with me.

Based on my conversations with my treating therapists, I had no reasonable basis to conclude that my act of writing letters and saving them to the library's computer hard-drive was inappropriate. Note that two of the mental health professionals, namely, Dr. Cooper and Dr. Bash, are employees of the District of Columbia. In effect, I had reason to believe that two employees of the District of Columbia had granted me carte blanche to pursue my activity of writing and saving letters to Brian Brown on the D.C. Library's computer hard-drive.

10. Librarian William Dacosta advised the Police (Officer Williams) that Mr. Brown had read only one of my letters (the letter dated April 16, 2004). Mr. Decosta denied that Mr. Brown had read any other letters that I had written during the previous 12 months. Mr. Dacosta also denied that he or Mr. Brown had any communications about me with persons associated with my former employer, the law firm of Akin Gump. Mr. Decosta denied that he or Mr. Brown had me under surveillance, or that they had daily communications about me with parties outside the library.

11. Mr. Decosta's statements to the Police (Officer Williams) serve as an admission by Mr. Dacosta that the librarians did not believe that I was engaged in the practice of harassing or stalking Brian Brown. Mr. Decosta's statements also serve as an admission that I had not been warned by library personnel on any prior occasion to cease my activity of altering computer menu icons or writing letters to Brian Brown and saving them on the library's computer hard-drive.

12. I advised the Police (Officer Williams) on April 21, 2004 that Mr. Brown had me under surveillance since 1991; that I had been engaged in the activity of writing letters to Brian Brown for the previous year (since April 2003); and that I had been engaged in the activity of modifying the computer icons for the previous year (since April 2003) (in order to gain Brian's attention). I also said that I believed that Brian and I had a lot in common and that perhaps we could become friends.

The Police offered the following observations:

(1.) My accusation that Mr. Brown had me under surveillance appeared to be a civil, and not a criminal matter. The Police advised me that if I had any substantial evidence that Mr. Brown had me under surveillance I should hand over that evidence to the D.C. Police detectives office or the Office of the U.S. Attorney for investigation.

(It will be noted that the continuing act of a state employee in invading the privacy of a citizen, or the act of a state employee in obtaining unlawfully-procured confidential information about a citizen and disseminating that information to other state employees, may constitute a civil rights violation under federal law).

(2.) Writing letters to Mr. Brown and saving them on the computer hard-drive is an inappropriate way to become friends with anyone. (Mr. Decosta advised me that Brian Brown has a policy of not befriending library patrons. I was free to chat with Brian at the library, but my expectation that Brian and I might become friends outside the library was not feasible.)

(3.) The Police stated that my action of altering or tampering with the computer icons was sufficient grounds to bar me from the library for a six month period. The subject letter I had written (dated April 16, 2004) was deemed by the Police to have no law enforcement significance, as it related to my intent to pursue legal remedies and not to inflict bodily or other harm on anyone.

(4.) The Police appeared to accept the denials of Mr. Decosta (and Mr. Brown) that neither party had been aware of my activity of writing letters during the previous year and saving those letters to the library's hard drive. The Police also appeared to accept the librarians' denial that they had any knowledge that I had been altering or tampering with the library's computer menu icons during the previous year.

CONCLUSION

I request that the National Alliance for the Mentally Ill (NAMI) offer an opinion as to the appropriateness of the action of the D.C. Library in suspending my access to my local public library for a six month period for the sole reason that I, according to the accusation of the Branch Librarian, Brian Brown, altered the computer menu icons of a Cleveland Park Library computer, without any prior warning by library personnel advising me that this trivial act was considered a serious act of misconduct.

NAMI may contact Mr. Brian P. Brown at 202 282 3080. NAMI may contact Mr. Brown's supervisor, Barbara Webb, at Central Library Administration at 202 727 3096. Barbara Webb is the Administrator of the Local Branch Libraries of the D.C. Public Library. My library card number is 211720 1569 8634.

Thank you very much.


Sincerely,


Gary Freedman


Cc: (email - Eric H. Holder, Jr., Esq.)



Ms. Barbara Webb, [February 18, 2005]

This will advise that on Wednesday February 16, 2005 an officer of the Metro DC Police (Second District) telephoned me to tell me that she had spoken to Brian Brown (Branch Librarian, Cleveland Park Neighborhood Library) about my returning to the library as a patron.

The officer told me that Brian had set three conditions precedent to my returning. I had to agree to the following:

1. I must have no contact with Brian; Brian wanted nothing to do with me;

2. I must agree to take my medication;

3. I must not alter the computer icons;

4. I must not leave any saved documents on the computer that can be viewed by other library patrons after my computer session ends.

I told the officer that I refused to agree to these conditions, and that therefore I would not be returning to the library.

1. On April 21, 2004 associate librarian William Dacosta told me, in the presence of the police (Officer J.E. Williams (Badge 1226) and his partner), that I was free to chat with Brian in the library as other patrons do. See letter dated April 29, 2004 from Gary Freedman to the National Alliance for the Mentally Ill: "Mr. Decosta advised me that Brian Brown has a policy of not befriending library patrons. I was free to chat with Brian at the library, but my
expectation that Brian and I might become friends outside the library was not feasible."

2. I am not legally required to take medication. As a matter of principle I will not agree to perform an act at the behest of a District employee that I am not legally required to perform, as a condition precedent to using a public facility. [I believe this condition impinges on my civil liberties, and that it amounts to a constructive ban on my access to the library.]

3. Brian's conditions concerning use of the computer are reasonable; however, Brian should have issued a warning to me in April 2004 before contacting the police. I had no reasonable basis to know that using a public access computer in a manner consistent with its intended use would result in police enforcement action against me.

Also, in regard to Brian's concern that the letter I left on the computer upset other patrons I note for purposes of comparison only that under the Americans with Disabilities Act, an employer may not make an employment decision about a disabled employee based on the
generalized fears of other employees.

It is my understanding that I may return as a patron to CPK at any time, so long as I advise Brian that I will honor his conditions. In fact, I may do so at some future time.

Ms. Webb, I appreciate the time you have spent on this matter, and I thank you. This will be my last communication to you and Brian concerning this matter.

___________________________________________________________

On February 13, 2006 a patron at the Cleveland Park Neighborhood Library (Washington, DC) saved the following document to the public access computer hard-drive, in violation of library regulations. The document contains threatening language; the document refers to a program of "clean-killing America." The content of the letter leaves no doubt that the author suffers from serious mental illness, paranoid in nature. I brought this letter to the attention of managing librarian Brian P. Brown. Mr. Brown took no action against the library patron in question. Mr. Brown's nonfeasance leaves little doubt that the stated reasons for banning me from the library for six months beginning on April 21, 2004 -- namely, that I had saved a document to the computer hard-drive that was threating in tone -- was pretextual.


THE COMMONWEALTH OF THE ROYALE ISLES
OF
COOCHINI

P.O BOX 41003
Bethesda, Maryland 20824
(202) 299-7007

February 13, 2006

H.E. Secretary General Lord Kofi Annan
United Nations
UN Plaza
New York, New York 10017

My Brother:

I guess this is another one of those days, in the week, and months where I am writing you with shocking revelations about the former U.S. government, and it's Presidents, regarding this nightmare. I apologize for these Americans who without having evil to engage in, would not otherwise exist.

I want to begin by saying that I applaud Europe, and the other Commonwealth Realms that adopted my plan for vindicating our King, and my daughter. I want to say that we need them to stick with the program they began implementing of "clean killing" America, even though it hurts me deeply to say this. As Prime Minister of this Hell Realm, I should feel differently about this place. But I never really wanted to be Prime Minister because I knew that it required me to treat Americans better than they deserve to be treated. With that said, I want to first announce that I am not removing any of my corporations from Europe to relocate or bring them back to America. I will relocate my corporations, even those here, in America, to Africa, Latin America (Cuba), the Middle East, Asia, and Island Nations, as opposed to bringing them to, or allowing them to remain in America.

I should know well, by now, that Americans, those in the former U.S. Congress, and the government cannot be trusted to keep their word, or obey laws.

I was sleeping

Let me tell you what awakened me, fully: on February 10th, 2006, I was awakened by a MI 6 Agent, in drag, or I am told that she is MI 6, or Russian...the source knew that it is not an American. This person was up, attacking me. When it went to the restroom, during the middle of the night, I decided to follow. I encountered it, sitting on a toilet stool, talking to it's self, loudly. There were possibly three other people in the bathroom, but not in a stall. I listened to hear what was being said. I overheard a conversation to "Mike"... "Mike" is the internal monitoring system that the "tool shed" uses to eavesdrop on me, and others. The conversation was centered around "Business Hours;" "going on the clock"; and "when you get started." Since it made no sense to me, until I forced myself to wake up and listen, to go to work to see what it all meant, I heard enough to let me know that she was talking to "Mike"...about the conditions that the Contract Killer would be paid under. "Any other job," you work on, you work first, and then get paid; or you are on the job, first." It kept repeating the same phrase, over and over again. I did not dismiss this. I was trying to figure it out, when I walked down the hall toward my sleeping area, encountering women race walking, and some almost running toward the bathroom. I noticed that some of the women who were suddenly awake, were those I suspected to be DIA, and cops..killers, who sell themselves to the highest bidders. I did not speak, going directly to my bed, to think.

I made notes of this, and attempted to go to sleep, when "Steve Harvey," the Russian or British Agent, walked into the room. Just that quick, it knew what my note read, and began a conversation for my ears, on Volunteers. It defined what it means to be a Volunteer. I wondered how he could know so quickly, when everyone I saw racing down the hall was American. How could a Commonwealth citizen who is employed by another Realm, know what I, the Prime Minister of America, and American Mission Diplomat wrote on paper, before I had an opportunity to cover myself in bed.

I noticed that all of the cops that made my list, and my reports-letters to you were up, sitting on the side of their bed, with Francis Styles holding something in her mouth, and still wearing a face mask.

I should note that the reason she wears a face mask is due to chemical and biological agents being pumped into the vents, and the chemical agent pouring out of the vent, into the environment, filling the lungs of everyone in the "shed." I began to receive intelligence on this a while ago, but ignored it. Francis was told about it, by George Herbert Walker Bush, the former President of the U.S., and the father of the former and last American President, George Walker "Dubya" Bush, because the "tool shed" is Daddy Bush's and the former U.S. Congress' "tool shed." They Ordered the military, and the cops to introduce biological and chemical agents into the environment to help them super clean the shed, and kill everyone in there, especially, those they deem "diapers." Apparently, Francis Styles is a good robot, they will keep her around a little longer, to use her. She wore her mask, this night when "Steve Harvey" put his call out for a Contract Killer to hit me for him, and the Russian Federation. Debra Cook, and Debra Caldwell were among the other contract killers who were up and moving toward the bathroom, this night.

I later learned that Harvey was x rayed, and that he may have a "shank" on his person, like the other British Agent that was seated on the bus bench, when I got off the bus. See the photo of her, recently sent to you. It was thought that he was British, because he was hit with the x ray, and a weapon discovered.

At this point, I learned that the "shed" was filled with homosexual males. I may be the only natural female in this place. I learned, yesterday that they were "clones" of some kind, with "physical strength like mine, but no other traits like mine." I received this information from an Intercept. What I believe may have happened, since I know that there is something wrong with these people, is that my DNA may have been injected into them, by some sick CIA physician, in an attempt to replicate me. I have been of interest to the former American government for many reasons, DNA, etc., intelligence. It began when Darling was alive. However, these people kill on Order, anyone they are told to kill. They have no commitment to anyone, or thing, but money.

For sometime, I noticed that my telephone calls were being diverted to keep me from receiving certain phone calls, and to keep me from making phone calls. I knew that the controls for Deutsche Telecom, T-Mobile, and Verizon were inside the building, in all of the separate operations located in the buildings. What I am saying is 425 2nd Street, N.W., in Columbia, though not a telecommunications corporation, with minimal, if any telecommunications employees representing these corporations operating undercover in the "shed"...the domestic terrorist were given telecommunications master control equipment, that allows them to jam my cell phone, control what comes on the screen of my cell phone, where my calls that I make go, and where calls coming into me, go, and not go, depending on who the caller is. This operation is highly illegal, for many reasons, and is the work of, or is put in place by William Clinton, George Herbert Walker Bush, George Dubya Bush, the former U.S. Congress, Condoleezza Rice, as well as the NSA, and CIA. Any person from the streets, or any place, including the international terrorist can access and control my cell phone. I made a 611 call to find out about "Fox In the Box." I have not been able to access this or find out what it does, or how it allows me to counterattack those who attack me because when I tried to dial T-Mobile customer service a Russian Agent, male, from nearby, some where in the area, intercepted my call, and pretended to be customer service. His inability to understand and inform me about the mechanics of the cell phone, tipped me off. I hung up on him, and have avoided dialing 611 since this incident. This Russian Agent, KSS, or KSB, (KGB) could not have complete access to my line, without the aid of an American "tool". The former F.B.I. 's and it's corrupt Special Agents, Mr. "Patrick Manley" and Mr. Christopher "Christine Wendy" Martin used to play on my phone when I dial 611, or attempt to call a number that they knew I normally do not call, to obtain information on someone or thing. I recognized the voices. I believe it was their last attempt to impede my moving forward on the cell phone, when I tried to locate Diana Goldberg to find out about my RAKU Japanese Restaurant that alerted me to them. However, with the new phone, I attempted to try to access some of the other features. I found that domestic terrorists, mainly, were jamming my phone, where ever I go. They began to put "Memory Full" signs up on my Camera program to keep me from taking photos of them. When I initially began to take photos, I could take as many as 66 photos, or so, without being told or seeing a sign that said "Memory Full." However, they began to learn about my phone, and jammed as well as took control of my features. This was and is done by WMATA employees, telecommunications people with the military that are in the "shed".and corrupt cops that are in the "shed." Yesterday, tired of them jamming my phone, and trying to force me to delete photos of their really "hot" corrupt cops, Bush's people who are "diapers," just like Francis Styles, but not immediately for disposal. In order to try to force me to delete Jane Shine's photo, they kept the "Memory Full" sign, and "delete photos, to free memory," and "40.5 kB memory available. Free some memory?" sign on my camera. "Camera on Stand by. Memory Full" signs on my phone, blocking my ability to use my camera, when I want to, and for what I want to. This is to keep me from sending photos to you, Team Annan, and the UN Security Council. What is going on is a group of very evil, very corrupt former American Presidents are telling lies about what is happening to me, what they are doing, as opposed to what is actually being done, and claiming that I am "crazy" to keep me here, without my inheritance. Right now, my Gallery, where photos are stored, is "Empty" because I have not been able to take any photos due to the domestic and international terrorist jamming my phone. To make matters worse, I attempted to get help, and to report to our side that the terrorist were jamming my phone, attacking me, and trying to keep me from photographing those involved in the attacks, as well as to keep me from getting photos of the new "tools"..domestic, and international that were recycled into the "shed" as the old ones are sent some place else to avoid their possibly being arrested, if anyone engaged in arresting people. When I was able to reach a T-Mobile customer service representative, it turned out to be Yolanda Jackson, a for hire piece of ghetto trash. She works for or represents WMATA employees, and will sell her cell phone "pilot" weapon, services to anyone who can pay her. She works for the House of Saudi, and is a Jeans Gang member, working for the House of Windsor, as well. When I heard a voice, I recognized her voice. I asked who it was. She stumbled, thought about a name, and said, "Barbara." I immediately recognized her voice, and knew that the name she gave is my sister Barbara Brooks' name, a WMATA employee. I told her that I knew she was not T-Mobile, but someone from the ghetto. I hung up, and the fact that I reached a WMATA tool, who is now working for a member of Prince George's County government who stole, sold, and began renting real property, placing an advertisement in one of the small newspapers. Wearing a "PGC" t shirt, Yolanda came into the room to let me know that I had indeed spoken to her. Others came into the room to tell me that I had taken the top off their operation. I began to ask questions about domestic terrorist and non-telecommunication employees having access to a utility that they should not have access to, since they do not work for any of my telecommunications corporations. I asked her how she obtained access to the telecommunications equipment, and what was she doing on my phone? She went to bed. Others, including corrupt former FBI agent, Chris Martin told me that I had cancelled their operation, and taken the top off things by busting Yolanda. All night long, or until I cut the phone off, these domestic terrorist blocked my ability to use my camera. This morning it is still blocked. I know that this trash works for George Herbert Walker Bush.

I know that street people, people who work in WMATA, and not a telecommunications corporation could not gain access to a public utility, or invade the privacy of a Monarch, Diplomat, or Prime Minister, without help from someone who could provide them with this equipment, and insure them that they would never be arrested, or charged for violating the privacy of someone at this level. Not one act of violence engaged in, all the attacks, each night, and the contaminated food served to us by D.C. Central Kitchens, an American operation could take place without the help of the NSA, the DIA, the former U.S. Congress, and everyone on the Bigot's List, which include all former Presidents and past members of the defunct Congress. I learned that the domestic "tools" were selling access to my phone, and the equipment to anyone who would pay their price. I learned that the Open Door Shelter employees provide a room for these private operations, as well as computers. To validate their terrorism, these "tools" some of whom received letters from us informing them that they will be arrested, informed Open Door staff, who already knew that I was taking pictures of the "tools" that I was taking illegal photos of them. To make them seem at ease, and to impeded my taking photos, my phone was jammed by Media people, at CBS, and an Anchor whom I fired, years ago, for speaking out against me, on behalf of the criminals, Bruce Johnson, began to rape me, while other so called "sharks" positioned themselves near my table, in some kind of symbolic move to force themselves on me, and gain a foot hold on our organization. It was a nightmare.

When I went to Kinko's to print some of the photos from the Gallery, to try to free some memory, even though I knew that I did not have any photos using memory, I walked into a Kinko's "bag" that was put in place by some folks answering George Herbert Walker Bush's S.O.S. They locked my enlargement capabilities, to keep me from printing large photos of Jane Shine, Rose B. (A Shin Bet, and David Francis Harriman, or my Jewish in-laws, from my Northern Virginia estates.) and "Steve Harvey." I think the jam was to keep me from putting Jane Shine's photo in enlarged form. When we discussed her freedom, or absence thereof, she seemed to be certain that no matter what she did, she and her daughter, Novene Shine, would never go to jail, even when I promised her that they would. I believe that their being Daddy Bush's "tools" that he contracted with for my daughter's oldest children, has something to do with that. Also, the fact that I sleep in a room with men. I am the only woman in the room. Former cops, former F.B.I. agents, and the DIA are my sleeping roommates. In the rooms behind me there are men, and in the rooms on each side of me there are men. I intercepted a message from them to me telling me that they "protect people." They are a nightmare, not only to look at, but to hear, and to simply be near.

I have photos from the Gallery, but they are small, and in black and white. The Kinko's employee disabled the color printer to keep me from printing color photos. This conspiracy is too large, and involves to many variables to be simply street level people or blue collar people working.

I thought about it and know that the former government, led by, I am told, John Kerry, John Edwards, and the former US Congress, calling themselves Robert Ehrlich, is behind the stalls, the delay in turning my assets over to me, and working to impede my getting home, to my private estates, and to my money to not only delay UN Etc., but to also delay their going to jail, or those in jail being Sentenced for Treason, murder, etc., including the 911 WTC terrorism.

When I questioned the attack that took place, when I could not film anyone, and I knew that the utility equipment was being housed, illegally, and used by terrorist, who could really engage in chaos with this equipment, I began to replay everything. Since I spoken to my grandson on the phone, earlier in the day, learning that "Shadow" the dog, and symbol of the CIA's "shadow operation" that is in place, or was in place in my children's homes, placing Rick Buchanan, his children, and their pets, CIA pets, and scientist, in my children's homes, I began to wake up, more. I learned, after having intercepted a message to me from Karen "Connonlley" that Connonlley is not her last name, or surname, at all. Her real name is Karen Buchanan. She is another one of Rick Buchanan's children, and the sister of Larry "Bogart" Buchanan, Denise Buchanan, Gregory "Swistak,' (for my numbered Swiss Bank accounts) Buchanan's sister. Her message to me, after eavesdropping on my conversation with Lord Chase, my grandson, when I learned that "Shadow" was no longer living with the rest of his family in Tim's basement, or in Tony's basement, I was happy, "I had better not hurt her brother, or she would kill me." This message is one of two that Karen sent me, with the other message.

HOW I CAME DOWN WITH PARANOID SCHIZOPHRENIA

January 22, 1996
3801 Connecticut Ave., NW
#136
Washington, DC 20008-4530

D. Georgopoulos, M.D.
Dept. Psychiatry
George Washington University
Medical Center
2150 Pennsylvania Ave., NW
Washington, DC 20037

Dear Dr. Georgopoulos:

The purpose of this communication is to advise you of the current status of that portion of my belief system that has been termed paranoid by various mental health professionals at GW.

I continue to believe that I am at the center of a large communications network controlled by attorneys associated with the law firm of Akin, Gump, Strauss, Hauer & Feld, and that confidential mental health information has, since the inception of my therapy at GW in September 1992, been routinely transmitted to these attorneys, including Vernon Jordan, Esq., a close friend of President Clinton, and Robert S. Strauss, Esq., former U.S. Ambassador to Russia.

I believe that one or more of the following mental health professionals associated with the GW Department of Psychiatry has transmitted information to Akin Gump from September 1, 1992 until the present.

Stuart Sotsky, M.D.: Director of Out-Patient Care

Napoleon Cuenco, M.D.: conducted initial assessment in September 1992

Daniel Tsao, M.D.: attending physician at time of initial assessment in September 1992. I met with Dr. Tsao on May 28, 1993 to request a transfer from Dr. Pitts to another resident on the grounds of personality conflict and incompetence. Dr. Tsao declined to transfer, citing departmental protocol.

Suzanne M. Pitts, M.D.: treating psychiatrist (resident) during period October 1992 - June 1994. Dr. Pitts consistently maintained that Akin Gump's decision to terminate my employment was justified in view of the severe nature of my illness. She consistently maintained with utter conviction that my belief that I had been subjected to harassment and discrimination at Akin Gump was the product of a psychotic mental illness.

Caroline W. Wohlgemuth, M.D.: attending physician as of late 1993. I spoke by telephone with Dr. Wohlgemuth in about late 1993 to request, for a second time, a transfer from Dr. Pitts to another resident. Dr. Wohlgemuth agreed to meet with me to discuss my concerns about Dr. Pitts, but explained that the requested transfer was contrary to departmental protocol and could not be effected. Dr. Wohlgemuth stated: "I'm not telling you to do this, but you might want to go elsewhere for treatment. There's the P Street Clinic, there's Georgetown, there are other places you could go." I declined to meet with Dr. Wohlgemuth.

Jerry M. Wiener, M.D.: I met with Dr. Wiener in August 1993 to provide him an opportunity to comment on a complaint that I planned to file with the D.C. Board of Medicine relating to my belief that various of my treating psychiatrists had been in communication with my former employer, Akin Gump. Dr. Wiener declined to investigate my allegations of wrongdoing by GW psychiatrists, and stated that my beliefs were the product of paranoia. He stated: "Your paranoia has crippled your life."

Dimitrios Georgopoulos, M.D.: treating psychiatrist (resident) during the period July 1994 to the present. Dr. Georgopoulos has stated that my paranoid belief system has left me "incapacitated."

My beliefs regarding the surveillance currently being carried out by Akin Gump's attorney managers are fully documented in numerous prior letters that I have submitted to Drs. Pitts, Georgopoulos, and Wiener; these beliefs remain unchanged. The letters, including the letter of complaint to the D.C. Board of Medicine (dated August 20, 1993) and a letter to Dr. Georgopoulos (dated January 13, 1995), are hereby incorporated by reference.

By way of brief summary, I believe that I have been under surveillance by attorney managers of the law firm of Akin, Gump, Strauss, Hauer & Feld since late October 1988. I believe that the employer has had routine and frequent communications with my sister from October 1988 to the present; had enlisted the former manager of my apartment building to routinely spy on me and my possessions during the period 1989 - February 1992; unlawfully gained access to my apartment (on January 2, 1990) to video-tape the apartment's contents, and distributed copies of the tape to my sister and others; has had routine and frequent communications with my friend Craig W. Dye; has communicated with numerous other persons with whom I have had professional or social dealings, including childhood friends; has distributed unlawfully-procured copies of my writings to various persons, possibly including President Clinton, Treasury Secretary Robert Rubin, U.S. Supreme Court Justice Ruth Bader Ginsburg (who may be a neighbor of Robert Strauss at the Watergate and who is an opera enthusiast), and Federal Reserve Chairman Allen Greenspan, among others. There is a remote possibility that Robert Strauss has used his professional connections to transmit copies of my writings to former Soviet President Mikhail Gorbachev (who is a Wagner enthusiast) and Czech President Vaclav Havel (a playwright), among others.

I believe that the receipt by President Clinton of writings unlawfully obtained from the GW Department of Psychiatry via attorney managers of Akin Gump may constitute the commission of a crime by President Clinton and, therefore, at least in a technical sense, might constitute an impeachable offense.

I continue to believe that librarians and staff persons at the Cleveland Park Branch of the D.C. Public Library system continue to receive daily reports from person(s) associated with Akin Gump. These reports relate to the content of my psychiatric consultations at GW, Akin Gump's communications with my sister (who lives in New Jersey), and other issues pertinent to my activities.

The pervasive and bizarre quality of my delusional thinking (specifically, the scope, complexity, and duration of the delusions; the delusions regarding use by attorney managers of video-tape equipment and acts that may constitute the crime of burglary; the grandiose delusion of the President's having committed an impeachable offense; the involvement of the former President of the Soviet Union--and the President of the Czech Republic, of all places!) suggests psychopathology indicative of paranoid schizophrenia.

The following is a brief summary of the ideas of reference that I experienced at the Cleveland Park Branch of the D.C. Public Library System on Saturday, January 20, 1996. This brief account indicates the pervasively self-referential quality of my thinking, typical of psychotic thinking, including paranoid schizophrenia (an illness that might predispose me to violent conduct). I notice that generally the library staff will talk in an inaudible tone of voice, but, at certain times, will state
certain words and phrases in a markedly audible tone.

[Debra:] "There's no question about it!" - [possible reference to determination by law enforcement that my allegations or personality attributions are accurate];

[Bruce Snyder (earlier in the week)]: "I felt like one of the three stooges." - [possible reference to a humorous piece I wrote about Akin Gump's attorneys and forwarded to the U.S. Secret Service];

[Bruce Snyder:] "Calvin Klein" - [possible reference to Melanie Klein, a psychoanalyst about whom I spoke with Dr. Georgopoulos at my consultation on Friday January 19, 1996];

[Bruce Snyder:] "I'm sorry" - [possible reference to Melanie Klein and her writings about guilt ("The child regrets the damage he has done to his parents")];

[Bruce Snyder:] "it's gone up in flames" - [possible reference to the actor Mark Harmon's rescue of two passengers from a burning vehicle in Brentwood, California, ultimately relating to my dream about the attempted assassination of president Reagan ("The Dream of Murder in the Lobby"), which mentions Mark Harmon. I attributed significance to the fact that ever since the Mark Harmon incident there has been a frequent use of the words "flames" or "fire" by personnel at the library];

[Bruce Snyder (earlier in the week)]: "it's a book about an imaginary planet in another galaxy" [another possible veiled reference to Mark Harmon, a Superman-like rescuer (Superman was, of course, from the planet Krypton)];

[Bruce Snyder:] "He's creepy" - [possibly a reference to Dr. Georgopoulos].

Also, on Saturday, January 20, 1996, while I was in the Brookville Supermarket, the assistant manager, Jim, stated to a customer (as he saw me) "It's happened before." He then quickly averted his gaze. I interpreted his comment as a reference to the repetition compulsion.

The affect that I attribute to these persons includes jealousy, wonder, awe, admiration, and fear. The minority staff persons seem to convey a quiet admiration and satisfaction. Brian Brown, the head librarian, seems subdued.

Surely, only the gravest of mental disorders could account for this kind of thinking. Precisely how paranoia of this pervasive magnitude could evade detection on a battery of psychological tests is utterly remarkable.

As you can well imagine, my pain and suffering has been extraordinary for the last number of years. I am totally isolated socially. I last visited my family in the fall of 1992, more than three years ago. My last social interaction with a non-family member took place in February 1992, about four years ago, when I had lunch with a friend, who has since told me to be friendly with dead people.

My situation is desperate. On Friday October 2, 1992 I met with a previous treating psychiatrist, Stanley R. Palombo, M.D. Dr. Palombo advised me at that time that I was fully employable, without restriction. By GW's own admission I am now "incapacitated," a "psychological cripple." I continue to believe that I was subjected to a severe, pervasive, and degrading pattern of harassment at my former place of employment, the law firm of Akin, Gump, Strauss, Hauer & Feld. According to Dr. Pitts, this belief was the product of a psychotic mental disorder. It is as if I have been destroyed, a victim of a psychological homicide.





Sincerely,




Gary Freedman

THE FAMILY FROM HELL

April 26, 2000
3801 Connecticut Avenue, NW
#136
Washington, DC 20008-4530

Nancy Shaffer, Ph.D.
Community Mental Health Center
Washington, DC 20007

Dear Dr. Shaffer:

At the consultation on April 19, 2000 I offered the opinion that families that assign one family member the role of scapegoat will tend to be families whose individual members are struggling with the psychological issues of dependency, shame, and narcissistic disorder. The scapegoating will serve to ward off the shame of individual family members and preserve each member's narcissistic integrity and idealized self-image. That members of such families have unusually intense dependency needs is supported by Brodey's observation that members of narcissistically-disturbed families exhibit "extreme intensity of relationship." Brodey, W.M. "On the Dynamics of Narcissism. I. Externalization and Early Ego Development." The Psychoanalytic Study of Society 20: 165-xxx at 166 (1965).

This letter elaborates material about my family that I originally presented in the personality profile I submitted a few months back. In this letter I offer additional data about individual family members that concerns possible sources of shame, dependency, and threats to narcissistic integrity. It is my speculation that in crucial ways I served a unique role in the family, as a regulator of self-esteem of other family members in my designated role as "ego-dystonic trouble unit."

FATHER

The father was the youngest boy and next to youngest child in a family of seven children (three male, four female). The father's parents were working class immigrants of Orthodox Jewish origin. The parents were strictly religious.

The Father quit high school at age 16, in the tenth grade. The Father had attended a high school for college-bound, academically-talented students. The Father's IQ, as measured in the army, was 125.

(I attended the same high school as father; my grades started to deteriorate badly in the tenth
grade--the same grade my father quit high school).

The Father was employed in factory jobs that did not match his intellectual abilities: jobs in which his coworkers were not his intellectual peers or cultural cohorts.

The Father married at age 40. The Father married a non-Jew, which was unusual both in terms of the time (1946) and given the Father's specific religious background.

The Father was drafted into the army during World War II, at about age 35; he served in the South Pacific with men who were for the most part much younger than himself.

The Father did not drive.

The Father did not have hobbies. His interests were reading the newspaper, listening to the radio, socializing with family members, occasional movies, baseball games and visits to the racetrack.

GRANDMOTHER:

Grandmother was dysfunctional, abusive, and paranoid. She spoke very little English and was totally dependent on her two daughters for her support, indeed, her very survival. She lived in a house that was purchased by her elder daughter.

Grandmother could have moved in with her elder daughter, who was childless and lived in a suburban house with extra bedrooms. This was never done because of grandmother's personality, including personality conflicts with both sons-in-law.

Elder daughter's husband was a church-going Christian, but he had no problem letting his mother-in-law die of cancer, alone in an empty house, threatened by knife-wielding neighbors, rather than have mother-in-law be cared for by professional nurse at his own house. The elder daughter's decision not to sell the mother's residence during the grandmother's lifetime (and use the proceeds for the mother's nursing care), preserved the equity of the house. The duty of nursing care fell on my own mother, who visited the grandmother each morning before work to wash her, feed her, and clean her sores.

On no occasion did the grandmother ever visit her elder daughter at her house.--ever. Not even for lunch. Reported reason: grandmother was afraid of driving in a car.

(Possible source of aunt's insistent projection: "Why doesn't Gary do more for his mother?")

MOTHER

unindividuated from early attachment objects (mother and elder sister), who were absolutely protected objects.

the mother and her early attachment objects engaged in the mutual denial of aggression on the part of the other parties and frequently they would discuss their dislike for shared displacement objects: other family members, racial minorities.

SISTER

began dating her future husband at age 17, as a senior in high school; it was the sister's only serious romantic relationship.

Boyfriend did not have plans to attend college

sister was raised as an "as if" child -- a kind of little princess who was required to take instruction in ballet and piano, who would attend college, and, presumably become a professional who would marry a professional

Sister had hopes of majoring in French in college, and was a member of the French Club in High School; sister changed her major to Education in second year of college. Her French studies were too difficult for her (sister's IQ was measured at 132). Intense study would have taken time away from available time with her boyfriend; it is not known what role, if any, the boyfriend had in changing sister's educational plans. (Aunt's response: "Well, isn't that nice. So, she'll become a teacher. She didn't need to study French." The aunt did not respond: "She's just lazy, that's her problem. She could study French, but she's just too lazy to do that. She'd rather just hang around with her worthless boyfriend. That's the reason.")

Following graduation from college, sister enrolled in a master's degree program in education; she never completed the program despite getting top grades and nearly completing the program

At age 36 sister took two courses in accounting, with hopes of becoming a CPA. Despite top grades she dropped her plans

(One of sister's frequent projections directed at brother is: "He never does what he says he's going to do.")

Sister learned to drive at age 20, only at insistence of boyfriend, who said: "I'm not going to have a wife who doesn't drive." (His mother did not drive).

Following graduation from college, sister was unable to secure a teaching position. She took a position as a secretary at a law firm; a job that did not require a college degree. She worked at the job for one year. (Note that aunt did not opine: "A legal secretary? Did she go to college to become a legal secretary? Why, that's a disgrace. Anybody can become a legal secretary, you don't need a college degree to do that.")

Sister obtained a position as a teacher, to being in the fall of 1970. She had graduated college in May 1969.

Sister left teaching in early 1975, after about five years, to give birth to her first child. Sister never went back to work. In late 1975 brother-in-law asked me if I (the helpless, dependent brother) could get some kind of work for sister that she could do at home. I secured a typing position for sister, which was later terminated for administrative reasons. Brother-in-law came back to me: "Isn't there some other job you could get for her?"

In 1980, following death of mother, sister expected that I hand over my insurance proceeds ($10,000) to sister. Note that many women go back to work after they have a child. In effect, sister expected to be able to sit at home and do nothing, and have her mentally-disturbed brother hand over ten thousand dollars to her. Sister's daughter was 5 years old at time I was expected to hand over money--in all that time, sister never worked.


BROTHER IN LAW

did not expect to attend college, but, reportedly, sister persuaded him to attend college. Mother would say: "That's so nice. If it hadn't been for our daughter, Eddie probably wouldn't have gone to college." (Mother saw sister, in stereotypical fashion, as a positive influence on others; mother was unable to appreciate the possible role her son-in-law had in downgrading her daughter's educational plans--i.e., daughter's decision to change majors to a less time-consuming course of study.)

(Note symmetry: "daughter as good object can only be a good influence on others" = "Black people murdered my mother." -- Mother's mother died of cancer, but had had difficulties with her black neighbors. Implication: mother's perceptions of external objects were really artifacts of the external objects' assigned status. If you were a good object, you were a good influence; if you were a bad object, you were a bad influence on others. Mother's notion that her own sister could only be a good influence on her own children was a product of the same type of thinking. Additional evidence: mother speculated that I (at age 9) was a cause of aunt's heart attack, despite the fact that aunt had been a heavy cigarette smoker.)

Brother-in-law did not pay for college tuition. That was paid for by his maternal uncle.

Brother-in-law majored in business administration. Following graduation his mother obtained employment for son as an elementary school teacher in an impoverished minority school district (Camden, NJ) through family connections.

Brother-in-law needed a deferment from military service; he was afraid of being sent to Vietnam; Mama took care of that.

War ended in January 1973. Brother-in-law remained in teaching position until 1983.

In 1975, brother-in-law instead of seeking a more substantial job upon birth of child, came to me to get an at-home typing job that his wife could do to supplement family income. Sister later lost that job, and brother-in-law came back to me for a second job. Note the brother-in-law's displacement of responsibility (and transmutation of guilt): The statement "Your sister just had a baby, can't you help us out financially by finding work for her?" screened out the statement "My wife just had a baby, I need to find more substantial employment." And if I didn't comply, I would be the bad person.

In 1977 I attempted suicide. Brother-in-law's first reaction was to contact a lawyer to see if my psychiatrist could be sued. The lawyer, who was active in the mental health field, told brother-in-law that suicide is an inherently psychotic act.

In 1980, brother-in-law had me (who brother-in-law knew at the time might be psychotic) hand over $10,000 to sister. At that time brother-in-law remained in teaching position mama got for him in 1969 so he could stay out of the army.

In spring of 1982, sister and brother-in-law went on one-week's vacation in Florida. Brother-in-law asked sister if she would have me call in sick for her husband every morning. Each morning for a week I had to call the Camden School District, because brother-in-law could not do that. Each morning brother-in-law would call me: "Well, did you make the call?"

PERSONALITY PROFILE

DIFFICULTIES IN REGRESSING -- IMPLICATIONS FOR PSYCHOTHERAPY

Subject's ability to regress in the clinical psychotherapeutic setting is restricted. In the course of therapy, subject's superego demands and prohibitions are not easily transferred onto the therapist owing to the highly-developed nature of subject's metabolization of early object relations. Subject's early relations with the environment gave rise to enduring and stable psychological patterns (structures), which reflect their influence; the early relationships and experiences have lost their specific early qualities and have become assimilated or embedded into his psychic system. Subject's restricted capacity for structural demetabolization (the aspect of analytic regression that emerges most clearly in the context of the transference) requires a great deal of time, work, and willingness to overcome. Greenberg, J.R. and Mitchell, S.A. Object Relations in Psychoanalytic Theory at 331 (Cambridge, MA: Harvard University Press, 1983) (discussing the theoretical work of Otto Kernberg, M.D.)

Subject's restricted ability to regress may be especially frustrating for the therapist whose work at a public clinic provides her with considerable experience with severely disturbed patients in whom the emergence of early, unmodulated relationships in the transference occurs quickly because adequate metabolization has never taken place. Greenberg and Mitchell at 331-32.

DIFFICULTIES IN REGRESSING -- IMPLICATIONS FOR SOCIAL FUNCTIONING

Subject's restricted capacity to regress in the clinical psychotherapeutic setting directly parallels subject's inability, in a social setting, to derive narcissistic support from an identification with the ideals of a group or the ideals of a leader. Unlike many persons, subject is unable to disregard his own superego demands and prohibitions and allow these to be taken over by the group ideals, precepts, and behavior. Sandler, J. "On The Concept of Superego." In: The Psychoanalytic Study of the Child. Vol. 15: 152-159 at 156 (New Haven: Yale University Press, 1960).

OBSTACLE TO THERAPY -- GUILT -- RESISTANCE -- LIMITED ABILITY TO DEVELOP THERAPEUTIC ALLIANCE -- RELATIONSHIP TO SOCIAL DIFFICULTIES

Subject faces a powerful obstacle to therapeutic gain in the form of guilt resistance. Subject finds satisfaction in his illness and refuses to give up the punishment of suffering, which has its source in an unconscious sense of guilt. This sense of guilt, which is largely inarticulable, expresses itself only as a resistance to recovery which is extremely difficult to overcome. Freud, S., "The Ego and the Id." Standard Edition. Vol. 19 at 49-50 (1923).

Nothing can be done against subject's sense of guilt directly, and nothing indirectly but the slow procedure of unmasking its unconscious repressed roots, and of thus gradually changing it into a conscious sense of guilt. Freud at 50 n. 1.

Subject requires a therapeutic setting in which he is able to observe his own wishes and abstracted feeling states, make connections between wishes and feelings (as well as different sides of a conflict), and understand these in historical, current, and future contexts. Subject requires a transference relationship and the skilled guidance of a seasoned therapist to avail himself of opportunities for new insight and growth. "A Conversation with Stanley Greenspan." The American Psychoanalyst, 28(3): 25-27 at 26 (1994).

Subject's ability to develop a therapeutic alliance will depend on subject's ability to place the therapist in the place of his ego ideal. Freud at 50 n. 1. Cf. Fernando, J. "The Exceptions: Structural and Dynamic Aspects." The Psychoanalytic Study of the Child. Vol. 52: 17-28 at 24 (New Haven: Yale University Press, 1997) (a disturbance in superego maturation and integration can affect maturation of the ego ideal, interfering with the deconcretization of the ego ideal and its integration into the personality as a substructure within the superego system).

The very factors that militate against subject's ability to develop normal social relations also militate against his developing and maintaining a therapeutic relationship.

SOCIAL FUNCTIONING -- AUTONOMY -- NARCISSISTIC SUPPORT FROM SELFOBJECTS

Subject is able to derive narcissistic support from certain autonomous persons who provide subject with a sense of cohesion, constancy, and resilience ("selfobjects"), derivatives of idealized parental imagos. The idealizing selfobject relationship is a dominant force for subject, and is expressed intrapsychically in terms of strongly held ideals and values, and interpersonally in a need for autonomous persons who are themselves dominated by a strong sense of autonomy, ideals, and values that are not readily relinquished by means of identification with the ideals of a group. See Greenberg and Mitchell at 353-54 (discussing the theoretical work of Heinz Kohut, M.D.).

It may well be that for subject the only gratifying interpersonal relations are self-selfobject relations in which subject is able to derive narcissistic support from the act of mirroring an autonomous external object, which permits subject to forego regression or identification with alien ideals. Cf. Fernando, J. "The Exceptions: Structural and Dynamic Aspects." The Psychoanalytic Study of the Child. Vol. 52: 17-28 (New Haven: Yale University Press, 1997) (persons whose superego functioning is characterized by a lack of superego integration ("the exceptions") may be attracted to, or even limit their social interests to, other persons with similar ego-superego distortion).

Unlike many people, subject is unable to derive narcissistic support by a subordination of his personal autonomy and values to group values. Cf. Sandler, J. "On The Concept of Superego." In: The Psychoanalytic Study of the Child. Vol. 15: 152-159 at 156 (New Haven: Yale University Press, 1960).

SOCIAL FUNCTIONING -- NARCISSISTIC SUPPORT FROM SELFOBJECTS -- SUBSTITUTES

Subject has a ready ability to allow interests to take over some of the functions more usually performed by intimate relationships. For subject, works can represent or substitute for personal "objects." Eagle, M.N. "Interests as Object Relations." Psychoanalysis and Contemporary Thought (1981) cited by Storr, A. Solitude: A Return to the Self at 152 -53 (New York: The Free Press, 1988).

Put another way, interests serve as an extension of or substitute for self-selfobject relations for subject. Cf. Greenberg and Mitchell at 368 ("Adults need selfobjects even at the highest levels of psychological functioning, [Kohut] argues, pointing to the reliance on selfobjects by O'Neill, Nietzsche, and even Freud, particularly during periods of intense creative activity.")

NARCISSISTIC SUPPORT FROM SELFOBJECTS -- SUBSTITUTES -- IMPLICATIONS FOR PSYCHOTHERAPY

The integrating function that psychotherapy attempts to achieve through empathy and understanding, can be achieved by subject on his own to some extent. Storr, A. Solitude: A Return to the Self at 151-52 (New York: The Free Press, 1988). Subject's ideal of therapy is based on a "therapist-as-selfobject" model in which his autonomy can be preserved.

LACK OF SUPEREGO INTEGRATION -- EARLY TRAUMA -- CHARACTER FORMATION -- REPETITION COMPULSION -- REBELLION -- SUBMISSION -- SOCIAL CONSTRICTION -- ORAL DISTURBANCE

Subject suffered a physical trauma (an accidental injury in the oral cavity) in childhood (aged 2«); the trauma and its aftermath may have led to an ego attitude of justified rebellion in subject and a distortion in ego-superego interaction that interfered with normal superego maturation. The tendency to massive superego externalization, normal in early latency, may never have been outgrown and may have resulted in a character disturbance in subject termed by Freud, "the exceptions." Fernando, J. "The Exceptions: Structural and Dynamic Aspects." The Psychoanalytic Study of the Child. Vol. 52: 17-28 (New Haven: Yale University Press, 1997).

Also, the very real oral deprivation and oral frustration associated with the injury would pose additional implications for subject's character formation and ego development. Cf. Hamilton, J.W. "Joseph Conrad: His Development as an Artist, 1889-1910." The Psychoanalytic Study of Society. Vol. 8: 277-329 at 279 (New Haven: Yale University Press, 1979).

The trauma and its aftermath may have led to a lifelong fate neurosis (repetition compulsion) whereby subject has a tendency to repeat the feelings and reactions of his trauma (including the parents' attempts to evade their own guilty feelings about the accident by blaming subject), which feelings and reactions may have become structured into a portion of subject's superego. Fernando at 20.

Subject displays two attitudes--submission and rebellion--toward his fate and toward that portion of his superego into which the strictures of this fate became structured. The circumstances of the accident and the double attitude subject developed because of them are important factors in subject's ego disturbance. Fernando at 21. Subject has become a victim of fate, destined to have his excited, rising hopes dashed by one circumstance or another. It is at the point where he feels himself badly mistreated by the fate that had crushed his hopes that he assumes the character of an "exception," until his hopes begin to rise again and he enters the next phase of the cycle. Fernando at 22.

Subject's development foundered on his inability to accomplish one of the major tasks of late adolescence: the integration of previously unresolved traumas into the character structure, or what Blos calls the "characterological stabilization of residual trauma." Fernando at 22.

Subject's superego--or, more correctly, that portion of it into which the demands and treatment of his unfair fate became internalized--did not undergo the usual progressive neutralization of its energies, integration into the personality, and distancing from its origins. Fernando at 23. The relative lack of superego maturation and integration in the subject affects the ego ideal and its integration into the personality as a substructure within the superego system, a process that normally takes place definitively in late adolescence. Fernando at 24. As a consequence subject finds it impossible to relinquish his attachment to the idealized images of his parents and instead attempts to recapture his ideals in concrete form in idealized surrogates, or parental derivatives. Fernando at 24. Subject's social interests may be largely limited to such persons. Fernando at 18.

UNRESOLVED FATHER IDEALIZATION -- CAUSE -- NEED FOR PROTECTION AGAINST AGGRESSION BY NARCISSISTICALLY-DISTURBED FAMILY MEMBERS

Subject's failure to resolve the dyadic father idealization that emerged at the earliest stages of development has had significant, even profound, reverberations in subject's adult life. Subject's dyadic father attachment was never subjected to a sufficient or lasting resolution during his adolescence, namely, at that period in life when the final step in the resolution of the male father complex is normally transacted. Blos, P. "Freud and the Father Complex." The Psychoanalytic Study of Society Vol. 37: 425-441 at 434 (1987). During adolescence subject's father served as the only protection against the aggression targeted at him by narcissistically-disturbed family members; to relinquish his attachment to his father at that time would have posed an overwhelming threat to subject's ego integrity.

SOCIAL FUNCTIONING -- RESTRICTED SOCIAL NEEDS -- NARCISSISTIC SUPPORT FROM SELFOBJECTS -- UNRESOLVED FATHER IDEALIZATION

Emotional reverberations of the subject's unresolved father attachment in the subject's adult life can be seen in his idealization of certain male figures. Blos at 434-35. Subject's father idealization suffered a catastrophic shock at his father's death, Blos at 436, when subject was 23 years old; subject succumbed to severe depression and ultimately attempted suicide 16 months later.

UNRESOLVED FATHER IDEALIZATION -- FEAR OF MATERNAL ENGULFMENT -- MISOGYNY -- NEED FOR MALE PROTECTORS -- IMPLICATIONS FOR THERAPY

Subject's unresolved father attachment is probably related to his fears of maternal engulfment and misogyny. The role or function of the early father is that of a rescuer or savior at the time when the small child normally makes his determined effort to gain independence from the first and exclusive caretaking person, the mother. Blos at 428-29. Subject's continuing need for the protecting presence of the father is a residual effect of both his failure to resolve his early father idealization as well as fantasied and objective dangers emanating from aggressive female objects (and a disturbed male) in the subject's developmental environment.

Subject's capacity for therapeutic gain may depend on whether the personality of the therapist allows of the patient's putting him in the place of his ego ideal, in which case the therapist can act as the subject's protector, rescuer, or savior. Freud at 50 n. 1. The chances for any therapeutic gain with a female therapist are very poor.

UNRESOLVED FATHER IDEALIZATION -- DEFIANCE OF FATHER -- IDEALISM -- DIFFICULTIES WITH AUTHORITY

The rivalry feelings of subject with his father (and father derivatives), the expressions of competition, oppositionalism, and defiance, in action and thought, which are directed against the father (or father derivatives), have to be largely comprehended as the result of an incomplete detachment from the early father and his protective presence in the subject's life--a presence either actual, construed, or wished for. Blos at 426.

Subject's letter writing campaign, rationalized by subject as a crusade in furtherance of an idealistic goal, and waged at the risk of his personal liberty, may be traced back to a disturbed father-son relationship that featured "frequent fights" and "physical punishment" in the form of beatings. Eissler, K.R. "Crusaders." The Psychoanalytic Study of Society, Vol. 3: 329-355 at 334-36 (1972). Cf. Fernando, J. "The Exceptions: Structural and Dynamic Aspects." The Psychoanalytic Study of the Child. Vol. 52: 17-28 (New Haven: Yale University Press, 1997) (the ego attitude of justified rebellion may reflect a lack of superego integration, a structural deficit attributable to maltreatment in childhood).

UNRESOLVED FATHER IDEALIZATION -- CAREER STAGNATION -- FEAR OF PASSIVE ADAPTATION TO FATHER

Subject's career difficulties may be related to his unresolved father attachment. Subject's subordination of his life's work, ambition, dedication, and achievement to the libidinized expectations of his father may be experienced by subject as a submissive and passive adaptation. The effort to surmount this never quite ego-syntonic position of subject's active-passive balance in the mastery of self and environment may have reached a crucial impasse at the closure of adolescence. At that juncture this unresolved imbalance may have merged with associative identity fragments of a feminine self representation. Subject's inability to contain or resolve this conflict may in part account for the abnormal psychic accommodation subject has reached with adult functioning. Blos at 440.

JEALOUSY -- SIBLING RIVALRY -- SOCIAL DIFFICULTIES

Subject has one sibling, a sister six years older than himself. Subject's sister reported having a beating fantasy about subject, which apparently emerged a brief time following subject's birth; in the sister's fantasy the sister imagined seeing her father beat her infant brother (the subject).

Such a fantasy in the sister may reflect sibling jealousy and abandonment fears of pathological intensity. See Blass, R.B. "Insights into the Struggle of Creativity. A Rereading of Anna Freud's 'Beating Fantasies and Daydreams.'" The Psychoanalytic Study of the Child. Vol. 48: 67, 68, 70 (1993).

The significance for subject of this fantasy in his sister may reside in the abnormal intensity of the sister's jealousy, and the possible role of that jealousy for subject's developing personality. There may be a relationship between subject's adaptation in early childhood to a jealous sibling and his possible reenactment of that struggle in his adult peer relations.

Subject's interpersonal relations feature numerous instances of peer jealousy in the form of malicious rumors, invidious sexual innuendo, or other acts. See Sullivan, H.S. The Interpersonal Theory of Psychiatry at 348-48 (New York: W.W. Norton, 1953) (discussing situations in which an innocent victim of jealousy serves as an absolutely fantasied figure for a group of persons).

LOSS SENSITIVITY -- SEPARATION PRONENESS -- OBJECT LOSS AND CONSEQUENCES -- REPETITION COMPULSION --ALLOPLASTIC ADAPTATION

Subject is loss-sensitive and separation-prone. Because of a greater constitutional sensitivity to inner and outer sensuous forms, the process of individuation itself was fraught with loss for subject. Irrespective of actual loss, as by death of mother, lapses of empathy on mother's part were experienced by subject as mismatching and a sense of alienation. Rose, G. Necessary Illusion at 121 (Madison: International Universities Press, 1996).

Mother's actual failure to protect subject against aggression by narcissistically-disturbed persons in his developmental environment was experienced by subject as betrayal and abandonment.

Subject's consequent defensive withdrawal of emotional investment in mother fostered attempts at mastery through (alloplastic) symbolic repetitions, and reexperiencings. Rose at 120.

OBJECT LOSS -- SOCIAL DIFFICULTIES -- GUILT -- REPETITION COMPULSION

Subject's defensive withdrawal of emotional investment in mother impaired subject's ability to cathect objects--for fear of losing them and because of the incapacity to mourn. Subject attempts to conserve the lost object by hypercathecting it, at the same time that his unconscious self-reproaches and guilt feelings (for having caused its loss) block the mourning process. Subject continues to search for the lost mother in adulthood (primarily in the form of symbolic substitutes, see Hamilton, J.W. "Joseph Conrad: His Development as an Artist, 1889-1910." In: The Psychoanalytic Study of Society. Vol. 8: 277-329 at 285-286 (New Haven: Yale University Press, 1979)), and subject's emotional constriction may be viewed as a defense against rage. Repeated disappointments throughout his life enable subject to perpetuate the presence of the lost mother, even while such disappointments constitute defiance and revenge against this parent. Haynal, A. Depression and Creativity at 66 (New York: International Universities Press, 1976).

OBJECT LOSS -- UNCONSCIOUS FANTASY -- EFFECTS ON OEDIPAL RESOLUTION -- IDENTITY DISTURBANCE

Subject is struggling with the consequences of the defensive withdrawal of his emotional investment in his mother, beginning in late latency. Subject's defensive withdrawal of emotional investment occurred in the face of his mother's failure (inability) to defend him against the aggression of family members who suffered from "extreme narcissistic disturbance" and who used subject as an essential component of their shame-regulation needs. See Brody, W. M. "On the Dynamics of Narcissism. I. Externalization and Early Ego Development." The Psychoanalytic Study of the Child. Vol. 20: 165-193 at 166 (New York: International Universities Press, 1965).

Subject's unconscious struggle is identical to that found in patients who lost a parent in childhood, prior to completing the task of individuation. Subject's defensive withdrawal of libidinal investment in his mother, occurring as it did prior to the completion of the work of adolescence, impaired the reworking of the Oedipal struggle, the painful and gradual decathexis of the beloved parent, and the establishment of an identity matrix. Hamilton, J. W. "Joseph Conrad: His Development as an Artist, 1889-1910." The Psychoanalytic Study of Society. Vol. 8: 277-329 at 278-79 (New Haven: Yale University Press, 1979).

Subject's struggles as an adult center on feelings of betrayal, abandonment and rage (and the concomitant need for protection against these threats) that properly attached to a mother who is hypercathected, internalized, but whose loss was never effectively mourned. Hamilton at 278-79.
Subject has introjected the hypercathected parent (who is now lost), which contributes towards a marked denial of the loss and the formation of a fantasy that someday magically the lost parent will be regained. Subject's fantasy life reflects the desire to regain a lost idealized nurturing object as opposed to a fantasy life centered on retaining the support of an uninternalized idealized nurturing object. Hamilton at 279.

Subject's self-image reflects his sense of having lost (and his need to regain through rescue) a now internalized idealized object and his identification with a dead, injured, or incurable idealized object (as opposed to a self-image that is dependent on the subject retaining the support of an uninternalized idealized nurturing object, including its derivative, the social system). Hamilton at 279.

SOCIAL FUNCTIONING -- INABILITY TO DERIVE NARCISSISTIC SUPPORT FROM GROUP INVOLVEMENT -- NARCISSISTICALLY-DISTURBED DEVELOPMENTAL ENVIRONMENT -- ANALITY (REACTION FORMATION AGAINST)

Subject does not derive narcissistic support from a type of group involvement in which the aggression of fellow protected group members can be discharged collectively onto outsiders while retaining the idealized primary object, in the form of a leader figure or the group itself in order to make up for the lack of a satisfying symbiosis with the mother. Miller, A. For Your Own Good: Hidden Cruelty in Child-Rearing and The Roots of Violence at 86 (New York: Farrar, Straus & Giroux, 1983).

Moreover, subject's personality makes him a suitable candidate to serve as a scapegoat for the discharge of aggression by such groups.

In his developmental environment, subject served other family members as a repository of forbidden impulses and qualities, which role permitted family members to preserve their own idealized self-image, ward off shame, and preserve the idealized primary object (their own mother). Subject's whole family together read a repetitious script--each validating the other's projected wishes and fantasies. Each of the family members gathered to himself parts of the others, which he constructed into a single stereotype or role. These roles were crudely concrete and hypercathected, and had the quality of caricatures. The family relationships were characterized by narcissistic intensity (extreme at times) and its corollary, abandonment fears. Family member's relationships were reciprocal image relationships among individuals who joined in externalizing each other's projections. Brodey, W.M. "On the Dynamics of Narcissism. I. Externalization and Early Ego Development." The Psychoanalytic Study of the Child. Vol. 20: 165-193 at 188-89 (New York: International Universities Pres, 1965).

Subject's sister had a tenable position within the family fantasy system, and therefore was not motivated to emerge from it. Subject's role was untenable; his need to emerge was more desperate, while his means of doing so were already undermined. Laing, R.D. The Self and Others at 22-23 (Chicago: Quadrangle, 1962). In the eyes of the family subject's older sibling seemed well adjusted--the jewel in the family crown--while subject was depicted, and frequently treated, in debased ways. Novick, J. and Kelly, K. "Projection and Externalization." The Psychoanalytic Study of the Child. Vol. 25: 69-98 at 90 (1970).

In crucial respects, subject was treated as an outsider by his family; subject's social functioning and social difficulties in adulthood mirror his difficulties in a narcissistically-disturbed developmental environment.

Subject's rigid reaction formations against anality may militate against subject's ability to derive narcissistic support by means of identification with a social system. Cf. Grunberger, B. "The Anti-Semite and the Oedipal Conflict." International Journal of Psycho-Analysis, 45: 380-385, 384 (1964)

(For the regressed anal character "only the organic insertion within an organized social system gives narcissistic importance to the individual and only this form of narcissistic integrity is capable of giving him a phallus."); Fernando, J. "The Exceptions: Structural and Dynamic Aspects." In: The Psychoanalytic Study of the Child. Vol. 52: 17-28 at 21 (New Haven: Yale University Press, 1997)) (noting the patient's rigid reaction formations against anality that appeared to operate in tandem with the patient's harsh, unmetabolized superego that limited the patient's social interests to a few idealized objects).

DISTURBED DEVELOPMENTAL ENVIRONMENT -- FAMILY FANTASY SYSTEM -- EXTERNALIZATION AND PROJECTION -- RESTRICTED DRIVE EXPRESSION -- SELF ESTEEM -- NARCISSISTIC DISTURBANCE

Subject was the target of pervasive projections and externalizations in his developmental environment.

As a consequence of externalization by a disturbed family system subject shows severe narcissistic disturbance with mental pain and conflict rooted in the acceptance of the devalued self and the difficulty in integrating positive aspects with this conscious self representation. There is impairment in the maintenance of self-esteem and the development of an adequate self representation. Novick and Kelly at 92.

As a consequence of projection by mother (and mother's sister) subject shows anxiety and guilt in relation to drive expression. In childhood subject's drives were constantly reinforced by the parental projections, and the development of an autonomous and adaptive defense system was hindered. A brittle superstructure, based on an identification with the primitive superego and defense system of the projecting mother (and mother's sister), was created. Novick and Kelly at 93.

DISTURBED DEVELOPMENTAL ENVIRONMENT -- NARCISSISTIC DISTURBANCE OF FAMILY MEMBERS

Subject's narcissistic personality disorder (predominantly of the self-victimizing masochistic subtype) crystallized in childhood and adolescence in response to a disturbed developmental environment in which subject was a target of the psychological aggression of mother's older sister and, later, beginning at age 11, of subject's future brother-in-law. See Bleiberg, E. "Normal and Pathological Narcissism in Adolescence." American Journal of Psychotherapy, 48(1): 30-51 (1994).

DISTURBED DEVELOPMENTAL ENVIRONMENT -- NARCISSISTIC DISTURBANCE OF FAMILY MEMBERS -- BROTHER-IN-LAW

Subject's brother-in-law suffered from a narcissistic personality disorder (with psychopathic qualities).

See Bleiberg. His psychopathic tendencies centered on a "need to exploit others and by hook or crook get the better of them[.]" Horney, K. Self-Analysis (1942) at 54 (New York: W.W. Norten, 1968). The prime focus of the exploitation was money, but the need was overdetermined in exploitive aspects of his personal relations. Id. The brother-in-law took pride in his exploitive skill and had a complementary "dread of being exploited and thus of being 'stupid[' or a 'sucker.']" Id.

The brother-in-law projected issues of gender-identity disturbance, parasitism, and dependency onto subject in a persistent and double-bind fashion. The brother-in-law's grandiosity was severe but covert: he depicted himself as a model of conventional development. His grandiosity was therefore not expressed in an inflated self-image, rather in an intense narcissistic investment in the view that he was a model of conventional development. The nature of his grandiosity was well-described in an observation that subject's sister once made: "Eddie is perfectly developed. He is the perfectly adjusted person. Nothing worries him. Why, he doesn't even dream. He is so well-adjusted that the things that bother other people don't bother him. He doesn't even have to dream." (Note that in this instance the brother-in-law may have been complying with his parent's implicit demand that the brother-in-law not exhibit anxiety or vulnerability. See Berberich, E. "From the Analysis of a 5-Year-Old Boy with Pathological Narcissism." The Psychoanalytic Study of the Child. Vol. 43: 263-78 at 271 (New Haven: Yale University Press, 1988)).

The brother-in-law's grandiosity (or narcissistic investment in conventionality) merged with his authoritarianism; he was perturbed by deviations from conventionality, experienced such deviations as moral infractions, and viewed his own conventionality more as a virtue than a simple character trait. See Kernberg, O. Ideology, Conflict and Leadership in Groups and Organizations (New York: International Universities Press, 1998) (the authoritarian personality places a premium on conventionality and conformance to group norms and tends to rely on an identification with the conventionalized social system as a source of narcissistic integrity). The presence, and influence in the family, of such an individual would pose a serious threat to the self-esteem of a not fully-developed creative personality, like subject.

The brother-in-law's narcissistic investment in conventionality may be seen to parallel subject's sister's "overconventional personality," see Andrews, J.D.W. "Psychotherapy with the Hysterical Personality: An Interpersonal Approach." Psychiatry 47: 211-232 at 213 (August 1984) (Stanley R. Palombo, M.D., consulting ed.), which is often associated with hysterical symptomatology. Subject's sister seemed to possess characteristics associated with the hysteric, a personality type described in the literature as one that rigidly and inappropriately needs to express agreeable, affiliative behavior. See Andrews at 213. It might be said that while the brother-in-law needed to be like everybody, the sister needed to be liked by everybody (and would fuse her value system with whoever offered her love and acceptance). In practical terms, as far as subject was concerned, the brother-in-law needed to depreciate any deviation from conventionality, while the sister could offer no support to the individual so depreciated lest she undermine her relationship with her valued attachment object. Further, the absence of overt anxiety in the brother-in-law (he had an alexithymic, dreamless mental style) paralleled qualities that may have been encouraged in subject's sister: "The mother [of the hysteric] is not only intolerant of overt expressions of aggression and sexuality but also of anxiety in her child" Andrews at 215.

The brother-in-law was preoccupied with minor details of subject's everyday life: the clothes he wore, the music he listened to, whether the subject might glance at a clock, even the way subject chewed his food. See Shengold, L. Soul Murder at 224. The brother-in-law's behavior toward subject had both obsessive and paranoid qualities: the brother-in-law's obsessive concern with the details of subject's everyday life permitted the brother-in-law to abreact the unacknowledged rage engendered by his own mother's intrusive scrutiny of him. See Shengold, L. Soul Murder at 224.

The overt paranoid formulation "I am perpetually being watched" was transformed by the brother-in-law into the covert paranoid posture "I will obsessively scrutinize every detail of his behavior."

Presumably, the brother-in-law's attitude of hypervigilance directed at subject was related to defects in the brother-in-law's superego development. The brother-in-law may have been attempting to work out his feelings of shame associated with parental overcontrol by adopting the parents' critical attitude but directing the blame toward a scapegoat outside. See Freud, A. The Ego and the Mechanisms of Defense. 2d ed. (New York: International Universities Press, 1966).

The brother-in-law was an only child. His mother was a depressive woman who was obsessively and intrusively concerned with every detail of her son's life. Further, the brother-in-law was coercively encouraged to develop qualities of independence and autonomy that fit in with his mother's own narcissistic needs, without regard for the son's developmentally-appropriate dependency needs. The brother-in-law endowed with shame the gratification of the dependency needs of others, which reflected both his feelings of envy and the effects of parental overcontrol. Beren, P. "Narcissistic Disorders in Children." In: The Psychoanalytic Study of the Child. Vol. 47: 265-278 at 276 (New Haven: Yale University Press, 1992). Cf. Erikson, E.H. Identity and the Life Cycle quoted in Roazen, P. Erik H. Erikson: The Power and Limits of a Vision at 113-14 (New York: The Free Press, 1976): "from a sense of self-control without loss of self-esteem comes a lasting sense of autonomy and pride; from a sense of muscular and anal impotence, of loss of self-control, and of parental overcontrol comes a lasting sense of doubt and shame."

In his adult relationship with the subject, the brother-in-law abreacted the distress associated with his mother's intrusiveness; the latent homosexual implications are obvious. The classic psychoanalytic formulation of homosexuality "I will love him as mother loved me" was transformed by subject's brother-in-law into "I will torment him the way my mother always tormented me."

The brother-in-law's obsessive concern with the details of the subject's everyday life amounted to a usurpation of the maternal role in his personal overconcern with every aspect of the subject's behavior and every detail of the subject's care, a situation that may have further contributed to the confusion of subject's sexual identity. See Shengold, L. Soul Murder at 224.

Note the similarity of subject's developmental environment to a form of job harassment in which the employee-victim is subjected to chronic and annoying petty intrusions; with the co-workers' implications of homosexuality and paranoia; in which rivalry for acceptance by peers and parental derivatives (company management) predominates;--and in which the victim is forbidden to complain.

The brother-in-law "persistently question[ed] 'the adjustment' of his wife's younger [brother, the subject,] so that [he would] become[] increasingly anxious. In questioning [subject's adjustment] he repeatedly call[ed] attention to areas of [subject's] personality which [were] quite at variance with the person [subject] consider[ed] [himself] to be." Laing, R.D. The Self and Others at 133 (Chicago: Quadrangle Press, 1962). The brother-in-law's chronic behavior tended to "sabotage," "destroy," and "confuse" subject's sense of self, and had the effect of "driving him crazy." Laing at 132-33. If subject did not date, it meant subject was homosexual, yet if subject dated it meant he was a homosexual (who was trying to prove that he wasn't homosexual); if subject was non-athletic it meant he was homosexual, yet if subject showed athletic prowess it meant he was just one step ahead of total worthlessness ("at least he swims"); if subject did not work it meant he was a lazy parasite, if subject worked, well -- "Why do you work so much?" ("What do you need money for, you never do anything"--a question once posed to subject by subject's niece).

The brother-in-law's devaluations of subject provided an acceptable outlet for the sister's feelings of jealousy of her brother (the subject); the brother-in-law's chronic devaluations of subject provided a vicarious outlet for the expression of ideas that were agreeable to the sister, but which she felt forbidden to express. See Andrews, J.D.W. "Psychotherapy with the Hysterical Personality" at 213 (the hysteric desperately needs to preserve her self-image as a "pleasing person, one who is lovable, cooperative, and socially acceptable" and simultaneously needs to fuse her value system with that of the love object; thus, one aspect of the sister's co-dependency with her husband was that the husband's sadistic depreciation of subject "enabled" the sister to preserve her idealized self-image of niceness while simultaneously providing an acceptable outlet for her aggression and jealousy).

In addition, subject's parents viewed the brother-in-law's behavior as having pedagogic value. As a consequence, subject had no protection from the brother-in-law's disturbed behavior from any source.

The brother-in-law's behavior amounted to a narcissistically-disturbed "as if" pedagogy that really masked his sadistic need to torment the weak and vulnerable. The brother-in-law's own younger daughter (another one of his "pedagogic targets") began seeing psychiatrists at age seven, and later, at age 12, entered three-time per week psychoanalysis.

DISTURBED DEVELOPMENTAL ENVIRONMENT -- NARCISSISTIC DISTURBANCE OF FAMILY MEMBERS -- MATERNAL AUNT

Subject's aunt suffered from a narcissistic disorder (predominantly of the exhibitionistic-histrionic subtype). See Bleiberg. The aunt, precociously, adopted a parental role in childhood, a development that had adaptive value for the family; the aunt's mother was dysfunctional, abusive, paranoid and spoke little English. The aunt was about 6 years old when her father died (subject's mother was about 4). The aunt apparently served as "a little parent" in her family and developed a narcissistic disorder based on precocious ego development characterized by extreme unevenness of ego development; certain capacities and functions were highly matured or overdeveloped while others lagged behind. Beren, P. "Narcissistic Disorders in Children" at 276.

It appears likely that the aunt's relationship to her own mother was radically affected by the absence of a father and that the aunt, as she developed throughout childhood, was increasingly placed in the role of the absent father. Cf. Solomon, M. Beethoven at 29 (New York: Schirmer Books, 1977). Increasingly, it was the aunt who was placed in charge of the family finances. Cf. Solomon at 29. The aunt became the guardian of her mother and younger sister (subject's mother), thus instituting an infantile pattern of relatedness based on domination and care from which the parties would never free themselves. Cf. Solomon at 30. In adulthood the married, but childless, aunt was psychologically driven to assume, if only delusionally, the role of caretaker and benefactor of her sibling's children (the subject and his sister). Cf. Solomon at 231-55.

The aunt's mother (subject's grandmother) may have been able to exercise control over the aunt's life, based upon her ability to manipulate the aunt's sense of pity and guilt (guilt which the aunt later displaced onto subject vis-a-vis his relationship to his own mother). Cf. Solomon at 30. Both the aunt and subject's mother married relatively late (aged 34 and 31, respectively); the daughters lived with their mother, in a house purchased by the aunt, until the time of marriage. The aunt would have to eventually set aside the parasitical or dysfunctional mother whom she simultaneously loved and despised, who had transformed the aunt into a surrogate wife and father, and who was preventing the aunt from achieving fulfillment as a woman. Cf. Solomon at 30.

The aunt's mother (subject's grandmother) was a Polish peasant, who married at about age 18 in Poland, and emigrated shortly thereafter to the United States with her husband. Coincidentally, subject's sister was married at age 21 to a young man she had begun to date at age 17; it had been her only serious romantic relationship. One is tempted to say that, to some degree, it was a need to flee a disagreeable environment that motivated both subject's grandmother and subject's sister to marry. (Oddly, and purely coincidentally, the sister was to become a widow with two daughters, just like her grandmother.)

The involvement of subject's mother and aunt with their own mother's struggle with life reveals the disparate nature of the respective daughters' personalities. See Greenberg and Mitchell at 147 (the child's intrapsychic struggle with love and hate can encompass an identification and involvement with the parent as an actual person in her struggle with life).

The aunt's interaction with her mother (subject's grandmother) was dominated by a sense of duty and responsibility; for the aunt care of the mother inured to the narcissistic aggrandizement of her self and her sense of moral virtue. Subject's mother's interaction with the grandmother (which also involved considerable caretakeing, especially in the grandmother's later years), seemed to be dominated by identification and empathic concern; for subject's mother care of the grandmother centered psychologically on a need to alleviate the grandmother's pain and thereby vicariously cure herself. The respective attitudes of the two daughters can be encapsulated in the following formulation: Aunt--"I care for mother because I have a duty to do so; my actions display my virtue." Mother--"I care for mother because I identify with her pain; to relieve her pain is to relieve my own pain."

One has the sense that at some level subject's mother had a romanticized view of her own mother that denied, or filtered out, her mother's limitiations, her tyrany, and her abuse: that subject's mother's filial devotion was dominated by a view of her mother as a tragic figure who had sacrificed so much in life and had been rewarded with so little. See Greenberg and Mitchell at 147.

Indeed, when divorced from the abject ordinariness of her life, selected facts about the grandmother bear a quality of enchantment and deeply affecting tragedy. Her husband, a coal miner, who was a number of years older than she, had lived for some time in the United States; it was upon his return to Poland that he convinced the grandmother, then about 18--barely more than a child--to emigrate with him to this country. Who was this man she had married? Was he an adventurer who had beguiled her? or had he exploited her? The grandmother left her family and her native country in about 1911, never to return, to make a new life with the man she loved--in a coal mining community in rural West Virginia! But within about ten years, in about 1919, the man for whom she had sacrificed everything was dead, a victim of the great influenza epidemic. The grandmother believed that the members of her immediate family in Poland, with whom she never communicated, all died in the Second World War; the belief was not based on fact, but apparently reflected the ambivalence and guilt the grandmother felt about what may have been the overwhelming sense of loss occasioned by her irreparable separation. See Friedman, M. "Survivor Guilt in the Pathogenesis of Anorexia Nervosa" at 26-27. One knows nothing about the maternal grandmother's inner life or her self-image. What were her motivations, her dreams, her inner despair--and what portion of that inner life did she transmit to her children?

Subject's maleness may have carried for subject's mother and aunt associations to their own ambivalently-cathected father, who died when they were children: a male figure possibly perceived by the two women as an unreliable caretaker and abandoner (and therefore despised) but also a loved figure, a repository of undetermined idealized fantasies, possibly including rescuer and flawless benefactor or caretaker. Cf. Epstein, H. The Children of the Holocaust: Conversations with Sons and Daughters of Survivors. (New York: G.P. Putnam, 1979) (discussing the intergenerational effects of guilt and survivorship).

One might offer the additional tentative theory that subject's maleness reawakened for the aunt unresolved Oedipal issues that originally attached to a father who died when the aunt was six years of age. In this case the subject would have been the target of the aunt's fantasies centering on rivalry, jealousy, and forbidden attachment. It should be noted that abundant independent evidence of the use of projective identification by the aunt renders the aunt's private, unconscious fantasy life a relevant area of consideration in assessing subject's development. See Greenberg and Mitchell at 134 citing Klein, M. The Psycho-analysis of Children at 170 (London: Hogarth Press, 1932): "Klein suggests that the early establishment of harsh superego figures actually stimulates object relations in the real world, as the child seeks out allies and sources of reassurance which in turn transform his internal objects. This process is also the basis for the repetition compulsion, which involves a constant attempt to establish external danger situations to represent internal anxieties. . . . To the extent to which one finds confirmation in reality for internally derived anticipations, or is able to induce others to play the anticipated role, the bad internal objects are reinforced, and the cycle [of projection and introjection] has a negative, regressive direction (emphasis added)."

The aunt's perceptions of subject and subject's sister tended to be rigidly polarized and had the quality of internally derived anticipations that appeared to relate back to an early (oral) stage of the aunt's development (an early orality that may have undergone later pathological modification resulting from the loss of her father at age 6 and the oral deprivations she experienced growing up in an impoverished coal-mining community in West Virginia). Subject was routinely depicted by the aunt as a "bad object" the maternal nurturance of which depleted mother and which object had a duty to replenish and protect mother (or mother's breast); subject's sister was routinely depicted as a "good object" the nurturance of which showcased maternal narcissism and which object had no duty to replenish or protect mother (or mother's breast). See Greenberg and Mitchell at 119-130 (the chapter on Melanie Klein).

It is striking that two distinct forms of psychopathology, guilt and the hysterical personality disorder, can be seen to relate to the disparate projections of a single narcissistically-disturbed authority figure, who depicted subject's normal needs gratifications as guilty acts that destroyed the mother; but who depicted the subject's sister's normal needs gratifications as inuring to the narcissistic aggrandizement of mother. According to Andrews, the hysteric derives her narcissistic integrity by perceiving herself as being loved (a symbolic derivative of being fed by mother's breast). Andrews, J.D.W. "Psychotherapy with the Hysterical Personality" at 213. The hysteric's formulation "I suck Mother's breast, therefore I am good" complements the perverse, polar opposite formulation of the anorexic who is dominated by guilt "I suck Mother's breast, therefore I am bad."

An additional factor in the aunt's intrapsychic functioning that may have played a role in her interpersonal field was her ambivalent attitude toward her younger sister (subject's mother): the aunt's special tenderness and concern toward her younger sister seemed to ward off contrary feelings. The "excessiveness of the tenderness and its compulsive [and at times hypocritical] character betray the fact that this attitude is not the only one present, and that it is ever on guard to keep the contrary attitude suppressed. . . ." Freud, S. The Problem of Anxiety (1936) at 30 (New York: W.W. Norton, 1963).

The aunt's conscious attitude of tenderness toward her younger sister appeared to conceal by reaction formation an attitude of jealousy and hatred. The aunt was hypervigilant in her attention to any aggression directed against her younger sister and would condemn it sharply: a posture that typically suggests that the hypervigilant party is warding off his own forbidden aggressive impulses. There was a quality of shallowness or hypocrisy in the aunt's tenderness as shown, for example, in her request that subject's mother mow her lawn when the aunt went on vacation or in making other demands on her sister's time and energies, such as having her help to paint the aunt's house. Also, the aunt maintained a persistent attitude of bossiness and entitlement toward her younger sister, that was rationalized by the aunt as an expression of care and concern ("You make him do that! You're the mother!"). The aunt's rigid and defensive attitude of tenderness promoted the appearance that the aunt's love for her sister was special and proprietary and that mother's other relationships, including mother's relationship with her son, were intrusive and spurious; and, further, created the impression that subject's mother was especially fragile and vulnerable. The aunt's attitude of caring concern complemented the mother's martyr-like persona; both parties seemed to be acting out caricatured roles established in childhood.

The aunt's ambivalent attitude toward subject's mother reinforced a family culture that was enmeshed, overprotective, and conflict-avoiding, see Friedman, M. "Survivor Guilt in the Pathogenesis of Anorexia Nervosa" at 37, a culture that supported simplistic (one-sided) perceptions of family members, a culture that did not tolerate hostility or anxiety. The aunt demanded that family members, in effect, adopt her own defense of reaction formation in relation to her younger sister (subject's mother); the aunt's own warded-off (negative) feelings about her younger sister (subject's mother) were forbidden to other family members, and an expression of those warded-off feelings by others would trigger the aunt's rage (when directed against the subject, such rage served as an additional source of guilt for him).

Possible evidence of the ambivalent nature of the aunt's attitude is offered later in the discussion.

An important area for consideration and analysis is the possible ways in which the mother's interaction with subject may have been affected by the early loss of her father: whether the mother's loss of her father (at about age four) contributed to special expectations or idealization of subject, cf. Coleman, R.W., et al. "The Study of Variations of Early Parental Attitudes. A Preliminary Report." The Psychoanalytic Study of the Child. Vol. 8: 20-47 (New York: International Universities Press, 1953); or, alternatively whether the mother's loss specifically determined a need to blame subject or elicit aggression from subject (or rendered mother unable to defend subject against aggression) as a defense against the rage of abandonment. A statement made by the mother on numerous occasions may offer an important clue. The mother used to say: "You were always special to us. You were the first male we had ever had in our family." But of course, that was incorrect. The mother had had a father. Yet the mother claimed to have no recollection of him, despite the fact that she should have been old enough, when he died, to have registered at least some lasting impression.

"Children are often extremely sensitive to parental anxiety and depression. The developing personality of the child invariably becomes enormously entangled in the sufferings of the parents. . . . [T]he child's struggle with love and hate [go] past his own internally generated fantasies to include the child's perceptions of and involvement with the parents as actual persons in their struggles with life." Greenberg and Mitchell at 147 (discussing extensions of Melanie Klein's theories).

Virtually nothing is known about the aunt's father (subject's maternal grandfather); the possibility that he was abusive, disturbed--or especially loved by the family--cannot be ruled out, nor should the possibility be excluded that the aunt in adulthood was reenacting issues relating to the love, hatred, or loss of her father. We do know that the aunt had a special antipathy for males who failed adequately to perform the role of caretaker.

(It is interesting to note, additionally, that the aunt's father's name was Stanley, the name of a psychiatrist to whom subject seems obsessively attached in fantasy. Oddly enough, the name Stanley figures in the life history of subject's sister: Stanley was the name of the maternal uncle of the sister's husband (subject's brother-in-law), a beloved younger brother of the brother-in-law's mother, a physician and generous benefactor of the brother-in-law's family. In a large sense, this uncle (Stanley) paralleled in the brother-in-law's family the role of caretaker and parental surrogate assumed by the subject's aunt in her family.

Also, when the subject was about 8 years old, subject's sister (aged 14) successfully convinced subject (who does not have a middle name) that his middle name was Stanley. For some time thereafter subject signed his name "Gary S. Freedman." It is a strange and seemingly trivial anecdote that is in some sense suggestive).

A central issue in the aunt's interaction with the subject was her displacement onto subject of what might be termed a "caretaker role." The aunt, in sometimes odd and inappropriate ways, communicated to subject, even as a young boy, that he had a duty to care for mother and improve her lot in life. See Friedman, M. "Survivor Guilt and the Pathogenesis of Anorexia Nervosa." Psychiatry 48: 25-39 at 28-9 (February 1985) (unconscious survivor guilt is encouraged by parents who convey to their children an inaccurate sense of their ability to affect the quality of their parents' lives). The aunt's displacement of a caretaker role onto the subject appeared to be gender-based; the aunt rigidly refrained from placing any expectations on subject's sister that the sister care for her mother. Even reasonable expectations that the sister assist mother with household chores were never expressed by the aunt; yet the aunt routinely admonished the subject, the male child, to help his mother.

An additional issue in the interaction between subject and aunt concerned the aunt's narcissistic investment in pedagogy. See Miller, A. For Your Own Good: Hidden Cruelty in Child-Rearing and the Roots of Violence at 4-6 (New York: Farrar, Straus, Giroux: 1983) (discussing the 19th century pedagogue Daniel Gottlob Moritz Schreber, an author of numerous books on child-rearing, whose own son suffered a psychotic breakdown in adulthood). See also Shengold, L. Soul Murder at 224. Shengold describes the elder Schreber as "grandiose and paranoid, with [a] confused sexual identit[y]. [He] had aspects of the psychotic about [him], and yet superficially appear[ed] to have a predominantly obsessive-compulsive character of a particular kind. Every detail [had to] be attended to: a detail out of place [brought] about not just anxiety but an overwhelming, cannibalistic rage[.]"

Numerous instances of the aunt's Schreber-like obsessiveness could be cited. Two will suffice. When subject was 15 years old the aunt noticed that subject was squinting, but said nothing. About a week later, the aunt, alone with subject, said: "I couldn't help notice that last week when you were at our house you were squinting. You know, that can be a symptom of constipation. Do you suffer from constipation? Do you have normal bowel functioning?" (It is interesting to note, incidentally, that the aunt was blind in one eye, a lifelong reminder of an instance of misbehavior in childhood. As a child, the aunt had accidentally dropped a light bulb, which she had been playing with. Glass fragments severely damaged an eye. The aunt was probably punished severely by her mother.)

On another occasion, when the subject was about 12 years old, the aunt assigned a chore: the subject was told to gather pieces of out-of-place pea-size gravel that had scattered on the aunt's lawn, from a garden area, during a windstorm. The subject was told that he would earn a penny for every three pieces of gravel that he recovered. ("Should I give you a penny for every two pieces? No, no. That's too easy. I'll make it three.") Upon completion of the task, the aunt methodically counted each piece of gravel--then proceeded to chastise the subject: "You could have earned so much more money if you had worked harder! You could have retrieved so many more pieces. But you were just too lazy to do that." One has the sense that the entire drama was contrived simply to rationalize the outcome. The subject would fail to perform splendidly, and the aunt would chastise his lack of diligence--no matter how many pieces of gravel he might have recovered. See Brodey, W. M. "On the Dynamics of Narcissism" at 167 (projection may be combined with the manipulation of reality selected for the purpose of verifying the projection).

Note, significantly, that the subject's sister was never humiliated in this way.

It is significant that both the aunt and subject's brother-in-law had similar developmental backgrounds: both the aunt and the brother-in-law were raised by mothers who inappropriately encouraged their respective children's precocious development. See Beren, P. "Narcissistic Disorders in Children" at 276. Subject's sister therefore married someone who resembled her aunt. Cf. Shengold, L. Soul Murder at 9: "those who have been maltreated in childhood . . . have an almost uncanny ability to find and to marry someone with a similar background and similar ideas about child rearing" (quoting Steele, B. "Violence within the Family." In Child Abuse and Neglect at 14, ed. R. Helfer and C. Kempe (Cambridge, MA: Ballinger, 1976)).

Developmentally, both aunt and brother-in-law had been compelled to adopt autonomy as a value but had not been provided sufficient nurturance to develop actual autonomy. As a result both parties, despite the appearance of independence, retained strong unacknowledged dependency needs that had to be warded off defensively and that disposed both parties to intense unconscious envy of maternal nurturance. Both aunt and brother-in-law employed a pedagogic rationalization for their sadistic and obsessively intrusive behavior, thereby transmuting their narcissistic disturbance into a sense of guilt in subject ("he is being chastised for his own good"); subject's normal developmental needs were endowed with shame by both parties to discharge envy and the shame of dependency.

To paraphrase, or apply, an observation that Thurman Arnold once made about the legal system: "parental authority in the family is primarily a great reservoir of emotionally important symbols, needs and gratifications: the rule of the parent within the family is based on the belief that there must be something behind and above the parent without which the parent cannot imbue himself with the qualities of authority or respect that might be conferred by the child on any other adult." Lieberman, E.J. Acts of Will at 370 (New York: The Free Press, 1985) quoting Arnold, T. Symbols of Government (New Haven: Yale University Press, 1935). By implication, the arrogation of parental authority by a non-parent can be accomplished by a grandiose assumption of right ("entitlement") combined with a system of rewards and punishments that lure other parties to acquiesce in the arrogation. This is precisely the dynamics found in certain cults, such as the Branch Davidians, in which the cult leader asserts a parental role over the children in the cult, an arrogation of parental rights acquiesced in by the biological parents, who themselves become de facto children vis-a-vis the cult leader. Cf. Brodey, W. M. "On the Dynamics of Narcissism" at 188 (comparing the dynamics of the narcissistically-disturbed family to that of a cult). Cf. FitzGerald, F. Fire in the Lake: The Vietnamese and the Americans in Vietnam at 292-302 (Boston: Little, Brown and Company, 1972) (discussing the dynamics of colonialism, specifically the subversion of native authority by the colonial power).

An important source of the aunt's power in the family was her use of narcissistic giving, which breached the boundary of "genuine" generosity. Brenman-Gibson, M. Clifford Odets: American Playwright at 677 n. 24.2 (New York: Atheneum, 1981). The aunt's giving--which featured, inter alia, lavish meals that she prepared at her home, to which the family was routinely invited--was a tool of the aunt's manipulation and control (somewhat analogous to the gifts of candy, or lures, used by child molesters to attract young children, cf. Thomas Mann, Mario and the Magician). The aunt's giving "enslaved, trapped, and somehow deprived the [family] of autonomous life and growth, [so that family members'] separate existence [was] threatened, if not violated[.]" Brenman-Gibson at 677 n. 24.2. As a child the subject could not have recognized that the aunt's giving was in fact "controlling, limiting, growth-arresting, and, therefore, exploitive or 'selfish.'" Brenman-Gibson at 677 n. 24.2. And certainly to describe the aunt's giving for what it really was would solicit the label "selfish ingrate;" clearly, the aunt's rationalized narcissism was a potent seductive tool that placed her above reproach and ensured her authority. Cf. Lieberman, E.J. Acts of Will at 370 (citing Thurman Arnold). See Friedman, M. "Survivor Guilt in the Pathogenesis of Anorexia Nervosa" at 37 (anorexia arises in an enmeshed, overprotective, conflict-avoiding, rigid family having a preoccupation with food).

The aunt's exploitive giving heightened her grandiose sense of entitlement (her arrogation of a parental role), heightened the parents' willingness to acquiesce in the aunt's arrogation of a parental role, and heightened the aunt's seductive allure for the subject and his sister. The aunt's giving contributed to the sense of family members that the aunt was a benevolent woman who genuinely cared about the welfare of subject and his sister and who was rightly entitled to participate in (or at times control) the childrens' development. In psychoanalytic terms, however, the aunt's giving might be characterized as an almost literal or concrete assumption of an "as if" nurturing posture (a derivative of the caretaking role that the aunt assumed in childhood to compensate for an inadequate maternal provider, see Beren at 276), a parody of healthy maternal narcissism, that in adulthood discharged in disguised form the rage engendered by the aunt's cannibalistic mother imago.

The aunt's sense of her role as parental figure approached the proportions of a quasi-delusion, an "instance of manifestations in the 'normal' that resemble those of psychosis." See Shengold, L. Soul Murder at 301 (New Haven: Yale University Press, 1989). On one occasion the aunt said to subject: "If it had been up to your father, you would have had shit. I gave you everything you have." (Note that in this statement the aunt may have identified subject with her own younger sister, over whom the aunt had assumed guardianship in the absence of a paternal caretaker. The aunt's statement may be evidence of ambivalence toward her younger sister; a younger sister who was consciously idealized, but unconsciously seen as a burden for whom much had been sacrificed.)

Subject's parents were psychologically predisposed to acquiesce in the aunt's arrogation of a parental role. Subject's mother was unindividuated from her older sister, and viewed her older sister as a surrogate mother and protector (see discussion below).

Subject's father had an authoritarian streak, which disposed him to tyrannical rule within the immediate family, but paradoxically--though fittingly--made him all the more susceptible to the sway of persons outside the immediate family who seemed to carry an air of power or who provided maternal nurturance.

The father reported that his own mother, an orthodox Jew, was especially revered by the male elders of her synagogue. The father's mother, an immigrant from Riga, Latvia, who died in 1933, used to prepare and deliver meals to these men, who, preoccupied with study and prayer, could not readily attend to their worldly needs. The father used to comment: "When my mother died, they brought her body right into the chapel, near the altar. That's very rare, you know. At most Jewish funerals, the body is kept out in the vestibule."

Subject's father's father, Moses, a factory worker, died in December 1929; subject's father was 23 years old at the time. Following his death the widow (subject's maternal grandmother) commissioned a Torah scroll as a memorial, with the names of family members inscribed therein, which she donated to her congregation (Ohel Jacob). "Those with an intimate acquaintance of Hebrew texts will recognize immediately" the value of such a gift and the unusual generosity that the gift represented. See Yerushalmi, Y.H. Freud's Moses (New Haven: Yale University Press, 1991). The gift was paid for with life insurance proceeds of about $2000. For the widow of a working class husband to spend her legacy on such a gift carries an almost bizarre poignancy; keep in mind, also, this was the beginning of the great depression.

One is tempted to speculate that the widow's generosity reflected a lifelong pattern of giving to outsiders, and that the children of such a mother may have felt slighted. Subject's father, the youngest son, and next to youngest of seven children, may have experienced envy of his mother's generosity, which, at some level at least, he may have felt "should have begun at home." Of relevance to subject's development is the possibility that subject's father may have been disposed to a special envy of maternal nurturance; perhaps the father's oedipal rivalry with subject merged with the father's oral envy of the son's nurturance--an additional source of guilt for subject.

The father reported that when he was a young man he developed a friendship with another young man in his neighborhood, Benny Rossman, the cousin of playwright Clifford Odets. Odets' biographer describes the Rossman home in North Philadelphia as "a freewheeling, lively place filled with Yiddish talk and Yiddish newspapers. . . . [A family member] recalled 'lots of people always dropping in, some living with us for a few months if they had no work . . . always good food.'" Brenman-Gibson, M. Clifford Odets: American Playwright at 28 (emphasis added). Subject's father was one of those "people always dropping in" for food and talk -- part of a recurring pattern in the father's life. Coincidentally, Benny Rossman's mother, Esther, the sister of Odets' mother, usurped the maternal role in her relations with Clifford Odets, her nephew, and even referred to the playwright as "my son," to the apparent dismay of her own son, Benny, who may have felt slighted. Brenman-Gibson at 28. Odets' mother was still alive at the time.
Before he married (at age 40) the subject's father developed an enduring relationship with a family in Atlantic City, New Jersey -- "the Blum family." The family, who had an orthodox Jewish background, mirrored the father's own family, and was headed by a woman (Ethel Blum) who was just a few years younger than the father's own mother. A kind of Jewish Madame Vauquer, Ethel Blum used to rent rooms
in her large house to vacationers.

Ethel Blum had numerous children, of the same generation as subject's father, with whom the father was friendly. (One son, Edward Blum, owned and operated, together with his wife, a restaurant in Atlantic City.) In about the 1930's Ethel Bum earned money by preparing and selling knishes or other food items on the beach in Atlantic City, and later opened a corner grocery or delicatessen. Ethel Blum seemed to accept subject's father as a surrogate son; the father used to address her as "Mom." Presumably, the father's involvement with the Blums began after the death of his own mother in December 1933, when the father was 27 years old.

Persuasive evidence points to the likelihood that a particular type of woman held a special allure for subject's father: matriarchal or domineering; preoccupied with food and nurturance, including the nurturance of outsiders; and a woman disposed to establish an "as if" maternal connection to a male (a surrogate son), possibly involving usurpation of the biological mother. Subject's aunt (the father's sister-in-law) had all these qualities.

TRANSITIONAL OBJECT STATUS -- MOTHER'S LACK OF INDIVIDUATION -- EFFECTS ON SUBJECT'S DRIVE EXPRESSION -- RESTRICTED AFFECT

Subject's mother was unindividuated from her early object attachments (her own mother and perhaps even more important, her older sister). Mother's relations with the subject vis-a-vis her own early attachment objects therefore paralleled the relations of a child with a doll (transitional object) vis-a-vis the child's mother. As a consequence mother in some sense treated her son, the subject, as a kind of doll or transitional object. Mother found it difficult to confirm any agency on the subject's part. Mother was unable to respond in an appropriately meaningful way to the spontaneity of subject and could only interact with subject if the mother could be the initiator of any interaction between them. To some extent it was this passive listless "thing" quality of the subject that mother regarded as most "normal" about him. The mother tended to react to any spontaneity on the part of subject with anxiety and attributions of badness or madness. To be good was to do what subject was told. Laing, R.D. The Self and Others at 92 (Chicago: Quadrangle, 1962). See Brodey, W.M. "On the Dynamics of Narcissism" at 181 (mother appeared aware only of those movements in the child that she herself had initiated, and held her child "like a doll"). If subject spoke in an animated way, subject's mother would comment: "Who wound you up?" (note the doll imagery).

Negatively, subject's interaction with such a mother impaired the development of healthy attitudes about drive expression and may have fostered ambivalence and guilt about individuation and autonomy. Positively, subject's interaction with such a mother may have prompted subject to develop, and largely reside in, an inner world of thought over which mother had no control. For subject to think is to be masculine, autonomous, and defiant.

TRANSITIONAL OBJECT STATUS -- MOTHER'S LACK OF INDIVIDUATION -- MOTHER'S FAILURE TO PROTECT AGAINST AGGRESSION -- SUBJECT'S NARCISSISTIC DEFENSE AGAINST AGGRESSION/FAILURE OF MATERNAL PROTECTION -- RESTRICTED AFFECT

Because subject's mother was unindividuated from her older sister, and relied on that sister as a primary object, subject's mother could offer subject no protection against the aggression of mother's older sister, subject's aunt. Subject's mother was unable to hold any belief (even salutary beliefs about her own son) that might conflict with the views of her sister.

The failure or inability of subject's mother to protect subject against the aggression of mother's sister, an individual dominated by extreme narcissistic disturbance, promoted feelings of intense rage in subject against his mother. Further, mother's failure to protect subject, which the subject experienced as coldness, prompted a narcissistic response in subject, a coldness which he appropriated for himself and used as his own defense. This led to a narcissistic splitting of the self into a know-it-all, unfeeling part and a painfully feeling but brutally destroyed part--a condensation of vulnerability and callousness. Berberich, E. "From the Analysis of a 5-Year-Old Boy With Pathological Narcissism." The Psychoanalytical Study of the Child, 43: 263-278 at 271 (1988) (citing the theoretical work of S. Ferenczi).

SURVIVOR GUILT -- MASOCHISM -- INAPPROPRIATE PARENTAL EXPECTATIONS -- TRANSMUTATION OF NARCISSISTIC DISTURBANCE INTO GUILT -- ORAL DISTURBANCE

Subject suffers from unconscious survivor guilt, which is a major motivating force in subject's masochistic psychopathology. It is guilt based on an unconscious belief that the pursuit of normal developmental goals are harmful to mother. It stems from the inappropriate expectations and blaming behavior of narcissistically-disturbed persons in subject's developmental environment that centered on the idea that subject's normal developmental needs were a cause of pain to subject's mother and that subject had an ability or duty to ameliorate mother's pain. Subject's survivor guilt was fostered by narcissistically-disturbed persons in subject's developmental environment who conveyed to subject an inaccurate sense of subject's ability to affect the quality of his mother's life. Friedman, M. "Survivor Guilt in the Pathogenesis of Anorexia Nervosa." Psychiatry 48(2): 25-39 at 28-29 (February 1985) (Stanley R. Palombo, M.D., consulting editor).

Persons in subject's developmental background routinely depicted the gratification of subject's normal developmental needs as inappropriate impulse gratification, thereby defending against their own envy and transmuting that envy into a sense of guilt for the subject.

INTERPERSONAL DIFFICULTIES IN WORKPLACE -- AUTONOMY -- ENVY

Subject's individuality (autonomy) makes him vulnerable to aggression, or attack, in groups characterized by a high level of cohesion, i.e., groups that have regressed to a state of pre-autonomous superego functioning. The affect underlying the group aggression is envy--envy of subject's independent thinking, individuality, and rationality. Unfounded rumors or accusations that subject is potentially violent, which may be transformed into a conviction of absolute certainty by group members, are a response to the threat that subject's autonomy poses to group cohesion. Kernberg, O. Ideology, Conflict and Leadership in Groups and Organizations at 5-6 (New York: International Universities Press, 1998).

Subject has a tendency to denounce or challenge social sanctions to the point where he may lose sight of his own best interests, see Results of Psychological Testing--George Washington University Medical Center at 5, a character trait that may contribute to subject's social difficulties. See also Fernando, J. "The Exceptions: Structural and Dynamic Aspects" (discussing a character type that features the traits of rebellion and defiance).

AUTONOMY -- INDEPENDENCE OF THOUGHT/ACTIONS -- PRIMACY OF INTELLECT -- SOCIAL DIFFICULTIES

Subject is unusually independent in thought and actions. MacKinnon, D.W. "The Study of Creative Persons." In Creativity and Learning. Edited by J. Kagan. (Boston: Beacon, 1967).

Subject has a sense of psychological role in life, a concept that denotes inner tendencies, deeply imbedded in the personality of subject, not easily modified, which determine nearly all meaningful relationships. This does not mean that it is not possible for subject to act in a manner that is inconsistent with that role, but when doing so anxiety will probably result, and consequently impair the degree of efficiency with which his life's problems are handled. Since subject's sense of role in life represents a more or less definite conception of reality and of his role in it, a change from such a basic concept is difficult and unlikely. Subject is apt to be independent of the opinions of others, and is apt to be more original and creative. This requires more intellectual effort than does conformity. Myden, W. "An Interpretation and Evaluation of Certain Personality Characteristics Involved in Creative Production." In A Rorschach Reader at 165-65. Edited by M.H. Sherman. (New York: International Universities Press, 1960).

Subject is apt to investigate the causes of things; hence, while his rate of learning may be slower, its effects are more lasting. Myden at 164. Indeed, subject's score on scale 6 (paranoia) of the Minnesota Multiphasic Personality Inventory (MMPI) was elevated, consistent with a "curious, questioning, and investigative" personality. Anastasi, A. Psychological Testing, 6th ed. (New York: Macmillan Publishing Company, 1988).

Subject's Rorschach responses (which were unusually detailed and expansive) are consistent with an ability to create new personalized constructions and the capacity for inner creation and living more within himself than in the outer world. Consequently, subject is apt to put intellect before feeling; that is, his relations with others are not apt to be easy or fluent. Subject is introverted, and has a tendency to drain off energy into grandiosity and obsessional ruminations or into original conceptions. Myden at 165.

Subject has markedly stronger feelings about interpersonal relationships than noncreative persons; subject's interpersonal relations (to the extent they exist) involve greater intensity. Subject has a consequent tendency to withdraw from unpleasant interpersonal situations. Myden at 165.

Negatively, subject has a "need to control self and others through reason[.]" Horney, K. Self-Analysis (1942) at 53 (New York: W.W. Norten, 1968). Subject believes in "the omnipotence of intelligence and reason, and has feelings of contempt for everything within self that lags behind the image of intellectual superiority." Id. He has a dread of recognizing objective limitations of the power of reason, and experiences a dread of stupidity and bad judgment. Id.

SOCIAL NEEDS -- AMBIVALENCE -- ALIENATION -- LONGING/DISDAIN FOR SENSE OF BELONGING

Subject has ambivalent feelings about social relations. He feels a hunger for a certain kind of social closeness, but at the same time does not feel that he genuinely belongs. Subject feels both a certain disdain for an ordinary sense of belonging, and a hunger or a nostalgia for that very belonging. Masson, J.M. Final Analysis at 124 (New York: Harper Perennial, 1991).

REALITY TESTING -- HYPERVIGILANCE -- NEED FOR INTELLECTUAL MASTERY

Subject accepts id drives and fears, and handles them through a strong ego, which is constantly engaged in reality testing. Subject reaches out for every form of clue in his environment and retains almost every bit of information, which evidently helps to satisfy his need for intellectual control of his relationships with the outer world. Subject is sensitive to every nuance of reaction from the outer world as it pertains to him. Myden, W. "An Interpretation and Evaluation of Certain Personality Characteristics Involved in Creative Production." In: A Rorschach Reader at 164-65. Sherman, M.H., ed. (New York: International Universities Press, Inc., 1960).

REALITY TESTING -- SOCIAL SENSITIVITY -- FEAR OF CONTAMINATION AS EGO STRENGTH -- IDENTITY DISTURBANCE -- DEPRESSIVE PSYCHOPATHOLOGY

Subject tends to be a non-joiner, but is socially sensitive. He is fearful of undue influence from others (according to Hartmann, the fear of contamination from others can be a product of ego strength) and it may be his very sensitivity to what others are thinking and feeling that makes him shun too much company. Subject seems to have only a tenuous sense of his own identity. Subject's sensitivity together with his depressive psychopathology disposes him to very easily identify himself with others; and, lacking certainty in his own uniqueness, feels an especial need to assert and preserve what he feels to be precarious. Storr, A. The Dynamics of Creation at 190 (New York: Atheneum, 1972).

REALITY TESTING -- SOCIAL SENSITIVITY -- CAUSE -- DISTURBED DEVELOPMENTAL ENVIRONMENT

Subject is unusually sensitive to implicit messages contained in the communications of others. Subject's sensitivity results from his adaptation to a disturbed developmental environment in which there were often remarkable discrepancies between what family members said they felt and what they actually felt. Rothenberg, A. Creativity and Madness at 12 (Baltimore: The Johns Hopkins University Press, 1990).

REALITY TESTING -- HYPERVIGILANCE -- ADAPTIVE PARANOIA -- CAUSE -- DISTURBED DEVELOPMENTAL ENVIRONMENT

Subject's interaction with exploitive and manipulative persons in a disturbed developmental environment forced him into an adaptive paranoid attitude. Subject's early environment demanded constant wariness, the habit of observation, and attendance on moods and tempers; the noting of discrepancies between speech and action; a certain reserve of demeanor and automatic suspicion of sudden favors. Shengold, L. Soul Murder at 244-45 (New Haven: Yale University Press, 1989).

REALITY TESTING -- SPLITTING -- OBSERVING/EXPERIENCING EGO -- SCIENTIFIC APPROACH TO THINKING

Subject exhibits a split between the observing ego and the experiencing ego (a vertical split) of unusual magnitude, which he is able to put to adaptive, creative use. The strength and pervasiveness of his isolative defenses do resemble what is found in those who have to ward off the overstimulation and rage that are the results of child abuse. Shengold, L. Soul Murder at 83 (New Haven: Yale University Press, 1989).

REALITY TESTING -- SCIENTIFIC APPROACH TO THINKING -- SENSITIVITY TO DETAILS/PECULIARITIES

Subject possesses greater creative potential than many of his peers; he has greater capacity for regression in the service of the ego and an ego-controlled availability of primary process thinking. Subject's mental approach is unusually systematic (as disclosed by his detailed and expansive responses on Rorschach testing); he handles objective data with an especially keen awareness of peculiarities and selective theoretical interest, which indicates a high reality testing potential. Subject's easy access to infantile fantasies and experiences suggests a capacity for creative integration of the alien past into the life cycle, a capacity that lies beyond mere disruptive psychopathology. Ducey, C. "The Life History and Creative Psychopathology of the Shaman: Ethnopsychoanalytic Perspectives." In: The Psychoanalytic Study of Society. Vol. 7: 173-230 at 176. Gertrude R. Ticho, M.D., contributing ed. (New Haven: Yale University Press, 1976).

SYNTHETIC FUNCTIONING -- CAUSE/EFFECT THINKING -- NEED TO RECONCILE INNER/OUTER WORLDS -- NEED FOR INTELLECTUAL MASTERY

Subject's synthetic functioning, a libido-derived function, is highly developed, and impels him to harmonious unification and creativity in the broadest sense of the term. Subject's highly-developed synthetic functioning impels him to simplify, to generalize, and ultimately to understand--by assimilating external and internal elements, by reconciling conflicting ideas, by uniting contrasts, and by seeking for causality. Campbell, R.J. Psychiatric Dictionary at 734 (New York: Oxford University Press, 1989, 6th ed.).

SYNTHETIC FUNCTIONING -- AUTOPLASTIC ADAPTATION TO OBJECT LOSS -- DEFENSIVE WITHDRAWAL OF EMOTIONAL INVESTMENT IN MOTHER

The unusual extension of subject's synthetic function, beyond conventional parameters, may be viewed as an autoplastic adaptation to a severe stressor, namely, traumatic loss of the maternal object. Nunberg, H. "The Synthetic Function." Practice and Theory of Psychoanalysis at 127. (New York: International Universities Press, 1948).


INTELLECTUAL ABILITIES -- CREATIVE POTENTIAL -- SOCIAL DIFFICULTIES

Subject exhibits a highly-developed verbal fluency, an unusual capacity to bring together remote associations, and the ability to extend effort in idea production (ideational fluency). Guilford, J.P. The Nature of Intelligence (New York: McGraw-Hill, 1967); Mednick, S.A. "The Associative Basis of the Creative Process." Psychological Review 69: 220-232 (1962); Parnes, S.J. "Research on Developing Creative Behavior." In: Widening Horizons in Creativity. Edited by C.W. Taylor. (New York: John Wiley & Sons, 1964).

Subject's intellectual abilities are so highly-developed that they have been mistaken, even by psychiatrists, as psychotic symptoms in the form of pressured, rapid speech; flight of ideas; and loose associations. See Psychiatric Assessment Chart (Napoleon Cuenco, M.D., St. Elizabeths Hospital Residency Training Program), George Washington University Department of Psychiatry (September 1992) (Daniel Tsao, M.D., Attending Physician). The implications for difficulties in subject's social and occupational functioning are obvious.

WHY MY COWORKERS DESPISED ME

March 29, 2000
3801 Connecticut Avenue, NW #136
Washington, DC 20008-4530

Nancy Shaffer, Ph.D.
Community Mental Health Center
Washington, DC 20007

Dear Dr. Shaffer:

This letter continues an earlier letter I submitted to Lisa Osborne, dated March 30, 1999 [the referenced letter to Osborne is located at the end of this computer file]. That earlier letter elaborated an incident that occurred at my former place of employment, the law firm of Akin, Gump, Strauss, Hauer & Feld. The earlier letter offered theoretical ideas about my perceptions of the incident, perceptions that seem flagrantly paranoid.

The "prototypical incident" was as follows:

On Monday morning April 3, 1989 the Akin Gump law firm held a buffet breakfast meeting for legal assistants in one of the firm's conference rooms. The meeting was billed as a "Breakfast with Bob Strauss," and was attended by about 25-30 of the firm's legal assistants. At that time the firm employed about 60 legal assistants. Strauss offered some remarks, then responded to questions posed by legal assistants.

At noon on Thursday April 6, 1989 the firm's legal assistant administrative staff had arranged a luncheon computer-training seminar for legal assistants. The training was offered by someone from either Westlaw or Lexis (the person's name was Eva [last name? of Greek derivation]). The seminar was attended by about 30 legal assistants, including myself. I sat in the back of the room and could observe all the persons present. Also present was the legal assistant coordinator John D. Neary. Before the training session was completed, legal assistants began to leave the room. It was my impression that the employees' departure from the conference room appeared to be staged: the departures seemed too evenly timed, there was an unnatural quality about the body language, and I could see glances between Neary and some of the legal assistants as they got ready to rise from their chairs that appeared to suggest a kind of cueing behavior. The legal assistants seemed to look at Neary as if they were united against me. Neary appeared to become dejected as time wore on. I specifically recall that when I left the room, I spotted Neary's roommate, Michael Sierra (who was also employed as a legal assistant at the firm); Sierra appeared to turn away and seemed to refuse to look at me while we both waited for an elevator.

A conventional interpretation by a therapist of such a clinical report would be that the patient's perceptions are a product of serious ego vulnerability and that the employees in question are a random collection of occupationally-adjusted persons whose behaviors are situation-appropriate and not coordinated in reference to the patient.

However, if one looks at what assumptions are required to support the patient's report, those assumptions are based on known phenomena and are mutually consistent. Thus, whether my interpretation of this incident is correct, the incident offers a useful orienting approach to certain specific dynamics that might arise in an employment situation. Further, it is useful to consider how these dynamics would manifest in a group therapy situation, and how a group therapist would identify the dynamics.

This letter cites the published work of Otto Kernberg, M.D., a psychiatry professor at Cornell University Medical Center. Dr. Kernberg is an internationally-prominent psychiatrist and recent past president of the International Psychoanalytical Association. Coincidentally, Dr. Kernberg is a friend and former colleague of Gertrude R. Ticho, M.D. Dr. Kernberg's book is dedicated to Dr. Ticho's late husband, Ernst Ticho, Ph.D. Dr. Ticho is a personal friend of Akin Gump senior manager Malcolm Lassman, Esq.

ASSUMPTIONS ABOUT THE EMPLOYEES:

1. The employees are a random collection of occupationally-adjusted persons. All possess college degrees, and many are recent graduates.

2. The employees are mentally-adjusted persons who have attained conventional superego development. See Freeman, D.M.A. et al. "Superego Development and Psychopathology." In: The Psychoanalytic Study of Society. Gertrude R. Ticho, M.D., contributing editor. Volume 7: 107-122 at 118-121 (New Haven: Yale University Press, 1976).

3. Under the pressure of group life, many of the employees have regressed to a lower order autonomy; that is, the employees have experienced some degree of de-metabolization of internalized superego structure, with an associated loss of personal identity, values, convictions and perspective. Kramer, P.D. Should You Leave? at 87-8 (New York: Scribner, 1997) (the author is an associate professor of psychiatry at Brown University).

4. Group members project superego functions onto the group and its leader. Kernberg, O. Ideology, Conflict and Leadership in Groups and Organizations at 8 (New York: International Universities Press, 1998).

In the regressed state, projection of superego functions onto the group and its leader serves to ward off the negative affects of shame and fear of punishment of group members. See Freeman at 117. Collective shame regulation, which will be conventionalized, ideologically simplistic, and conformist, will supersede the particularized superego structures and sanctions of individual group members: that constitutes the regression as it will pertain to the employment reference group. See Freeman at 117 and Kernberg at 8.

The ideational component of the regression will assume the quality of an ideology; conventionalized stereotypes of outsiders will serve the shame regulation needs of group members. Group members' projected stereotypes will resemble the projections of the child who struggles to retain parental approval by transiently projecting blame for wrongdoing onto an imaginary companion, sibling, or toy; the child attempts to work out his feelings by adopting the parents' critical attitude but directing the blame toward a scapegoat outside. Freeman at 118.

Under the pressure of group life, infantile sexual features will be activated and will be projected onto the scapegoat outside. Kernberg at 8. In large groups such defensive efforts will manifest in the eruption of crude, anally tinged, or sadistically-infiltrated sexual allusions. Cf. Kernberg at 8-9.

A possible example of an anally-tinged or sadistically-infiltrated sexual allusion can be seen in the following. Freedman v. D.C. Dept. Human Rights, record on appeal at 15 (agency finding of fact no. 4(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." [The supervisor in question was later accused, in a federal anti-discrimination lawsuit filed by a terminated minority employee, of having engaged in racially-offensive conduct and of having colluded with another supervisor in the termination of the employee.]

Acting-out in the service of the group regression may take the form of symbolic castrative gestures directed at the harassment victim, as in shunning, exclusion, or isolation of the victim. Cf. Rubin, T. Anti-Semitism: A Disease of the Mind. A Psychiatrist Explores the Psychodynamics of a Symbol Sickness at 99 (New York: Continuum, 1990) (exile, imposed restrictions, and disenfranchisement on any level are symbolic castrative acts).

Acting-out in the service of the group regression may take the form of attempts to overstimulate the harassment victim in situations in which any response or retaliation by the victim would risk punishment (i.e., symbolic castration in the form of attributions of paranoia or hypersensitivity or even official reprimand or job termination.) Cf. Shengold, L. Soul Murder at 104-05 (New Haven: Yale University Press, 1989) (describing a patient who in childhood repeatedly teased male dogs by allowing the dog to sniff her genital area; she was especially gratified if the dog would get so excited by the smelling that he would ejaculate onto the floor, without his penis being touched. Making the male ejaculate with a humiliating loss of control meant conquering and castrating him. As an adult, the patient repeated the performance with susceptible men.)

A possible example of an attempt to overstimulate the harassment victim in a situation in which any response would risk punishment can be seen in the following. Freedman v. D.C. Dept. Human Rights, record on appeal at 13 (agency finding of fact no. 4(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 initiative of his supervisor, Maggie Sinnott, the firm's Legal Assistant Administrator. Complainant had not requested to be isolated.] On the first morning in that office space, as Complainant was getting a cup of coffee in an adjacent kitchen area[, a compact space that measured no more than about 7'x9',] 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." [A newspaper article published in November 1992 disclosed that Hardee had close professional ties to Vernon E. Jordan, Jr., a senior Akin Gump partner. As of 1988 Hardee was about 40 years old and unmarried; Hardee later married, in about the summer of 1991.]

[Finding of fact no. 4(j) (record on appeal at 16) parallels finding 4(c), above. Finding of fact 4(j) discusses a peculiar interaction that occurred while the harassment victim was alone on an elevator with a law firm partner, David Eisenstat. Both the incident with Hardee and the one with Eisenstat involved an interaction with a law firm partner that occurred in an enclosed space. Like Hardee, Eisenstat had ties to senior management: his wife Nina Eisenstein was the firm's attorney recruitment administrator and, in that capacity, worked closely with hiring partner Dennis M. Race, Esq., who terminated the harassment victim's employment in October 1991.]

See also Brief of Appellee District of Columbia at 9: "In the summer of 1990 [a law firm partner named Larry E. Tanenbaum, Esq.] glanced at Freedman's genital area during an elevator ride." Tanenbaum, a recently recovered alcoholic, had been married to the firm's Legal Assistant Administrator, Maggie Sinnott, see record on appeal at 195. Sinnott had been the harassment victim's supervisor during the period June 1988 to March 1990, that is, at the time the prototypical incident occurred (in April 1989). On occasion, Sinnott engaged in lewd sexual gestures when she saw the harassment victim, see record on appeal at 188. Sinnott's desk drawer contained the name and telephone number of Ernst Ticho, Ph.D., a psychoanalyst. Ernst Ticho's wife, Gertrude R. Ticho, M.D. (who consulted in the firm's decision to terminate the harassment victim), was a friend of Sinnott's boss, Malcolm Lassman, Esq., a member of the firm's management committee, see record on appeal at 123.

[Gertrude Ticho is a friend and former colleague of Otto F. Kernberg, M.D., an internationally-prominent psychiatrist and an expert in employee relations and disturbed organizations. Dr. Ticho's late husband, Ernst Ticho, was Otto Kernberg's mentor. Dr. Kernberg has participated in the A.K. Rice Group Relations Conferences organized by the Washington School of Psychiatry.]

The non-regressed outsider (the harassment victim) may be the target of sadistic sexual allusions and fantasies that involve infantile polymorphous trends. Kernberg at 8-9. See Brief of Appellee District of Columbia at 8 ("According to Freedman, at a firm dinner in May 1989, another legal assistant acknowledged hearing a rumor that Freedman was gay.")

In large groups defensive efforts may manifest in the eruption of fears that the outsider is potentially violent (which preserves the image of the group and its leader as benign parental derivatives). Kernberg at 5.

See Brief of Appellee District of Columbia at 9: "Freedman was informed by one of the legal assistants that she and other legal assistants were afraid [that he might 'buy a gun, bring it in, and shoot everybody.']" Citing record on appeal at 276.

For regressed group members, the outsider possesses two qualities that make him a suitable target for aggression: (1) he is unprotected and therefore vulnerable, and, (2) he either fails to conform to group norms or, by means of projective identification by group members, is prevented from conforming to group norms, which nonconformity serves as a rationalization for aggression by group members. See Brodey, W.M. "On the Dynamics of Narcissism. I. Externalization and Early Ego Development." The Psychoanalytic Study of Society. (New York: International Universities Press, 1965). Volume 20: 165-193 at 167 (1965) (projection may be combined with manipulation of reality for the purpose of verifying the projection).

For example, shunning behaviors by group members can be a form of projective identification that preserves the outsider's status of isolation in a group whose dominant ideology places a special premium on affiliation. Cf. Stern, F. Gold and Iron at 476 (New York: Alfred A. Knopf, 1977) (the outsider who serves as a repository of the projected forbidden sexual and aggressive impulses of the dominant group will arouse feelings of rage in group members by his attempt to affiliate or his attempt to minimize the differences between himself and the dominant group. The outsider's attempts to affiliate will enrage members of the dominant group who have projected onto him "entities from [their] psychic world," and by projecting them to the outside can better protect themselves from these inner threats.) (These dynamics serve to maintain the outsider in a permanent state of social disenfranchisement (a symbolic castrative act), see Rubin at 99).

(Incidentally, Professor Stern's book, a study of anti-Semitism in late 19th-century Germany, recounts the relationship between Gerson Bleichr”der, a wealthy German-Jewish banker and power broker and a confidant of German Chancellor Otto von Bismarck. In crucial ways the BleichrØder-Bismarck relationship parallels the relationship between Akin Gump partner and senior manager Vernon E. Jordan, Jr. and President Clinton. Stern is a professor of history at Columbia University.)

A possible example of a rage reaction in the form of sadistically-infiltrated sexual allusions by members of the dominant group can be seen in the following incident, which occurred immediately after the harassment victim attempted to affiliate with an employee. Freedman v. D.C. Dept. Human Rights, record on appeal at 13 (agency finding of fact no. 4(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 assigned by Maggie Sinnott, the firm's Legal Assistant Administrator. Earlier in the day, Sinnott had removed the harassment victim from a conference room that he shared with fellow temporary employees, and placed him in an isolated area outside the office of a good-looking young male employee.] A brief time after Complainant introduced himself, a group of employees gathered in the office adjacent to the work station where Complainant [had been assigned by Sinnott]. 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.

4. Many of the employees had been hired by the same supervisory staff. To some degree many of the employees were hired to match the "precise level of differentiation," or maturity, of the hiring staff. See Kramer, P.D., Should You Leave? at 88 ("Level of self is so important, and we are so adept at detecting each other's level of self, that we invariably choose as partners, in marriage or other long-standing intimate relationships, people at our precise level of differentiation.")

Unlike many employees at the firm the harassment victim was initially hired to perform a specific task, based on his possession of skills acquired at a previous place of employment. Personality factors played a minimal role in the firm's decision to hire the harassment victim.

5. The employees' regression has a discrete quality, so that the loss of autonomy in relation to the employment reference group will leave other aspects of the personality intact. Put another way, psychological evaluation of individual employees would likely disclose no more than a capacity to regress under the pressure of group life, but would not disclose a special intensity of aggressive, sadistic or erotic trends, the expression of which will characterize the behavior of a job harasser. It is well to keep in mind: the many thousands of persons who concerted to perpetrate the Holocaust remained in their home lives devoted sons, loving husbands and caring fathers. See Grunberger, B. "The Anti-Semite and the Oedipal Conflict." The International Journal of Psycho-Analysis. Vol. 46: 380-85 at 380 (1964): "The lack of homogeneity in the ego affords us some degree of understanding of the anti-Semite, who, despite his role as a sadistic persecutor, may at the same time be a good member of the community, an affectionate husband, and an exemplary father." Identical dynamics pertained to the socially-sanctioned regressed behaviors of slave owners in the United States.

6. As a result of the loss of psychological autonomy in relation to the employment reference group, group members will tend to express behaviors that are "conventional, ideologically simplistic, conformist, and [will be] able to indulge themselves without guilt or gratitude; they lack a sense of personal responsibility or a deep investment in others." Kernberg at 8.

The employees' need to conform blandly to each other and to the direction of a supervisor (a parental figure) may equal or exceed the component of aggressive animus against the employee-victim. The employees' behavior directed at the harassment victim is an act of ideologically-driven conformity with respect to the employee reference group as well as an act of aggression against the victim. In fact, the great majority of the harassment victim's coworkers had no interaction with him, and sometimes coworkers who seemed to harass the victim appeared to be complying with the direction of third parties (as, for example, in agency finding of fact no. 4(a), reproduced above at 3).

8. In states of severe regression employee groups may become intolerant of individuals, establishing a group dictatorship that acquires the characteristics of a primitive morality and fosters the leadership of narcissistic personalities. Staff may contribute to this regression by their ideologically determined denial of differences between individual employees, their implicit expectation that all employees have the same needs, and their consequent expectation that all employees will react or participate in similar ways. Cf. Kernberg at 14.

9. In situations of organizational breakdown, ad hoc myths about the workplace, its management, supervisory staff (and scapegoat employees) and the search for a comprehensive, simplistic ideology develop rapidly and contrast with discriminating reason. The crucial functions of boundaries in task performance and of task-oriented leadership become apparent as the employee reference group confronts the temptation, at points of regression, to displace a parental imago onto a supervisor who assumes the defensive function for group members of warding off shame and fear of punishment. Cf. Kernberg at 17.

The disturbed dynamics assumed in the prototypical incident may reflect the fact that the supervisor's manifest role as a task-oriented leader, or supervisor, has been subsumed in his fantasied role as a parental imago. Cf. Kernberg at 17. That these dynamics arose in an employee subgroup (namely, that a task-oriented leader's administrative function merged with his fantasied role as parental imago) may reflect disturbances at the highest level of firm management. Cf. Kernberg at 12-13 (conflicts in the higher levels of an organization's administrative structure can reinforce disturbances in an organization's subgroups).

Presumably, an assessment of the harassment victim's status and functioning in the context of this specific organizational dysfunction would reveal something of the victim's intrapsychic functioning and psychological disturbance.

ASSUMPTIONS ABOUT SUPERVISORY STAFF:

1. The supervisory staff are composed of narcissistic personalities that are ideally constituted for the assumption of leadership under the conditions of large-group processes. Such peoples' lack of deep conviction regarding their own values makes it easy for them to go along with the group. A narcissistic personality who can communicate effectively can provide the large group with an acceptable ideology and convey a sense of certainty without triggering the group's envy against individualized thinking. These abilities make such a leader the soother of the large group's tensions. Kernberg at 8.

2. The supervisors may have attained a status as individuals who have "no enemies," a status achieved through manipulation. Kernberg at 83. Such a status enhances the ability of the supervisor to engage in projective identification, whereby the supervisor's projections are combined with the manipulation of reality selected for the purpose of verifying the projections, ultimately conferring deceptive objectivity to the supervisor's need-satisfying viewpoints and opinions. See Brodey at 167-68.

3. It is assumed that the acting-out behavior in the prototypical incident, in which supervisory staff organized a group of employees in a charade directed at the harassment victim, was prompted by a chance comment made by Robert Strauss about the victim, a comment that aroused the envy of the supervisors. Strauss is a nationally-prominent attorney.

At the time of the prototypical incident, on April 4, 1989, the harassment victim was a long-term temporary employee and had been engaged, since his hiring in June 1988, in a document production task for the major client, Eastern Airlines. Eastern had filed for bankruptcy protection just about one month earlier, on March 9, 1989.

One might speculate that at the time of the prototypical incident the firm was thinking ahead as to the subject's future role, if any, in the firm. The harassment victim had a law degree and was a suitable candidate for promotion to full-time status and transfer to the legal assistant program where he might perform substantive paralegal tasks. In fact, the firm ultimately promoted the subject to full-time status in August 1989.

The prototypical incident centered on a computer training seminar; the skills taught at the seminar would be required of subject were he to be promoted to full-time legal assistant.

It is assumed that the motivation for the prototypical incident was projective identification: an attempt to prompt the subject to leave the training seminar at an early point as the subject saw other employees do. See Brodey at 167: "Projection is combined with the manipulation of reality selected for the purpose of verifying the projection."

Projective identification, which involves the manipulation of reality to fit the projection, is characteristic of narcissistic disturbance. Brodey at 167-68. The use of projective identification by the supervisory staff fits the profile of the narcissistic supervisor. Kernberg at 8.

The supervisory staff might have assumed that subject had the same needs and motivations as other employees who, in the supervisors' past experience, routinely conformed to the actions of coworkers. See Kernberg at 14: "Staff may contribute to [group] regression by their ideologically determined denial of differences between individual [employees], their implicit expectation that all [employees] have the same needs, and their consequent expectation that all [employees] will react or participate in similar ways." The supervisory staff may have reasoned: "If Freedman sees everybody else leave the seminar early, he'll think it's OK to leave, too."

If subject had left the training seminar early (as he was apparently being prompted to do) supervisory staff (Sinnott and Neary) could then say to senior management: "You see, he only signed up for the computer training session for the free food and to be seen. He wants to be seen as being interested in the work of a legal assistant. But his interest is shallow. He left the seminar early. Obviously, he wasn't interested in learning Lexis (or Westlaw). He's not really legal assistant material. This is something that a legal assistant will have to know and be interested in doing. But it's obvious that he's not dedicated to this type of work. And you want to promote him? Bad decision."

Thus, information known by the externalizing supervisory staff but beyond the knowledge of the firm's senior attorney managers would be withheld from the senior managers except as it would be useful to manipulate them into validating what would then become the realization of the projection, namely, that subject was not Akin Gump legal assistant material. See Brodey at 167-68. Presumably, the same issues arose again in October 1991, at the time senior management considered how to resolve subject's harassment complaint; probably, the legal assistant supervisory staff rationalized their objections to the idea of subject's promotion to the legal assistant program (from the litigation support group where he was then assigned) with arguments for which they had earlier (in April 1989) attempted to adduce supporting evidence by means of manipulating reality, as in the prototypical incident: "He's not legal assistant material. He can't do, and is not even interested in doing, computer searches."

Oddly, a trivial observation about events at the termination meeting on October 29, 1991, held in the office of law firm partner Dennis Race, supports this interpretation. In a letter dated September 17, 1992 (record on appeal at 527-532) that subject delivered to the D.C. Department of Human Rights in support of that agency's unlawful job termination complaint, then under investigation, subject wrote:

On October 29, 1991, after Dennis Race advised me of my termination, Mr. Race had me sift through two boxes of my personal effects in the presence of my supervisor [Robertson] in Mr. Race's office. The two boxes containing my personal effects had been housed in the terrace level of the building, and had presumably been brought up to the fourth floor and placed outside Mr. Race's office before he called me to his office to advise me of the decision to terminate. The presumed purpose of having me sift though the contents of the boxes was to elicit and gauge a reaction (compare C below regarding Mr. race's irrational concern with the issue of embarrassment). At three points Mr. Race, sitting at his desk and appearing to read something, registered a nonverbal vocalization as I reviewed my personal effects: (1) at the point I identified to my supervisor [Robertson] and handed over to her my Lexis and Westlaw ID's; (2) at the point I asked my supervisor whether I could keep my job evaluations; and (3) at the point I discarded my Walkman radio and said to my supervisor regarding the radio, "it doesn't work." Record on appeal at 529 (emphasis added).

At the termination meeting Race told subject that he had reviewed with the legal assistant supervisory staff the possibility of promoting subject to the legal assistant program, but that the supervisory staff (Neary) had told Race he could not work with subject because Neary was afraid of subject, see record on appeal at 201. In a telling omission, Race failed to report any such communication concerning subject's transfer to the legal assistant program in his written Response submitted to the Department of Human Rights in connection with the agency's unlawful termination complaint. Why did Race, in his written submission to the Department of Human Rights, omit evidence that a supervisor found subject difficult to work with and psychologically disturbed--evidence that supported the firm's decision to terminate? Precisely because that evidence was inextricably bound up with Race's initial motivation to confer with Sinnott and Neary (the legal assistant administrative staff). And initially what motivated Race's decision to confer with Sinnott and Neary? It could be no other reason than to discuss senior management's interest in promoting the subject--as Race confirmed with subject at the termination meeting, but later concealed in his written submissions to the Department of Human Rights. (Note that Neary was a central actor in the prototypical incident.)

The incident provides insight into the firm's management style. Here, at least, mid-level supervisors were permitted to veto a personnel action contemplated by the firm's senior managers, based on oral evidence offered by the supervisors that was not confirmed by the subject's written personnel records.

A plausible reconstruction of what the supervisory staff actually told Race in October 1991, in the period immediately prior to the decision to terminate, is suggested by the assumed meaning of the prototypical incident. Supervisory staff (Sinnott and Neary) might have told Race in October 1991: "He's not really legal assistant material. This--Lexus and Westlaw searches--is something that a legal assistant will have to know and be interested in doing. But it's obvious that he's not dedicated to this type of work. And you want to promote him? Bad decision."

In assessing the meaning of the prototypical incident it is useful to consider the fact that the circumstances prevailing at the time of the incident, in April 1989 (one month after the Eastern Bankruptcy filing), resembled the circumstances that existed immediately prior to the subject's job termination, in October 1991: at both times, firm management was confronted with the issue of how to resolve subject's future with the firm. In April 1989, supervisory staff appeared to try to manipulate reality by adducing evidence of subject's lack of suitability as a legal assistant. Subject's harassment complaint in October 1991 would have caught the supervisory staff unawares; elaborate schemes aimed at manipulating subject's behavior were not feasible. One suspects that supervisors scrambled to present a convincing case to management consistent with the reality they had earlier sought, but failed, to create: the view that subject was not Akin Gump legal assistant material.

ASSUMPTIONS ABOUT THE HARASSMENT VICTIM:

1. Subject is able to maintain autonomy even under "extreme pressure." See Kramer, P.D., Should You Leave? at 154 (discussing the personality of playwright Arthur Miller, noting the playwright's response to McCarthyism. Uncannily, the record on appeal contains a letter dated September 25, 1992 that subject submitted to the Department of Human Rights (record at 525-26) in which subject describes the events of the termination meeting as a charade befitting the McCarthy era.)

2. Subject's superego is pathologically hyperdeveloped and therefore not susceptible of de-metabolization under the pressure of group life. See Freeman, D.M.A., Superego Development and Psychopathology at 121: "[I]nternalizations may occur abruptly, defensively, and prematurely, without adequate neutralization. In these cases, shame and castration anxiety do not become integrated into a smoothly operating unconscious guilt mechanism. Pathological guilt [and its social sequelae] are then seen in pathological manifestations."

3. Subject's autonomy, his ability to retain his individuality even under extreme pressure, places him at risk of aggression in groups that have regressed to a state of pre-autonomous superego functioning, i.e., groups in which a regressed, conformist ideology prevails. Kernberg at 5.

4. Subject's apparent creative potential places him at risk of envy and attack by narcissistically-disturbed supervisors. Kernberg at 84. Narcissistic supervisors will attempt to block or sabotage the promotion of honest and talented staff, who threaten them. Kernberg at 84 and 85.

5. The affect underlying the group aggression that subject experienced is envy--envy of his thinking, his individuality, and his rationality. Kernberg at 5.

The envy is overdetermined. Vis-a-vis senior managers (as in the prototypical incident) the affect underlying the group aggression becomes jealousy--jealousy of subject's relations (or fantasied relations) with superego figures: positive relations with superiors that may accrue from subject's personal qualities of independent thinking, individuality, and rationality. See Masson, J.M. Final Analysis at 125 (New York: HarperPerennial, 1991) (discussing fellow psychoanalysts' reaction of jealousy in the face of Masson's special relationship with K.R. Eissler and Anna Freud).

Further, subject's peer relations tend to become crudely sexualized and debased in regressed groups. The affect underlying the sexualization and debasement is jealousy. See Sullivan, H.S. The Interpersonal Theory of Psychiatry at 348-48 (New York: W.W. Norton, 1953) (discussing situations in which an innocent victim of jealousy serves as an absolutely fantasied figure for a group of persons).

A possible example of jealousy emerging in response to subject's peer relations can be seen in the following. Freedman v. D.C. Dept. Human Rights, record on appeal at 14 (agency finding of fact no. 4(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.

The references centered on a supposed homosexual love interest that subject had in Craig Dye. It was Schaar who reported that she and fellow coworkers were afraid subject was potentially homicidal. Schaar voiced these concerns in August 1989, a brief time after subject was promoted to full-time status with benefits. At that time Schaar was an agency-supplied temporary employee, but was granted full-time status in the fall of 1989. (She was assigned to the anti-trust practice group. I believe her supervising attorney was Paul B. Hewitt, Esq., a firm partner.)

Schaar was reportedly terminated for gross misconduct in about May 1990. Reportedly, she had created a filing system that only she understood--in an attempt to make herself indispensable (an act indicating her fear of abandonment).

The co-expression of certain psychological trends in Schaar is noteworthy: the abandonment fears (as expressed in her attempt to make herself indispensable to the employer); the projected rage as expressed in her fear that subject was homicidal; and her sexualization of subject's peer relations (indicating her jealousy).

The trends may be paradigmatic of subject's disturbed interpersonal relations. The prototypical incident assumes the co-expression of the following trends in the supervisory staff: the attachment fears (as expressed in the supervisors' presumed attempts to thwart subject's promotion); and the supervisors' presumed jealousy of subject's relations with superego figures (the firm's senior management, possibly including Robert Strauss) (indicating jealousy).

There is a fundamental psychological equivalence between, on the one hand, Schaar's attempt to make herself indispensable to management, and, on the other, the possible projective identification of supervisory staff aimed at making it appear to senior managers that I was dispensable. To end on a humorous note, it's a case of supervisors hiring someone (Stacey Schaar) who was too much like themselves.

In conclusion, an issue for serious consideration is how the above dynamics would be expressed in a group therapy situation, and how a therapist would identify these unusual dynamics.


Sincerely,


Gary Freedman


March 30, 1999
3801 Connecticut Avenue, NW
#136
Washington, DC 20008-4530

Lisa Osborne
Community Mental Health Center
Washington, DC 20007

Dear Ms. Osborne:

This letter reviews and elaborates an incident that I reported at our last consultation, on March 24, 1999. The incident occurred during my employment at the law firm of Akin Gump. The interpretation I placed on the incident seems flagrantly paranoid.

First, I am able to show, by means of circumstantial psychoanalytical evidence, that the incident I reported to you may contain valuable hints about the nature of my victimization in narcissistically-disturbed environments, in both present and historical (developmental) contexts. Second, I am able to show that my seemingly paranoid interpretation parallels an incident that occurred at another place of employment, an incident that involved manifest aggression.

I reported to you the following facts and impressions concerning the incident:

On Monday morning April 3, 1989 the Akin Gump law firm held a buffet breakfast meeting for legal assistants in one of the firm's conference rooms. The meeting was billed as a "Breakfast with Bob Strauss," and was attended by about 25-30 of the firm's legal assistants. Strauss offered some remarks, then responded to questions posed by legal assistants.

At noon on Thursday April 6, 1989 the firm's legal assistant administrative staff had arranged a luncheon computer-training seminar for legal assistants. The training was offered by someone from either Westlaw or Lexis (the person's name was Eva [last name? of Greek derivation]). The seminar was attended by about 30 legal assistants, including myself. I sat in the back of the room and could observe all the persons present. Also present was the legal assistant coordinator John D. Neary. Before the training session was completed, legal assistants began to leave the room. It was my impression that the employees' departure from the conference room appeared to be staged: the departures seemed too evenly timed, there was an unnatural quality about the body language, and I could see glances between Neary and some of the legal assistants as they got ready to rise from their chairs that appeared to suggest a kind of cueing behavior. The legal assistants seemed to look at Neary as if they were united against me. Neary appeared to become dejected as time wore on. I specifically recall that when I left the room, I spotted Neary's roommate, Michael Sierra (who was also employed as a legal assistant at the firm); Sierra appeared to turn away and seemed to refuse to look at me while we both waited for an elevator.

I reported that it was my inference that Strauss had made some favorable comment about me to someone following the breakfast meeting on April 3, 1989, that Neary and legal assistant administrator Maggie Sinnott were jealous of these comments, and that the interaction at the computer training seminar on the following Thursday April 6, 1989 was an act of humiliation (a symbolic castrative gesture) aimed at discharging that jealousy.

It is useful to look at the manifest roles of the parties, which can be summarized as follows:


Neary, as legal assistant coordinator, was a supervisory employee -- a symbolic authority figure

the legal assistants, as employees, held a subservient role

I had the role of paranoid outsider


I have identified a text from the psychoanalytic literature that points to possible latent roles played by the above parties: possible latent roles that belie the manifest or assigned roles. The text is a case study involving the psychoanalytic treatment of a 12-year-old boy who suffered from severe separation-individuation problems. Sprince, M.P. "An Adolescent's Battle Against Recovery." The Psychoanalytic Study of the Child, vol. 26: 453-482 (1971).

The psychoanalyst reports that the boy was accompanied by his mother at the first six weeks of consultations where he "gazed rigidly at the floor, but secretly tried to catch his mother's eye with a look that implied that they were united against me." Sprince at 458. The boy was unpopular at school and a butt for constant teasing and bullying. Sprince at 455.

The text by Sprince focuses on three parties whose manifest roles can be summarized as follows:

a boy with severe separation-individuation problems

a mother, the boy's nurturing object

the psychoanalyst, the "all-knowing" parental derivative

In my own employment situation my coworkers assigned me the role of the disturbed individual who was unpopular and a butt for constant covert aggression. That was my assigned, manifest role.

It is plausible, however, that my assigned role, as well as the assigned respective roles of my coworkers and supervisors (in this case Neary), belied other latent roles: that these latent roles were mutually complementary, fixed, and corresponded to the manifest, assigned roles.

Further, the operation or existence of these latent roles constituted a form of role reversal or role confusion that is typical of some forms of narcissistic disorder. See Beren, P. "Narcissistic Disorders in Children." In: The Psychoanalytic Study of the Child. Vol. 47: 265-278 at 276 (New Haven: Yale University Press, 1992) (discussing extreme forms of role reversal in the parent-child relationship).

The possible role confusion or role reversal that I see would operate as follows:

Neary: While Neary's assigned role, as supervisor, was that of a parental authority, his latent role was that of the unindividuated child who suffers from severe separation or abandonment anxiety. Neary's behavior at the above-described training seminar can be seen to parallel the behavior of Sprince's patient who sought to align himself with mother against the analyst, who threatened the boy's relationship with mother.

Legal Assistants: While the legal assistants' assigned role, as employees, was that of subservient persons (child derivatives), their latent role in the aggregate was that of the "breast mother" on whom Neary was dependent. According to Kernberg, in narcissistically-regressed groups, group members in the aggregate serve as derivatives of the breast mother. See Kernberg, O. Ideology, Conflict and Leadership in Groups and Organizations at page 6 (see letter to Lisa Osborne dated October 13, 1998).

Myself: While my assigned role was that of paranoid castrate (the unpopular employee who was a butt of covert aggression), my latent role may have paralleled that of the all-knowing, omnipotent outsider, the father (the role that corresponds to that of a psychoanalyst).

It is interesting to observe that anti-Semitism, at least in Grunberger's formulation, involves a form of role reversal. The anti-Semite alternately assigns the Jew the role of either untouchable castrate (homosexual) or all-powerful father (a potentially violent or homicidal individual capable of deicide). See Grunberger, B. "The Anti-Semite and the Oedipal Conflict." International Journal of Psycho-analysis, 46: 380-385 at 384 (1964). Incidentally, Dr. Otto Kernberg, a psychiatry professor at Cornell University, currently serves as President of the International Psychoanalytic Association.

We have seen that the role played by the Jew in the anti-Semite's unconscious is a superego figure, a powerful father imago, and in a certain measure an identification project, especially since it is given at the same time, owing to the projection, a powerful anal sexuality. In other respects it is the decisive factor that the Jew, according to the anti-Semite's criteria which we shall examine, is an absolutely castrated being whom we may therefore attack without danger and without guilt. In the Jew we find combined the two contradictory characteristics which cannot anywhere else be found associated in such a way.

The father is both all-powerful and castrated, thus being, as Sartre said of a Jewish minister of State, 'at the same time His Excellency and an untouchable'. The Jew is castrated, not because he is circumcised, but because he is cut off from the collectivity and therefore an 'outsider'. The anti-Semite is a regressed anal character, and for such characters only the organic insertion within an organized social system gives narcissistic integrity and is capable of giving him a phallus. The Jew, lonely wanderer, castrated and miserable is such as the anti-Semite would like to see his father, and is in a state in which he seeks to maintain the Jew.

To recapitulate the above-described role reversal issues:

1. Neary

a. (assigned role as supervisor: "parent")

b. (latent role: "unindividuated child" who is dependent on the group which serves as the "breast mother," see Kernberg)

2. Legal Assistants

a. (assigned role as employees: subservient "children")

b. (latent aggregate role: "breast mother" on whom Neary depended to maintain his narcissistic integrity)

3. Self

a. (assigned role: paranoid castrate)

b. (latent role as transference object or superego figure, see Grunberger: powerful father who sees too much)

This schema corresponds to the following psychoanalytic situation: The (1) unindividuated boy who conspires with the (2) nurturing mother, on whom he is dependent, against the (3) psychoanalyst, the all-seeing and powerful parental derivative, who threatens the boy's relationship with mother.

I propose that it was my developmental experiences in a narcissistically-disturbed family environment, and consequent disturbances in my superego development, that dispose me to experience these difficulties in adulthood. One issue that is clear is that there is a virtual identity between the disturbed employment relations described above and my relations vis-a-vis my sister ("breast mother") and brother-in-law (the unindividuated male who precociously assumed the role of an adult).

These issues are elaborated by a sequence of events that occurred at another place of employment, the law firm of Hogan & Hartson, where I was employed from September 1985 to February 1988.

In about January 1987 I was part of a group of employees who were assigned to a large document production task for the client Chrysler Corporation, a defendant in airbag litigation. In about January 1987 the billing partner, James Hourihan, held a meeting with several firm employees to discuss a specific document production task involving a plaintiff named "Staggs." I did not attend the meeting, but was told about the meeting by a coworker (Cindy Rodda); presumably, the department supervisor Sheryl Ferguson attended the meeting. The Staggs project had to be completed within a brief time period to meet a specific litigation deadline; unlimited overtime would be offered to complete the project.

Rodda told me words to the effect: "Hourihan said, 'We'll get Gary to do this. We'll get Gary to do that.' He talked as if you were indispensable. As if he would be relying on you to complete the project." There may have been a quality of jealousy in Rodda's report. (Note the correspondence between Hourihan's high opinion of me that he reportedly voiced at the meeting at Hogan in January 1987 and my presumption that Robert Strauss had made some favorable comment about me following the legal assistant breakfast at Akin Gump in April 1989.)

The outcome of all this was that I ended up doing nothing--absolutely nothing--for the Staggs document production task. My coworkers arranged among themselves, presumably with the cooperation of the data base administrator, Esperanza Rebollar 1/, to complete the task on their own. In effect, the employees were saying: "We'll show Hourihan just how indispensable Gary is. We'll show that the firm doesn't even need Gary." My exclusion from the Hogan project was a symbolic castrative gesture that parallels my paranoid perceptions about the legal assistant training seminar held at Akin Gump on April 6, 1989 (see above).

The department supervisor Sheryl Ferguson had announced on February 12, 1987 that she was leaving the firm (Hogan), and I believe she had assigned the supervision of the project to Rebollar.

Then the employees did a remarkable thing. They decided among themselves that they would arrange a work slowdown, by working only during regular hours and doing no overtime. At a staff meeting held in about February 1987 one of the employees, Daniel Cutler, asked one of the Chrysler attorneys, David Kikel, "If we get this project completed on schedule, what's in it for us?" As if overtime weren't enough! The supervisor Ferguson was present at the meeting; I think she was enraged by her employees' behavior, but, as she was resigning her position at the firm, she said nothing.

___________________________________________________________________________

1/ Note the possible connivance of a supervisor, once again, as at Akin Gump. On one occasion in about June 1987 I overheard Rebollar say to a coworker (Daniel Cutler), as I chatted with an employee named Clarence Pollard: "He's (referring to me) trying to make Craig jealous." On another occasion, in about September 1987, Rebollar said: "Some people still blame the Jews for crucifying Jesus. Everybody knows the Pope absolved the Jews of that years ago." Note the combined issues of role reversal by a supervisor (i.e., a supervisor acting like a chum with employees), intrusive and sexually-charged comments about an employee's workplace social relations, together with anti-Semitism.

Of psychological interest is the apparent symmetry in the aggression directed by the employees against me and the aggression directed by the same employees against the employer (the symbolic father). The employees, in effect, shut me out from the project, then proceeded to place demands on the employer, both acts of aggression. At some psychological level I was equated with the "father" (or is it that both I and David Kikel were equated with homosexuals?) This calls to mind the observations of Grunberger that "the relation between brotherhoods and the Jew reproduces that which existed between the prehistoric brotherhoods (as in the primitive hordes [citations omitted]) and the father. Brotherhoods banded together to fight the father's power. As such the brotherhoods fight against the Jew as they have always fought, and still fight, against the father." Grunberger at 383 n. 6.


Sincerely,


Gary Freedman

HOW I GOT SCREWED BY A MAJOR LAW FIRM

The Honorable Robert J. Spagnoletti
Office of the Attorney General
Government of the District of Columbia

Dear Mr. Spagnoletti:

The following letter refers to evidence that Dennis M. Race, Esq. of the Washington, DC law firm of Akin, Gump, Strauss, Hauer & Feld offered false or perjured sworn statements in a document production dated May 22, 1992 that Mr. Race and Laurence J. Hoffman, Esq. filed with the D.C. Department of Human Rights and Minority Business Development concerning my job termination by the firm on October 29, 1991. See Freedman v. D.C. Dept. of Human Rights, DCCA 96-CV-961 (Sept. 1, 1998) (appeal of agency final determination).

The Social Security Administration determined that I became disabled and unsuitable for employment as of October 29, 1991 based on Mr. Race's false or perjured statements. I have been continuously disabled and unemployed since the termination in 1991. My continued belief that I was a victim of employment discrimination and harassment during my tenure at Akin Gump has been diagnosed as paranoid by my current psychiatrist (Henry Barbot, M.D.) and psychotherapist (Israella Y. Bash, Ph.D.), both of whom are employees of the D.C. Dept. of Mental Health. To date I have received in excess of $120,000 in SSA disability payments (claim no. xxx xx xxxx). I also receive food stamps issued by the D.C. Income Maintenance Administration (case no. xxxxxx). Pending with the D.C. Income Maintenance Administration is my application for Medical Assistance (Medicaid).

I understand that if the OAG believes that any crimes have been committed that your office will make a referral to the Office of the U.S. Attorney.

GARY FREEDMAN

_______________________________________________________________________


November 2, 2004
3801 Connecticut Avenue, NW
Apartment 136
Washington, DC 20008


The Honorable Charles Ramsey
Chief of Police
300 Indiana Avenue, NW
Washington, DC

RE: Mental Disability -- Discrimination -- Police/FBI

Dear Chief Ramsey:

I am writing to you, Chief Ramsey, to apprise the Office of Chief of Police of a serious police matter that arose in the second district on October 12, 2004. Underlying the police matter is an issue of discrimination involving the DC Office of Corporation Counsel.

I forwarded a letter to the Washington Field Office of the FBI concerning the following matter on October 23, 2004.

I have been unemployed and disabled under U.S. Social Security Administration eligibility rules since October 29, 1991. My Social Security no. is xxx xx xxxx.

I am a patient of the DC Department of Mental Health (Patient no. xxxxxx). I receive psychotropic medications from the DC Department of Mental Health.

I was employed as a paralegal at the Washington, DC law firm of Akin, Gump, Strauss, Hauer & Feld until October 29, 1991. Dennis M. Race, Esq. (202 887 4028), a senior management partner, terminated my employment upon determining in consultation with a psychiatrist (who did not examine me personally) that there were reasonable concerns about my mental health and stability that rendered me unsuitable for employment. Freedman v. DC Dept. of Human Rights, 96-CV-961 (DCCA, Sept. 1998). The fact that I had received "above average or outstanding" job performance ratings during my three-and-one-half-year tenure was not disputed; also undisputed was the fact that my personnel file contained no record of reprimands, oral or written.

SSA granted my claim for benefits (in August 1993) in part based on Mr. Race's sworn interrogatory responses filed with the DC Dept. of Human Rights (in May 1992); SSA's disability determination date, October 29, 1991, was the date of job termination.

There is substantial evidence that Mr. Race's interrogatory responses were perjured; that Mr. Race did not in fact consult with the psychiatrist, Gertrude R. Ticho, MD [now deceased], a physician licensed to practice in the District of Columbia. See Brief of Appellant, 96-CV-961. Additionally, I possess tape recordings of two telephone conversations in which Dr. Ticho denies any contacts or acquaintance with Dennis M. Race. Officer J.E. Williams, Badge 1226, Second District, Metro DC Police is in possession of copies of those conversations (202 282 0070).

I was seriously defamed by Mr. Race, my supervisor, a coworker (who was subsequently terminated for gross misconduct), and the DC Office of Corporation Counsel. In the past several months I have been sending out job inquiries to employers, which summarize allegations made against me by the above-named parties. On October 12, 2004 ten (10) Metro DC Police officers (including a second district supervisor) plus four (4) FBI agents showed up at my residence because of a letter I sent to an employer, who had contacted the police in alarm. The letter was purely factual; several prospective employers, including The Montgomery County Government, sent me a cordial reply to a nearly identical letter. So damaging was the defamation to which I was subjected that the police were convinced I must be insane to have written such a letter. The police had me transported to DC General Hospital in handcuffs for an emergency psychiatric examination. I was interviewed by a Dr. Martin at DC General (202 673 9319) (ECURA #224623) who determined that I did not require admission. I was released; no medication was administered, prescribed or recommended. Of course, the incident bolsters my Social Security disability claim. I have already received in excess of $100,000 in benefits.

The defamatory allegations about my character that arose at my last place of employment, which I have a legal duty to report to a prospective employer, may impose a constitutionally-impermissible burden on my ability to obtain employment. The allegations, made at my last place of employment, were presumably a substantial factor in SSA's disability determination. Despite the fact that the allegations were made at least 13 years ago, they remain material to my difficulties in my last employment situation.

Facts about my psychiatric treatment history since 1992 are peculiar, if not bizarre:

1. I was diagnosed with bipolar disorder in September 1992 as an outpatient at The George Washington University Medical Center Department of Psychiatry (Napoleon Cuenco, MD). The illness did not respond to lithium, and later underwent spontaneous remission.

2. I underwent comprehensive psychological testing at GW in May 1994 (William Fabian, Ph.D.). The testing did not yield a psychiatric diagnosis or disclose any psychotic thought processes. The testing yielded a valid profile. I was not on any meds at the time. The WAIS yielded a verbal IQ of 135 (99th percentile) and an overall IQ of 125 (above average).

3. In February 1996 I was diagnosed at GW (Dimitrios Georgopoulos, MD) with paranoid schizophrenia that later underwent spontaneous remission.

4. In March 1996 I took a psychological test called "The Wisconsin Scales of Psychosis Proneness" (Ramin Mojtabai, MD). Results were negative. I scored six non-perseverative errors -- one of the lowest possible scores, indicating high concept-formation ability. I was not on any meds at the time.

DC DEPT. OF MENTAL HEALTH

5. In July 1996 I entered the DC Dept. of Mental Health System. In January 1998 my psychiatrist, Dr. Singh (a resident) determined in consultation with his supervisor (Stephen Quint, MD) that I suffered from no diagnosis or condition for which meds were indicated.

6. In February 1999 Albert H. Taub, MD diagnosed me with paranoid schizophrenia, which later underwent spontaneous remission. I was later diagnosed with delusional disorder. That portion of my thinking termed delusional has not responded to three different antipsychotic meds: Zyprexa, Abilify, and Risperdal. I currently take Effexor for depression and Xanax for insomnia.

7. On March 16-17 2004 I had a minor bout of paranoid schizophrenia, so-called "24-hour" paranoid schizophrenia, diagnosed by Betsy Jane Cooper, MD. My treatment plan prepared on March 17, 2004 by my case manager/therapist, Dr. Israella Bash, records that Dr. Cooper diagnosed me with paranoid schizophrenia on March 17, 2004; Dr. Cooper prescribed Zyprexa on March 17, 2004, which I took for about a month. There was no change in my delusional thinking. My current diagnosis is delusional disorder. Again, Dr. Martin at DC General recommended no anti-psychotic meds during my emergency psychiatric assessment on October 12, 2004; I was not agitated on October 12, 2004--my blood pressure was normal, 130/85.

I am totally socially isolated. I have no friends. I haven't spoken to my only relative, an older sister, since February 1996.

I have created an imaginary friend who I write letters to periodically, Brian Patrick Brown, manager of the Cleveland Park Branch of the DC Library System. The enclosed disc contains some of my recent letters to Brian.

I like Brian a lot, and would welcome him as a real friend. How I wish I could be Brian's real buddy!

My therapist, Dr. Bash (DC Dept. of Mental Health) is at 202 576 8939. My psychiatrist, Henry Barbot, MD, is at 202 576 8946.

Thank you. The U.S. Attorney's Office in DC (202 514 7566) is familiar with this matter.

In closing, this will respectfully advise the Office of Chief of Police that I have a constitutionally-protected right to seek employment. Also, in order to invoke my rights under the Americans With Disabilities Act I must fully apprise a prospective employer of facts concerning my disability, including allegations (however defamatory) placed in controversy by Dennis M. Race, Esq., his employees, and the DC Office of Corporation Counsel. State action that impairs my right to seek employment or my right to protections under federal law may be legally actionable.


Sincerely,



Gary Freedman



APPENDIX A:

LETTER FROM OFFICE OF HUMAN RESOURCES, MONTGOMERY COUNTY GOVERNMENT [unsigned], DATED OCTOBER 14, 2004:

Dear Applicant:

Enclosed you will find the resume/application that you submitted to the Office of Human Resources. We are returning this resume/application because you must apply for a specific position.

In order to be considered for employment with Montgomery County Government, you must apply for an announced position. Information pertaining to current employment opportunities is available on our website at www.montgomerycountymd.gov - click on careers.

We appreciate your interest in Montgomery County and wish you continued success in your employment endeavors.




Sincerely,


Office of Human Resources
Montgomery County Government



APPENDIX B:

LETTER FROM GARY FREEDMAN TO MONTGOMERY COUNTY GOVERNMENT THAT IS VIRTUALLY IDENTICAL TO THE ONE I SENT TO A WASHINGTON, DC EMPLOYER, WHICH TRIGGERED A LAW ENFORCEMENT RESPONSE BY TEN METRO DC POLICE OFFICERS ASSISTED BY FOUR FBI AGENTS. THE LETTER IS PURELY FACTUAL; IT DOES NOT CONTAIN ANY THREATS OF VIOLENCE BY ME. THE LETTER SUMMARIZES FALSE, MALICIOUS, AND DEFAMATORY ACCUSATIONS MADE ABOUT ME, AND IS EVIDENCE OF MASSIVE DEFAMATION BY ATTORNEY MANAGERS AND EMPLOYEES OF THE LAW FIRM OF AKIN, GUMP, STRAUSS, HAUER & FELD, AS WELL AS THE DC OFFICE OF CORPORATION COUNSEL (CHARLES L. REISCHEL, ESQ., DEPUTY CORPORATION COUNSEL, APPELLATE DIVISION). NOTE THAT UNDER SUPREME COURT RULINGS, DEFAMATION BY A STATE AGENCY CONSTITUTES A FEDERAL CIVIL RIGHTS VIOLATION [WHERE THAT DEFAMATION INJURES A FUNDAMENTAL
LIBERTY INTEREST SUCH AS THE RIGHT TO SEEK EMPLOYMENT. Paul v. Davis, 424 U.S.
693, 712, 96 S.Ct. 1155, 1165-66, 47 L.Ed.2d 405 (1976).]


[The following letter is stamped by the Montgomery County Government: RECEIVED - HUMAN RESOURCES - 04 OCT 13 A10:47 - MONTGOMERY COUNTY GOVERNMENT]


October 12, 2004
3801 Connecticut Avenue, NW
#136
Washington, DC 20008


OHR
101 Monroe Street
7th Floor
Rockville, MD 20850

RE: EMPLOYMENT -- ARMED, MASS HOMICIDE -- REASONABLE APPREHENSION OF HARM

Dear Sir:

I am writing to you at the express direction of the Metropolitan District of Columbia Police Department (Officer J.E. Williams, Badge 1226, Second District, Washington, DC: 202 282 0070) that I actively seek employment consistent with my high intelligence as well as my professional and academic credentials.

I am specifically interested in the position of senior legislative attorney for the Montgomery County Council. I am an attorney, licensed to practice in the Commonwealth of Pennsylvania. I hold an advanced degree (Master of Laws) in international trade law.

I am a disabled American, and I qualify for the legal protections of the Americans with Disabilities Act. I believe I have a legal duty to apprise you, as a prospective employer, of the following matters.

1. TERRORISTIC THREATS: On April 21, 2004 the Metro DC Police issued a protective order against me, on the petition of Brian Patrick Brown, Manager of the Cleveland Park Branch of the DC Public Library. Brian Brown alleged that I had made terrorist threats, in writing, against unspecified persons. The six-month order of protection prohibits my entering or loitering in the vicinity of said library, under penalty of arrest and prosecution. The investigating officer was the aforementioned Officer Williams. This will advise that at this time I continue to satisfy the prognostic criteria that were determined by the Metro DC Police in April 2004 to indicate that I am at significant risk of committing a crime of violence or arousing a reasonable apprehension of committing a crime of violence. It is likely that I will satisfy said criteria for committing a crime of violence or arousing a reasonable apprehension of same in the future event I obtain employment with The Montgomery County Council. On April 21, 2004 Officer Williams stated to me: "You seem OK to me right now, but what I'm worried about is what's going to happen a few days from now." Obviously, my future conduct was a substantial concern to the Metro DC Police. [Note that if I had made an actual threat I would have been arrested or transported to DC General Hospital for a forensic psychiatric examination. It is clear that what the MPDC did was to simply rubber-stamp a specious request made by a supervisory DC employee.]

2. VIOLENCE-RISK DETERMINATION: My former employer, Dennis M. Race, Esq. (202 887 4028), a senior management partner at the law firm of Akin, Gump, Strauss, Hauer & Feld, determined, in consultation with a psychiatrist, that my thinking was consistent with a psychiatric "disorder" that might be associated with a risk of violent behavior. See Freedman v. DC Dept. of Human Rights, 96-CV-961 (DCCA, Sept. 1998). [The psychiatrist did not evaluate me personally. There is no documentary evidence that Mr. Race, in fact, consulted a psychiatrist. Under applicable law, the employer had a burden of production, not a burden of persuasion -- a very low evidentiary threshold.] Mr. Race determined that my continued presence on the firm's premises might pose a risk of tort liability for the firm, and terminated my employment effective October 29, 1991. I have been unemployed and disabled under Social Security Administration eligibility rules since the date of the termination. My thinking, upon which Mr. Race's violence-risk determination was based, remains unchanged.

3. HOMICIDE-RISK DETERMINATION: Shortly after conferring with Mr. Race about his forensic psychiatric determination, my supervisor called a meeting of her employees to advise them that she had formed a reasonable apprehension that I might have been planning to kill her [an act of defamation]. The supervisor undertook [self-serving] protective measures [to give the appearance that she needed] to ensure her safety as well as that of her employees against a possible future homicidal assault. See Brief of Appellant. Mr. Race did not challenge appellant's brief. The supervisor was a senior non-attorney manager who reported directly to a member of the firm's management committee, R. Bruce MacLean, Esq. Mr. MacLean is the firm's current managing partner.

4. ARMED, MASS HOMICIDAL ASSAULT: The DC Corporation Counsel determined, sua sponte [relying on legally-irrelevant, "after-acquired" evidence], that my coworkers had formed genuine and credible fears that I might carry out an armed, mass homicidal assault on the firm's premises, and that said widespread fears of an armed, mass homicide were material to Mr. Race's termination decision. See Brief of Appellee, District of Columbia (citing statement of coworker [who was later terminated for gross misconduct] in record on appeal: "We're all afraid of you. We're all afraid you're going to buy a gun, bring it in and shoot everybody!"). At oral argument before the DC Court of Appeals, the Assistant Corporation Counsel declared to the Court, referencing the above record evidence, that I had "admitted" that my "coworkers were afraid of" me. Mr. Race did not challenge the District's handling of 96-CV-961.

5. MULTIPLE ARMED HOMICIDE UNDER FEDERAL LAW: On the evening of August 6, 1998 two Special Agents of the US Capitol Police (Threat Investigation Unit) forcibly entered my home, after frisking me for weapons, and proceeded to interrogate me about an allegation made by a DC employee that, earlier in the day, at the height of an enraged argument, I had threatened to kill two federal officers at point-blank range, execution style in the Capitol rotunda. Later investigation by Agent Steven Horan disclosed that said allegation was mistakenly based on a letter I had written to my psychiatrist (Stephen Quint, MD) and copied to a DC agency that factually summarized Mr. Race's violence-risk determination [an act of defamation]; my supervisor's homicide-risk determination [an act of defamation]; as well as the DC Corporation Counsel's determination that my coworkers had formed a reasonable apprehension that I might commit an armed, mass homicide [an act of defamation]. Though I was exonerated of making unlawful threats, Officer Horan photo ID'd me to all federal officers assigned to the U.S. Capitol Building as a protective measure.

6. POTENTIAL TERRORIST: On August 7, 1998 Agent Horan advised me that the federal government (unbeknownst to me) had previously placed my name on a national registry of potential terrorists because of a letter I had written in 1996 to a local psychiatric facility (The Meyer Clinic), inquiring into out-patient services. Said letter elaborated Mr. Race's violence-risk determination [an act of defamation] as well as my supervisor's homicide-risk determination [an act of defamation].

7. PRESIDENTIAL THREAT: On the afternoon of August 7, 1998 two Special Agents of the U.S. Secret Service placed me under house arrest because of concerns I might pose a risk of harm to President Clinton. The two Secret Service agents were part of a team of six federal special agents who had been assigned to interrogate me and secure my person, over a two-day period (August 6-7, 1998). Federal law enforcement concerns were aroused by a letter I had written and sent to a DC agency that discussed the federal civil rights implications of the DC Corporation Counsel's handling of 96-CV-961. I had sent an identical letter to U.S. Senator Arlen Specter (R.-PA.) on Capitol Hill, who responded with a cordial and personalized reply. Senator Specter, a former prosecutor, saw absolutely nothing threatening about the letter I had written, much less did he see the need to assign six federal special agents to interrogate me and secure my person.

8. POSSIBLE DOCUMENT FORGERY: The District speculates that I might have filed an inauthentic letter with a DC agency (purportedly written by a psychiatrist) in order to invidiously deny competent forensic psychiatric evidence proffered by Mr. Race under oath that showed I had been reasonably determined to be potentially violent. Presumably, according to the District [contrary to well-established case law], I might have forged a psychiatrist's signature and/or fabricated her letterhead. The U.S. Attorney's Office in DC has not yet issued me a notice of an intent to prosecute me.

9. UNLAWFUL SEXUAL THOUGHTS: The DC Corporation Counsel determined, sua sponte [relying on legally-irrelevant, "after-acquired" evidence], that private, undisclosed sexual thoughts I experienced on April 13, 1990 concerning the activity of masturbation were material to Mr. Race's termination decision as well as to Mr. Race's violence-risk determination. Mr. Race did not challenge the District's brief. I admit to having sexual thoughts in the workplace.

I look forward to hearing from you. Please send my regards to Doug Gansler, Esq. He's a bit of an attention seeker, but he knows what he's talking about.



Sincerely,

[signed]

Gary Freedman
PA ATTY ID 41032

EMPLOYMENT DISCRIMINATION: THE PELICAN BRIEF

Andrew Gerst, Esq.
Office of the Honorable Carol Schwartz
Council of the District of Columbia

Dear Mr. Gerst:

I am forwarding, for your information, a copy of a pleading I filed in the DC Court of Appeals in litigation concerning my job termination, in 1991, by the law firm of Akin, Gump, Strauss, Hauer & Feld. The District of Columbia Corporation Counsel defended the determination of the Department of Human Rights (issued in September 1993) that there was no probable cause to believe that the reasons produced by the employer to support its termination decision, namely, that I suffered from a mental disorder that rendered me unsuitable for employment, was pretextual in nature.

I had met with Deputy Corporation Counsel Charles L. Reischel, Esq. in his office at One Judiciary Square in March 1997, at which time he vehemently stated that he had no intention of devoting the resources of his office to defending the appeal. He said angrily, "I have no intention of serving as Akin Gump's attorney. If they want to defend the appeal, they can do it themselves."

After I filed my brief with the court in May 1997 Mr. Reischel telephoned me to state that he intended to file a reply -- contrary to his statements in March 1997. He stated that his office now had the resources to devote to defending the appeal.

Remarkably, not only did the Office of Corporation Counsel do an about-face in deciding to defend the appeal, but it resorted to the ethically-questionable device of using a sizable quantum of legally-irrelevant evidence to do so.

Ultimately, what did the Corporation Counsel accomplish? Basically, the District simply bolstered my Social Security Disability claim. (I submitted the District's pleadings with Social Security in support of the claim that I suffer from severe mental illness.) If I remain disabled till age 65, I will have collected aver $250,000 in disability benefits. I also collect food stamps. I have applied for Medicaid. If I develop a costly illness, the District might have to foot the bill for my treatment.

What in God's name did the District accomplish?

Incidentally, you probably know that Council member David Catania practices law at Akin Gump.

Also, the corporation counsel at the initial phase of the litigation was the late Charles F.C. Ruff, Esq. Mr. Ruff was subsequently named counsel to former President Clinton. President Clinton's closest friend, Vernon E. Jordan, Esq., is a senior management partner at Akin Gump. In addition, the Director of the Department of Human Rights (Margie Utley), who issued the Initial Agency Determination in 1993, served under former Mayor Sharon Pratt Kelley. It was Vernon Jordan, who, in 1990, served as the transition chairman for Mayor-elect Kelley. It may have been Vernon Jordan who vetted Margie Utley.

One could draw certain paranoid inferences.

(Keep in mind that the following text was written by an individual who, according to the District, does not have the mental capacity to hold down a job and who is entitled to state and federal benefits because of that mental incapacity.)


IN THE DISTRICT OF COLUMBIA COURT OF APPEALS

GARY FREEDMAN

Appellant,

v. No. 96-CV-961

D.C. DEPARTMENT OF HUMAN
RIGHTS,

Appellee.


APPELLANT'S REPLY TO BRIEF OF APPELLEE DISTRICT OF COLUMBIA DEPARTMENT OF HUMAN RIGHTS AND MINORITY BUSINESS DEVELOPMENT

This memorandum serves as appellant's reply, per D.C. App. R. 31(a)(3), to the brief of appellee District of Columbia Department of Human Rights and Minority Business Development that was filed by the District of Columbia Office of Corporation Counsel on July 25, 1997. 1/

I. THE OFFICE OF CORPORATION COUNSEL'S RECITAL OF INCIDENTS THAT PURPORTEDLY SUMMARIZES APPELLANT'S COMPLAINT OF HARASSMENT RELIES EXTENSIVELY ON LEGALLY-IRRELEVANT AFTER-ACQUIRED EVIDENCE.

In its recital of incidents that purportedly summarizes appellant's complaint of harassment, the Office of Corporation Counsel (the "District") relies improperly--and extensively--on evidence acquired by the Department of Human Rights (DHR) after appellant's job termination by the law firm of Akin, Gump, Strauss, Hauer & Feld ("the employer"): so-called after acquired evidence that played no role in the employer's termination decision or in DHR's no probable cause

___________________________________________________________________________
1/ This reply is filed per the additional time provision of D.C. App. R. 26(c), appellee's brief having been served by mail.

determination. See Brief of Appellee at 5-12. In relying extensively on legally-irrelevant evidence to support its cause the District unwittingly exposes--with meretricious abundance--the fundamental paucity of its position.

DHR made an express finding of fact that appellant's complaint of harassment to the employer--which comprises the exclusive recital of harassing incidents that appellant made prior to termination--comprised ten incidents only [Finding of Fact 4(a) through 4(j)]. [R. 12-16]. DHR found that the employer's "concern for [appellant] was based on the nature of the ten incidents that [appellant] submitted that he perceived as harassment. The details of these ten incidents are set forth in the Findings of Facts." [R. 7]. 2/

The District has unilaterally expanded the justification for the employer's termination decision by including in its brief a body of seventeen additional allegations that appellant never made to the employer and which therefore played absolutely no role in the employer's termination decision. See Brief of Appellee at 5-12.

An employer could not have been motivated to terminate an employee by knowledge it did not have at the time of termination and it cannot use after-acquired evidence to claim that the employee was fired for the nondiscriminatory reason. McKennon v. Nashville Banner Publishing Co., 115 S.Ct. 879, 885 (1995). The after-acquired evidence at issue in McKennon


_____________________________________________________________
2/ An emended version of pages 5-12 of the brief of appellee indicates the extent of the District's improper reliance on after acquired-evidence. See Appendix A to this reply.


concerned plaintiff's misconduct: evidence that would have justified plaintiff's termination had the employer known of it at the time of discharge. In the present case, the after-acquired evidence is derived largely from two memoranda--prepared after the job termination and submitted by appellant to DHR prior to the agency's discretionary decision to institute the complaint--that memorialize appellant's retrospective perceptions of his work environment. [R. 178-201, 334-349]. The District admits that its own enumeration of twenty-seven incidents is derived from "materials submitted by [appellant] to [DHR] during its subsequent investigation," but fails to call attention to the fact that, of those twenty-seven incidents, appellant had previously reported only ten incidents to the employer [R. 12-16], and that the additional allegations, therefore, played no role in the employer's termination decision. See Brief of Appellee at 5.

Ironically, a portion of the after-acquired evidence that the District now attempts to use to justify DHR's no probable cause determination is the very evidence that persuaded DHR to institute the complaint in the first place. [R. 178-185]. See Appendix A to this reply. Appellant's letter to DHR dated January 14, 1992, which contains some of the after-acquired evidence cited in the Brief of Appellee, predates and supports DHR's complaint filed on February 4, 1992. [R. 178-185]. DHR was apprised of most of the after-acquired evidence in the period before DHR's discretionary decision to institute the complaint. [R. 178-201, 334-349]. See Appendix A to this reply.

Moreover, the after-acquired evidence that the District now attempts to foist on this Court as additional justification for DHR's no probable cause determination played absolutely no role in the agency's own factual determinations and final action [R. 1-9, 12-17] and is therefore not legally relevant to this Court's assessment of whether the agency action should be upheld. It is well-established that a reviewing court may not accept appellate counsel's post hoc rationalization for agency action; such action must be upheld, if at all, on the basis articulated by the agency itself. Motor Vehicle Mfr's. Ass'n of U.S., Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 50 (1983), appeal after remand, State Farm Mutual Automobile Insurance Co. v. Dole, 802 F.2d 474 (D.C. Cir. 1986), cert. denied, New York v. Dole, 480 U.S. 951 (1987).

The issue before this Court is whether DHR's final determination is supported by the facts articulated by the agency; the issue is not whether there is any evidence in the record that supports the agency's action. "Administrative agency decisions must stand or fall on the basis used by the agency." Club 99 v. D.C. Alcoholic Beverage Control Board, 457 A.2d 773, 775 (D.C. 1982). Facts recited by appellate counsel that do not form a part of the agency's decision are not legally relevant to a reviewing court's assessment of whether an administrative order should be upheld. Cooper v. Department of Employment Services, 588 A.2d 1172, 1176 (D.C. 1991).

This is not a case in which after-acquired evidence of an employee's improperly concealed wrongdoing would have justified the employer's termination decision had the employer known of the wrongdoing; appellant owed the employer no duty to refrain from believing that he was a victim of harassment nor did appellant owe a duty to his employer to reveal his private thoughts about his perceptions of his work environment. Moreover, this is not a case in which an administrative agency itself relied on after-acquired evidence as a basis of its final determination.

Accordingly, this Court should deem the after-acquired evidence proffered by the District, see Brief of Appellee at 5-12, not legally relevant to this Court's assessment of the merits of appellant's cause. Rather, this Court should deem the District's offer of legally-irrelevant evidence a frivolous attempt to divert the Court's attention from the persuasive circumstantial evidence of pretext that emerges from a reasoned consideration of the following statistics:

Of the ten incidents appellant submitted to the employer as constituting his complaint of harassment, three of the incidents (30%) involved his direct supervisor, Christine Robertson ("Robertson"), an individual known by the employer's minority employees to have engaged in a pattern of racially-inappropriate conduct and who, following appellant's termination, was found by the U.S. District Court for the District of Columbia to have engaged in racially-inappropriate conduct in her dealings with minority employees under her supervision. See Brief of Appellant at 23-24. The employer's personnel records designate Robertson one of the three decisionmakers who terminated appellant's employment. [R. 167].

Of the ten incidents found by DHR to constitute appellant's complaint of harassment to the employer, the employer reported to DHR in its interrogatory response only six incidents. See Brief of Appellant at 23-24 and Appendix A attached thereto. The employer omitted in its own enumeration to DHR the three incidents relating to appellant's direct supervisor (Robertson) and the one incident relating to a coworker (Stacey Schaar) who was reportedly terminated for gross misconduct. See Brief of Appellant at 23-24 and Appendix A attached thereto. The interrogatory response submitted by the employer to DHR was prepared by attorney manager Dennis M. Race ("Race") [R. 130], designated by the employer's personnel records a member of the group of three decisionmakers (which included Robertson) who terminated appellant's employment. [R. 167].


II. DHR'S FINDING THAT APPELLANT RECEIVED FAVORABLE PERFORMANCE EVALUATIONS IS INCONSISTENT WITH ITS CONCLUSION THAT HE WAS TERMINATED FOR NON-DISCRIMINATORY REASONS BASED ON GENUINE CONCERNS ABOUT APPELLANT'S ABILITY TO WORK WITH OTHERS.


Appellant's personnel file comprises a contemporaneous written memorial of appellant's work history, including a history of the quality of his interactions with others. It is probative of the retaliatory nature of the accusations made by coworkers against appellant in the period after appellant's complaint of harassment to the employer, and the pretextual nature of the employer's proffered reasons for the termination, therefore, that the record discloses the following facts relating to appellant's personnel file, facts conspicuously ignored by the District:

DHR found that appellant's performance evaluations--which rated his work quality and conduct as an employee--were uniformly above-average or outstanding throughout his tenure [Finding of Fact 2]. [Rec. 12].

Without exception, those performance evaluations prepared prior to appellant's complaint of harassment to the employer specifically rated appellant's ability to work with others average or above-average. [Rec. 295, 305, 308, 312-313, 317-318, 322-323]. The evaluation prepared in May 1991 (five months before the termination) includes a notation by Robertson that appellant was a "team player" [Rec. 323]; and an earlier evaluation prepared in November 1989 described appellant as having "inspired" his coworkers [Rec. 310].

Appellant's personnel file does not contain a record of any reprimands, oral or written. [R. 167].
The District does not cite a single specific instance of unprofessional or disruptive behavior by appellant. See Brief of Appellee at 3-13. Those evaluations prepared prior to appellant's harassment complaint memorialize no pre-existing concerns by coworkers or supervisors about "frightening" or "disruptive" behavior [R. 290-325].

The District does not dispute appellant's contention that generalized accusations, based on coworkers' retrospective perceptions not confirmed by appellant's personnel file, that appellant's behavior was disruptive emerged only in the period after appellant's complaint of harassment to the employer.

The last three (valid) performance evaluations prepared during appellant's tenure, which rated appellant's performance during the period fall 1989 to spring 1991 [R. 311-20], were either written or reviewed by Robertson [R. 311, 316, 321], who was designated by the employer one of the three decisionmakers who terminated appellant's employment.

Robertson prepared a final performance evaluation, dated October 24, 1991, in the period following appellant's complaint of harassment to the employer. [R. 149-154]. The performance evaluation was not reviewed with appellant (and so indicates [R. 154]), and is therefore invalid per the employer's written policy. [R. 150]. The performance evaluation is critical of appellant's ability to work with others [R. 152], and is the only evaluation that contains negative statements about appellant's interpersonal skills. Appellant's complaint of harassment to the employer included three allegations against Robertson relating to sexual and religion-based harassment. [R. 14-15].

Laurel Digweed ("Digweed"), as the employer's personnel administrator, had custody of--and was presumably aware of the contents of--appellant's personnel file, which included copies of appellant's performance evaluations as well as his discipline file (which contained no reprimands). [R. 167]. Digweed is designated by the employer one of the three decisionmakers who terminated appellant's employment. [R. 167]. Digweed therefore actively affirmed the employer's decision to terminate appellant on the basis of concerns about appellant's ability to work well with people notwithstanding Digweed's custody, and presumed knowledge 3/, of appellant's personnel file, which controverted allegations made by coworkers about appellant that arose during the employer's investigation of appellant's harassment complaint--allegations that related back to personnel interactions that occurred, if at all, during the very period covered by the favorable performance evaluations. See Brief of Appellant at 32-33.

Attorney manager Race, designated by the employer as one of the three decisionmakers who terminated appellant's employment [R. 167], acknowledged to appellant at the termination meeting on October 29, 1991 that he had reviewed


___________________________________________________________________________
3/ Absence of direct evidence that Digweed had actual knowledge of the contents of appellant's personnel file would not excuse Digweed's "ostrich-like" deliberate ignorance of the content of documents of which she, as the employer's personnel administrator, was official custodian. Cf. Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486, 1530 n. 10 (M.D.Fla. 1991): "The phrase used here is intended to call attention to the analogy between these circumstances and the concept of deliberate ignorance, covered by the so-called ostrich instruction, in the criminal law. See, e.g., United States v. Restrepo-Granda, 575 F.2d 524, 529 (5th Cir.) ('deliberate ignorance is the equivalent of knowledge'), cert. denied, 439 U.S. 935, 99 S.Ct. 331, 58 L.Ed.2d 332 (1978)." [R. 415].


appellant's personnel file 4/ [R. 525-26] (which would have included all of appellant's performance evaluations and discipline file).

Attorney manager Race, one of the three decisionmakers who terminated appellant's employment [R. 167], is the individual who prepared and filed with DHR the "Response to Interrogatories and Document Request" on May 22, 1992. [R. 130]. Race produced only three of the nine performance evaluations prepared during appellant's tenure [Rec. 149-165, 358], and did not explain his failure to produce the remaining evaluations [Rec. 133]. One of the three evaluations Race did produce was the invalid evaluation prepared by Robertson in the period following appellant's harassment complaint [R. 149-54, 358]: the only evaluation that contained comments critical of appellant's ability to work with others.

The foregoing fact outline highlights the lack of a "rational connection" between, on the one hand, DHR's finding that appellant's performance evaluations (which memorialize his ability to work with others) were uniformly above-average or outstanding throughout his tenure and its conclusion, on the other, that appellant was terminated for non-discriminatory reasons relating to the employer's genuine concerns about appellant's ability to work with others. See

_____________________________________________________________
4/ Race's reported admission that he had reviewed the contents of appellant's personnel file prior to the decision to terminate is contained in a letter, dated September 25, 1992, submitted by appellant to DHR during the agency's investigation. [R. 525-26]. Race's reported admission, though uncorroborated, is linked to other statements by appellant contained in that letter that were against appellant's interest when made, in September 1992.


State Farm, 463 U.S. at 43 (a court applying the arbitrary or capricious standard must determine whether the agency has articulated a "rational connection between the facts found and the choice made"). Evidence that appellant received favorable performance evaluations during his employment--which evaluations fail to memorialize any pre-existing concerns about "disruptive" or "frightening" behavior, and that were either prepared or reviewed by the very persons who terminated appellant's employment--renders arbitrary or capricious DHR's finding that the employer acted out of a genuine concern that appellant could not work well with other people and presented a risk of violent behavior.

Further, prior recorded evidence contained in the performance evaluations that fails to corroborate negative reports about appellant's past conduct that emerged during the employer's investigation "fairly detracts" from the substantiality of evidence proffered by the employer that, based on interviews of coworkers conducted during the investigation, appellant had a past history of "disruptive" and "frightening" behavior. Though an agency's finding may be supported by substantial evidence, it may nonetheless reflect arbitrary and capricious action; "[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight." See Bowman Transportation v. Arkansas-Best Freight System, 419 U.S. 281, 284 n. 2 quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
See Brief of Appellant at 31.


III. DHR'S FINDING THAT APPELLANT WAS NOT TERMINATED BECAUSE OF HIS SEXUAL ORIENTATION WAS ARBITRARY OR CAPRICIOUS.

The absence of direct or explicit evidence that the employer's termination decision was motivated by appellant's membership in a protected class is not fatal to an employment discrimination claim. Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2nd Cir. 1989). A showing that a proffered justification for the termination is pretextual is itself sufficient to support an inference that the employer intentionally discriminated. Id. at 465. Further, appellant is not required to prove that the employer's proffered reasons are false but only that they were not the only reason and that appellant's membership in a protected class made a difference. Id. at 465. See Brief of Appellant at 22-23.

The District correctly points out that "[e]ven if the evidence showed that [appellant'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." See Brief of Appellee at 19. But, in fact, there is more.

Attorney manager Race expressly and unequivocally denied to DHR that the subject of appellant's sexual orientation was ever brought up by appellant or anyone "involved directly or indirectly" with appellant's employment during the entire period of appellant's tenure [Rec. 139]; and that "[appellant] never complained of discrimination treatment based on sexual orientation" [Rec. 140]. DHR found, however, that appellant advised the employer of his sexual orientation on October 23, 1991 [Finding of Fact no. 7] [R. 17]. The only evidence of record that supports the employer's decision to terminate emerged in the period after appellant gave the employer notice of his sexual orientation, and Race deliberately lied to DHR that appellant had ever given notice of his sexual orientation. See Brief of Appellant at 24-26.

Race's factual misrepresentation of his knowledge of appellant's membership in a protected class is a lie that taints the termination decision as pretextual, and leaves little doubt that the underlying reason for the termination was a forbidden one. See Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995) ("Pretext . . . means a lie, specifically a phony reason for some action."); cf. Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1124 (7th Cir. 1994) ("If the only reason an employer offers for firing an employee is a lie, the inference that the real reason was a forbidden one . . . may rationally be drawn.") quoting Shager v. Upjohn Co., 913 F.2d 398, 401 (7th Cir. 1990). Obviously, for Race, appellant's sexual orientation "made a difference" in the termination decision, as evidenced by his act of lying to DHR that the employer had no knowledge of appellant's sexual orientation even after October 23, 1991 [Rec. 139]. See Ramseur, 865 F.2d at 465. DHR's determination that the employer's actions were not pretextual [Rec. 7], insofar as that determination excuses the employer's act of improperly denying its knowledge of appellant's sexual orientation even after October 23, 1991 [Rec. 139]--a denial incontrovertibly at odds with DHR's own finding of fact [Finding of Fact no. 7] [R. 17]--is a "clear error of judgment" that renders the agency's action arbitrary or capricious. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1970) (to determine whether the choice made by the agency was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, the court must consider whether there has been a clear error of judgment). See Brief of Appellant at 25-26.

The District's argument that "DHR's finding that [appellant] was not harassed because of his sexual orientation was not arbitrary or capricious" misses the point. See Brief of Appellee at 19. Appellant need establish only that the reasons offered by the employer in support of the termination decision were not its true reasons, but were a pretext for discrimination. See Burdine, 450 U.S. at 256 (plaintiff must demonstrate that the proffered reason was merely a pretext for the employment decision and that he was the victim of intentional discrimination).

Appellant showed that each of the three decisionmakers (Race, Robertson, and Digweed [R. 167]) exhibited a discriminatory animus against appellant in the period after appellant lodged a harassment complaint against his direct supervisor, Robertson, and coworkers, and advised the employer of his sexual orientation. See Lindsey v. Baxter Healthcare Corp., 757 F. Supp. 888, 896 (N.D. Ill. 1991) ("evidence probative of the actual decisionmaker's motives is relevant" to prove pretext). See Brief of Appellant at 24-26, 27-30, 32-33.

-- Race deliberately lied to DHR that he was unaware of appellant's sexual orientation even after appellant lodged his harassment complaint on October 23, 1991. See Brief of Appellant at 24-26.

-- Robertson engaged in several hostile, offensive, or retaliatory acts in the period after appellant lodged a harassment complaint against her and others, on sexual and religious grounds. See Brief of Appellant at 27-30.

-- Digweed affirmed a termination decision predicated in part on reports by coworkers that appellant had a past history of difficulties in working with others: concerns that emerged only after appellant lodged a harassment complaint against Robertson (and others) and which concerns about appellant's past conduct and ability to work with others were controverted by appellant's personnel file (a memorial of appellant's past conduct), of which Digweed was custodian. See Brief of Appellant at 32-33.


IV. DHR'S FINDING THAT THE EMPLOYER SOUGHT GUIDANCE FROM TWO MENTAL HEALTH PROFESSIONALS RUNS COUNTER TO THE EVIDENCE BEFORE THE AGENCY.

While it is true that under the arbitrary or capricious standard, it is not the role of this Court to weigh the evidence and substitute its judgment for that of the agency, it is also true that the Court is "compelled" to find the agency's decision arbitrary or capricious if the agency "offer[s] an explanation for its decision that runs counter to the evidence." Puerto Rico Higher Educ. Assistance Corp. v. Riley, 10 F.3d 847, 850 (D.C. Cir. 1993).

DHR found that the employer satisfied its burden of production, thereby rebutting appellant's prima facie harassment case, by its claim that it sought advice from mental health professionals (an employee assistance provider and a psychiatrist) before deciding to terminate appellant, and relied on that advice in making its decision. [R. 17-20].

It is surprising, and contrary to the totality of the evidence, that DHR affirmed that the employer consulted an employee assistance provider and a psychiatrist [R. 17]--even in view of the fact that the attorneys who were involved in the consultations noted that they did so without revealing appellant's identity--given the following additional evidence, which is undisputed by the District:

The employee assistance provider's business policy mandates that its counselors prepare a written record--on an "Employer Consultation Intake Form"--relating to any communications with employers concerning a potential employee-client and that the record be maintained in a file of mental health information [Rec. 65]. This policy applies even in situations where the consultation with the employer is not "employee-specific" [R. 65].

The providing of a representation of the kind that the employer claims to have sought and obtained from an (unidentified) employee assistance program counselor regarding appellant's suitability for continued employment is not consistent with the company's business purpose [R. 63-64, 78-79]. The stated business purpose of the employee assistance provider is to provide counseling services to employees whose performance is suffering, not to confirm the summary dismissal of an employee who might require counseling. [R. 63-64, 78-79].

While the employer expressly states that it was attorney managers Race and Malcolm Lassman, and no other persons, who consulted the psychiatrist [R. 122-123, 137], the psychiatrist herself expressly denies having offered a professional opinion to Race about anyone, anonymously or otherwise [R. 62].

It is observed, additionally, that DHR's findings necessarily carry the following assumptions:
The employee assistance provider deliberately, with no known reason or motive, deviated from its established business policy of memorializing a consultation with an employer-client concerning an employee that was not "employee-specific."

The employee assistance provider deliberately, with no known reason or motive, deviated from its established business purpose by confirming the summary dismissal of an employer-client's employee [R. 73], rather than arranging to provide counseling services.

A practicing psychiatrist [R. 137] deliberately, with no known reason or motive, violated the American Psychiatric Association's Principles of Ethics, which caution psychiatrists against offering a professional opinion about an individual in the absence of a personal examination. See THE PRINCIPLES OF MEDICAL ETHICS (WITH ANNOTATIONS ESPECIALLY APPLICABLE TO PSYCHIATRY) 9 (Washington, DC: APA 1995). See Brief of Appellant at 38-40.

Appellant does not urge this Court to find that the employer "fabricated evidence," as the District contends. See Brief of Appellee at 22. Rather, applying the arbitrary or capricious standard, it is plain that DHR "offered an explanation for its decision that runs counter to the evidence before the agency." See Puerto Rico Higher Educ. Assistance Corp. v. Riley, 10 F.3d at 850.

DHR's finding that the employer consulted an employee assistance provider, notwithstanding documentary evidence submitted by appellant showing that the reported consultation was inconsistent with the company's business policies and uncorroborated by its business records (which would have memorialized a consultation relating to an unidentified employee), constitutes an impermissible "reiteration of the evidence" offered by the employer in its interrogatory response; the finding is therefore contrary to law. See Rosexpress, Inc. v. District of Columbia Department of Employment Services, 602 A.2d 659, 662 (D.C. 1992) (a reiteration of the evidence is not a finding of fact). Further, DHR's finding that the employer consulted a psychiatrist is arbitrary or capricious in that it reflects a "clear error of judgment." See Citizens to Preserve Overton Park v. Volpe, 401 U.S. at 416. The psychiatrist expressly denies having spoken with one of the employer's attorney managers (Race)--under any circumstances [R. 62]--despite the employer's assertion that Race spoke with the psychiatrist. [R. 73-74].

While recognizing that this Court may not reject agency findings of disputed fact based on resolution of witness credibility, cf. Office of D.C. Controller v. Frost, 638 A.2d 657, 660 (D.C. 1994), the fact remains that DHR's own resolution of witness credibility in this matter was based on a "clear error of judgment" that renders its finding arbitrary or capricious. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. at 416. DHR's rank speculation that "some other employee" than Race may have consulted the psychiatrist [R. 8] runs counter to the employer's own production that Race, indeed, consulted the psychiatrist. [R. 73-74].

Finally, the District fails to address appellant's argument that--leaving DHR's factual findings undisturbed--it is simply "unworthy of credence" that the employer's attorney managers, skilled in the art of impeachment of expert witnesses and therefore sensitive to the limiting circumstances that can bias an expert professional opinion, could have honestly concluded, on the basis of the employer's restricted consultation with the psychiatrist, that appellant's complaint of harassment was attributable to a psychiatric symptom associated with a risk of violence that rendered appellant not suitable for employment. See Burdine, 450 U.S. at 256 (1980). See Brief of Appellant at 38-40.

V. DHR'S CONCLUSION THAT THE EMPLOYER'S CONCERNS ABOUT APPELLANT'S MENTAL HEALTH AND STABILITY PROVIDED A VALID REASON TO TERMINATE IS ARBITRARY OR CAPRICIOUS SINCE APPELLANT'S PURPORTED CONDITION QUALIFIED HIM TO FILE FOR BENEFITS UNDER THE EMPLOYER'S ESTABLISHED INSURED LEAVE POLICY.

The District failed to address appellant's argument that DHR's no probable cause determination is arbitrary or capricious in that a finding that the employer had a concern for appellant's mental health and stability (based partly on the advice of mental health professionals that appellant needed counseling and that according to a psychiatrist could engage in violent behavior) does not lead rationally to a conclusion that that concern prompted or justified the employer's decision to terminate appellant since appellant was a beneficiary of the employer's long-term disability income plan under which he qualified for long-term medical leave under the employer's established leave policy. See Brief of Appellant at 41-46.

Appellant had raised with DHR the issue of the employer's denial of disability benefits. [R. 29-31, 42-56]. DHR did not address, or make any findings concerning, the issue.

The District did not object to appellant's raising the issue on appeal; rather, the District simply failed to address the issue.

Conclusion

Based on the foregoing, this Honorable Court should reverse the Superior Court's conclusion that DHR's finding of no probable cause was correct.


Respectfully submitted,



GARY FREEDMAN pro se
3801 Connecticut Avenue, NW
Apt. 136
Washington, DC 20008-4530
Tel: 362-7064 or 363-3800


CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was hand-delivered this 11th day of August, 1997, to Charles L. Reischel, Esq., Deputy Corporation Counsel, Office of Corporation Counsel, 441 Fourth Street, NW, One Judiciary Square, Washington, DC 20001, Tel: 727-6252, Ext. 3301.

__________________
GARY FREEDMAN



[The Appendix to the Brief is omitted.]

DEMENTIA SHOULD BE MADE OF STERNER STUFF

STATEMENT OF GARY FREEDMAN CONCERNING MENTAL STATUS AFFIRMATION MADE BY THE DISTRICT OF COLUMBIA OFFICE CORPORATION COUNSEL

Under penalties of the law, including criminal penalties for false statements under D.C. Code 22-2514, I declare that the following statement truthfully represents my current beliefs, as of August 20, 2000, concerning my employment experience at the Washington, D.C. office of the law firm of Akin, Gump, Strauss, Hauer & Feld ("Akin Gump"), where I was employed from June 13, 1988 to October 29, 1991.

The District of Columbia Office of Corporation Counsel ("The District") (Charles L. Reischel, Esq.) has affirmed that my allegations concerning my employment experience at Akin Gump reflected genuinely-held beliefs that had been legitimately determined by Akin Gump to be the product of psychological dysfunction; the District did not argue that those allegations were self-serving fabrications offered to obtain government benefits or to obtain a disqualification from jury service. See Brief of Appellee District of Columbia, Freedman v. D.C. Dept. of Human Rights at 5-12, D.C.C.A. no. 96-CV-961.

This statement details the current status of my beliefs that were offered by the District, in pleadings filed on July 25, 1997 with the D.C. Court of Appeals, in support of the determination made by the D.C. Department of Human Rights and Minority Business Development that my former employer, Akin Gump, had genuine concerns about my mental health and stability that justified the firm's determination that I was not suitable for employment by reason of a psychiatric opinion that indicated that I suffered from a "disorder." See Freedman v. D.C. Dept. of Human Rights, D.C.C.A. no. 96-CV-961 at 4 (Memorandum Opinion and Judgment, Sept. 1, 1998) ("the firm . . . learned [upon consulting a practicing psychiatrist] that [Mr. Freedman's] behavior was indicative of a disorder known as 'ideas of reference,' which is sometimes accompanied by violent behavior.').

I continue to believe that beginning in late October 1988 until the date of my job termination, on October 29, 1991, managing attorneys at Akin Gump had clandestine telephone contacts with my sister, during which my sister recounted details of phone conversations between herself and me. I further believe that my sister faxed to firm management documents relating to me, including my grade school report cards and college exam books, among other material. I also believe that the information obtained by the managing attorneys was disseminated throughout the firm without my consent. See Brief of Appellee District of Columbia at 5-6.

I continue to believe that the legal assistant administrator (Maggie Sinnott) invidiously had me typed as a homosexual, and that her interaction with me was, throughout my tenure, guided by that characterization. The administrator would glance and scowl at my genital area when she saw me. Additionally, at a legal assistant Happy Hour held at Stetson's in the Adams-Morgan neighborhood during the summer of 1989, the administrator (Sinnott) introduced me to women only. See Brief of Appellee District of Columbia at 6. At the said Happy Hour I chatted with a summer intern named Marjorie Levy, daughter of a senior partner at the firm, Charles Levy; I vaguely recall that Marjorie Levy attended Cornell University and that she was writing her autobiography.

I continue to believe that on the second day of my assignment with the firm as an agency-supplied legal assistant, an incident of harassment occurred after I introduced myself to a male employee outside whose office I had been assigned (earlier that day by the legal assistant administrator, Sinnott). A group of employees proceeded to gather in the office adjacent to my assigned work station, and 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. See Brief of Appellee District of Columbia at 6.

I continue to believe that while I was walking down a hallway in the firm's offices, in May 1988, one of the firm's associates (Paul Wageman) who was walking toward me, began to hold a pencil next to his genital area and move it up and down in an intentional act of harassment. See Brief of Appellee District of Columbia at 6-7. Wageman retained eye contact with me as he walked down the hall rubbing the pencil against his genital area.

I continue to believe that soon after I was hired by the firm as a temporary legal assistant in June 1988, the legal assistant coordinator (John D. Neary) invidiously denied me the legal assistant orientation I had been promised. I was also invidiously denied a box of business cards or personalized note pads, which items had also been promised. See Brief of Appellee District of Columbia at 7.

I continue to believe that in mid-June 1988 an incident of harassment occurred near my office. On the first morning in a newly-assigned office, I got a cup of coffee in an adjacent kitchen area. At that time, a firm partner (David Hardee) said to me "I smell something sweet in here. Do you smell something sweet in here?" I replied "no." The attorney repeated, "I smell something sweet in here." See Brief of Appellee District of Columbia at 7. I believe that Hardee's use of the word "sweet" was intended to be homosexual innuendo. Hardee, a native of South Carolina, had professional ties to Vernon E. Jordan, Jr., a member of firm management; Jordan served on the Board of Directors of a corporation (RJR Nabisco) that Hardee represented. I cannot recall any other occasion on which Hardee initiated verbal contact with me. Hardee and I occupied nearby offices from mid-June 1988 to mid-March 1989.

I continue to believe that during the three-and-a-half years that I was employed at the firm, I was intentionally shunned by other employees. Three employees whom I asked to lunch initially agreed to dine with me and later changed their minds. See Brief of Appellee District of Columbia at 7.

I continue to believe that one day during the summer of 1988 I went to the office of another legal assistant (Jesse Raben), who had been coached to harass me. During my conversation with Raben, another employee (the legal assistant coordinator, Neary) walked by and, without saying a word, nodded to Raben. Later, Raben entered the Xerox room where I was making copies and continued the conversation in an affectedly buoyant manner. The next day Raben's earlier buoyant manner was noticeably gone. See Brief of Appellee District of Columbia at 7-8. On an occasion in November 1989 and again in about March 1990 I asked Raben if he would go to lunch with me; he initially agreed but later backed out.

I continue to believe that on a day in February 1989 a stack of documents on my desk had been tampered with in order to provoke a paranoid response from me. See Brief of Appellee District of Columbia at 8. At that time I worked on a document production task supervised by Constance Brown. The day after the incident I chatted with Brown, who stated spontaneously and not in reference to anything I had said, that she sometimes thought there were "ghosts" in the building who tampered with things; I registered Brown's comments as a prompt that was calculated to trigger paranoid speculation from me about the previous day's incident concerning the out-of-place documents in my office. During my tenure Brown prepared four written performance evaluations that summarized her work experience with me from May 1988 to May 1990, a two-year period; Brown's written evaluations were, without exception, exemplary. Despite her written depictions of me as a superior employee, there is no evidence that Brown supported my request to firm managers for a job promotion in October 1991, which triggered my job termination, or that she disputed the reported statements of coworkers--offered to firm management immediately prior to the decision to terminate—that I was paranoid, hypersensitive to criticism, or that I had a violent temperament.

I continue to believe that in 1989 I was subjected to harassment (throughout the period late March to late October) after I was assigned to share office space with other legal assistants (including Stacey Schaar). During the period late March to mid-April 1989, several legal assistants would meet in the office space for lunch and conversation. Their conversations were often sexual in nature, and featured details, expressed in double-entendres, derived from my personal life. On one occasion, these legal assistants seemed to review the contents of my apartment with detail and accuracy. I noted that these conversations stopped after I spoke to my sister complaining about this type of interaction, in about mid-April 1989. See Brief of Appellee District of Columbia at 8.

I continue to believe that certain legal assistants made invidious references to my friendship with a male employee (Craig W. Dye) with whom I had previously worked at the law firm of Hogan & Hartson. At an Akin Gump dinner held in May 1989, another legal assistant (Raben) acknowledged to me that he had heard a rumor that I was homosexual. See Brief of Appellee District of Columbia at 8. Dye's supervisor at Hogan & Hartson during the period October 1986 to March 1987 was an individual named Sheryl Ferguson, a computer specialist. Ferguson left Hogan in the spring of 1987, and in about mid-year 1989 Dye assumed Ferguson's former supervisory position in that firm's Computer Applications Department. In 1988 Akin Gump hired Ferguson, who by that time worked at ATLIS, a litigation support company, to perform, as a consultant, a study of Akin Gump's litigation support operation. Ferguson completed the consulting task in early 1989, and submitted a lengthy written report in February 1989. The report acknowledged the cooperation of Christine Robertson, Akin Gump's litigation support administrator, as well as several Akin Gump attorneys including John ("Jack") Gallagher and David Callet, senior partners who represented Eastern Airlines (the major client to which I was assigned), as well as an associate named David Tobin, who subsequently left the firm. Ferguson had been my direct supervisor at Hogan & Hartson during the period September 1985 to March 1987. Brown, on her initiative, supplied me with a copy of Ferguson's written technical report, despite the fact that the report was stamped confidential and despite the fact that, according to Akin Gump, I was, as of February 1989, a dispensable temporary employee who had been hired to perform a specific time-limited clerical task for the client Eastern Airlines. I continue to believe that Brown supplied me with a copy of the report knowing that the report was confidential, knowing that Ferguson had been my supervisor at another law firm, and anticipating that I would supply a copy of the report to persons I had worked with at Hogan & Hartson, which would have been an act of gross misconduct on my part. Eastern Airlines filed for bankruptcy protection a few weeks later, on March 9, 1989.

I continue to believe that during the period March 20 through October 23, 1989, I was covertly observed by a computer systems manager (Richard "Dick" Stanke) at the firm. This individual would watch while I engaged in conversations with others and then go into his office and close his door to report to a third party what he observed. See Brief of Appellee District of Columbia at 8-9. At that time the computer systems manager (Stanke) and I resided in the same apartment building; the resident manager of the building was named Elaine Wranik. At that time Stanke worked in a private office a few feet from the office space occupied by legal assistant Stacey Schaar and me. It was Schaar who said she was afraid of me, see Brief of Appellee District of Columbia at 9. Schaar added that the resident manager of the apartment building (where both Stanke and I resided) was also afraid of me. Schaar and Stanke used to chat occasionally.

I continue to believe that during the summer of 1989, some of the telephone conversations of the legal assistants with whom I shared an office were exaggeratedly sexual in nature, an affected behavior that was calculated to harass me. See Brief of Appellee District of Columbia at 9. On one occasion during the summer of 1989 one of the legal assistants in question (Schaar) had made several photocopies of an article published in The Washington Times that described a homosexual incident involving a male attorney who practiced in the firm's Dallas office, then proceeded to distribute copies of the article to various employees, including me; the legal assistant (Schaar) was later reportedly fired, in May 1990, for gross misconduct.

I continue to believe that I was harassed by intimidating and hostile statements made by one coworker (Schaar) who said to me that she and other employees feared I was homicidal: specifically, Schaar stated to me that she and other employees were afraid that I might buy a gun, bring it to the firm's premises, and carry out a mass homicidal assault. See Brief of Appellee District of Columbia at 9. Schaar also stated to me: "Even the manager of your apartment building is afraid of you." Schaar's statement concerning the resident manager of my apartment building (Wranik) is contained in a document I prepared in June 1993 (addressed to my then treating psychiatrist, Suzanne M. Pitts, M.D.) and which I later forwarded to the U.S. Department of Justice (DOJ) in January 1996; the cover letter I prepared and sent to DOJ contained a statement that prompted a DOJ referral to the U.S. Secret Service, which agency summoned me for questioning concerning the materials, in February 1996. The investigating Secret Service agent was named Philip C. Leadroot.

I continue to believe that at the firm's 1989 Christmas party, one of the firm's attorneys (Larry Tanenbaum), the alcoholic former husband of the firm's legal assistant administrator (Sinnott), invidiously glanced at my genital area. See Brief of Appellee District of Columbia at 9. In the summer of 1990, the same attorney glanced at my genital area during an elevator ride, see Brief of Appellee District of Columbia at 9, in the period after I asked to lunch a summer intern (Matthew Erskine) whose father was an FBI agent. (Erskine later declined to go to lunch with me).

I continue to believe that in early January 1990 employees or members of the firm burglarized my apartment (whose resident manager was Elaine Wranik). These individuals, I believe, inspected many of the books in my apartment and, armed with a video camera, took a video film of my apartment. I believe that a copy of that video film was sent to my sister, who resided in New Jersey. I believe the unlawful entry into my apartment was done with the knowledge and consent of the firm's management committee. See Brief of Appellee District of Columbia at 9.

The class of persons about which, according to the District, I formed a genuine belief conspired to, or, in fact, unlawfully entered my residence, in January 1990, see Brief of Appellee District of Columbia at 9, includes Vernon E. Jordan, Jr., a close personal friend of former President William Jefferson Clinton (an individual whose law license has been suspended in the state of Arkansas by reason of acts of moral turpitude).

I continue to believe that some time in early spring 1990 harassment occurred after I was assigned, by the litigation support administrator (Robertson), to a work station to perform a specified task (for the client Music Corporation of America “MCA”). Upon sitting down, I looked into the trash basket next to the desk and noticed that it contained a baby food jar. The jar had been wiped clean before being placed in the trash basket. 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 me. The epithet "baby" is stereotypically anti-Semitic. See Brief of Appellee District of Columbia at 9-10. Coincidentally, the client MCA was later purchased by Edgar Bronfman, an individual active in numerous Jewish causes; Bronfman has served as Chairman of the Anti-Defamation League and has headed the World Jewish Congress. Robertson was later found to have made a racially-inappropriate statement about a minority person, and was alleged to have colluded with another supervisor in the discriminatory termination of a black employee. McNeil v. Akin, Gump, Strauss, Hauer & Feld, no. 93-0477 (D.D.C., Nov. 29, 1993).

I continue to believe that on April 13, 1990 I overheard a conversation in which the legal assistant administrator (Sinnott) gave instructions to a legal assistant concerning the bates-stamp numbering of some documents, and that the administrator's repeated use of the word "bates" was a double-entendre: an offensive and intimidating reference to masturbation. See Brief of Appellee District of Columbia at 10. The incident occurred on a Friday, hours before my regularly-scheduled appointment with my then treating psychiatrist, Stanley R. Palombo, M.D.; I interpreted the actions of the administrator (Sinnott) as a prompt that was calculated to encourage me to make paranoid comments about the administrator to my psychiatrist, who would communicate my comments back to firm managers.

I continue to believe that during 1990 my coworkers used words and phrases that I had used during private sessions with my psychiatrist (Dr. Palombo). I inferred that the psychiatrist was discussing my case with firm management. The psychiatrist denied that he had any communication with members of the firm. See Brief of Appellee District of Columbia at 10.

I continue to believe that some time in 1990 someone had placed a brochure for a secretarial course on my desk with the intent to harass. The brochure was pink in color and featured photographs of women only. On another occasion, someone left a (Levi-Strauss) clothing catalogue on my desk. The front cover of the catalogue depicted a young woman holding a little boy. See Brief of Appellee District of Columbia at 10. At that time "Levy" and "Strauss" were the names of two senior partners at the firm; their offices were roughly adjacent to each other's. Levy worked in the firm's tax practice group, which also included Hardee. During the summer of 1989, and later that same year during Christmas break, Levy's daughter, Marjorie, a college student, interned at the firm under the supervision of the legal assistant administrator (Sinnott). In early 1990 I had reported to my then treating psychiatrist (Dr. Palombo) that I had had a dream, sexual in nature, that alluded to Marjorie Levy.

I continue to believe that in September or October 1990 my female supervisor (Robertson), who was handing documents to me, pulled the documents back towards herself in such a way that, as I was reaching for them, I touched her breasts, see Brief of Appellee District of Columbia at 11, and that the supervisor's conduct was intentionally sexual in nature. The documents in question concerned trademark litigation involving the client National Football League, a client represented by Tanenbaum. The incident occurred a day or two before I was scheduled to visit my sister and her family in New Jersey. I formed the belief at that time, and continue to believe, that Robertson intended that the transaction serve as an ego-bolstering maneuver, overdetermined in nature and consistent with certain predicate thinking. I believe that the content of the documents Robertson handed to me (relating to the "masculine" sport of football) was insidiously related to her act of having me touch her breast. I believe that Robertson was trying to bolster my sense of masculinity so that I would gain the assurance to make frank comments to my family about my perceptions of coworkers, without fear of reprisal; or, perhaps, take more days off from work than I had originally requested. In terms of predicate thinking I applied the following formula: football = touching female breast = masculinity = absence of castration fears = ability to talk frankly without fear of reprisal or job termination = engage in other risky behavior that might endanger job security (such as taking time off from work). Contrariwise, we have the following formulation: homosexuality = castration fears = job insecurity = fear of job termination = strict adherence to rules (cf. Orthodox Jews) out of fear of being seen and punished = fear of taking risks. Robertson was later found to have made a racially-inappropriate statement about a minority person, and was alleged to have colluded with another supervisor in the discriminatory termination of a black employee. McNeil v. Akin, Gump, Strauss, Hauer & Feld, no. 93-0477 (D.D.C., Nov. 29, 1993). Robertson reportedly told her employees, in the period immediately following my job termination, that she was afraid I might return to the firm’s premises to kill her. 1/

I continue to believe that some time in 1990, while I was riding alone in an elevator with a firm partner (David Eisenstadt), the attorney began to pace back and forth and whistle while glancing at me in an intentionally hostile and intimidating manner. See Brief of Appellee District of Columbia at 11. The partner was married to the firm's attorney recruitment administrator, Nina Eisenstein, who worked for hiring partner, Dennis Race, the individual who terminated my employment.

I continue to believe that in March 1991 an (unidentified) coworker invidiously inserted a letter opener, blade first, into a stack of documents located on my desk. The materials were part of a document production task that was supervised by litigation support employee, Lutheria Harrison; the document production task involved a client (LL&E) that was represented by Tanenbaum. I believe the letter opener was intentionally positioned to give the impression of a symbolic stabbing in order to provoke a paranoid response from me. See Brief of Appellee District of Columbia at 11. Some time during the same week in March 1991 someone had scrawled the phrase "WHITE TRASH" on a piece of paper that had been left on my desk; the piece of paper was a computer printout relating to work for the client LL&E. I believe that the incident was calculated to prompt me to speculate openly that it was a black employee who was harassing me. The litigation support administrator (Robertson) later in 1991 facilitated Harrison's promotion to the legal assistant program, which was supervised by Tanenbaum's former wife, Sinnott; I was terminated in October 1991, despite an exemplary performance record, days after I requested a like promotion and filed a discrimination charge against Robertson: a charge that was dismissed by firm managers as a product of my paranoia.

1/ cf. Max Horkheimer and Theodor Adorno, Dialectic of Enlightenment (New York: Seabury Press, 1972, orig. 1944), p. 192, quoted in Elisabeth Young-Bruehl, The Anatomy of Prejudices (Cambridge: Harvard University Press, 1996), p. 59.

The psychoanalytic theory of morbid projection views it as consisting of the transference of socially taboo impulses from the subject to the object. Under the pressure of the super-ego, the ego projects the aggressive wishes which originate from the id (and are so intense as to be dangerous even to the id), as evil intentions onto the outside world, and manages to work them out as abreaction onto the outside world; either in fantasy by identification with the supposed evil, or in reality by supposed self-defense. The forbidden action which is converted into aggression is generally homosexual in nature. Through fear of castration, obedience to the father is taken to the extreme in an anticipation of castration in conscious approximation to the nature of a small girl, and actual hatred of the father is suppressed. In paranoia, this hatred leads to a castration wish as a generalized urge to destruction. (italics mine).


I continue to believe that some time in April 1991, while I was seated at my desk after returning from lunch, my female supervisor (Robertson) invidiously asked a female employee who was seated nearby, "Are you wet?" I believe that the phrase could be interpreted as alluding to a state of sexual excitation. See Brief of Appellee District of Columbia at 11. Robertson was later found to have made a racially-inappropriate statement about a minority person, and was alleged to have colluded with another supervisor in the discriminatory termination of a black employee. McNeil v. Akin, Gump, Strauss, Hauer & Feld, no. 93-0477 (D.D.C., Nov. 29, 1993).

I continue to believe that on another occasion in the summer of 1991, my supervisor (Robertson), invidiously offered me a piece of chocolate, and stated to me "Here, you look like you need some chocolate." I interpreted the phrase "Here, you look like you need some chocolate" as a reference to anal intercourse. See Brief of Appellee District of Columbia at 11. Robertson was later found to have made a racially-inappropriate statement about a minority person, and was alleged to have colluded with another supervisor in the discriminatory termination of a black employee. McNeil v. Akin, Gump, Strauss, Hauer & Feld, no. 93-0477 (D.D.C., Nov. 29, 1993).

I continue to believe that in early August 1991, a coworker, Lutheria Harrison, who was positioned in a cubicle adjacent to mine, invidiously emphasized the word "July" while she spoke with a coworker about her July telephone bill. Two days later this seemingly meaningless incident assumed some small measure of significance when I 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, I heard the same employee utter the Yiddish phrase, "Oy, veh." I believe the word "July" is a homophone for the phrase "Jew Lie," and I believe that these anecdotes suggest that some of my coworkers may have had an anti-Semitic animus. See Brief of Appellee District of Columbia at 11-12. The litigation support administrator (Robertson) later in 1991 facilitated Harrison's promotion to the legal assistant program; I was terminated in October 1991, despite an exemplary performance record, days after I requested a like promotion and filed a discrimination charge against Robertson: a charge that was dismissed by firm managers as a product of my hypersensitivity to trivial goings-on in the workplace.

I continue to believe that on the afternoon of October 2, 1991 a female legal assistant (Katherine Harkness) engaged in acts of overt harassment during my meeting with her in her private office. I was seated in front of the female employee's desk and she was positioned in back of the desk, but leaning over it, supporting her torso with her elbows. As she was reviewing my work for the client Hoechst, she gyrated her hips and rubbed her pelvic region against the desk in a sexual manner suggestive of masturbation while simultaneously expressing her work-related comments in the form of double entendres. See Brief of Appellee District of Columbia at 12. The legal assistant (Harkness) was supervised by the legal assistant administrator (Sinnott). The billing partner for this client (Hoechst) was Callet, who had represented Eastern Airlines—the same client I had worked for almost exclusively for two years (1988-1990). Callet is a graduate of The Pennsylvania State University, my college alma mater. On an occasion in mid-June 1988 Callet and I chatted in his office; Callet was curious about my background. I reviewed this incident with an EEOC investigator, Franklin Jones, at EEOC Headquarters in November 1991, a few weeks after my job termination. The EEOC investigator said that it was his opinion that this particular incident was prima facie evidence of unlawful harassment under Title VII.


CERTIFICATION OF GARY FREEDMAN

I, Gary Freedman, certify under penalty of law that the above statements accurately represent my current beliefs about my employment experience at the law firm of Akin, Gump, Strauss, Hauer & Feld. Consistent with the position of the District of Columbia Office of Corporation Counsel, see Brief of Appellee District of Columbia at 5-12, Freedman v. D.C. Department of Human Rights, D.C.C.A. no. 96-CV-961, I affirm that the above statements are based on my genuine beliefs and are not a self-serving fabrication.

I understand that this statement, which affirms my continued adherence to a body of beliefs that were previously offered by the District of Columbia Office of Corporation Counsel to the District of Columbia Court of Appeals as evidence suggestive of a psychiatric "disorder," might impair my ability to serve on a jury, obtain employment, or impair the exercise of other rights and liberties protected by law.




__________________ ____________
GARY FREEDMAN DATE






CERTIFICATION OF THE CORPORATION COUNSEL

I, Charles L. Reischel, Esq., Deputy Corporation Counsel for the District of Columbia, certify that I have read the above statement.

The Government of the District of Columbia hereby waives any objection to the execution by the Rehabilitation Services Administration of a written statement certifying that, notwithstanding the position of the Corporation Counsel in Freedman v. Dept. of Human Rights, D.C.C.A. no. 96-CV-961, and the memorandum opinion and judgment of the District of Columbia Court of Appeals in the said matter, Mr. Freedman's allegations concerning his employment experience at the law firm of Akin, Gump, Strauss, Hauer & Feld are consistent with a recognized form of very subtle job harassment based on the creation of an offensive, hostile, or intimidating work environment. See, e.g., Eide v. Kelsey-Hayes Co., 397 N.W.2d 532, 538 (Mich. App. 1986).

[NOT SUBMITTED TO REISCHEL]

_____________________________ _______________
CHARLES L. REISCHEL, ESQ. DATE

Deputy Corporation Counsel
Appellate Division
Office of the Corporation Counsel
441 Fourth Street, N.W., 6th Floor South
Washington, DC 20001
(202) 727-6252

LETTER OF RECOMMENDATION

Dear Sir:

I have been requested to reduce to writing my perception of Gary Freedman in his capacity as an employee of this law firm and as a potential member of the legal profession.

Having spent my first year as a member of the legal profession as an Assistant Attorney General for the Commonwealth of Pennsylvania, I have devoted the following nine years to the private practice of law exclusively in the area of labor relations and jointly-administered employee benefit plans. Additionally, I have authored numerous articles dealing with my areas of specialty that have appeared in national legal publications and taught labor law at Pennsylvania State University, the University of Pennsylvania, Villanova University and Temple University School of Law. Thus, I believe my experience as both a member of the profession and in academe places me in a unique position from which to accurately and fairly appraise Mr. Freedman's abilities.

Mr. Freedman has been employed since June, 1981 in the capacity of a law clerk in the firm of Sagot and Jennings of which I am a partner. During this time, he has been assigned research and drafting tasks by myself as well as several other attorneys in the firm. Without exception, he has completed all assigned projects in a thoroughly professional and conscientious manner.

From my own observations as well as those of the other attorneys for whom he has worked, it is clear that Gary possesses a highly-refined ability to analyze and research complex factual and legal issues and to thereafter reduce his findings to a clear and concise legal memoranda. On several occasions Gary has completed complex research projects in a timely and competent fashion that were assigned on reasonably short notice and that dealt with a multitude of complicated legal principles.

Not only does Gary possess the innate intelligence and training to perform exceedingly well in all assigned tasks, but also -- and perhaps of equal importance -- his work attitude and diligence complement his ability. He has consistently demonstrated the spirit of cooperation in an easy manner under stress that endear him to all within this firm.

In view of the above, I readily and without qualification state that Gary would unquestionably be an asset in any area of the law. Additionally I am more than willing to personally discuss my experience with and perception of Gary in detail if anyone should so desire.

Very truly yours,


THOMAS W. JENNINGS

MY SOCIAL SECURITY DISABILITY CLAIM

June 14, 1993
3801 Connecticut Ave., NW
Washington, DC 20008

Paul G. Yessler, MD
2501 Calvert Street, NW
Suite 101
Washington, DC 20008

RE: Social Security Disability Psychiatric Evaluation
[social security number redacted]

Dear Dr. Yessler:

Enclosed with respect to the above-referenced matter is a collection of letters I wrote and sent (by mail or fax) to my sister after my job termination on October 29, 1991 and before the filing of a disability claim with the Social Security Administration. Most of the letters were in fact written and sent in the year 1992.

I wrote the letters under the influence of my belief that my sister was in communication with my former employer, Akin Gump, and that my sister, upon receipt of the letters, would transmit the letters by fax communication back to managers of Akin Gump.

Both the writing and sending of the letters together with the content of the letters establish the persistence of seemingly paranoid ideation throughout the period beginning October 29, 1991. The letters deal, among other issues, with my concerns regarding harassment by Akin Gump co-workers; harassing (and anti-Semitic) telephone calls I received during 1991 and 1992; my belief that various of my treating psychiatrists were in communication with my former employer; the belief that librarians at the Cleveland Park Public Library (referred to as "the Club") harassed me; my belief that a clerk at a Giant Supermarket in my neighborhood (Adam) harassed me concerning my friendship with Craig Dye; my belief that a specialist at the Brookings Institution (Stephen Hess) was in communication with my former employer; the belief that it was not a mere accident that my former supervisor, Christine Robertson, had me touch her breasts, etc.

Please forward these materials to:

Ms. Fay Peterson
District of Columbia
Rehabilitation Services Administration
Disability Determination Division
P.O. Box 37608
Washington, DC 20013

If you have any questions, you may contact me at (202) 362-7064 (or leave messages at 202 363-3800). Might I suggest a follow-up evaluation consult?

You may contact my sister, Mrs. Estelle Jacobson, at (609) 727-3295.

Thank you very much.


Sincerely ,


Gary Freedman



[Note 5/10/04: The above cover letter transmitted a document production of approximately 185 pages. The document production is presumably on file at the Social Security Administration. The produced documents were presumably a significant factor in Social Security's disability determination of August 1993].

STATEMENT TO THE METROPOLITAN POLICE OF THE DISTRICT OF COLUMBIA -- SEPTEMBER 8, 2006

Due to substantial and continuing concerns about my mental health and stability (including the potential for armed violence and homicide, see the sworn statements of Dennis M. Race, Esq. (202 887 4028) and court filings of the DC Corporation Counsel), placed in controversy with the MPDC by DC Branch Librarian Brian P. Brown, Mr. Brown has made my access to the DC Library contingent on my psychiatric treatment compliance. Persuasive circumstantial evidence shows that the purported concerns about my mental health and stability made by all the above parties are self-serving fabrications, see e.g., tape recordings made available to Officer J.E. Williams, Badge 1226, Second District, MPDC in April 2004.

This will advise that I saw my psychiatrist, Henry C. Barbot, MD (DC Dept. of Mental Health), yesterday September 7, 2006 and that Dr. Barbot continued his medical regimen of Effexor (300 mg/day), Geodon (80 mg/day), and Klonopin (1 mg/day). I certify that I am taking all the medications as prescribed. Dr. Barbot has not recommended any additional medications.

I continue in weekly psychotherapy with Mozhdeh Roozegar, MD at St. Elizabeths Hospital.

This will also advise that I have beliefs about Brian P. Brown that have been diagnosed as paranoid, including the belief that Mr. Brown is aware of communications concerning me that took place between Vernon E. Jordan, Jr., Esq. and former President William J. Clinton as well as conversations between unknown persons affiliated with the law firm of Akin, Gump, Strauss, Hauer & Feld (my former employer) and His Holiness, the late John Paul II, Supreme Pontiff of the Roman Catholic Church. I believe that communications with the Pope concerning me took place during the Pope's visit to Israel in about the year 1999, during the Clinton Administration. I am a former employee of the law firm of Hogan & Hartson where former President Clinton's national security adviser Samuel (Sandy) Berger was a partner. Mr. Berger has at one time been under investigation for absconding with government documents. Mr. Berger is Jewish. My former treating psychologist Israella Y. Bash, Ph.D. (DC Dept. of Mental Health), a forensic psychologist who has testified at numerous legal proceedings and who is an expert in malingering, has stated her professional opinion that I have fabricated these beliefs.

I have been determined to be unsuitable for employment since October 1991 under U.S. Social Security Administration rules, and have been denied jury duty by the DC Superior Court on two occasions because of severe mental illness. Comprehensive psychological testing performed by the George Washington University Department of Psychiatry (William Fabian, Ph.D.) in May 1994 failed to yield any psychiatric diagnosis and failed to disclose any psychotic thought processes. The Wisconsin Scales of Psychosis Proneness administered by GW in March 1996 yielded a score of six nonperseverative errors, the lowest meaningful score; the results were consistent with high concept formation ability and inconsistent with the diagnosis paranoid schizophrenia. I was not on any medication at the time of testing. I have been diagnosed with paranoid schizophrenia by three psychiatrists.

I offer the MPDC access to my credit card account so that law enforcement can apprise itself of my purchases. I use a credit card for virtually all purchases; I rarely use cash. Log onto capitalone.com. User name: xxxxxxxxx and password: xxxxxxxxxxxx.

I certify under penalty of perjury that I have never purchased or owned a gun or other dangerous instrumentality or any bomb-making paraphernalia. I have never had access to a gun or other dangerous instrumentality. I have no arrest record in any jurisdiction and have never had a psychiatric admission to a hospital or mental institution. I have never been sued in a civil proceeding or served as a witness in any legal proceeding.

I neither confirm nor deny that I have been engaged since the year 1992 in a complex scheme to defraud the U.S. Social Security Administration and the DC Superior Court by making false or self-serving written and oral statements tending to show that I suffer from severe mental illness.
I welcome an investigation of this matter.