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.