1. “Later Claimant was employed as a full-time legal assistant (“paralegal”) to manage massive amounts of documents for a major client (See Attachment C). Shortly thereafter, the client filed for bankruptcy protection and eventually the legal work diminished.”

FALSE

The major client on which I was assigned, Eastern Airlines, filed for bankruptcy protection on March 9, 1989. The employer admits (Response to Particulars at Paragraph 1) that I was hired as a full-time employee with benefits five months later on August 1, 1989, when, according to the employer “the legal work diminished.”

2. “In an attempt to find comparable work for the Claimant, a decision was made to transfer him to the Litigation Support Department.”

FALSE

I was not transferred to the Litigation Support Department. In unrelated litigation, the employer acknowledged that a move from the paralegal program to the litigation support group constituted a demotion. See McNeil v. Akin, Gump, Strauss, Hauer & Feld, U.S.D.C.D.C. Civil Action No. 93-0477(JHG) (1993) at note 2.  The employer concealed the fact that I was demoted and not simply transferred.

3. “Although Claimant stated that he felt he was continually harassed by fellow workers, his contentions lacked substance.”

CONTRARY TO LAW

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).

4. [Claimant’s allegation that] a female co-worker stood by him swinging her hips so as to provoke him [was baseless as proof of sexual harassment.]

FALSE

The Department of Human Rights specifically found that a complete description of the incident includes the following facts:

Finding of Fact “4(i) On the afternoon of October 2, 1991 Complainant met with legal assistant Katherine Harkness in her private office on the fifth floor to review some work with Complainant had been doing under her direction. Complainant was seated in front of her desk. Ms. Harkness was in back of her desk, but leaning over it, supporting her torso with her elbows. As she was reviewing the work she proceeded in a continuous motion to gyrate her hips and rub her pelvic region against the desk in a sexually suggestive manner while simultaneously expressing her work-related comments in the form of double entendres. This lasted for about two to four minutes.”

I reviewed this incident with EEOC investigator Franklin C. Jones (Washington, D.C.) in November 1991. Mr. Jones said that said incident was prima facie evidence of harassment.

5. “Claimant also mentioned several phrases which he felt were anti-Semitic: one employee referring to a July bill with emphasis as if to mean “Jew-lie” and thereafter was heard singing “liar, liar, pants on fire”; the group’s mascot was a pig . . . which symbolized pork; and once a back employee was heard to use a Yiddish term.”

FALSE

In unrelated litigation the employer admitted that the litigation support group, where I worked, was tainted with anti-semitic invective. See McNeil v. Akin, Gump, Strauss, Hauer & Feld, U.S.D.C.D.C. Civil Action No. 93-0477 (1993) (one employee in the litigation support group called another employee a “Jewish bitch.”).

6. “When asked whether these or any of the incidents he mentioned had a direct impact on him or his employment with Respondent, Claimant answered that they did not.”

CONTRARY TO LAW

In the case of harassment based on a hostile work environment, the material issue is not the severity or effect of individual acts of harassment, but the pervasiveness of the harassment and the cumulative effect of hostile and intimidating behaviors. Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. 1991).

“[A discrimination] analysis cannot carve the work environment into a series of discrete incidents and measure the harm adhering in each episode. Rather a holistic perspective is necessary, keeping in mind that each successive episode has its predecessors, that the impact of the separate incidents may accumulate, and that the work environment created thereby may exceed the sum of the individual episodes. ‘A play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a discrimination analysis must concentrate not on individual incidents but on the overall scenario.’ Andrews, 895 F.2d at 1484. It follows naturally from this proposition that the environment viewed as a whole may satisfy the legal definition of an abusive working environment although no single episode crosses the Title VII threshold.” Robinson, 760 F. Supp. at 1524.

7. “Claimant was uncomfortable communicating with his peers.”

FALSE

The employer admitted that I had supervisory skills and that during a six-month period in 1989 I inspired my coworkers.

“Gary 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 Gary’s own sense of commitment to the case.” [Ability to work with others:] Above average.  Constance Brown, November 6, 1989.

8. “[Claimant] required work that ensured total isolation.”

FALSE

During the period March 1989 through October 1989 I shared office space with two employees. I did not complain about this arrangement.

During the period October 1989 to April 1991 I shared a large office space with numerous employees. I did not complain about this arrangement.

During the period April 1991to October 1991 I worked in the litigation support suite. I requested private office space on one occasion only, October 23-24, 1991. During this time period two employees in litigation support (Lutheria Harrison and Sherry Ann Patrick) requested and were granted a change in office assignment. Moreover, the employer admitted in unrelated litigation that the litigation support suite was rife with unprofessional behavior,  including abuse of telephone privileges, insubordination, and antisemitic invective. See McNeil v. Akin, Gump, Strauss, Hauer & Feld, U.S.D.C.D.C. Civil Action No. 93-0477 (1993).

9. “During the investigation of his concerns, it was also brought out that his behavior had been disruptive, with occasional violent outbursts, and frightening to co-workers.”

FALSE

There is no contemporaneous documentation to support this allegation. My personnel file contains no record of such behavior.  My performance evaluations rated my ability to work with others at least average or above-average.

10. “Because of the emotional and psychological nature of Mr. Freedman’s complaints and those lodged against him, Messrs. Lassman and Race also sought professional guidance from two outside consultants: (1) a representation from the Employee Assistance Program; and (2) a practicing psychiatrist.”

UNSUPPORTED

The psychiatrist, Gertrude R. Ticho later denied speaking with anyone at Akin Gump. The EAP has no record of any contacts with Akin Gump and termed the employer’s allegation as sounding “fabricated” since it violated the EAP’s established business practice.

EMPLOYER’S TORTIOUS CONDUCT

Under the American Psychiatric Association’s so-called Goldwater Rule a psychiatrist may not offer a professional opinion to a third party about someone she has not seen in private consultation and without the individual’s written consent. The employer’s attorney managers either knew or should have known about this provision. Cf. U.S. v. Moore, 931 F.2d 245 (1991) (Akin Gump’s “very able counsel” are presumed to know the law). The firm’s pleadings attributing mental illness to me on the basis of an unethical psychiatric opinion constitutes defamation. See Goldwater v. Ginzburg, 414 F.2d 324 (1969).
11. “He . . . could not function in a group setting (he could not work with or in close proximity to other legal assistants or litigation support personnel).”

FALSE

During the period March 1989 through October 1989 I shared office space with two employees. I did not complain about this arrangement.

During the period October 1989 to April 1991 I shared a large office space with numerous employees. I did not complain about this arrangement.

During the period April 1991to October 1991 I worked in the litigation support suite. I requested private office space on one occasion only, October 23-24, 1991. During this time period two employees in litigation support (Lutheria Harrison and Sherry Ann Patrick) requested and were granted a change in office assignment.  See McNeil v. Akin, Gump, Strauss, Hauer & Feld, U.S.D.C.D.C. Civil Action No. 930477 (JHG) (1993) at note 2.  Moreover, he employer admitted in unrelated litigation that the litigation support suite was rife with unprofessional behavior, including insubordination, abuse of telephone privileges and antisemitic invective. See McNeil v. Akin, Gump, Strauss, Hauer & Feld, U.S.D.C.D.C. Civil Action No. 93-0477 (1993).

12. “When terminated, he was told that his actual work product was not a problem.”

FALSE

This is a deliberate lie.  At the termination meeting I was told that my work was subpar and that my work performance was an issue in the termination decision.

I made the following admission to the U.S. Social Security Administration in June 1993 in a document submission that supported my claim:

“October 30, 1991 — Around 9:00 AM I telephoned Dennis Race at the office and asked him if the firm would object to a claim for unemployment insurance. Mr. Race said that the firm would not object, as long as I didn’t put down anything that embarrassed the firm. Noting that the previous day, Mr. Race had said that one of the reasons for my termination was that I ignored people’s corrections, I directed Mr. Race’s attention to my job evaluation dated November 1989 that expressly stated that I “catered to individual needs.” Mr. Race asked me if J.D. Neary had written that; I said, no, Constance Brown. Mr. Race politely explained that the problems with my work arose after that job evaluation had been written, which apparently in Mr. Race’s mind, made that job evaluation irrelevant. The telephone call was cordial. I was somewhat agitated since I hadn’t slept the night before. [9/25/92]

13. During his transition from a legal assistant position (paralegal) to his work with the litigation support department [March 1990], Claimant had several discussions with his direct supervisor about problems with interacting with co-workers and occasional outbursts (See Attachment 4).

FALSE

My personnel records do not support the allegation that I had any contemporaneous difficulties with coworkers or outbursts. My performance evaluations were above average or outstanding. Department of Human Rights Finding of Fact 2.  My ability to work with others was consistently rated at least average or above average.

The contemporaneous performance evaluation dated May 1990 (covering the previous six-month period) states:

Gary has picked up the basics of on-line coding with very minimal instructions. With additional experience, he should adapt better to the software techniques. Always mindful of quality control, which aids in more efficient data entry. Relentless, thriving on huge volume while maintaining a good end product. Totally independent, self-sustaining and committed to his work. Extremely solid and aiming to please. I trust Gary’s ability to meet whatever the demand with little guidance. Gary is receptive no matter what the task and takes every assignment seriously. Even at times when material has to be redone because of GPE’s. Great pressure buffer. I can be at ease knowing Gary will prevail. Gary seems to find those small mistakes which are not obvious to the average eye. Well-tuned, good analytical eye for detail. He can turn any combination of words into a statement. [AREAS IN WHICH MOST CAPABLE]: His dedication to consistency and detail, eager attitude and independent nature. [AREAS OF SIGNIFICANT IMPROVEMENT]: Working directly with the computer. [AREAS NEEDING IMPROVEMENT]: Adapting to the software environment, being aware of its characteristics and sensitivities and distinguishing those traits which are unique to each base. Of course, with time, this atmosphere will be more evident. [ABILITY TO WORK WITH OTHERS:] Average.

14. Until the filing of this Charge, the subject of Claimant’s sexual orientation was never brought up by Claimant or anyone involved directly or indirectly with Claimant’s employment. While Claimant raised concerns about sexual and religious harassment, he never stated that it was based on his sexual orientation — nor was it ever interpreted as such by anyone involved in this matter.

FALSE

This is a deliberate lie. The Department of Human rights specifically found that the subject of my sexual orientation came up at a meeting with the employer on October 23, 1991, days before the termination on October 29, 1991. See Department of Human Rights Finding of Fact no. 7.  The D.C. Court of Appeals affirmed this agency finding of fact.

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