UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________
)
DONALD G. GROSS, )
)
Plaintiff, )
) Civ. No. 07-399(EGS)
v. )
)
AKIN, GUMP, STRAUSS, HAUER, & )
FELD LLP, )
)
Defendant )
)
)
_______________________________)
MEMORANDUM OPINION
Donald G. Gross ("Gross" or "plaintiff") filed suit against
his former employer, Akin, Gump, Strauss, Hauer, & Feld, LLP
("Akin Gump" or "defendants"), alleging age discrimination under
the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §
621 et seq., and the District of Columbia Human Rights Act
("DCHRA"), D.C. Code § 2-1401.01 et seq. Gross claims that his
termination was based on Akin Gump's discrimination against him
because of his age. Akin Gump denies the charges, and after
finding evidence of alleged wrong-doing by Gross during
discovery, Akin Gump filed counterclaims against him for breach
of fiduciary duty of loyalty and tortious interference with
economic advantage. Gross counterclaimed for retaliation under
1
ADEA and DCHRA and moved for partial summary judgment on Akin
Gump's counterclaims. Akin Gump moved for summary judgment on
Gross's age discrimination and retaliation claims. After careful
consideration of the parties’ filings and applicable case law,
this Court GRANTS Akin Gump's motion for summary judgment for all
claims and DENIES Gross's cross-motion for partial summary
judgment.
I. BACKGROUND
A. Age Discrimination Claims
This Court recites the facts in the light most favorable to
the non-moving party. Hatch v. District of Columbia, 184 F.3d
846, 848 (D.C. Cir. 1999). As this case involves both a motion
and a cross-motion for summary judgment, the non-moving parties
differ for the separate motions.
In June 2003, Gross was hired as Senior Counsel in the
Washington, D.C. office of Akin Gump, a law firm. Compl. at 8.
Though several Akin Gump attorneys raised concerns about Gross's
qualifications before he was hired, Sukhan Kim, the head of the
Korea Practice Group, recommended that Akin Gump hire Gross. As
a result of the misgivings within the firm about Gross's
qualifications, Akin Gump made an atypical decision to put a
clause in Gross's offer letter which specifically stated that the
firm would review his employment situation after one year and
2
reassess the needs of the firm and the terms of his employment.
First Amended Answer and Counterclaims ("CC") at 5.
Gross was fifty years old at the time he was hired. He was
assigned to work in the International Trade Practice Group and
with Akin Gump's Korea Practice Group helping to organize and
administer the group.1 As Senior Counsel, he was told numerous
times by his superiors at the firm that he was expected to bill
2,100 hours a year. See Def. Statement of Undisputed Material
Facts ("Statement") at 22.
Gross alleges that during his interview, Kim indicated that
he was uncomfortable hiring a fifty year-old attorney. Compl. at
9-10. Gross also alleges that Kim stated, "I am concerned about
your age," and "you seem very old to be starting out in a major
law firm." Id. Gross claims that Michael Quigley, the
second-highest ranking partner in the Korea Group, was present
for these comments and did not interject, thereby condoning these
ageist remarks. In response, Gross alleges that he told Kim that
he hoped that Defendants would not take his age and experience
against him. Id. at 11.
In March 2004, Gross took a three-week absence for
minimally-invasive heart-valve surgery. Id. at 12. Gross
alleges that upon his return from surgery, Kim's demeanor towards
1
The Korea Practice Group is an informal group of attorneys who
are all assigned to various formal practice groups, but who work
on Korea matters.
3
plaintiff changed and that his work assignments changed
considerably. Gross claims that Kim avoided meeting with him or
contacting him by phone or e-mail. Gross alleges that Kim began
communicating with him only through David Park, a significantly
younger attorney in the Korea Practice Group. Id.
Gross claims that in or around April 2004, he asked Park why
Kim refused to communicate with him directly. Gross alleges that
Park explained that for cultural reasons, "Korean employers like
Kim prefer a clear superior-subordinate relationship, and that
Mr. Kim felt that Plaintiff [fifty-one] was too old to work in a
relationship in which he was subordinate to Mr. Kim [fifty-four]
as well as Mr. Quigley, who was approximately [forty-six] years
old." Id. at 13. Gross claims that Park told him that his age
was a "big problem" for Kim and that Gross's recent heart surgery
deepened Kim's concerns about Gross's age. Id. Gross alleges
that Park told him that Kim had directed Park, who is in his
thirties, to take charge of the projects headed by Gross. Id. at
14.
Gross also claims that shortly after he returned from his
surgery, Kim said to him, "we're both getting older." Id. at 16.
Gross alleges that Kim asked him when he planned to retire,
"suggesting that it was appropriate for him to be moving in that
direction." Id. at 18. Gross also claims that in July 2004, Kim
and Quigley made negative comments about Gross's age and
4
suggested that he should not be working for Akin Gump. Id. at
19. Specifically, on July 13, 2004, Gross alleges that Kim told
him that he was "too old to do the kind of work [he was] doing."
Id. at 20. Gross claims that Kim asked him his age again, and
when he said that he was fifty-one, Kim stated that he was "'very
uncomfortable' that [Gross] was 'still doing writing and
research' at his age." Id.
Gross alleges that Kim suggested to him that he should
explore other opportunities within the firm, particularly working
with the firm's public law and policy practice group. Id. at 21.
Gross claims that the only reason Kim provided for seeking his
removal from the Korea Practice Group was that Kim was
uncomfortable with Gross's age. Id. A few days after that,
Gross alleges that Quigley, who said that he completely agreed
with Kim, said that Gross was "not a good fit" with the Korea
Practice Group because he was "too old to be doing junior-level
work." Id. at 22.
Over the year Gross was employed at Akin Gump, a number of
different attorneys with whom Gross worked complained about the
quality of his work and his productivity. See Def. Mot. for
Summ. J. at 2. For example, Val Slater, the head of the
International Trade Practice Group, brought her concerns about
Gross's low billable hours to the attention of R. Bruce McLean,
Akin Gump's Chairman. McLean initiated an independent assessment
5
of Gross's productivity and performance. McLean spoke with
Quigley about Gross's failure to meet his billable hours
requirement. Id. Quigley told McLean that Gross was not a "good
fit" for the Korea Group. Former Akin Gump partner Michael Kaye
and associates David Park and Lisa Ross complained about Gross's
poor writing skills and his unsatisfactory work product. Id. at
7. A senior advisor at the Center for Strategic and
International Studies also commented that Gross's work was of a
poor quality. See id.
After conducting his independent assessment, McLean made the
decision to terminate Gross. McLean noted the two main problems
with Gross: "First of all, there was a very substantial lack of
productivity. Secondly, even with respect to the tasks that he
was asked to accomplish there were performance issues with
respect to . . . his ability to carry out those tasks."
Statement at 52. McLean testified that he made this decision
without any input from Kim. According to Akin Gump, the extent
to which Kim was involved in the decision to terminate Gross
included relaying the termination decision to him. See id. at
52-55.
On July 13, 2004, Kim informed Gross that Akin Gump was
terminating his employment effective October 1, 2004. Id. at 61.
On August 6, 2004, Gross wrote an e-mail to Kim expressing how
upset he was that he was being asked to leave the firm. CC at
6
15. Gross solicited Kim's support for a position somewhere else
in the firm, and Gross asked Kim if he would recommend him to one
of Kim's contacts outside of the firm. Id. at 17. Kim told
Gross that he would do his best.
On September 1, 2004, Gross met with Rick Burdick, the
partner who heads the Washington, D.C. office. Burdick told
Gross that he had not heard about his termination. Burdick said
that he would speak to McLean and Quigley about Gross's
termination. Id. at 25. Later, Burdick informed Gross that he
could explore opportunities in the public law and policy group,
but he would have to leave the firm if he could not find work
with another group. Gross was unable to find a position in the
public law and policy group. Id. at 26-27. Kim, however,
negotiated a one-month extension for Gross. On or about October
27, 2004, Gross alleges that Kim reiterated that Gross was being
terminated because he was "too senior" and "not a good fit." Id.
at 28. Akin Gump terminated Gross's employment on October 31,
2004.
In his deposition, Gross admitted that he never complained
to anyone at Akin Gump about any alleged age discrimination at
Akin Gump. See id. at 74. There is nothing on the record that
indicates that he complained to anyone outside of Akin Gump
either. He waited six months after his termination to file a
charge with the Equal Employment Opportunity Commission ("EEOC")
7
in April 2005.
B. Breach of Fiduciary Duty and Tortious Interference
Claims
During the discovery phase of this litigation, Akin Gump
uncovered evidence of an alleged breach of fiduciary duty and
tortious interference with economic advantage by Gross. See CC
at 24-25. The bases for Akin Gump's allegations were only
uncovered in response to discovery requests from Gross in May and
June 2007. Id. at 25. Prior to leaving the firm, Gross had been
working to help persuade a prospective client ("Prospective
Client") to retain Akin Gump and sign a proposed engagement
letter which Gross had drafted and negotiated with the help of
others at the firm. Id. at 10. Gross and others at the firm had
done significant work in anticipation of certain exclusive rights
to perform services for Prospective Client. Id.
On July 25, 2004, Gross conveyed reservations to Prospective
Client about retaining Akin Gump. Gross wrote: "Before you
commit yourself to a partnership with Akin Gump, I want to make
sure that the law firm is a hundred percent behind your project."
Id. at 11. On July 29, 2004, Gross encouraged Prospective Client
not to sign a retainer with Akin Gump. Specifically, Gross
wrote: "For the moment, I think you should delay signing the
engagement letter. The law firm will be unhappy with this
recommendation, but I can't in good conscience ask you to rely
exclusively on Akin Gump until I see actions matching words."
8
Id. at 12. The Prospective Client did not sign an engagement
letter with Akin Gump.
Gross also made numerous disparaging comments about Akin
Gump to Prospective Client, who was an advisor to a company
("Company X") that Akin Gump had been working with to retain
business. He sent the following messages in separate e-mails to
Prospective Client and Company X:
If [Company X] thinks it needs Washington
representation, it should stick with its
current law firm which has recently merged
with a top D.C. firm.
Sukhan [Kim] said he thought [CEO of Company
X] might explore retaining Akin Gump to help
make a deal with [Company Y.] This didn't
make sense to me at the time, and still
doesn't, because Sukhan is so close to
[Company Y] and a couple of other Korean
business groups that [CEO of Company X] could
not possibly trust him to serve as an "honest
broker." Sukhan has never represented an
American company doing business in Korea, so
far as I know, and is a highly specialized
trade lawyer whose practice consists of
representing Korean companies in the United
States.
Moreover, Sukhan plans to retire soon so I
can't imagine he wants to spend his own time
helping [Company X].
I didn't know Jaemin [Park] was involved in
this, until you mentioned she had a meeting
with [CEO of Company X] in Seoul. Her help
is even more questionable. . . . She claims
to have Blue House connections, but except
for knowing Hun-jai Lee through her family,
she exaggerates her influence.
If [the CEO of Company X] wants to get in
touch with some Korean business groups, there
9
are other ways to do it.
Def. Mot. at 26. Gross admits that he sent the e-mails quoted
above. See Pl. Answer to Def. Counterclaims 11, 12, and 17.
C. Procedural History
Gross filed a charge of discrimination with the EEOC on
April 29, 2005, alleging age discrimination under the ADEA and
the DCHRA. On February 26, 2007, Gross filed his Complaint in
this Court repeating the allegations in the EEOC charge. Akin
Gump filed an Answer denying the allegations, and the parties
commenced discovery. On June 25, 2007, Akin Gump filed a motion
to amend its Answer to add an affirmative defense of "after
acquired evidence" based on e-mails it discovered in responding
to Gross's document request. Akin Gump then added counterclaims
for breach of fiduciary duty and tortious interference with
economic relations based on the newly discovered evidence. In
response, Gross amended his Complaint to add a retaliation claim
based on Akin Gump's counterclaims.
This Court granted both Motions to Amend on September 10,
2007. Akin Gump filed a Motion for Summary Judgment on all
claims on November 2, 2007. Gross filed an opposition to Akin
Gump's Motion for Summary Judgment on December 11, 2007, and a
Motion for Summary Judgment on Akin Gump's counterclaims on
January 22, 2008.
10
II. Standard of Review
Summary judgment is appropriate when the pleadings on file,
together with any affidavits, depositions, interrogatories, and
admissions show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c); Dunaway v. Int'l Bhd. of
Teamsters, 310 F.3d 758, 761 (D.C. Cir. 2002). A dispute of fact
is genuine "'if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.'" Steele v. Schafer,
535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). Facts are material if
they "'might affect the outcome of the suit under the governing
law.'" Id. (quoting Anderson, 477 U.S. at 248).
The party seeking summary judgment bears the initial burden
of demonstrating an absence of genuine issues of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Tao v. Freeh,
27 F.3d 635, 638 (D.C. Cir. 1994). "When a motion for summary
judgment is properly made and supported, [however,] an opposing
party may not rely merely on allegations or denials in its own
pleading; rather, its response must . . . set out specific facts
showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2);
see also Celotex, 477 U.S. at 324. "'[A] mere unsubstantiated
allegation . . . creates no genuine issue of fact and will not
withstand summary judgment.'" Ginger v. District of Columbia,
11
527 F.3d 1340, 1347 (D.C. Cir. 2008) (quoting Harding v. Gray, 9
F.3d 150, 154 (D.C. Cir. 1993)) (alterations in original).
"Accepting . . . conclusory allegations as true . . . would
defeat the central purpose of the summary judgment device, which
is to weed out those cases insufficiently meritorious to warrant
the expense of a jury trial." Greene v. Dalton, 164 F.3d 671,
675 (D.C. Cir. 1999).
When considering a motion for summary judgment, the Court
draws all reasonable inferences in favor of the non-moving party.
See Keyes v. District of Columbia, 372 F.3d 434, 436 (D.C. Cir.
2004). "'As employers rarely maintain records directly
evidencing discrimination, an added measure of rigor or caution
is appropriate in applying this standard to motions for summary
judgment in employment discrimination cases.'" Brownfield v.
Bair, 541 F. Supp. 2d 35, 41 (D.D.C. 2008) (quoting Woodruff v.
Peters, 482 F.3d 521, 526 (D.C. Cir. 2007)).
III. DISCUSSION
A. Gross's Age Discrimination Claims
Gross alleges that he was terminated by Akin Gump because of
his age in violation of the ADEA and the DCHRA. McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), outlines the correct
analytical approach through which this Court must review
plaintiff's claims. Employee allegations of discrimination
12
trigger this familiar McDonnell Douglass burden-shifting
framework in federal courts. See Stella v. Mineta, 284 F.3d 135,
144 (D.C. Cir. 2002). In the absence of direct evidence of
discrimination, the courts use this framework to determine
whether an employee-plaintiff has a colorable claim against his
or her employer. Claims under the DCHRA are also analyzed under
the McDonnell Douglass framework. See Arthur Young & Co. v.
Sutherland, 631 A.2d 354, 361-62 (D.C. 1993); Gleklen v.
Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1367 (D.C.
Cir. 2000). Given this congruence, any DCHRA claim necessarily
fails if a plaintiff's federal claims cannot survive. A separate
analysis under D.C. law, therefore, is unnecessary.
According to the McDonnell Douglass framework, the plaintiff
has the initial burden of establishing a prima facie case of
discrimination by a preponderance of the evidence. See McDonnell
Douglas, 411 U.S. at 802; Stella, 284 F.3d at 144. If the
plaintiff succeeds in making out a prima facie case, the burden
shifts to the employer to articulate a legitimate,
non-discriminatory reason for its actions. Stella, 284 F.3d at
144 (citing McDonnell Douglas, 411 U.S. at 802). If the employer
articulates a non-discriminatory reason for the adverse
employment action, the burden then shifts back to the plaintiff,
who must demonstrate that the employer's stated reason was merely
pretext and that the true reason was discriminatory. Id. (citing
13
McDonnell Douglas, 411 U.S. at 802). If the plaintiff cannot
demonstrate pretext, the employee's claims necessarily fail.
To make out a prima facie case of age discrimination, Gross
must demonstrate that he (1) "is a member of a protected class;"
(2) "suffered an adverse employment action; and (3) the
unfavorable action gives rise to an inference of discrimination."
Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 850 (D.C. Cir.
2006) (citations omitted), cert. denied, 127 S. Ct. 1140 (2007).
The parties agree that Gross is a member of a protected
class and that he suffered an adverse employment action. Akin
Gump disputes whether or not the unfavorable action gives rise to
an inference of discrimination. Accepting the pleadings as true,
however, as the Court is required to do here, defendant's alleged
comments that Gross was "too old" do indeed give rise to an
inference of discrimination. "'[T]he burden of establishing a
prima facie case . . . is not onerous.'" Wiley v. Glassman, 511
F.3d 151, 155-56 (D.C. Cir. 2007) (quoting Tex. Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981)) (second alterationa
in original). Gross's allegations satisfy the requirements for a
prima facie case of age discrimination. The burden then shifts
to Akin Gump to demonstrate a legitimate, non-discriminatory
reason for terminating Gross. See McDonnell Douglas, 411 U.S. at
802.
Akin Gump submitted evidence in the record which
14
overwhelmingly demonstrates that Gross was terminated because he
failed to meet the terms of his contract. Numerous lawyers and
partners at Akin Gump complained about Gross's poor work product.
Further, Gross was not able to bill the hours he was expected to
bill as Senior Counsel; he sent himself e-mails acknowledging
this shortcoming. See Statement at 48. Simply put, Gross was
not able to adequately perform the essential functions for which
he was hired. The evidence in the record demonstrates that Akin
Gump had a legitimate, non-discriminatory reason for terminating
him. Gross's offer letter provided clear notice that he was
hired on a probationary period and that if he did not adequately
perform his duties, he would be terminated.
Furthermore, the D.C. Circuit has repeatedly upheld grants
of summary judgment in discrimination cases where the
decision-maker completed an independent assessment of the
relevant facts and made an independent decision to terminate an
employee. See Vickers v. Powell, 493 F.3d 186, 195-96 (D.C. Cir.
2007); Hall v. Giant Food, Inc., 175 F.3d 1074, 1079 (D.C. Cir.
1999); see also Blackman v. Visiting Nurses Ass'n, 694 A.2d 865,
870 (D.C. 1997). Gross makes no allegations of ageism against
McLean. See Thompson v. Coca-Cola Co., 522 F.3d 168, 178 (1st
Cir. 2008) ("'Actionable discrimination cannot exist in a vacuum.
Rather the discriminatory intent of which a plaintiff complains
must be traceable to the person or persons who made the decision
15
to fire him.'" (quoting Bennett v. Saint-Gobain Corp., 507 F.3d
23, 31 (1st Cir. 2007))). "Statements made by those who are not
involved in the decisional process 'normally are insufficient,
standing alone, to establish either pretext or the requisite
discriminatory animus.'" Bennett, 507 F.3d at 31 (quoting
Velázquez-Fernández v. NCE Foods, Inc., 476 F.3d 6, 11-12 (1st
Cir. 2007)). There is no evidence in the record that contradicts
McLean's insistence that he conducted an independent assessment
of Gross and that the decision to terminate Gross's employment
was made without input from Kim. McLean testified that he
decided to terminate Gross "because there were serious
performance issues." Def. Mot. at 18. The record supports this
determination.
There is also no evidence that Kim recommended to Quigley
that Gross's employment be terminated. If anything, it is clear
that Kim went out of his way to attempt to assist Gross after the
decision was made to terminate him. Kim encouraged him to look
for work in another group at the firm, told Gross that he would
see what he could do about finding Gross employment with Akin
Gump clients, and secured an additional month of employment for
Gross at the firm. All the while, Gross sent e-mails to Kim
thanking him for assistance.
Since Akin Gump has provided a legitimate non-discriminatory
reason for terminating Gross's employment, the burden shifts back
16
to Gross to demonstrate a pretext for his termination. See
McDonnell Douglas, 411 U.S. at 802. When evaluating allegations
of pretext, D.C. Circuit case law is clear: this Court may not
"second-guess an employer's personnel decision absent
demonstrably discriminatory motive." Milton v. Weinberger, 696
F.2d 94, 100 (D.C. Cir. 1982). "Once the employer has
articulated a non-discriminatory explanation for its action, . .
. the issue is not 'the correctness or desirability of [the]
reasons offered . . . [but] whether the employer honestly
believes in the reasons it offers." Fischbach v. D.C. Dep't of
Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (quoting McCoy v. WGN
Cont'l Broad. Co., 957 F.2d 368, 373 (7th Cir. 1992)) (first
alteration added). The evidence on the record suggests that
McLean in fact believed that Gross was not performing as
expected. There is an abundance of evidence, furthermore,
demonstrating that Gross was not meeting the expectations that
were set for him when he was hired by defendants. Gross has not
been able to demonstrate that his termination was based on
pretext, and he "cannot establish pretext simply based on [his]
own subjective assessment of [his] own performance, for
'plaintiff's perception of himself, and of his work performance,
is not relevant. It is the perception of the decisionmaker which
is relevant." Waterhouse v. District of Columbia, 124 F. Supp.
2d 1, 7 (D.D.C. 2000) (quoting Smith v. Chamber of Commerce of
17
the U.S., 645 F. Supp. 604, 608 (D.D.C. 1986)) (original
alterations omitted and alterations added). Gross's claims fail,
and Defendant's Motion for Summary Judgment on the age
discrimination claims is GRANTED.
B. Akin Gump's Counterclaims Alleging Breach of
Fiduciary Duty and Tortious Interference
Akin Gump argues that Gross's e-mails to Prospective Client
and Company X breached his fiduciary duty with the firm and
tortiously interfered with economic advantage. Gross argues that
Akin Gump fails to demonstrate the requisite intent necessary to
make out a claim for tortious interference. The Court is not
persuaded by Gross's argument.
a. Breach of Fiduciary Duty
As an employee, Gross owed "’an undivided and unselfish
loyalty’" to Akin Gump "such that 'there shall be no conflict
between duty and self interest.'" PM Servs. Co. v. Odoi Assoc.,
2006 WL 20382, at *27 (D.D.C. Jan. 4, 2006) (quoting Mercer Mgmt.
Consulting v. Wilde, 920 F. Supp 219, 233 (D.D.C. 1996)). Unless
otherwise agreed, an agent is subject to a duty to his principal
to act solely for the benefit of the principal in all matters
concerned with his agency. See id. (quoting Restatement (Second)
of Agency § 387). Since Gross does not dispute that he sent
e-mails to Prospective Client and Company X which depicted Akin
Gump in a negative light, a reasonable jury could find that he
18
breached the fiduciary duty he owed to Akin Gump while under
their employ. Gross's Motion for Summary Judgment is therefore
DENIED.
b. Tortious Interference
To make out a claim of tortious interference with
prospective economic advantage, a party must prove "(1) the
existence of a valid business relationship or expectancy, (2)
knowledge of the relationship or expectancy on the part of the
interferer, (3) intentional interference inducing or causing a
breach [or] termination of the relationship or expectancy, and
(4) resultant damage." Bennett Entm't, Inc. v. Domino's Pizza,
Inc., 45 F.3d 493, 499 (D.C. Cir. 1995) (citation omitted). The
evidence in the record clearly demonstrates that Akin Gump meets
the threshold showings for a claim of tortious interference with
prospective economic advantage.
By Gross's own admission, he had been working on securing a
contract with Prospective Client for Akin Gump. It is fair to
say, then, that Akin Gump had a valid expectancy of a business
relationship with Prospective Client. Gross clearly knew of the
expectancy, as he was intimately involved in the relationship
with and courting of Prospective Client. Gross admits that he
sent e-mails to Prospective Client and Company X relating to Akin
Gump's possible representation. The e-mails he sent were harmful
to Akin Gump, as they specifically discouraged Prospective Client
19
from retaining Akin Gump. Indeed, Gross specifically advised
Prospective Client not to sign a retainer with Akin Gump, and he
acknowledged in the same e-mail that Akin Gump would not be happy
with his recommendation. The resulting damage is that
Prospective Client did not sign a retainer with Akin Gump. Gross
admits all of these allegations. His attempts at explaining why
he sent the e-mails he sent are unavailing. He claims, for
example, that he felt that Kim could not ethically represent both
Company X and Company Y. See Pl. Opp. to Mot. Sum J. at 9.
Gross did not, however, express any misgivings he may have had to
anyone at Akin Gump. Gross claimed that he had a duty to
Prospective Client. In fact, his duty was to Akin Gump. See PM
Servs. Co., 2006 WL 20382, at *27. A reasonable jury could find
that he tortiously interfered with Akin Gump's and Prospective
Client's relationship. See Furash & Co. v. McClave, 130 F. Supp.
2d 48, 56 (D.D.C. 2001) ("A reasonable jury might find that [the
defendant's] alleged breach of fiduciary duty destroyed [the
plaintiff's] client relationships.") Summary judgment for Gross
is improper and the motion is DENIED.
C. Gross's Retaliation Claims
Gross asserts that Akin Gump's breach of fiduciary duty and
tortious interference claims were filed in retaliation for his
age discrimination claims. Akin Gump argues that their
20
counterclaims were filed only after the firm discovered that
Gross sent e-mails to their prospective clients disparaging the
firm. Akin Gump contends that it only discovered these e-mails
in a response to a discovery request made by Gross as part of
this litigation. Furthermore, Akin Gump argues that they could
not have retaliated against Gross because he was no longer
employed by defendants when they filed their counterclaims. This
Court agrees with Akin Gump.
To make out a prima facie case for retaliation under the
ADEA or the DCHRA, a plaintiff must demonstrate that: (1) s/he
engaged in protected activity; (2) s/he suffered adverse
employment action; and (3) there is a causal link between the
protected activity and the adverse action. Taylor v. Small, 350
F.3d 1286, 1292 (D.C. Cir. 2003).
The protected activity Gross alleges that he engaged in was
the filing of his complaint against Akin Gump. Defendants do not
contest this, and it is clear that the filing of a complaint is a
protected activity. See Fabiano v. Hopkins, 352 F.3d 447, 453
(1st Cir. 2003) ("As an initial matter, every citizen has the
right 'to petition the Government for a redress of grievances.'
U.S. Const. amend. I. The right of access to the courts is an
established aspect of this right." (citing Bill Johnson's
Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983))). Gross,
therefore, satisfies the first prong of the prima facie test.
21
The second prong, however, requires more in-depth analysis.
Gross argues that the counterclaim Akin Gump filed in this case
is an adverse employment action. Gross relies on Burlington
Northern & Santa Fe Railway. Co. v. White, 548 U.S. 53 (2006),
but that case undermines Gross's argument for two reasons. In
Burlington, the Supreme Court agreed with the D.C. Circuit and
held that "a plaintiff must show that a reasonable employee would
have found the challenged action materially adverse, 'which in
this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.'"
Id. at 68 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.
Cir. 2006)) (internal quotation marks omitted).
As a threshold matter, Gross is no longer an employee of
Akin Gump, and he was not an employee when Akin Gump filed its
counterclaims. Akin Gump only filed its counterclaims after
Gross's discovery request revealed evidence of his alleged
wrong-doing. Gross was terminated in October 2004; Akin Gump
filed its counterclaims in September 2007, nearly three years
later. For this reason alone, Gross does not fit within the
group of people Burlington seeks to protect. Furthermore,
Burlington's reasoning for protecting employees was to prevent
employers from dissuading employees from filing discrimination
charges. Id. Given that Akin Gump's counterclaim was filed
after Gross filed suit for age discrimination, there is no way
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Akin Gump's counterclaim could dissuade Gross from filing his
claim.
The D.C. Circuit has never found that the filing of a
counterclaim constitutes an adverse employment action. Moreover,
other federal courts have specifically held that counterclaims
cannot, as a matter of law, constitute an adverse employment
action. See Earl v. Electro-Coatings of Iowa, Inc., 2002 WL
32172298, at *2 (N.D. Iowa Oct. 29, 2002) (unpublished)
("Although many different post-termination actions may constitute
retaliation, this court holds that, ordinarily, a counterclaim
may not. Initially, the court notes that a counterclaim is not
to be considered an employment-related action. Only in the rare
case will conduct that occurs within the scope of litigation
amount to retaliation." (citing Steffes v. Stepan Co., 144 F.3d
1070, 1075 (7th Cir. 1998))); Beltran v. Brentwood N. Healthcare
Ctr., LLC, 426 F. Supp. 2d 827, 833-34 (N.D. Ill. 2006) ("[I]f
the mere filing of a counterclaim were sufficient to give rise to
a retaliation claim, then every defendant in an FLSA, Title VII
or ADA lawsuit who asserts a counterclaim would be subject to a
retaliation claim."). Filing a counterclaim is different from
initiating a lawsuit against a complaining employee, as "filing a
counterclaim will not chill plaintiffs from exercising and
enforcing their statutory rights because by the time the employer
files its counterclaim, plaintiffs have already made their
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charges and initiated a lawsuit." Beltran, 426 F. Supp. 2d at
834 (citing EEOC v. K&J Mgmt. Inc., 2000 WL 34248366, at *4 (N.D.
Ill. 2000) (unpublished)).
Furthermore, as a matter of law, Akin Gump was required to
file its counterclaim. Rule 13 of the Federal Rules of Civil
Procedure requires parties to file counterclaims that "arise[]
out of the transaction or occurrence that is the subject matter
of the opposing party's claim." Fed. R. Civ. P. 13(1)(A). Akin
Gump's counterclaims were compulsory under the federal rules, and
it would have waived those claims had it failed to allege them.
It is clear that Akin Gump filed its counterclaim because it
was compulsory, not in retaliation for Gross's suit. Gross has
failed to satisfy the second prong of the prima facie test, and
the Court need go no further in the analysis. Akin Gump's Motion
for Summary Judgment on this claim is GRANTED.
IV. CONCLUSION
Accordingly, defendant's Motion for Summary Judgment is
GRANTED; plaintiff's cross-motion for Summary Judgment is DENIED.
An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
March 3, 2009
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