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Gross v. Akin

March 3, 2009


The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge


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 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.


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 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.*fn1 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 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 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 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 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") 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 ...

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