Lawrence D. Mungin v. Katten Muchin & Zavis, A/K/A Katten Muchin Zavis & Weitzman, F/d/b/a Katten Muchin Zavis & Dombroff

131 L.Ed.2d U.S. S.Ct. Thоmpson, v. (1995); States see United (D.C.Cir.1994); United 27 F.3d Cyrus, States

(D.C.Cir.1989). are sentences below

The convictions

affirmed. ordered.

So MUNGIN, Appellee, D.

Lawrence ZAVIS, Katten &

KATTEN MUCHIN a/k/a Weitzman, Kat & Muchin Zavis f/d/b/a Dombroff, Appel Muchin Zavis &

ten

lant.

No. 96-7152. Appeals, Court

United States of Columbia Circuit.

District April

Argued

Decided Frey, DC, Washington,

Andrew L. argued appellant. cause for With him on the briefs was Donald M. Falk.

Abbey Hairston, Baltimore, MD, G. argued appellee. cause for With her on the brief Alexander, was Koteles Spring, Silver MD. EDWARDS, Before Judge, Chief RANDOLPH, WILLIAMS and Circuit Judges.

Opinion by for the Court filed Circuit Judge RANDOLPH.

Opinion concurring part dissenting part filed Judge Chief HARRY T. EDWARDS.

RANDOLPH, Judge: Circuit July In Mark Dombroff left the law firm that bore his name —Katten Muchin Za- D.C., vis & Washington, Dombroff —the Chicago’s branch of Katten Muchin & Zavis. Principally departure, because of Dombroffs defections and terminations reduced the lawyers number of in the D.C. office from to 14. Mungin, Lawrence associate office, D.C. among lawyers who left the firm. departed He September Mungin filed a racial charge discrimination with the EEOC. The EEOC took no action on his claim. then sued and several of its current partners, asserting former violations of § VII, U.S.C. Title and the D.C. Rights Human Act. proceedings Pretrial eliminated the individual defendants from all claims and Mungin’s § narrowed 1981 claim (but not his coextensive claims under Title statute) VII and the D.C. to the firm’s failure to consider him year departure. By verdict, before his special jury Mungin, found for imposing liability on (1) the firm for race-based constructive dis- (2) charge; racially discriminatory treat- (a) ment with Mungin’s starting (b) salary, (c) salary, his 1994 his work as- (d) signments, and part- his consideration for nership. jury awarded million in $1

compensatory damages, and an additional punitive damages. million in $1.5 After the district court judgment, entered and denied judgment plenty bankruptcy” matter of that “there was as a work Katten’s motion Zavis, law, Mungin Washington, generated by v. Katten & see Muchin Sherman him- (D.D.C.1996), self, Dombroff, F.Supp. as well as ‍‌​​‌​‌‌​‌​​‌‌​‌​​​‌‌‌​​​‌​‌‌​​‌‌‌​​‌‌​​‌​​​‌​‌​‌‍and that he appeal. get filed hoping Chicago.” this from “was Id. Mungin accepted position the at at 151. the Background

I. Factual firm, contingent being on able to Katten visit Chicago firm’s home was the the graduate, Law A Harvard School headquarters of the and firm’s Finance Reor- Mungin at firms. Imme- had worked several ganization department, deрartment Katten, the en- diately an his move to he was before bankruptcy lawyers the in Powell, compassing Wash- Gold- in the D.C. office of associate joined Mungin firm stein, ington. May the Murphy.1 the Frazer & When Powell Chicago and visited on June experiencing firm difficulties 1992. began financial time, Chicago, Mungin In one of the the Mun- met two heads it froze associate salaries. At $87,000 Department, the Finance Laurie making per year. In Febru- Gold- gin was stein; head, department other ary informed firm of the Vince Ser- Mungin the Powell Mungin’s starting not available. May. gi, a was sala- plan his that In March to leave $92,000, ry negotiated he to was amount legal Mungin’s sent résumé headhunter $91,000. the firm’s Dombroff, hiring partner after initial offer who was both the in D.C. managing partner and of Katten beginning, busy, Mungin kept In the re- the résumé was the headhun- Accompanying exclusively ceiving through his work almost Mungin: only would pitching ter’s note Dombroff, and Mark Jeff Sherman with $500,- $250,000 Mungin him a to bring with serving Mungin’s supervisor as Sherman business, minority.” but “he is a book of bankruptcy Then the work started mentor. Yenne, As- Letter from Peter Keith Ross & up. February drying Sherman left (Mar. 20, Inc., sociates, to Mark Dombroff Soberman, along firm with the the Stuart 1992). only bankruptcy in other associate Katten’s in interviewed Dombroff When he with Mungin up as D.C. office. thus wound the April, Mungin said he interested was bankruptcy attorney in the D.C. office. looking and “wаs for a law work partnership about Concerned his chances because,” practice, an established with office without the work he was trained note, contrary “didn’t to headhunter’s he him, perform attorneys supervise to of’ Trial have of business his “own.” a book Chicago February Mungin traveled to Mungin to be Transcript at 147. also wanted meet more of the 1993 to members Finance following partnership considered for Reorganization department. Mungin allayed year. Mungin’s concerns. Dombroff trip in the hoped his would result he, rain- Mungin biggest He told as the referring Although to him. office more work firm, work, generated maker as did a at the Sеrgi busy was too to meet with Mun- Vince office, partner in D.C. new Jeff Sherman. Mungin attorneys gin, did meet with several possibility doing Combined with meeting department and attended a where in Chicago and Los with Katten’s offices everyone. introduced he was Angeles, busy.” Mungin “would more than be Mungin a spot, Id. On the Dombroff offered marketing intra-firm with the Chica- associate, position sixth-year annual as a with go, Angeles well as Los and Milan attor- as $91,000. policy, pay of As was firm’s keep neys, proved To unsuccessful. could be considered April busy, Sergi recommended that following year. being done Mungin handle work then offer, Chicago. accepting first-year met associate Patricia Gil- Before in. Sherman, more, part- partner closely only bankruptcy with a D.C. who worked Jeff Dombroff, billing Washington. rate ner in Sherman told with lowered trial. indicated, where otherwise the facts testimony conveyed Except those in this section are presented introductory (which II, imperfectly reflected the level of re- Plaintiffs Exhibit reprinted Ap- in Joint entrusted) sponsibility which he was pendix Sergi saw this not as a substan- hour, per per from hour. down is, $125 $185 tive description evaluation —that Mungin’s skills and weaknesses —but as a Meanwhile, coming it was time for Mun- affability. Sergi testament to his also stated gin’s performance annual review. But at thе firm, respected by Gilmore was not designated nothing time —October 1993— opinions and that her help Mungin would not happened. Mungin kept quiet, wanting to lie partnership. achieve Dombroffs evaluation accepted low while the firm nominations for position said that he “not in judge partnership. Although there was a buzz in quality work,” Larry’s but that Mun- being the office about who was considered always appeared cooperative “has partnership, partners no told willing get job to the done.” Plaintiffs Ex- they sponsor partnership. would him for HH, reprinted Appendix hibit in Joint 1993, Also in autumn firm the made its Mungin gave Sergi the names of the other compensation Mungin decisions. received an partners for whom he had worked so that bonus, $4,000. annual in the amount of His Sergi could solicit evaluations from clients salary unchanged base for 1994 remained Mungin with whom had contact. Mungin from 1993. asked the firm’s human Mungin Sergi why asked why he had resources director he had not received a not re- raise; Sergi responded ceived a him raise. Sergi. the director told to talk to that his just name give up If the firm’s him had not come failure to a raise was connection compensation or, oversight, Mungin not some sort of it with made discussions for that matter, partnership want performance the evaluation that much Sergi considerations. Mungin explanation why although more: told without of the he had not been thought 1993, firm performance sub-par, partnership his Mun- considered for he would gin thought being eligible still be following year. he risked denied a the Mungin following year. Sergi allowance, raise for also asked Mungin marketing the sched- for a 6, 1993, perquisite meeting usually uled a partners December with reserved for Sergi seeking depart- and the new co-head of to recruit Mungin the clients. never ment, David Heller. received the allowance. meeting After the quality the of assigned Mungin work to did Mungin Chicago When arrived in on De- improve. not He found doing himself still 6, Sergi there, cembеr was Heller not. was less-experienced he believed attorneys Sergi presented Mungin perfor- with the two performed. could have But on December partners mance prepared, reviews had one firm Mungin’s salary the did raise to by Dombroff, Gilmore; by the other the oth- $108,000, 1,1993. retroactive to October partners er Mungin for whom had worked had not filled out the evaluation forms. Gil- July Effective Dombroff and Gil- more’s positive evaluation was overall: more would leave the Katten firm to form

Much Larry’s firm, time is Gilmore, consumed rou- their own Dombroff & P.C. tasks, drafting tine May such as status letters Sergi Mungin called and asked Occasionally to our cliеnt. we receive a him expected what he to indo the wake of challenging assignment large from AIG departure. [a Dombroffs and Gilmore’s Mun- client], Larry accomplishes which surprised by with Sergi’s question since great very skill. AIG is a difficult client light he had assumed that in depar- of the Larry’s tures, ongoing would, efforts to coordinate course, as a matter of with potentially me have closely made trouble- more integrate him Chicago into the situation, relatively easy. some Instead, I do not practice. Sergi asked that, believe part, for the most Mungin AIG offers if moving he would consider to Kat- challenging Larry. Larry work to none- ten’s New York office. did not find accomplishes theless option the tasks for appealing AIG this because the firm had no helpful with a willingness attitude and a bankruptcy lawyers to New York. tackle unique problems pres- reject this client did not option outright. the New York Instead, ents. he asked about the firm’s severance compare employer discharge any for an ... individ- policies that he could benefits so ual, leaving or against with otherwise and drawbacks discriminate moving New York. compensation, alternative individual with terms, conditions, privileges employ- thereafter, spoke Shortly ment, of,” among protected because оther Waller, had attorney who become an Dick categories, race, “such color.” [or] individual’s Waller administrator 2000e-2(a). § 42 U.S.C. District of Columbia option additional relo- offered proscribes law' See same conduct. Chicago. Mungin option felt this cating to l-2512(a). § If the firm discrimi- D.C.Code Sergi, in attractive since whose de- was not considering nated him working partment would be Chica- depriving him of the option go, not advance that himself. On —thus opportunity to enter new contractual rela- 7, 1994, Mungin following sent elec- firm, partner tionship as with the violated message mail tronic to Waller: —it 1981(a), guarantees § which U.S.C. Unfortunately, personal constraints due persons all within United shall States possibly cannot considerations I and other right have the “to and enforce same make Chicago at to New York or this time. move Patterson See v. McLean contracts.” Credit. you have made it clear that there Because Union, 164, 2363, 185, 491 U.S. 109 S.Ct. enough work in the D.C. office to is not (1989). 2377, 105 L.Ed.2d 132 The burdens busy my alternative keep me and that persuasion production of and for claims off, laid like to is to be I would discuss § raised under 1981 under the D.C. law time to search for a appropriate amount of alleging are identical to those for claims dis- job appropriate departure and date. criminatory treatment violation of Title from Message Mail Lawrence Electronic Patterson, 186-87, VII. 491 at 109 See U.S. 1994). 7, (July Mungin to Richard Waller (42 1981); at § S.Ct. U.S.C. Ameri- Mungin arranged his severance Waller: can Univ. v. D.C. Comm’n on Human 25,1994, be terminated on and he would (D.C.1991) 416, Rights, 598 A.2d 422 through pay would receive severance October l-2512(a)(l)). (D.C.Code § 25,1994. pursue Mungin’s After the EEOC failed to ‍‌​​‌​‌‌​‌​​‌‌​‌​​​‌‌‌​​​‌​‌‌​​‌‌‌​​‌‌​​‌​​​‌​‌​‌‍Under the Title VII scheme first described 19, 1994, claim, on October the reiterat- Green, Douglas 411 Corp. McDonnell v. to to its offer transfer either ed 802, 1817, 1824, 792, 36 U.S. 93 S.Ct. York, the Chicago or New and for time first (1973), produc L.Ed.2d the 668 burdens of An- offered to transfer him to Katten’s Los employee employer. tion shift from to geles The firm made clear that it establish, by prepon plaintiff “must first a reimburse for costs in- would evidence,” prima case derance of the a facie transfer, a curred connection with and that Mary’s of racial Honor discrimination. St. “continue to be considered for sala- he would Hicks, 502, 506, v. Ctr. 509 U.S. 113 S.Ct. partnership ry increases the same (1993). 2742, 2746-47, If 125 L.Ed.2d 407 basis as other associates.” Letter from Allan succeeds, employer must employee Muchin, Partner, Managing Katten Mu- B. legitimate, non introduce evidence “some (Oct. Zavis, chin & to D. 1 Lawrence discriminatory purportedly for reason” its 1994). 19, anticipated The firm “that action, Douglas, discriminatory McDonnеll in any of the other three work available 1824, 802, 411 at 93 S.Ct. at evidence U.S. put position it “in a to offices” would consider “legally justify judgment for sufficient year.” [Mungin] within Id. Community Dep’t employer, the” Texas Mungin thought at 2. these were not bona Burdine, 255, 248, 450 101 v. U.S. Affairs offers, litigation pursued that is (1981). 1089, 1094-95, S.Ct. 67 L.Ed.2d 207 fide us. now before so, employer presumption If the does “the prima facie rebutted.” raised case is

II. Review Standard of persuasion, having “at all Id. The burden employee, then Rights of the Act times” been borne Title VII Civil of 1964 that the em- employment practice requires employee it “an show makes unlawful 1554 compared reason was not the true associates tо whom he himself.

ployer’s “proffered Adduci, Mastriani, Hicks, decision,” Neuren Meeks & reason for the Schill, 1507, (D.C.Cir.1995) 43 F.3d (quoting S.Ct. at 2747 at 509 U.S. 1095), (quoting Pierce v. Burdine, Commonwealth Ins. at 101 S.Ct. at 450 U.S. Life (6th Co., Cir.1994)); Hicks, see was,” also 509 U.S. at that race “and (1st Byrd Ronayne, Thus, the defen “[w]here at 2747. 113 S.Ct. Cir.1995). Mungin’s comparing was mistake everything that would be re dant has done associates, homegrown himself to rather than plaintiff properly if the had quired of him to lateral entries like himself. of- case, facie prima whether made out nothing fered show the firm’s reason longer really so is no relevant.” plaintiff $92,000 hiring pretextual. him at On Bd. Governors v. Ai Postal Serv. U.S. appeal, argues he that Katten “never dеmon- 711, 715, 1478, 1482, kens, 103 S.Ct. 460 U.S. policy strated such a was ever consis- (1983). 75 L.Ed.2d 403 tently systematically Supple- enforced.” tried, fully has been and the Once the case Final Appellee mental Brief of the at 17. If have satisfied their plaintiff and defendant so, expected this were we would have Mun- production, “the McDonnell burdens of gin point our attention to other associates Douglas presumptions framework —with its policy to whom this was not enforced. He Hicks, longer no relevant.” and burdens —is has not. it is Since burden of at 2749. S.Ct. We U.S. persuasion, argument without evidence question whether Mun- therefore turn to prove fails to the firm’s reason was is, persuasion met his burden —that pretextual. juror whether a reasonable could find that finding offers another reason for discriminated him on the policy pretextual: salary the firm’s “his base Merrill, Barbour v. 48 basis of his race. See caught up salary never with the levels of (D.C.Cir.1995). F.3d attorneys Supple- Caucasian in his class.” Appellee mental Final Brief of the at 17. We Mungin’s Claims of III. Discrimination fail to see what this has to do with his Mungin’s examine each of claims We will starting salary. potentially While it is evi- roughly chronological in order: first his 1992 dence of the firm’s later discrimination —dis- salary; salary; quality his 1994 the then of respect Mungin’s crimination with to 1994 assignments; partnership consider- his work salary, brings nothing for instance —it to ation; finally, discharge. his engaged bear on whether the firm in racial $92,000.2 by starting discrimination him at Starting Salary A. Hopkins, See Price Waterhouse v. 490 U.S. argument support In of his that his 228, 241, 1775, 1785-86, 109 S.Ct. 104 $92,000 salary starting discriminatorily was (1989) (noting L.Ed.2d 268 that the “critical low, Mungin every that demonstrated sixth- inquiry” is whether discrimination “was a enjoyed salary year ranging from associate factor in the decision at the $95,000 $102,000, they that were white and made”). moment it was showed, The evidence that he is black. how ever, that Katten offered to associates who Salary B. 1994 less, paying from firms are lateral hires sala Mungin’s salary, As to 1994 he not midway between the associate’s ries former $108,000 only that asserts was discriminatori salary salary pays and the Katten its current low, ly complains but he also that he had to associates. firm, says, ask for a raise. The he did not provide compensation never carried his burden of ex- him with the review plaining salary being the firm’s actual decision in his which how would have led to his sponte. problem case on race. Not “all of the was based raised sua The ‍‌​​‌​‌‌​‌​​‌‌​‌​​​‌‌‌​​​‌​‌‌​​‌‌‌​​‌‌​​‌​​​‌​‌​‌‍aspects “employment relevant of’ his situa- is that he introduced no evidence that he was ‘nearly underpaid peers. tion were of He identical’ to those” the relative his claims to event, see, up. wе as shall soon 1994 catch much, salary ognized stating in as in average base its Memorandum that the have shown salary $116,000, Opinion that to his while he “with class was 1994for the 1986 $108,000. plaintiff not does has shown and not Mungin does ultimately received salary $116,000 argue that level was figure below explain the comes not where similarly lawyers.” of that situated white why. from understand When and we Mungin, F.Supp. possi- average of all associates are salaries base discrimination, then, inferring ble basis for Washington, Chicago, in calculated —those (and seeking with Mungin’s getting) deals $116,000. arrive at Angeles and Los —we putting raise for 1994. The firm’s him the salary But includes mean this calculation salary position having of to ask for a in- $121,250, in Chicago of Angeles in Los of crease, asserts, discriminated $115,370. reprinted Exhibit Plaintiffs See him on account of race. 142^15; Ex- Appendix Defendant’s in Joint K2, Appendix Joint 228-31. reprinted hibit (and argument At oral somewhat less Washington, excluding salary in The mean briefs), clearly in argued its the Katten firm id., $108,800. Mungin’s, reprinted See light Weinberger, of Milton v. Appendix 230. unstated in Joint (D.C.Cir.1982), F.2d the fact Mun- assumption be that the firm’s D.C. as- must ultimately received his raise eliminated receive the same salaries as sociates should any potential liability for discrimination. As But he no those in other cities. offered clear, however, Milton makes noharm give jury any рroof of and he did this opinion, no-foul rule discussed rule attorneys that these Mathews, basis to conclude D.C. Day derived from 530 F.2d 1083 similarly (D.C.Cir.1976) to their curiam), were situated (per nothing “has counterparts. Angeles Los guilty is do whether a defendant discrimination, instead focuses but three his col- Mungin also states Milton, remedy.” question at 98. D.C., Jacques, leagues Dane Jonathan Furthermore, shortly after we decided Mil- Henderson, Stem, received base and John ton, rejected expressly application we $120,000. Supplemental Final salaries of cases, this, Day alleg- such as Mathews Appellee Brief of at 11. Two of these ing disparate of an individuаl treatment em- Stem, individuals, part- became Jacques ployee group employees rather of a than during and their were ners salaries through class pursuing litigation action. $120,000 accordingly. Both increased made Block, 1364, Toney See v. 705 F.2d 1368 Transcript at in Trial 891. Mun- 1994. See (D.C.Cir.1983) (Scalia, J.); see also Johnson comparable; gin’s is not he takes situation (D.C.Cir.1987). Brock, 219, 810 224 v. F.2d salary as associ- issue with his 1994 base an ground Katten is on solid more observ ate, Jacques’s salary partner. as not a base ing that other circuits have reached con $115,000; $117,- Stern’s was associate was “interlocutory it or clusion seeks: that medi 3, reprinted 000. See Plaintiffs Exhibit having decisions no immediate ate effect K2, 144; Defendant’s Appendix Joint Exhibit upon employment ... were not intended to reprinted Appendix As to in Joint proscriptions fall within of ... the direct Henderson, Mungin cites no to back evidence F.2d Page Bolger, Title VII.” 645 $120,000; up his that Henderson made claim (4th Cir.1981) (en banc); accord Dollis v. the record indicates that Henderson received (5th Cir.1995). Rubin, 777, 77 781-82 $104,000. we use these salaries— Id. When Shalala, Hayes F.Supp. But see $115,000, $117,000, Jacques’s Stern’s (D.D.C.1995); Harris v. $104,000 along with Henderson’s those cf. Forklift — Inc., 17, 22, Systems, S.Ct. 510 U.S. D.C., Ray- associates Judith two other (1993). 370-71, 126 We have L.Ed.2d (each $104,- earning ner and John Enerson however, issue, do never decided the we 000), figure at the we we arrive mentioned need to do so here. $108,800, nearly identical to the sal- earlier — ary Mungin received. proved failing that in Mungin never or a Thus, salary performance to receive a review raise Mungin’s 1994 was not dis- low, differently than him other criminatorily and the district court rec- treated earlier, year neys. Having presented associates. One Stuart Sober- no evidence to cast man, bankruptcy the white associate legitimate doubt on the firm’s nondiscrimina- office, raise, reasons, failed to receive a and had tory D.C. we conclude that no reasonable pursue the same sort of recourse juror сould find that the firm denied did. also never showed that a review on the basis of his race. give failure to him a firm’s substantive evalu- Assignments Although

ation was unusual. it C. Work was the “policy” provide firm’s formal substantive complaint next is that the firm semiannually, reviews see Katten Muchin & by providing discriminated him him § Zavis Firm (Aug. Reference Manual 2.5 unchallenging work on the basis of his 1991), “employer’s failure ‘to follow its race. Katten conceded that received alone, regulations procedures, may own work,” bankruptcy “routine and not the more support’ not be sufficient to the conclusion sophisticated work for which he was hired. explanation challengеd that its for the em- Version, Appellant, Brief for the Final at 26. ployment pretextual.” action is Fischbach v. But the firm showed that after the D.C. Corrections, Dep’t D.C. 86 F.3d bankruptcy up, office’s work causing dried (D.C.Cir.1996) Lehman, (quoting Johnson v. Sherman and depart Soberman to in Febru- (D.C.Cir.1982)). When an ary it was left with no bankrupt- other employer’s “departure prescribed from the cy lawyers except Mungin, in the D.C. office norm,” procedure” has become “the that de- bankruptcy and with little work. parture support plain- “lends no at all to the pre tells us to show employer’s tiffs that” depar- inference text, presented he evidence of Fischbach, “numеrous pretext.” ture “is a 86 F.3d at complex bankruptcy occasions where Mungin presented no evidence that originated from” Katten’s “D.C. office consistently by poli- ever abided its assigned be to other” cy. Katten “offices around The uncontroverted in the rec- evidence country.” Supplemental Final ord Brief of sporadically is that the firm at best Appellee at 22. such provided No evidence exists. substantive evaluations. The wit- Mungin only proof assign introduced put nesses—whether on the one stand Chicago ment rerouted from uniformly they D.C. to mat testified that nev- —a Katten — reviews; Chicago er regular received ter court or formal handled they partner reviews already and associate in receive amounted to no who pat more than successfully major, on the had similar back. See Trial handled a Transcript (testimony at 597 of defense wit- matter for the same Transcript client. Trial Thomas); 600-01, ness Mark (testimony id. at 735 single 808-09. This instance is Soberman); defense grossly witness Stuart id. at 799 plausible insufficient to constitute a (testimony plaintiffs witness analogous Charles discrimination claim. In an con Thomson). against this, Mungin present- text, As recently we noted that the factfinder nothing. ed suppose We “may ‘second-guess he could have of- employer’s per not an testimony fered reorganization of finance and sonnel decision demonstrably absent discrim ” attorneys who meaning- inatory Fischbach, received the sort of motive.’ 86 F.3d at 1183 Mungin ful review (quoting claims he was denied. Weinberger, Milton v. 696 F.2d at 100). But Thus, directs our attention to no such employer when an a hir makes testimony, record, “[sjhort scouring ing decision, finding we find that the em none. arguably The ployer’s witness even in pretext stated reason was a indeed Mungin’s favor was Elaine Williams. She ... employer’s the court must young was a partner who switched from Kat- among quali unfettered discretion to choose corporate ten’s department Fischbaсh, to the finance fied candidates.” 86 F.3d at 1183. reorganization department in 1990. As The same standard holds true when an em associate, by any- she was never ployer qualified reviewed decides which several em one in reorganization depart- ployees finance and particular assignment. will work on a ment, partner and as a Perhaps recognition judicial she could not recall in of the micro Chicago lawyers reviewing management ever D.C. attor- practices of business that would otherwise, presented evidence to establish circuits The other if we ruled result sophisticated bankrupt- assignments Mungin’s or lack of сhanges in that that held have ordinarily disappearance consti cy experience do not and that the duties work-related if unac decisions bankruptcy tute adverse work for which he was hired salary in by a decrease companied qualification partner- precluded him from for See, e.g., v. changes. Kocsis Multi hour Mungin’s pay, ship.3 As in the ease of (6th Cir. F.3d Mgmt., 97 Care “interlocutory we need not decide whether 1996); Bank & Trust Crady Liberty Nat’l having no immediate deeision[] or mediate (7th Cir.1993); Co., see also employment” partnership effect on —here Co., 85 Bristol-Myers Squibb Williams in that would not have resulted nomination Cir.1996). (7th An employer becoming partner ‍‌​​‌​‌‌​‌​​‌‌​‌​​​‌‌‌​​​‌​‌‌​​‌‌‌​​‌‌​​‌​​​‌​‌​‌‍within Mungin’s “fall[s]— equally qual assign work to has discretion or, proscriptions of ... Title VII” the direct not long as “the decision is employees so ified matter, § statute. 1981 or the D.C. for Burdine, 450 criteria.” upon unlawful based Page, 645 F.2d at 233. jury had at 1097. The at 101 S.Ct. U.S. attorneys Chicago thinking the for no basis contested the fact never matter identified the one who staffed are screened out from con that associates he, than or that race qualified less were round, the de at the first when sideration firm’s decision to staff a factor in the played partners partment head and/or attor bankruptcy matter with not to nominate certain department decide neys Chicago. department to the committee associates Sergi’s authority within heads. It was well Partnership Consideration D. and reor to recommend finance to decline part department ganization associates claim that the firm Next comes one in his nership. Sergi testified that no partner- him for unlawfully failed to consider Mungin for recommend department could 1993 and thus de- in the summer of ship Tran no one did. Trial partnership, so and other him of the remunerative prived himself script found brings. Mungin does partnership rewards group headed every The insurance must make bind. argue that prac of the firm’s a member tried to build еligible associate Dombroff Instead, “was own, he claims that he was left partnership. failed. tice of its but qualified to at least consid- unquestionably depart be from a partnership trying to secure pursuant to” Katten’s ered had worked exten no one ment which only eligi- that “he was the “procedures,” and absolutely sively him. offered formally evaluat- who was not ble associate a rea permitted have nothing that would Appel- Supplemental Final Brief of the ed.” firm dis jury that the to conclude sonable lee at him it failed when criminated tried to partnership. He him for consider depart- Mungin introduced evidence group headed the insurance establish that with the other confer ment heads would procedures for had certain by Dombroff to recommend departments partners their partner recommending partners. But the partnership. particular associates for by departments, ship were made decisions through sever- passed recommendations then ease, by finance Mungin’s and and com- committee al more committees —the the insur department, not reorganization heads, part- prised department all the of any evidence department. Without ance committee, the executive nership review one that chose department this committee, of di- finally the board —the discriminatorily, him —acted not to nominate being out names screened rectors —with prove a claim. Mungin failed to way. along the jury puted, assume that Mungin's and we therefore argued low billable 3. Katten also explanation. explained why for he was not considered firm’s not credit the hours subject were dis- partnership. on this The facts 1558 (D.C.Cir.1994). (These Discharge “aggravating

E. Constructive fac- things tors” are those that would force an Mungin’s ground support last Clark, 1174.) employee to leave. 665 F.2d at alleged discharge. constructive verdict is his Having rejected Mungin’s disparate all of claims the firm’s offers to transfer him He claims, any treatment we are left without York, Chicago, Angeles, or Los to New were discriminatory upon acts which fide, and that not bona he deserved a more discharge could rest constructive claim. offices, genuine offer to transfer to those And, said, Mungin as the district court ulti- and more information so that he could make mately peers, was treated better than his for an informed decision whether to move. who, unlike the four white associates after computation to the pay, With of back departure, Dombroffs were with- terminated however, the district court concluded rеlocate, opportunity out the had expectation “had no reasonable stay a chance to with the firm. there- We continued in Fatten Muehin’s jury fore conclude that the had no basis for Washington office after October 1994.” finding discharge. of constructive Mungin, F.Supp. at 156. The court based following this decision on the reasons: 1994, Fatten, July Muchin decided IV. Conclusion practice close down the insurance that had Because the evidence was insufficient “for provided plaintiff work for and a number jury a reasonable to have reached the chal- lawyers Washington of other in its lenged verdict,” judgment of the district July 1994, Between and November defec- court is reversed and the ease is remanded tions and terminations reduced the number entry judgment of a for the defendant.4 Fatten, lawyers Washington Muchin’s Merrill, Barbour v. 48 F.3d office from to 14. The firm terminated (D.C.Cir.1995); Kolstad v. American Dental Washington all five of the office associates Ass’n, (D.C.Cir.1997), 108 F.3d supported by

whose work had been Mark 28, 1997) (Nos. reh’g granted (May en banc insurance Dombroffs clients but who were 96-7047). 96-7030 & departure. left behind Dombroffs Reversed and remanded. agree Id. We with the district court that expectation had no reasonable EDWARDS, Judge, HARRY T. Chief con- employment, continued but unlike the district curring part dissenting part: court, рrevents we find that this I majority’s dissent from the reversal of any from having basis for a constructive dis- jury finding Although discrimination. charge claim. question, a close there was sufficient evi- Even without the district court’s jury dence for a reasonable to have conclud- finding, we would conclude that there nowas intentionally ed that Fatten Muchin discrimi- discharge. constructive Circuit law is clear against Mungin nated on the basis of race. “finding discharge that a of constructive de pends employer however, deliberately agree, whether the I that there was insuffi- working made conditions support finding intolerable and cient evidence of “con- Marsh, drove employee” out. discharge.” majority Clark v. structive The vast (D.C.Cir.1981) (internal 665 F.2d spent time at Fatten Muchin was omitted). citations and doing modifications Con work Mark Dombroffs and Patricia discharge requires finding structive thus of Gilmore’s clients. Dombroff Gilmore left discrimination and the existence of certain Fatten Muchin in 1994 to form their 1174; “aggravating firm, factors.” Id. at see also own and there was no record evidence Pena, Dashnaw v. 1115 to indicate that there was sufficient work in holding showing required. Our is affected this court's deci- that no such extra is See id. Center, Washington Hospital sion in case, however, Aka v. In this either failed to (D.C.Cir.1997), which dealt prima establish a сase or failed to offer facie question plaintiffs with the more than whether need to show showing evidence that Katten’s nondiscriminato- pretext rebutting employer's ty pretextual. reasons were legitimate nondiscriminatory reasons. Aka held departure sup- after their the D.C. office employment. In-

port continued

deed, jobs four lost their other associates such, Mungin. time as As

the same expectation

had no reasonable after DombrofPs and the D.C. office Gil- addition, departure.

more’s

turned down offers to move to Katten ‍‌​​‌​‌‌​‌​​‌‌​‌​​​‌‌‌​​​‌​‌‌​​‌‌‌​​‌‌​​‌​​​‌​‌​‌‍Mu- York, Chicago, Angeles

ehin’s New Los

offices, undisputed it is there was work in the

Thus, I would on the that no reverse basis jury could found that Mun-

reasonable have constructively discharged. Because compensatory punitive damages part finding, I

were based on this would damage

remand the awards the District

Court. America, Appellee,

UNITED STATES of Anthony STUDEVENT, Appellant.

Robert

No. 96-3095. Appeals,

United States Court of

District of Columbia Circuit.

Argued May

Decided

Case Details

Case Name: Lawrence D. Mungin v. Katten Muchin & Zavis, A/K/A Katten Muchin Zavis & Weitzman, F/d/b/a Katten Muchin Zavis & Dombroff

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 8, 1997

Citation: 116 F.3d 1549

Docket Number: 96-7152

Court Abbreviation: D.C. Cir.