When I worked in private practice, I once had a case opposite Ropes & Gray. The Ropes lawyers made a highly positive impression on me. They were very talented advocates (and they continue to be talented advocates; note the firm’s recent, high-profile victory in the defense of an in-house lawyer for a drug company).

Of course, many top firms have excellent lawyers. The Ropes attorneys were also… nice. They were polite, and genteel, and not difficult to deal with (in contrast to some of their co-counsel). They met my expectations of what lawyers from an old white-shoe firm should be like. [FN1]

In light of this overall Ropes & Gray “niceness,” it’s a bit surprising to see discrimination claims lodged against the firm. In March, we wrote about a lawsuit filed against Ropes by Patricia Martone, a former partner and noted IP litigatrix. Martone, represented by the high-powered Anne Vladeck, alleged age discrimination, sex discrimination, and retaliation.

Today we bring you news of another discrimination lawsuit brewing against the firm. The potential plaintiff has an impressive pedigree. But do his claims hold water?

John H. Ray III

The potential plaintiff is John H. Ray III. He’s a 1997 graduate of the University of Minnesota and a 2000 graduate of Harvard Law School. He’s an African-American male (like fellow HLS alums Barack Obama and Elie Mystal — good company to be in).

Proceeding pro se before the Equal Employment Opportunity Commission, Ray claimed race discrimination by Ropes, alleging that the firm failed to make him partner on account of his race, and retaliation, alleging that the firm refused to provide him with references for future employment. The EEOC rejected his discrimination claim but did find retaliation. (Initially the EEOC rejected both claims, but after Ray appealed, it changed its mind on the retaliation.)

On January 24, 2011, the EEOC informed Ray by letter of its conclusion that “[t]he evidence fails to indicate that a violation of law occurred.” The EEOC led with this point:

Not meeting the high standards for partnership would seem to be the main reason Ray wasn’t promoted, according to Ropes. But this allegation by Ropes did not help:

These facts also weren’t good for Ray:

As for the retaliation claim, here’s what the January 24 EEOC letter had to say:

You can read the full letter, accompanied by a Notice of Right to Sue, over here.

The EEOC subsequently revisited its conclusion that John Ray had not been retaliated against. On February 22, it issued a final determination, reaffirming its rejection of his discrimination claims but reversing itself on retaliation, concluding that “[t]he evidence supports a finding that Respondent retaliated against [Ray] for filing his charge with the EEOC.”

Armed with the retaliation finding, Ray has been reaching out to HLS faculty members and administrators to make his case against Ropes. We have reprinted his letter to Harvard Law School Dean Martha Minow, urging Dean Minow to bar Ropes from recruiting on campus, at the end of this post.

We reached out to both Ropes & Gray and John Ray for comment. Ray declined to comment beyond what’s contained in the documentary record. A Ropes spokesperson issued this statement on behalf of the firm:

After an 18-month investigation, the EEOC determined that Ropes & Gray denied partnership to Mr. Ray because of work that was well below our partnership standards, his fractured relationships with colleagues and allegations of inappropriate behavior with subordinates. In short, he did not perform to the high standards of quality and judgment expected of partners at our firm, and as a result we terminated his employment.

Having found we did not discriminate, the EEOC’s finding that we “retaliated” by not providing recommendation letters makes no sense and is inconsistent with the facts. We did not retaliate against Mr. Ray.

Who’s in the right? As in most cases, there is evidence on both sides. If John Ray decides to file a lawsuit against Ropes — so far the action has just been on the EEOC end — we’ll surely get more details.

For now, Ray continues to pressure the EEOC to do more. On Wednesday, May 11, he sent the EEOC another letter — cc’d to everyone under the sun, including two U.S. senators, six congressmen, and the president of the NAACP — demanding that the EEOC take enforcement action against Ropes.

It’s not clear to us what John Ray is up to these days. His Avvo profile still lists him as working at Ropes, while the Massachusetts Board of Bar Overseers has a Cambridge address but no employer information for him.

If John Ray is unemployed (or underemployed), with nothing else to do except litigate against a former employer, then Ropes has a long road ahead for itself. Pro se litigants can be like the Energizer bunny: they keep going and going and going.

UPDATE (5/16/11): John Ray has offered a rebuttal to Ropes & Gray.

[FN1] As noted, my personal experiences with Ropes & Gray lawyers have only been positive — but like any large law firm, Ropes has a few bad apples in the bunch. Earlier this week, in the wake of the Raj Rajaratnam verdict, former R&G associate Arthur Cutillo was disbarred. Cutillo previously pleaded guilty to charges related to his role in the Galleon Group insider trading scheme.

Federal Judge Acquits Ex-Glaxo Lawyer Before Defense Even Starts [NPR]
Ex-Ropes & Gray Associate Disbarred after Rajaratnam Verdict [Am Law Daily]

Earlier: Ropes & Gray Sued for Age and Sex Discrimination By Former Partner
Lawyers of the Day: Arthur Cutillo, Michael Kimelman, and Jason Goldfarb


JOHN H. RAY III — LETTER TO MARTHA MINOW

Dear Dean Minow,

I would appreciate the opportunity to discuss with you in person the request in my letter to your office of May 12, 2011, which is also attached (and, if you wish, to provide you with the evidence, the EEOC found compelling). While I believe that such severe action as to preclude an employer from campus is not warranted based merely on a civil dispute between an employer and an individual, I do believe that a refusal to abide by the determinations of the federal agency charged with enforcement of the nation’s civil rights laws is very serious.

The Equal Employment Opportunity Commission (“EEOC”) has limited enforcement capabilities and substantially relies on its perceived legitimacy to compel employers to comply with the law. Indeed, the Chair of the EEOC made clear to Congress that the enforcement activities it does take are critical to encourage employers “to comply voluntarily with the law and to resolve charges of discrimination during the Commission’s administrative charge process, and serves as a deterrent to other employers who may otherwise act in disregard of the civil rights laws,” as she stated in her Fiscal Year 2012 Congressional Budget Justification.

However, when a prominent employer — a law firm that should work to uphold the law — simply refuses to stop its misconduct in response to an EEOC determination that it is engaging in retaliation in violation of Title VII, the EEOC’s ability to enforce the law with others and any deterrence value in its efforts are dramatically compromised. It is this aspect of Ropes & Gray’s actions that warrants a significant response from the community, and the legal community especially.

Ropes & Gray has made a clear threat for two years: that it would take significant time and effort to make them stop their misconduct. Were other employers to follow Ropes & Gray’s lead, it will dramatically unravel the enforcement efforts of the EEOC and its work to compel employers to voluntarily cease violations of law. Ironically, Ropes’ use of a “civil disobedience” strategy is not to protect civil rights, but to dramatically limit the scope of long-standing and hard-fought civil rights protections, while at the same time undermining the very agency charged with enforcing them.

I do not believe this is consistent with the message that I learned while at Harvard, and not one that I think any firm should be allowed to communicate to students. It is simply unsettling that today, still, a prominent law firm does not understand that retaliating against an associate for complaining of race discrimination in violation of Title VII is wrong. And that it would refuse to stop when directed by the EEOC. I fear what such an employer would do in the future, to other students.

Please feel free to call me directly at xxx-xxx-xxxx (cell) to discuss further.

John H. Ray, III (’00)


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