Biglaw, Labor / Employment, Martha Minow, Minority Issues, Partner Issues, Racism

(Potential) Lawsuit of the Day: More From John Ray About Ropes & Gray

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On Friday, we discussed the discrimination claims made against Ropes & Gray by John H. Ray III. Ray, a 2000 graduate of Harvard Law School and an African-American man, claimed that he was discriminated against and passed over for partner on account of his race.

At the time of our prior post, Ray did not comment beyond what was in his filings before the Equal Employment Opportunity Commission (EEOC). But now Ray has contacted us with his rebuttal to Ropes, explaining that when he previously declined to comment, he “did not know that you intended to rely on a determination letter that had been rescinded and largely discredited in at least its factual description by my reconsideration requests.”

John Ray’s response is lengthy and detailed. Check it out below….

By the way, in our prior post we wondered about Ray’s employment status. He explained that he has been doing consulting work. (Of course, his search for employment probably hasn’t been helped by Ropes — one of Ray’s claims is that the firm unjustifiably withheld references.)

We asked Ray whether he has received any response to his request, directed to Dean Martha Minow, to bar Ropes from recruiting at Harvard Law School. He said he has not, at least as of now.

Regardless of the merits of his claims — which we take no position on, leaving them to the EEOC and the courts — John Ray probably faces an uphill battle in trying to bar Ropes from HLS. The ties between the two are strong and longstanding, as noted in a 2006 Boston Globe article:

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Ropes hires more Harvard graduates than any other Boston firm, according to Mark Weber, the school’s assistant dean for career services, who said Ropes has a ”great pipeline coming from Harvard” and noted there is a ”Ropes Gray Room” on campus.

Of last year’s graduating class of about 550, 17 of the 43 graduates hired by Boston firms went to Ropes & Gray, an ”extraordinary” rate, Weber said.

We’ve reprinted John Ray’s rebuttal statement below. We don’t want to get further entangled in the “he said” / “they said” game going on here, so we probably won’t have much more to say in the immediate future. But we will certainly update you if and when Ray actually files suit against Ropes & Gray. According to Ray, he plans to sue Ropes by June 10, 2011, but has until August.

JOHN H. RAY III — RESPONSE TO ROPES & GRAY’S STATEMENT

In response to Ropes & Gray’s spokesperson statement, as to the discrimination findings, while the EEOC determined there was insufficient evidence in light of Ropes’ stated reasons for its actions, there has been no opportunity for discovery and Ropes has refused to make evidence available, which has substantially prevented any real development of these issues. While Ropes is not obligated to volunteer any evidence, had it done so completely, perhaps it could legitimately claim some moral victory. Where evidence was fully available as to the retaliation claims — which Ropes also refused to make available, but had already been printed and saved — the EEOC found against Ropes & Gray. The EEOC’s decision was based on the evidence and arguments resubmitted in a January 27, 2011 reconsideration request after the initial finding. The EEOC made clear several times that it was the evidence addressed in that letter, and not merely the initial determination, that supported its finding in its revised February 22, 2011 final determination of retaliation.

As to Ropes’ continued denial of the retaliation finding, perhaps Ropes would kindly produce of some these “facts” the EEOC’s retaliation determination is “inconsistent” with to support of its spokesperson statement. They have had 18 months to do so, and so far have failed.

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While the EEOC initially accepted many of Ropes’ claims, there were substantial and persistent concerns that Ropes could not address, which is why that decision was rescinded and replaced with a limited determination.

Ask a few simple questions:

(1) Why retaliate if you did nothing wrong? Why lie about it? Why would the EEOC find that you did?

Ropes has consistently lied about the retaliation, claiming:

To the EEOC in early December 2009, Ropes claimed that “[t]he Firm is not aware of other partners who have declined to provide Mr. Ray with a letter of recommendation, nor is the Firm aware of any relevant circumstances.” (David Mandel)

A few weeks later to Ray, however, Ropes claimed that “[partner Brien] O’Connor has consistently declined to respond to your requests for a letter of recommendation.” (David Mandel)

And to the Massachusetts Attorney General’s Office in defending its conduct claimed “[t]he Firm does not concede that Mr. O’Connor had ever promised to provide a recommendation to Mr. Ray.” (David Mandel)

Until a serious of emails were produced from May 2009, where Brien O’Connor stated:

“John

I would be very happy to do a letter for you. Really sorry to be slow on this. Are you around tomorrow?

Brien”

So, why lie? Why retaliate at all? Because Ropes & Gray lied about such a key part of the retaliation, how much can you really believe? The EEOC rescinded its initial determination because of these and other serious credibility problems.

Ropes says “We did not retaliate against Mr. Ray.” The answer is simple: The EEOC says you did.

(2) If Ray was an under performing associate, why continue to promote him every year? Why would partners call other Boston law firms like Skadden to lobby for him?

Under performing associates are generally asked to leave well before their 8th year. It is hard to imagine someone wasn’t being considered seriously for partner at that point. Especially when senior partners like Samuel Buffone said, after being tapped to lead the team to represent former Enron CEO Kenneth Lay, that Ray’s performance put him “on the partnership track” at the end of his 7th year. Under performing?

That stopped after complaints arose about “token black associate” comments and “n*****r” jokes made by partners at the firm were raised in his 8th year. Then Ropes dramatically changed its comments and praise. (And Ropes has a documented, EEOC affirmed, history of retaliation.)

But even after, in December 2008, shortly before his retaliation, senior partner Randall Bodner provided a recommendation to Skadden, Arps, Slate Meagher & Flom LLP. He called Skadden partner James Carroll to recommend that Skadden hire Ray as a 9th year associate. Carroll said in email that Bodner “certainly speaks very highly of you,” and so much so that Carroll arranged an interview for him when Skadden wasn’t hiring. Under performing?

Prior to the discrimination charge, both Randall Bodner and Brien O’Connor (the two partners he worked with predominantly, along with Sam Buffone) had said they would be happy to provide recommendations. Exact words:

“would be happy to.” (Randall Bodner)

“I would be very happy to do a letter for you. Really sorry to be slow on this. Are you around tomorrow?” (Brien O’Connor)

Under performing? Immediately after the complaint, they refused. That is classic retaliation. As to the measure of the “high standards of quality and judgment expected of partners at our firm”, how does Ropes & Gray evaluate partners that the EEOC found engaged in violations of Title VII? Any reprimands? Terminations? Not one.

(3) How do you try to salvage a damaging claim of discrimination — by personal attacks. Where is the evidence of supposed date rape?

None. This issue didn’t surface until after he had conversations about the firm culture and raised “token black associate” comments and “n****r” jokes made by partners in 2008. But it happened in 2006.

Back then, no one said anything negative:

“Yesterday afternoon I was actually attending another Christmas party, (though this time I was well-behaved). The post-trial clean-up has been keeping me pretty busy, so I’ve been spending most of my time on 42, organizing endless amounts of materials. I’ve been working through lunch so I can get out of here at a reasonable hour to do the Christmas shopping I’ve been avoiding for far too long… I think that’s going to be the trend until I can finally put these thousands of exhibits behind me.

If I don’t see you, have a wonderful Christmas and a happy new year.”

And…

“I’m sorry for not getting back to you sooner… I’ve been at court all morning for the MDL Closings and will be spending most of my afternoon there as well. While I appreciate your offer for lunch, I’d prefer to keep our relationship strictly professional.

But I’ll still smile when I see you in the office too.

Take care,”

If this was a real issue, it would have been raised in 2006. Not in defense of “token black associate” comments and “n****r” jokes.

There are obviously deeper factual issues and discrepancies unaddressed by the EEOC. But being the first major law firm to have a public finding issued by the EEOC that it violated the anti-retaliation provisions of Title VII is probably the most telling fact. Instead of being ashamed, the firm remains in denial.

Earlier: (Potential) Lawsuit of the Day: Another Discrimination Claim Against Ropes & Gray

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