Corruption, Incompetence, Discrimination & Cheating Health Care: A Civil Rights Case Goes to Trial
After a season of public vitriol invoking race, gender and other discrimination, there is good news. Wallace v. Eckert Seamans et al. (D.C. Super. Ct no.2008 ca 5606 B), the civil lawsuit pending in the Superior Court of the District of Columbia against one of Pennsylvania’s top law firms, that alleges corruption, stealing from clients, fraud, broken contracts, and yes, even discrimination, is going to be argued in front of a D.C. jury. While the country has endured the public manifestation of systemic discrimination, based on race, gender, age, disability and all things other, lawyers in the tradition of Thurgood Marshall, take that battle to the country’s courts. The lawsuit against the national law firm of Eckert Seamans Cherin and Mellott LLC, involves its Washington, D.C. office, located literally a half block from the White House, and is a microcosm of our country’s current afflictions: corruption, incompetence, complicated by discriminatory animus with a bit of cheating the health care system in the mix. The most recent ruling of the Superior Court of the District of Columbia will put the case before a D.C. jury. As much as I would like to claim that the court’s decision is due to my legal brilliance, I cannot. The truth is that, the judge has cleared this case to go to a jury because of the corruption and gross incompetence of Eckert Seamans itself. But more about that later.
The facts underlying the lawsuit are found in the Complaint which I urge you to read. The central issue in the case is whether my former employer, the law firm of Eckert Seamans, terminated my services for refusing to do illegal and unethical acts, i.e. steal from the client, Bayer (of Bayer aspirin), by pretending to review and assess foreign language documents at a pace that rendered actually doing so impossible. As an Eckert Seamans’ attorney representing Bayer, I was required to make critical legal decisions about each document, which necessitated reading it in German, French, Spanish, Italian or Portuguese, recognizing and recording numerous pertinent legal issues, determining if any of Bayer’s hundreds of lawyers was a sender/recipient of the document, translating into English, composing and typing a summary of the document’s contents, recognizing and redacting privileged or irrelevant material, and making note of significant individuals mentioned in the document.
The assigned documents ranged in length from several pages to thousands of pages. Working at the pace Eckert Seamans requested on a 30 page document, for example, would have required me to spend just 8 seconds per page, with approximately one second per critical task. Bayer needed a thorough review; my former employer, Eckert Seamans, wanted to give Bayer no review. After the lawsuit Wallace v. Eckert Seamans et al. was filed, Bayer terminated its relationship with Eckert Seamans and 100 or more attorneys were laid off, including virtually all those working in the Washington, D.C. office who were exclusively assigned to foreign language documents.
Did the law firm of Eckert Seamans also fraudulently billed Bayer for work supposedly performed by attorneys, which was in fact performed by unqualified persons? It would seem so. Eckert Seamans admitted to invoicing Bayer for attorney’s fees for work performed by non-attorneys. Did my objection to that practice contribute to my termination? That is a question for the jury. A separate question is whether the termination was motivated by illegal discrimination based on race, gender, age or disability. Not only was I the only black attorney in the Washington, D.C. office (and the only attorney responsible for five languages),with consistently excellent performance reviews, but many of my “attorney” colleagues were in fact not licensed to practice law in Washington, D.C., including my supervisor, who was a German national with no U.S. legal training and no license whatsoever.
Being able to put these facts before a jury is not just a significant step forward. It is a major civil rights victory, and an increasingly rare one. Litigation can be long and costly. Civil rights litigation against an employer is especially fact intensive and the employer controls nearly all the facts, and usually all or most of the money. With the employer controlling most of the facts and the potential witnesses being other employees beholden to the employer for their paychecks, summary judgment is often the result, before any facts reach a jury. Add to that, the appointment of conservative judges on the federal and state levels beginning in the Nixon era, which has eroded the original intent of Title VII and many of its state counter-parts, and it is no wonder so few of these cases make it to trial.
A motion for summary judgment asks the judge to render a judgment without a trial, in a summary or abbreviated fashion. It can be put forth by either a defendant (in this case, Eckert Seamans) or a plaintiff (me), but is usually filed by the defendant. In that case, it asks the judge to declare that there is insufficient evidence to take to the jury and that no reasonable jury could decide in favor of the plaintiff. In short, it argues that there is no factual dispute. In the hands of the defendant, the motion for summary judgment is a powerful litigation tool. Winning such a motion can dismiss the case entirely or limit the issues presented to a jury.
A bit of inside baseball. In the D.C. Superior Court, the deadline for filing such a motion is set by a Scheduling Order which is issued by the judge for every civil case. Under the court’s rules, the deadlines can be modified or extended by filing a motion. The court rules require a party to seek the other side’s consent before filing any motion. If both sides agree, an extension is automatic and the judge will issue an order immediately.
In April 2009, Eckert Seamans and I agreed to extend the schedule. Eckert Seamans prepared a Joint Extension Motion, which I approved. They told to me that it had been filed with the clerk of the court. When the judge had not approved the motion after more than 30 days, I contacted Eckert Seamans partner, Ed Longosz, the managing partner of the Washington, D.C. office and attorney of record for Eckert Seamans in the case. (Yes. Eckert Seamans is representing itself). I requested that we schedule a conference call with the judge’s chambers to discuss the extension. Eckert Seamans refused, insisting the Extension Motion was before the court, and objected to me contacting chambers alone (ex parte). I respected the objection in the spirit of cooperation.
In a meeting with Eckert Seamans on August 17, 2009, their counsel suggested that since the court still had not issued the extension order, Eckert Seamans may want to file a Motion for Leave to File a Motion for Summary Judgment. (Welcome to court: you have to file a motion to ask permission to file a motion). But, something did not smell right. Seeking such permission should have been unnecessary because the court could have simply ruled on the Extension Motion which was already before it, the one Eckert Seamans insisted had been filed.
On August 31, Eckert Seamans sought my consent to file the Motion fo Leave. Before I could respond, a Superior Court clerk notified me that Eckert Seamans’ had filed their Motion for Leave and asked me if I consented. With my newly acquired access to online filings, a capability I did not have in April, I discovered that the clerk of the court had rejected the Extension Motion in April when it was filed and it had never reached the judge. Eckert Seamans was notified of the rejection the same day they electronically filed, April 6, 2009, but failed to notify me of the rejection as required by court rules. Eckert Seamans knew the motion was not in place, knew they had failed to correct the defect, knew why the court had not issued the order, and now I know why they needed a motion for leave: because the deadline for filing the Motion for Summary Judgment had expired back in April 2009. In our August meeting, they intentionally misled me in order to gain my consent to file a Motion for Summary Judgment whose deadline had expired four months earlier. I objected and judge sided with me. Eckert Seamans’ Motion for Summary Judgment was tossed out. Ouch!
Eckert Seamans’ huge blunder resulted in the loss of their most potent weapon. Was this mere incompetence or did their deceptive scheme backfire? Well, both. I personally know of cases where law firms have charged up to $15 million to prepare such a motion. Failing to ensure that Eckert Seamans retained their right to file the Motion for Summary Judgment not only demonstrates gross incompetence, regardless of the underlying reason, but also would be grounds for malpractice if they were representing anyone other than themselves. Can Eckert Seamans, a leading Pennsylvania law firm, really be that incompetent?
Or, was there a nefarious scheme to deceive me to my ultimate disadvantage in the case? I believe so. First of all, I specifically requested that we jointly contact the judge’s chambers about the Motion for Extension months earlier. Even if they had not known about the rejection before, at that point they were on notice that there was a problem. Yet, they refused, and were adamant that the Extension Motion was properly before the court. They also objected to my contacting chambers, though it is entirely permissible to do so for these types of ministerial purposes. I relied in good faith on Eckert Seamans’ representation that the motion was properly before the court and would be ruled on any day. Since the Rules of Professional Conduct require lawyers to be candid with the Court and their opponents, I was entitled to take them at their word.
Eckert Seamans’ botched scam has them hoisted by their own petard! I am thrilled to have the opportunity to present the facts of this case to a District of Columbia jury. This incident is symptomatic and emblematic of the larger circumstances of the case: corruption, incompetence, greed, and discrimination that ultimately lost Eckert Seamans their giant client, Bayer.
And let’s not forget the cost of this corruption and incompetence to the health care system, as the country struggles with accomplishing meaningful health care reform. The patients who claim that Bayer’s products harmed them deserve to know the truth. If they were harmed, they should be compensated, and if Bayer is blameless, then let it get on with the business of manufacturing and supplying helpful medications and devices. For that, lawyers on all sides must act with competence and integrity.
Truth be told, I have experienced a post-racial America. It was neatly sandwiched between suing my first law firm for racial discrimination and suing my most recent law firm for racial discrimination (still pending). It was after moving to diverse, – we speak 130 languages – Fairfax County, Virginia, a suburb of D.C., but before my white gun-toting ex-military next door neighbor pulled a .45 on my husband walking our dog and said “This is for you, Obama!” It was that time between when all the neighborhood kids played together, and when one of my son’s former white playmates called him “the whitest nigger he ever met,” when he was accepted to Stanford. It was before that same son was a victim of racial profiling by campus cops at his tony university. It was before Hurricane Katrina. My post-racial America was populated with burqas, business suits, saris and short-shorts at the grocery store. It was blissfully sheltered… and very brief.
As I write this, I recall that my parents never referred to racists or racism. For them, the problem was prejudice and people who were prejudiced. This is significant because my stint of post-racialism was remarkable in that it lacked prejudice.
The first instance of this ironically involved the health care system. At age 9, my older daughter (now 21) was diagnosed with a rare auto-immune disorder. Our pediatrician referred us to the Children’s National Capital Medical Center, D.C.’s Children’s Hospital, to the Hematology/Oncology clinic. We had no health insurance. The doctors, nurses, technicians and administrative staff treated my baby as though she was their baby. Eventually, my daughter was covered by Medicaid. Her illness was difficult to control and required many emergency treatments. The doctors consulted with experts around the world. My husband and I spent countless hours, day and nights taking her for appointments and treatments. Our daughter not only received excellent care, but ultimately a cutting edge treatment which put her into a permanent remission after nearly 8 years.
At all times, the doctors, nurses and staff treated us like family. Perhaps it was because the patients were children who were gravely ill that issues of race, class, and wealth seemed absent. Despite how sick my child was, I felt embraced and comforted when we went there. Her illness was the enemy. We were not judged. She was not judged. There was no prejudice.
During this time, I was trying to get my law practice off the ground and find other ways to further my legal career. Late in 2001, I happened upon an internet advertisement seeking a lawyer with appellate expertise as a consultant. I sent a resume to a company in San Francisco. Later there was a telephone interview and I received a contract in the mail, which I signed and returned. For more than seven years, I took assignments, received materials for evaluation, I submitted reports and invoices via email, consulted over the telephone, and received checks in the mail. Unlike my law firm days, my employers were pleased with my performance and have lauded my work as excellent – all without ever having laid eyes upon me. My work product was evaluated and spoke for itself. I was not judged, only my work was.
In my post- (read intra-) racial days, I was a seriously ill kid’s mom, a home schooling mom, a work at home mom, a soccer mom, and wife and life partner to similarly situated dad. My life and my accomplishments were conveniently, and in my view, rightly under the radar, lost in the temporary cocoon we managed, through God’s grace, to create for our children. Like cocoons in nature, ours existed in relative but temporary obscurity until the time when the butterflies emerged and flew away. As of yesterday, all those butterflies have flown. But they are not naive to the racialism, racism or prejudice that may await them. They are not naive to the evils, natural or devised, that the world presents. Still, there may be no way to prepare them for the harshness. In any event, they are choosing their paths and taking their shows on the road.
I, too, have emerged from the post-racial cocoon that was largely of my own making because circumstances allowed, and even required me to shut out most of the world. So is there something that to learn or to teach from my experience? Indeed, I found a niche where I could love and nurture the people around me, a place where my work was appreciated for the benefit it provided, not pre-judged based on an irrelevant characteristic of the provider. That niche was the product of shared self-interest; it was efficient and results-oriented. Because of this, there was no need to obfuscate or deceive.
In the case of my daughter’s medical treatment, for example, the shared goal was to control the symptoms of the disease and if possible, to eliminate the disease entirely. Such a goal could not be served by deception or prejudice. By contrast, my most recent health care experience was that for months, my private health insurer refused to approve payment for an MRI after my orthopedic surgeon diagnosed me with a torn posterior tibial tendon. The insurer decided that the test “wasn’t medically necessary” while I limped around in pain. Gee, I thought the doctor said it was. The insurer’s goal was not to treat my disease, but to avoid paying for treatment, a goal well served by dishonesty and prejudice.
Though my post-racial bubble had already been burst, I was not prepared for the racist tenor of the current health care debate where deception, obfuscation, and prejudice rule the day. The liars are unapologetic, even when they are called out. The falsehoods exploit the us-against-them mentality and frighten the uninformed. These liars, in the form of racists, misogynists, homophobes, xenophobes et al., are propagating the lie that there is no shared self-interest, only their America which they now want back from interlopers. They insist that what they have will be unfairly taken and given to the undeserving others. From death panels to nazism, the lie is that health care reform means the government will get between Americans and their doctors, which conveniently ignores the persistent truth that health insurers do exactly that. The fact that the lies are logically unsupportable is irrelevant. I f you’re going to lie anyway, why should reason or logic have a say?
But before I wade too deeply into my intellectual snob rant, let me articulate the lesson from my time in the post-racial bubble, the one that was results-oriented and efficient. I learned to stand with the truth, no matter how inconvenient. I learned that ignorance must be supplanted with information and education. I learned that some things, like health care for our nation’s citizens, are simply too important to be intolerant, impatient or condescending. I learned that a lie must be exposed each and every time it is uttered.
The other thing I learned from my respite in my post-racial cocoon is that it’s OK to make a rest stop, but eventually you have to get back on the road. I caught my breath, gathered some strength, and got some clarity when my life and my world was not seen through the myopic lens of race and prejudice. Back on the road, I do that thing I do: think and try to stay informed, try to be smart, not angry, speak my mind and when necessary, try to hold my tongue, write, sue, sign petitions, and protest in whatever way I can, for what I know is true and right. Because being right does not make me better unless it makes everyone better.
My son, Osprey H. Brown, and I prepared this article together.
A racist, for the purposes of this article, is merely a person who has some attitude towards or about people and their physical features; this makes most people “racists.” Many of the reasons we have these attitudes are benign. If the motivations for these attitudes—on the part of the racist—are not pernicious, it is unlikely that these racist attitudes will lead to occurrences of racism. The harm of being a racist is the malignant motivations that lead to occurrences of racism—the deprivation of some earned right. Different motivations matter if we want to properly redress the harm of racism and prevent similar occurrences in the future.
On the one hand, there are situations in which a racist is motivated by political or economic gain. On the other hand, there are situations where the racist disregards economic and political reasoning, the racist’s actions have another motivation and may indeed injure the racist politically or economically. These other motivations can be anything from deep psychological conditioning, true hatred, or illogical belief. How could we possibly hope to identify and eliminate these motivations and pathologies? What becomes apparent is that racism for the purpose of political or economic gain is simpler to understand and redress than racism that has other motivations and even defies economic reasoning.
In my view, racism for economic or political gain is corrupt. Corruption is dishonesty for a dishonest gain. A harm motivated by corruption is a set of falsehoods perpetuated for the purpose of—in the case of racism—depriving a certain person categorized under a particular group from a privilege earned. For example, Judge Sotomayor, having served for decades on the federal bench, longer than any Supreme Court nominee in 70 years, earned the privilege of being nominated for Supreme Court justice. Pat Buchanan, it seems, for the purposes of dividing whites and minorities, thereby uniting a conservative white constituency, tried to deprive Sotomayor of her privilege on the Rachel Maddow Show {clip}. Not only that, he went on to attempt to deprive blacks and Hispanics of their role in building Our nation.
This kind of racism is overt, transparent—motivated, in my view, by white male privilege— but more simply by a political agenda. Racism motivated by corruption is perhaps the simplest kind to combat: it does not require any special laws to punish; the motivating factors are easy to disentangle. By punishing people politically and economically through the law, we can completely disincentivize this behavior. If anything, Pat Buchanan only hurt his own cause by, as Maddow pointed out in the interview, dating himself and his views in a world where all races have elected the first black president.
Other occurrences of racism may have more subtle motivations at play. The arrest of Professor Henry Louis Gates demonstrates an odd intersection of corruption and other factors. Corrupt cases of racism typically follow some economic or political agenda, often based in greed. On the one hand, this incident smacks of the ordinary attempt to maintain a power imbalance along racial lines. As President Obama indicated, there is a history of African Americans and police abuse. Where Buchanan tries to unite his constituency by fragmenting political unity along racial lines; officer Crowley, similarly, tried to maintain a long-standing historical imbalance between black citizens and armed police, both men relied on historical tensions it seems{Police report}. Crowley attempted to deprive Gates of his right to the quiet enjoyment of his home, arresting the professor only after identifying him as the lawful resident, therefore losing probable cause to arrest Gates for unlawful entry. Crowley’s true motivations for arresting Gates are not clear, but surely he was not motivated by any political or economic gain.
In my own life, I have encountered cases where racism runs counter to economic reasoning. Consider another example of racism from a case I handled a few years ago. A builder constructs housing developments in the suburbs of a major city marketed to upper-middle class homebuyers. An African American family seeks to buy a certain model in a development located in a majority black neighborhood of an affluent suburb. The same model is offered in a majority white suburban neighborhood at roughly the same price, at apparently similar terms. The household income for both neighborhoods is nearly identical. So far, all appears equal.
However, in the majority white neighborhood, home buyers are offered a choice of eight colors for their countertops, in the African American community, home buyers are offered only white and beige. The majority white community offers various colors and types of bathroom tiles, while home buyers in the majority African American community are offered only white. Indeed, numerous choices and upgrades were available to homebuyers in the majority white neighborhood that were not offered in its majority African American counterpart.
When the African American family requested the upgrades for the house they were buying in the majority black neighborhood, the builder was willing to oblige. But, because the upgrades were not offered in the majority black development, they were considered “custom” additions; payment therefore was required in advance. Thus, in the predominantly white neighborhood, any buyer of any color could purchase with a $5000 deposit the exact same house that required an $80,000 down payment, (given the cost of upgrades), in the majority black area.
Though I recognize the loss disproportionately borne by African Americans who chose the majority black neighborhood, and that something corrupt underlies that loss, I cannot fathom any gain to the developer. And what is the falsehood at issue here: that African Americans do not want to color coordinate; that blacks folks want or require fewer decorating choices? How does it result in a gain to the developer to decline to offer a profitable feature to someone able to purchase it? How does it help the builder’s bottom line to make it more difficult for a qualified buyer to purchase a more expensive home?
So, the housing communities composed mostly of whites were given a wider variety of color options in their new homes than was offered in new black housing communities. So what? Well, here’s what. The racism in this instance seems more structural or institutional since builders do not want to deprive any eligible buyer from purchasing their products. But perhaps that also makes it more intransigent. As I try to make sense of these circumstances, it seems that the answers are necessarily as simple and as complex as the answer to why White male republican Senators would openly denigrate a Supreme Court nominee whose appointment they have no hope of preventing, or why a police officer would arrest a man whom he knows has committed no crime and poses no threat, only to see the charges dropped. Is white supremacy that petty? Their answer is, at least in part, that those actions were justified, possibly by history or experience. But, of course, I disagree. Buchanan proved he knows nothing about history and I think we are justified in questioning Crowley’s experience.
History and experience teach me that such actions are based on falsehoods. What is troubling might be this: those with racist attitudes having corrupt or pernicious motivations, while attempting to benefit by perpetuating racial falsehoods, fail to attain their petty benefit. Racists with corrupt and pernicious motivations end up harming their own cause where they might have gained had they played it straight. So while I believe that I am right about this, there is no comfort to be had, no victory to be declared, because we all lose.
But I believe in the legal redress of racial harms. While we may not change the attitudes, we can prevent the occurrences of racism and their material harm. And just so you know, we sued the builder because the law gives us the right to make our injuries whole. We can effectively punish the corrupt racists by attacking those benefits they sought to gain by cheating minorities: their economic bottom line and public image. They settled and changed their ways.
As promised, below is the report of the independent investigation into the incident my son experienced with campus security. He and I both found the results discouraging. Moreover, he was concerned for the caucasian female classmate he was assisting, who seemed confused and disheartened by the incident. My son felt that the investigation did not adequately address her concerns about racisim and racial profiling.
It’s been more than a year and much has happened. In light of the incidents of the past few weeks — black children removed form a Pennsylvania swimming pool, Judge Sotomayor’s confirmation hearings and vote, the rants of Pat Buchanan and others, and of course, the arrest of Professor Henry Louis Gates — I am now re-examining my initial feelings towards the investigation and its results. The report speaks for itself and I invite comment.
I feel compelled to react to the arrest of Harvard Professor, Dr. Henry Louis Gates by the Cambridge Police. Unfortunately, I am not surprised. I received my Ph.D. from Harvard and during my years of graduate study, I found Harvard and its surroundings to the most racially hostile environment of my young life, though I grew up in South Central Los Angeles. Police and merchants openly exhibited racist attitudes towards me, as did many Harvard faculty members I encountered in my studies in Comparative Literature. Granted, that was several years before Dr. Gates’ arrival at Harvard. I had hoped that his presence and influence in the community, as well as progress on racial issues generally, meant that Harvard and its environs had changed. Apparently, not quite.
Dr. Gates’ experience is lived daily by African Americans, especially African American males of all ages and levels of society. Unfortunately I was compelled to write the letter below to another prominent university, one which I love. The letter is dated October 3, 2007.
Dear Vice Provost Boardman and Dean Barker:
As you may know, my son, Osprey Brown, is a senior Philosophy major,
who is writing an Honors Thesis and has also been accepted to the
co-terminal program in the Philosophy Department to earn his Masters
degree. Dean Barker, I last heard from you in the Spring, when you
invited my family to celebrate Osprey’s earning the Dean’s Award for
Academic Excellence. Osprey has also been working for the Housing
Office for more two years and has been a member of Mariachi Cardenal
since his freshman year. In my mind, Osprey’s is a
true Stanford success story; my family and I are delighted.Unfortunately, I must relate to you an incident which so upset
Osprey that he asked me to intervene. Last Thursday evening,
September 27, 2007, on Senior Pub Night, Osprey encountered one of
his house mates, *********, a caucasian woman, walking back
to [their dorm] alone. Osprey accompanied her so she would not
have to walk alone and saw her to her room. As Osprey was leaving
[their dorm] to return to [another dorm] to visit a friend, he was
accosted by several members of campus security. They apparently
insinuated or accused him of accosting or molesting ********* in some
way and required him to take them to her room, purportedly to ensure
that she was well. He did so, and she confirmed that Osprey had
accompanied her home. They nevertheless continued to claim that
they had received a report that a student was being accosted by a
black man.Most troublesome, the security personnel never asked to see Osprey’s
student ID or any identification. Further, Osprey had to use his
key to go back into the dorm to find *********, plainly signaling that
he lived there and belonged there. Because of this, I can only
conclude that the purpose of this entire humiliating ritual had
little to do with ensuring ********* ‘s safety, and was intended to be nothing more than racial harassment of a black male Stanford student.Osprey is incredulous, discouraged and intensely distressed, having
been violated, harassed and embarrassed in his own home. As a
mother, a Stanford parent, a Stanford alumna and an attorney, words
cannot adequately express the level of my outrage – and heartbreak
- that Osprey’s act of kindness, of which I am quite proud, was
repaid in this way. He behaved with dignity and kindness, like the
fine human being he has proven himself to be, and was treated like a
criminal — in 2007— at Stanford.This is not something that can be allowed to exist and persist at
Stanford. I would like to know how Stanford will address this
situation and redress the harm that has been done to Osprey,
an exemplary young person who is an African American male Stanford
Student. I hope that Stanford’s actions in addressing and resolving
this matter will obviate the need for any further action on
Osprey’s behalf.I look forward to hearing from you.
Sincerely,
Katherine Wallace
Stanford ‘78Katherine T. Wallace, Ph.D.
Attorney
To its credit, Stanford hired an independent investigator to look into the matter. To the credit of my amazing son, he used the incident to inspire his Honors Thesis, which is an argument for racial eliminativism, exploring the works of W.E.B. Du Bois and K.A. Appiah. Plainly, the conversation is not over.
