Attorney Says Law Firm Fired Him for Being Gay

Alana Roberts

Daily Business Review

A Coral Gables, Fla., attorney has filed a discrimination suit alleging his former employer, Miami-based Astigarraga Davis, fired him because he is gay.

"Shortly after his employment began, however, (firm chairman Jose) Astigarraga articulated his discomfort with the fact that plaintiff was gay, criticizing plaintiff for not 'fitting in' with the attorneys at the law firm and suggesting to plaintiff that he consider leaving the firm," Scott Allen Burr's suit said. He claimed the firm has a pattern of discrimination against gay attorneys.

Burr alleges firm leaders refused to promote him to equity partner after promising he would be considered within a year of joining the firm as senior counsel, gave him poor performance reviews and refused a request for time off when it was honoring requests from straight attorneys.

But the 18-lawyer firm said in a court filing that its leaders knew of his sexual orientation before hiring Burr, and he quit.

Burr, an international litigation attorney now at Concepcion Sexton & Martinez, filed the suit pro se in October based on a Miami-Dade County ordinance that protects employees from discrimination on the basis of sexual orientation. The suit is before Miami-Dade Circuit Judge Thomas Wilson Jr.

Burr said he worked for the firm from November 2002 to May 2006.

The firm included a copy of an arbitration agreement dated in April 2004 in its motion to dismiss and compel arbitration filed Monday.

Burr's suit said he was placed on probation when he refused to sign the agreement but didn't specify whether he later signed one. In its motion to dismiss the case, the firm included a copy of the agreement, Burr's resignation letter and an e-mail he sent to shareholders complimenting them and asking for his job back.

In the motion, the firm's attorney, Robert Turk of Miami-based Stearns Weaver Miller Weissler Alhadeff & Sitterson, alleged Burr's poor performance reviews were justified, and that he sued after unsuccessfully trying to get his job back.

"There are a multitude of material facts with respect to his employment that Mr. Burr has failed to disclose that this court should consider … including the fact that when ADMG extended him an offer of employment Mr. Burr had previously voluntarily disclosed his sexual orientation, that Mr. Burr's employment with ADMG was affected only by his unsatisfactory performance and that Burr tendered his letter of resignation at one point," Turk's motion said.

Turk did not return a call for comment before deadline.

Burr and Astigarraga declined to comment.

During his first performance review in April 2004, "Astigarraga suggested to plaintiff that he leave his firm and go to a small firm that would accept him or join a big firm where he could 'hide' himself in its appellate department," the lawsuit said.

Burr alleged Astigarraga spoke to him in a "belligerent, demeaning and patronizing" manner, and he was fired after four years of employment despite what he said was a strong performance record.

He said he refused a demand by firm leaders that he sign a contract agreeing to arbitrate any employment disputes. During an argument with Astigarraga and founding shareholder Ed Mullins, Burr said he was told he had two days to sign the arbitration agreement or he would be fired. He was then placed on probation.

In an apparent effort to draw parallels between Burr's resignation from Astigarraga Davis and elsewhere, the firm attached an exhibit with references to Burr in the footnote of an April 7 motion in an unrelated federal case.

The footnote states Burr resigned from Miami-based Diaz Reus & Targ in September 2007 "under less than amicable circumstances." After unsuccessfully trying to get his job back, he "harassed" firm attorneys and staff with e-mail, misrepresented his status with Diaz Reus to third parties and sent disparaging letters to news media about the firm and a partner, the motion filed by Diaz Reus attorney Brant Hadaway said.

This isn't the first time Burr has sued a former employer. In 1993 he anonymously filed a federal suit against the Philadelphia firm Kohn Nast & Graf alleging he was fired because he is HIV positive. The case filed under the Americans With Disabilities Act was dismissed in 1994 after Burr settled. He later disclosed his identity to news media.

In his latest suit, Burr said leaders at Astigarraga Davis questioned him about the status of his health, but the complaint doesn't say whether he is HIV positive.