Jeffrey Downs, the gay attorney who sued personal injury firms Anapol Schwartz and Raynes McCarty in Philadelphia trial court last March for allegedly scuttling his lateral move based on discrimination complaints he made, has filed a new suit in federal court against the firms and several of their attorneys under the Philadelphia Fair Practices Ordinance, alleging discrimination based on his sexual orientation.
The new suit was filed in the U.S. District Court for the Eastern District of Pennsylvania on Jan. 27.
Along with Anapol Schwartz and Raynes McCarty, Downs named Anapol Schwartz shareholder Sol Weiss and former Anapol Schwartz shareholder and current Raynes McCarty attorney Mark LeWinter, both of whom are defendants in the state court suit, as defendants in the federal action as well.
Downs also named Anapol Schwartz shareholders Joel Feldman, James R. Ronca and Thomas Anapol, along with Michael Monheit, the attorney in charge of marketing at the firm, as defendants in the new suit.
Also named as defendants in the federal action are Raynes McCarty attorneys Stephen E. Raynes, Harold I. Goodman and Martin K. Brigham.
The allegations in the state and federal complaints in Downs v. Anapol Schwartz are almost identical.
But while the state complaint alleged defamation and negligent misrepresentation against LeWinter and tortious interference with prospective business against all the defendants, the federal complaint brings new claims for discrimination under the PFPO.
The PFPO bans “direct or indirect practice of exclusion, distinction, restriction, segregation, limitation, refusal, denial, differentiation or preference in the treatment of a person on the basis of actual or perceived race, ethnicity, color, sex (including pregnancy, childbirth, or a related medical condition), sexual orientation, gender identity, religion, national origin, ancestry, age, disability, marital status, source of income, familial status, genetic information or domestic or sexual violence victim status.”
The PFPO also prohibits harassment, threats and other attempts to harm, penalize or discriminate against any person for asserting his or her rights.
In both the state and federal complaints, Downs alleges that in November 2010, while he was working as a senior associate at Anapol Schwartz, the firm required all attorneys to join Facebook and to create and personalize their own page with information about their families, interests and hobbies.
Downs alleges in both complaints that he raised privacy concerns to LeWinter, who was still a shareholder at Anapol Schwartz at the time and with whom Downs worked closely, as well as to the firm administrator, saying he was uncomfortable with the Facebook requirement because he is homosexual and he had heard several conversations among partners and associates that “involved a negative tone toward gay males.”
In January 2011, Anapol Schwartz held a mandatory meeting, during which Monheit discussed the Facebook requirement, according to both complaints. During the meeting, LeWinter asked what types of information attorneys should post to their Facebook pages, to which Monheit replied, “‘Obviously we don’t want to post that you are gay [louder voice] bar hopping [lower voice].’”
Ronca immediately added “in a flip manner,” “‘Not that there’s anything wrong with that,’” both complaints allege.
But counsel for Anapol Schwartz, Weiss, Feldman, Ronca, Anapol and Monheit, Gaetan J. Alfano of Pietragallo Gordon Alfano Bosick & Raspanti in Philadelphia, told The Legal in March that Anapol Schwartz did apologize to Downs for the comments made at the Facebook meeting and did implement training related to preventing harassment and hostile work environments thereafter.
Alfano said in an email Thursday that the recently filed federal action is “utterly baseless.”
“Notably, the Philadelphia Commission on Human Relations, at Mr. Downs’ request, conducted a thorough investigation of these same allegations and took no action,” Alfano said. “The firm and its shareholders are confident that they will be vindicated in court.”
Howard M. Klein and Lorie K. Dakessian of Conrad O’Brien in Philadelphia, who represent the Raynes McCarty defendants in the state case, are also representing them in the federal action.
Dakessian emailed a statement from the firm that said, “Mr. Downs’ allegations that Raynes McCarty discriminated or retaliated against him are baseless.”
“Raynes McCarty welcomes diversity and never has and never will discriminate against anyone,” the statement continued. “The lawsuit will be vigorously defended and we will pursue all remedies under the law.”
Downs’ attorney, Kimberly H. Ashbach of Ambler, Pa., could not be reached for comment at press time.
Both the state and federal complaints allege that Downs was subject to other “abusive comments” during his time at the firm.
“Specifically, there were ongoing comments made regarding ‘fags’ and ‘gays have nothing else to do other than giving each other “blow jobs”‘ and statements that Downs should not be worried about his pay and payment of expenses since ‘he did not have a family’—a direct comment that gay men do not have a family,” both complaints allege.
According to both complaints, Downs made several complaints during his tenure at the firm but his concerns were never addressed. Instead, both complaints allege, Anapol Schwartz began to retaliate against Downs by failing to provide him with adequate legal support and failing to adjust his pay to reflect his contributions to and responsibilities within the firm.
In January 2012, LeWinter, who was preparing to leave Anapol Schwartz for Raynes McCarty, asked Downs to accompany him in the move, according to both complaints.
By February 2012, Downs had a job offer from Raynes McCarty, which he accepted, according to both complaints.
Downs was scheduled to move his furniture to his new firm March 24, 2012, but on the afternoon of March 23, 2012, according to both complaints, Downs received an email from Ronca requesting that he attend an “‘exit interview’” with Ronca, Weiss, LeWinter and the firm’s outside counsel.
Downs called Ronca and expressed an interest in amicably resolving issues he had with the transfer and payment of fees for his cases, expenses and vacation, saying he would like to meet with Ronca and Weiss without the presence of outside counsel, according to both complaints.
During that phone conversation between Downs and Ronca, according to both complaints, Ronca asked Downs whether he had spoken with Anapol the previous day about the way the firm had treated Downs during his tenure.
Downs told Ronca he had, both complaints said.
Both complaints allege that, in a March 22, 2012, conversation, Anapol told Downs, “‘I do not understand what the deal is about expenses; you do not have a family.’”
Both complaints allege that when Downs responded that his being gay did not mean he did not have a family, Anapol replied, “‘Don’t you joke about being gay with your friends?’”
Both complaints allege that Downs requested, in writing, a meeting with Ronca and Weiss to discuss the situation, but they refused to meet.
“Instead, they required Downs to sit through an ‘exit interview’ (which lasted two-and-a-half hours)—that was actually an ‘inquisition’ as to Downs’ intent upon leaving the firm,” both complaints said.
On the night of March 23, 2012, both complaints allege, LeWinter, who at the time was still a shareholder at Anapol Schwartz, called Downs to tell him that Downs’ move to Raynes McCarty was off, according to both complaints.
Both complaints allege that LeWinter said Weiss and Feldman had been pressuring him not to bring Downs with him to Raynes McCarty and had told him that Downs was planning to sue Anapol Schwartz.
“LeWinter told Downs that Weiss made it clear that bringing Downs to Raynes ‘would be bad for him [LeWinter] and Raynes,’” both complaints said.
According to both complaints, LeWinter told Downs that he had informed Raynes McCarty hiring partner Brigham of the situation, as well as that LeWinter could potentially be called as a witness in the litigation.
Downs told LeWinter he was not planning to sue Anapol Schwartz but that LeWinter should have consulted him before talking to Raynes McCarty, according to both complaints.
LeWinter, however, responded that the intention to sue Anapol Schwartz called into question Downs’ character and that Raynes McCarty had a right to know about it, according to both complaints.
Both complaints said that, at the time Downs accepted Raynes McCarty’s job offer, he had no intention of suing Anapol Schwartz, but instead “wanted a payout from Anapol reflecting vacation, expenses and an agreement on fees for cases he had originated at Anapol.”
According to both complaints, Downs met with Brigham and Goodman on March 27, 2012, and was informed that his employment with the firm had been withdrawn based on LeWinter’s statements that Downs was planning to sue Anapol Schwartz.
Later that same day, during a meeting between Downs, Weiss, Ronca and Anapol Schwartz’s outside counsel, Weiss confirmed that he had spoken with LeWinter about Downs’ March 22 conversation with Anapol.
On March 28, 2012, according to both complaints, Downs received an email from Raynes McCarty with an attached letter formally withdrawing his employment offer.
In the federal complaint, Downs alleges Anapol Schwartz “paid plaintiff less than those not in the protected class, failed to promote plaintiff, delayed and denied expense reimbursements, arbitrarily took attorney’s fees from a family member case, failed to give adequate paralegal support, and engaged in other ongoing discriminatory acts, in violation of the PFPO.”
“Moreover, once Downs complained about these issues, Downs’ decision-making was questioned for the first time, and Downs was left without any recourse to discuss any issues with firm management, and he was in effect frozen out,” the complaint alleges.
The complaint further alleges Anapol Schwartz “retaliated against the plaintiff continually for the filing of his internal complaints of discrimination by failing to promote plaintiff, failing to pay plaintiff commensurate with his skills and contributions, delaying and denying expense reimbursements, arbitrarily taking attorney’s fees from a family member case, failing to give adequate administrative and other paralegal support, and engaged in other ongoing discriminatory acts, in violation of the PFPO.”
Raynes McCarty, the complaint alleges, violated the PFPO when it “withdrew their employment offer to plaintiff due to plaintiff’s status as a gay male and his internal complaint of discrimination to Anapol.”