In new filings made in connection with former associate John Ray III’s bias suit against Ropes & Gray, the firm explains why barring Ray from entering its Boston headquarters and refusing to provide him with a promised recommendation letter were not acts of retaliation prompted by his decision to complain to the federal Equal Employment Opportunity Commission about how the firm had treated him.
The detailed defense is the latest turn in a nearly two-year-old lawsuit in which Ray claims Ropes discriminated against him and treated him as a "token black associate" and a "diversity hire" despite a resume that includes a federal clerkship and a Harvard Law School degree. The suit, brought in Boston federal district court against the firm and 13 partners, accuses the defendants of breach of contract; discrimination and retaliation in violation of the Civil Rights Act of 1964; and unfair competition.
Ropes has denied discriminating against Ray in previous court filings and has maintained in statements issued to the press that he was terminated as of June 30, 2009, "because of work that was well below our partnership standards, his fractured relationships with colleagues and allegations of inappropriate behavior with subordinates."
In a series of partially redacted filings made April 12 in opposition to a motion for partial summary judgment filed by Ray in February, Ropes expands on previous arguments while insisting that it should be the one to win the litigation on summary judgment.
Ropes explains in the filings that it determined in December 2008 that Ray was not going to be promoted to ninth-year associate, a decision that effectively ended his chances of becoming a partner. At that point, the firm claims it told Ray he could continue to collect his salary and benefits and call himself a Ropes associate for another six months while he sought new employment.
On May 15, 2009, according to the firm, Ray filed an EEOC complaint after Ropes refused to agree to pay him $8.5 million to settle discrimination claims. Ropes says in its filing that while Ray was indeed asked "not to return to his office" and had his access card deactivated after he filed the complaint, he had essentially been fired in December and that therefore the action could not qualify as retaliatory (the firm adds that it kept its promise to pay Ray through the end of June).
Ropes also uses the April 12 filings to fire back at Ray’s claim that firm partner Randall Bodner’s refusal to write him a promised recommendation letter for a position with the U.S. attorney’s office in the Southern District of New York was another act of retaliation. Ropes maintains that Bodner reneged on the offer because he considered Ray’s discrimination allegations "scurrilous," and "as a matter of law, no defendant should be forced to provide a dishonest recommendation letter." In an email to Ray included in court filings, Bodner explained his decision, concluding: "Given the fact that I believe you are bringing a groundless claim for your own personal benefit, I simply do not feel now that I can write you a recommendation in good conscience, especially for another organization I deeply care about."
Other emails, depositions, and discovery matters attached to Ropes’s filings provide additional new details in the case. An email allegedly written by Ray to a headhunter in December 2008 shows no evidence that he believed he was being discriminated against. Instead, according to Ropes, Ray wrote that a falloff in work for the firm’s securities and class action practice "has left me few options to develop." He added, "So this year, the firm has concluded that partnership is not realistic. My sense is this was more of an economic decision than a performance one," and noted his $40,000 above-market bonus that year and billable hours of 1,925. "The writing was sort of on the wall, which is why I started talking to you last May." (In a deposition, Ray contended that an earlier email sent to the same headhunter referenced his feelings of possible discrimination.)
In an email included in the Ropes filings that the firm claims Ray wrote after being told he was being terminated, the soon-to-be-former associate told Bodner he was "pretty happy with making a transition (for personal reasons) and the fit here has never been great. . . . I have really enjoyed working with you and learned a lot."
In light of such evidence, Ropes argues, "The inference that plaintiff’s discrimination case was a post-hoc invention aimed at securing a large sum of money from Ropes & Gray follows inescapably."
In one Ropes filing that is partially redacted, the firm also aims to refute spoliation claims made by Ray in which he insists Ropes destroyed evidence in the case. Ropes says those claims should be tossed because Massachusetts does not recognize spoliation as an independent cause of action and that, in any event, the relevant documents pertain "only to an investigation that this court determined cannot be referred to in any manner at trial."
While the details of the investigation are redacted, Ropes states elsewhere in the filings that the firm’s human resources department conducted the inquiry. And a partially redacted deposition attached to the filings shows Ray was questioned about an evening that ended in the apartment of a firm paralegal during which he and she had a "sexual encounter." (The firm has said publicly that "allegations of inappropriate behavior with subordinates" had been leveled against Ray.)
The EEOC determined on January 24, 2011, that Ropes did not discriminate or retaliate against Ray when it let him go. A little less than a month later, the agency amended its finding to say the firm had retaliated against him for filing his May 2009 complaint. (Ray’s partial summary judgment motion in the case also accused Ropes of defamation, based on his claim that the firm gave a copy of the EEOC’s findings to legal blog Above the Law. A judge dismissed the defamation claim, along with an invasion of privacy claim, in November.)
A Ropes & Gray spokesman and the firm’s attorneys at Foley Hoag and Arrowood Peters did not return requests for comment. Neither did Ray and his D.C.–based attorney, Latif Doman.
Sara Randazzo is a reporter for The American Lawyer, a Legal affiliate based in New York. This article first appeared on The Am Law Daily at www.americanlawyer.com.