Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, October 3, 1994 TAG: 9410040025
SECTION: NATIONAL/INTERNATIONAL PAGE: A-1 EDITION: METRO
SOURCE: Associated Press
DATELINE: PHILADELPHIA LENGTH: Long
His fall was swift.
In October 1992, he was working for a top Philadelphia law firm, billing clients $150 an hour to handle complex commercial litigation and antitrust suits. Just three years out of law school, he thought he was on the fast track.
By early 1993, the attorney identified in court papers as John Doe Esq. had learned he was HIV-positive. So, he contends, had his employer; he says Kohn, Nast & Graf P.C. told him to find a new job within a year.
A bad situation grew worse when Kohn, Nast learned Doe planned to sue for disability discrimination. An office administrator promised Doe ``could kiss his legal career goodbye,'' Doe asserts, and he had to stand by as his belongings were packed into boxes.
The firm's 79-year-old senior partner demanded Doe's keys to the building and watched until he left, Doe says.
The case, which since has drawn the involvement of the U.S. Equal Employment Opportunity Commission, goes to trial today in Philadelphia.
But U.S. District Judge Robert Gawthrop III first must rule on the law firm's request to shift the trial to Harrisburg in the belief that jurors there will be less likely to think Doe's case was the basis for the popular movie ``Philadelphia.''
The case has haunting similarities to the fictional movie, in which a freshly minted law partner is drummed out of his prestigious firm after a colleague notices a telltale sign of AIDS. The movie portrayed the firm's lawyers as insensitive villains and the attorney (played by Tom Hanks, who won an Academy Award for the role) as a heroic victim.
Alan Epstein, a civil-rights lawyer representing the 30-year-old Doe, dismisses the contention that jurors would confuse real life with a movie.
``You've got a young superstar who suddenly becomes a pariah,'' Epstein says. ``He comes in one day, they've got him in front of all his associates, they've got all his belongings - his pictures, his crucifix - in five big boxes and they are changing the locks on his office. And he's literally crying as he's escorted out.''
Doe is suing for discrimination under the 2-year-old Americans With Disabilities Act and a similar Pennsylvania law. The federal law prohibits employers from discriminating against people with disabilities, including AIDS and HIV, the virus that causes the disease.
The EEOC has received 554 complaints of discrimination involving HIV status but has involved itself directly in the litigation of only four; Doe's is the only case involving a law firm.
The firm, through court papers and lawyers, maintains it did not dismiss Doe and that it did not know of his HIV status. Instead, the firm says, Doe left on his own accord March 12, 1993, about two months after being told his contract would not be renewed for 1994 because his performance was below par.
Central to Doe's case is a letter he received at the office from an infectious-disease specialist at Johns Hopkins Medical Center. The letter refers to an earlier phone call and addresses possible unspecified treatment. It does not mention AIDS or HIV, but it's written on letterhead from Johns Hopkins' AIDS Services Department.
Doe says his secretary had seen the letter - she opened all his mail - and that he put it away after reading it.
A photocopy of the letter later was found in the files of Steven Asher, Doe's supervisor. Doe contends Asher found it in a search of his office.
After the letter arrived Dec. 3, 1992, Asher, who once had praised his work, began to ostracize him, Doe says. He lost his computer and secretary shortly after that. Then, on Jan. 13, 1993, Asher told Doe his contract would not be renewed for 1994. Two months later, Doe's office was cleaned out.
Kohn, Nast maintains that a casual reading of the letter reveals nothing about HIV and thus the firm could not have known their young associate was infected.
But Judge Gawthrop, in refusing the firm's request to drop the lawsuit, found such an assumption unlikely.
``Not to put two and two together upon reading that letter would require unusual opaqueness of vision,'' Gawthrop wrote. ``The defendants in this case are not dumb, and to miss that inference, one would have to be.''
The letter is important because it may help Epstein convince jurors the firm knew Doe was HIV-positive before he was forced out, says Scott Burris, an employment-discrimination lawyer with the American Civil Liberties Union and an assistant professor at Temple University Law School.
``If he can't prove that they knew, he doesn't have a lawsuit,'' Burris says.
Barbara O'Connell, who's representing Kohn, Nast, refuses to discuss the case. But court documents indicate she likely will try to show that Doe, contrary to being a bright young legal star, needed multiple warnings about poor work habits.
In November 1991, four months after he was hired, Asher told Doe he expected ``a different caliber of work from him and he needed longer hours,'' O'Connell told the judge at a hearing. A year later, Doe was warned by Asher about putting in ``banker's hours.''
Epstein, however, says Doe was among the top two or three of roughly 15 associate attorneys and rebuts the idea his client was reprimanded repeatedly.
No written reports on Doe's performance have surfaced in court papers, but both sides agree his performance was discussed at a breakfast meeting. Doe says he was praised highly; the firm has indicated he was told to shape up.
Doe has not been able to find work with another top firm. He asserts that is partly because his superiors allowed rumors to spread that he had been fired for rifling through files and stealing papers.
``He has been effectively relegated to a free-lance attorney,'' Epstein says. ``Every time he goes for a job, they know who he is.''
by CNB