Ray v. Ropes & Gray LLP

• Decision Date: 25 August 2015
• Docket Number: No. 14–1003.,14–1003.
• Citation: 799 F.3d 99
• Parties: John H. RAY, III, Plaintiff, Appellant, v. ROPES & GRAY LLP; David C. Chapin; John D. Donovan, Jr; Keith F. Higgins; Jesse J. Jenner; William A. Knowlton; Othon A. Prounis; David M. Mandel; Robert G. Jones ; Randall W. Bodner; Brien T. O'Connor; Joy U. Curtis; Bradford R. Malt; Joan McPhee; John T. Montgomery, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

799 F.3d 99

John H. RAY, III, Plaintiff, Appellant

v.ROPES & GRAY LLP; David C. Chapin; John D. Donovan, Jr; Keith F. Higgins; Jesse J. Jenner; William A. Knowlton; Othon A. Prounis; David M. Mandel; Robert G. Jones ; Randall W. Bodner; Brien T. O'Connor; Joy U. Curtis; Bradford R. Malt; Joan McPhee; John T. Montgomery, Defendants, Appellees.

No. 14–1003.

United States Court of Appeals, First Circuit.

Aug. 25, 2015.

John H. Ray, III, with whom Ray Legal Consulting Group, P.C. was on brief, for appellant.

Michael B. Keating, with whom Christopher E. Hart, Daniel L. McFadden, Foley Hoag LLP, Lisa G. Arrowood and Arrowood Peters LLP were on brief, for appellees.

Before HOWARD, Chief Judge, LIPEZ and THOMPSON, Circuit Judges.

Opinion

HOWARD, Chief Judge.

John H. Ray III, at the time an associate at the Boston law firm of Ropes & Gray (“Ropes”), was informed in December 2008 that Ropes would not advance him for further consideration as a partner. Contending that the employer's decision was the result of racial discrimination, and that Ropes retaliated against Ray in various ways after he filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), Ray filed an action pursuant to Title VII in federal district court. After the district court granted summary judgment to Ropes on the discrimination claim, the retaliation claims proceeded to trial where a jury concluded that Ropes had not unlawfully retaliated against Ray. Ray now appeals both the district court's summary judgment ruling and several rulings made during trial. We affirm.

I. Background

Because the retaliation claims went to trial, we present the facts in the first instance in the light most favorable to the jury verdict. Smith v. Jenkins, 732 F.3d 51, 59 (1st Cir.2013). We recognize that Ray has also challenged the district court's summary judgment decision and that the facts relevant to his discrimination and retaliation claims overlap considerably. Accordingly, when we reach the summary judgment issue, we consider the facts in the light most favorable to Ray and draw all reasonable inferences in his favor. Reyes–Pérez v. State Ins. Fund Corp., 755 F.3d 49, 50 (1st Cir.2014).

With limited exceptions, during the relevant time period Ropes adhered to an “up or out policy” whereby senior associates who were not promoted to or did not continue to advance toward a partner or counsel position were asked to leave the firm. Partnership decisions were made by the firm's nine-member Policy Committee. In an associate's sixth through ninth years the Committee annually considered evaluations of each associate submitted by the firm's partners. Selection was competitive. To be considered for partner, Ropes required that associates garner “consistently superlative” reviews. Although technical legal skills and analytic acumen were important criteria for advancement, the Committee also considered, among other things, an associate's management ability, collegiality, and the needs of particular practice groups or firm offices. In some years, no new partners were named from among a practice group's senior associates.

Ropes typically promoted its associates to partner during their ninth year, although the firm generally endeavored to give associates an indication of their partnership prospects during their eighth year. If it became clear at the conclusion of an associate's eighth year that he or she would not make partner, Ropes asked the associate to leave the firm.

In 2005, Ray joined Ropes as a fifth-year associate, and he received generally positive reviews during his initial year at the firm. But Ray's reviews in 2007 and 2008 proved decidedly less positive. In 2007, at the end of Ray's seventh associate year, partner John Donovan informed Ray that becoming a partner would be an “uphill climb” and his chances were likely “no better than even.” Donovan expressed specific concern about Ray's interactions with the firm's staff and other associates, noting that Ray's failure to improve his relationships and leadership skills would be a “dealbreaker.” Ray's reviews in 2008 remained predominantly negative. Several partners noted Ray's continued difficulties working with associates and staff, while others informed the Policy Committee that Ray had trouble meeting deadlines and needed to improve his writing skills; some indicated that Ray should be given an “exit message.”

Donovan met with Ray in December 2008, and informed him that the Policy Committee had concluded that a consensus to promote Ray to partner had not and would not develop. The firm offered him a six-month severance package through June 2009, during which Ray would continue to receive his salary, could use his Ropes office, and could hold himself out as a Ropes associate. Donovan told Ray that finding new employment should be his top priority. Ray requested several extensions of this severance period. The first occurred on the same day as the meeting with Donovan, when Ray inquired whether the period could be extended to September 2009 while he pursued an academic position. In February and April of 2009, Ray made additional requests in light of the prevailing economic conditions and the limited number of law firms that were then hiring. Ropes denied each request.

As the severance period progressed, and Ray's extensions were denied, Ray began to imply that he did not “feel the [Policy Committee]'s decision was fair or appropriate.” In May 2009, roughly six weeks before the end of the severance period, Ropes offered Ray a two-month extension, although the proposal required Ray to release any and all claims against Ropes. Ray rejected the offer on May 14, and sent a draft EEOC complaint to Donovan by e-mail. In that e-mail, Ray stated that he would file the complaint unless Ropes either offered him an indefinite extension of his severance period or a settlement in the amount of $8.5 million. In response, Donovan informed Ray that he was not to return to his Ropes office and that his personal items would be mailed to him.

Ray filed his complaint with the EEOC the following day, alleging that Ropes discriminated against him in deciding not to advance him to partner. He also alleged that Ropes's decision constituted retaliation for complaints that Ray had made to management about the racially-charged remarks of two partners.¹ Despite the complaint, Ropes continued to compensate Ray through the conclusion of his severance period.

A few weeks after filing his EEOC complaint, Ray renewed an earlier request for letters of recommendation from two Ropes partners—Brien O'Connor and Randall Bodner—to support Ray's application for a position as an Assistant United States Attorney. Although both had previously agreed to write letters, Bodner responded by e-mail that he could no longer “in good conscience” write a letter in light of Ray's EEOC complaint, which Bodner considered a “groundless claim” brought only for Ray's “own personal benefit.” Bodner also rejected a later request to recommend Ray for a law school professorship. O'Connor never responded to Ray's renewed request.

The EEOC issued an initial determination letter in January 2011, concluding that the evidence failed to indicate that a violation of the law had occurred. Ray sought reconsideration of that determination, and the EEOC issued a final determination in February 2011. In its reconsidered decision, the agency reaffirmed its determination that the evidence did not support a finding of discrimination but concluded that, after further consideration, the evidence did support a finding that Ropes had retaliated against Ray for filing his charge with the EEOC.²

After the EEOC concluded that conciliation efforts had failed, declined to bring a lawsuit against Ropes, and provided Ray with notice of his right to sue, Ray made his claims public. On May 10, 2011 he faxed the EEOC's final determination to several politicians and the president of the National Association for the Advancement of Colored People. In addition, on May 12, Ray, an alumnus of Harvard Law School, sent a letter to the law school's dean enclosing the EEOC determination and requesting that Ropes be barred from participating in the university's on-campus interview process and be foreclosed from using the university's facilities. That letter was copied to the Harvard Black Law Students Association and the Harvard Law Review.

Legal media website “Above the Law” obtained a copy of the letter to the dean and decided to publish the letter on its blog. Before doing so, the website requested comment from Ropes's Director of Public Relations, Timothy Larimer. In response, Larimer provided the website with an unredacted copy of the EEOC's initial January 2011 determination letter, which contained sensitive and confidential information about Ray's employment at the firm. “Above the Law” posted that letter in full on its website, redacting only the name of a particular Ropes employee.

Throughout this period, Ray made several settlement demands. Armed with the EEOC's reconsidered finding in February 2011, Ray first demanded by e-mail a settlement of at least $10 million. In May 2011 he increased his request to $21.5 million, and later to $40 million.

In August 2011, Ray filed this lawsuit alleging, among other claims, discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and analogous Massachusetts statutes. He alleged that Ropes's decision not to advance him to partner was based on racial discrimination and retaliation for his earlier complaints of discrimination to management, and that the firm had also retaliated against him for filing his EEOC complaint and sending letters to Harvard Law School's dean and others. Ray subsequently moved for summary judgment on the retaliation claims, while Ropes moved for summary judgment on all claims. The district court granted summary judgment for Ropes on the discrimination claim, ruling that “Ray ha[d] not come forward with plausible...