Mungin v. Katten Muchin & Zavis

• Decision Date: 08 July 1997
• Docket Number: No. 96-7152,96-7152
• Citation: 116 F.3d 1549,74 FEP Cases 391
• Parties: 74 Fair Empl.Prac.Cas. (BNA) 391, 71 Empl. Prac. Dec. P 44,862, 325 U.S.App.D.C. 373 Lawrence D. MUNGIN, Appellee, v. KATTEN MUCHIN & ZAVIS, a/k/a Katten Muchin Zavis & Weitzman, f/d/b/a Katten Muchin Zavis & Dombroff, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1549

116 F.3d 1549

74 Fair Empl.Prac.Cas. (BNA) 391,

71 Empl. Prac. Dec. P 44,862, 325 U.S.App.D.C. 373

Lawrence D. MUNGIN, Appellee, v. KATTEN MUCHIN & ZAVIS, a/k/a Katten Muchin Zavis & Weitzman, f/d/b/a Katten Muchin Zavis & Dombroff, Appellant.

No. 96-7152.

United States Court of Appeals, District of Columbia Circuit.

Argued April 22, 1997.

Decided July 8, 1997.

Appeal from the United States District Court for the District of Columbia (94cv02286).

Andrew L. Frey, Washington, DC, argued the cause for appellant. With him on the briefs was Donald M. Falk.

Abbey G. Hairston, Baltimore, MD, argued the cause for appellee. With her on the brief was Koteles Alexander, Silver Spring, MD.

Before EDWARDS, Chief Judge, WILLIAMS and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

Opinion concurring in part and dissenting in part filed by Chief Judge HARRY T. EDWARDS.

RANDOLPH, Circuit Judge:

In July 1994, Mark Dombroff left the law firm that bore his name--Katten Muchin Zavis & Dombroff--the Washington, D.C., branch of Chicago's Katten Muchin & Zavis. Principally because of Dombroff's departure, defections and terminations reduced the number of lawyers in the D.C. office from 42 to 14. Lawrence Mungin, an associate in the D.C. office, was among the lawyers who left the firm. He departed on July 25, 1994.

In September 1994, Mungin filed a racial discrimination charge with the EEOC. The EEOC took no action on his claim. Mungin then sued the firm and several of its current and former partners, asserting violations of 42 U.S.C. § 1981, Title VII, and the D.C. Human Rights Act. Pretrial proceedings eliminated the individual defendants from all claims and narrowed Mungin's § 1981 claim (but not his coextensive claims under Title VII and the D.C. statute) to the firm's failure to consider him for partnership the year before his departure. By special verdict, a jury found for Mungin, imposing liability on the firm for (1) race-based constructive discharge; and (2) racially discriminatory treatment with respect to (a) Mungin's starting salary, (b) his 1994 salary, (c) his work assignments, and (d) his consideration for partnership.

The jury awarded Mungin $1 million in compensatory damages, and an additional $1.5 million in punitive damages. After the district court entered judgment, and denied Katten's motion for judgment as a matter of law, see Mungin v. Katten Muchin & Zavis, 941 F.Supp. 153, 155 (D.D.C.1996), the firm filed this appeal.

I. Factual Background

A 1983 Harvard Law School graduate, Mungin had worked at several firms. Immediately before his move to Katten, he was an associate in the D.C. office of Powell, Goldstein, Frazer & Murphy. ¹ When the Powell firm began experiencing financial difficulties it froze associate salaries. At the time, Mungin was making $87,000 per year. In February 1992 Mungin informed the Powell firm of his plan to leave that May. In March 1992, a legal headhunter sent Mungin's resume to Dombroff, who was both the hiring partner and managing partner of Katten in D.C. Accompanying the resume was the headhunter's note pitching Mungin: not only would Mungin bring with him a $250,000 to $500,000 book of business, but "he is a minority." Letter from Peter Yenne, Keith Ross & Associates, Inc., to Mark Dombroff (Mar. 20, 1992).

When he interviewed with Dombroff in April, Mungin said he was interested in bankruptcy work and "was looking for a law firm with an established practice, because," contrary to headhunter's note, he "didn't have a book of business of" his "own." Trial Transcript at 147. Mungin also wanted to be considered for partnership the following year. Dombroff allayed Mungin's concerns. He told Mungin that he, as the biggest rainmaker at the firm, generated work, as did a new partner in the D.C. office, Jeff Sherman. Combined with the possibility of doing work with Katten's offices in Chicago and Los Angeles, Mungin "would be more than busy." Id. On the spot, Dombroff offered Mungin a position as a sixth-year associate, with annual pay of $91,000. As was the firm's policy, Mungin could be considered for partnership the following year.

Before accepting the offer, Mungin met with Jeff Sherman, the only bankruptcy partner in Washington. Sherman told Mungin that "there was plenty of bankruptcy" work in Washington, generated by Sherman himself, as well as by Dombroff, and that he "was hoping to get work from Chicago." Id. at 151. Mungin accepted the position at the Katten firm, contingent on being able to visit the firm's home office. Chicago was the headquarters of the firm's Finance and Reorganization department, the department encompassing the bankruptcy lawyers in Washington. Mungin joined the firm on May 1, 1992, and visited Chicago on June 3, 1992. In Chicago, Mungin met one of the two heads of the Finance Department, Laurie Goldstein; the other department head, Vince Sergi, was not available. Mungin's starting salary was $92,000, an amount he negotiated after the firm's initial offer of $91,000.

In the beginning, Mungin kept busy, receiving his work almost exclusively through Jeff Sherman and Mark Dombroff, with Sherman serving as Mungin's supervisor and mentor. Then the bankruptcy work started drying up. In February 1993, Sherman left the firm along with Stuart Soberman, the only other bankruptcy associate in Katten's D.C. office. Mungin thus wound up as the only bankruptcy attorney in the D.C. office.

Concerned about his partnership chances in an office without the work he was trained to perform or attorneys to supervise him, Mungin traveled to Chicago in February 1993 to meet more members of the Finance and Reorganization department. Mungin hoped his trip would result in the Chicago office referring more work to him. Although Vince Sergi was too busy to meet with Mungin, Mungin did meet with several attorneys and attended a department meeting where he was introduced to everyone.

The intra-firm marketing with the Chicago, as well as Los Angeles and Milan attorneys, proved unsuccessful. To keep Mungin busy, in April 1993 Sergi recommended that Mungin handle work then being done by a first-year associate in Chicago. Patricia Gilmore, a D.C. partner who worked closely with Dombroff, lowered Mungin's billing rate (which imperfectly reflected the level of responsibility with which he was entrusted) to $125 per hour, down from $185 per hour.

Meanwhile, it was coming time for Mungin's annual performance review. But at the designated time--October 1993--nothing happened. Mungin kept quiet, wanting to lie low while the firm accepted nominations for partnership. Although there was a buzz in the office about who was being considered for partnership, no partners told Mungin they would sponsor him for partnership.

Also in autumn 1993, the firm made its compensation decisions. Mungin received an annual bonus, in the amount of $4,000. His base salary for 1994 remained unchanged from 1993. Mungin asked the firm's human resources director why he had not received a raise; the director told him to talk to Sergi. If the firm's failure to give him a raise was not some sort of oversight, it made Mungin want the performance evaluation that much more: without an explanation of why the firm thought his performance sub-par, Mungin thought that he risked being denied a raise for the following year. Mungin scheduled a meeting for December 6, 1993, with Sergi and the new co-head of the department, David Heller.

When Mungin arrived in Chicago on December 6, Sergi was there, Heller was not. Sergi presented Mungin with the two performance reviews partners had prepared, one by Dombroff, the other by Gilmore; the other partners for whom Mungin had worked had not filled out the evaluation forms. Gilmore's evaluation was positive overall:

Much of Larry's time is consumed by routine tasks, such as drafting status letters to our client. Occasionally we receive a challenging assignment from AIG [a large client], which Larry accomplishes with great skill. AIG is a very difficult client and Larry's ongoing efforts to coordinate with me have made a potentially troublesome situation, relatively easy. I do not believe that, for the most part, AIG offers challenging work to Larry. Larry nonetheless accomplishes the tasks for AIG with a helpful attitude and a willingness to tackle the unique problems this client presents.

Plaintiff's Exhibit II, reprinted in Joint Appendix 213. Sergi saw this not as a substantive evaluation--that is, a description of Mungin's skills and weaknesses--but as a testament to his affability. Sergi also stated that Gilmore was not respected by the firm, and that her opinions would not help Mungin achieve partnership. Dombroff's evaluation said that he was "not in a position to judge the quality of Larry's work," but that Mungin "has always appeared cooperative and willing to get the job done." Plaintiff's Exhibit HH, reprinted in Joint Appendix 209. Mungin gave Sergi the names of the other partners for whom he had worked so that Sergi could solicit evaluations from clients with whom Mungin had contact.

Mungin asked Sergi why he had not received a raise. Sergi responded that his name just had not come up in connection with compensation discussions or, for that matter, partnership considerations. Sergi told Mungin that although he had not been considered for partnership in 1993, he would still be eligible the following year. Mungin also asked Sergi for a marketing allowance, a perquisite usually reserved for partners seeking to recruit clients. Mungin never received the allowance. After the meeting the quality of work assigned to Mungin did not improve. He found himself still doing work he believed less-experienced attorneys could have performed. But on December 10, 1993, the firm did raise Mungin's salary to $108,000, retroactive to October 1, 1993.

Effective July 15, 1994, Dombroff and Gilmore would leave the Katten firm to form...