                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA



_______________________________
                               )
DONALD G. GROSS,               )
                               )
               Plaintiff,      )
                               )        Civ. No. 07-399(EGS)
          v.                   )
                               )
AKIN, GUMP, STRAUSS, HAUER, & )
FELD LLP,                      )
                               )
               Defendant       )
                               )
                               )
_______________________________)



                        MEMORANDUM OPINION

     Donald G. Gross ("Gross" or "plaintiff") filed suit against

his former employer, Akin, Gump, Strauss, Hauer, & Feld, LLP

("Akin Gump" or "defendants"), alleging age discrimination under

the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §

621 et seq., and the District of Columbia Human Rights Act

("DCHRA"), D.C. Code § 2-1401.01 et seq.     Gross claims that his

termination was based on Akin Gump's discrimination against him

because of his age.   Akin Gump denies the charges, and after

finding evidence of alleged wrong-doing by Gross during

discovery, Akin Gump filed counterclaims against him for breach

of fiduciary duty of loyalty and tortious interference with

economic advantage.   Gross counterclaimed for retaliation under

                                   1
ADEA and DCHRA and moved for partial summary judgment on Akin

Gump's counterclaims.   Akin Gump moved for summary judgment on

Gross's age discrimination and retaliation claims.    After careful

consideration of the parties’ filings and applicable case law,

this Court GRANTS Akin Gump's motion for summary judgment for all

claims and DENIES Gross's cross-motion for partial summary

judgment.



I.   BACKGROUND

     A.     Age Discrimination Claims

     This Court recites the facts in the light most favorable to

the non-moving party.   Hatch v. District of Columbia, 184 F.3d

846, 848 (D.C. Cir. 1999).   As this case involves both a motion

and a cross-motion for summary judgment, the non-moving parties

differ for the separate motions.

     In June 2003, Gross was hired as Senior Counsel in the

Washington, D.C. office of Akin Gump, a law firm.    Compl. at   8.

Though several Akin Gump attorneys raised concerns about Gross's

qualifications before he was hired, Sukhan Kim, the head of the

Korea Practice Group, recommended that Akin Gump hire Gross.     As

a result of the misgivings within the firm about Gross's

qualifications, Akin Gump made an atypical decision to put a

clause in Gross's offer letter which specifically stated that the

firm would review his employment situation after one year and


                                   2
reassess the needs of the firm and the terms of his employment.

First Amended Answer and Counterclaims ("CC") at 5.

     Gross was fifty years old at the time he was hired.       He was

assigned to work in the International Trade Practice Group and

with Akin Gump's Korea Practice Group helping to organize and

administer the group.1        As Senior Counsel, he was told numerous

times by his superiors at the firm that he was expected to bill

2,100 hours a year.      See Def. Statement of Undisputed Material

Facts ("Statement") at 22.

     Gross alleges that during his interview, Kim indicated that

he was uncomfortable hiring a fifty year-old attorney.        Compl. at

9-10.   Gross also alleges that Kim stated, "I am concerned about

your age," and "you seem very old to be starting out in a major

law firm."     Id.   Gross claims that Michael Quigley, the

second-highest ranking partner in the Korea Group, was present

for these comments and did not interject, thereby condoning these

ageist remarks.      In response, Gross alleges that he told Kim that

he hoped that Defendants would not take his age and experience

against him.     Id. at 11.

     In March 2004, Gross took a three-week absence for

minimally-invasive heart-valve surgery.       Id. at 12.   Gross

alleges that upon his return from surgery, Kim's demeanor towards


1
 The Korea Practice Group is an informal group of attorneys who
are all assigned to various formal practice groups, but who work
on Korea matters.

                                     3
plaintiff changed and that his work assignments changed

considerably.     Gross claims that Kim avoided meeting with him or

contacting him by phone or e-mail.       Gross alleges that Kim began

communicating with him only through David Park, a significantly

younger attorney in the Korea Practice Group.       Id.

      Gross claims that in or around April 2004, he asked Park why

Kim refused to communicate with him directly.      Gross alleges that

Park explained that for cultural reasons, "Korean employers like

Kim prefer a clear superior-subordinate relationship, and that

Mr. Kim felt that Plaintiff [fifty-one] was too old to work in a

relationship in which he was subordinate to Mr. Kim [fifty-four]

as well as Mr. Quigley, who was approximately [forty-six] years

old."   Id. at    13.   Gross claims that Park told him that his age

was a "big problem" for Kim and that Gross's recent heart surgery

deepened Kim's concerns about Gross's age.       Id.   Gross alleges

that Park told him that Kim had directed Park, who is in his

thirties, to take charge of the projects headed by Gross.        Id. at

14.

      Gross also claims that shortly after he returned from his

surgery, Kim said to him, "we're both getting older."        Id. at 16.

Gross alleges that Kim asked him when he planned to retire,

"suggesting that it was appropriate for him to be moving in that

direction."      Id. at 18.   Gross also claims that in July 2004, Kim

and Quigley made negative comments about Gross's age and


                                     4
suggested that he should not be working for Akin Gump.        Id. at

19.   Specifically, on July 13, 2004, Gross alleges that Kim told

him that he was "too old to do the kind of work [he was] doing."

Id. at 20.   Gross claims that Kim asked him his age again, and

when he said that he was fifty-one, Kim stated that he was "'very

uncomfortable' that [Gross] was 'still doing writing and

research' at his age."    Id.

      Gross alleges that Kim suggested to him that he should

explore other opportunities within the firm, particularly working

with the firm's public law and policy practice group.        Id. at 21.

Gross claims that the only reason Kim provided for seeking his

removal from the Korea Practice Group was that Kim was

uncomfortable with Gross's age.       Id.   A few days after that,

Gross alleges that Quigley, who said that he completely agreed

with Kim, said that Gross was "not a good fit" with the Korea

Practice Group because he was "too old to be doing junior-level

work."   Id. at 22.

         Over the year Gross was employed at Akin Gump, a number of

different attorneys with whom Gross worked complained about the

quality of his work and his productivity.        See Def. Mot. for

Summ. J. at 2.   For example, Val Slater, the head of the

International Trade Practice Group, brought her concerns about

Gross's low billable hours to the attention of R. Bruce McLean,

Akin Gump's Chairman.    McLean initiated an independent assessment


                                  5
of Gross's productivity and performance.      McLean spoke with

Quigley about Gross's failure to meet his billable hours

requirement.    Id.    Quigley told McLean that Gross was not a "good

fit" for the Korea Group.      Former Akin Gump partner Michael Kaye

and associates David Park and Lisa Ross complained about Gross's

poor writing skills and his unsatisfactory work product.      Id. at

7.   A senior advisor at the Center for Strategic and

International Studies also commented that Gross's work was of a

poor quality.    See id.

     After conducting his independent assessment, McLean made the

decision to terminate Gross.      McLean noted the two main problems

with Gross:    "First of all, there was a very substantial lack of

productivity.   Secondly, even with respect to the tasks that he

was asked to accomplish there were performance issues with

respect to . . . his ability to carry out those tasks."

Statement at 52.      McLean testified that he made this decision

without any input from Kim.      According to Akin Gump, the extent

to which Kim was involved in the decision to terminate Gross

included relaying the termination decision to him.      See id. at

52-55.

     On July 13, 2004, Kim informed Gross that Akin Gump was

terminating his employment effective October 1, 2004.      Id. at 61.

On August 6, 2004, Gross wrote an e-mail to Kim expressing how

upset he was that he was being asked to leave the firm.      CC at


                                    6
15.   Gross solicited Kim's support for a position somewhere else

in the firm, and Gross asked Kim if he would recommend him to one

of Kim's contacts outside of the firm.      Id. at 17.   Kim told

Gross that he would do his best.

      On September 1, 2004, Gross met with Rick Burdick, the

partner who heads the Washington, D.C. office.      Burdick told

Gross that he had not heard about his termination.       Burdick said

that he would speak to McLean and Quigley about Gross's

termination.     Id. at 25.   Later, Burdick informed Gross that he

could explore opportunities in the public law and policy group,

but he would have to leave the firm if he could not find work

with another group.    Gross was unable to find a position in the

public law and policy group.      Id. at 26-27.   Kim, however,

negotiated a one-month extension for Gross.       On or about October

27, 2004, Gross alleges that Kim reiterated that Gross was being

terminated because he was "too senior" and "not a good fit."        Id.

at 28.    Akin Gump terminated Gross's employment on October 31,

2004.

      In his deposition, Gross admitted that he never complained

to anyone at Akin Gump about any alleged age discrimination at

Akin Gump.     See id. at 74.   There is nothing on the record that

indicates that he complained to anyone outside of Akin Gump

either.    He waited six months after his termination to file a

charge with the Equal Employment Opportunity Commission ("EEOC")


                                    7
in April 2005.

     B.      Breach of Fiduciary Duty and Tortious Interference
             Claims

     During the discovery phase of this litigation, Akin Gump

uncovered evidence of an alleged breach of fiduciary duty and

tortious interference with economic advantage by Gross.            See CC

at 24-25.     The bases for Akin Gump's allegations were only

uncovered in response to discovery requests from Gross in May and

June 2007.     Id. at 25.   Prior to leaving the firm, Gross had been

working to help persuade a prospective client ("Prospective

Client") to retain Akin Gump and sign a proposed engagement

letter which Gross had drafted and negotiated with the help of

others at the firm.     Id. at 10.       Gross and others at the firm had

done significant work in anticipation of certain exclusive rights

to perform services for Prospective Client.          Id.

     On July 25, 2004, Gross conveyed reservations to Prospective

Client about retaining Akin Gump.         Gross wrote:     "Before you

commit yourself to a partnership with Akin Gump, I want to make

sure that the law firm is a hundred percent behind your project."

Id. at 11.    On July 29, 2004, Gross encouraged Prospective Client

not to sign a retainer with Akin Gump.         Specifically, Gross

wrote:    "For the moment, I think you should delay signing the

engagement letter.     The law firm will be unhappy with this

recommendation, but I can't in good conscience ask you to rely

exclusively on Akin Gump until I see actions matching words."

                                     8
Id. at 12.    The Prospective Client did not sign an engagement

letter with Akin Gump.

     Gross also made numerous disparaging comments about Akin

Gump to Prospective Client, who was an advisor to a company

("Company X") that Akin Gump had been working with to retain

business.     He sent the following messages in separate e-mails to

Prospective Client and Company X:

             If [Company X] thinks it needs Washington
             representation, it should stick with its
             current law firm which has recently merged
             with a top D.C. firm.

             Sukhan [Kim] said he thought [CEO of Company
             X] might explore retaining Akin Gump to help
             make a deal with [Company Y.] This didn't
             make sense to me at the time, and still
             doesn't, because Sukhan is so close to
             [Company Y] and a couple of other Korean
             business groups that [CEO of Company X] could
             not possibly trust him to serve as an "honest
             broker." Sukhan has never represented an
             American company doing business in Korea, so
             far as I know, and is a highly specialized
             trade lawyer whose practice consists of
             representing Korean companies in the United
             States.

             Moreover, Sukhan plans to retire soon so I
             can't imagine he wants to spend his own time
             helping [Company X].

             I didn't know Jaemin [Park] was involved in
             this, until you mentioned she had a meeting
             with [CEO of Company X] in Seoul. Her help
             is even more questionable. . . . She claims
             to have Blue House connections, but except
             for knowing Hun-jai Lee through her family,
             she exaggerates her influence.

             If [the CEO of Company X] wants to get in
             touch with some Korean business groups, there

                                   9
            are other ways to do it.


Def. Mot. at 26.    Gross admits that he sent the e-mails quoted

above.   See Pl. Answer to Def. Counterclaims   11, 12, and 17.

            C.     Procedural History

     Gross filed a charge of discrimination with the EEOC on

April 29, 2005, alleging age discrimination under the ADEA and

the DCHRA.    On February 26, 2007, Gross filed his Complaint in

this Court repeating the allegations in the EEOC charge.    Akin

Gump filed an Answer denying the allegations, and the parties

commenced discovery.    On June 25, 2007, Akin Gump filed a motion

to amend its Answer to add an affirmative defense of "after

acquired evidence" based on e-mails it discovered in responding

to Gross's document request.    Akin Gump then added counterclaims

for breach of fiduciary duty and tortious interference with

economic relations based on the newly discovered evidence.      In

response, Gross amended his Complaint to add a retaliation claim

based on Akin Gump's counterclaims.

     This Court granted both Motions to Amend on September 10,

2007.    Akin Gump filed a Motion for Summary Judgment on all

claims on November 2, 2007.    Gross filed an opposition to Akin

Gump's Motion for Summary Judgment on December 11, 2007, and a

Motion for Summary Judgment on Akin Gump's counterclaims on

January 22, 2008.



                                  10
II.   Standard of Review

      Summary judgment is appropriate when the pleadings on file,

together with any affidavits, depositions, interrogatories, and

admissions show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a

matter of law.   Fed. R. Civ. P. 56(c); Dunaway v. Int'l Bhd. of

Teamsters, 310 F.3d 758, 761 (D.C. Cir. 2002).    A dispute of fact

is genuine "'if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.'"    Steele v. Schafer,

535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)).    Facts are material if

they "'might affect the outcome of the suit under the governing

law.'"   Id. (quoting Anderson, 477 U.S. at 248).

      The party seeking summary judgment bears the initial burden

of demonstrating an absence of genuine issues of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Tao v. Freeh,

27 F.3d 635, 638 (D.C. Cir. 1994).    "When a motion for summary

judgment is properly made and supported, [however,] an opposing

party may not rely merely on allegations or denials in its own

pleading; rather, its response must . . . set out specific facts

showing a genuine issue for trial."    Fed. R. Civ. P. 56(e)(2);

see also Celotex, 477 U.S. at 324.    "'[A] mere unsubstantiated

allegation . . . creates no genuine issue of fact and will not

withstand summary judgment.'"   Ginger v. District of Columbia,


                                11
527 F.3d 1340, 1347 (D.C. Cir. 2008) (quoting Harding v. Gray, 9

F.3d 150, 154 (D.C. Cir. 1993)) (alterations in original).

"Accepting . . . conclusory allegations as true . . . would

defeat the central purpose of the summary judgment device, which

is to weed out those cases insufficiently meritorious to warrant

the expense of a jury trial."    Greene v. Dalton, 164 F.3d 671,

675 (D.C. Cir. 1999).

     When considering a motion for summary judgment, the Court

draws all reasonable inferences in favor of the non-moving party.

See Keyes v. District of Columbia, 372 F.3d 434, 436 (D.C. Cir.

2004).    "'As employers rarely maintain records directly

evidencing discrimination, an added measure of rigor or caution

is appropriate in applying this standard to motions for summary

judgment in employment discrimination cases.'"    Brownfield v.

Bair, 541 F. Supp. 2d 35, 41 (D.D.C. 2008) (quoting Woodruff v.

Peters, 482 F.3d 521, 526 (D.C. Cir. 2007)).



III. DISCUSSION

     A.     Gross's Age Discrimination Claims

     Gross alleges that he was terminated by Akin Gump because of

his age in violation of the ADEA and the DCHRA.    McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), outlines the correct

analytical approach through which this Court must review

plaintiff's claims.    Employee allegations of discrimination

                                 12
trigger this familiar McDonnell Douglass burden-shifting

framework in federal courts.   See Stella v. Mineta, 284 F.3d 135,

144 (D.C. Cir. 2002).   In the absence of direct evidence of

discrimination, the courts use this framework to determine

whether an employee-plaintiff has a colorable claim against his

or her employer.   Claims under the DCHRA are also analyzed under

the McDonnell Douglass framework.    See Arthur Young & Co. v.

Sutherland, 631 A.2d 354, 361-62 (D.C. 1993); Gleklen v.

Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1367 (D.C.

Cir. 2000).   Given this congruence, any DCHRA claim necessarily

fails if a plaintiff's federal claims cannot survive.    A separate

analysis under D.C. law, therefore, is unnecessary.

     According to the McDonnell Douglass framework, the plaintiff

has the initial burden of establishing a prima facie case of

discrimination by a preponderance of the evidence.     See McDonnell

Douglas, 411 U.S. at 802; Stella, 284 F.3d at 144.     If the

plaintiff succeeds in making out a prima facie case, the burden

shifts to the employer to articulate a legitimate,

non-discriminatory reason for its actions.    Stella, 284 F.3d at

144 (citing McDonnell Douglas, 411 U.S. at 802).     If the employer

articulates a non-discriminatory reason for the adverse

employment action, the burden then shifts back to the plaintiff,

who must demonstrate that the employer's stated reason was merely

pretext and that the true reason was discriminatory.     Id. (citing

                                13
McDonnell Douglas, 411 U.S. at 802).    If the plaintiff cannot

demonstrate pretext, the employee's claims necessarily fail.

       To make out a prima facie case of age discrimination, Gross

must demonstrate that he (1) "is a member of a protected class;"

(2) "suffered an adverse employment action; and (3) the

unfavorable action gives rise to an inference of discrimination."

Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 850 (D.C. Cir.

2006) (citations omitted), cert. denied, 127 S. Ct. 1140 (2007).

       The parties agree that Gross is a member of a protected

class and that he suffered an adverse employment action.    Akin

Gump disputes whether or not the unfavorable action gives rise to

an inference of discrimination.    Accepting the pleadings as true,

however, as the Court is required to do here, defendant's alleged

comments that Gross was "too old" do indeed give rise to an

inference of discrimination.    "'[T]he burden of establishing a

prima facie case . . . is not onerous.'" Wiley v. Glassman, 511

F.3d 151, 155-56 (D.C. Cir. 2007) (quoting Tex. Dep't of Cmty.

Affairs v. Burdine, 450 U.S. 248, 253 (1981)) (second alterationa

in original).    Gross's allegations satisfy the requirements for a

prima facie case of age discrimination.    The burden then shifts

to Akin Gump to demonstrate a legitimate, non-discriminatory

reason for terminating Gross.     See McDonnell Douglas, 411 U.S. at

802.

       Akin Gump submitted evidence in the record which


                                  14
overwhelmingly demonstrates that Gross was terminated because he

failed to meet the terms of his contract.    Numerous lawyers and

partners at Akin Gump complained about Gross's poor work product.

Further, Gross was not able to bill the hours he was expected to

bill as Senior Counsel; he sent himself e-mails acknowledging

this shortcoming.    See Statement at 48.   Simply put, Gross was

not able to adequately perform the essential functions for which

he was hired.    The evidence in the record demonstrates that Akin

Gump had a legitimate, non-discriminatory reason for terminating

him.    Gross's offer letter provided clear notice that he was

hired on a probationary period and that if he did not adequately

perform his duties, he would be terminated.

       Furthermore, the D.C. Circuit has repeatedly upheld grants

of summary judgment in discrimination cases where the

decision-maker completed an independent assessment of the

relevant facts and made an independent decision to terminate an

employee.    See Vickers v. Powell, 493 F.3d 186, 195-96 (D.C. Cir.

2007); Hall v. Giant Food, Inc., 175 F.3d 1074, 1079 (D.C. Cir.

1999); see also Blackman v. Visiting Nurses Ass'n, 694 A.2d 865,

870 (D.C. 1997).    Gross makes no allegations of ageism against

McLean.    See Thompson v. Coca-Cola Co., 522 F.3d 168, 178 (1st

Cir. 2008) ("'Actionable discrimination cannot exist in a vacuum.

Rather the discriminatory intent of which a plaintiff complains

must be traceable to the person or persons who made the decision


                                 15
to fire him.'" (quoting Bennett v. Saint-Gobain Corp., 507 F.3d

23, 31 (1st Cir. 2007))).   "Statements made by those who are not

involved in the decisional process 'normally are insufficient,

standing alone, to establish either pretext or the requisite

discriminatory animus.'"    Bennett, 507 F.3d at 31 (quoting

Velázquez-Fernández v. NCE Foods, Inc., 476 F.3d 6, 11-12 (1st

Cir. 2007)).   There is no evidence in the record that contradicts

McLean's insistence that he conducted an independent assessment

of Gross and that the decision to terminate Gross's employment

was made without input from Kim.      McLean testified that he

decided to terminate Gross "because there were serious

performance issues."   Def. Mot. at 18.     The record supports this

determination.

     There is also no evidence that Kim recommended to Quigley

that Gross's employment be terminated.      If anything, it is clear

that Kim went out of his way to attempt to assist Gross after the

decision was made to terminate him.      Kim encouraged him to look

for work in another group at the firm, told Gross that he would

see what he could do about finding Gross employment with Akin

Gump clients, and secured an additional month of employment for

Gross at the firm.   All the while, Gross sent e-mails to Kim

thanking him for assistance.

     Since Akin Gump has provided a legitimate non-discriminatory

reason for terminating Gross's employment, the burden shifts back


                                 16
to Gross to demonstrate a pretext for his termination.     See

McDonnell Douglas, 411 U.S. at 802.    When evaluating allegations

of pretext, D.C. Circuit case law is clear:   this Court may not

"second-guess an employer's personnel decision absent

demonstrably discriminatory motive."    Milton v. Weinberger, 696

F.2d 94, 100 (D.C. Cir. 1982).   "Once the employer has

articulated a non-discriminatory explanation for its action, . .

. the issue is not 'the correctness or desirability of [the]

reasons offered . . . [but] whether the employer honestly

believes in the reasons it offers."    Fischbach v. D.C. Dep't of

Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (quoting McCoy v. WGN

Cont'l Broad. Co., 957 F.2d 368, 373 (7th Cir. 1992)) (first

alteration added).   The evidence on the record suggests that

McLean in fact believed that Gross was not performing as

expected.   There is an abundance of evidence, furthermore,

demonstrating that Gross was not meeting the expectations that

were set for him when he was hired by defendants.   Gross has not

been able to demonstrate that his termination was based on

pretext, and he "cannot establish pretext simply based on [his]

own subjective assessment of [his] own performance, for

'plaintiff's perception of himself, and of his work performance,

is not relevant.   It is the perception of the decisionmaker which

is relevant."   Waterhouse v. District of Columbia, 124 F. Supp.

2d 1, 7 (D.D.C. 2000) (quoting Smith v. Chamber of Commerce of


                                 17
the U.S., 645 F. Supp. 604, 608 (D.D.C. 1986)) (original

alterations omitted and alterations added).    Gross's claims fail,

and Defendant's Motion for Summary Judgment on the age

discrimination claims is GRANTED.

          B.   Akin Gump's Counterclaims Alleging Breach of

               Fiduciary Duty and Tortious Interference

     Akin Gump argues that Gross's e-mails to Prospective Client

and Company X breached his fiduciary duty with the firm and

tortiously interfered with economic advantage.    Gross argues that

Akin Gump fails to demonstrate the requisite intent necessary to

make out a claim for tortious interference.    The Court is not

persuaded by Gross's argument.

          a.   Breach of Fiduciary Duty

     As an employee, Gross owed "’an undivided and unselfish

loyalty’" to Akin Gump "such that 'there shall be no conflict

between duty and self interest.'"     PM Servs. Co. v. Odoi Assoc.,

2006 WL 20382, at *27 (D.D.C. Jan. 4, 2006) (quoting Mercer Mgmt.

Consulting v. Wilde, 920 F. Supp 219, 233 (D.D.C. 1996)). Unless

otherwise agreed, an agent is subject to a duty to his principal

to act solely for the benefit of the principal in all matters

concerned with his agency.   See id. (quoting Restatement (Second)

of Agency § 387).   Since Gross does not dispute that he sent

e-mails to Prospective Client and Company X which depicted Akin

Gump in a negative light, a reasonable jury could find that he


                                 18
breached the fiduciary duty he owed to Akin Gump while under

their employ.   Gross's Motion for Summary Judgment is therefore

DENIED.

          b.    Tortious Interference

     To make out a claim of tortious interference with

prospective economic advantage, a party must prove "(1) the

existence of a valid business relationship or expectancy, (2)

knowledge of the relationship or expectancy on the part of the

interferer, (3) intentional interference inducing or causing a

breach [or] termination of the relationship or expectancy, and

(4) resultant damage."   Bennett Entm't, Inc. v. Domino's Pizza,

Inc., 45 F.3d 493, 499 (D.C. Cir. 1995) (citation omitted).    The

evidence in the record clearly demonstrates that Akin Gump meets

the threshold showings for a claim of tortious interference with

prospective economic advantage.

     By Gross's own admission, he had been working on securing a

contract with Prospective Client for Akin Gump.   It is fair to

say, then, that Akin Gump had a valid expectancy of a business

relationship with Prospective Client.   Gross clearly knew of the

expectancy, as he was intimately involved in the relationship

with and courting of Prospective Client.   Gross admits that he

sent e-mails to Prospective Client and Company X relating to Akin

Gump's possible representation.    The e-mails he sent were harmful

to Akin Gump, as they specifically discouraged Prospective Client


                                  19
from retaining Akin Gump.    Indeed, Gross specifically advised

Prospective Client not to sign a retainer with Akin Gump, and he

acknowledged in the same e-mail that Akin Gump would not be happy

with his recommendation.    The resulting damage is that

Prospective Client did not sign a retainer with Akin Gump.        Gross

admits all of these allegations.       His attempts at explaining why

he sent the e-mails he sent are unavailing.      He claims, for

example, that he felt that Kim could not ethically represent both

Company X and Company Y.     See Pl. Opp. to Mot. Sum J. at 9.

Gross did not, however, express any misgivings he may have had to

anyone at Akin Gump.    Gross claimed that he had a duty to

Prospective Client.    In fact, his duty was to Akin Gump.     See PM

Servs. Co., 2006 WL 20382, at *27.      A reasonable jury could find

that he tortiously interfered with Akin Gump's and Prospective

Client's relationship.     See Furash & Co. v. McClave, 130 F. Supp.

2d 48, 56 (D.D.C. 2001) ("A reasonable jury might find that [the

defendant's] alleged breach of fiduciary duty destroyed [the

plaintiff's] client relationships.")      Summary judgment for Gross

is improper and the motion is DENIED.



     C.    Gross's Retaliation Claims

     Gross asserts that Akin Gump's breach of fiduciary duty and

tortious interference claims were filed in retaliation for his

age discrimination claims.    Akin Gump argues that their


                                  20
counterclaims were filed only after the firm discovered that

Gross sent e-mails to their prospective clients disparaging the

firm.   Akin Gump contends that it only discovered these e-mails

in a response to a discovery request made by Gross as part of

this litigation.   Furthermore, Akin Gump argues that they could

not have retaliated against Gross because he was no longer

employed by defendants when they filed their counterclaims.    This

Court agrees with Akin Gump.

     To make out a prima facie case for retaliation under the

ADEA or the DCHRA, a plaintiff must demonstrate that:    (1) s/he

engaged in protected activity; (2) s/he suffered adverse

employment action; and (3) there is a causal link between the

protected activity and the adverse action.     Taylor v. Small, 350

F.3d 1286, 1292 (D.C. Cir. 2003).

     The protected activity Gross alleges that he engaged in was

the filing of his complaint against Akin Gump.    Defendants do not

contest this, and it is clear that the filing of a complaint is a

protected activity.     See Fabiano v. Hopkins, 352 F.3d 447, 453

(1st Cir. 2003) ("As an initial matter, every citizen has the

right 'to petition the Government for a redress of grievances.'

U.S. Const. amend. I.    The right of access to the courts is an

established aspect of this right." (citing Bill Johnson's

Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983))).     Gross,

therefore, satisfies the first prong of the prima facie test.


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     The second prong, however, requires more in-depth analysis.

Gross argues that the counterclaim Akin Gump filed in this case

is an adverse employment action.       Gross relies on Burlington

Northern & Santa Fe Railway. Co. v. White, 548 U.S. 53 (2006),

but that case undermines Gross's argument for two reasons.       In

Burlington, the Supreme Court agreed with the D.C. Circuit and

held that "a plaintiff must show that a reasonable employee would

have found the challenged action materially adverse, 'which in

this context means it well might have dissuaded a reasonable

worker from making or supporting a charge of discrimination.'"

Id. at 68 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.

Cir. 2006)) (internal quotation marks omitted).

     As a threshold matter, Gross is no longer an employee of

Akin Gump, and he was not an employee when Akin Gump filed its

counterclaims.     Akin Gump only filed its counterclaims after

Gross's discovery request revealed evidence of his alleged

wrong-doing.     Gross was terminated in October 2004; Akin Gump

filed its counterclaims in September 2007, nearly three years

later.   For this reason alone, Gross does not fit within the

group of people Burlington seeks to protect.      Furthermore,

Burlington's reasoning for protecting employees was to prevent

employers from dissuading employees from filing discrimination

charges.   Id.    Given that Akin Gump's counterclaim was filed

after Gross filed suit for age discrimination, there is no way


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Akin Gump's counterclaim could dissuade Gross from filing his

claim.

     The D.C. Circuit has never found that the filing of a

counterclaim constitutes an adverse employment action.    Moreover,

other federal courts have specifically held that counterclaims

cannot, as a matter of law, constitute an adverse employment

action.    See Earl v. Electro-Coatings of Iowa, Inc., 2002 WL

32172298, at *2 (N.D. Iowa Oct. 29, 2002) (unpublished)

("Although many different post-termination actions may constitute

retaliation, this court holds that, ordinarily, a counterclaim

may not.   Initially, the court notes that a counterclaim is not

to be considered an employment-related action.   Only in the rare

case will conduct that occurs within the scope of litigation

amount to retaliation." (citing Steffes v. Stepan Co., 144 F.3d

1070, 1075 (7th Cir. 1998))); Beltran v. Brentwood N. Healthcare

Ctr., LLC, 426 F. Supp. 2d 827, 833-34 (N.D. Ill. 2006) ("[I]f

the mere filing of a counterclaim were sufficient to give rise to

a retaliation claim, then every defendant in an FLSA, Title VII

or ADA lawsuit who asserts a counterclaim would be subject to a

retaliation claim.").   Filing a counterclaim is different from

initiating a lawsuit against a complaining employee, as "filing a

counterclaim will not chill plaintiffs from exercising and

enforcing their statutory rights because by the time the employer

files its counterclaim, plaintiffs have already made their


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charges and initiated a lawsuit."      Beltran, 426 F. Supp. 2d at

834 (citing EEOC v. K&J Mgmt. Inc., 2000 WL 34248366, at *4 (N.D.

Ill. 2000) (unpublished)).

      Furthermore, as a matter of law, Akin Gump was required to

file its counterclaim.   Rule 13 of the Federal Rules of Civil

Procedure requires parties to file counterclaims that "arise[]

out of the transaction or occurrence that is the subject matter

of the opposing party's claim."    Fed. R. Civ. P. 13(1)(A).   Akin

Gump's counterclaims were compulsory under the federal rules, and

it would have waived those claims had it failed to allege them.

      It is clear that Akin Gump filed its counterclaim because it

was compulsory, not in retaliation for Gross's suit.     Gross has

failed to satisfy the second prong of the prima facie test, and

the Court need go no further in the analysis.     Akin Gump's Motion

for Summary Judgment on this claim is GRANTED.



IV.   CONCLUSION

      Accordingly, defendant's Motion for Summary Judgment is

GRANTED; plaintiff's cross-motion for Summary Judgment is DENIED.

An appropriate Order accompanies this Memorandum Opinion.

           SO ORDERED.

Signed:    Emmet G. Sullivan
           United States District Judge
           March 3, 2009




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