Posted October 25th, 2019.
By Emma Cueto
Law360 (October 25, 2019, 6:55 PM EDT) — Female former Jones Day associates have hit back against the firm’s attempt to pare down claims in their proposed gender bias class action, saying the claims in their latest complaint were well-supported.
In response to a supplemental filing addressing updated claims, including a new racial bias claim for one of the women, the former associates said that Jones Day’s new motion for partial judgment “doubles down” on its strategy from previous filings by trying to mischaracterize the women’s claims and introduce facts that are not relevant at this early stage.
“Jones Day cannot rewrite the pleading standard or plaintiffs’ pleadings to evade discovery into plaintiffs’ well-pleaded claims of its longstanding pattern and practice of discrimination and retaliation,” the response said. “Defendant’s efforts to avoid court scrutiny into its ‘black box’ policies and practices should end now with this court’s denial of its motion.”
The current back and forth is part of an agreement by the parties to resolve a dispute over whether the women could file a third amended complaint. Jones Day said it consented to the revisions to avoid having the case get bogged down in procedural wrangling and the parties agreed to limit the subsequent round of briefing to the new issues that were raised in the third amended complaint.
Many of the new allegations in the women’s updated complaint were aimed at painting managing partner Stephen Brogan as the person who called the shots on policies that left female lawyers behind, including a supposed “no whining” mantra that he showed to lawyers as part of slideshow presentations. The women alleged the firm’s office leaders often echoed the mantra to curb dissent in the ranks.
The latest complaint also added race discrimination claims under Section 1981 of the Civil Rights Act of 1866 on behalf of plaintiff Katrina Henderson.
That pleading built on allegations included in the initial suit, which accused Jones Day of underpaying women, fostering an environment that devalues their work and pushing them out when they have children. It was filed in April by former California associates Nilab Rahyar Tolton and Andrea Mazingo and four anonymous women.
Since then, Meredith Williams, Saira Draper and Jaclyn Stahl — formerly Jane Does 1, 2 and 3 — attached their names to the suit after Jones Day sought for months to make them give up their pseudonyms, claiming that being unable to name its accusers hampered the firm’s defense.
Henderson, an in-house Amazon Studios attorney, also opted into the suit as a named plaintiff. Another woman, originally named as Jane Doe 4, dropped off the case after Judge Randolph Moss on Aug. 7 denied her request to proceed using a pseudonym.
In its response to the amended complaint, Jones Day argued earlier this month that Henderson’s race discrimination claim was time-barred and “implausible,” that Equal Pay Act and hostile work environment claims were similarly unsupported and that the 135-page amended complaint was unable to point out any specific employment practice that hurts women.
Responding Thursday, the women said that the racial discrimination claims met the standard under federal law to move forward and that it was reasonable to conclude that Henderson was subject to race-based discrimination after considering the “significant circumstantial evidence” in the complaint.
It also argued that the firm incorrectly tried to downplay certain incidents that make up the basis of the hostile work environment claims, including a vulgar question and answer game using names of co-workers that happened in an enclosed limousine and as an ice breaker at an official firm event. When read as a whole, the incidents detailed in the complaint make the “sexualized” culture at the firm clear, the response said.
“At Jones Day, ‘No Whining’ means women must suffer discrimination in silence,” the women said. “Earnest questions about policies for women trigger retaliatory ire.”
They added, “Jones Day’s attempt to obfuscate this by manufacturing an overwrought causal chain is unavailing, particularly at this pleading stage.”
Counsel for both sides did not respond Friday to a request for comment.
The women are represented by Deborah K. Marcuse, Kate Mueting, David W. Sanford and Russell L. Kornblith of Sanford Heisler Sharp LLP.
Jones Day is represented in-house by Mary Ellen Powers, Beth Heifetz and Terri L. Chase.
The case is Tolton et al. v. Jones Day, case number 1:19-cv-00945, in the U.S. District Court for the District of Columbia.
–Additional reporting by Vin Gurrieri and Braden Campbell. Editing by Alyssa Miller.