Judge Won’t Sanction MoFo Atty Fired At 8 Months Pregnant

Posted April 18th, 2019.

As It Appeared On

By Dorothy Atkins

Law360, San Francisco (April 18, 2019, 10:21 PM EDT) — A California judge won’t sanction a former Morrison & Foerster LLP associate suing the firm for pregnancy discrimination despite accepting a severance package purportedly barring legal action, saying her claims aren’t frivolous and it’s “common sense” she didn’t have job alternatives when she was fired at eight months pregnant.

U.S. Magistrate Judge Jacqueline Scott Corley noted during a hearing Thursday that Morrison & Foerster advertises its maternity leave policy to new recruits but doesn’t tell them they’ll have to sign an at-will contract and then wait until they are eight months pregnant to see if they get maternity leave. The judge added that it is reasonable to conclude that if you’re eight months pregnant, you cannot get another job.

“Common sense is that that is a reasonable expectation,” the judge said.

Earlier this month, Morrison & Foerster filed a motion for sanctions against Jane Doe 4 and her attorneys’ law firm, Sanford Heisler Sharp LLP, arguing that the associate waived any legal claims against the firm as part of a severance package she negotiated.

As a result, the firm argued, the court should dismiss her claims of pregnancy-related mistreatment and order her and Sanford Heisler to cover Morrison & Foerster’s fees in defending against them. The firm said it’s “simply not plausible” that Doe 4 and her attorneys didn’t know when she lodged her claims that they were barred by the severance deal.

But Judge Corley rejected the arguments Thursday and told attorneys representing plaintiff Jane Doe 4 that they don’t need to file an opposition to Morrison & Foerster’s sanctions bid. The judge said it can be inferred from the pleadings that the associate did not have any job alternatives and her claims of economic duress aren’t frivolous.

The judge’s comments came during a hearing on multiple motions in a putative class action filed by seven lead plaintiffs who have sued Morrison & Foerster using Jane Doe pseudonyms. The suit claims the San Francisco-based firm unlawfully pushed out working mothers by stunting their advancement and delaying pay increases.

At the start of the hearing Thursday, Judge Corley said she doesn’t think the plaintiffs should be allowed to proceed with their litigation using pseudonyms, even though Morrison & Foerster agreed to it for now, because it would be precedent setting, it could potentially harm the defense and it could make certification difficult, if not impossible.

The judge also said the case is just like other employment class actions, and lead plaintiffs in those cases don’t typically get to conceal their names, even if they compromise their careers by filing lawsuits against their former employers. If anything, the judge said, the plaintiffs in the instant litigation are better situated than lead plaintiffs in other employment class actions, because they’re well educated.

But Deborah Marcuse, counsel for the Jane Does, argued that this case is different, because lead plaintiffs in other employment class actions are typically in the restaurant or construction industries, where the employers don’t conduct intense vetting and screening of potential candidates, researching their online presence, like they do in the legal industry. Also, Marcuse said, as a lawyer, an attorney’s career path is much narrower.

The judge declined Marcuse’s offer to provide more briefing on the issue. But the judge said she wanted the parties to take note of her concerns, because at some point, the plaintiffs will likely have to be identified.

Judge Corley also said she would grant Morrison & Foerster’s motion to dismiss Jane Doe 4’s retaliation and undue harm claims with leave to amend. But the judge said she was not inclined to dismiss the economic duress claim, even though there is “certainly more that could be said” about the woman’s economic duress and why she still had to move from her house, despite receiving a severance package.

The judge added that the retaliation claim isn’t sufficiently pled, and the undue influence claim “isn’t there.” But she said the plaintiffs could amend their complaint.

The Jane Doe plaintiffs are represented by David Sanford, Deborah Marcuse and Christopher Yandel of Sanford Heisler Sharp LLP.

Morrison & Foerster is represented by Rachel Brass, Catherine Conway and Michele Maryott of Gibson Dunn & Crutcher LLP.

The case is Jane Doe 1 et al. v. Morrison & Foerster LLP, case number 3:18-cv-02542, in the U.S. District Court for the Northern District of California.

–Additional reporting by Vin Gurrieri. Editing by Nicole Bleier.

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