Proskauer Partner Says $50M Gender Bias Suit Should Survive

Posted July 31st, 2017.

As It Appeared On
Law360

By Braden Campbell

Law360, New York (July 31, 2017, 4:36 PM EDT) — A female Proskauer Rose LLP partner urged Friday that a Washington, D.C., federal court not toss her $50 million gender bias suit before discovery, rejecting the firm’s claim that as a firm partner she lacks the statutory protections given “employees.”

The partner, who is suing under a Jane Doe pseudonym, accused the firm of filing a premature motion for summary judgment last month to delay discovery or split it into phases. She argues the circumstances of her work at Proskauer show she is an employee protected by federal and state employment laws despite her title.

“As the Supreme Court has held … whether a partner is an ‘employee’ ‘depends on all of the incidents of the relationship with no one factor being decisive,’” Doe said, citing the U.S. Supreme Court’s Clackamas decision. “This open-ended, ‘fact-intensive’ inquiry is inappropriate for resolution in advance of any discovery.”

Doe filed suit against the firm in May, alleging that it pays less-successful male colleagues as much as 65 percent more than her and that gender discrimination and subsequent hostility from Proskauer members caused her severe anxiety and other health problems.

Proskauer asked the court to dismiss the suit in June, arguing that Doe functions as an owner in the firm who isn’t covered by the employment statutes under which she sued, including the Equal Pay Act and the Family and Medical Leave Act.

The firm argued Doe is not an employee under the Supreme Court’s decision in Clackamas, which established that owners or managers of businesses are not employees covered by employment discrimination laws.

The justices laid out six possible factors for weighing whether a worker is protected by discrimination laws, including whether their organization can hire or fire them and set their work rules, the extent to which it supervises their work and whether a worker reports to a superior in the organization.

Doe argues all of these factors show she is an employee. She claims as examples that the firm sets requirements for the amount of time she works, that the firm’s executive committee “unilaterally hires and fires partners” and that she is required to send memoranda to other partners for review and revision.

She further notes the Supreme Court specifically said that partners at large firms — 280 of Proskauer’s 940 attorneys are partners — may be “employees” when control is “concentrated in a small number of managing partners,” as she argues is the case with Proskauer’s executive committee.

Doe’s attorney, Andrew Melzer of Sanford Heisler Sharp LLP, said Proskauer’s request for summary judgment before the start of discovery is “out of the ordinary.” He added a New York federal judge recently rejected a similar motion by Chadbourne & Parke LLP, which has since merged into Norton Rose Fulbright, to dismiss a gender bias suit brought by partners there.

“We’re confident that it will be rejected here as well,” Melzer said. “These issues are factually intensive ones and they depend very heavily on circumstances, and we’re entitled to discovery before the court makes a determination.”

Doe also defended a Maryland labor law claim and a handful of common law claims, saying the former is valid because she performs legal services in Maryland on behalf of Maryland clients, and that Proskauer can’t frame the suit as a compensation dispute to escape the latter.

Proskauer on Monday accused Doe of making “false statements” to obscure “the fact that she is a business owner.”

“Ms. Doe was fairly rewarded for what she contributed and treated properly at every turn,” the firm said. “We expect that her baseless claims will be dismissed.”

Jane Doe is represented by David Sanford, Kevin Sharp, Vince McKnight, Altomease Kennedy, Kate Mueting, Andrew Melzer, Alexandra Harwin and Kevin Sharp of Sanford Heisler Sharp LLP.

Proskauer is represented by Colin Kass, Kathleen M. McKenna, Steven E. Obus and Evandro C. Gigante of Proskauer Rose LLP.

The case is Jane Doe v. Proskauer Rose LLP, case number 1:17-cv-00901, in the U.S. District Court for the District of Columbia.

–Additional reporting by Vin Gurrieri. Editing by Jack Karp.

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