Former Morrison & Foerster LLP attorneys suing the firm for alleged gender discrimination would like the Northern District of California to argue that they applied the wrong standard in providing the firm with a summary judgment on one of the employee’s maternity claims of the Family Medical Leave.
The motion, filed on Tuesday, argues that the court made a “clear mistake” in applying the McDonnell Douglas burden-shifting framework – which applies to Title VII discrimination claims – to plaintiff Joshua Ashley Klayman’s allegation got that the company refused to promote her because she is taking maternity leave.
McDonnell Douglas provides that after a plaintiff identifies an initial case of discrimination, the burden is shifted on the employer in order to formulate a legitimate and non-discriminatory basis for the employment decision which the plaintiff must then provide as an excuse.
Judge Jacqueline Scott Corley of the US District Court for the Northern District of California, in approving MoFo’s motion for a summary judgment, said Klayman’s FMLA claim “failed for the same reasons” as her Title VII discrimination claim.
The court found that although the MoFo had comments indicating that it was considering her maternity leave when it refused to promote her, it was “insufficient to create a factual dispute,” given the undisputed evidence that the Their practice group declined Partner up this year because of low income.
But the court should “have decided that invoking Ms. Klayman’s leave in connection with the partnership decision and as a reason for denying her promotion itself would raise a triable problem with the lawsuit,” the lawyers argue in the new motion .
According to Klayman, partner Nicholas Siliotes said it made sense to postpone hiring as a partner since she has just returned to the office.
Klayman argues that these comments “suggest that MoFo could have made an exception for them” but chose not to act “because of their vacation,” claiming that at least “one unlawful discriminatory factor has been added to the equation “.
The Ninth Circuit Court of Appeals precedent prohibits employers from treating sheltered leave as a “negative factor” in a negative employment decision. Protected leave “may not come into play in any way, depending on the application”.
Klayman is being brought into the lawsuit by plaintiff Sherry A. William. Several of Jane Does’ other plaintiffs were dismissed after resigning themselves to the company.
The case is William v Morrison & Foerster LLP, ND Cal., No. 3: 18-cv-02542, Plaintiffs motion for permission to file a re-examination motion on 3/16/21.
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