Epstein Becker Green Assists Insurer in Defeating Class Certification in Wage and Hour Case
In May 2017, Epstein Becker Green attorneys achieved a major victory for a national insurance company in a wage and hour class action pending in Los Angeles Superior Court. The Epstein Becker Green team convinced the trial court to deny the plaintiffs’ motion for class certification on all claims. The lawsuit had alleged that property inspectors who worked for the insurance company had been misclassified as independent contractors, had not been paid minimum wages or overtime, did not receive meal periods and rest periods, and were not reimbursed for business expenses, among other things.
The Epstein Becker Green team included Michael S. Kun and Kevin Sullivan.
Epstein Becker Green Obtains Dismissal of Statewide Representative Suit Brought Against California Client
In December 2016, Epstein Becker Green obtained the dismissal of a statewide representative action against a California employer. The plaintiff had alleged that our client did not pay several thousand California employees for all time worked, denied them meal and rest periods, and gave them inaccurate wage statements.
The suit was brought under California’s Private Attorneys General Act (“PAGA”), which allows employees to file representative actions—similar to class actions—on behalf of all “aggrieved employees.” Epstein Becker Green filed a motion to dismiss the statewide claims on a variety of procedural and substantive grounds.
After reviewing Epstein Becker Green’s motion to dismiss, plaintiff’s counsel conceded that the motion would be granted and agreed to dismiss all of the statewide representative claims. The plaintiff will now be proceeding with individual claims only, which we believe he is required to arbitrate.
The Epstein Becker Green team included Michael S. Kun and Amy B. Messigian.
Obtaining Victory for Large Nonprofit Organization in Disability Discrimination Suit
On October 13, 2016, Epstein Becker Green (“EBG”) won a significant victory for a large nonprofit agency in Southern California when the California Court of Appeal upheld the demurrer and judgment granted in our client’s favor in the trial court.
The case involved a single plaintiff who brought multiple causes of action alleging various forms of disability discrimination under California’s Fair Employment and Housing Act (“FEHA”) and public policy law, following her termination. Plaintiff had fractured her foot and requested a four-week leave of absence. Believing that plaintiff’s injury was not a disability that necessitated such a leave of absence, a manager denied the leave and terminated the plaintiff’s employment.
Recognizing that our client could face potential liability if plaintiff were considered disabled and thus entitled to a reasonable accommodation, the EBG team demurred to the complaint, asserting that a fractured foot is not a “disability” under California law. Although there was a dearth of California precedent on the issue, the EBG team convinced the trial judge to look to federal authority holding that such an injury is not a disability. The trial judge granted the demurrer without leave to amend and entered judgment for our client.
Plaintiff appealed, arguing that California law is more expansive than federal law and that the judge erred in not finding a disability under the more expansive definition. The appellate court affirmed the dismissal, finding that “an injury does not necessarily constitute a disability,” and “the FEHA regulations provide that conditions with little residual effect, such as sprains and other mild conditions, often do not qualify as disabilities under FEHA.”
The EBG team included Adam C. Abrahms and Amy B. Messigian.
Epstein Becker Green Successfully Represents One of World’s Premier Law Firms in Discrimination and Retaliation Lawsuit
In September 2016, Epstein Becker Green attorneys obtained a decisive victory for one of the world’s top law firms in a race discrimination, national origin discrimination and retaliation lawsuit filed in federal district court in Brooklyn, New York. The plaintiff, a Hispanic employee, had sued the law firm, claiming that the firm (i) paid higher wages to white employees than Hispanic employees in its Business Development Department, (ii) promoted only white employees to managerial positions in the department, and (iii) gave her an unfavorable performance review and a lower raise than usual because she had filed a discrimination charge with the Equal Employment Opportunity Commission (“EEOC”).
In its summary judgment motion, Epstein Becker Green, on behalf of the law firm, argued that the plaintiff failed to produce sufficient evidence to prove any aspect of her case and thus the court should dismiss the case prior to trial. The court agreed and granted summary judgment for the firm.
The court specifically ruled that the plaintiff:
- could not show discrimination by comparing her compensation to the compensation of white managers in the department because those managers were not similarly situated to her;
- did not introduce evidence showing that she was more qualified for promotion than the white co-worker who received the promotion, and, thus, the firm’s judgment in promoting the co-worker over the plaintiff would not be second-guessed by the court;
- had not demonstrated that the firm should have upgraded her position to the management level because the jobs and responsibilities of the white employees who were promoted to manager were not similar to her job and responsibilities; and
- failed to establish the legally required linkage between her EEOC charge and the subsequent unfavorable review and smaller raise because she had testified during her deposition that she expected the unfavorable review before she filed her EEOC charge, and the smaller raise was a consequence of the unfavorable review.
The Epstein Becker Green team representing the defendant included Barry Asen and Lauren Malanga Casey.
Epstein Becker Green Wins Dismissal of Discrimination and Retaliation Suit Against New York City Hospital
Epstein Becker Green achieved a significant victory on behalf of Staten Island University Hospital ("Hospital"), its CEO, and the Chairman of its Pathology Department in a long-running discrimination and retaliation lawsuit. Having previously obtained dismissal of the plaintiff’s federal and New York State law claims, on March 31, 2016, Epstein Becker Green obtained summary judgment on the plaintiff’s New York City Human Rights Law claims.
The plaintiff, Dr. Jotica Talwar, was a pathologist at the Hospital. Born in India, Dr. Talwar was authorized to work in the United States pursuant to an O-1 visa but was only eligible for a limited medical license under the New York Education Law. To obtain an unlimited license in New York, a physician must be a permanent resident or citizen of the United States. After practicing medicine at the Hospital for many years on a limited medical license, Dr. Talwar failed to obtain an unlimited medical license by a deadline set by the Hospital and was discharged as a result. Dr. Talwar filed suit against the defendants, alleging alienage and national origin discrimination under Section 1981, Title VII of the Civil Rights Act of 1964 (“Title VII”), and state and city law; sex-based salary discrimination under the Equal Pay Act as well as Title VII and state and city law; and retaliation under Title VII and state and city law for complaining about salary discrimination.
Two years ago, Chief Judge Carol Bagley Amon of the U.S. District Court for the Eastern District of New York granted summary judgment on the federal claims and dismissed the state and city law claims for lack of supplemental jurisdiction. On May 6, 2015, the U.S. Court of Appeals for the Second Circuit affirmed in favor of the defendants on all federal and state law claims, but, finding no dispute that diversity jurisdiction existed, held that the District Court should have addressed the New York City Human Rights Law claims separately under its more liberally construed standards, and remanded those claims to the District Court. Chief Judge Amon then granted summary judgment on the city law claims.
Epstein Becker Green attorney John F. Fullerton III represented the defendants.
Epstein Becker Green Obtains Dismissal of Action Against Health Insurance Plan
On February 5, 2016, Epstein Becker Green litigators obtained summary judgment dismissing an Amended Complaint in its entirety on behalf of client The New York State Catholic Health Plan, Inc., d/b/a Fidelis Care New York (“Fidelis Care”), one of the largest government programs-based health insurance plans in New York State. The case was brought by Ahmed Elkoulily, M.D., P.C., a medical provider, challenging Fidelis Care’s decision to terminate the provider’s health services contract on the basis of a finding that the provider presented a danger of imminent harm to patient care.
After extensive discovery, the New York State Supreme Court (Nassau County) reviewed the submissions of the parties and found that “Fidelis made a searching inquiry of a sample of Dr. Elkoulily’s files, and that its conclusion to terminate him was far from arbitrary,” the standard of review for a determination under New York Public Health Law § 4406-d. On an earlier motion to dismiss, the court had dismissed the provider’s three other claims for breach of contract, intentional infliction of economic harm, and violation of New York Public Health Law § 230(11)(b).
This case is one of the few reported decisions in which a health plan has invoked the right to terminate a provider’s contract without a hearing. The court’s two decisions on the subject present a sound analysis of the proper use of such extreme measures.
The Epstein Becker Green litigators representing Fidelis Care included Peter L. Altieri and Jennifer M. Horowitz.
10-Year Retaliation Litigation Ends with Trial Victory—and Counsel Fees—for Hospital
After a decade-long battle, including two trips to the New York State Supreme Court, Appellate Division, Second Department, Epstein Becker Green assisted a client, North Shore – Long Island Jewish Health System (“Hospital”), in obtaining a dismissal in July 2014 of a health care worker’s retaliation suit.
Plaintiff, a highly rated registered nurse manager, alleged that she was fired in 2004 for alerting Hospital management to systemic failures in the Hospital’s surgical instrumentation sterilization department, which she claimed put patients at risk of serious injury or death. She alleged violations of the New York whistleblower law, Lab. Law §740. The Hospital countered that, even though there were documented but isolated instances of unsterile instruments, plaintiff was let go because of her documented inability to “interact” effectually with doctors, Hospital executives, co-workers, and New York State Nurses Association (NYSNA) union representatives.
In a two-week bench trial in Nassau Supreme Court, Epstein Becker Green, on behalf of the Hospital, proved that, notwithstanding several nurses’ testimony regarding unsterile instruments, the Hospital’s procedures complied with New York Department of Health regulations governing surgical services and that plaintiff was fired for reasons unrelated to her reports. Plaintiff tried to bolster her case with the testimony of the former CEO of a Massachusetts hospital group, an MD whom plaintiff claimed was an expert as to the appropriate standards for hospital operations, including addressing issues relating to surgical instruments. Rather than calling its own expert, the Hospital discredited plaintiff’s expert.
In a rarity in employment litigation, the Court awarded the Hospital its attorneys’ fees incurred in defending the case. The Hospital’s fee application was filed with the Court in August 2014.
Epstein Becker Green attorneys Kenneth J. Kelly and Jennifer M. Horowitz represented the Hospital at trial, working with Steven M. Swirsky, who represented the Hospital through discovery, successful motions for summary judgment and to dismiss for failure to prosecute, and the two appeals to the Second Department.
Epstein Becker Green Helps the Cleveland Indians Achieve Victory in Salary Arbitration
Epstein Becker Green represented the Cleveland Indians in a salary arbitration with one of their players, relief pitcher Vinnie Pestano. The arbitration took place in St. Petersburg, Florida, and marked the first time since 1991 that the Indians had gone to salary arbitration with one of their players—the longest stretch of time without a salary arbitration in Major League Baseball. Epstein Becker Green presented the Indians' case to a three-member arbitration panel to determine the pitcher's salary for the 2014 season. Pestano's representatives requested a salary of $1.45 million, while the Indians offered $975,000. In baseball arbitration, the panel of arbitrators is restricted to choosing either the player's proposed salary or the team's. On February 8, 2014, the arbitrators issued their award in favor of the Indians.
The Epstein Becker Green attorney representing the Cleveland Indians was John F. Fullerton III.
Epstein Becker Green Obtains Dismissal of Wage and Hour Class Action Brought Against Health Care Client
In March 2014, Epstein Becker Green obtained a significant victory in a wage and hour class action brought against a health care client in California. Although our client was confronted with potential exposure in the millions of dollars, the case was resolved without any payment by our client. Epstein Becker Green obtained this result by first filing motions to dismiss and to strike portions of the Complaint. Those motions were granted in part, essentially cutting the case in half (the court dismissed the class claims, subject to plaintiff's right to attempt to amend the Complaint). When the plaintiff's attorneys chose not to try to amend the Complaint during the time permitted, Epstein Becker Green was able to convince the plaintiffs to dismiss the rest of the case based on documentation showing that the remaining claims were meritless.
The Epstein Becker Green team representing our client included Adam C. Abrahms, Michael S. Kun, and Deanna L. Ballesteros.
Epstein Becker Green Persuades California Court to Deny Class Certification Against Insurance Client
On March 24, 2014, after five years of litigation, Epstein Becker Green succeeded in defeating a motion for class certification in a significant class action lawsuit brought against our client Farmers Group, Inc., an insurance company, in Los Angeles Superior Court. In the case, the plaintiffs alleged that the persons who work for vendors performing property inspections for Farmers Group were wrongly classified as independent contractors, that Farmers Group was their "joint employer," and that they were entitled to overtime pay, minimum wages, reimbursement for business expenses, and a variety of penalties on a class-wide basis. Epstein Becker Green convinced the court that there were individualized issues that prevented class-wide determinations of whether the individuals had been misclassified as independent contractors, whether Farmers Group was their "joint employer," and whether Farmers Group could be held liable on any of the substantive claims. EBG also succeeded in convincing the court that the plaintiffs had not established the critical "superiority" element for class treatment.
The Epstein Becker Green team that represented Farmers Group included Michael S. Kun, Aaron F. Olsen, Lisa M. Watanabe, and Amy B. Messigian.
Epstein Becker Green Attorneys Obtain Swift Jury Verdict Victory in Advertising Industry Race Discrimination Suit
On June 5, 2013, Epstein Becker Green attorneys obtained a swift jury verdict in favor of a client in the advertising industry, in a race discrimination lawsuit filed in the U.S. District Court for the Southern District of New York. The plaintiff, a Trinidadian employee, sued the company for $50 million, claiming, among other things, that she wasn't promoted to the position of executive assistant to the general counsel because of her race.
The company argued that the plaintiff was treated in a professional and respectful manner during her 18-year employment at the company. Also, the company pointed out that the plaintiff never raised the race discrimination issue to her supervisors before filing her lawsuit and wasn't as qualified as another candidate for the position of executive assistant to the general counsel.
Although the case lasted approximately two years and the trial took three days, a jury verdict came after 11 minutes of deliberation. The jury determined that the plaintiff's claims completely lacked merit.
The company was represented by Epstein Becker Green attorneys Ronald M. Green, Lauren Malanga Casey, and Ian G. Nanos.
Epstein Becker Green Wins Dismissal of Leave and Wage Claims Against Senior Living Center
On July 31, 2012, Epstein Becker Green, on behalf of a senior living center, succeeded in obtaining a dismissal of a claim of retaliation under the District of Columbia Family and Medical Leave Act ("DCFMLA") and summary judgment on a claim under the D.C. Wage Payment Collection Law ("DCWPCL") brought in the District of Columbia Superior Court by the plaintiff, a former employee of the center. See Tisdale v. 1330 OPCO LLC, d/b/a Residences at Thomas Circle, No. 2011 CA 009761 B (D.C. Superior Court, July 31, 2012).
In an 18-page decision, Judge Natalia M. Combs Greene made several significant findings:
- On a matter of first impression under the DCFMLA, the Court held that an employee who has not yet met the minimum eligibility requirements for DCFMLA leave has no rights under the statute. Accordingly, the plaintiff, who requested DCFMLA leave that would have begun before she met the minimum eligibility requirements, did not engage in protected activity and could not state a claim for retaliation under the DCFMLA. The Court adopted the analysis of this question under the similar provisions of the federal FMLA by the U.S. Court of Appeals for the Sixth and Eleventh Circuits.
- The Court also found that the plaintiff could not state a claim for equitable estoppel because, even if the senior living center failed to provide timely notice that she was ineligible pursuant to D.C. regulations, she had conceded that she was ineligible and did not allege that she took any action in reliance on the center's silence.
- Finally, on another matter of first impression, the Court held that a handbook provision stating that involuntarily terminated employees were not entitled to be paid for unused accrued paid time off ("PTO") hours, to which the plaintiff was deemed to have agreed, did not violate a provision of the DCWPCL that prohibits modification of its provisions by private agreement. In so doing, the Court held that as an employer is not required to offer paid leave, it is free to set limitations on payment for such leave. Such a limitation does not violate the DCWPCL's provisions governing when wages are due but merely establishes what wages will be due on termination.
The Epstein Becker Green attorneys representing the senior living center included Frank C. Morris, Jr., and Brian Steinbach of the Washington, D.C., office.
Epstein Becker Green Successfully Represents Cable News Network in Discrimination Lawsuit
U.S. District Judge Richard Leon granted an Epstein Becker Green client, Fox News Network, summary judgment on August 25, 2011, in a lawsuit alleging age discrimination, gender discrimination and retaliation under Title VII brought by the U.S. Equal Employment Opportunity Commission on behalf of Fox News reporter Catherine Herridge. U.S. District Judge Richard Leon found that the commission failed to make sufficient claims in the complaint of retaliation or show that Herridge suffered any material harm.
"Indeed, it is hard to imagine how a reasonable employee would be dissuaded from engaging in protected activity if that employee were still able to secure not only a multi-year employment contract, but also a multi-year raise!" Leon wrote in the opinion.
Fox News Network was represented by Epstein Becker Green attorneys Frank Morris, Jr.; Barry Asen; and Ronald M. Green.
Epstein Becker Green Wins Dismissal of Service Personnel’s Tip Pool Claims Against Restaurant
Epstein Becker Green obtained summary judgment, on behalf of a restaurant client ("Restaurant"), from Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia. See Arencibia v. 2401 Restaurant Corporation d/b/a Marcel's Restaurant, No 1:09-cv-00165-CKK-DAR (D.D.C. Dec. 21, 2011). The plaintiffs, several service personnel, had brought a multifaceted challenge under both the FLSA and District of Columbia law to the method by which the Restaurant operated a tip pool.
In a 31-page decision, Judge Kollar-Kotelly made several significant findings:
- The maître d' was not a manager and, therefore, properly participated in the tip pool; what controlled was his actual authority, not what the employees may have perceived his authority to be. Accordingly, the Court found that two possible instances where the maître d' allegedly terminated or disciplined an employee were irrelevant.
- The fact that a director of sales received a commission from part of a service charge, the rest of which went to a tip pool, did not make her a participant in the tip pool. Alternatively, the Court found that she had sufficient interaction with customers in arranging and planning private parties to be included in the tip pool, even though she did not serve food or perform hosting duties.
- Allegations of improper notice of, and arbitrary modifications to, the operation of the tip pool were rejected by the Court. By doing so, the Court, in what appears to be a matter of first impression, held that the Department of Labor's tip pool regulations do not require any particular percentage method, or preclude adjustments based on good performance or customer-directed tips. Therefore, it was sufficient that the restaurant simply notified the employees that all their non-cash tips went into the tip pool and did not retain any of the tips for any other purpose. Neither federal nor District of Columbia law required disclosure of the formula underlying the dispersal of tips in the pool.
- A claim that one of the plaintiffs was terminated for making complaints about the operation of the tip pool was rejected by the Court. In so doing, the Court held that a request for a meal break or on premises meal did not raise a compensation issue protected under the FLSA.
The Epstein Becker Green team representing the Restaurant included Frank C. Morris, Jr.; Brian Steinbach; and Kathleen M. Williams of the Washington, D.C., office.
Protecting an Association’s Vacation Policy
Disputes frequently arise over whether an employee is entitled to be paid for accrued, but unused, vacation time at the end of his or her employment. Epstein Becker Green has experience protecting clients against and in such situations.
For example, we successfully represented a professional association in a trial involving an appeal from a decision by a wage collection referee denying the complainant’s claim for non-payment of unused vacation time at separation. The complainant presented a novel interpretation of the association’s vacation policy with respect to the payment of accrued, but unused, vacation at separation, which, if adopted, would have had a significant financial impact on the association beyond the complainant’s claim, as the relevant state’s statute of limitations on contract claims is six years. The association would have been exposed to multiple lawsuits and state administrative proceedings of an indeterminate value for unpaid vacation at the time of separation.In December 2016, the court held a trial de novo and took testimony from witnesses on the complainant’s appeal. After we presented our case, the court issued its ruling denying the complainant’s appeal and affirming the referee’s decision. The complainant did not appeal the decision to an appellate court.
Learn more about our Wage and Hour service team.
Defending Against Misclassification Claims
One of the most confusing and contentious issues for both employers and workers is identifying whether an individual is an employee or an independent contractor. The consequences to an employer of misclassifying employees as independent contractors can be severe and include penalties and liability for back taxes, overtime pay, workers compensation, and retirement benefits.
Epstein Becker Green has experience successfully defending employers against allegations of worker misclassification. For example, we recently achieved an important victory for a modeling agency client in an action brought by a “fit model” who claimed that she was misclassified as an independent contractor. (Fit models serve as living and moving mannequins on whom sample fabrics and designs are draped, sized, cut, and pinned by, and who give feedback and design suggestions to, designers and clothing manufacturers.) Epstein Becker Green convinced the district court to follow the holding handed down last year by a federal appeals court in a class and collective action alleging worker misclassification (a case in which Epstein Becker Green succeeded in proving that the plaintiff-drivers were independent contractors) and likewise rule that the fit model was an independent contractor. The district court also accepted Epstein Becker Green’s argument that our client does not hire models—rather, the models hire our client—which further proved that the plaintiff was an independent contractor.
Defending an Employer Wrongfully Accused of Discrimination
Any accusations of discrimination against an employer are distressing, especially when they are false. Epstein Becker Green has substantial experience defending employers against claims of discrimination.
For example, in July 2018, we successfully defended a California employer wrongfully accused by the plaintiff, a former mailroom employee, of disability discrimination. The plaintiff was given two medical leaves following the amputation of several toes due to a diabetic condition. After his return to work, however, the plaintiff filed a claim with the Equal Employment Opportunity Commission (EEOC), asserting that our client failed to accommodate his work restrictions. The plaintiff was eventually terminated, and he claimed that the firing was due to his disability and/or in retaliation for filing the EEOC charge. The plaintiff sought an arbitration award in excess of $2 million.
Epstein Becker Green argued that our client’s decision to terminate the plaintiff was not motivated by discrimination or by the filing of the EEOC charge but by the plaintiff’s poor work performance and his inability to perform the essential functions of his job, which required substantial standing, walking, and lifting—all of which were prohibited by the restrictions set out by his doctor. Our client proved that it was unable to provide any job that could have accommodated those restrictions. In addition, numerous complaints made by coworkers about the plaintiff—including one that was received after the filing of the EEOC charge but before the plaintiff was terminated—highlighted the plaintiff’s unprofessional conduct and his inability to interact appropriately with his coworkers.
The arbitrator agreed with Epstein Becker Green’s arguments, and our client obtained a complete defense verdict.