Case Studies

Defeating Discrimination and Retaliation Claims Against Restaurant Operator

Epstein Becker Green recently helped a client that operates restaurants around the country achieve a victory against a discrimination and retaliation complaint filed with the New York State Division of Human Rights (“NYSDHR”).

After receiving a probable cause determination pursuant to an NYSDHR investigation, our client was determined to be vindicated at the hearing of this matter. And that is precisely what Epstein Becker Green helped the client achieve.

The complainant, a former restaurant server, brought sex, age, and disability-based discrimination claims, as well as a retaliation claim, against two of our client’s restaurants. Over the course of a four-day hearing, Epstein Becker Green attorneys elicited testimony from seven witnesses from both restaurants at which the complainant worked during her employment. The complainant’s case consisted of three witnesses (one of whom has a separate pending complaint against one of our client’s restaurants for sexual harassment and wrongful termination). This administrative forum was quite challenging for our client in that it permitted the admission of “hearsay evidence” (i.e., secondhand testimony), which the complainant attempted to use to her advantage.

Nevertheless, five months after the parties’ submission of lengthy post-trial briefing, the administrative law judge (“ALJ”) for the NYSDHR ruled completely in our client’s favor, dismissing all counts of the complaint. (It is also interesting to note that Epstein Becker Green made several procedural arguments, including a successful statute of limitations defense pursuant to which the ALJ dismissed one of the complainant’s discrimination-based claims as time-barred. Our attorneys were able to accomplish this result through pre-hearing in limine motions and oral argument.)

The Epstein Becker Green team responsible for this victory included Jeffrey H. Ruzal and Carly Baratt.

Stopping a Time-Barred Action Against a Major U.S. Retailer

Epstein Becker Green successfully handled a case that presented a novel issue involving whether to equitably toll the 90-day period to commence an action under Title VII of the Civil Rights Act of 1964 (“Title VII”).

This action began with the plaintiff filing a pro se complaint in a federal court in New Jersey against our client, a major U.S. retailer, and eight individual defendants, alleging hostile work environment (race) and discriminatory and retaliatory discharge in violation of Title VII and the Pennsylvania Human Rights Act. The plaintiff filed his Title VII claims three days after the expiration of the statute of limitations. Nevertheless, the plaintiff argued that the limitations period should be “equitably tolled” (and thus extended) for three days because he was locked out of his Gmail account for the first three days after the Equal Employment Opportunity Commission emailed him a Right to Sue Letter (“Letter”). The plaintiff sought economic, compensatory, and punitive damages of an indeterminate amount.

Epstein Becker Green, on behalf of our client, moved to dismiss the plaintiff’s action, arguing that, among other things, the plaintiff’s case was time-barred. In June 2017, the court granted our client’s motion to dismiss without prejudice, finding that the plaintiff’s Title VII claims were untimely; however, the court gave the plaintiff another opportunity to amend his complaint.

When the plaintiff’s amended complaint failed to correct the deficiencies identified in the court’s June 2017 order, Epstein Becker Green, on behalf of our client, again moved to dismiss the action. In March 2018, the court dismissed with prejudice the plaintiff’s Title VII claims as being time-barred. The court pointed out that the plaintiff was aware of the Letter on the first day of the 90-day period to commence an action under Title VII. Even though the Letter was sent to his Gmail account on that first day and the plaintiff was locked out of his account until the third day, the plaintiff failed to take any action to protect his rights over the next 87 days. Therefore, the three-day lockout wasn’t “an extraordinary circumstance” justifying equitable tolling. In addition, the court dismissed the Pennsylvania law claims after declining to exercise supplemental jurisdiction.

The plaintiff appealed the case to the U.S. Court of Appeals for the Third Circuit, which dismissed the appeal in June 2019.

Ending a Disability Discrimination Suit by a Retail Client’s Former Employee

Epstein Becker Green attorneys recently helped a major retail client achieve a victory in a disability discrimination lawsuit brought in New Jersey by one of the client’s former employees.

The case began in March 2018, when the plaintiff filed a pro se complaint in a New Jersey Superior Court. The plaintiff claimed that, upon returning from lower back surgery in December 2011, he was disabled and needed work restrictions, such as “no lifting, no pushing or carrying heavy stuff.” He also claimed that our client ignored these restrictions and assigned him to perform work that required lifting five-gallon cans of paint and heavy machinery. In addition, the plaintiff claimed that, because of our client’s conduct, he underwent surgery and other invasive procedures and will allegedly endure a lifetime of chronic pain and medication.

Epstein Becker Green, on behalf of our client, filed a Rule 12(b)(6) motion to dismiss the plaintiff’s complaint for failure to state a claim upon which relief may be granted or, in the alternative, for a more definite statement.

In April 2019, the court granted our client’s motion to dismiss the plaintiff’s complaint without prejudice. The court pointed out that that the complaint did not contain enough factual allegations about the underlying incidents for the court to find that the plaintiff stated a plausible claim for relief. But because the plaintiff was representing himself, the court gave him time to file an amended complaint. However, the plaintiff did not file an amended complaint by the court’s May deadline, so the court closed the case.

The Epstein Becker Green team was led by Patrick G. Brady and included James J. Sawczyn.

Eliminating Title VII Claims Against a Leading Product Distributor

Epstein Becker Green led a client (a leading distributor of maintenance, repair, and operations products) to victory in a federal case that highlighted the importance of compliance with the procedural prerequisites to commencing an action under Title VII of the Civil Rights Act of 1964 (“Title VII”).

In April 2018, the plaintiff, a former employee of our client, filed a pro se complaint in a New Jersey Superior Court, asserting claims against our client involving sexual harassment, hostile work environment, retaliatory discharge, and slander. Epstein Becker Green, on behalf of our client, filed a motion to dismiss the complaint for failure to state a claim upon which relief may be granted. In July 2018, the court dismissed the plaintiff’s purported claims for hostile work environment, retaliatory discharge, and slander but allowed the plaintiff to file an amended complaint.

The plaintiff filed an amended complaint, alleging that he was subjected to workplace sexual harassment and retaliation in violation of Title VII. He also claimed that our client violated Title VII by denying him a promotion and pay increase and subsequently terminating his employment.

In September 2018, shortly after removing the matter to the U.S. District Court for the District of New Jersey (“District Court”), Epstein Becker Green, on behalf of our client, filed a Rule 12(b)(6) motion to dismiss the plaintiff’s amended complaint, because the plaintiff failed to plead exhaustion of administrative remedies to satisfy the procedural prerequisite to a Title VII claim.

On March 7, 2019, the District Court dismissed any Title VII claim in the plaintiff’s amended complaint for failure to exhaust administrative remedies. Having dismissed the only federal claim, the District Court declined to exercise supplemental jurisdiction over any attempted state law claim, including any attempted claim for defamation or slander. The plaintiff has not refiled a complaint in New Jersey state court.

The Epstein Becker Green team was led by Patrick G. Brady and included John M. O’Connor.

Achieving the Dismissal of a Discrimination Case Brought by a Non-Responsive Plaintiff

Epstein Becker Green assisted clients in ending a lawsuit brought by a plaintiff who failed to respond to requests for discovery items.

The case began in early 2018, when the plaintiff filed a complaint, jury demand, and designation of trial counsel against our clients, one of the world’s largest retailers and its Merchandising Execution Manager, in a New Jersey Superior Court. The plaintiff asserted claims arising from her employment with the retailer as a Travel Night Merchandising Execution Associate. The plaintiff alleged that she was “subjected to a hostile work environment and was discriminated, harassed, and retaliated against on the basis of her race and sex,” in violation of the New Jersey Law Against Discrimination, and unlawfully terminated from her employment.

During the discovery phase of the lawsuit, our clients requested that the plaintiff respond by a set date to certain document requests and interrogatories; however, the plaintiff failed to respond. Accordingly, Epstein Becker Green, on behalf of our clients, filed a motion to dismiss the plaintiff’s complaint for failure to respond to document requests and interrogatories. In November 2018, the court entered an order granting our clients’ motion dismissing the complaint without prejudice. Two months later, we filed a second motion to dismiss plaintiff’s complaint for failure to respond to written discovery. Counsel for all parties subsequently appeared before the court for a hearing on our clients’ motion. On March 1, 2019, the court granted our clients’ motion and dismissed the complaint with prejudice.

The Epstein Becker Green team was led by Patrick G. Brady and included Clara H. Rho.

Obtaining the Dismissal of an ADA Case Brought by a Plaintiff Who Wouldn’t Appear at Pre-Motion Conferences

Epstein Becker Green helped a major retail client terminate a lawsuit because the plaintiff, a former employee of our client, failed to appear at pre-motion conferences.

The case began in early 2018, when the plaintiff filed a pro se complaint against our client alleging a hostile work environment in violation of the Americans with Disabilities Act (“ADA”). After discovery was completed, in July 2018, Epstein Becker Green, on behalf of our client, filed a letter with the court, requesting a pre-motion conference for leave to file a motion for summary judgment.

The court scheduled the pre-motion conference for September 27, 2018, but the plaintiff failed to appear at the conference. The court then scheduled a telephonic pre-motion conference for October 5, 2018, but the plaintiff failed to appear for that conference. After multiple attempts to reach the plaintiff by telephone were unsuccessful, the court rescheduled the conference for later in the day on October 5, but the plaintiff again failed to appear. The court then ordered the plaintiff to file a letter with the court by October 22 if she intended to pursue the action, but the plaintiff failed to file the letter. Therefore, Epstein Becker Green, on behalf of our client, requested that the court dismiss the lawsuit with prejudice.

In late 2018, the court dismissed the plaintiff’s complaint “for failure to prosecute and to comply with the court’s orders.” Pursuant to 28 U.S.C. § 1915(a)(3), the court also certified that any appeal from the court’s ruling would not be taken in good faith and denied the plaintiff in forma pauperis status (thus, the plaintiff will not have her court filing fees waived) for the purpose of an appeal.

The Epstein Becker Green team was led by Patrick G. Brady and included John M. O’Connor.

Defeating a Race, National Origin Discrimination Claim Against a Drugstore Chain Client

Epstein Becker Green achieved a victory for a drugstore chain client against a claim that the client engaged in race or national origin discrimination against one of its customers.

The matter began on November 29, 2017, when a Cuban customer (“Complainant”) went to one of our client’s stores to pick up his prescription for a three-month supply of medication that he needed for travel to Cuba. He claimed that he was told that his prescription was not ready and was asked where he was travelling. The Complainant alleged that he tried to pick up the prescription on December 4, 2017, but it was still not ready. He also alleged that he was informed that his prescription was ready for pickup on December 6, 2017, which was too late for him to catch his flight. 

On December 11, 2017, the Office of Civil Rights (“OCR”) of the Department of Health and Human Services commenced an investigation of our client under Title VI of the Civil Rights Act of 1964 and Section 1557 of the Affordable Care Act, both of which prohibit discrimination on the basis of race or national origin. The investigation was conducted in response to the Complainant’s complaint, which alleged that our client engaged in unlawful discrimination based on race or national origin when our client failed to fill the Complainant’s prescription.

Epstein Becker Green assisted our client in challenging the complaint. We submitted evidence that the Complainant’s prescription was ready for pickup on November 29, 2017, and that he received notification texts that his prescription was ready for pickup on December 1, 4, 5, 6, 7, 11, and 13, 2017. 

On December 19, 2018, OCR issued a letter opinion rejecting the Complainant’s allegations and holding that there was insufficient evidence to substantiate the Complainant’s allegation that our client discriminated against him on the basis of his race or national origin. Accordingly, OCR closed the complaint.

The Epstein Becker Green team was led byPatrick G. Brady.

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.

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.

Assisting 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.

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.

Obtaining 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:

  1. 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.
  2. 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.
  3. 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.

Securing an Appellate Court Victory in an ADA Case of First Impression

Epstein Becker Green recently achieved a significant victory on behalf of a leading global media organization in connection with an appeal involving a question of first impression for the U.S. Court of Appeals for the Second Circuit. Among other claims, the former employee alleged that our client violated the Americans with Disabilities Act (“ADA”) in failing to provide a reasonable accommodation for his migraine headaches, which, according to his treating physician, were triggered by stress resulting from what the employee perceived as unjustified critical reviews of his performance. Specifically, the former employee sought a transfer, indicating that he could perform the same job, or a similar one, if supervised by different managers. He was not transferred, and, ultimately, his employment was terminated based on a consistent record of subpar performance. A district court dismissed the former employee’s ADA (and other federal) claims, opining in pertinent part that the former employee was not “disabled” within the meaning of the ADA, largely based on his own admission that he could “do the exact same job he had been doing” as long as he was under new supervisors. 

On appeal, the former employee contended that the district court impermissibly relied on authority that pre-dated the ADA Amendments Act of 2008 (“ADAAA”) in holding that the former’s employee’s claimed inability to perform a single job, for particular supervisors, did not meet the standard for disability. On behalf of its client, Epstein Becker Green argued that nothing in the ADAAA suggests that the courts should “abandon the common-sense principle that one’s claimed inability to perform only his specific job (particularly because of stress arising from the particulars of that job) does not amount to a substantial limitation on the life activity of working.” Indeed, although this was an issue of first impression for the Second Circuit, other federal circuit courts of appeal have concluded that, even post-ADAAA, one’s claimed inability to perform a single job does not rise to the level of disability. In a per curiam opinion, the Second Circuit agreed, invoking the language from Epstein Becker Green’s briefing: “[N]othing in the ADAAA’s text, or its legislative history for that matter, suggests that Congress intended to modify, let alone abandon altogether,” the “longstanding, common‐sense principle of law [that] recognizes that employees who are precluded only from doing their specific job, or from working under a specific supervisor, do not have a ‘disability.’”

The Second Circuit’s decision in this case is an important win not only for our client but for employers in general, insofar as it clarifies the outer limits of the ADAAA and discourages “failure to accommodate” claims based on symptoms arising from conditions unique to an employee’s particular job circumstances, including his or her relationships with supervisors. 

The Epstein Becker Green team included David W. Garland and Edward M. Yennock

Successfully Defending Clients Wrongfully Accused of Sexual Harassment and Retaliation

Epstein Becker Green recently achieved a significant victory on behalf of two clients—a communications company and its corporate parent—in a matter that was filed in a federal court in New York by a former employee of the communications agency. The plaintiff alleged that she was sexually assaulted at a vendor-sponsored after-work event by an employee of the one of the communication company’s clients. The plaintiff asserted various claims against her employer and its parent company, her employer’s client, and the individual that she alleged harassed her, including claims for sexual harassment and retaliation under federal, state, and city laws. Epstein Becker Green moved for summary judgment on all claims, and the court granted the motion in its entirety.

The court dismissed the sexual harassment claim, finding that despite the manager’s failure to immediately report the complaint, the communications company took appropriate and timely remedial action in response to the plaintiff’s harassment complaint. The court repeatedly focused on the plaintiff’s deposition testimony, where she said she did not think that HR could have done anything better or faster in response to her complaint.  Additionally, the court dismissed the plaintiff’s retaliation claim, finding no adverse action and no causal connection between her protected activity and the alleged adverse conduct.

The Epstein Becker Green team included Ronald M. Green, Lauren Malanga Casey, and Maxine Adams.