Scrappy plaintiffs' lawyers? I wouldn't call them that.

Is Mr. Leonard a credible commentator? In other words is he someone whose views foreshadow the judge's ruling?

To 4:37: HI CHARNEY!

Does anyone know an e-mail address for Aaron Brett Charney? I wanted to send him a note and cannot locate it.

www.bencherelections.com is an interesting site. Sounds like the Watergate scandal.

www.bencherelections.com is an interesting site. Sounds like the Watergate scandal.

It appears on the last page of his Complaint (pdf file):

http://www.aaroncharney.com/complaint.pdf

I just call 'em as I see them, and my summary is cautious because I don't know anything about this judge. If I was judging the case, I would definitely deny S&C's motion to dismiss Charney's complaint. I'm not so sure that I would dismiss S&C's complaint on a motion to dismiss, although I do think that the motion raises lots of good arguments. The biggest complication I see on that motion at this point is the issue of the "destroyed" hard drive, which at least theoretically could have contained documents that would have provided probative evidence in support of S&C's claims as far as their third and fourth counts go. Charney's main argument on those counts, which concern the documents, is mootness - but it's hard to tell if the claim is moot without knowing the contents of the hard drive.

I have the hard drive

Here's what rubs me the wrong way about Art Leonard's commentary - he spends a lot of time giving his "opinion" that ABC's retaliation claim will be easier to prove than his discrimination/hostile environment claim.

Well, duh. This is not opinion and it's not revelation. It's a well-known fact that the standard of proving unlawful retaliation is *always* extremely easier to prove than the underlying discrimination claim. That Art Leonard spends more than one sentence discussing this fact and than passing it off as it's some expert legal conclusion he's arrived at is silly.

To prove unlawful retaliation - all a plaintiff in an employment discrimination complaint has to do is show *any* action the employer has taken that would dissuade a reasonable person from complaining about discrimination (no matter how bs the discrimination claim is). This is an extremely low standard. Employers routinely piss off employees - it happens. Any plaintiff's attorney worth anything can spin any mildly negative action into retaliation - for example - "I wasn't allowed to be a summer associate mentor - that can only mean sinister retaliation!"

To prove a discrimination or hostile environment claims is a much harder standard - namely because you'll have to demonstrate the discrimination or harassment was linked to your protected characteristic. In hostile environment cases, you'll also have to demonstrate that the unlawful hostility was either severe or pervasive. "Severe" or "pervasive" "unlawful behavior" is a lot harder to prove than *any* otherwise lawful act that would dissuade a reasonable employee from complaining about discrimination.

That’s why so many employment discrimination cases involve plaintiffs who realize their job is in danger for poor performance, so they complain they are being discriminated against to save their jobs, and then add a retaliation charge the second they get disciplined again for poor work or their boss denies them a day off because the department is busy.

I've also posted before about Art Leornard's finding it somehow strange that S&C didn't argue the merits of their case on the motion to dismiss despite the extremely leeway given to plaintiffs in employment discrimination complaints and it’s pasted below:

Interesting article from Professor Leonard.

But I found the following passage odd: "One would expect S&C's dismissal argument to address the legal theories underlying Charney's complaint and argue that even if his allegations were accepted as true, they would not as a matter of law establish liability for the firm.
But in a legal memo supporting the motion, S&C argues for a different approach. While noting in passing that S&C continues to dispute Charney's allegations, it makes no arguments on employment discrimination law."

In my opinion, Professor Leornard may be mixing up the realities of a motion to dismiss and summary judgment.

In my experience, making a motion to dismiss an employment discrimination complaint, lawyers don't focus on denying plaintiff's allegations or making arguments on "employment discrimination law." Rather, you argue that Plaintiff failed to state a claim or his pleading was defective.
Given the natural leeway most judges afford employment discrimination plaintiffs, motions to dismiss employment discrimination cases are rare and are made in extraordinary cases. This is an extraordinary situation. Although S&C will lose their motion, they had to make it - ABC attaching such irrelevant and embarrassing material to his complaint could not be ignored. Even though filing its motion may bring more attention to the documents in question, the cat was already in the bag and S&C had to highlight to the court that ABC is someone who has no qualms about conducting this litigation through cheap shots, running to every media outlet, and has a hightened sense of entitlement (5 million for two ambiguous comments and not being able to mentor a summer associate. wha?)

In my experience, the rules in motion to dismiss are very different in employment cases than other litigation. Judges give employment discrimination plaintiffs huge amounts of leeway, and notice pleading is pretty tough to get by.

Slightly oversimplified: in employment discrimination claims all you have to do to state a claim is say (1) defendant is/was your employer (plus the proverbial claim that you were a model employee), (2) you are in a protected class (everybody is), (3) name the adverse employment action taken or barely describe that the working environment was "hostile", (4) say you were discriminated against only because you are gay/black/white/female/male/shiite/catholic/bolivian/disabled/veteran, etc.... and (5) claim you've been damaged. Interestingly, *all* plaintiffs in employment cases invariably end up with a diagnosis of severe post traumatic stress disorder, no matter the severity of their allegations or the length of their employment.

Plus, the new york city discrimination law is required to be interpreted more “liberally” than its federal or state law counterparts.
This isn’t much of a hurdle, and most employers don’t even try to make a motion to dismiss. In this case, the judge would look at ABC’s complaint, see that its extremely long and say he states a claim.

Since when do Motions to Dismiss rely on facts other than those in the pleading under attach that are also not subject to any conceivable theory of judicial notice? All of these filings attach numbers exhibits and lawyer declarations. Additionally, how can the Court decide if what is in ABC's Complaint is truly a client confidence without findiing some external facts?

This is one wacky case.

I have to disagree with 11:54. At least in federal courts, lots of employment discrimination claims get tossed on motions to dismiss in hostile environment cases, by judges who say that the factual allegations, taken as true for purposes of deciding the motion, do not depict conduct severe or pervasive enough to meet the bar set by existing appellate precedents. And so one would expect at the last an argument from S&C that the incidents alleged by ABC are neither severe or pervasive enough.

Art Leonard: "lots" of employment cases get tossed on motions to dismiss in the federal realm for not pleading "severe" or "pervasive" harassment? I just did an online search for motion to dismiss and hostile environment cases in the last year in the federal NY circuit. I didn't see many of these cases. I'll take your word for it that they're out there, but are you sure it's "lots"? really?

Art Leonard is right - especially in the SDNY, which is particularly dismissive of such cases. If you want to confirm you can search courtweb ( http://www.nysd.uscourts.gov/courtweb/public.htm ) for the words Title VII and discrimination.

i have never seen a employment discrim claim dismissed at the MTD stage.

I just want to remind everyone that are tens of thousands of people in a far worse situation than Charney. Us tier 2 grads will never work S&C, we'll never get Alterman to represent us, we'll never get Art Leonard writing about us and no one ever hears of us.

The only thing we have to look forward to is $1,200/month in student loan payments and miserable $50k/year sweatshop jobs.

Shut up, L2L. Your schtick got old months ago.

Schtick? Do you think all downtrotten people are doing schtick?

I'm gay just like Charney and John Edwards!

To 9:51 (yesterday)

"Title VII and discrimination" is the wrong search. That search will lead you to summary judgment cases. In summary judgment, about 50% of discrimination/hostile environmetn cases get dismissed (the 50% dismissal rate is higher where the plaintiff is pro se and lower when plaintiff is represented). The search should be narrowed to hostile environment and motion to dismiss.

Courts are loathe to dismiss employment discrimination cases on motions to dismiss for failure to state a claim. Employment cases dismissed on a motion to dismiss usually involve defects like statute of limitations. In employment discrimination cases, courts note that not every fact of a Plaintiff's case needs to be laid out in their Complaint.

Art Leonard may be a smart guy, but he is wrong to say "lots" of hostile environment cases get dismissed based on the argument that the employee didn't lay out a legally hostile environment in his complaint.

9:14, your post makes no sense. Are you even a lawyer?

I'm 9:18. That sounded rude. Excuse me. I just didn't understand your point.

I agree with 9:14. Not many hostile work environment cases get dismissed on motions to dismiss for the reasons Art Leonard says they do.

I haven't seen any. I'm sure there maybe a few occassions when it has happened. But in reality, it doesn't happen much.

9:18/9:34: what are you not getting? Can't read? The point is pretty simple.

I have a feeling the problem with 9:18/9:34 is some combindation of: (1) he/she didn't read the whole thread, (2) isn't a lawyer, or (3) is ABC.

I didn't understand the post either. It's incoherent.

You may not agree with it, but it's not incoherent.

Can anyone point to cases where courts in NY dismissed a hostile work environment claim on a motion to dismiss because the allegations in the complaint didn't allege a "hostile" enough environment?

Arthor Leonard says there are "lots" of such examples. Would love to see some of them.

This is like a game of telephone... If things get repeated often enough down the line, they get terribly distorted. I never said there were "lots" of NY cases dismissing hostile environment claims. I said there were lots of cases without specifying jurisdictions.

I've been doing a newsletter on LGBT law for the past quarter century. Since the early 1990s I've been doing almost daily Westlaw searches to find material for the newsletter. Over the course of that time I've scanned a large number of hostile environment opinions because the general search terms I use tend to turn them up in quantity, especially if they involve same-sex harassment claims. It is my impression from this reading over many years that courts frequently dismiss these claims on the basis that the facts alleged in the complaint cannot, as a matter of law, be found to create a hostile environment, usually because they involve a few isolated incidents, none of which in themselves are particularly horrific, or because the employer quickly reacted to reports of the incidents and took steps to remedy the situation...

Whoever Anonymous is (don't you just love folks who like to attack folks behind anonymity?) - you may be correct that more often these are disposed of on s.j. than on motions to dismiss, but my impression - and this is entirely impressionistic - is that there are plenty that are on dismissal motions. If somebody wants to do an empirical study, we could settle the argument. That's neither here nor there to the main point of my description of the papers filed by Charney's lawyer on March 1.

I certainly agree that it is unlikely that S&C is going to win its dismissal motion. I just thought it was odd that they failed to even make the argument that the factual allegations didn't amount to a valid hostile environment claim, even as a throwaway argument in a motion that otherwise focused entirely on a rather novel argument that associates can't sue law firms for discrimination if litigating the claim will involve mentioning particular clients.

On the other hand -- I'm an academic lawyer, not a litigator or practitioner. I last practiced law in 1982, when the federal judiciary wasn't quite so heavily stacked with district judges actively hostile to civil rights legislation. My impressions of the situation these days are formed mainly by reading cases as they come out, and I know that cases making their way into Westlaw are probably a small percentage of all dispositions. So if somebody who is an active litigator suggests that my impression based on this reading is incorrect, I stand corrected.

But I'd like to hear "Anonymous's" analysis of the motion to dismiss the S&C complaint....

"I just thought it was odd that they failed to even make the argument that the factual allegations didn't amount to a valid hostile environment claim"

Because losing the MTD on that meritless ground would be reported all over the press, and unnecessarily humiliate the firm.

"Whoever Anonymous is (don't you just love folks who like to attack folks behind anonymity?) -"

Howdy Art Leonard - it's one of the anonymouses that disagreed with you. Disagreeing with you doesn't mean you were "attacked." Dunno why you feel the need to use hyperbole. There is no need to feel embarrassed for being corrected and it may help you become a better lawyer/educater/blogger

I honestly have never seen cases in NY in the last few years that have dismissed a hostile environment claim because the complaint didn't plead a hostile enough environment. I don't think any "empirical" study is needed - I'd just like to see a few, (a couple?) of recent cases. S&C probably researched this issue and couldn't find enough support to make the argument in its MTD. So it's not so "surprising" or "odd" the argument wasn't made. S&C doesn't have to make ridiculous arguments in its MTD. I've said I'm sure there maybe a couple out there, but in reality, it doesn't really happen. My guess is, and admittedly it's only a guess, if S&C did claim the environment wasn't hostile enough, you would be the first one to harp of them for making the argument. Courts routinely let this issue play out in discovery.

Since you chided me for remaining "anonymous," I'll let you know that the reason I'm anonymous is that I'm posting when I'm supposed to be working as a *Plaintiff's* lawyer in a civil rights firm. My firm in a heartbeat would have rejected this case. There may have been some mean partners at S&C, but there's no evidence of discrimination. This case gives true civil rights claims a bad name. It also explains why LeGal declined to take ABC's case. That says a lot.

Thanks for responding, Anonymous!
LeGaL doesn't take cases, it's a Bar Association. It was Lambda that wouldn't take the case.

And if your firm wouldn't take this case in a heartbeat because "there's no evidence of discrimination," that suggests that maybe S&C could have won a motion to dismiss on the merits, at least on the discrimination claim, and would have narrowed the case to a retaliation claim.

But on to more interesting stuff.... What do folks think about S&C's chances of winning their motion to dismiss on the theory they are pursuing? Or for that matter Charney's chances of winning his motion to dismiss? I was thinking that S&C's complaint and Charney's response would make great fodder for the Legal Profession class, and for this blog.... Are Charney's attorneys correct in arguing that a BigLaw associate has no fiduciary duty to the firm? Or that a confidentiality agreement signed by an at-will employee of a law firm is not enforceable as a contract in New York? Those sounded like good arguments to me. What do the litigators think?