An attorney representing Ropes & Gray insisted at a Wednesday hearing that the firm fired a 63-year-old female partner in the fall of 2010 because it no longer made economic sense to keep her, not because it was discriminating or retaliating against her.
Based on that argument, Proskauer Rose labor and employment partner Bettina Plevan attempted to persuade U.S. District Judge John Koeltl to dismiss on summary judgment a lawsuit brought against Ropes in March 2011 by former firm partner Patricia Martone.
While the two-and-a half-hour-long hearing failed to produce a ruling, it did portray Ropes as a place where individual partners don’t know how much compensation anyone but they themselves receive and where management is quick to cast aside aging partners whose business has floundered. Martone, a patent litigator who is now with Morrison & Foerster, claims in her suit that Ropes management undermined her Asia-focused intellectual property practice for years, routinely passing off her clients and cases to younger male partners and eventually terminating her after she complained about being discriminated against.
Both parties agree that Martone, who joined Ropes in a 2005 merger between the Am Law 100 firm and intellectual property boutique Fish & Neave, approached management in June 2010 to request an investigation into what she felt was discriminatory behavior. The firm subsequently hired O’Melveny & Myers to conduct a months-long inquiry, and Ropes chairman R. Bradford Malt informed Martone at a meeting in October that rather than uncovering evidence of discrimination, the inquiry had found the economics of her practice "unsustainable," according to her complaint. Malt terminated her at that same meeting.
During Wednesday’s hearing, Koeltl zeroed in on the series of events at issue, calling the timing of Martone’s firing so soon after the investigation was completed "troubling." Koeltl did not rule from the bench, saying at the conclusion of the hearing that he would make a decision in a few weeks and urged the two parties to discuss a settlement in the meantime.
Plevan stressed Wednesday that the timeline was not suspicious and that Ropes would have fired Martone sooner if not for the delay caused by the investigation. Plevan described what she termed a course of "progressive discipline" involving Martone that began with the conclusion of two patent cases in 2007, including one for longtime client Sanyo. "She was never able to replace that work," Plevan said. "After mid-2007 she never generated any significant business."
In court filings, Martone tells a different story, describing new work she brought into the firm up until September 2010, the month before she was fired. Martone says she played a key role in helping the firm launch its first international office, in Tokyo, in 2007. The firm sent two male partners in their 40s to work from Japan full time, naming Martone head of U.S. operations for the practice.
The situation between the partners in Japan and Martone quickly deteriorated, however, with the firm criticizing her for being "too controlling" of the Japan practice and asking her to cede responsibility and pass off her clients there to the younger men, according to her complaint. As a result, her business declined from $10 million in 2006 to $1.4 million for the 12 months ending in August 2009, according to an amended complaint filed in July 2011.
Plevan said during Wednesday’s hearing that as Martone’s book of business suffered and her interpersonal relationships with other lawyers in the firm grew tense, management took steps to remedy the situation. By January 2009, the firm had placed her on a "watch list" of partners with soft hours and no big cases on the horizon, although Plevan acknowledged that others on the list were in more serious trouble than she was.
In March 2010, the firm’s evaluations of Martone noted that she had no external prospects for clients and would need to look internally for referrals. Two months later, around the time she approached management about the alleged discrimination, she was identified as one of 10 partners with the lowest viability and no action plan, Plevan said. That same month, according to Plevan, Martone asked firm management if she was going to be fired, and was told there were no immediate plans for that to happen.
Koeltl urged Plevan to explain how the situation eroded so quickly. "She’s told she’s not being terminated," Koeltl said of the May 2010 meeting, "And until her firing, what’s in between, other than the O’Melveny investigation?"
In the interim, Plevan answered, Ropes decided to go through with the "exiting" process for the partners on the list of low performers. Finalizing Martone’s firing, however, had to wait until the conclusion of the investigation. "What we’re left with is this proverbial second-guessing of a decision that was made," Plevan said.
In arguing that the firm discriminated against Martone based on her age, Martone’s counsel, labor and employment lawyer Anne Vladeck, also pointed to the firm’s mandatory retirement age of 65 and what she said was an unfair proposal presented to Martone at the time of her dismissal that would have denied her some of the retirement benefits to which she was entitled. "Age permeates all decisions at Ropes," Vladeck said.
At the time of her firing, Martone was told that if she took early retirement and did not move to a competitor, she could collect retirement benefits—a number Koeltl pegged at $67,500 annually. (Details of the vast majority of Ropes’s arguments, including many firm policies, have been filed under seal.)
Martone argues that she should have been able to collect a more lucrative retirement package reserved for legacy Fish & Neave partners—benefits Vladeck said were $124,000 annually plus a $517,000 bonus spread over five years. (Whether or not the retirement question is a moot point in light of Martone’s move to a competitor was not resolved Wednesday. Attorneys for both parties declined to comment after the hearing.)
For its part, Ropes said in a statement, "While we don’t comment on pending litigation, Ropes & Gray is proud of its record of creating a diverse and inclusive environment." Among its recent accomplishments on that front, the statement said, are a "Gold Standard" from the Women in Law Empowerment Forum in 2012 and a "Strength in Diversity Award" this month from Managing Intellectual Property magazine.
Just before announcing that he would not be issuing a ruling, Koeltl pondered a question neither side seemed to be asking: "Isn’t the plaintiff better off where she is now?"
Despite having higher pay and more congenial colleagues at MoFo, ultimately, Vladeck said, "The answer is ‘No.’ "