Former Dechert Associate's Retaliation Claim Goes Forward in 'Macho Culture' Case
The National Law Journal
A former Dechert associate who alleges that the firm's macho culture caused his work troubles may proceed with his retaliation claim against the firm based on the Family and Medical Leave Act.
On October 17, a Boston federal judge denied summary judgment to Dechert on Ariel Ayanna's retaliation claim. But the judge, Nathaniel Gorton, granted the firm's summary judgment motion on Ayanna's claim under a Massachusetts sex discrimination law. Gorton's dismissal of the state law claim followed his January dismissal of Ayanna's state law handicap discrimination claim.
A jury trial on Ayanna's Family and Medical Leave (FMLA) Act retaliation claim is slated to start on November 14.
Ayanna worked in Dechert's financial services practice group from September 11, 2006, until December 17, 2008. After his second child was born, he used paid paternity leave and FMLA time to care for his children and mentally ill wife. His job was terminated four months later.
Ayanna sued in December 2010, and his most recent complaint alleges that "the culture for men at Dechert is a 'macho' one which praises and encourages male associates and partners to fulfill the stereotypical male role of ceding family responsibilities to women."
In his recent ruling, Gorton wrote that "when viewed in the light most favorable to Ayanna, there is sufficient evidence to support a finding that his FMLA leave and his termination were related, whether or not there was temporal proximity.' "
"While the Court finds plaintiff's claims somewhat dubious at this stage, viewing the facts in the light most favorable to Ayanna and drawing all reasonable inferences in his favor, it acknowledges that Ayanna has presented sufficient evidence to raise a genuine issue of material fact as to whether that proffered reason was actually a pretext for retaliation," Gorton wrote.
Gorton noted several factual issues that underpinned his ruling. One was the fact that Ayanna was told that he was fired because of his "fair" rating and his "personal issues."
"A reasonable jury could find that the comment was directed at Ayanna's recent need to take FMLA leave," Gorton wrote.
Second, Gorton observed that there is a factual dispute about "whether Ayanna's billable hours were low because the firm purposefully withheld work from him in retaliation for taking FMLA leave." Gorton noted that there's also a dispute about whether the firm approved of Ayanna's reduced billing during a temporary work assignment in Germany.
Finally, Gorton wrote that, unlike most of the other Dechert attorneys who were fired around the same time, Ayanna met his billable hours target the year before: "While several other associates who were terminated were warned during 2008 that their billable hours were disappointingly low, Ayanna apparently was not given any such warning prior to his termination. That calls into question Dechert's claim that Ayanna was terminated solely because of his low billable hours."
In dismissing the state sex discrimination claim, Gorton noted that there's still a dispute about whether Ayanna's low billable hours stemmed from Dechert's alleged discriminatory treatment: "Even presuming that Ayanna can make out a prima facie case of disparate treatment sex discrimination,…he has offered no evidence that his termination for low billable hours was actually a pretext for terminating him because he was a male who was also a caregiver. His broad claims about the macho' culture at Dechert, without any facts specifically showing instances of discrimination against him, are inadequate to support a finding that he was fired due to his gender."
Gorton also wrote that there's evidence that female lawyers "also experienced negative outcomes at Dechert" for taking on caregiving roles.
In addition, Gorton denied Dechert's summary judgment motion requesting to bar Ayanna's claims because he improperly expensed food and transportation costs to the firm.
Gorton wrote that the firm has not proven that it has ever fired anyone just for making improper expense reports. He noted that on the same day Dechert first notified Ayanna that it had discovered the improper expenses, it also certified to the Massachusetts Department of Unemployment Assistance that he had not engaged in any "misconduct or violation of company rules or policy.…As a result, Dechert's after-acquired evidence does not prove that Ayanna would have been fired on that ground alone and thus summary judgment on that ground is unwarranted."
Dechert declined to comment, said spokesperson Beth Huffman. Danny Cloherty, a partner at Boston-based Collora LLP and the firm's lead lawyer on the case, also declined to comment.
Ayanna's lawyer, Rebecca Pontikes of Boston's Pontikes Law LLC, said, "We're gratified to see that Judge Gorton recognized that there was evidence here for pretext for retaliation… We're glad it's moving forward."
Ayanna seeks back and front pay, lost benefits, damages for emotional distress, punitive damages and attorney fees and costs.
His complaint asked the court to order Dechert "to institute and carry out policies, practices, and programs that eradicate unlawful stereotyping of male care-givers."
This article originally appeared in The National Law Journal. In an earlier version of this article Rebecca Pontikes' law firm was incorrectly identified. It is Pontikes Law LLC.