The U.S. Court of Appeals for the Second Circuit has upheld dismissal of a case brought by a black lawyer against Akin Gump Strauss Hauer & Feld who claimed she was fired as an associate because of her race. Tameka Simmons claimed in her civil rights lawsuit that a slump in the economy in 2009 was used by Akin Gump as a pretext for a race-based firing. But the circuit, by summary order in Simmons v. Akin Gump, 11-4480, said the deep recession that began in 2008 and its effect on Akin Gump’s legal business drove layoffs and was not used as cover for dismissing Simmons.

Upholding a 2011 grant of summary judgment to the firm by Southern District Judge Jed Rakoff, Judges Robert Sack, Denny Chin and Raymond Lohier Jr. said that “the circumstances here do not give rise to a reasonable inference of discrimination due to her race.” The panel continued, “The undisputed facts below showed that the Firm—like many other law firms throughout the country—was experiencing significant economic difficulties in 2009. The bankruptcy of Lehman Brothers in 2008 decreased the revenue and average billable hours of the New York Investment Funds Practice Group … for the following year by 26 [percent] and 14 [percent], respectively.”

The panel noted that the firm went on in March 2009 to lay off 47 of the some 760 attorneys in its major U.S. offices and said in April 2009 it was deferring start dates for incoming associates. Simmons was told in September 2009 she would be out at the close of the year, but the court said a reasonable jury “could only reject Simmons’ argument” that the decision “was based at least in part on race.” “Indeed, the undisputed facts show that, at least in one instance, the Firm treated her more favorably because of her race,” the court said, as she was kept off a March 2009 termination list “at least in part in the interest of diversity.”