SAN FRANCISCO ­­—For nearly four months a pregnancy discrimination suit against cloud-computing firm EMC Corp. has been the litigation equivalent of a pinball.
First filed in Santa Clara County Superior Court, the suit was removed to federal court, where it was initially assigned to a magistrate judge in San Jose and then passed off to two district judges. On Tuesday U.S. District Judge William Alsup in San Francisco, the latest judge to have the case on his docket, bounced the matter back to the Northern District’s San Jose division.
Just where the dispute will ultimately land, though, is still up in the air. Plaintiff Daphne Chau wants it remanded to state court. Meanwhile, EMC, a Massachusetts-based IT company with over 60,000 employees worldwide, is seeking to compel arbitration.
And though Alsup ordered the case transferred to the San Jose branch, it has yet to be assigned to one of the four district judges assigned there.
The perpetual motion of the case began in September. Represented by Dru Anne Keegan of Keegan & Associates, Chau sued EMC, EMC Peripherals Inc. and five supervisors alleging that she was harassed, ostracized, retaliated against and then ultimately forced out following the announcement of her pregnancy despite years of positive reviews.
The following month EMC’s legal team led by Lynne Hermle of Orrick, Herrington & Sutcliffe bumped the case from Santa Clara County Superior Court to federal court for the Northern District of California, where it was assigned to U.S. Magistrate Judge Howard Lloyd in San Jose.
Once EMC declined to have the case heard by a federal magistrate, the case was reassigned to U.S. District Judge Jeremy Fogel, who technically sits on the Northern District but is on leave as head of the Federal Judicial Center in Washington, D.C. As a result, the case was automatically reassigned on a district-wide basis, this time landing in Alsup’s San Francisco courtroom.
Last month, plaintiffs asked Alsup to transfer the case back down to San Jose saying it was the most convenient location for all parties. Alsup agreed, noting there had been no opposition from the defendants. “Plaintiff resides in Santa Clara County, as do two individual defendants,” he wrote. “As such, the ease of access to sources of proof and the relative convenience to the parties and witnesses also tip in favor of transfer at this point.”
But with rival motions pending, the question of venue is far from resolved.
Chau’s suit alleges nine causes of action against the company, including discrimination based on pregnancy, failure to prevent discrimination and wrongful termination. The allegations against individual defendants include harassment, retaliation and intentional infliction of emotional distress.
Chau, hired by EMC as a program manager in 2007, worked for the company through 2012, receiving consistently favorable performance reviews, according to her suit.
“All that changed immediately following the announcement that she was pregnant,” Keegan states in a court filing. “Within days following that announcement, Plaintiff was essentially stripped of her duties and ostracized.”
Chau received her first poor performance review after requesting information and paperwork concerning maternity leave, according to Keegan. Four days later, Chau was informed that her position was being eliminated and that she was being discharged.
Keegan insists the case should be tried in Santa Clara county court.
Meanwhile, EMC’s lawyers are angling to move the case out of a public courtroom. Chau’s attempts to litigate the case are “precluded by her clear written agreement to arbitrate all claims arising out of her employment,” Orrick’s Hermle argued in a motion to compel arbitration.
“Plaintiff and defendant entered into a valid and binding arbitration agreement, and plaintiff’s claims fall squarely within the scope of that agreement,” she added.
An EMC spokesperson did not immediately respond to a request for comment.
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