Nicholas Malfitano Jan. 7, 2016, 9:12am


PHILADELPHIA – A Philadelphia woman’s gender and age discrimination lawsuit against Dell is now headed to federal court in Texas.

Per a Dec. 29 decision from the U.S. District Court for the Eastern District of Pennsylvania, Mary Jane Vesey’s discrimination suit is being transferred to the U.S. District Court for the Northern District of Texas, after a successful motion from Dell Marketing, a wholly owned subsidiary of Dell, Inc.

Vesey began working for Perot Systems, Inc. in October 2008, and her employment agreement stipulated her position as one of an “at-will” status (where an employee may quit or be terminated at any time, with or without cause and/or notice), and that any legal claims resulting from her employment would be governed by the laws of the state of Texas and be subject to hearing in Dallas, the location of the U.S. District Court for the Northern District of Texas. 

Dell acquired Perot Systems in September 2009. Thereafter, Vesey continued her employment by working remotely for Dell, based from her home office in Philadelphia. Vesey’s position at Dell was later eliminated, and her employment was terminated on Sept. 19, 2012. At the time, Vesey was 56 years old.

Vesey filed her lawsuit in the U.S. District Court for the Eastern District of Pennsylvania on March 24, alleging Dell gradually relieved her of her extensive sales duties and transferred them to younger, male employees, despite her long and established track record of success in technology sales. 

Vesey’s suit included allegations of Dell violating Title VII of the Civil Rights Act of 1964, Pennsylvania’s Human Relations Act (PHRA), Age Discrimination Employment Act (ADEA) and Wage Payment Collection Law (WPCL), plus a claim for breach of contract. Between lost wages, legal fees and other penalties, Vesey sought in excess of $150,000 in damages from Dell.

Citing the forum selection clause in Vesey’s employment agreement, Dell motioned to transfer the case to Texas in May, while Vesey claimed Dell “didn’t have standing” to utilize that clause and opposed the transfer due to “exceptional circumstances.”

Judge Joel H. Slomsky decided whether the forum selection clause was “valid and enforceable” and the veracity of Vesey’s “exceptional circumstances” as they related to the requested transfer of the case.

“Dell acquired Perot through a stock purchase. Accordingly, pursuant to precedent in both Pennsylvania and the Third Circuit, no assignment of the employment agreement was necessary given Dell’s acquisition of Perot through the stock purchase,” Slomsky said. “Therefore, Dell has standing to enforce the provisions of the employment agreement, including the forum selection clause.”

Slomsky went on to say after the requisite consideration of both public and private interest factors, Dell had the right to have the case heard in Texas.

“Defendant submits that the only relevant public interest factor that should weigh in favor of maintaining venue in Pennsylvania is the ‘local interest’ that Pennsylvania has in deciding a case in the jurisdiction in which Plaintiff resides,” Slomsky said. 

Dell argued because Vesey did not point to additional public interest factors weighing against transfer, that she did not meet her burden to demonstrate that those same public interest factors “overwhelmingly disfavor a transfer.”

Slomsky concurred. 

“Allowing employees to resolve claims in the jurisdiction of their employment is insufficient to overcome the burden placed on a party opposing a forum selection clause,” Slomsky said. “This factor, standing alone, does not ‘overwhelmingly disfavor’ transfer.”

Slomsky then approved the transfer of Vesey’s case to the U.S. District Court for the Northern District of Texas. 

The plaintiff is represented by James F. Ryan of Schwabenland & Ryan, in Wayne.

The defendant is represented by Michael Burkhardt and Eric C. Kim of Morgan Lewis & Bockius, in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-01487

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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