PHILADELPHIA – A federal judge has granted a Philadelphia law firm’s motion to quash a subpoena in litigation brought by its former chief marketing officer, who alleged she was fired when she complained of racially discriminatory practices within the firm.
Ellen Ragone of Cherry Hill, N.J. first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on July 2 versus Weber Gallagher Simpson Stapleton Fires & Newby, LLP and Weber Gallagher Simpson Staple, both of Philadelphia.
“Plaintiff began working at defendants on or about April 30, 2012. Throughout plaintiff’s employment, she held the position of Chief Marketing Officer. Since in or about January 2013, plaintiff reported directly to Patrick Stapleton, Partner. In or about January 2018, plaintiff also started reporting directly to Andrew Indeck, Firm Chair, while continuing to report to Stapleton as well. At all times material hereto, plaintiff consistently demonstrated excellent performance throughout her employment with defendants,” the suit said.
“In or around early 2018, plaintiff’s direct report, Bisa Lindsay (Black), Marketing Coordinator, resigned from her employment at defendants. Lindsey told plaintiff that, during her exit interview, while she had praised plaintiff’s performance as her supervisor, she complained of defendants’ race discriminatory conduct, including the following: (a) Defendants did not support their minority employees; (b) Lindsey, as a Black woman, did not feel comfortable working at defendants; and, (c) She did not feel that defendants valued their employees of color.”
After receiving an anonymous letter accusing the firm of treating Black employees less favorably than white ones, the firm met with their employees and stated only that they did not discriminate on the basis of race.
When it came to Ragone’s attention in July 2019 that a Black marketing coordinator at the firm was being compensated at a higher level than her white marketing assistant, she said she brought up the disparity to management and told them to rectify it.
After doing so, Ragone said not only was the discrepancy between the Black and white employees not changed, Ragone said she faced retaliation from her superiors in the form of management ignoring her and excluded her from communications related to her job responsibilities, management unjustly criticizing the plaintiff and blaming her for issues that were outside of her control and/or responsibility, and undermining the plaintiff’s authority by preventing her from taking action that she felt appropriate regarding her direct reports.
“In or around January 2020, plaintiff learned that defendants had posted her position. When plaintiff asked Indeck about the posting, he stated that defendants had not made any decisions regarding her employment at that time. On or about March 27, 2020, defendants informed plaintiff that they were terminating her employment, effective April 17, 2020. Defendants told plaintiff that they had already hired her replacement. They instructed her that she was to train her replacement until the effective date of her termination,” the suit said.
“Defendants failed to provide plaintiff with an explanation as to why they terminated her employment. They told plaintiff that her termination was not ‘COVID-related.’ When defendants provided plaintiff with a ‘Transitional Employment Agreement’ that offered her severance in exchange for a release of all of her claims, it falsely stated that defendants and plaintiff had ‘mutually agreed’ to end her employment. On or about April 7, 2020, defendants asked plaintiff if she wanted to submit a letter of resignation. Plaintiff responded that she would not submit a letter of resignation, as she did not resign and it was not her decision to separate her employment with defendants.”
Ragone added the defendants replaced her with an individual who was approximately 25 years younger, and less qualified, than her.
Furthermore, at around the same time that defendants terminated plaintiff’s employment, they also terminated the employment of other older employees, all of whom were, to plaintiff’s information and belief, over the age of 50. To Ragone’s information and belief, she was the oldest employee reporting to Indeck and Stapleton.
“Plaintiff’s age was a motivating and/or determinative factor in connection with defendant’s discriminatory treatment of plaintiff, including terminating her employment. Plaintiff’s complaints about defendants’ discriminatory conduct were motivating and/or determinative factors in connection with defendant’s retaliatory conduct to which plaintiff was subjected, including terminating her employment,” per the suit.
“Defendants failed to prevent or address the discriminatory and retaliatory conduct referred to herein, and further failed to take corrective and remedial measures to make the workplace free of discriminatory and retaliatory conduct. The retaliatory actions taken against plaintiff after she complained of discriminatory conduct would have discouraged a reasonable employee from complaining of discrimination.”
In an answer from the firm filed on Sept. 2, it denied that Ragone had consistently achieved excellent performance in her role as chief marketing officer.
“Defendant specifically denies that plaintiff consistently demonstrated excellent performance throughout her employment with defendant. By way of further response, plaintiff demonstrated a lack of attention to detail, candor and professional judgment, ultimately resulting in the decision to terminate plaintiff’s employment following multiple offers by her to resign,” the firm’s answer stated.
“To the extent that they are factual in nature, they are denied. Responding further, plaintiff’s termination followed a series of well-documented performance issues and counseling discussions, and plaintiff’s offers to resign.”
Additionally, the suit denied Ragone’s assertions that she was fired for reporting allegedly racist practices and put forward 13 separate affirmative defenses.
“Plaintiff’s complaint fails to state a claim upon which relief may be granted and fails to state a claim upon which an award of punitive damages may be granted. Plaintiff’s complaint fails to state a claim upon which an award of emotional distress and pain and suffering damages (whether equitable or legal in nature), costs and expenses incurred, and attorneys’ fees may be granted. Plaintiff’s purported claims, or the damages she may purportedly recover, are barred or at least reduced by her failure to mitigate damages,” the defenses stated.
“Plaintiff’s complaint should be dismissed because all actions taken by defendant with respect to plaintiff, including her termination, were undertaken in good faith and for legitimate, non-discriminatory and non-retaliatory business reasons unrelated to plaintiff’s age or any protected activity in which she may have engaged. The nature, causation, amount, extent of the injuries, damages, and losses claimed are at issue, and defendant demands proof of same by plaintiff as required by law. Plaintiff’s claims are barred because, at all relevant times, defendant maintained an effective anti-discrimination/anti-retaliation policy, and plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by defendant or to otherwise avoid harm. Plaintiff has failed to exhaust her administrative remedies.”
The firm contends it did not engage in any unlawful employment practices with respect to the plaintiff.
The defendants filed a motion to quash (or in the alternative, for issuance of a protective order) of Weber Gallagher and non-party Valerie Lyons, on Feb. 1.
“On Jan. 21, counsel for plaintiff indicated her intent to serve the Subpoena on non-party Morgan Lewis requesting the employment records of Ms. Lyons. Lyons was previously employed by Morgan Lewis prior to being hired by Weber Gallagher and is not a party to the instant litigation. The documents sought by plaintiff pursuant to the subpoena are extremely broad. Lyons has not authorized the release of her private and confidential employment records,” the motion to quash stated.
“The undersigned, on behalf of both Weber Gallagher and Lyons, immediately objected to the service of the subpoena on the grounds that it seeks personnel documents concerning Lyons that contain her private and confidential information and that have absolutely zero relevance to this action. At most, plaintiff has alleged that she was terminated by Weber Gallagher and replaced by Lyons because of her age. Weber Gallagher was not privy to, or in possession of, the documents and information plaintiff now seeks from Morgan Lewis when Weber Gallagher decided to terminate plaintiff and hire Lyons to replace her.”
According to the defense, plaintiff counsel is serving the Subpoena “for no other reason than to harass Weber Gallagher and Lyons by, among other things, causing the parties to engage in costly and time-consuming motion practice” and compelling Weber Gallagher and Lyons to seek the Court’s intervention to prevent a clear abuse of the discovery process by plaintiff counsel.
UPDATE
On March 17, U.S. District Court for the Eastern District of Pennsylvania Judge John R. Padova granted the defense’s motion to quash the subpoena.
“Upon consideration of the motion to quash plaintiff’s subpoena filed by defendant Weber Gallagher Simpson Stapleton Fires & Newby, LLP and nonparty Valerie Lyons and the motion to quash plaintiff’s subpoena filed by Morgan Lewis & Bockius, LLP, all documents filed in connection with both motions, it is hereby ordered that both motions are granted,” Padova said.
For counts of civil rights violations under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 1981, the Age Discrimination in Employment Act, the Pennsylvania Human Relations Act and the Philadelphia Fair Practices Ordinance, the plaintiff is seeking an extensive list of reliefs, including: Declarations that the acts complained of were in violation of the aforementioned laws, compensatory, punitive and liquidated damages, costs of suit, expert fees, other disbursements, reasonable attorneys’ fees and granting such other and further relief as this Court may deem just, proper or equitable, including other equitable and injunctive relief providing restitution, for past violations and preventing future violations.
The plaintiff is represented by Caren N. Gurmankin and Jonathan D. Gilman of Console Mattiacci Law, in Philadelphia.
The defendants are represented by Catherine T. Barbieri and Andrew S. Esler of Fox Rothschild, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-02962
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com