Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.

32 Mass. L. Rptr. 33
Massachusetts Superior Court·Decided December 17, 2013·No. No. SUCV200904717C·Published

Opinion

Lauriat, Peter M., J.

Kamee Verdrager (“Ms. Verdrager”) brought this employment discrimination action against Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (“Mintz Levin”), and certain of its partners, R. Robert Popeo (“Mr. Popeo”), David Barmak (“Mr. Barmak”), Bret Cohen (“Mr. Cohen”), Robert Gault (“Mr. Gault”), and Donald Schroeder (“Mr. Schroeder”), alleging sex discrimination and retaliation under G.L.c. 15 IB, and tortious interference with advantageous employment relations. The defendants now separately move for summary judgment on all of Ms. Verdrager’s claims. For the following reasons, the defendants’ motions are allowed.

BACKGROUND

In June of 2004, Ms. Verdrager was hired as an attorney and began working at Mintz Levin as an associate in the Employment, Labor, and Benefits section (“ELB”) of the firm. Based on her 1999 law school graduation date, Ms. Verdrager was placed in Mintz Levin’s fifth-year associate class. Shortly after beginning her employment, Ms. Verdrager complained to a member of the ELB section, Henry Sullivan, and to the firm’s Managing Member, a Mr. Biagetti, about another member of the section, Mr. Cohen. Ms. Verdrager took issue with Mr. Cohen’s treatment of associates, his management style, and his interpersonal skills. She also complained to Mr. Gault, the ELB section manager at the time.

Thereafter, Mr. Gault discussed Mr. Cohen’s behavior with other members of the firm, and Mintz Levin hired an executive coach to work with Mr. Cohen to improve his management style. In addition, Mr. Gault took measures to limit the amount of work Ms. Verdrager had with Mr. Cohen by soliciting assignments for Ms. Verdrager from other members.

In October of 2004, Ms. Verdrager’s first evaluation at Mintz Levin took place. That evaluation included [34]*34comments from Mr. Cohen, Mr. Gault, and Mr. Schroeder. The evaluation contained some criticism and notes regarding areas of improvement, but Ms. Verdrager was deemed to be at a level of “always meets expectations” in most categories. In this evaluation, Mr. Schroeder noted that Ms. Verdrager needed to work on proofreading and analytical writing skills, and Mr. Cohen expressed concern about Ms. Verdrager’s writing as well. Following this review, members of the ELB section occasionally e-mailed amongst themselves and with human resources personnel about their hesitance in giving assignments to Ms. Verdrager and about specific performance-related issues.

In January of 2005, the next event leading to a complaint against Mr. Cohen by Ms. Verdrager took place. For the prior two months, Ms. Verdrager had been working on a research project for the American Bar Association which Mr. Cohen had assigned to her. Ms. Verdrager complained to Mr. Gault about the assignment, specifically that she was given a greater number of court opinions to research than other associates. Mr. Gault reviewed the material and spoke to Mr. Cohen before referring the matter to the human resources director, Wendy Starr, and the vice president of Professional Development, Rosemary Allen. Ms. Starr’s and Ms. Allen’s investigation concluded that there was no evidence of gender discrimination related to Mr. Cohen’s assignment. Thereafter, Ms. Verdrager did not work with Mr. Cohen. Ms. Starr and Ms. Allen conducted a further review of Ms. Verdrager’s 2005 complaint. Ms. Starr believed that Ms. Verdrager was “gaming the system” in relying on claims of gender discrimination to avoid negative feedback related to her work product.

In April of 2005, Ms. Verdrager received her first annual performance evaluation. In this review, the overall assessment showed that Ms. Verdrager “usually meets expectations.” Mr. Gault and Mr. Schroeder both commented that Ms. Verdrager’s writing needed improvement and that she needed to exhibit a greater attention to detail. Following this review, Ms. Verdrager complained to Ms. Allen that certain aspects of Mr. Gault’s comments in the evaluation were immaterial and involved issues prior to her initial review in October. Ms. Allen subsequently allowed Ms. Verdrager’s request to have some of Mr. Gault’s comments removed from the evaluation.

In September of 2005, Ms. Verdrager notified Mr. Gault that she was pregnant. Prior to going on her first maternity leave in May of 2006, Ms. Verdrager experienced some pregnancy-related medical issues and was placed on short-term disability leave with a 50% reduced work schedule. Evidence in the record reveals that Mr. Gault and Mr. Schroeder exhibited frustration with Ms. Verdrager’s unavailability and questioned amongst themselves via e-mail whether her disability was legitimate.

While Ms. Verdrager was on maternity leave, in June of2006, Mr. Barmak succeeded Mr. Gault as ELB section manager. While on maternity leave, Ms. Verdrager was asked to come into the office for a meeting with Mr. Barmak and Mr. Schroeder. Mr. Barmak and Mr. Schroeder informed Ms. Verdrager that she would be subject to a 90-day interim review after she returned from maternity leave. The interim review was to address concerns about Ms. Verdrager’s performance prior to her maternity leave. In November of 2006, Ms. Verdrager returned from maternity leave and thereafter had low annualized billable hours compared to other attorneys in the ELB section.

In January of 2007, Ms. Verdrager was scheduled for her Senior Associate review, the review where associates are considered for elevation to membership in the firm based on class year. Rather than hold a review regarding Ms. Verdrager’s elevation to membership, Ms. Starr and Mr. Barmak offered Ms. Verdrager a step-back of her seniority status by two years. This decision was made largely to prolong the “runway” for Ms. Verdrager to demonstrate her legal abilities and be considered for membership in the future. Initially, the ELB section planned on recommending Ms. Verdrager’s termination, but Mr. Popeo asked the section to consider an alternative. Ms. Verdrager accepted the step-back option. The step-back resulted in a decrease in salary and a lower billable hourly rate. After accepting the step-back, Ms. Verdrager complained internally of gender discrimination and retaliation. Her complaints were reviewed by the Rapid Workforce Response Team (“RWRT”), the internal committee at Mintz Levin charged with investigating employee complaints of discrimination and retaliation.

On December 11, 2007, Ms. Verdrager filed a complaint with the Massachusetts Commission Against Discrimination (“MCAD”), naming Mintz Levin, Mr. Barmak, Mr. Gault, and Mr. Schroeder as respondents. In February of 2008, Ms. Verdrager took her second maternity leave. She returned to the firm in September of 2008. In late 2008, Mintz Levin determined that it would need to lay off some employees to address excess capacity. Mintz Levin identified Ms. Verdrager as one of the employees to be laid off, citing underutilization, and notified Ms. Verdrager of terms of a severance offer. Ms. Verdrager rejected the terms of the offer. However, the planned lay off never took place as Ms. Verdrager was terminated for cause on November 25, 2008.

On November 21, 2008, Ms. Verdrager reported to Kim Marrkand, a member at Mintz Levin, that she was aware of documents indicating widespread discrimination within Mintz Levin, principally a transcript of Mintz Levin Chairman R. Robert Popeo’s voicemails. Ms. Marrkand brought this to Mr. Popeo’s attention. Mintz Levin conducted a review of its electronic file system to determine which documents Ms. Verdrager [35]*35had accessed under the firm’s DeskSite system.

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Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 32 Mass. L. Rptr. 33 (Mass. Ct. App. 2013).

32 Mass. L. Rptr. 33 (Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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