Labor & Employment
Judge Rules Ex-BigLaw Partner Wasn’t an Employee Entitled to Sue for Bias
Posted Dec 14, 2011 7:30 AM CDT
By Debra Cassens Weiss
A former partner at Holland & Knight can’t sue for age bias because he wasn’t an employee protected by state and city human rights laws, a New York judge has ruled.
The plaintiff, John Weir, did not "submit any evidence to show that he was not a bona fide partner,” according to Judge Marcy Friedman. She dismissed Weir’s claims in a Dec. 9 decision (PDF), according to the Am Law Daily and the Wall Street Journal Law Blog. Weir had claimed his ouster from the firm at the age of 55 amounted to age discrimination and retaliation.
The Law Blog sets up the issue this way: “At big firms with scads of partners, a pecking order develops. You may not technically have a boss, but you still get bossed around sometimes, just like an employee. But say you get knocked out of the firm for being too old. Are you covered by anti-discrimination laws, just like an employee?”
Friedman cited Clackamas Gastroenterology Associates v. Wells, a 2002 U.S. Supreme Court case that considered when a shareholder is an employee entitled to sue under the Americans with Disabilities Act.
"In claiming employee status," Friedman wrote, "plaintiff rests on wholly conclusory, unsworn assertions, some of which are inconsistent with his deposition testimony." At one time he oversaw the firm's labor and employment law group in New York, but he was replaced with a new practice group leader. He was a Class B partner who contributed capital to the firm and had voting rights to elect the managing partner.
Weir had sued in state court after a federal judge barred his claim of ERISA violations on statute of limitations grounds.
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