Judge reprimands Littler Mendelson for 'baseless legal and factual statements' in disability bias case

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A federal judge in Phoenix has formally reprimanded Littler Mendelson for “baseless legal and factual statements” made in a court document while defending DISH Network in a disability bias case.

U.S. District Judge Roslyn O. Silver of the District of Arizona reprimanded the law firm in an Oct. 4 order and warned that stiffer sanctions could be imposed if similar conduct arises in another case, Law360 reports.

In the suit before Silver, plaintiff Melin Flores that claimed DISH Network violated the Family and Medical Leave Act when it fired her for repeated absences. The case settled, and Silver granted a motion to dismiss the case in a separate order.

Silver sanctioned the law firm after identifying 50 troublesome statements and legal positions and asking for an explanation.

In her Oct. 4 order, Silver said Littler Mendelson was given a chance to admit the mistakes or explain its behavior, but the lawyers “came back with either nonresponsive or implausible arguments.”

“While defense counsel address the statements identified by the court, they do not even attempt to excuse some of the most patently false statements at issue,” she said. “The only reasonable conclusion to draw is that counsel did not, in fact, have a good faith legal or factual basis for many of the statements in their summary judgment filings.”

Silver’s order analyzed a few of the statements to show how Littler Mendelson should be sanctioned under Rule 11 of the Federal Rules of Civil Procedure. They are:

• Littler Mendelson said in “statement 9” Flores conceded that she did not think she needed leave. When defending the comment, the law firm acknowledged that its statement didn’t pertain to the time period at issue. “The fact that plaintiff did not think she needed leave before she became ill is completely irrelevant to the issues in the present case,” Silver said.

• Littler Mendelson said in “statement 12” Flores admitted that her pain didn’t affect her daily living until after firing. “Defense counsel offer no justification for this blatantly false statement,” Silver said. Instead, the firm said Flores did testify that she could take care of herself for a significant portion of time before her firing. Silver deemed the argument to be “a non sequitur” and said, “The court is at a complete loss how defense counsel could believe this explanation is helpful to their position.”

• The law firm argued in “statement 13” pain never affected Flores’ ability to work, and she never spoke to her supervisor about it. In defense of the statement, Littler Mendelson admitted that Flores said her pain did affect her ability to work at times in December 2018, and she reported it to her supervisor.

“Statements 12 and 13 involve levels of falsehood that are unusual to find in documents filed by any attorney,” Silver said. “These statements are not subject to reasonable debate or interpretation.”

• In statements 27, 35 and 45, Littler Mendelson argued that Flores needed medical evidence to establish incapacity under the FMLA. The law firm cited opinions by four federal appeals courts but did not cite an opinion by the 9th U.S. Circuit Court of Appeals at San Francisco that said medical testimony was not necessary.

Littler Mendelson defended the statement by saying the statement in the contrary 9th Circuit opinion was nonbinding dicta. But one of the opinions cited by Littler Mendelson, by the 3rd Circuit at Philadelphia, had treated the 9th Circuit decision as binding precedent in that circuit.

Silver said the law firm likely omitted the 9th Circuit reference because “defense counsel simply did not read the 3rd Circuit case and cited it, hoping the court would not read it, either.”

“The court could go on and analyze the remaining statements identified in the earlier order, but doing so would serve no useful purpose,” Silver said. “The statements analyzed above violated Rule 11’s requirements for both legal arguments and factual contentions.”

The current Littler Mendelson lawyers who are handling the case did not immediately respond to a request for comment.

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