Bias claims against Mintz Levin are revived; associate had searched computer system for evidence
May a lawyer search a law firm’s computers to find evidence of bias to bolster her case? In some circumstances, the answer is yes, the highest court of Massachusetts ruled in a decision that revives gender bias and retaliation claims against Mintz Levin.
The Massachusetts Supreme Judicial Court ruled on Tuesday on behalf of former Mintz Levin associate Kamee Verdrager, who was demoted after taking pregnancy leave and fired when the law firm learned she had accessed files in the law firm’s document management system. The Legal Profession Blog, the Boston Globe and the Boston Business Journal covered the decision (PDF).
The court said the document issue was a novel one. “We hold that an employee’s accessing, copying, and forwarding of documents may, in certain limited circumstances, constitute ‘protected activity,’ but only where her actions are reasonable in the totality of the circumstances,” the court said. The court provided guidance but did not decide how its rule applied to Verdrager’s case.
Verdrager had first complained internally in 2004 about a lawyer she was assigned to work with. Verdrager said the lawyer had told her that he wanted to cheat on his wife and told her “in a very provocative tone” that he was dreaming of her last night. Mintz Levin concluded that Verdrager was complaining about management style and hired an executive coach to work with the lawyer.
After that, Verdrager says, she was told by others at the firm that the same lawyer was making negative comments about her. She also claims the lawyer gave her more nonbillable work than other associates at the firm.
After her demotion in 2007, Verdrager ran across an internal document discussing issues of gender discrimination at the firm. On instructions from her lawyer, she conducted targeted searches for other documents. She filed a complaint with the Massachusetts Commission against Discrimination, but kept working at the firm.
In allowing Verdrager’s suit to proceed, the court cited an internal 2005 study. It found that many female lawyers at the firm “believe it is more difficult for women than men at Mintz. In particular, they indicated that they are not given the same assignments or opportunities for exposure that men receive, there are fewer women in management for them to look up to or receive support from, and male partners make assumptions about the ability and willingness of women to do certain work.”
The report also said that “many female and of color respondents believe that white men in the firm have a support network amongst themselves and that it is more comfortable and familiar within the firm for them.”
The court also cited evidence that none of the five female associates who were senior to Verdrager in her section were later promoted to partner, while all four male associates were named as partners.
The court said it was plausible that Verdrager was fired for accessing law firm documents, but there was also evidence she was fired because the firm was aware of her discrimination complaints and she refused to leave voluntarily.
Mintz Levin issued a statement saying it was disappointed in the decision, but “we are confident that the claims have no merit and that we will prevail at trial.”
Related articles:
ABAJournal.com: “Bar Board Nixes Discipline for Associate Who Looked at Mintz Levin Docs Anticipating Personal Suit”
ABAJournal.com: “Female Associate Unhappy at Mintz Firm, One of the ‘Best Law Firms for Women’ “
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