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Jones Day Seeks Wins on Women’s Pay Claims, Class Status Push

July 14, 2020, 1:21 PM

Female lawyers suing Jones Day for alleged sex discrimination in pay and other key decision-making can’t pursue their Equal Pay Act claims as a collective action because none of them can establish the elements of a violation, the firm told a District of Columbia federal judge.

Of the six lead plaintiffs spearheading the April 2019 suit, only three—Katrina Henderson, Saira Draper, and Meredith Williams—satisfied federal pleading requirements on their Equal Pay Act allegations, Jones Day said Monday. That got them past the initial motion to dismiss stage, but the three women have failed to bolster their claims with actual proof despite receiving substantial discovery from the firm, Jones Day said in a motion seeking summary judgment on the issue.

The evidence to date instead shows that “Henderson has no chance of prevailing” on her Equal Pay Act allegations because she performed “literally” no work for Jones Day within the relevant time period, the firm said. Draper did perform compensable work during the relevant period, but the male attorneys she says were unfairly paid more than her based on sex “recorded more than twice as many billable hours” and “hundreds more hours of legal work each and every year,” the motion said.

And discovery shows Williams’ equal pay allegations are “mostly false,” Jones Day told the U.S. District Court for the District of Columbia.

Williams was actually paid more than the majority of the male attorneys she identified as equal pay comparators and “more than the average of the only male comparators who worked in her office,” it said. Male associates in other offices who were paid more than Williams aren’t apt comparators under the Equal Pay Act because they didn’t work in the same “establishment” as she did, the firm said.

Because the allegations of the last three named plaintiffs with Equal Pay Act claims failed as a matter of law, the suit also can’t go forward as a collective action under that law, Jones Day said.

Henderson, Draper, and Williams, together with Nilab Rahyar Tolton, Andrea Mazingo, and Jaclyn Stahl, allege that Jones Day operates a “black box” compensation system under which final decision-making authority rests in the hands of managing partner Stephen J. Brogan. Brogan’s “hypercentralized,” “totalitarian grip” on the firm includes enforcement of a policy that forbids employees from discussing their pay with each other and a separate “no whining policy” that prohibits female associates from raising sex-based inequities, the suit says.

Discovery to date—which includes 350,000 documents, totaling over 2.2 million pages—shows that allegation to be unfounded and is another reason why the women’s motion for conditional class certification under the Equal Pay Act should be denied, Jones Day said in a separate filing Monday.

The information produced so far includes documents establishing Jones Day’s pay and performance review policies and procedures as well as “full review and pay data for Plaintiffs and the 19 alleged comparators” they identified, the firm said.

That information shows the pay of Jones Day associates is determined by a multi-layered process involving “potentially dozens of different collections of lawyers,” the filing said. These include performance reviews by supervisor; the development of ratings and rankings by practice leaders; the development of a parallel set of ratings and rankings and recommended pay adjustments by office leaders; another layer of review in some offices by regional leadership; and a further review of the pay recommendations by one male and one female firm leader, according to the filing.

It is only then that the final figures are sent to Brogan for approval, Jones Day said.

That isn’t the sort of common policy Equal Pay Act collective actions were designed to address, and “Plaintiffs do not provide any evidence that these ‘policies’ violate the EPA,” it said.

The court should therefore deny conditional class certification even if it denies summary judgment on any of the individual Equal Pay Act claims by Henderson, Draper, and Williams, the firm said.

Sanford Heisler Sharp LLP represents the women. Jones Day represents itself.

The case is Tolton v. Jones Day, D.D.C., No. 1:19-cv-00945, motion for partial summary judgment, opposition to conditional class certification 7/13/20.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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