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Former MoFo Attorneys Want New Look at Dismissed Leave Claim

March 17, 2021, 10:13 PM

Former Morrison & Foerster LLP lawyers suing the firm over alleged gender discrimination want the Northern District of California to let them argue it applied the wrong standard when it granted summary judgment for the firm on one of the associate’s maternity-based claims under the Family Medical Leave Act.

The motion, filed Tuesday, argues that the court made “clear error” by applying the McDonnell Douglas burden-shifting framework—which applies to Title VII discrimination claims—to plaintiff Joshua Ashley Klayman’s claim that the firm declined to promote her as a result of her taking maternity leave.

McDonnell Douglas provides that, after a plaintiff has made out an initial case of discrimination, the burden shifts to the employer to articulate a legitimate and nondiscriminatory basis for the employment decision, which the plaintiff must then show was a pretext.

Magistrate Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California, in granting MoFo’s motion for summary judgment, said Klayman’s FMLA claim “failed for the same reasons” that her Title VII discrimination claim did.

The court found that even though MoFo made comments indicating that it took into account her maternity leave when it declined to promote her, the comments were “insufficient to create a dispute of fact,” in the face of uncontroverted evidence that her practice group declined to put anyone up for partner that year because of low revenues.

But the court “should have held that invoking Ms. Klayman’s leave in connection with the partnership decision and as a reason for declining to promote her would itself raise a triable issue on the claim,” the attorneys argue in the new motion.

According to Klayman, partner Nicholas Siliotes told her it made sense to postpone putting her up for partner because she had just returned to the office.

Klayman argues these comments “suggest that MoFo could have made an exception for her,” but decided not to “because of her leave,” and asserts that, at a minimum, “an unlawful discriminatory factor entered into the equation.”

Under precedent in the U.S. Court of Appeals for the Ninth Circuit, employers are prohibited from treating protected leave as a “negative factor” in an adverse employment decision, they say. Protected leave “may not come into play” in any way, according to their motion.

Klayman is joined by plaintiff Sherry A. William in the lawsuit. Several other Jane Does plaintiffs dropped out of the lawsuit after settling with the firm.

The case is William v. Morrison & Foerster LLP, N.D. Cal., No. 3:18-cv-02542, plaintiffs’ request for leave to file a motion for reconsideration 3/16/21.

To contact the reporter on this story: Holly Barker in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Steven Patrick at