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Employment Law Representative Matters

Representative Matters

  • One of BDG‘s large public entity clients recently faced a class action lawsuit in which hundreds of temporary and contingent workers sought employment benefits and status. The litigation raised “cutting-edge” legal questions regarding the obligations of public employers to provide rights and benefits associated with public employment to noncivil service workers. The claims of these workers totaled more than $100 million and included retroactive and prospective injunctive relief. By working with our client to develop and implement strong litigation strategies, BDG was able to separate out significant claims and position the client to resolve them favorably at a fraction of the amount demanded. BDG also worked with the client to develop and implement internal policies and procedures that has allowed the client to resolve prospective issues and avoid similar claims in the future. We successfully mobilized Amicus support for our client’s position from over 2,500 public entities throughout California.
  • In a case with broad implications, BDG successfully convinced the California Supreme Court to resolve a conflict among lower courts in favor of employers to strengthen the definition of at-will employment. Some lower courts had ruled that when employers told employees that they could be terminated at any time, this did not mean that they could be terminated without cause. Through the Dore case, BDG was able to have these lower court opinions disapproved. The California Supreme Court confirmed our client’s position, which is that when an employer tells its employees that they are at-will and can be terminated at any time, there is no ambiguity in the nature of the employment.
  • BDG represented a different employer in a designated complex class action lawsuit brought by individuals who provided services to the employer as independent contractors. Plaintiffs claimed that they were misclassified and were entitled to be designated regular employees. The independent contractors sought to receive all rights and benefits provided to designated employees. BDG prevailed on a dispositive motion with far-reaching implications for government agencies throughout California that have relied upon a civil service process as a means for hiring and defining employees. Specifically, the Complex Litigation Court determined that even if plaintiffs met the common law definition of an “employee,” they were not entitled to the salaries, benefits and protections afforded to classified civil service employees under that entities’ Charter, Code and civil service rules.
  • BDG represented an employer in a designated complex case involving “collective” and/or class action claims arising from alleged violations of federal and state equal protection laws and gender discrimination laws. Although this case is still in the early stages of litigation, we successfully negotiated a case management order that protects the public employer’s rights and allows for an efficient and cost-effective litigation plan.
  • BDG represented a county in a class action brought by persons who performed services for the county as temporary employees through a special temporary worker program established by the county. Petitioners assert causes of action for: (1) violation of the entity’s alleged duty under the Public Employees Retirement Law (“PERL”) to enroll Petitioners in the California Public Employees’ Retirement System (“CalPERS”); and, (2) violation of the county’s ordinance that generally prohibits the use of temporary employees for more than 1,000 hours. Petitioners claim that all temporary workers who provided services to the county in excess of 1,000 hours are entitled to all of the rights, benefits, and privileges of permanent county employment on a retroactive basis, including classification as regular employees of the county, seniority rights and enrollment in CalPERS. BDG attacked the ordinance claim on the grounds that the county is under no duty to create, fund and grant petitioners regular employee status and that the court is without jurisdiction to grant the requested relief under the separation of powers doctrine. The court sustained the demurrer to the ordinance claim, with leave to amend. When petitioners attempted to re-assert their claims for re-classification and retroactive benefits as a remedy for the county’s alleged violations of its ordinance in an amended complaint, BDG moved to strike the requested relief. The court granted the motion to strike, thereby stripping the action of its core claims.
  • BDG represented a city as a defendant in a multi-plaintiff action brought in federal court by mostly female employees of a police department. The plaintiffs, who were represented by prominent attorneys and organizations, such as the ACLU and the NAACP, originally sought to bring the suit as a class action based upon allegations of sexual harassment, discrimination and retaliation, ultimately seeking broad-based injunctive relief and damages. We successfully eliminated the class allegations of the complaint, so those female officers were required to pursue their claims on an individual basis, which enabled us to successfully attack each claim. For example, among the initial group of individual plaintiffs, we obtained dismissal of two plaintiffs’ claims on the grounds that plaintiffs failed to exhaust their administrative remedies and that their claims were barred by the statute of limitations. Additionally, the plaintiffs sought and were initially awarded substantial attorneys’ fees under the private attorney general doctrine arguing that they were “prevailing parties” under a catalyst theory. BDG successfully appealed this matter up to the California Supreme Court. The Supreme Court’s decision placed several limitations on the circumstances under which a plaintiff could recover attorneys’ fees under the catalyst theory. Under the Supreme Court’s decision, plaintiffs would have had to meet a substantial burden to maintain their attorneys’ fees award. The parties ultimately reached a global settlement that saved BDG‘s client millions of dollars in defense costs.
  • BDG regularly represents a global financial services firm in numerous employment disputes with some of their former financial advisors, regarding protection of valuable proprietary information and trade secrets. BDG routinely requests immediate judicial intervention seeking temporary restraining orders and preliminary injunctions to protect our client from significant irreparable financial injury.
  • BDG was brought in by a city to oppose a post-trial motion by plaintiff for attorneys’ fees exceeding $1 million. Plaintiff had recently been victorious against the city, winning a multimillion-dollar jury verdict. BDG successfully convinced the court to award less than $400,000 in attorneys’ fees.

Early Resolution Of Employment Claims

  • BDG represented a large school district against claims by a current teacher that the district had failed to promote him because of his race and age. After taking his deposition and evaluating the processes that the district had gone through in recruiting for the position at issue, it was determined that the district had correctly followed its policies and procedures and had not discriminated against the Plaintiff. In a lengthy mediation session, the deficiencies of Plaintiff’s claims were demonstrated; although he still contended that he was discriminated against, the district was able to resolve the matter to its satisfaction.
  • BDG represented a large public school district in an action where a teacher was alleging breach of contract causes of action, racial discrimination, defamation and intentional and negligent infliction of emotional distress. The teacher’s defamation and emotional distress causes of action arose from the principal’s and assistant principal’s protected activity in furtherance of their constitutional rights of free speech and petition. BDG filed a motion under the provisions of the anti-Strategic Lawsuit Against Public Participation (“SLAPP”) statute. The trial court granted our client’s anti-SLAPP motion, finding that the challenged causes of action arose from protected activity, and that the teacher could not demonstrate a probability of prevailing on his claims. As a result, an entire set of disputed factual issues were removed from the action. The court also granted BDG‘s attorneys’ fee motion reimbursing the public entity client for the cost of extricating itself from the causes of action. After the plaintiff filed a First Amended Complaint, the same court also granted a demurrer filed by BDG on behalf of the public entity, without leave to amend, on the breach of contract causes of action.
  • BDG represented a public entity employer who was required to defend and indemnify an employee in an action involving a claimed assault and battery on a fellow employee. BDG, through targeted discovery and appropriate motions to sever and dismiss, was able to effectuate a quick settlement with the plaintiff in a fair and substantially reduced sum from the original six-figure demand. While the parties were never able to fully determine the truth and/or veracity of the claims of the altercation, and plaintiff and an extensive medical and emotional history, the minimal settlement figure avoided a lengthy trial, as well as exposure to punitive damages.
  • In a writ of mandate action filed by a union on behalf of its members challenging a public sector employer’s right to “contract out” certain services, BDG defended the employer. We immediately responded to the issues raised in the union’s petition for writ of mandate, and, working closely with the employer, successfully negotiated a resolution of this claim before the public employer had to file a responsive pleading.
  • BDG successfully represented an employer and several management-level employees in a “whistle blower” claim. A former employee claimed retaliation by his supervisor after the employee reported an accounting error. Through a series of negotiations, BDG reached a confidential settlement before the employee filed a civil action. As part of the settlement, the former employee provided a written apology to one of the employee’s managers, as well as a letter of retraction with respect to their accusations made to a professional society.
  • BDG represented a city, its former police chief and numerous command officers in a suit filed by two white male police officers who claimed their civil rights were violated when they were administratively transferred out of a particular division. BDG successfully defended the department against Motions for Preliminary and Permanent Injunctions in the Trial Court and a Writ of Supersedeas in the Court of Appeal. After the case was dismissed based upon our demurrer, BDG successfully recovered an award of attorneys’ fees and costs against the plaintiffs, which was upheld upon appeal, along with the ruling on the demurrer.
  • BDG successfully represented an employer in a race discrimination complaint brought by a prominent plaintiff’s law firm. We obtained an immediate dismissal of numerous claims along with three individuals named as co-defendants. This allowed us to leverage our client’s position of strength to negotiate an early resolution favorable to the employer.
  • BDG successfully represented a school district and various individual employees in an action brought by a student who challenged their expulsion by filing a civil rights action. After the student refused to voluntarily dismiss the complaint, we obtained a complete dismissal of the action by attacking the complaint on demurrer.
  • BDG represented a public sector employer and a management-level employee when a former employee filed claims of sexual harassment, discrimination, and retaliation and also sought punitive damages. BDG filed a demurrer based upon immunities provided for public sector employers under the Government Code and noticed plaintiff’s deposition along with an extensive document request. Without answering our demurrer, the plaintiff voluntarily dismissed its claims against the management-level employee.
  • BDG was hired by a water district to represent a management level employee regarding claims made by a former employee involving an alleged failure to accommodate a physical hardship, sexual orientation discrimination and harassment. The court granted our motion for judgment on the pleadings as to the “failure to accommodate” claim on the ground that supervisors are not subject to liability in their individual capacities under the Fair Employment and Housing Act (FEHA). Shortly after our motion was granted, we reached a global resolution of all the claims.
  • BDG successfully defended a corporation and its president against claims of wrongful termination, sexual harassment and intentional infliction of emotional distress. After aggressive discovery disclosed no independent support for the plaintiff’s allegations, the case was dismissed.
  • BDG represented a large school district and one of its assistant principals who were sued by a teacher. The assistant principal claimed that the teacher had bumped her during an argument outside a classroom and reported the incident to school district police. The teacher, who was arrested, sued the school district and assistant principal for defamation, false arrest and imprisonment, and intentional infliction of emotional distress. BDG successfully moved to dismiss the entire suit under the anti-SLAPP statute.
  • BDG‘s client in the high technology industry desired to sever its employment relationship with an upper level engineer. We advised our client on negotiation strategies and prepared a comprehensive settlement agreement, which included a full release of any potential claims, thereby minimizing our client’s potential exposure and risk arising from the separation.
  • BDG assisted a large, high-profile nonprofit organization in delicate negotiations regarding the resignation of its president and director. Understanding the needs of the organization and the potential public impact of the negotiations, we were able to proceed on behalf of the organization in a manner that minimized negative publicity. Through creative, yet tough negotiation strategies, BDG achieved the organization’s goals for the future and at the same time eliminated the potential of costly, high-profile litigation against the organization.
  • In an incident of workplace violence, BDG was retained to assist a corporation in obtaining Temporary Restraining Orders preventing the spouse of an employee from harassing and threatening a supervisor and co-worker with violence and harm in the workplace and at home. Within 48 hours, BDG worked with the corporation and its employees to appear in court with all the appropriate pleadings and declarations and successfully obtained Temporary Retraining Orders and Orders to Show Cause. The defendant then attempted to evade service of process of the court filings. BDG worked closely with law enforcement agencies and private process servers to timely serve the defendant.

Resolution Of Employment Claims Through Motions For Summary Judgment

  • BDG represented two corporations in a wrongful termination suit arising out of a Los Angeles regional office. BDG took an aggressive approach at the outset by pursuing the plaintiff’s deposition and pinning down his story early on. This tactic proved successful, as the court granted motions for summary judgment filed on behalf of each corporation, which were based primarily on the plaintiff’s deposition testimony.
  • BDG represented a school district in a matter involving a dispute between a former teacher and her principal concerning an unfavorable reference. Plaintiff’s complaint included causes of action for intentional and negligent interference with the economic relationship, defamation by slander, negligent employment, intentional and negligent infliction of emotional distress, and wrongful denial of employment. The court granted summary judgment on behalf of the school district and the individual principal. We then successfully defended this ruling before the Court of Appeal.
  • BDG obtained summary judgment on behalf of a high-ranking law-enforcement official who allegedly discriminated and retaliated against a subordinate officer. Plaintiff asserted his discrimination and retaliation claims under the California Fair Employment & Housing Act and Art. I, § 8 of the California Constitution. After detailed discovery efforts and numerous deposition sessions with plaintiff, BDG was able to establish that plaintiff had not suffered any actionable adverse employment actions and that the high-ranking official could not be held individually liable for personnel management decisions. Additionally, BDG demonstrated to the court that the individual supervisor was immune from any personal liability under the “discretionary act” immunity available under the Government Code. The Court of Appeal upheld these rulings.
  • BDG successfully represented a city, its chief of police and numerous other command officers in a federal civil rights action. This action alleged the defendants engaged in a multi-year pattern of discriminatory conduct toward a police officer throughout his entire career based upon his race and religion. BDG successfully pursued a motion for summary judgment after deposing the plaintiff, and before any defendants were deposed, thus ensuring none of our clients had to sit through a deposition. BDG‘s efforts resulted in the federal court dismissing all of plaintiff’s claims against every defendant. The ruling found that plaintiff did not offer evidence in opposition to the summary judgment motion sufficient to raise a triable issue of fact on any of his claims of racial or religious discrimination. This summary judgment ruling was upheld on appeal.
  • BDG obtained summary judgment on behalf of a high-ranking city official in his individual capacity, as well as on behalf of the city. The plaintiff’s claim consisted of allegations of discrimination based on sexual orientation, religion, gender, wrongful termination and violation of the “whistleblower” statute. After extensive discovery, including the plaintiff’s deposition, we successfully demonstrated to the court that the plaintiff had no evidence to support any of his claims.
  • BDG successfully obtained three separate motions for summary judgment on behalf of a corporation and two individual managers who allegedly terminated an employee based on race and/or national origin discrimination. The plaintiff also alleged breach of an oral contract, breach of a written contract and wrongful termination. Our motions for summary judgment were based in large part on the admissions obtained from plaintiff during his deposition where his testimony failed to support, and/or completely contradicted, his original allegations.
  • BDG obtained summary adjudication of federal civil rights and state claims asserted by two female state prison inmates against the warden, chief deputy warden, and several investigators of a state prison located in Southern California. Both inmates claimed the first defendants (and other Dept. of Corrections personnel) coerced the inmates into acting as informants and then retaliated against them when they refused to do so; the second inmate asserted that she was placed into administrative segregation and transferred to another prison facility when she attempted to assist the first inmate in publicizing her plight to the media. BDG established that state law statutory immunities protected the public sector employees from any common law and state claims, and that neither inmate established violations of their federal or constitutional rights giving rise to a civil rights claim. The plaintiffs did not appeal from the judgment of dismissal that followed the court granting our clients’ summary adjudication motion.
  • BDG represented a school district in one of the first peer-to-peer sexual harassment cases filed in California, in which the student and her parents asserted various civil rights and general negligence claims. After BDG filed a motion for summary judgment, the plaintiffs agreed to settle the case for a minimal amount.
  • BDG represented a school district in a petition for writ of mandate filed by the teachers’ union on behalf of a teacher. The petition challenged the legitimacy of certain statutory proceedings commenced by the district under the Education Code. In response to the petition, BDG filed a Motion for Summary Judgment or, in the Alternative, Summary Adjudication of the causes of action, citing various Government Code immunities. After reviewing our pleadings on behalf of the district, counsel for the teachers’ union conceded the validity of the arguments, waived all damage claims, and instead negotiated a minimal settlement.
  • BDG obtained four summary judgments on behalf of a public entity client and three individual defendants in an action involving race discrimination, harassment, retaliation and intentional infliction of emotional distress. The plaintiffs claimed that defendants discriminated against them in the recruitment process, denied them training and promotional opportunities because of their race and age, and retaliated against them when they complained about their alleged mistreatment. BDG prevailed on dispositive motions by highlighting the various opportunities that plaintiffs received and by establishing that plaintiffs had not been denied any position for which they applied and for which they were qualified. We also established that, with respect to certain claims, plaintiffs had failed to exhaust their administrative remedies by failing to identify the alleged wrongful acts placed at issue in their lawsuit. BDG also obtained an order requiring plaintiff to pay the costs our client incurred in the successful defense of the action.
  • BDG obtained summary judgment in favor of a government entity client in a class action lawsuit involving over 200 female attorneys. In this action, plaintiffs claimed that under the Federal Equal Pay Act, California Equal Pay Act, and the California Fair Employment and Housing Act, they suffered gender discrimination. Specifically, plaintiffs argued that as employees of a nonprofit company performing the same duties as public employee attorneys, they were entitled under statute and common law principles to the same salary and benefits afforded to male civil service attorneys employed by the government entity. We prevailed on a dispositive motion by proving that there were no unlawful pay differentials between the female attorneys at the nonprofit organization and the male attorneys at the government entity by establishing: (1) that plaintiffs had selected an inappropriate male comparator (i.e., government male attorney vs. nonprofit male attorney employee); and (2) that the pay differentials were based on legitimate factors other than sex (i.e., merit based civil service system and cost savings). Finally, we were able to establish that there was no evidence as a matter of law of disparate treatment that would support a FEHA claim.
  • BDG represented a school district client in a lawsuit brought by a former employee. In this action, plaintiff claimed that under the California Fair Employment and Housing Act, he suffered disability discrimination. Specifically, plaintiff argued that he was not provided reasonable accommodation for his alleged disability, and that the employer had failed to engage in the interactive process. Plaintiff’s claimed damages included lost wages, benefits and attorneys’ fees. After moving for summary judgment, BDG successfully negotiated a settlement with very favorable terms to our client that resulted in the dismissal of the lawsuit, with prejudice, and an agreement that the employee will not seek reinstatement or future employment with the district.
  • BDG successfully defended one of our school district clients against a retaliation claim by a teacher who asserted that he failed to obtain certain positions after previously filing a lawsuit against the school district for religious discrimination. By filing a strong motion for summary judgment against the teacher, BDG positioned the school district to settle the matter on highly favorable terms, which included the teacher’s resignation and agreement not to seek future employment from the school district.

Successful Use Of Alternative Dispute Mechanisms To Resolve Employment Claims

  • BDG represented a large school district and an individually named supervisor against a plaintiff who alleged sexual harassment and retaliation resulting in her termination from the district. After narrowly focused discovery, including subpoenaing the plaintiff’s medical records and taking her deposition, evidence was uncovered that demonstrated that the plaintiff had fabricated most, if not all, of her allegations, including an alleged medical condition that she contended was a result of harassment. The case settled through mediation for a minimal value.
  • BDG represented a city and certain officials in a federal civil rights action brought by the estate of the decedent, alleging wrongful death, assault and battery, Fourth and Fourteenth Amendment violations, and negligent hiring and supervision. After intensive written discovery and our participation in mediation, we successfully settled the case for an amount overwhelmingly favorable to the city.
  • BDG represented a public sector employer in a pregnancy discrimination action brought by an individual who worked for the entity as an agency temporary worker. After extensive discovery and pretrial motions, the case resolved favorably for the employer as the result of our participation in mediation.
  • BDG defended a school district and several district employees against claims brought by a former district employee alleging wrongful termination, defamation, violations of state and federal laws prohibiting religious discrimination, infliction of emotional distress, breach of contract, as well as fraud and deceit. The case settled through mediation for a fraction of what the plaintiff originally sought in damages.
  • BDG represented a private sector employer in an action brought by a white male in an executive position, who claimed he was unfairly passed over for a promotion. Within a week after receiving the complaint, BDG launched a defense with focused discovery, aimed at establishing our client’s right to summary judgment. Based on the strength of our summary judgment motion, we negotiated a successful resolution during mediation.
  • BDG represented a public health care district and several of its employees in an employment lawsuit brought by a former executive. After removing the matter to federal court, BDG successfully moved to compel binding arbitration pursuant to the executive’s employment agreement. Prior to the arbitration hearing, the parties agreed to voluntarily mediate the dispute, during which BDG negotiated a successful settlement that resulted in the dismissal of the executive’s lawsuit against all of our clients.

Resolving Employment Claims Through Trial And Administrative Hearings

  • BDG obtained a reversal of the Employment Development Department’s determination that an individual providing services to a nonprofit corporation as an independent contractor was misclassified. After a hearing before the Unemployment Insurance Appeals Board, the administrative law judge found that the individual was properly classified as an independent contractor and reversed the Department’s determination.
  • BDG represented a public entity in state and federal proceedings to enforce an establishment’s compliance with local ordinances and regulations pertaining to adult entertainment clubs. The case involved civil rights, First Amendment and land use issues. Based on our successfully arguing nuisance and violation of the applicable zoning ordinances, the trial court permanently enjoined the defendants’ unlawful operation and ordered the seizure of couches and tables where the prohibited “lap” dancing occurred. The defendants were twice held in contempt for violating the preliminary injunction issued at the commencement of litigation.
  • BDG defended a school district against one of the first male-to-male sexual harassment claims brought against a California school district. BDG‘s aggressive litigation efforts resulted in the outright dismissal of five separate district defendants and half of the plaintiffs’ legal claims. After an eight-week jury trial, the school district prevailed on the majority of the claims. On the remaining claims, plaintiffs were awarded a fraction of their Statutory Offers to Compromise, and less than 5 percent of the amount they sought at trial.
  • A school district employee sued his employer after he tried to rescind his resignation by contending it was wrongfully induced. BDG represented the district at the hearing on the employee’s Petition for Writ of Mandate the trial court ruled in favor of the school district and denied the former employee’s request for reinstatement. The Court of Appeal upheld the decision.