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February 2011

San Francisco Employment Team Prevails on Motion for Summary Judgment

San Francisco Partner Mark Posard and Senior Counsel Rachel Pusey prevailed on a Motion for Summary Adjudication on behalf of a healthcare client. The plaintiff, a former Maintenance Supervisor, alleged that he was denied a promotion and terminated from employment on the basis of his race, national origin, ethnicity, age and disability ("severe" allergies). He also claimed that he was terminated in retaliation for having filed a sexual harassment complaint against a former co-worker (who had one month prior filed a sexual harassment complaint against Plaintiff.) The client offered abundant evidence (both documentary and by way of deposition testimony) of plaintiff's poor performance, lack of sound judgment and failure to follow procedure. The client also offered evidence that following plaintiff's complaint, he received a favorable review, was temporarily assigned to act as the Interim Director and was not terminated until seven months later. The court found that the evidence offered by plaintiff that the employer had created a "paper trail" to hide its discriminatory animus, and that plaintiff was a committed, hard worker was insufficient to show pretext. The court agreed that plaintiff might have been a dedicated hard-worker, but still could be terminated or rejected for a higher position on account of a pattern of failing to follow proper procedures or to communicate adequately, particularly a person in a supervisorial position. The court also agreed that there was no nexus between plaintiff's complaint and his termination.

Mark S. Posard