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Gordon & Rees Los Angeles Team Wins Summary Judgment in Employment Case

Gordon & Rees Los Angeles partner Stephen Ronk, senior counsel Jennifer Ghozland, and associate Erika Shao won summary judgment in an employment case alleging claims of discrimination based on sexual orientation, failure to prevent and retaliation.

The plaintiff, who worked as a claims representative for Gordon & Rees’s client, a large insurance company, was terminated after violating the company’s attendance policy. In the first eight months of 2011, the employee accumulated 14 chargeable unscheduled absences from work, which exceeded the 10 allowable under company policy. After taking an unscheduled week off to move out after a breakup with his long-term partner, the employee received his first written warning regarding his excessive absences. Two days later, the employee again called to say he was not coming to work. Frustrated by the need to constantly find coverage, the employee’s supervisors terminated his employment the following day in a meeting where the employee opened the discussion by offering his voluntary resignation.

The plaintiff argued his termination was in retaliation for taking time off to create a “safety plan” to move away from his allegedly abusive domestic partner. To support his claim, he argued that an employee was not disciplined when he took time off after his breakup with his girlfriend. The plaintiff admitted in deposition that he was unaware whether this employee utilized accrued time off to cover his absence. Here, the plaintiff exhausted all accrued time off mid-week during the unscheduled week that he took off.

The plaintiff also alleged that the company discriminated against him due to his sexual orientation by not supporting him during his breakup and allowing him the time off. While all witnesses for Gordon & Rees’s client testified to knowledge of the plaintiff’s sexual orientation, since the employee openly discussed it, they unanimously testified as to their understanding that he needed time off to “move.” They were unaware of any “emergency” situation or “safety” issue connected to the time off.

Using the plaintiff’s own deposition testimony, Gordon & Rees moved for summary judgment. On Feb. 21, Judge Terry Green of the Los Angeles Superior Court agreed that the plaintiff could not raise a triable issue of material fact as to his claims for failure to prevent sexual orientation discrimination and retaliation and that there was no evidence of malice, fraud or oppression to support a claim for punitive damages. Despite the plaintiff’s argument during the summary judgment hearing that all defense witnesses testified differently as to the company’s policies regarding attendance, Judge Green determined that the testimony was immaterial to the determination of whether there was discriminatory intent. Accordingly, summary judgment was granted.

Notably, counsel participated in a mediation with the plaintiff months before filing the motion for summary judgment where they offered to settle the case for a waiver of costs. The plaintiff rejected the offer. Now, as the prevailing party, they are moving for costs.

Stephen E. Ronk
Erika L. Shao