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March 28, 2012 5:15 PM

Fried Frank Wins Bid to Dismiss Former Secretary's Bias Suit

Posted by Sara Randazzo

A Manhattan federal district court judge has dismissed a two-year-old discrimination lawsuit brought against Fried, Frank, Harris, Shriver & Jacobson by a former secretary who claimed the firm targeted older female secretaries in laying off scores of staffers in 2008.

The plaintiff in the suit, Judith Cuttler, was laid off by Fried Frank in August 2008 after working at the firm for 23 years. Prior to being let go, Cutler was a "floater"—a secretarial job that required her to fill in when an attorney's regular secretary was absent.

The layoffs, which Fried Frank said in court filings were necessary as a result of a recession-fueled drop-off in the firm's workload, affected 19 secretaries in the New York office, including all nine "floaters" employed in that office at the time. (Law Shucks, a blog that tracks law firm layoffs, recorded 73 staff layoffs at Fried Frank firmwide in August 2008, and another 71 attorney and 58 staff reductions in the remainder of 2008 and 2009.)

In granting Fried Frank's summary judgment motion and dismissing the suit, which Cuttler brought in January 2010, U.S. district court judge Deborah Batts rested heavily on Fried Frank's assertion that the layoffs eliminated the entire floater secretary program "without regard for job performance" of any single secretary. That fact, Batts ruled, outweighed Cuttler's attempts to prove the firm discriminated against her because she was a 60-year-old woman who had been diagnosed with attention deficit disorder.

Several key documents in the suit—including Fried Frank's response to Cuttler's complaint and the evidence submitted by the firm in support of summary judgment motion—are filed under seal, meaning few details related to the Fried Frank layoff have been made public beyond those noted in Batts's 25-page decision (PDF).

Neither a Fried Frank spokeswoman nor the firm's lawyer in the matter, Proskauer Rose labor and employment partner Bettina Plevan, returned requests for comment Wednesday.

New York lawyers Daniel Lawrence Alterman and J. Patrick DeLince, who represent Cuttler, said in a joint e-mailed statement that they are disappointed in the decision and that Cuttler is "considering her options to protect and vindicate her legal rights."

In granting Fried Frank's summary judgment motion, Batts rejected Cuttler's argument that she should be allowed to introduce expert testimony connected to a second suit filed against the firm by a laid-off secretary. That testimony, Cuttler claimed, statistically proves that the secretaries fired by the firm were older than those who were kept on. Batts ruled that Cuttler missed her chance to come up with her own evidence to that effect during discovery. 

Furthermore, Batts ruled, Cuttler's allegations of age discrimination were undercut by the fact that two of the laid-off floaters were in their thirties. Batts also found that Cuttler had failed to show that Fried Frank discriminated against women when conducting the layoffs because she could not prove that any similarly situated men kept their jobs. In fact, according to the judge's decision, there were no male floaters at the firm at the time, and very few men even in nonfloater secretarial positions.

As previously reported by The Am Law Daily, at least three other former Fried Frank secretaries have sued the firm for allegedly dismissing them for discriminatory reasons.

U.S. district court judge Robert Sweet in Manhattan heard a motion for summary judgment in one suit, brought by Roseanne Zito, in February, but has not yet released his opinion. A Washington, D.C., case brought by Ivory Fuller is also ongoing. The fourth complaint, brought in New York by Julie Kamps, was dismissed with prejudice last June with the agreement of both parties.

Proskauer Rose has represented Fried Frank in all four cases. As in the Cuttler case, many documents connected to the other three suits are also filed under seal.

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