A discrimination lawsuit brought against high-powered Boston law firm Mintz Levin by one of its former attorneys can move forward after a decision by the state’s highest court Tuesday.
In overruling a lower court judge who had thrown out the discrimination claims, Supreme Judicial Court justices said evidence supporting the ex-associate’s allegations of sexism and double standards inside the politically connected firm is substantial enough to warrant a jury trial.
And, in a section of the decision that could influence other employment cases, the justices ruled that employers are in some circumstances barred from retaliating against workers who search for, copy, and share with their attorneys confidential company documents that may help them prove discrimination claims.
Employment lawyer Kamee Verdrager sued Mintz Levin, chairman R. Robert Popeo, and several other attorneys there for discrimination in 2009, saying she was unfairly demoted in 2007 because she was a woman and because she twice took maternity leave.
Verdrager, who is representing herself, also alleges her demotion and ultimate firing in 2008 were retaliation for complaining internally about sexual harassment by her supervisor and for a complaint she later filed against Mintz Levin with the Massachusetts Commission Against Discrimination.
In deciding that Verdrager’s claims should be heard by a jury, the justices ruled “there is evidence that women at the firm . . . were subject to discriminatory treatment.” They cited a 2005 internal report Mintz Levin commissioned after settling an earlier gender discrimination lawsuit, which concluded that female and nonwhite attorneys at the firm faced “disparate treatment” compared to their white male peers.
The SJC found that Verdrager “presented evidence from which a reasonable jury could infer that both her demotion and her termination were the result of unlawful discrimination, as well as evidence allowing an inference that both were the result of retaliation,” the justices wrote in their decision.
Mintz Levin — formally, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo — countersued Verdrager, alleging fraud and breach of contract, among other claims. Its attorneys argued in court that Verdrager was fired only because she downloaded documents from the firm’s internal file-sharing system for use as evidence in her discrimination case.
Mintz Levin also filed an ethics complaint against Verdrager with the state Board of Bar Overseers, but the 12-member body eventually ruled she did nothing wrong, noting the documents she downloaded were easily accessible by any employee of the firm.
Tuesday’s ruling against Mintz Levin was unanimous, handed down by the Supreme Judicial Court’s four female justices; the three other judges had recused themselves from the case. Their decision means the case will now return to the lower court for a jury trial.
Joan Lukey, a prominent trial attorney who is representing Mintz Levin in the case, declined through a spokeswoman for her firm to comment on the ruling. In a brief statement, Mintz Levin said it expects to win the case despite the setback.
“While we are disappointed that the trial court’s award of summary judgment avoiding the need for a trial was not sustained,” a spokeswoman for Mintz Levin said, “we are confident that the claims have no merit and that we will prevail at trial.”
Verdrager, who is 42 and now runs her own practice, hailed the decision, saying it represented at least partial vindication after years of fighting.
“I’m thrilled,” she said. “There were a lot of really painful parts, but I’ve always been confident that I was right and that the facts were on my side.”
Verdrager alleged in court filings that trouble began soon after she started at Mintz Levin in 2004. A male superior began making sexually charged comments, she said, telling her that he wanted to cheat on his wife and that he had dreamed about her. Verdrager said that when she and other women complained about those and similar comments the man had made, the firm dismissed the incidents as “management style” issues. The superior, who denied the allegations, then gave her a negative performance review and assigned her nonbillable busy work, she alleged.
Later, after Verdrager returned from maternity leave, several supervisors complained she was working too slowly and didn’t seem committed to the firm, according to court records. Some wanted to fire her, but in 2007, Popeo decided to demote her instead, cutting her pay and setting her back two years in the firm’s seniority system, according to the records. After an internal complaint went nowhere, she filed an official complaint with the Massachusetts Commission Against Discrimination, she said.
Verdrager said she then found relevant documents on the company’s internal Web system, including managerial “talking points” about her discrimination complaints, records of other complaints by female employees, and transcriptions of voice mail messages left for Popeo, among others.
The justices pointed to a voice mail a female lawyer at the firm left for Popeo, complaining that “with respect to these kinds of employment [discrimination] complaints, . . [w]e . . . [cannot] stick our heads in the sand. We have done that for too long and that is what the problem is.”
Regarding Verdrager’s treatment specifically, the justices said comments by her supervisors “could be understood to reflect a stereotypical view of women as not committed to their work because of family responsibilities.”
The court in its ruling admitted that the question of whether employees can be fired or demoted for saving company records they intend to use in a discrimination case is a “novel” one. The justices ultimately ruled that this practice — so-called self-help discovery — may sometimes “constitute protected activity . . . but only if the employee’s actions are reasonable in the totality of the circumstances.” However, the court declined to apply this ruling to Verdrager’s case, saying other evidence made it unnecessary to do so.
Verdrager worried that the vague test laid out by the court would prompt more litigation, but said she hoped the decision would eventually help advance other employment cases.
“This is going to be a case that’s cited around the country in these kinds of decisions,” she said. “There are cases in every jurisdiction about employee self-help discovery. It’s a a hot-button issue.”