Download - Sullivan Involvement in Wrongful Termination Suit

Sullivan Involvement in Wrongful Termination / Gender Discrimination Suit

Highlights

When an associate (Danielle Cesarano) received a burn that caused physiological damage and

impaired her ability to work, Sullivan pressured her to return to work earlier than her doctor

recommended and made little accommodation of her reduced hours requirements

Sullivan failed to rotate her back onto her prior cases and did not make new case assignments

from her, arguably keeping her billable hours low enough to justify termination

Imposed an anomalously high 200 billable hours a month standard on her, apparently as a sort

of catch up requirement to make up for her medical leave, and threatened termination if she

did not achieve this goal

Whereas Sullivan was patient with able-bodied male associates with low billable hours and

made excuses for them, he refused to take Cesaranos circumstances, or her efforts to keep

total hours up, into account

Sullivan instructed Cesarano to downwardly revise her actual billable hours, which prompted

another partner to say Sullivan was playing games and that the head of the Litigation

Department would shit a brick if he knew that Rip had told you to do those things

He also postponed her performance evaluation, with the firm initially withholding the

evaluation even after it was finally conducted, giving her no opportunity to respond to or make

changes based upon its findings

When Cesarano confided to Sullivan that she felt she was being discriminated against on the

basis of her disability, he responded that he did not like her reference to discrimination rather

than addressing her concerns

Sullivan told Cesarano that if youre still injured, youre of no use to anyone

He also told her she was difficult to staff because her injury made her unreliable and that

the firm might not be able to keep carrying her

He was dismissive of a capital murder case she handled pro bono, dismissing it as a little pro

bono matter

Ultimately, he was the person who recommended her termination

Case Background

In April 2001, while attending a trial training program for employer Reed Smith, then-third year

associate Danielle Cesarano sustained a severe burn injury when a defective coffeemaker overflowed

onto her right hand, sustaining nerve damage and a condition diagnosed as Reflex Sympathetic

Dystrophy / Complex Regional Pain System.1 This allegedly resulted in permanent serve pain and

substantial physical limitations (At times, the pain is so intense that Ms. Cesarano feels as if her hand is

1 Plaintiff Danielle R. Cesaranos Opposition to Motion for Partial Summary Judgment, Danielle R. Cesarano v.

Reed Smith, LLP, Civil Action No 03-08644 at 1-2 (Superior Court of the District of Columbia, Civil Division, filed Oct 22, 2004) (Opposition to Summary Judgment).

on fire. At still other times, part of Ms. Cesaranos hand goes completely numb, and is rendered

useless).2

A month later, Ms. Cesarano was selected to lead an intensive document review, during which she

alleged exacerbation of her injury, but for which the head of the firms Litigation Department

commended her for a terrific job.3 After this, however, she was forced to take a medical leave of

absence, during which time the firm temporarily removed her from payroll, and upon her return, she

alleged the firm refused to provide reasonable accommodations (e.g., voice-recognition software, an

ergonomic chair), intentionally limited her assignments, treated her inappropriately, established

unrealistic goals to cause her to fail, and ultimately forced her out of the firm,4 despite more senior

associates with higher salaries providing fewer billable hours without being drummed out of the firm.5

Rip Sullivan was her Practice Group Leader,6 and as her supervisor, features prominently in the narrative

and the subsequent litigation. He is alleged to have made a number of dismissive comments and was the

driving force in her termination, in which she alleges disparate treatment with male associates in

Sullivans practice group, along with discrimination on the basis of her disability.

The case dragged on for over eight years from October 24, 2003 to December 2, 2011, with Cesarano

alleging violations of the D.C. Human Rights Act regarding the firms response to her disability, wrongful

termination given the circumstances of her dismissal, and gender discrimination on the grounds that less

productive able-bodied males were tolerated while her employment was terminated.7 The case was

initially dismissed as time barred, but on appeal, the D.C. Court of Appeals reversed the Superior Courts

ruling on applicable statutes of limitations8 and remanded the case to the Superior Court for

reconsideration on the merits. Ultimately, the parties settled out of court on undisclosed terms.9

Circuit Court Factual Summary

Although details of the case are better gleaned from other filings, and most of the following is reiterated

in other sections below, the factual summary of the D.C. Court of Appeals is worth quoting at length due

to its authoritative status. As a general summary of the case record:

The record in this case reveals that on October 24, 2003, Ms. Cesarano filed a complaint against

her employer, Reed Smith. She alleged that she was employed as an associate around March

20, 2000, and was assigned to the litigation department. On April 29, 2001, while she was

2 Id. at 10. Be aware that she apparently reached a settlement with the hotel and the coffeemaker manufacturer,

so she could be accused of being overly litigious. 3 Id. at 2.

4 Id. at 2-3.

5 Plaintiffs Statement of Material Facts at Issue, Danielle R. Cesarano v. Reed Smith, LLP, Civil Action No 03-

08644 at 39-46 (Superior Court of the District of Columbia, Civil Division, filed Dec Oct, 2004) (Material Facts at Issue). 6 Opposition to Summary Judgment, supra, at 3.

7 Material Facts at Issue, supra, at 39.

8 Vanderford, Richard. Ex-Reed Smith Attorneys Disability Suit Revived. Law360, March 4, 2010. Available at

http://www.law360.com/articles/153661/ex-reed-smith-attorney-s-disability-suit-revived 9 See docket for Danielle R. Cesarano v. Reed Smith, LLP, 2003 CA 08644 B.

attending a Reed Smith trial training program, Ms. Cesarano's dominant hand was burned. As

a result of her right hand injury, she developed complex regional pain syndrome/reflex

sympathetic dystrophy, a physiological disorder affecting the neurological body system. The

disorder, characterized as permanent, caused extreme pain and resulted in medical limitations

on her activities. She required physical therapy, occupational hand therapy, nerve block

procedures, and she had to take prescribed medication.

Based upon the recommendation of her physician, Ms. Cesarano took a leave of absence from

June 13 to July 12, 2001, for treatment of her hand injury. During her leave of absence, Ms.

Cesarano requested accommodations by Reed Smith for her disability. Specifically, she

requested (1) a reduced-hour schedule, (2) voice recognition software, and (3) an operator's

headset for her telephone. Upon her return to Reed Smith, Ms. Cesarano worked four hours

per day. Around July 19, 2001, she complained about the difficulty of working without voice

recognition software. In response, Richard Sullivan, her supervisor at the law firm, allegedly

informed Ms. Cesarano that if she was still injured, she was of no use to anyone. Ms.

Cesarano experienced difficulty in obtaining sufficient work assignments at Reed Smith to meet

the billing expectations of the firm.

On July 20, 2001, Ms. Cesarano complained to her employer that she was receiving neither

reasonable accommodation for her disability, nor enough work to generate billable hours. Reed

Smith's managing partner of the firm's District of Columbia office, Douglas Spaulding, advised

Ms. Cesarano that she had experienced a stutter step in her career, that the firm could not

carry her, and that she might be pushed out of the firm 10

On allegations of gender discrimination:

Count V, entitled, Sex discrimination in violation of the [DCHRA], contained allegations

concerning (1) the differential treatment of males and females in the firm; (2) hostile treatment

of female associates by a female partner; (3) verbal abuse by a male partner; (4) yelling, name

calling and retaliation by two male partners and a female partner when she asked the female

partner, in November 2000, to be relieved of working with the male partner; (5) her support by

other members of the firm and the assignment of adequate billable work until her injury; (6)

removal from one of her cases and replacement by a male associate; (7) instructions around

Winter 2002, to follow a strategy of writing off hours that purportedly would help her gain

respect at the firm; (8) instruction around March 2002 to seek the advice [of] one of the

guys' to verify the legal research conducted and the advice provided by [her] on a specific

project; (9) her termination from the firm (Reed Smith terminated [her] in whole or in part

because of [her] gender and because of the objections she raised as to her treatment by [a male

10

Danielle R. Cesarano v. Reed Smith, LLP, Case No. 07-CV-1065 at 2-3 (District of Columbia Court of Appeals, decided Mar 4, 2010).

and female] partner); and (10) alleged disparate treatment and retaliation based on her

sex.11

On reasonable accommodations:

Ms. Cesarano made two requests to Reed Smith for reasonable accommodation-one during her

June/July 2001 leave of absence for a reduced-hour schedule, voice recognition software and an

operator's headset for her telephone; and the other in March 2002 for an ergonomic evaluation

of her worksite, which was completed on June 6, 2002. On September 6, 2002, in her self-

evaluation, Ms. Cesarano stated that the firm had denied her reasonable accommodation.12

[] Mr. Sullivan related to her the need for 200 billable hours per month before he could

recommend her retention. In response, Ms. Cesarano expressed concern to Mr. Sullivan about

[his] statement given the medical restrictions on her workday. Mr. Sullivan interpreted Ms.

Cesarano's reaction as an indication that she could not do the work. Ms. Cesarano repeated

her work restrictions and her request for accommodations.13

Billable Hours and Evaluations

Due to her injury, Cesarano took two leaves of absence in 2001, the first from mid-June to mid-July and

the second from early August through late October on the advice of her physician, and her hours were

strictly limited throughout that year. Early in January 2002, her physician authorizedand she promptly

began and exceededeight hour work days,14 a substantial improvement but still far lower than what is

expected of Big Law associates. Consequently, both her total hours and billable hours lagged standard

expectations for the firm.

Cesarano alleges that (1) in evaluating her performance, Sullivan and others made no allowance for her

disability; (2) they did not take dramatically improving chargeable hours into account; (3) the firm, and

Sullivan in particular, conspired to keep her hours low by assigning her few cases and then often ones

with billing restrictions; (4) despite her obvious need to improve her chargeables, Sullivan instructed her

to write down billable hours; and (5) the firm delayed her evaluation to her detriment, giving her little

opportunity to improve before her termination, which was already a fait accompli. She also allegedas

is detailed laterthat able-bodied male associates with lower billable hours and worse performance

were retained.

11

Id. at 7. 12

Id. at 14. However, the appellate court held that this complaint was time barred, as we see no indication that she requested a new and different accommodation and that Ms. Cesarano should have recognized by June 6, 2002, or within a few days thereafter, that Reed Smith had failed to grant some of her requests for reasonable accommodations, but did not file her complaint until October 24, 2003. 13

Id. at 3. 14

Brief for the Metropolitan Washington Employment Lawyers Association as Amicus Curiae in Support of Appellant Urging Reversal, Danielle R. Cesarano v. Reed Smith, LLP, Case No. 07-CV-1065 at 4 (District of Columbia Court of Appeals, filed Apr 7, 2008) (MWELA Amicus).

While part-time, Cesarano contended that she was told by one Reed Smith partner not to expect

assignments until she was back full time, and by another not to even seek billable work because she

might be unable to handle it on a part-time schedule. After cleared by her doctor to work eight hours

per day, but with substantial restrictions on writing and keyboard use, the firm continued to assign little

billable work, and she was not rotated back onto cases on which she had been working prior to medical

leave.15

After being cleared for eight hour days, Cesarano seemed to be getting more than [her] share of

assignments wherein [she] was told there were billable hour restrictions, such that Reed Smith

provided her with quite a bit of discrete research assignments that were both limited in duration and

limited in the number of hours [she] was permitted to bill, on top of being told to write off [her] time

even with these assignments and others.16

Initially upon her return, for instance, one of her principle assigned responsibilitiesselected for her by

the head of the Litigation Departmentwas a pro bono case.17 Cesarano advised Sullivan of her need for

billable hours but continued to receive limited, short-term assignments while other associates remained

overloaded with billable assignments.18

Worse still, Sullivan and his Deputy Practice Group Leader both instructed Cesarano to write off her time

for various reasons, fully aware that she was below the firms targets.19 Learning later of these

instructions, a partner based in Pittsburgh, Efrem Grail, told her (per her deposition, informed by notes

she took memorializing the conversation), I dont know what kind of games Rip [Sullivan] is playing

but you should absolutely write down all the time you bill. It is not your responsibility to be doing

what they are advising you to do. And Tom McGough [the Head of the Litigation Department] would

quote-unquote, shit a brick if he knew that Rip had told you to do those things.20

(Interestingly, Sullivan actually favorably cited Grails political workkeeping Nader off the ballot in

2004during his 2007 campaign.2122 Grail got caught up in the Bonusgate scandal in Pennsylvania

involving state employees being paid bonuses for conducting political business on government time.23

Specifically, Grail coordinated efforts by the Pennsylvania House Democratic Caucus to prepare

challenges to Ralph Naders nomination petitions on government time.24 A five year investigation

15

Opposition to Summary Judgment, supra, at 4. 16

Material Facts at Issue, supra, at 17. 17


Id. at 6. 19


Id. at 16. 21

Rip Sullivan Liveblog 8-9pm Thursday. Raising Kaine Blog, April 18, 2007, available at http://www.raisingkaine.com/8099.htm 22

34th

District House of Delegates Democratic Candidates Debate, 2007. 23

Malloy, Daniel. Nader Takes Pa. Ballot Case to D.C. Appeals Court. Pittsburgh Post-Gazette, April 22, 2010. Available at http://www.post-gazette.com/news/nation/2010/04/22/Nader-takes-Pa-ballot-case-to-D-C-appeals-court/stories/201004220478 24

Nader, Ralph. Letter to Chief Justice Ronald Castille, Pennsylvania Supreme Court, June 21, 2011. Available at http://www.ballot-access.org/2011/Justice-Castille_6-21-2011_Final.pdf

resulted in 25 arrests and 21 convictions, including the convictions of five legislators.25 One State

Representative, Mike Veon, was sentenced to 6-14 years for his role in the corruption scandal.26 The

firm stuck by Grail, who remains a partner.)

As her practice group leader, Sullivan was responsible for finding work for associates, an obligation both

her and his deputy, Helen Kirsch, acknowledged. Cesarano went to both Sullivan and Kirsch seeking a

larger caseload; Kirsch directed her back to Sullivan and identified his role in terms of being responsible

for helping [her get work as the practice group leader who is in charge of monitoring all activities of

associates in the group, discovering who is busy, who is not busy, who has a need to fill. When she

failed to get work, she was told by Kirsch that she was doing everything she could be doing, and that

Mr. Sullivan has a responsibility to find work for you, which he acknowledges as well.27

And he did, telling her shortly before her termination, We, the firm, have to get you busier. And its my

responsibility to do that. And you keep doing what you are doing. Everything you are doing is exactly

right. And I will make additional efforts as well.28 By this time, however, her fate was already sealed.

Per Cesaranos counsel, Despite Mr. Sullivans responsibility to distribute work equally, he did not do

so. As a result, some associates had an excessive amount of work, while others had little work, an

observation that Ms. Cesarano brought to Mr. Sullivans attention.29

Under standard procedure, Cesarano would have received her annual performance evaluation in the fall

of 2001, but the firm delayed it to the start of 2002 due to her injury, and then unaccountably

postponed it again to May 2002, arguably to her disadvantage.

The purpose of performance evaluation meetings, in Sullivans words, is [t]o meet with the associates

directly and let him or her know what the results were; what the compensation decisions have been

made and hopefully exchange whatever, engage in a dialogue about what had or hadnt gone well in

25

Bonusgate: How the Statewide Public Corruption Case Unfolded. Special feature, Pittsburgh Post-Gazette, February 13, 2012. Available at http://www.post-gazette.com/home/2012/02/12/Bonusgate-How-the-statewide-public-corruption-case-unfolded/stories/201202121900. See also, for the fifth legislator, Scolforo, Liz. Steve Stetler Found Guilty on all Charges. The York Dispatch, June 26, 2012. Available at http://www.yorkdispatch.com/ci_20938427/deliberations-ongoing-stetler-trial 26

Mauriello, Tracie. Veon Given 6-14 Years. Pittsburgh Post-Gazette, June 19, 2010. Available at http://www.post-gazette.com/state/2010/06/19/Veon-given-6-14-years/stories/201006190191 27


Id. at 32. 29

Id. at 15. Note, pace this assertion, the defenses affidavit from Lynch: Mr. Sullivan knew, as I did, that as Practice Group Leader he could not tolerate a situation where an associate in his group was chronically at an extremely low chargeable hours level. Given that Ms. Cesaranos hours were low even before her reported injury, given Ms. Cesaranos mixed track record with D.C. attorneys who were potentially in a position to assign work, and given that the groups hours overall were light, Mr. Sullivan questioned Ms. Cesaranos long-term chances at Reed Smith. However, he stated to me, I would love to give her an opportunity to succeed, as did I. We discussed ideas for trying to increase Ms. Cesaranos chargeable hours, including alerting the groups partners concerning her availability and her need for work. Later that day, Mr. Sullivan sent an email to the groups partners to that effect, and he subsequently made other similar efforts. Defendants Consolidated Reply in Support of its Motions in Limine Nos. 1-14, Danielle R. Cesarano v. Reed Smith, LLP, Civil Action No 03-08644 at 10-11 (Superior Court of the District of Columbia, Civil Division, filed Jul 15, 2011) (Defendants Consolidated Reply). Cesaranos billables were, in fact, 5% above target in 2000.

the previous year and talk about goals for that particular associate we mutually thought he or she

should set for the year ahead. Particularly, there is a feedback component: [I]f theres an issue, we

want them to know about it so they can hopefully address it. Cesarano missed out on this due to the

postponed evaluation.30

In her pre-disability evaluation, she was rated as meeting or exceeding expectations for associates in

every rating category. After her subsequent evaluation, which covered a 20 month period instead of a

standard 12 month review, she was told that she had met the firms high expectations as far as the

quality of her work was concerned, but that she had not met the firms expectation for billable hours

not a surprise given her medical leave.31 Per her counsels statement of material facts:

Cesarano explained through her self-evaluation and in the meeting that she had been directed

to work restricted hours, not to exceed 8 hours per day by January or 2002; that she had not

been assigned billable work; that she had been advised not to seek billable work until she had

returned to full time status; and that she was instructed to write off some of her otherwise

billable time. Her Practice Group Leader, Rip Sullivan, acknowledged that she had done the right

things to obtain billable work and that he was partly at fault for not keeping her busy. Sullivan

also threatened that she would have to bill 200 hours per month to enable him to make the

argument to keep her around. Sullivan knew this requirement was impossible for her to meet

with the medical restrictions of her doctor, and this requirement was not expected of any

other associate in the firm. Ms. Cesarano pointed out to Sullivan that she was still injured and

noted that Reed Smith had not provided her with requested accommodations. Sullivan stated

that Ms. Cesarano would have to demonstrate significant improvement in her billable hours in

order to keep her job. However, only three and a half months remained in the evaluation

period, unlike the firms other associates who had been evaluated and provided with feedback

and an opportunity to improve in the fall.32

After her May 2002 evaluation was concluded, Cesarano was no longer assigned any significant new

billable work, and On October 28, 2002, Mr. Sullivan and Ms. Kirsch [Sullivans deputy practice group

leader] met with Ms. Cesarano to discuss her evaluation. At that time, Ms. Cesarano was informed that

her employment would be terminated, effective November 11, 2002. Sullivan told her that nothing had

improved and that she had not met Reed Smiths expectations for billable hours. (In fact, Ms.

Cesaranos billable hours had steadily and significantly increased since her May 2002 evaluation.)33 She

billed 136 hours in July and 155 in Augusta total that, annualized, came close to the firms malleable

1900 billable hours target for associates.34

30


Opposition to Summary Judgment, supra, at 5-6. 32

Id. at 5-6. 33

Id. at 7. 34

MWELA Amicus at 5.

In that evaluation, Cesarano received a Meets Expectations Minus rating due to [l]ack of billable

hours. (This is a mediocre rating, but not the lowest.35) She received 25 ratings at the Exceeds

Expectations level, 98 at Meets Expectations, and 6 at Falls Below Expectations.36 Mr. Sullivan made it

clear that the rating was about quantity, not quality, and that if her billable hours had been higher, she

would absolutelyno question received a higher rating. Ms. Cesarano explained that the type of

assignments [she] was receiving made it inherently impossible to meet [her] billable requirements. At

the time, Sullivan told her that it wasnt too late to turn things around and encouraged her that the

meets minus wont last indefinitely and that we, the firm, have to get you busier.37

The firm initially refused to provide her with a copy of the summary of her ratings and the written

evaluations. When she finally received them, they showed that 8 of 9 evaluators rated her as meeting

Reed Smiths expectations for legal ability and value added; the 9th put her 0.08 points below the meet

expectations score on a 5 point scale. She also came close to meeting total hours worked expectations

on an annualized basis.38 Despite this, Sullivan told her that this substantial improvement was slight

and that, really, nothing had improved.39 Her attorney argued that she was stigmatized as an associate

who had nothing better to do than pro bono cases, and that this stigma stuck even after she

substantially increased her billable hours.40

In fact, as early as January 30, 2002, Sullivan had told Chief Human Resources Officer Michael Lynch that

if Cesaranos hours remained low by fall, it would be hard to justify continuing her employment. He

conceded at the time that he knew that she could not drive, was aware that she had nerve blocks and

tingling in her hand and that there was no reason to believe that she was malingering,41 but did not

appear to believe that these factors justified flexibility on the part of the firm.

Despite the postponement of her fall 2001 evaluation, one was conducted internally at the time, but

never provided to her. In that evaluation, she was rated at 3.29 in Legal Ability; 3.83 in Value Added; and

3.69 in Personal Qualities, all on a scale of 1-5, where anything 3 or above is Meets Expectations. In the

various categories in which she was rated by the Reed Smith attorneys she worked for, Ms. Cesarano

received 22 ratings of Exceeds Expectations; 39 ratings of Meets Expectations; and only 3 ratings of Falls

Below Expectations.42

Kirsch informed Cesarano in November 2011 that she had seen the review and characterized it as being

positive. David McAllister, who was Director of Professional Personnel at the time,43 claimed that he

expected Sullivan to discuss Cesaranos performance with her and tell her the firm wanted to give her

35

Id. at 4. 36


Id. at 32. 38


Id. at 30. 40

Id. at 29. 41

Material Facts at Issue, supra, at 25-26. 42

Id. at 23. 43

David J. McAllister, Partner. Reed Smith. Available at http://www.reedsmith.com/david_mcallister/

more time to improve, but he did notin fact, Sullivan didnt meet with her concerning her

performance review until May 16, 2002.44

Disability Discrimination / Reasonable Accommodation

Under the District of Columbia Civil Rights Act, as well as federal laws of general applicability, an

employer must make reasonable accommodations for disabled employees.

Based upon her doctors advice, Cesarano requested voice recognition software and an ergonomic

worksite evaluation, which she would ultimately receive in part after her return from her medical leave

of absence,45 but not after her first leave. In an email to Sullivan on September 16, 2001, Cesarano

wrote, As you know, I have been eager to return since the day I left. I regretted very much that the firm

was unable to accommodate my disability [referring to the delay in getting Worksite Evaluation and

Voice Recognition Software] during the brief period I did attempt to return, in July.46 The firm would

never buy her the ergonomic workstation that her doctor recommended.47

After the firm did not initially provide her with voice-recognition software or give her any work to do

while on a physician-ordered part time schedule, Ms. Cesarano informed her Practice Group Leader,

Richard (Rip) Sullivan, that she felt she was being discriminated against on the basis of her disability.

Sullivan responded that he did not like her reference to discrimination. From that point onward, the

firm communicated to Ms. Cesarano that her job was in jeopardy. Specifically, Sullivan bluntly told her

that, as long as she was injured, she was of no use to anyone. Sullivan further explained that he was

torn, because he wanted to give her work but because she was injured he felt he could not.48

Cesarano also contended that she had to cut her medical leave short because of pressure from the firm.

From the plaintiffs typed notes memorializing a meeting with managing partner Doug Spaulding:

Although my doctors ideally would liked me to take additional two weeks, solely because of the

situation with Sue and Cynthia, the incredible and inordinate stress it caused me, the fact that

emotionally I could no longer deal with not been in the office, and the pressure I perceived from

people like Rip Sullivan who called me and left voicemail messages wanting to know the status

of my condition, when I was returning, what was going on [sic] my cases, who was handling my

matters, what else he needed to know, and that he had an assignment in mind for me really

made me feel that I had no choice but to return to work.49

[] The bottom line was that, to my disadvantage, to people like Rip and Doug and others as

well, I looked fine, I sound fine, therefore, I must be fine. It is impossible to make anyone

44


Order Granting Defendants Motion to File Under Seal Defendants Consolidated Reply in Support of Its Motions for Summary Judgment and for Partial Summary Judgment, Danielle R. Cesarano v. Reed Smith, LLP, Civil Action No 03-08644 at 5 (Superior Court of the District of Columbia, Civil Division, filed Sep 17, 2011) (Judgment Order) 46

Judgment Order, supra, at 26. Cf. Defendant offers evidence that it made several accommodations to plaintiffs condition; plaintiff believes that these accommodations were lacking and fail under DCHRA and DCFMLA. Id. at 9. 47

MWELA Amicus at 5. 48


Judgment Order, supra, at 23.

understand the amount of pain I often am in, and that is perhaps one of the most difficult and

worrisome parts of this condition.50

[] This type of indifference, inaction, mismanagement, and complete and utter disregard for

me not only has caused severe emotional distress, but is clearly typical of the way I was treated

while a [sic] my leave, and why I felt that I had no choice but to return. It is inconceivable to me

that this is happening, that none of these people is capable of following through their

commitments and to taking better care of employees; particularly, employees who have worked

hard, who or [sic] in pain, and who would not have been injured but for attendance at a work-

related event. And it is truly shameful and indescribably frustrating to deal with, because it is

apparent that no one else cares enough about me to spare me the emotional stress and

constant worrying over very simple, basic, easy issues to address.51

Cesarano alleged further that, when she was in the office in 2001, Sullivan treated her dismissively. In

her testimony, she said, Mr. Sullivan had expressed to me that as long as I was injured I was of no use

to anyone. He expressed to me reservations about staffing me on cases because of the unpredictable

nature of my pain condition and the fact that I had required medical leave were of concern to him. And

when I returned on a part-time basis he and others expressed to me that I should not expect to receive

any substantive billable assignments until I was able to return to work full time. So there were several

indications from Mr. Sullivan that he regarded me with my disability as either unable to take more

substantive work, inefficient, unreliable, etc.52

On July 23, 2001, Mr. Sullivan told Ms. Cesarano that her injury put [her] into a separate category, that

it was hard to show what you can do if youre not doing it, and also that it was difficult to staff you on

cases while injured because youre unreliable.53

Cesarano raised these issues in her May 2002 self-evaluation, which undoubtedly did her few favors

with the firm, writing, My firms behavior during my medical leave has left me with the distinct

impression that their bottom line is, choose between your health and your job54 and recalling:

I told [Mr. Grail] about the conversations that I had with Mr. Sullivan and Mr. Spaulding in July of

2001. I told him specifically that I had been threatened with termination because I required

medical leave of absence. I told that I was told that as long as I was injured I was of no use to

anyone. I told him that I had been threatened that I could be pushed out, that the firm did not

want to continue carrying me, that I was justified in fearing for my job, that Mr. Sullivan

indicated that he was torn about giving me work because not only was I of no use to anyone if I

was injured but was also unreliable; comments about the unpredictable nature of my disability

50

Id. at 24. 51

Id. at 25. 52


Id. at 10-11. 54


with regard to the ability to give me work assignments, all of which were made by either Mr.

Sullivan and/or Mr. Spaulding during July of 2001.55

In preparation for that May 2002 evaluation, the firms Chief Human Resource Officer specifically told

Sullivan to find out if Cesarano needed an accommodation on hours, testifying:

I asked [Sullivan] to find out from Ms. Cesarano whether we could expect from her the same

thing that we expect from any other associate, vis a vis hours. And the reason I asked that is I

was aware that she had the injury. I wanted to make sure whether she would need some form

of accommodation vis a vis the hours issue. Thats what I asked Mr. Sullivan to inquire

about.56

This did not happen. Per Cesaranos filing in opposition to a motion for summary judgment:

Yet, Sullivan did not ask Ms. Cesarano if she needed an accommodation for her hours during her

May 2002 evaluation. Instead, Mr. Sullivan told Ms. Cesarano in the context of her

performance evaluation in May 2002 that she would need to bill at least 200 hours per month

in order for him to make the argument to keep [her] around. Reed Smith disputes this

statement. In fact, the issue of an accommodation did not come up at all during the evaluation.

Only after the evaluation when Ms. Cesarano approached Sullivan with concern about his

ultimatum did Ms. Cesaranos need for an eight-hour day get discussed. At this point, given the

supposed advice of Lynch, Sullivan could have suggested a possible accommodation for her

eight-hour day, but he did not.57

In the context of Sullivans alleged comments, he appears to have been insisting that she make up for

time lost due to her medical absences and prior hours limitations. He had to know, however, that the

demand was unreasonable. As Cesarnos lawyer noted, No associate at Reed Smith was expected to bill

anywhere near 200 hours per month since the annual billable hours expectation was only 1,865.58

Furthermore, other attorneys, including in litigation department, worked on part-time status at the

time.59

In her lawsuit, Cesarano also cited disparaging comments by Sullivan and others, including:60

Sullivan: If youre still injured, youre of no use to anyone61

Your health is a stutter step in your career

The firm might not want to carry you

Sullivan: You are difficult to staff while you are injured because you are unreliable62

55

Id. at 29 56

Opposition to Summary Judgment, supra, at 39-40. 57

Id. 58

Id. at 17-18. 59

Id. 60

All quotes from Opposition to Summary Judgment, supra, at 25. Some of these were disputed by Reed Smith. 61

Attribution made Id. at 26. 62

Id.

Do not seek billable work on a part-time schedule because you could be viewed as inefficient or

unproductive

It would be a mistake to take on billable work on a part-time schedule that you might not be

able to handle

You should write off time as a way to demonstrate efficiency

Sullivan: You have no more future with Reed Smith because the firm does not want to continue

carrying you63

Cesarano contends that Pittsburgh-based partner Efrem Grail told her that, based on his observations,

people at the firm might be discriminating against [her] on the basis of [her] disability and doing things

that were illegal, and that he was extremely concerned that the firm was discriminating against [her]

and it bothered him and troubled him deeply that people at the firm might be behaving in an illegal

manner.64

On July 24, 2003, Cesarano filed a charge of discrimination with the D.C. Human Rights Commission as

well.65 And [i]n her deposition, plaintiff reiterated that in July 2001 she first heard discriminatory

comments relating to her disability; plaintiff stated that she heard these comments from Richard

Sullivan. Defendant further stated that she heard discriminatory statements on the basis of my gender

prior to [July 2001].66

At trial, Reed Smith argued that Cesaranos injury did not constitute a disability,67 but emails and

communications from partners regarding Cesarano strongly suggest they believed otherwise, and more

importantly for present purposes, Sullivan clearly understood that Cesaranos injury was holding her

back (see quotes under Termination, immediately below).

Termination

Cesarano was told that her billable hours were the lowest in Sullivans group (not taking into account

medical leave and injury) and that this was the reason for her termination.68 In the subsequent litigation,

both parties concurred that [t]he decision to terminate plaintiff was recommended by Richard Sullivan,

Esq., plaintiffs Practice Group Leader.69

On July 20, 2001, managing partner Doug Spaulding told her that her injury was a definite stutter step

in [her career] and absolutely cause for concern, commenting that it was very bad timing, that it was

reasonable for her to fear for her job because she was out of sight, out of mind due to medical leaves

63

Id. at 30. 64

Material Facts at Issue, supra, at 17. (Note again, though, that Grail was called as a defense witness, sticking by the firm.) 65

Judgment Order, supra, at 8. 66

Id. at 29. 67

D.C. Appeals Court Revives Wrongful Termination Suit Against Reed Smith. The Blog of LegalTimes, March 4, 2010. Available at http://legaltimes.typepad.com/blt/2010/03/dc-appeals-court-revives-wrongful-termination-suit-against-reed-smith.html 68



of absence, and that she might get pushed out because the firm might not want to continue carrying

her. He also told her she was right to be worried about [her] job and that she should make a

proposal to Rip Sullivan, David McAllister, and him outlining what the firm could expect health-wise

and when she would be able to guarantee she could return at a 100 percent healthy status. Said the

firm might try to possibly work with that and could accept her proposal or reject it, but if the latter,

reasonable that she could be pushed out.70

By March 2002, Sullivan said he would let her go, this only six weeks after he finally got around to

advising partners of her need for work,71 and months before her delayed performance evaluation

despite the fact that, as noted earlier, Sullivan told Cesarano that it wasnt too late to turn things

around after the May 2002 evaluation, encouraged her that the meets minus wont last indefinitely

and admitted that we, the firm, have to get you busier.72

Sullivan, moreover, clearly understood that the reason for Cesaranos low productivity (which was on

the rise) was her injury: Sullivan recognized at the time that Ms. Cesaranos low hours were due to her

injury, explaining that Ms. Cesaranos health issues were the most significant factor in her

performance. Sullivan also told Lynch that Ms. Cesarano fell off screens as a result of her medical

leave.73

He said in an email that her injury blew [a] hole in her year and stated earlier that [w]hen she has

been able to work, she is meeting, or capable of meeting, our expectations from a quality of work

standpoint.74

He also refused to take into account non-billable work that Cesarano took on when she failed to receive

sufficient billable assignments, despite using this as a valid excuse for other associates with low

chargeables.75By engaging in practice development and handling pro bono work for the firm when she

was not assigned enough billable work, Cesarano essentially met the firms total hours expectations.76

This work did not, however, impress Sullivan, who referred to one client matter she handled, in which

she represented a defendant in a capital murder case, as a little pro bono matter.77

She wasnt forced out for a lack of trying on her part: Cesarano assiduously sought to increase her

billable hours after May 2002, to the point of exceeding the eight-hour daily working limitation set by

her doctor even though Reed Smith had not provided the ergonomic workstation that he

recommended.78

70


Id. at 28. 72

Id. at 32. 73


Id. at 42. 75


Id. 77

Id. at 27-28. 78

MWELA Amicus at 5.

Gender Discrimination

Cesarano alleged that her treatment and termination constituted gender discrimination because male

associates with worse billing histories were carried along by the firm, to borrow Sullivans words. Per her

counsels filings:

In firing Ms. Cesarano, Reed Smith treated her unfairly in comparison to several able-bodied

male associates, who were not terminated and whose low billable hours were repeatedly

excused by the firm despite better opportunities afforded to them and despite the fact that they

had no limitations on their workday.79

In July 2001, Sullivan was asked by management to explain the situations of any lawyers in his practice

group whose chargeable hours were more than 15% below the hours budgeted for the year (pro-rated)

at the half-way mark. Evidently Reed Smith management was seeking explanations from Mr. Sullivan to

address productivity problems within his group. As of that time, Cesarano was not one of those listed

as a productivity problem, and for 2000 she was above budgeted hours by 5%.80 There were, however,

other problem attorneysable-bodied malesall of whom remained on even as Cesarano was

terminated (only first names provided below):

Dexter. A male associate who was hired the same year as Cesarano and received a higher salary

than she did ($150,000 compared to $122,500), failed to meet expectations for two consecutive

years, was given a Meets Minus rating in 2001, and then saw his hours fall further the following

year. Sullivan kept him on, excusing his low billables because his assigned work hadbeen very

light and when he has enough work to do, his reviews have been solid.81

Sullivan also claimed that [h]is numbers for the last 4 months of last year showed marked

improvement, and he is off to a good start this year, with a strong workload. In fact, he

averaged 101 chargeable hours per month over those four months. Sullivan took into account

that his group didnt have a lot of work to dothis being the same group as Cesarano was in.82

Notably, in a conversation with the HR director, Sullivan once compared Cesaranos situation to

Dexters, even though Dexter had no injury or disability.83

Richard. Mr. Sullivan excused [Richards] low chargeable hours in part because he had been

assigned by the firm to undertake several pro bono matters which were time-consuming.84 Of

course, the same could be said for Cesarano, but that was not considered mitigating in her case.

Sullivan also assigned Richard a significant case directly under him to get his hours up, which

never happened for Cesarano.85 Sullivan said there was a quantity, not quality of work problem

79



Id. at 42. 82

Id. at 43. 83

Id. at 29. 84

Id. at 39. 85

Id. at 40.

with Richard, but McAllister testified that Reed Smith took issue with the quality of his work as

well.86 He remained employed.

Joshua Bish. Worked 300 fewer chargeable hours than the firms target for associates, but

somehow received a Meets Expectations rating.87

Philip. Worked 300 fewer than the target billable hours, had an unusually high comps-to-fees

ratio, and a high billable hours writeoff, but received a Meets Expectations rating and a raise

of $1,750.88

Paul. Worked more than 300 fewer chargeable and total hours than expected (Cesarano came

close to her total hours target), yet received a Meets Expectations rating. Sullivan excused

Pauls low hours because a partner he worked for let the firm and he didnt have enough work

to do. As Cesaranos attorney noted, In contrast to [Paul], Ms. Cesarano provided valuable

services for the firm by engaging in practice development and handling pro bono work for the

firm when she was not assigned enough billable work, and as a result, Ms. Cesarano was able to

essentially meet the firms total hours expectations.89

It is worth reiterating that [d]efendant further stated that she heard discriminatory statements on the

basis of my gender90 While gender discrimination can be very difficult to prove, the case was settled

out of court, and that able-bodied males were given multiple second chances while a disabled female

was shown the door is, at least, a point on which Sullivan might be challenged.

Cesaranos Subsequent History

After her termination at Reed Smith, she went on to a career at the State Department,91 and as of 2010

she was the leader of one of the three subgroups within Executive Women at State, one of the largest

affinity groups in the Department at over 800 members.92 The purpose of the group is to promote and

mentor career women for senior leadership in the State Department, and each of the three subgroups

represents a different career rungjunior-level, mid-level, and senior-level.93 Later in 2011, it appears

that she transferred to the Department of Defense, where she served as the Dispute Resolution Liaison

86

Id. at 41. 87

Id. at 43. 88

Id. at 44. 89

Id. at 45. 90

Judgment Order, supra, at 29. 91

D.C. Appeals Court Revives Wrongful Termination Suit Against Reed Smith, supra. 92

Saboe, Cynthia. Exceptional Executives: Group Helps Women Advance as Leaders. STATE Magazine, March 2011. Available at http://digitaledition.state.gov/publication/?i=62139&p=21 93

Affinity Groups. U.S. Department of State. Available at http://careers.state.gov/learn/diversity-inclusion/affinity-groups

in the General Counsels office94 and now appears to hold another position with regard to overseeing

aspects of Alternative Dispute Resolution.

95

94

See e,g, Task Force Phoenix II Summit Summary Report of Proceedings. Defense Equal Opportunity Management Institute, May 26, 2011, p. 43. 95

Saboe, supra.

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