how to handle an employment discrimination case day one

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How to Handle an Employment Discrimination Case Day One May 26, 2015; 6:00 PM – 9:00 PM

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HOW TO HANDLE AN

EMPLOYMENT DISCRIMINATION CASE

DAY ONE Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY

scheduled for May 26, 2015

Program Chair: Louis Pechman, Pechman Law Group PLLC

Faculty: Amanda M. Fugazy, Ellenoff Grossman & Schole LLP; Adam Guttell, Martin Clearwater & Bell LLP; Douglas H. Wigdor, Wigdor LLP

This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 3 Transitional and Non-Transitional credit hours; 1 Professional Practice/Law Practice Management;.1 Skills; 1 Ethics.

This program has been approved by the Board of Continuing Legal education of the Supreme Court of New Jersey for 3 hours of total CLE credits. Of these, 1 qualifies as an hour of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law.

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How to Handle an Employment Discrimination Case Day One May 26, 2015; 6:00 PM to 9:00 PM

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New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

How to Handle an Employment Discrimination Case Tuesday, May 26, 2015; 6:00 PM to 9:00 PM

Day One

Program Chair: Louis Pechman, Esq. Pechman Law Group PLLC Faculty: Amanda Fugazy Esq., Ellenoff Grossman & Schole LLP Adam Guttell, Esq., Martin Clearwater & Bell LLP Douglas Wigdor, Esq., Wigdor LLP

AGENDA 5:30 PM – 6:00 PM Registration 6:00 PM – 6:10 PM Introduction and Announcements 6:10 PM – 6:50 PM Overview of Agency Practice; Drafting a Complaint/Answer Amanda Fugazy, Esq. 6:50 PM – 7:30 PM Discovery Tips from the Defendant’s Perspective Adam Guttell, Esq. 7:30 PM – 7: 40 PM BREAK 7:40 PM – 8:20 PM Discovery Tips from the Plaintiff's Perspective Douglas Wigdor, Esq. 8:20 PM – 8:50 PM Questions and Answers

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Prepared and Presented by:

Amanda Fugazy, Esq.

Paul P. Rooney, Esq. www.egsllp.com

© 2015 EGSLLP. All rights reserved.

HOW TO HANDLE A DISCRIMINATION CASE:

OVERVIEW OF AGENCY PRACTICE; DRAFTING COMPLAINTS/ANSWERS

Amanda M. Fugazy, Esq.

Paul P. Rooney, Esq.

Ellenoff Grossman & Schole LLP

I. OVERVIEW OF ADMINISTRATIVE PRACTICE

A. Administrative Agencies

Three types of administrative agencies receive charges of employment discrimination in New

York:

(a) The United States Equal Employment Opportunity Commission;

(b) The New York State Division of Human Rights; and

(c) Local anti-discrimination agencies, such as The New York City Commission

on Human Rights and Nassau County Human Rights Commission.

1. Charge Prerequisite to Filing Lawsuit

The filing of an administrative charge with one of these agencies is a prerequisite to filing a

lawsuit under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et

seq., the Americans with Disabilities Act, 42 U.S.C.A. § 12112(a), and the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.

“The process generally starts when ‘a person claiming to be aggrieved’ files a charge of an

unlawful workplace practice with the EEOC. § 2000e–5(b). At that point, the EEOC notifies

the employer of the complaint and undertakes an investigation. See ibid. If the Commission

finds no ‘reasonable cause’ to think that the allegation has merit, it dismisses the charge and

notifies the parties. Ibid. The complainant may then pursue her own lawsuit if she chooses.”

Mach Mining, LLC v. E.E.O.C., 135 S. Ct. 1645, 1649 (2015) (citing 42 U.S.C. § 2000e–

5(f)(1)).

The document the EEOC issues to give a charging party notice of its actions is called a

“Dismissal and Notice of Rights.” The charging party has 90 days from the date he or she

receives a “Dismissal and Notice of Rights” to file a lawsuit.

“If, on the other hand, the Commission finds reasonable cause, it must first ‘endeavor to

eliminate [the] alleged unlawful employment practice by informal methods of conference,

conciliation, and persuasion.’ § 2000e–5(b). . . . The statute leaves to the EEOC the ultimate

decision whether to accept a settlement or instead to bring a lawsuit. So long as ‘the

Commission has been unable to secure from the respondent a conciliation agreement

acceptable to the Commission’ itself, the EEOC may sue the employer.” Mach Mining, LLC

v. E.E.O.C., 135 S. Ct. 1645, 1649-50 (2015) (citing § 2000e–5(f)(1)).

http://www.egsllp.com/

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Amanda Fugazy, Esq.



In very few instances does the EEOC actually sue the employer. Most commonly, if

conciliation fails the EEOC will issue a “Notice of Right To Sue” letter to the charging party.

The party then has 90 days from the receipt of that letter to file a lawsuit

2. Plaintiff May Sue In Court Under State Or City Law or File a Charge

One important difference between federal and state law is that under the New York State

Human Rights Law, N.Y. Exec. Law §§ 290-301, or The New York City Human Rights Law,

N.Y.C. Admin. Code § 8-101(a), et seq., an employee may either: (a) sue directly in court

without filing a charge of discrimination; or (b) file a charge with the State Division or

NYCCHR.

However, doing one or the other effects an election of remedies with respect to claims under

state or city law. The State Human Rights Law provides,

Any person claiming to be aggrieved by an unlawful discriminatory

practice shall have a cause of action in any court of appropriate jurisdiction

for damages ... and such other remedies as may be appropriate ... unless

such person had filed a complaint hereunder or with any local commission

on human rights.

N.Y. Exec. Law § 297(9). The language of the CHRL is nearly identical to that of § 297(9),

and discussion of the latter applies equally to the former. York v. Ass'n of Bar of City of New

York, 286 F.3d 122, 127 (2d Cir. 2002) (internal quotations and citations omitted).

“Thus, by the terms of the statute and code, respectively, the NYHRL and [NY]

CHRL claims, once brought before the NYSDHR, may not be brought again as a plenary

action in another court. Furthermore, once a plaintiff brings a case before the NYSDHR, he

or she may appeal only to the Supreme Court of State of New York.” York v. Ass'n of Bar of

City of New York, 286 F.3d 122, 127 (2d Cir. 2002) (citing N.Y. Exec. Law § 298).

B. Pre-Charge Investigation by Employee’s Attorney

It is essential that a thorough interview of the charging party take place and that a

detailed type-written memorandum of the allegations be prepared.

Take the time to learn about the business in which the client works and the

industry.

Take a detailed job history and find out why they left their more recent employers.

You should prepare a detailed charge affidavit and have the client sign it.

If witnesses are not managers of the employer, contact witnesses before filing a

charge and try to get affidavits from them.

Ensure your client has been diligently searching for work and can document that

fact.

If your client claims emotional distress damages get a release for their medical


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records and ensure that they understand that medical and psychological history is

discoverable.

Determine damages up front.

Have client bring recent Form W-2s and tax returns to your initial meeting.

Ask about litigation history of your client.

Find out up front what your client is willing to settle for. If the client has

unrealistic ideas of the case’s value, or says that they don’t care about the money

(it’s the principle that is at stake) reconsider whether you want to pursue the case

on their behalf.

If your client has confidential employer documents, do not take possession of

them. Review the latest ethics opinions on the subject (the law is constantly

changing and varies by jurisdiction).

Find out if your client has declared bankruptcy recently. Their claim may be

property of their bankruptcy estate. If so, unless the bankruptcy trustee has

abandoned the claim (and effectively given it back to your client) then the

bankruptcy trustee has power over whether the claim will proceed or not and any

proceeds of the claim would belong to the bankruptcy estate.

Don’t forget to ask how the client was paid. Did she get overtime pay? Did he

receive all of the tips he worked for if he is in a tipped occupation? The client

may, as it turns out, have a weak discrimination claim but a strong minimum wage

or overtime claim.

C. Charge Processing

1. Charges. The complaining party is referred to as the “charging party” in

EEOC proceedings and as the “complainant” in state or local proceedings. The employer is

referred to as the “respondent.”

2. Worksharing Agreements. Most states, including New York, have work

sharing agreements. This means that the state agency and the EEOC have divided the

responsibility for investigating discrimination charges. Agencies commonly send out

duplicates of the same charge. If a state agency is handling the charge, or vice versa, after a

determination is made as to the merits, you often receive a determination from the other

agency adopting the recommendations of the first agency but providing for a period of time in

which a party can seek review.

3. Timeliness. In New York, an EEOC charge must be filed within 300 days of

the unlawful act. 42 U.S.C. § 2000e–5(e)(1)); 29 U.S.C. § 626(d)(1). A charge with the State

Division or the NYCCHR must be filed within one year of the occurrence. N.Y. Exec. Law §

297(5) (“Any complaint filed pursuant to this section must be so filed within one year after

the alleged unlawful discriminatory practice”); N.Y.C. Admin. Code § 8-109(e).


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4. The Charge Filing. The charge that is filed need not be detailed. Usually

they are just a few paragraphs long. Usually the charging party will attach a charge affidavit

that provides more detailed information that will help the investigator. You can file a charge

in person at the EEOC or a state or local agency or send it in by mail. The EEOC New York

City office will also accept charges by facsimile. Charge forms from the various agencies are

appended hereto for your reference.

5. What to Tell an Employer Client about the Charge. The employer client

will probably have questions about the practical effect of the complainant having filed his

charge with the agency and want to know what to expect in the future, i.e., are they being

“sued”? While the technical answer at this stage is “no”, the practical answer is “yes”. They

must treat the receipt of the charge as the commencement of litigation.

6. Contacting the Agency on the Employer’s Behalf. An employer’s first

contact with the agency will probably (undoubtedly) be filing a notice of appearance and

requesting additional time in which to respond. If you are going to request an extension

(which is strongly suggested) you may want to do that before filing your notice of appearance

so that you can include everything in one letter. Give yourself enough time to investigate and

draft your response and then to give your client sufficient opportunity to review that response.

Generally, one month is sufficient time, but the investigator may only provide a two week

extension.

D. The Investigation on Employer’s Behalf

The employer’s attorney’s next step is to investigate in depth. Some clients prefer that

attorneys come and meet employees and witness in person and that is your best bet to get a

full picture of the defense.

The purpose of the investigation is to learn all of the facts that support the claim or undercut

the claim so that you can prepare an effective position statement and answer. Remember that

you will have to explain to the investigator what happened in a clear, concise, and convincing

fashion and provide sufficient background so that a person with no prior knowledge of the

particular industry can understand it. Take affidavits from witnesses and be prepared to annex

them to the employer’s position statement.

Be detailed and painstakingly accurate. Don't be afraid to ask questions if something doesn't

sound right to you! If you are skeptical of your client’s case the investigator will be too.

Keep in mind that where a charge is the first notice a client has a harassment complaint, your

investigation may, effectively, be the client’s investigation of that allegation.

E. Considering Settlement

Before going any further, the employer’s attorney should evaluate what the exposure is on the

case (e.g., what relief is the complainant seeking and what is the maximum relief he or she

can expect to receive?). Is this a case that can be won, or should you instead propose some

kind of settlement?

1. Mediation with the EEOC. The EEOC relies upon mediation, informal


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settlement efforts, and conciliation to resolve cases during and after investigations. The

advantages of mediation through the EEOC include the following:

The program is free.

It can be efficient because it starts before an investigation begins.

According to the EEOC its average processing time for a mediation is 84 days.

It is confidential, and informal.

It is conducted by EEOC personnel who are experts in this field.

2. Mediation, Settlement, and Conciliation in the State Division. Similarly, the State Division “may, at any time after the filing of the complaint, endeavor to eliminate the unlawful discriminatory practice complained of by conference, conciliation and persuasion.” SDHR, Rules of Practice, N.Y. Comp. Codes R. & Regs title 9 § 465.7. “Prior to the issuance of the Notice of Hearing, a settlement calendar may be held wherein each case where probable cause has been found may be considered for settlement.” SDHR, Rules of Practice, N.Y. Comp. Codes R. & Regs title 9 § 465.10

3. General Release. Any settlement should include a general release and you must advise the investigating agency that a general release will be necessary if the charge is going to be resolved. Each agency has its own release form, however, you can and should supplement that form.

4. Offer of Re-employment. Even if the matter cannot be totally resolved you may limit your client’s exposure by making an unconditional offer of re-employment to a comparable position. Also, in the cases where the Respondent offers, in effect, “complete relief,” the agency may dismiss the charge before an investigation for failure to conciliate or accept complete relief, i.e., for “administrative convenience.”

5. Timing of Settlement. In some cases, you can strengthen your bargaining position by setting out the merits of your case through your position statement. Therefore, settlement before submission of the position statement may not be appropriate.

F. Position Statements and Answers to Charges

The primary opportunity for the employer to make its case to an agency is through a position

statement and, in the state division and city commissions, an answer to the charge.

Usually an agency sends the employer the charge with a request to submit a position

statement and a request for specific information and documents.

Position statements are usually written in a letter format. Note that the EEOC says that it

“may share position statements with Charging Parties or their counsel.” U.S. EEOC,

“Questions and Answers on Phase I of ACT Digital, EEOC's Digital Charge System.”1 You

might, therefore, consider redacting some sensitive information (such as names or salaries)

that is irrelevant to the resolution of the charge.

1 The EEOC is in the process of implementing a system that will allow digital communication with the

EEOC and allow digital access to certain documents


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Amanda Fugazy, Esq.



Because your adversary may have access to your answer to the charge, it is advisable to have

a separate portion of your letter (or a separate document altogether) designated as the

“answer,” where, as in court, you will admit or deny any specific allegations in the charge.

G. Information Requests and Subpoenas

An agency’s request for a position statement will sometimes be accompanied by a request for

information. Examples of information that may be requested include personnel files, salary

information, and documentation concerning the termination of the charging party.

Agencies have subpoena power but these subpoenas are not self-enforcing, which means the

agencies have to go to court to enforce them. Most disputes over information requests can be

resolved through negotiation.

H. Conclusion Of Investigation By The Agency

1. EEOC Investigation. When the EEOC concludes its investigation it will do

one of the following:

a. If the EEOC has not found a violation of the law, it will send a Notice-

of-Right-to-Sue to the charging party. This notice gives the charging party permission to file a

lawsuit in a court of law.

b. If the EEOC finds a violation, it will try to conciliate. Conciliation

with the EEOC. Conciliation is a somewhat more formal process that goes on after the EEOC

concludes that probable cause exists to believe discrimination occurred. “EEOC is statutorily

required to attempt to resolve findings of discrimination through ‘informal methods of

conference, conciliation, and persuasion.’” EEOC, “Resolving a Charge” (quoting 42 U.S.C.

2000e-5). After a finding of probable cause the parties are invited to engage in conciliation

with discussions with the investigator and one another in an effort to reach a resolution.

i. If the EEOC cannot reach a settlement, the case will be referred

to its legal staff (or the Department of Justice in certain cases), who will decide whether or not

the agency should file a lawsuit.

ii. If the EEOC decides not to file a lawsuit, it will give the

charging party a Notice-of-Right-to-Sue.

2. State Division of Human Rights Investigation. When the State Division

concludes an investigation it will do one of the following:

a. If the State Division finds a lack of probable cause to believe

discrimination occurred, it will dismiss the complaint or remand it to the Regional Director

for further investigation. See below.


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Amanda Fugazy, Esq.



b. If the State Division finds that probable cause exists to believe

discrimination occurred, it will hold a hearing before an administrative law judge. See below.

3. NYC Commission on Human Rights Investigation. When the NYC

Commission on Human Rights concludes an investigation it will do one of the following:

a. Following a finding of no probable cause, the case is dismissed and the

complainant may appeal to the Commission. See N.Y.C. Admin. Code § 8–113(d), (f); Rosu

v. City of New York, 742 F.3d 523, 525 (2d Cir. 2014).

b. If probable cause is found, the case is assigned to an attorney for

prosecution and a hearing. N.Y.C. Admin. Code § 8–119. An administrative law judge holds a

pre-trial conference. Id. § 8–119(a). If the case does not settle, the administrative law judge

conducts a hearing and issues a recommendation, upon which the Commission bases its

issuance of a final decision and order. Id. § 8–120.

c. Complainants whose cases are dismissed, or found not to have probable

cause, by the Commission may seek judicial review in the New York Supreme Court. Id. § 8–

123.

I. Hearings In The State Division of Human Rights

In the event a case in which the State Division has found that probable cause to believe

discrimination occurred cannot be resolved, a hearing will be held before an administrative

law judge. SDHR, Rules of Practice, N.Y. Comp. Codes R. & Regs title 9 § 465.12(d)(1).

The hearing is a trial-like proceeding where evidence is placed on the record which is

recorded verbatim, just like a trial in court. Hearings are “open to the public except in

extraordinary circumstances.” Id. § 465.12(i).

Parties may present testimony at the hearing, in person or through counsel, and may cross-

examine witnesses. The testimony must be under oath and a record must be made.

“The case in support of the complaint is presented by one of the attorneys or agents of the

division or, at the complainant's option, the complainant's attorney, who may present the

complainant's case with the division's consent.” 3 Fair Employment Practices § 56:73 (citing

NY Exec Law § 297 subd 4(a)(i); N.Y. Comp. Codes R. & Regs title 9 § 465.11(d)(1)).

At the conclusion of the hearing, the administrative law judge prepares a proposed order

which is sent to the parties for comment. SDHR Rules of Practice, N.Y. Comp. Codes R. &

Regs title 9 § 465.17(c).

The Commissioner of the State Division issues a final order. The Commissioner either

dismisses the complaint or makes a finding of discrimination. N.Y. Exec. L. § 298. If the

Commissioner finds discrimination, he or she will order the Respondent to cease and desist

and can award the complainant relief such as reinstatement, back pay and compensatory

damages for pain and suffering. The parties have 60 days to appeal the Commission’s order


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to the Supreme Court. N.Y. Exec. L. § 298.

J. Post-Hearing Compliance Investigation

After the hearing, the State Division’s compliance investigation unit will verify that the Commissioner’s order is being followed. SDHR Rules of Practice, N.Y. Comp. Codes R. & Regs title 9 § 465.18. If the Respondent does not comply with the Commissioner’s order, enforcement proceedings may be brought in court by the Division. Id. § 456.19.

II. COURT COMPLAINTS AND ANSWERS

A. Timeliness

A claim under Title VII or the ADEA must be filed within 90 days of the Plaintiff’s receipt of

a “Dismissal and Notice of Rights” or “Notice of Right to Sue Letter” from the EEOC.

B. Preliminary Matters That Should Be Pleaded In A Discrimination Complaint

1. Jurisdiction: The facts of personal, subject matter and supplemental jurisdiction

should be affirmatively pleaded. For example:

This Court has subject matter jurisdiction under 28 U.S.C. § 1331

because her claims under Title VII raise a federal question.

This Court has supplemental jurisdiction over Plaintiff’s claims under

The New York State Human Rights Law pursuant to 28 U.S.C. § 1367

because those claims and her Title VII claims arise from the same

common nucleus of operative fact.

This Court has personal jurisdiction over defendant because it is a

citizen of the State of New York by virtue of the presence of its

principal place of business in the State of New York.

2. Exhaustion of Administrative Remedies: Plead the fact that the employee filed

a charge of discrimination, received a notice of right to sue letter, and timely filed the

complaint. Some plaintiffs attached a copy of the right to sue letter, but it is not necessary to

do so. For example:

Plaintiff filed a charge of discrimination one month after his termination with

the EEOC. After investigating, the EEOC issued the attached ‘Notice of Right

to Sue’ letter which Plaintiff received on April 28, 2015.

C. Complaint Must Be A Short And Plain Statement And Allegations Must Be

Simple, Concise And Direct

A pleading must contain a short and plain statement of the claim. Fed.R.Civ.P. 8(a)(2).


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Allegations must be “simple, concise, and direct.” Fed.R.Civ.P. 8(d)(1).

Judge Pauley recently reminded parties of these rules in a trademark infringement case. UPS

Store, Inc. v. Hagan, No. 14CV1210, 2015 WL 1456654, at *1 (S.D.N.Y. Mar. 24, 2015).

Plaintiff filed a 175-page complaint with 1,400 exhibits. Judge Pauley wrote, “A troubling

trend toward prolixity in pleading is infecting court dockets in this district and elsewhere. As

this case illustrates, a growing number of attorneys, from solo practitioners to ‘big law’

partners, are ignoring Rule 8 and its exhortation that ‘[a] pleading ... must contain ... a short

and plain statement of the claim.’” Id. He added that:

The pleading was “masquerading” as a summary judgment motion.

This was done to overwhelm the defendant.

Plaintiff who do this run the risk of alleging facts which show that they have no claim.

D. Complaint Must Be “Plausible” On Its Face

While making a short plain statement of the claim, “[t]o survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that

is plausible on its face” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L.

Ed. 2d 868 (2009) (internal quotations omitted).

Thus, every plaintiff faces a dilemma of pleading a short plain statement of the claim while

including sufficient non-conclusory factual allegations to ensure the pleading “plausibly”

states a claim.

In employment discrimination cases in particular, plaintiffs should err on the side of going

beyond a bare bones “notice” pleading to ensure that the “plausibility” standard is satisfied.

To that end, without going overboard and pleading every piece of evidence on hand, it has

been suggested that a plaintiff plead:

A prima facie case under McDonnell Douglas;2

Any “direct evidence” of discrimination;

the existence of comparators (similarly situated persons, outside of the protected class

to which the plaintiff belong, who are treated more favorably than plaintiff).

See generally, Charles A. Sullivan, Plausibly Pleading Employment Discrimination, 52 Wm.

& Mary L. Rev. 1613, 1677 (2011).

2 McDonnell Douglas Corp. v. Green, 411 U.S. 792, (1973) (requirements for a prima

facie case of discrimination are that a Plaintiff to show (1) membership in a protected group,

(2) qualification for the job in question, (3) an adverse employment action, and (4)

circumstances supporting an inference of discrimination. However, this is an evidentiary

standard, not a pleading requirement.


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E. Be Concise and Avoid Tendentious Statements

The plaintiff should bear in mind that a lengthy and tendentious allegation is likely to result in

the Defendant denying the entire allegation rather than parsing through the allegation to admit

part and deny part.

The Federal Rules provide that “[a] party that intends in good faith to deny only part of the

allegations must admit the part that is true and deny the rest.” Fed. R. Civ. P. 8(b)(4). What

this rule means, in practice, is that argumentative allegations are likely to be denied.

Consider the following example from a treatise. Suppose a plaintiff alleging retaliation

alleges in a complaint:

A conference was held on May 5, 2014, for the purpose of intimidating plaintiff and

plaintiff felt threatened.

Some defendants might admit that a conference took place but deny the balance of the

allegations. Others, however, might deny the entire paragraph.

“To some extent, it is a matter of degree, depending on the structure of the averments. For

example, consider an averment of entering into an unlawful agreement. Most attorneys would

simply deny this, rather than admit an agreement but deny that it was unlawful. On the other

hand, when an averment is structured as a compound of several different facts or thoughts,

such as the previous example (the May 5 conference), the rules seem to require precision in

the suggested answer.” Irwin Alterman, Plain and Accurate Style in Court Papers at 65

(ALI-ABA 1991).

In discrimination cases, plaintiffs have a tendency to want to add adverbs to every allegation,

thereby giving the defendant an opportunity to deny the allegations. This should be avoided

where possible in favor of a neutral or dispassionate recitation of the facts. For example:

1. Plaintiff was terminated on May 5, 2015.

2. The company terminated Plaintiff because of his race.

Instead of:

1. The Defendant unlawfully terminated Plaintiff on May 5, 2015 because of his race.

F. Answers To Discrimination Claims

1. Responding to Allegations: the same rules and advice that apply to all civil

actions apply here:

The defendant must admit, deny, or plead lack of sufficient information to

form a belief as to the truth of the allegations. Fed. R. Civ. P. 8(b)(1) and (5).

The defendant may in many cases deny an entire paragraph of a complaint if

any material part of the allegations is false. See discussion, supra; Fed. R. Civ.


11


Amanda Fugazy, Esq.



P. 8(b)(4)(“A party that intends in good faith to deny only part of an allegation

must admit the part that is true and deny the rest.”).

Be cautious about admissions because the admitted facts are considered

conclusively established for purposes of the case. Fed. R. Civ. P. 8(b)(6).

2. Common Affirmative Defenses in Discrimination Cases

After-acquired evidence (misconduct discovered after employee’s discharge

can be used to cut off back pay damages and prevent reinstatement).

Failure to mitigate damages (must be affirmatively pleaded as a defense).

Statute of limitations (plaintiffs have many opportunities to be tripped up by

statutes of limitations in this area, i.e., 90-day deadline to file complaint after

receiving a right to sue letter; 300-day charge filing deadline);

Failure to exhaust administrative remedies (including filing a civil court

complaint that goes beyond the scope of the employee’s EEOC charge);

Particular discrimination law may not apply to the employer because it does

not have the requisite number of employees (Title VII – 15 employees);

(ADEA – 20 employees); (NY State Human Rights Law – 4 employees); (NY

City Human Rights Law – 4 employees).

3. Counterclaims

Proceed with Caution. The law is unsettled as to whether an employer’s filing

of a counterclaim can result in liability for retaliation. Two months ago, a

Southern District of New York judge wrote:

Courts in this circuit have held that the filing of a “baseless pleading”

by an employer against an employee bringing a FLSA case can

constitute an adverse action giving rise to a claim of retaliation. But

whether or not an employee can claim retaliation because he or she has

been sued in a well-founded lawsuit is an open question, because there

may be constitutional limitations on retaliation claims involving the

exercise of ... legal rights.

Ozawa v. Orsini Design Associates, Inc., No. 13-CV-1282 JPO, 2015 WL

1055902, at *10 (S.D.N.Y. Mar. 11, 2015) (citations and internal quotations

omitted).

Do not threaten counterclaims unless you mean to follow through – that is an

invitation to a retaliation claim.


12


Amanda Fugazy, Esq.



Compulsory counterclaims (those that arise from the same operative facts)

must be pleaded or are barred. Fed. R. Civ. P. 13.

4. Responding to Scandalous Allegations

Employers are often vexed by sensational allegations in complaints, particularly those

involving sexual harassment.

Under Fed.R.Civ.P.12(f) the court, upon a proper motion or its own initiative, may “order

stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent,

or scandalous matter.”

Motions to strike are not favored and will not be granted unless it is clear that the allegations

in question can have no possible bearing on the subject matter of the litigation. Lennon v.

Seaman, 63 F.Supp.2d 428, 446 (S.D.N.Y.1999).

* * *


{00362412.DOC.1}

CHARGE OF DISCRIMINATION AGENCY CHARGE NUMBER

This form is af fected by the Privacy Act of 1974; See Privacy Act Statement before

complet ing this form. FEPA

EEOC

and EEOC

State or local Agency, if any S.S. No.

NAME(Indicate Mr., Ms., Mrs.) HOME TELEPHONE (Include Area Code)

STREET ADDRESS CITY, STATE AND ZIP CODE DATE OF BIRTH

NAMED IS THE EMPLOYER, LABOR ORGANIZATION, EMPLOYMENT AGENCY, APPRENTICESHIP COMMITTEE, STATE OR LOCAL GOVERNMENT

AGENCY WHO DISCRIMINATED AGAINST ME (If more than one list below.)

NAME NUMBER OF EMPLOYEES, MEMBERS TELEPHONE (Include Area Code)

STREET ADDRESS CITY, STATE AND ZIP CODE COUNTY

NAME TELEPHONE NUMBER (Include Area Code)

STREET ADDRESS CITY, STATE AND ZIP CODE COUNTY

CAUSE OF DISCRIMINATION BASED ON (Check appropriate box(es)) DATE DISCRIMINATION TOOK PLACE

EARLIEST (ADEA/EPA) LATEST (ALL)

RACE COLOR SEX RELIGION AGE

RETALIATION NATIONAL DISABILITY OTHER (Specify)

ORIGIN CONTINUING ACTION

THE PARTICULARS ARE (If additional paper is needed, attach extra sheet(s)):

I want this charge filed w ith both the EEOC and the State or local Agency, if

any. I w ill advise the agencies if I change my address or telephone number

and I w ill cooperate fully w ith them in the processing of my charge in

accordance w ith their proceedures.

NOTARY - (When necessary for State and Local Requirements)

I swear or affirm that I have read the above charge and that it is true to

the best of my know ledge, information and belief.

I declare under penalty of perjury that the foregoing is true and correct. SIGNATURE OF COMPLAINANT

SUBSCRIBED AND SWORN TO BEFORE ME THIS DATE (Day, month, and year)

Date Charging Party (Signature)

EEOC FORM 5 (Test 10/94)

1

How To Handle an Employment Discrimination Case

Discovery Tips from Defendant’s Perspective

Tuesday, May 26, 2015

Presented By:Adam Guttell, Esq.

Employment & Labor Practice Group

Martin Clearwater & Bell LLP

Discovery Tips from the Defendant’s Perspective

Discovery is not just about what you can get from thePlaintiff.

It is as much, if not more, about what you can collect,preserve, and utilize from your client.

Discovery Tips from the Defendant’s Perspective

1) Preservation

2) Investigation

3) Demands (Documents & Interrogatories)

4) Depositions

5) Experts

6) Deadlines

2

Preservation: A Sword and A Shield

Defendant:

• Be above board

• Be proactive

• Be prepared

• Avoid playing catch‐up

• Unfortunate reality: employer has more documents, more discovery


Plaintiff:

• Opportunity to place Plaintiff on defensive

• Forms:

– Demand letter response

– Discovery demands

• Explore locations/custodians

• Social Media

• Be wary of boomerang effect


Defendant’s Obligations:

• Litigation hold

• Investigate

• Do not take no for an answer

• Secure appropriate IT support

3


Litigation Hold:

• Cover letter

• IT letter

• Employee Letter

• SECURE ACKNOWLEDGEMENTS!

• Have the discussion


Why?:

• Spoliation risks

– Sanctions – monetary and adverse inference

– Loss of valuable information

• Unnecessary costs

– Unnecessary motion practice

– Procedural arm twisting unrelated to the merits


• Failure to issue a litigation hold is not gross negligence, but why run the risk.Chin v. Port Auth. of NY and NJ, 685 F.3d 135 (2d Cir. 2012)

• Going through the motions is not enough.In re: Actos Prods. Liability Litig., MDL No. 6:11‐md‐2299 (W.D.La., Jan. 27, 2014)

• Sanctions are a real possibility.Pension Committee of the Univ. of Montreal Pension Plan v. Banc of Am. Securities, LLC, 685 F.Supp. 2d 456 (S.D.N.Y. 2010)

4

Investigation

• Identify key individuals

– Decision maker(s)

– Individuals who provided information to the decision maker(s) – Cat’s Paw Theory

• Be aware of Initial Discovery Protocols for Employment Cases Alleging Adverse Action

Investigation Cont.

• Investigate early

• Be thorough

• Speak with all witnesses (unless it will create more claimants)

• Trust your instincts and dig deep

• Assume allegations are true until you obtain information to the contrary

Written Discovery: Strike A Balance

• Determine an objective

• Fight when necessary

• Do not get bogged down in procedural irrelevancies

• Middle ground is the best place to live

5


Interrogatories

• Obtain only necessary information

– SDNY Local Rule 33.3

– Be strategic: save certain questions for the deposition

• Tools

– Social media

– Damages

– Interplay with initial disclosures


Other Devices:

• Document requests (FRCP 34)

• Notice to admit (FRCP 36)

• Site inspection

• Subpoena (alternative: affidavit) (FRCP 45)

• Physical examination (FRCP 35)

Depositions: No Substitute For Preparation

• Plaintiff’s Deposition

– Frame the claims

– Review case law

– Outline issues for summary judgment

6

Depositions: No Substitute For Preparation

• Defense Witnesses

– Spare no time in preparation

– Avoid inconsistency

Deadlines

• Perhaps the most important part of Federal Practice

• Reality of State Court Practice

• Getting ahead of deadlines in litigation, as in life, may make all the difference

• Goal: focus on the merits

Questions?

Adam G. Guttell, Esq.

Martin Clearwater & Bell LLP

(212) 916‐0938

[email protected]

1

PRE-TRIAL MOTIONS AND TRIAL STRATEGY FROM THE PLAINTIFF’S PROSPECTIVE

Litigating an employment discrimination case and getting ready for trial are two separate matters that

require a completely different and unique skill set. Fortunately, for me, I spent three years in the District

Attorney’s Office and two years as a law clerk to a federal judge. So, while preparing for trial and

actually trying a case may cause some people great fear and anxiety, I approach each trial as the ultimate

experience to convince a group of individuals (the jurors) that your side is right and that your client

should be awarded monetary compensation.

While I have tried many cases, preparing for trial has not gotten any easier. There are no short-cuts in

trial preparation and the obvious goal is to know more about the facts and the law than any other person in

the courtroom. Jurors will sense that and as the trial goes on, they will begin to trust you. Provided

below is a brief outline of how I prepare for trial, pre- trial motions and trial strategy. It is important to

note, however, that every good trial attorney builds his/her own technique and style. This is mine, so it

may not suit your style – but it seems to work for me!

Pre-Trial Order

Jury Charge and Verdict Sheet

In the weeks prior to your trial, many judges will frequently ask for a pre-trial order. This is a good time

to begin honing your trial strategy. While it may seem counter-intuitive, I begin my trial preparation

backward. I always start with the jury charge and verdict sheet. Drafting a precise and well researched

jury charge can literally take days. The time that it takes though is extremely important as it will inform

all of your decisions going forward. From the jury charge, a verdict sheet should be relatively straight

forward – but this process can also be time consuming depending upon the number of claims and parties.

As I am drafting the jury charge and verdict sheet I often think about whether there are any claims or

parties that should be voluntarily dismissed. As I indicated earlier, credibility is crucial with a jury – I

don’t want to stand before a jury with weak claims or sympathetic defendants that will only undermine

my good claims.

2

Document Review

After putting the finishing touches on the jury charge and verdict sheet, it is important to organize your

documents. Unfortunately, there is no easy way of going about this process. In heavy document cases, I

often enlist the assistance of trusted paralegals and associates to separate documents that have some

relevance to the case (good and bad). Obviously, before they go about this, they need to understand the

facts of the cases and the legal issues. It is also important for the lead attorney to go through the

documents to randomly check to ensure that the correct documents have been located. Litigation software

is often very useful in this phase as “key word” searches can be utilized.

Pre-Trial Motions

Once you have segregated the “universe” of documents it’s time to start thinking about pre-trial motions.

While defendants often take the “kitchen sink” approach to motions in limine – often to burden you with

having to prepare oppositions when you should be focused on other trial preparations – experience has

taught me to try and pick and choose the “big issues” that truly warrant motion practice. Most of the

time, Judges hold these motions in abeyance until they have learned more about the case and the issue is

ripe for presentation to the jury – so, often the motion practice doesn’t resolve anything in any event.

Other than seeking to exclude certain documents, other motions in limine that frequently arise are motions

to preclude certain topics such as a no probable cause determination from the EEOC, prior psychiatric

treatment, prior arrests, prior lawsuits, etc. On the flip side, defendants typically seek to exclude prior

instances of discriminatory conduct (prior bad acts), prior findings of liability, etc. Defendants may also

move to bifurcate a jury trial into a liability and damages phase, bifurcate multiple plaintiff cases, seek to

have the judge determine back and front pay, and move to preclude punitive damages.

Depositions

Depositions should be reviewed and thought should also be given to whether you intend on reading a

deposition transcript rather than calling a certain witness. We typically video tape depositions and if you

have gotten the witness to say what you need – often times it may make sense to simply show the jury the

3

video. In any event, depositions need to be reviewed in order to assist in the preparation of direct and

cross examination outlines.

Direct and Cross Examination Outlines

My direct and cross examination outlines do not contain questions that would simply be read to the

witness. This is an ill-advised way to prepare for trial and does not provide for the flexibility necessary to

do a proper examination. Rather, I have found that the best way to prepare for examinations is to simply

list topics and exhibits that you want to cover. In my exhibit binder, I have my notes and highlighted

areas that I can formulate questions as I examine the witness.

Preparing an Opening

Great thought needs to go into an opening as it will tell the story to the jury. As the plaintiff, you have the

burden of proof and therefore have the first opportunity to address the jury. It is important to lay out the

facts as well as the law so that the jury understands exactly what you are going to prove. It is equally

important to acknowledge and address the case’s weaknesses and what defendants will likely say.

Credibility is crucial. Therefore, never promise anything that you cannot deliver on. If you plan to ask

for a large sum of money at the conclusion of the trial, you should also let the jury know that you will be

doing that at the closing arguments.

Jury Selection

Depending on your venue, you may either play an active or silent role in the jury selection. If you are

given an opportunity to address the jury in voir dire, attempt to build alliances among the jurors that you

like. This can be accomplished by asking other jurors to agree with a juror who has made a remark that

you think is positive and important to the case.

4

As you will likely need a unanimous jury to obtain a positive verdict, you should be looking to exclude

jurors who appear to be contentious and opinionated – those that may play “devil’s advocate” or take the

opposing view are jurors as a plaintiff’s lawyer you want to avoid.

Douglas H. Wigdor Partner

WIGDOR LLP 85 Fifth Avenue, New York, NY 10003 T: (212) 257-6800 | F: (212) 257-6845

[email protected] www.wigdorlaw.com

tel:%28212%29%20257-6800

tel:%28212%29%20257-6845

mailto:[email protected]

http://www.wigdorlaw.com/

Faculty Biographies

No other employment lawyer in New York has a comparable record both in the courtroom

and at the negotiating table. Mr. Wigdor routinely tries cases to verdict– having received

WIGDOR LLP

THE F IRM THE TEAM EMPLOYMENT L IT IGATION OTHER PRACTICE AREAS TESTIMONIAL S & VICTORIES PRESS & NEWS

BL O G CONTACT

Page 1 of 6Douglas Wigdor - New York's Best Employment Lawyer | Wigdor LLP

5/16/2014http://www.wigdorlaw.com/the-team/douglas-wigdor/

numerous decisions in the millions of dollars and regularly appearing in the New York Law

Journal’s “Top Verdicts.”

As a former Federal Law Clerk in the Eastern District of New York, an Assistant District

Attorney, and a senior lawyer at a prominent management side employment firm, he

brings his trial experience to bear, regularly trying cases in federal and state court as well as

arbitration tribunals. Because of his trial abilities, he routinely settles cases, valued in the

hundreds of millions of dollars, through informal negotiations and mediation. His cases are

regularly cited by other lawyers and judges in their judicial opinions.

.

Over the past eight years, the New York Law Journal has featured Mr. Wigdor and

Wigdor LLP’s clients in top New York State verdicts six times, including the number one

employment verdict in 2011, and the number two employment verdict and number one

disability discrimination verdict in 2012. Mr. Wigdor also regularly appears in appellate

courts, including the Second Circuit, New York Court of Appeals and First Department

arguing some of the most ground-breaking and closely watched legal issues in the

employment field.

Some of his notable outcomes include:

• $23.72 million arbitration award on behalf of the former Chief Financial Officer of Six

Flags

• $7.5 million verdict in a disability discrimination case against Wal-Mart, one of the

largest verdicts ever in a single plaintiff case under the Americans with Disabilities Act

• $8 million (appx.) verdict on behalf of the former Editor-in-Chief of the Source

Magazine, who was retaliated against after she complained of gender discrimination

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• $3.35 million verdict on behalf of a former employee of Nassau County whose due

process rights were violated

• $1.35 million verdict in a disability case where our client was terminated from his

employer after disclosing he was HIV positive

Two peer review studies, The Best Lawyers in America and Super Lawyers, have

recognized Mr. Wigdor as one of the nation’s leading labor and employment lawyers. Mr.

Wigdor was recently selected as a Blue Ribbon Panelist for Super Lawyers in the

employment litigation / labor and employment field after receiving one of the highest point

totals in the Super Lawyers rankings. As a Blue Ribbon Panelist, Mr. Wigdor will rate

other candidates and provide recommendations regarding the candidacy of other lawyers to

the prestigious Super Lawyers rankings. Mr. Wigdor has also received an AV rating from

Martindale-Hubbell indicating that his peers rank him as one of the preeminent lawyers in

the labor and employment field. Avvo, a well-respected lawyer-rating agency, rates Mr.

Wigdor at 10.0, its highest rating (“superb”). Mr. Wigdor has been asked by Law360, a

news source read by thousands of corporate counsel and firm decision makers everyday, to

become a member of their 2014 Employment Law Editorial Advisory Board. Members of

this board serve as a resource for Law360 to get feedback on the publication’s coverage in

addition to insight from experts in the field, such as Mr. Wigdor. More recently Mr.

Wigdor has had the honor of being selected as one of the Top 100 Trial Lawyers by The

National Trial Lawyers.

Mr. Wigdor’s handling of numerous high profile cases has resulted in frequent media

appearances, including on Nightline, Good Morning America, The Today Show, CNN

American Morning, Your World with Neil Cavuto as well as regular spots on CNBC,

ABC News, CBS News, NY1, the BBC, and NBC News. Mr. Wigdor is frequently

quoted as a legal expert in newspapers and magazines including The New York Times,

Wall Street Journal, New York Law Journal, London Times, Daily Telegraph, London

Independent, USA Today, New York Post, and Daily News.

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Mr. Wigdor coined the phrase “Recessionary Discrimination” to characterize the growing

trend by companies of using mass lay-offs to cover-up the discriminatory treatment and/or

impact on groups of women, people of color and those over 40.

Mr. Wigdor is also a lecturer, editor and author of articles on employment and criminal

related subjects, having been quoted frequently in the New York Law Journal, presenting

lectures to various Bar Associations, speaking at Oxford and Cambridge Universities and

publishing articles in numerous journals. Mr. Wigdor also recently spoke at a Human

Resources seminar on the topic of retaliation in the workplace and has been a feathered

speaker at the American Conference Institute. In May 2013, at the request of The National

Association of Criminal Defense Lawyers’ Task Force, Mr. Wigdor testified on the

Restoration of Rights and Status After Conviction. Mr. Wigdor has the rare qualification to

practice law in both the U.S. and U.K. as a qualified solicitor in England and Wales. Mr.

Wigdor’s practice focuses on litigation and counseling of individuals and companies in

connection with a wide array of employment issues, criminal matters and international

issues including:

• a group of women in a gender discrimination case against Citigroup

• a group of women in a pregnancy discrimination case against a large investment bank

• a group of women who were paid less than similarly situated men against a large bank

• executives in sexual orientation claims against their employer

• the former CFO of Six Flags

• a group of people of color in a race and national origin claim against Bank of America

• Individual women in an alleged gender discrimination class action complaint against

Dresdner Kleinwort

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• the former Tour Manager of ‘NSYNC’ in a lawsuit against ‘NSYNC’

• numerous investment bankers against their Wall Street employers and in conjunction

with negotiating employment and severance agreements

• several employees in claims of race discrimination against Radianz, Reuters and

Equant

• several employees in age discrimination claims against their employers

• employees in a large wage and hour case against CitiMortgage

• several celebrity models, actors, actresses and well-known chefs in various legal

disputes

Mr. Wigdor had the honor of serving as a Federal Law Clerk to United States District

Judge Arthur D. Spatt and was appointed as an Assistant District Attorney in Suffolk

County, New York; where he investigated, prosecuted and tried hundreds of criminal

matters ranging from robberies and burglaries to complex schemes to defraud. Mr. Wigdor

was rapidly promoted to the Complex Litigation Bureau where he both litigated and

supervised the litigation of white collar matters — complex financial crimes, including

organized crime, bank fraud, insurance fraud, tax evasion, identity theft and elder abuse.

Because of the breadth of his criminal litigation experience, Mr. Wigdor was appointed

under the Federal Criminal Justice Act to serve a three-year term, in the Eastern District of

New York, as a criminal defense lawyer in selected criminal cases.

Mr. Wigdor received his undergraduate degree from Washington University in St. Louis,

cum laude, where he was a member of the Varsity Tennis Team; a Masters Degree from

Oxford University in England; and his Juris Doctor from Catholic University School of

Law in Washington, D.C., graduating in the top of his class. Mr. Wigdor was a Senior Staff

Member on the Catholic University Law Review and an Editor of the Oxford International

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Review. While at Oxford, Mr. Wigdor received a coveted “Full-Blue,” was a member of

the Vincent’s Club and was the President of his College Student Body.

Mr. Wigdor is an active and philanthropic member of the Forest Hills community, where

he serves on the legal committee of the Forest Hills Gardens Association, has had the

privilege of managing several baseball teams in the Forest Hills Little League and coaching

a basketball team at the Forest Hills YMHA and Forest Hills Community House. Mr.

Wigdor is a former member of the Governing Committee of the Oxonian Society, a non-

profit organization dedicated to bringing heads of state to address its members, and was also

a member in both the Alexander Hamilton and Theodore Roosevelt Inns of Court wherein

he worked together with other selected lawyers and state and federal judges in the analysis

of current legal issues.

WIGDOR LLP


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Louis Pechman

Louis Pechman has been recognized as a New York Super Lawyer and a Best Lawyer in the area of Employment and Labor Law. In 2013, Mr. Pechman was honored as a “Top 100 New York Metro Super Lawyer.” Mr. Pechman has also been rated “Superb” on Avvo.com and rated AV® Preeminent by Martindale-Hubbell.

Mr. Pechman practices before federal and state courts and government agencies in all areas of workplace law, including employment discrimination, union-management relations, employment contracts, non-competition agreements, independent contractor issues, and wage and overtime disputes. Mr. Pechman has litigated hundreds of federal and state court cases. As a practitioner for thirty years in the labor and employment field, Mr. Pechman offers both individual employees and employers practical guidance on improving the employment relationship and, where appropriate, terminating that relationship.

A frequent contributor to the New York Law Journal and other business and legal publications, Mr. Pechman often gives presentations on employment law topics, including fair pay practices, the Americans with Disabilities Act, sexual harassment, and the development of human resource policies and procedures. He has lectured at the Fordham University School of Law, New York University School of Law, the Practising Law Institute, the American Bar Association and is a former Chair of the New York County Lawyers’ Association Committee on Labor Relations and Employment Law. Since 1996, Mr. Pechman has developed and moderated NYCLA’s annual program on “How to Handle an Employment Discrimination Case.” He also moderates an annual program at NYCLA on “How to Handle a Wage and Hour Case.”

Mr. Pechman is one of the leading practitioners in the area of restaurant litigation involving claims under the Fair Labor Standards Act and New York Labor Law, and has recovered over twenty million dollars in back wages for restaurant workers. He is the founder of waiterpay.com, a site that focuses on complex wage and hour issues in the New York restaurant industry and authors the Restaurant Worker News Blog.

Prior to founding Berke-Weiss & Pechman LLP, Mr. Pechman worked as a labor and employment attorney at three Manhattan law firms, as in-house labor counsel with the New York Daily News, and as a Field Examiner with the National Labor Relations Board. Admitted to the New York and New Jersey Bars, he is a graduate of the Cornell University School of Industrial and Labor Relations and the Fordham University School of Law.

Areas of Practice

• Workplace Law • Employment Discrimination • Union-Management Relations • Employment Contracts

http://www.waiterpay.com/

http://waiterpay.com/blog/

• Non-Competition Agreements • Independent Contractor Issues • Wage/Hour Disputes • ERISA

Bar Admissions

• New York, 1984 • New Jersey, 1985 • U.S. District Court Southern District of New York • U.S. District Court Eastern District of New York • U.S. District Court Western District of New York • U.S. District Court District of New Jersey • U.S. Court of Appeals 2nd Circuit • U.S. Supreme Court

Education

• Fordham University School of Law, New York, New York, J.D. • Cornell University, Industrial and Labor Relations, B.S.

Honors and Awards

• Best Lawyer, Employment and Labor Law, 2006 – 2014 • New York Metro Super Lawyers, Top 100, 2013 • New York Super Lawyer, 2006 – 2013 • Rated AV® – Preeminent

Professional Associations and Memberships

• Association of the Bar of the City of New York, Member, Labor and Employment Law Committee

• New York Women’s Bar Association, Co-Chair, Committee on Employment and Equal Opportunity for Women

• New York County Lawyers’ Association, Chair of the Committee on Labor Relations and Employment Law, 1994-1998

• New York State Bar Association, Member, Section on Labor and Employment Law • American Bar Association, Member, Section on Labor and Employment Law

Attorney Profile Back To Attorney Listing

Practice Areas:Labor and Employment

Tel: (212) 370-1300/(516) 584-1642

Amanda M. FugazyAmanda M. Fugazy, a member of the firm, represents clients exclusively in the fields of labor and employment law, including litigation, counseling and preventative education with regard to employment discrimination, harassment, labor relations, internal investigations, employment contracts, severance agreements, arbitration, mediation, wage-hour compliance and labor and employment aspects of corporate and real estate transactions.

Ms. Fugazy also has extensive experience in developing and delivering custom tailored management and employee-training seminars on a variety of employment related topics, including, but not limited to, illegal harassment,

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hiring, disciplining, firing, exterritorial application of US employment laws, wage hour compliance, record keeping compliance, employment discrimination, interviewing, family medical leave, worker's compensation, Americans with Disabilities requirements, reasonable accommodation, workers' adjustment and retraining notification requirements, workplace privacy, Occupational Safety and Health requirements, unemployment compensation, administering a collective bargaining agreement, and matters pertaining to unions.

Since the inception of her legal career, Ms. Fugazy has practiced labor and employment law exclusively. Prior to joining EGS in 2013, she and current EGS member Paul P. Rooney founded Fugazy & Rooney LLP in 2007. Prior, Ms. Fugazy was a partner at Bonnist & Cutro LLP, an associate in the New York offices of Reed Smith and Jackson Lewis, and a law clerk for the New York Hotel and Motel Trades Council.

Ms. Fugazy received her B.A. from The George Washington University and her J.D. from St. John’s University School of Law.

Ms. Fugazy is admitted to practice in the State of New York, the United States Court of Appeals for the Second Circuit, and the United States District Courts for the Southern and Eastern Districts of New York.

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Mr. Guttell has extensive experience advising employers of all sizes in industries as diverse as healthcare, finance, manufacturing, transportation, and hospitality. As a Partner in MCB’s Employment and Labor Practice Group, Mr. Guttell represents clients in federal and state court proceedings, as well as private mediations, arbitration, and administrative hearings. In addition to representing clients in employment related issues ranging from discrimination and harassment to violations of all state and federal fair employment laws, Mr. Guttell actively litigates restrictive covenant matters, including breaches of non-competition, non-solicitation and confidentiality agreements. He routinely counsels clients on drafting and enforcement of all manner of agreements related to employment. Mr. Guttell counsels clients on compliance with various state and federal laws affecting the workplace, including Title VII, Family and Medical Leave Act, Americans with Disabilities Act, Age Discrimination in Employment Act, Fair Labor Standards Act and New York State and City Human Rights laws.

Mr. Guttell is admitted to practice in New York, New Jersey, the United States District Courts for the Southern and Eastern Districts of New York and the District of New Jersey. He is a frequent speaker before business, legal and human resource professionals, lecturing on topics including restrictive covenants and employment agreements, state and federal anti-discrimination laws, state and federal wage and hour laws, and recent developments in employment law.

Mr. Guttell received his B.A. with High Honors in History, from Brandeis University and his J.D. from St. John’s University School of Law, where he was the Chief Justice of the Moot Court Honor Society.

Mr. Guttell has co-authored articles appearing in publications of the New York Law Journal, MD News, and The Risk Management Quarterly.

Education

St. John's University School of Law, J.D.Brandeis University, B.A., with honors

Admitted

New YorkNew JerseyEastern and Southern Districts of New York

Adam G. GuttellPartner

Telephone: 212-916-0938 / (516) 222-8502Fascimile: 212-949-7054 / (516) 222-8513Office Location: New York City / Long IslandE-mail: [email protected]

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PrintPractice Areas

Employment & Labor

Publications

The Employment Lawyer’s Perspective: Are Your Practice’s Agreements Enforceable?" in MD News April 2015

News

Press Release - Law360

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5/21/2015http://www.mcblaw.com/