A gender discrimination suit filed against Proskauer Rose by an unnamed female partner is headed to mediation, but the suit has sparked several new unresolved conflicts.
On Tuesday, Judge Amy Berman Jackson of the D.C. Circuit ordered the firm and the partner, who is suing the firm under a ‘Jane Doe’ pseudonym, to begin mediation with Judge Barbara J. Rothstein, a visiting judge from the Western District of Washington and to report back to her with a status update by June 18.
The partner sued Proskauer last spring alleging she was paid less than male partners doing equivalent or less work, and that she was excluded from projects once she began complaining about it.
The partner also alleges she was threatened by a Proskauer attorney during a mediation session that took place before she filed her lawsuit. Specifically, the attorney allegedly told her, “You need to understand … you are going to be terminated. Your complaint upset a lot of people.”
A dispute over this allegation has spilled over into New York, where the Second Circuit on Wednesday heard arguments in a dispute between the Jane Doe partner and the JAMS mediator who oversaw that session.
Doe is hoping to subpoena the mediator’s notes in order to prove the exchange happened, but JAMS argues the mediation session was and should remain confidential.
In her order on Tuesday, Berman Jackson also authorized limited discovery related to a dispute over Doe’s status as an employee. Doe partner must be classified as an employee of Proskauer in order to be protected by the federal and state anti-discrimination laws at issue in the case.
Proskauer has argued she is not an employee because she is a partner and thus co-owner of the firm. The partner has argued she shouldn’t be classified as a co-owner because she has no control over the firm’s finances, operations or management.
It remains unclear whether the settlement talks will prove fruitful before the employee question is resolved. Proskauer and the partner have previously tried to settle the case, but couldn’t reach an agreement, according to court documents.
Berman Jackson ordered mediation after the parties said they were willing to make good faith efforts to find a resolution.
It’s not uncommon for judges to ask litigating parties to settle their disputes before trial, particularly in employment cases, according to Judge Shira Scheindlin, who formerly presided in the Southern District of New York and is now a partner at Stroock.
Nonetheless, Doe’s attorney David Sanford said he is preparing for trial just in case. He told Big Law Business that he is hopeful for a good resolution to mediation, adding, “but I can’t say I’m terribly optimistic.”
Given that outlook, Sanford said Doe plans to reveal her identity in an amended complaint next week.
A spokesman for Proskauer declined to comment.
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