A lawsuit against Ballard Spahr filed by a former legal secretary in the Washington office is set for trial in July, after a D.C. federal judge last week denied a motion to refer the case to mediation.
Vanessa McFadden worked at the firm from 1989 until she was fired in 2004. She sued Ballard Spahr in U.S. District Court for the District of Columbia, claiming the firm discriminated against her because of her race and interfered with her right to take time off to care for her husband and herself.
U.S. District Judge Richard Leon granted the firm summary judgment in 2008, but the U.S. Court of Appeals for the D.C. Circuit reversed Leon's decision in 2010 on one of McFadden's claims, that the firm interfered with her right to take time off under the D.C. Family and Medical Leave Act. A jury trial is scheduled for July 23.
McFadden’s attorney, Silver Spring, Md.-based solo practitioner Teresa Murray, filed a motion (PDF) on May 18 asking Leon to refer the case to mediation, arguing that it would be appropriate even though Ballard Spahr declined her “informal” requests to talk. Leon issued a one-line order May 24 denying the motion.
Assuming the case goes to trial, McFadden’s remaining claim has to do with whether the firm improperly barred her from taking time off to care for her husband after he was diagnosed with cancer in 2002. McFadden, in her complaint, claimed she was forced to pay out of pocket to have her sister care for him instead.
McFadden accused the firm of refusing to give her the amount of time off as required under the Family and Medical Leave Act. She also claimed that firm partners and staff made “harassing comments” about her husband’s illness that she believed “were designed to coerce her into coming back to work full-time.”
Under the Family and Medical Leave Act, prevailing plaintiffs can recover out-of-pocket expenses, attorney fees and, if the jury finds the defendant acted intentionally, treble damages. Murray said in a phone interview today that while McFadden won’t recover much if she wins, “she wants to continue to go forward for herself and her family and others who find themselves in the same situation…It’s an important statute, even if it doesn’t provide much monetary benefit.”
Ballard Spahr’s attorney, Jonathan Mook of DiMuroGinsberg in Alexandria, Va., declined to comment. A firm spokeswoman was not immediately available.
McFadden’s lawsuit, filed in late 2005, included three additional claims for racial discrimination, disability discrimination and retaliation. McFadden, who is black, claimed that she was treated differently than white employees when she asked for the time off to care for her husband and also herself, after she became ill in 2003.
D.C. Circuit Senior Judge Douglas Ginsburg, writing for the three-judge panel, found that the firm had given a legitimate reason for firing McFadden – that her illness left her unable to perform as a legal secretary – that had nothing to do with her race. The court found that McFadden didn’t have a claim for disability discrimination because the Americans with Disabilities Act doesn’t bar employers from firing employees because they can no longer perform their core duties with reasonable accommodations.
The court reinstated McFadden’s Family and Medical Leave Act claim, however, finding that she only had to claim that the firm interfered with her right to take leave, and not that the firm outright denied her requests to take time off.
Ginsburg wrote that “a reasonable jury that found McFadden paid her sister to care for her husband could infer McFadden did so because Ballard Spahr led her to believe she could not take time off to care for him herself.”