Friday, August 12, 2011
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C.A. Upholds Ruling for Latham & Watkins in Discrimination Suit
By SHERRI M. OKAMOTO, Staff Writer
The Sixth District Court of Appeal yesterday upheld a summary judgment in favor of Latham & Watkins LLP in a discrimination suit brought against the firm by a former paralegal.
In an unpublished decision by Presiding Justice Conrad L. Rushing, the appellate court ruled that Ebony Kail Lubarsky, who was self-represented, had failed to provide sufficient legal analysis supported by citations to authority or to facts in the record to support her claim of error.
Lubarsky was hired as an “at will” employee by Latham in January 2006 as a member of the firm’s litigation department, and her employee evaluations indicated she performed poorly. She was transferred to the corporate department, and Vedran Busija, a paralegal from that department, was assigned to be her mentor.
While working in the corporate department, the firm said Lubarsky consistently failed to meet the minimum billable-hour requirement for her position, comply with administrative regulations, and enter her work in Latham’s time-keeping system.
Feedback Request
In October 2006, after completing a large project, Lubarsky sent an e-mail to Busija, asking for feedback. Busija responded with details about specific mistakes she had made on the project, and said that much of the work would need to be corrected before it could be given to the attorney working on the transaction.
Shortly thereafter, Lubarsky made a claim of sexual harassment against Busija to John Shyer, a Latham partner and head of the firm’s Equal Employment and Opportunity Review Board, and two attorneys were assigned to investigate the claim.
These attorneys met with Lubarsky to acquire details of her allegations, as well as Busija and other Latham employees Lubarsky claimed had witnessed the harassment. They also obtained copies of e-mail correspondence between Lubarsky and Busija from the Latham technology department.
The internal investigation concluded after the attorneys did not find corroboration for Lubarsky’s allegations of sexual harassment, and Latham assigned a different paralegal to mentor Lubarsky.
In the beginning of 2007, Latham said it learned Lubarsky was having problems in her relationship with her new mentor, and complained she felt she was being treated like a “slave.”
Termination Notice
On April 13, 2007, Latham informed Lubarsky that because of her performance and billable hour pace problems, her employment was being terminated. The firm offered her an opportunity to resign and receive a severance package in exchange for a release of any claims against Latham, but she declined the offer.
Lubarsky thereafter filed a complaint against Latham alleging causes of action for sex discrimination, sexual harassment, retaliation, failure to take reasonable steps to prevent discrimination and harassment, and wrongful termination in violation of public policy. She also asserted the harassment claims against Busija.
Latham and Busija filed motions for summary judgment, which were granted Santa Clara Superior Court Judge Mary Levinger.
Rushing said Lubarsky had attempted unsuccessfully to hire an attorney to handle her appeal, and proceeding in propria persona, filed her opening brief which, was “deficient in its showing of error to overcome the presumption of correctness” accorded to Levinger’s ruling.
The brief, he noted, contained “minimal” discussion of Lubarsky’s claims, which was “supported by factual assertions that are not found in the record,” being made for the first time on appeal.
Lubarsky also “does not support her contentions with sufficient citations to facts in the record, nor does she support these arguments with sufficient legal authority,” Rushing said.
Justices Eugene M. Premo and Franklin D. Elia joined Rushing in his decision.
The case is Lubarsky v. Latham & Watkins LLP, H035099.
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