Kovalenko v. Kirkland & Ellis LLP

Background

Zoya Kovalenko sued her former employer, Kirkland & Ellis LLP, and other defendants. She alleged that she was fired in retaliation for complaining about sex-based discrimination that she experienced and observed at the law firm. Her claims included sex discrimination, retaliation, hostile-work-environment harassment, failure to prevent discrimination and retaliation, unequal pay under the federal Equal Pay Act, defamation, and intentional infliction of emotional distress.

The court had previously dismissed some claims and defendants and allowed other claims to proceed. Kovalenko then filed a first amended complaint. The defendants moved to dismiss that complaint. Separately, Kirkland asked the court to overturn Magistrate Judge Thomas Hixson’s order quashing subpoenas to two of Kovalenko’s former employers and barring the requested discovery. Michael De Vries, Michael W. De Vries, P.C., Adam Alper, and Adam R. Alper, P.C. also sought permission to file a motion asking the court to reconsider parts of its earlier dismissal order.

Motion for Relief from the Discovery Order

Kirkland sought documents about Kovalenko’s performance, experience, skills, training, criticisms, discipline, leaves of absence, and medical records. The court reviewed Judge Hixson’s order under Federal Rule of Civil Procedure 72(a), which permits relief when a magistrate judge’s factual findings are clearly erroneous or the legal conclusions are contrary to law.

The court held that Judge Hixson did not clearly err or apply the law incorrectly. Kovalenko’s performance at other law firms was, at most, marginally relevant to her performance and treatment at Kirkland and implicated her privacy. The court also found that Kovalenko had not shown at that early stage that she was claiming more than ordinary emotional distress, which would justify seeking highly sensitive medical information. The court therefore denied Kirkland’s motion for relief from the pretrial order.

Motion to Dismiss

The defendants moved under Rule 12(b)(6), which allows dismissal when a complaint does not adequately state a legally recognized claim. The court decided the motion despite Kovalenko’s argument that the defendants had waived arguments that could have been raised in their earlier motions. The court concluded that deciding the issues then would avoid another round of pleading motions.

Professional-corporation defendants. The court denied the motion to dismiss the professional-corporation defendants from the defamation and intentional-infliction-of-emotional-distress claims. The amended complaint alleged relationships among the individual partners, their professional corporations, and Kirkland that supported a reasonable inference that the corporations could be liable for acts taken on behalf of Kirkland. The court noted that the defendants could raise the issue later if discovery supported a request for summary judgment.

Defamation. The court granted the motion to dismiss Kovalenko’s defamation claim as time-barred. It accepted, for pleading purposes, Kovalenko’s position that the claim accrued on October 11, 2021, when she learned that performance reviews had been shared. But the court calculated that the one-year deadline was October 11, 2022, making her October 12, 2022 filing one day late. The court also ruled that administrative complaints about sex discrimination, harassment, and retaliation did not automatically extend the deadline for the separate defamation claim through equitable tolling.

Intentional infliction of emotional distress. The court denied the motion to dismiss this claim as time-barred. It held that the claim was not dependent only on the allegedly false performance reviews and was subject to a two-year personal-injury limitations period. The court also denied the motion to dismiss the claim against the individual defendants and Adam Alper, finding that the amended complaint adequately alleged discriminatory and retaliatory conduct by each of them. Finally, the court ruled that workers’ compensation law did not preempt the claim against the individual defendants because the alleged conduct could violate California’s Fair Employment and Housing Act and also satisfy the elements of the emotional-distress claim.

Retaliation and failure to prevent retaliation. The court denied the motion to dismiss Kovalenko’s Title VII and Fair Employment and Housing Act retaliation claims and her Fair Employment and Housing Act failure-to-prevent-retaliation claim against Kirkland. The court found that an employee need not use specific legal terms to oppose discrimination. Kovalenko’s allegations that she complained about unfair treatment, disproportionate workloads, treatment compared with male associates, and work assigned for male associates adequately supported an inference that she alerted Kirkland to alleged gender discrimination. Disputes about what was said and how Kirkland understood the complaints were matters for a later stage, such as summary judgment or trial.

Equal Pay Act. The court denied the motion to dismiss Kovalenko’s Equal Pay Act claim against Kirkland. The amended complaint adequately alleged that Kovalenko and male associates performed substantially similar work because they had similar experience, worked on the same litigation team, and worked on some of the same matters, while the male associates received higher pay, bonuses, and benefits. The court also found sufficient allegations that Kirkland’s offices were operationally interrelated and could be treated as one establishment for purposes of the claim.

Motion for Leave to Seek Reconsideration

The court denied the motion for leave to file a motion for reconsideration brought by the De Vries and Alper defendants and their professional corporations. The proposed arguments largely repeated arguments already made in the motion to dismiss or in earlier motions. The defendants did not show that the court had failed to consider material facts or dispositive legal arguments.

Disposition

The court denied Kirkland’s motion for relief from the magistrate judge’s pretrial order, denied in part and granted in part the defendants’ motion to dismiss, and denied the motion for leave to file a motion for reconsideration.