Kovalenko v. Kirkland & Ellis LLP

Background

Zoya Kovalenko sued Kirkland & Ellis LLP and several firm partners, alleging sex discrimination and retaliation. She alleged that, while working as an intellectual property litigation associate, she received less favorable treatment than male associates involving workload, pay and benefits, support, access to partners, assignments during vacation, and travel after a trial. She also alleged that partners made disparaging comments about women and assigned her administrative tasks that male associates were not asked to perform.

Kovalenko alleged that she complained several times about this treatment, after which her workload became more difficult and she was eventually excluded from work and positive feedback. She was fired in September 2021 at what was supposed to be her first performance review. She alleged that Kirkland later relied on negative evaluations that contradicted the positive feedback she had received and were fabricated to justify the termination and pressure her to sign a severance agreement.

Her causes of action included sex discrimination and retaliation under Title VII, the California Fair Employment and Housing Act (FEHA), and a San Francisco ordinance; an Equal Pay Act claim; a FEHA claim for failure to prevent discrimination and retaliation; defamation; and intentional and negligent infliction of emotional distress.

Anti-SLAPP Motion

Kirkland moved under California’s anti-SLAPP law to strike allegations concerning its response to Kovalenko’s unemployment claim, filings in a patent case, and communications involving defense counsel. The court assumed without deciding that the conduct was protected activity but held that the challenged conduct was not the specific wrongful conduct underlying her claims. Instead, the allegations supplied context or possible evidence of pretext. The court therefore denied the anti-SLAPP motion.

Motion to Strike

The defendants sought to strike requests for equitable relief, special damages, attorney’s fees, a footnote, and individual defendants’ street addresses. The court denied the motion to strike under Federal Rule of Civil Procedure 12(f), concluding that the requests for relief challenged the substantive sufficiency of the claims and that the footnote had a logical connection to the case. The court separately addressed the street addresses through the sealing motion.

Motions to Dismiss

The court granted in part and denied in part the motions to dismiss.

San Francisco ordinance claims. The court held that FEHA preempts Kovalenko’s San Francisco ordinance claims because her claims involved sex discrimination and retaliation in employment, areas regulated by FEHA. It dismissed causes of action 3 and 7 without leave to amend.

Claims against individual partners. The court held that individual law-firm partners and their professional corporations are not employers subject to individual liability under Title VII or FEHA for the claims at issue. It dismissed the individual defendants from causes of action 1, 2, 5, 6, 8, and 9 without leave to amend. The Title VII and FEHA claims against Kirkland itself were allowed to proceed.

Title VII hostile-work-environment claim. The court held that Kovalenko plausibly alleged that repeated sex-based differences in treatment communicated a hostile message and may have altered the conditions of her employment. Whether the alleged conduct was sufficiently severe or pervasive was a factual question for a later stage. The court denied dismissal on this basis.

Defamation. Kovalenko based her defamation claim on performance evaluations read to her after her termination. The court held that she had not adequately alleged a defamation claim against Defendant Alper because Alper did not submit an evaluation and the complaint did not allege that Alper republished the statements. The court dismissed the defamation claim against the Alper Defendants with leave to amend. As to the remaining defendants, the court held that the evaluations could reasonably be understood to convey incompetence and that Kovalenko adequately alleged actual malice, meaning ill will or reckless disregard for the truth. The court denied dismissal of cause of action 10 as to all defendants other than Alper.

Negligent infliction of emotional distress. The court held that Kovalenko’s negligent infliction of emotional distress claim was preempted by California’s workers’ compensation law because it was based on an alleged failure to prevent discrimination, harassment, and retaliation. The court dismissed cause of action 12 without leave to amend.

Intentional infliction of emotional distress. The court held that the alleged FEHA-related discrimination and retaliation were not barred by workers’ compensation exclusivity at the pleading stage. It further held that allegations of deliberately falsified performance reviews, including instructing a reviewer to criticize Kovalenko, were sufficient to plead extreme and outrageous conduct and severe emotional distress. The court denied dismissal of cause of action 11.

Punitive damages. The court held that allegations that individual partners coordinated to falsify performance evaluations in retaliation for discrimination complaints could, if proven, support a finding of oppression, fraud, or malice. The court denied the defendants’ motions to dismiss Kovalenko’s request for punitive damages.

Personal jurisdiction over the Schmidt Defendants. The court held that it lacked personal jurisdiction over the Schmidt Defendants. The opinion states that Leslie Schmidt and Schmidt P.C. were connected to New York, and that Kovalenko did not reside or work in California while employed by Kirkland. The court dismissed the Schmidt Defendants from all claims without leave to amend.

Equal Pay Act claim against Defendant Alper. The court held that Kovalenko had not provided authority showing that Defendant Alper could be sued individually under the Equal Pay Act. It dismissed Defendant Alper from cause of action 4 without leave to amend.

Motion to Seal

The court denied in part and granted in part Kirkland’s renewed motion to redact portions of the complaint. It rejected requests to seal generalized descriptions of attorney work and allegations about male comparators and partners, finding that embarrassment and conclusory claims of confidentiality did not overcome the public’s interest in access. It granted sealing only as to the individual defendants’ home street addresses, while allowing the complaint to identify the city and state where they reside.

Disposition

The court ordered Kovalenko to file an amended complaint omitting the individual defendants’ street addresses within 28 days. After she filed it, the Clerk was directed to strike and remove the original complaint. The anti-SLAPP motion was denied, the Rule 12(f) motion to strike was denied, the motions to dismiss were granted in part and denied in part, and the motion to seal was denied in part and granted in part.