Judge Allows Lab Employees to Proceed on Age Discrimination Claims

The Recorder

January 30, 2013

SAN FRANCISCO — An Alameda County Superior Court judge indicated Monday that he'll allow a jury to decide whether or not managers of the Lawrence Livermore National Laboratory unintentionally but illegally discriminated against a group of former lab employees in violation of their employment contracts.

Judge Robert Freedman had previously split the employees' claims of age discrimination from their breach of contract case, but appeared to backtrack by allowing the plaintiffs to submit evidence of discrimination during the first trial over the contract, which is scheduled to begin in March.

At issue in the first phase of Andrews v. Lawrence Livermore National Security, RG09453586, is standard language included in offer letters given to the plaintiffs before they began work in which the lab promised not to fire employees for arbitrary or discriminatory reasons.

The five name plaintiffs, represented by Gary Gwilliam of Gwilliam Ivary Chiosso Cavalli & Brewer in Oakland, are a test group for a larger pool of more than 100 plaintiffs who say the lab illegally discriminated against them because of their age when the lab was restructured and privatized in 2008. The lab was previously owned by the U.S. Department of Energy.

The parties are currently locked in discovery negotiations over evidence to be used in the second phase of the case, in which the plaintiffs hope to prove the lab's moves had a disparate impact on older workers. The lab, now managed by a coalition of mostly private-sector companies led by Bechtel Corp. and represented by Patricia Gillette of Orrick, Herrington & Sutcliffe, says the restructuring was necessary and lawful.

But in court Monday, Gillette and her defense team seemed troubled by Freedman's tentative decision to allow evidence of "the age issue" into the contract case. In particular, they said, they are unclear on what the plaintiffs will be attempting to prove to show discrimination under the contract, since Freedman ruled last year that any discrimination was unintentional. In motions in limine, the lab sought to prevent any age discrimination evidence from being entered in the first phase at all.

Gillette asked Freedman to issue a written ruling defining the term "discriminatory reason" under the contract, although the judge seemed inclined to leave that up to the jury.

Leaving the jury to define discrimination outside of a statute or law is an unusual move, said Oakland employment lawyer Kathryn Dickson of Dickson Geesman.

It "gives the plaintiffs a lot more to work with," she said.

Gwilliam said Wednesday that he expects Freedman to issue a written ruling on the motion next month. The lawyers are set to begin voir dire for the contract trial on Feb. 19.