Judge
Allows Lab Employees to Proceed on Age Discrimination Claims
By Cynthia
Foster Contact All Articles
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.