Case 1:19-cv-02443-RDM Document 41 Filed 01/18/21 Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`MARK C. SAVIGNAC and
`JULIA SHEKETOFF,
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` Plaintiffs,
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` v.
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`JONES DAY, STEPHEN J. BROGAN,
`BETH HEIFETZ, and JOHN DOES 1-10,
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` Defendants.
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`Case No. 1:19-cv-02443-RDM
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`REQUEST FOR PRE-MOTION CONFERENCE IN ANTICIPATION OF
`PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
`FOR RETALIATORY TERMINATION AGAINST
`DEFENDANTS JONES DAY AND STEPHEN BROGAN
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`Case 1:19-cv-02443-RDM Document 41 Filed 01/18/21 Page 2 of 7
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`In accordance with this Court’s standing order, Plaintiffs Mark Savignac and Julia
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`Sheketoff respectfully request a telephonic pre-motion conference regarding their anticipated
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`motion for partial summary judgment. The motion will seek summary judgment that Defendants
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`Jones Day and Stephen Brogan violated Title VII, the Fair Labor Standards Act, and the D.C.
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`Human Rights Act by firing Mark for Plaintiffs’ complaint about Jones Day’s discriminatory
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`provision of more paid leave to new mothers than to new fathers. See Dkt. 1 at 31-33 (Compl.
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`¶¶ 223-48, Counts VII-IX). The motion would address only the liability of Jones Day and Brogan
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`for firing Mark. It would not address the liability of Brogan’s “collaborat[ors],” the appropriate
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`remedies, Defendants’ other acts of illegal retaliation, or Plaintiffs’ other claims.
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`On January 16, 2019, Plaintiffs emailed Jones Day a pre-suit demand reiterating their view
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`that Jones Day’s paid leave offerings for new parents illegally discriminate on the basis of sex.
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`The January email informed Jones Day that if it did not give Mark equal treatment then he would
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`sue it for sex discrimination: “I will file a charge with EEOC and then a class-action lawsuit, and
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`the matter will be decided in the D.C. Circuit and in the court of public opinion.” Three business
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`days later, Jones Day fired Mark. Defendants state that they fired Mark for his “threat” to file a
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`civil rights lawsuit: “Jones Day fired Savignac for the poor judgment and immaturity reflected by
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`his extortionate threat to harm the [f]irm in the ‘court of public opinion’ unless it acceded to his
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`demand.” Dkt. 35 at 5 (Answer ¶ 10).
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`The three civil rights laws at issue here prohibit retaliation against employees for
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`challenging sex discrimination. An employer violates this prohibition if (1) an employee engages
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`in “protected activity,” (2) the employer takes an “adverse action” against the employee, and
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`(3) the adverse action was “causally related” to the protected activity. Savignac v. Jones Day, ---
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`F. Supp. 3d ---, 2020 WL 5291980, at *18 (D.D.C. 2020). Since firing an employee is clearly an
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`“adverse action,” Jones Day is liable under its own version of the facts (making any fact dispute
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`immaterial) if the activity for which it says it fired Mark was “protected activity.”
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`The activity was indeed protected. The civil rights laws protect an employee’s opposition
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`to employer practices that violate those laws. Id. That protection also applies where the employee
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`reasonably believes that the challenged practice is illegal, even if a court later decides that she was
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`mistaken. Id. Here, Plaintiffs are not mistaken: Jones Day illegally discriminates on the basis of
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`sex by giving eight more weeks of paid leave to a new mother than a new father without regard to
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`whether the mother is actually disabled during that time. But regardless of whether Plaintiffs are
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`correct on the merits of their underlying discrimination complaint, that complaint was undeniably
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`reasonable and therefore protected—and that is all that matters for purposes of the anticipated
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`motion.
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`First, Plaintiffs’ complaint was based on an accurate (or, at least, reasonable)
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`understanding of Jones Day’s paid leave offerings. Julia laid out this understanding when she first
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`raised Plaintiffs’ concerns about discrimination in an August 2018 email:
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`I was looking at the firm’s parental leave policy, and I noticed that Jones Day gives
`women 18 weeks of paid leave (and 24 weeks total) while it gives men 10 weeks
`of paid leave (and 16 weeks total). Eight of the weeks for women are labeled as
`disability leave, but the leave is not dependent upon whether women are actually
`disabled. Most women aren’t physically disabled from office work for such a long
`period and yet still get the full eight weeks of disability leave ….
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`Julia’s email asserted that it is “unfairly discriminatory” to give new mothers an extra eight weeks
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`of paid leave that are “labeled as disability leave, but … not dependent on whether women are
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`actually disabled,” such that women who “aren’t physically disabled from office work for such a
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`long period … still get the full eight weeks.”
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`Plaintiffs’ understanding that Jones Day offers every new mother eight more weeks of paid
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`leave than it gives new fathers, without regard for whether she is actually disabled from working
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`at Jones Day for that period, is correct. At a minimum, it is eminently reasonable. For one thing,
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`virtually all women at Jones Day take the full eight weeks (as Jones Day itself asserts), which
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`would not be the case if the leave were limited to the woman’s period of actual disability.
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`Plaintiffs’ understanding is also consistent with the plain terms of Jones Day’s written Family
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`Leave policy, which says that “the [f]irm will provide mothers eight weeks of paid leave under the
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`[f]irm’s Short Term Disability policy” plus “an additional ten weeks of paid family leave after the
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`eight weeks of paid disability leave.” Adding eight plus 10, the written policy describes the total
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`paid leave entitlement for new mothers as “the 18 weeks of paid leave.” Any woman who read
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`the written policy would have the same takeaway: If she had a baby, she would be entitled to “the
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`18 weeks of paid leave.” It is no surprise, then, that virtually all women take the full eight weeks.
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`In its reply in support of its motion to dismiss, Jones Day asserted (for the first time ever)
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`that these explicit statements in its written Family Leave policy are just inaccurate “shorthand” for
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`the terms of its written Short Term Disability policy, which, it says, limit each woman’s extra leave
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`to her period of actual physical disability—which could (and often would) be less than eight weeks.
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`Actually, the written Short Term Disability policy says nothing of the sort; it nowhere contradicts
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`the clear statements in the written Family Leave policy. This Court has already pointed to the
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`“difficulties with Defendants’ textual argument” about the disability policy, holding that “the
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`language of the disability policy upon which they hang their hat is subject to different
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`interpretations.” 2020 WL 52919980, at *16. That forecloses any argument that the text of the
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`disability policy is so clear as to render Plaintiffs’ understanding unreasonable and thus
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`unprotected. Any mother-to-be who read the two written policies together would understand that
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`she could take the full 18 weeks of paid leave regardless of how long she was actually disabled.
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`Again, it is no surprise that virtually all women take the full amount.
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`Even more compellingly, Julia laid out Plaintiffs’ understanding in her August 2018 email
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`(quoted above). That email went to Sarah McClure, the firm’s Director of Human Resources and
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`longtime employment lawyer. McClure would surely have corrected Julia if Julia’s stated
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`understanding of the firm’s HR policy were incorrect; that is her job. But, far from offering any
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`correction, McClure confirmed Julia’s clearly stated understanding of Jones Day’s paid leave
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`offerings and denied her request for equal treatment with a lengthy analysis premised on that
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`understanding. At a minimum, Plaintiffs’ belief that Jones Day actually has the challenged leave
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`disparity was reasonable and thus protected.
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`Second, Plaintiffs’ belief that the challenged leave disparity is illegal is also eminently
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`reasonable (and, indeed, correct). The civil rights laws prohibit sex discrimination in employment.
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`The Supreme Court has said that employers cannot “grant[] more family-leave time to women than
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`to men.” Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 739 n.12 (2003). It
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`has upheld bona fide disability leave for new mothers that is “narrowly drawn to cover only the
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`period of actual physical disability on account of pregnancy, childbirth, or related medical
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`conditions,” while emphasizing that the law prohibits “special treatment of pregnant workers based
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`on … generalizations about their needs and abilities.” California Federal Savings & Loan Ass’n
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`v. Guerra, 479 U.S. 272, 285 n.17, 290 (1987) (emphasis in original). Treating all women as
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`disabled for eight weeks after childbirth is nothing if not a “generalization[].” The Supreme Court
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`has also reaffirmed that even “true” sex-based generalizations are off-limits to employers. E.g.,
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`City of Los Angeles v. Manhart, 435 U.S. 702, 704, 707-08 (1978). And it has made clear that
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`eight weeks of “disability” leave for office workers is not a “true” generalization in any event.
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`E.g., Cleveland Board of Education v. LaFleur, 414 U.S. 632, 649 n.15 (1974).
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`The Third Circuit has expressly held that leave given to new mothers but not fathers is “per
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`se void for any leave granted beyond the period of actual physical disability.” Schafer v. Board of
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`Public Education, 903 F.2d 243, 248 (3d Cir. 1990). The Eighth Circuit and the EEOC also
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`support Plaintiffs’ position. See Dkt. 18 at 13-27 (detailed analyses of the parties’ legal
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`authorities). By contrast, as this Court held after considering the parties’ cited authorities,
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`“Defendants have not shown that the text of Title VII, the FLSA, or the DCHRA or any precedent
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`(much less any controlling precedent) is unambiguously at odds with Savignac’s belief that Jones
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`Day’s leave policy was unlawful.” 2020 WL 5291980, at *18. Even if Plaintiffs’ view of the law
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`were mistaken (and it is not), the civil rights laws’ protection for mistaken but reasonable legal
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`positions means nothing if it does not apply here.
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`Since Plaintiffs’ view that Jones Day’s paid leave offerings are illegally discriminatory was
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`(at a minimum) reasonable, the civil rights laws protected their January 2019 complaint.
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`Defendants’ statement that “Jones Day fired Savignac for the poor judgment and immaturity
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`reflected by his extortionate threat to harm the [f]irm in the ‘court of public opinion’ unless it
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`acceded to his demand” is thus an admission of a blatant violation of the civil rights laws. Those
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`laws protect complaints about what the employee reasonably believes to be discrimination, and
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`they include no carve-out for complaints that advise—in Defendants’ words, “threat[en]”—that
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`the employee will pursue his rights through litigation, as Plaintiffs did in the January email: “I will
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`file a charge with EEOC and then a class-action lawsuit, and the matter will be decided in the D.C.
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`Circuit and in the court of public opinion.” There is “no legal distinction to be made between the
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`filing of a charge[,] which is clearly protected, and threatening to file a charge.” Gifford v.
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`Atchison, Topeka & Santa Fe Railway Co., 685 F.2d 1149, 1156 n.3 (9th Cir. 1982) (citation
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`omitted); see also, e.g., EEOC v. L.B. Foster Co., 123 F.3d 746, 754 (3d Cir. 1997).
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`Jones Day is also liable to Julia for illegally firing her husband. Julia engaged in the
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`protected activity alongside Mark (in fact, she initiated it in the August 2018 email quoted above),
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`and firing a husband is an “adverse action” for his wife, so she independently satisfies the three
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`elements of a retaliation claim. See Thompson v. North American Stainless, LP, 562 U.S. 170, 174
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`(2011). Even if she did not, she would still have a cause of action as a “person aggrieved” by the
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`retaliation against Mark. See id. at 177-78. “[T]he term ‘aggrieved’ in Title VII … enabl[es] suit
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`by any plaintiff with an interest ‘arguably sought to be protected by the statute.’” Id. at 178. Julia
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`is both the wife of the fired employee and also herself the employee who initiated the opposition
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`that led to the firing, so she easily clears this “low bar.” Howard R.L. Cook & Tommy Shaw
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`Foundation v. Billington, 737 F.3d 767, 771-72 (D.C. Cir. 2013) (Kavanaugh, J.) (“Title VII[]
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`gives injured employees a right to sue” for retaliation against third parties).
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`Finally, Defendant Brogan, Jones Day’s managing partner, is personally liable for illegal
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`retaliation under the D.C. Human Rights Act. See Wallace v. Skadden, Arps, Slate, Meagher &
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`Flom, 715 A.2d 873, 887-88 (D.C. 1998) (law firm partners are proper defendants under the Act).
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`This, too, is true even under Defendants’ version of the facts: Defendants state that the “decision
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`to terminate Savignac was a collaborative decision, which included consultation with Brogan.”
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`Dkt. 35 at 23 (Answer ¶ 154). Plaintiffs will pursue their rights against Brogan’s “collaborat[ors]”
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`in due course.
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`/s/ Julia Sheketoff
`Julia Sheketoff (pro se)
`2207 Combes Street
`Urbana, IL 61801
`(202) 567-7195
`sheketoff@gmail.com
`D.C. Bar No. 1030225
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`January 18, 2021
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`/s/ Mark C. Savignac
`Mark C. Savignac (pro se)
`2207 Combes Street
`Urbana, IL 61801
`(217) 714-3803
`marksavignac@gmail.com
`D.C. Bar No. 995367
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