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It’s ‘past time to proceed to the merits’ in fired BigLaw associate’s bias case, judge says

By Debra Cassens Weiss

September 16, 2024, 12:26 pm CDT

A federal judge in California last week refused to toss an amended gender-bias and retaliation lawsuit filed against Kirkland & Ellis by a fired associate, saying “it is past time to proceed to the merits.”

“There already has been more than enough ink spilled on aggressive pleading litigation in this case,” said U.S. District Judge Haywood S. Gilliam Jr. of the Northern District of California in a Sept. 10 order.

Gilliam’s ruling allows fired associate Zoya Kovalenko to sue for intentional infliction of emotional distress, retaliation under Title VII of the Civil Rights Act, violation of California anti-discrimination law and violation of the Equal Pay Act, report Law.com and Bloomberg Law.

But Gilliam granted Kirkland’s motion to dismiss a defamation claim in connection with her performance review because it was filed one day after the one-year deadline.

Kovalenko had alleged in an October 2022 suit that male associates in the intellectual property litigation group at Kirkland were treated better and paid more money than females, leading to “an alarmingly high turnover of female associates relative to male associates.”

Kovalenko claimed that she was fired in September 2021 after complaining about disparate treatment and was then falsely told that poor performance was the reason that she was let go.

Gilliam said Kirkland and other defendants could have raised most, if not all, of their arguments in their prior “extensive” dismissal motions.

“But the tiresome reality is that denying the motion on this ground would result in yet another round of pleading litigation,” and that is why he ruled on the merits, Gilliam said.

Gilliam also said a motion by two partner defendants for reconsideration of prior rulings was “duplicative” and appeared to rely on some “repackaged” arguments rejected in a prior court order.

The judge also rejected Kirkland’s motion to overturn rulings by a magistrate judge who refused to allow the law firm to subpoena Kovalenko’s former employers Fish & Richardson and Paul Hastings. Kirkland had sought documents on Kovalenko’s work performance, leaves of absence and medical records at the prior firms.

Kovalenko’s performance at prior firms is only “marginally relevant” to her performance and treatment at Kirkland, Gilliam said. In addition, Gilliam said, the magistrate judge did not clearly err by requiring more evidence before allowing access to “such extremely sensitive personal information” regarding medical records.

Gilliam is an appointee of former President Barack Obama.

The case is Kovalenko v. Kirkland & Ellis.

See also:

‘Routine performance management’ can’t be basis for fired associate’s bias suit, BigLaw firm argues

Kirkland & Ellis must face ex-associate’s sex bias claims, federal court says