Equal Employment Opportunity Commission v. Kelley Drye & Warren, LLP

Filing 12

DECLARATION of Jeffrey Burstein in Support re: 10 MOTION to Strike Document No. 7 Motion of EEOC to Strike Certain Affirmative Defenses.. Document filed by Equal Employment Opportunity Commission. (Burstein, Jeffrey)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x OPPORTUNITY EQUAl. ENIP[OYMENT ECF Case : COMMISSION, Civil Action No. 1O-cv-0655(LTS) (MTD) Plaintiff
Dockets.Justia.com
V.

KELLEY DRYE & VARREN, LLP

Defendant.
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DECLARATION OF JEFFREY BURSTEIN PURSUANT TO 28 U.S.C. 1746

Jeffrey Burstein declares under penalty of perjury: 1. 1 am a Senior Trial Attorney with Plaintiff Equal Employment Opportunity Commission ("EEOC") representing EEOC in this litigation. As such, I am familiar with the EEOC investigative file concerning the Age Discrimination in Employment Act (`ADEA") charge filed by Charging Party Eugene T. D'Ablernont. 2. Mr. D'Albemont filed an age discrimination and ADEA retaliation charge with the EEOC on February 29, 2008. A true and correct copy of the charge (not inclusive of multiple attachments more fully detailing the charge), which had been served on Kelley Drye & Warren, LLP ("Kelley Drve"). is attached hereto as Exhibit A (with Mr. D'Ablemont's address and date of birth redacted).
3.

After Mr. DAblernont filed his charge, the EEOC conducted its investigation, that included obtaining a position statement and response to EEOC's request for information from Kelley Drye. EEOC then issued a Letter of Detenriination on March 20, 2009,

setting forth its determination that there was reasonable cause to believe that Kelley Drye violated the ADEA by its age-based compensation practices and by retaliation. A true and correct copy of this Letter of Determination is attached hereto as Exhibit B (with Mr. D `Ablemont' s address redacted).

I declare under penahv of peijurv that the foregoing is true and correct.

Executed on May 3, 2010

/s/ Jeffrey Burstein Senior Trial Attorney

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this date, May 3, 2010, I electronically filed the foregoing Declaration with the CM/ECF system which will send an electronic copy of this document to:

I3ettina B. Plevan, Esq. Proskauer Rose, LLP 1585 Broadway New York, N.Y. 10036 Joseph C. O'Keefe, Esq. Proskauer Rose, LLP One Newark Center Newark, N.J. 07102 Attorneys for Defendant Kelley Drye & Warren, LLP

Is! Jeffrey Burstein Senior Trial Attorney, EEOC

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EEOC E.rr E/O1

CHARGE OF DISCrIMINATlON
Privacy Act This form is affected by the Privacy Act See Stalemerd and other nftirmaton before corrpietiri this form

Charge Presented To,

Agency(:es) Charge No(s):

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New York State Division of Human Rights
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(212)808--7718 10178
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101 Park Avenue
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New York, NY

No. Employees, Members

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Earliest
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RETALIATICiN

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CONTINUING ACTION

THE PARTICULARS APE (If adddlonal paper Is needed, attach extra sheet(s))

Denial of compensation to Active Life Partners because of age as more fully set forth in the attached letter, dated February 29, 2008, with Exhibits A, B, C, D, E, F, G, and H. Retaliation as set forth in the attached letter, dated February 29, 2008, with Exhibits I, J, and K.

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In the matter ol: i[OC CI tree No, 5).2))))'a)234

Chi'ui ng Party Eugene [YAblemont, Esq.

v.

Respondent Kel 1ev Drye & Warren, LLP c/o I3ettina Plevan, Esq.
Proskauer Rose, LLP 1585 Broadway New York, NY 10036-8299

DETERMINATION
Under the authority vested in me by the Commi ssion, I issue the following determination as to the merits of the above cited charge I1cd und er Age Discrimination in Employment Act , as amended ("ADEA").

Charging Part alleged in his charge that Respond ent has discriminated against him on account of his age and retaliated against hi in for c omplaining ot discrimination, both nterna lly and to the EEOC. Speci licallv, Charging Pa rty alleged that, ever since he iransitioned fr ont Active Partner to Life Partner in 2901, his compen sation is seven to ten times less than what it \VS before transitioning to a Li fe Partner, despite continuing to make con tributions to the fun's re enue through his continued prac tice of law at the Erm. Charging Party clai ms that his compensation, hich is given to him in the form of an annual bonus, is calculated at the s ole discretion of the frm and is vi Idly disproportion ate to the compensation aided to younger Active Partners at the flint whose contributmon s to the firm's re enue are comparable to his own. Furthermore, Charging Party claimed that in 21(98, ater he complained about age discri nlin ation. his. annual bonus as reduced tom hat it had consistent U been in pre ions \ear s. Rpoinlent armed hat f lrlng ParR is not eo\erCO Ily the \l)1 \ beeausc he is a pommel ol tile Inn. 0)1(1 Ieieture. a m) CI pin.ei in! Pot mm) e11lKe e \nmt!ess. lpn;:dt if(1r ip ParR eoulh eIJt'!Kil that 1C is a n en lsce a Jelmed h\ the \I)EA. lie !i,i :hred no moan. R nIH1L:m1t eontepds th at Citareinp Part\ has been oJe( lliitels 1 11 101 0 et'colIlpeIiatC(! IC) 115 `.\or 011CC Ce) It a I te Pamtr heouse his a\er:lpe hillabi CCIII'S arC 5C\Cil tu tell Poles eS illail hat illC \` Ore Oi0iC he beeamne a lmI Poiritea. tIlL p to t ito th h 211 l odilo tO I Ill C I' ii P Ut \ S howts id iolinm I_ I' tIC ills COlilpIllillIs 01 uiseritttation . Hut \\as dOIC Ill aI)IieIpuIiuoll ol poor CCOIIOI11IC eolld ltiulIS. espottUem1t also cLimes that ite Amimtu:ml I fe R Irloel' PuI\Illeilm IS liliC!lLlOO In iro mdc "Il O I Ic 1>010 O' `I HOP a:nl Cii :1 iii i :1 0
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.

Respondent notes that the annual bonuses of the two other Life Partners who continue in the practice of law at the firm were also reduced. As a threshold matler, the Commission has determined that the Charging Party, and other Life Partners who continue in the practice of law at the finn, are employees as defined by the ADEA. Such individuals have limited to no ability to influence the organization and do not share in the profits, losses, and liabilities of the firm. The record shows that Respondent has discriminated against Charging Party and other Life Partners who continue in the practice of law at the firm by failing to fairly compensate them for their contributions to the firm when compared with younger Active Partners. Additionally, the record shows that Respondent has retaliated against Charging Party for complaining about age discrimination. If the Commission determines that there is reasonable cause to believe that violations have occurred, it shall endeavor to eliminate the unlawful employment practices by informal methods of conference, conciliation, and persuasion. Having determined that there is reason to believe that violations have occurred, the Commission now invites the parties to join with it in a collective effort toward a just resolution of the matter. Enclosed please find EEOC's Conciliation proposal in this matter. Please provide a written response to each item in the proposal by April 3, 2009. If Respondent declines to discuss settlement or when, for any reason, a settlement acceptable to the EEOC New York District Director is not obtained, the Director will inform the parties and advise them of the court enforcement alternatives available to aggrieved persons and the Commission. On Behalf of the Commission:

D a te

Sen er'II, Lewis jY District Director LV