Equal Employment Opportunity Commission v. Kelley Drye & Warren, LLP
Filing
86
ANSWER to Complaint. Document filed by Kelley Drye & Warren, LLP.(Plevan, Bettina)
PROSKAUER ROSE LLP
Bettina B. Plevan
Joseph C. O’Keefe
1585 Broadway
New York, NY 10036-8299
Tel: 212.969.3000
Fax: 212.969.2900
bplevan@proskauer.com
jokeefe@proskauer.com
Attorneys for Defendant
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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EQUAL EMPLOYMENT OPPORTUNITY :
COMMISSION,
:
:
Plaintiff,
:
:
v.
:
:
KELLEY DRYE & WARREN LLP
:
:
:
:
Defendant
:
:
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10-CIV-0655 (LTS) (MHD)
ECF CASE
ANSWER TO SECOND
AMENDED COMPLAINT
Defendant Kelley Drye & Warren LLP (“Kelley Drye”) by its attorneys, Proskauer Rose
LLP, hereby answers the Complaint as follows:
Denies the allegations contained in the first unnumbered paragraph of the Complaint,
except admits that the Complaint purports to set forth claims under the Age Discrimination in
Employment Act (“ADEA”) and Title I of the Civil Rights Act of 1991.
1.
Denies the allegations contained in paragraph 1 of the Complaint, except admits
that this is a civil action purportedly brought pursuant to the statutes cited therein and that the
Equal Employment Opportunity Commission (“EEOC”) purports to invoke the jurisdiction of
this Court under the statutes cited therein.
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2.
Denies the allegations contained in paragraph 2 of the Complaint, except admits
that the Complaint purports to allege facts relating to events occurring within the Southern
District of New York.
3.
The allegations in paragraph 3 of the Complaint set forth a legal conclusion to
which no response is required. To the extent a response is required, Defendant denies the
allegations contained in paragraph 3 of the Complaint and refers to the statutory provisions for
its terms and conditions.
4.
Admits that Kelley Drye is a New York Limited Liability Partnership, that Kelley
Drye does business in the State of New York, and that Kelley Drye has at least 15 employees.
Denies the remaining allegations in paragraph 4 of the Complaint.
5.
Admits the allegations in paragraph 5 of the Complaint.
6.
Denies the allegations in paragraph 6 of the Complaint.
7.
Denies the allegations contained in paragraphs 7, 7(a), 7(b), and 7(c) of the
Complaint, and refers the Court to the Partnership Agreement referenced in paragraph 7(a) which
speaks for itself.
8.
Denies the allegations contained in paragraph 8 of the Complaint.
9.
Denies the allegations contained in paragraph 9 of the Complaint.
10.
Denies the allegations contained in paragraph 10 of the Complaint.
11.
Denies that the EEOC and/or Eugene D’Ablemont and/or any other individual is
entitled to any of the relief requested in the “Prayer for Relief” section of the Complaint.
FIRST AFFIRMATIVE DEFENSE
12.
The Court lacks subject matter jurisdiction over the claims asserted because
Eugene D’Ablemont and the individual(s) on whose behalf the EEOC allegedly seeks relief are
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not and were not “employees” of Kelley Drye, and are not and were not covered or protected by
the statutes under which the claims are asserted by the EEOC. Rather they are and were
“employers” and Partners as demonstrated by, inter alia, their: a) being defined and referred to
as Partners in the Firm’s Partnership Agreement; b) participation in the adoption of the Life
Partner provisions in the Kelley Drye Partnership agreement, and approval of those provisions;
c) representations both internally, at Kelley Drye, and externally that they are Kelley Drye
Partners; d) participation in firm elections, including the election of the Firm’s Executive
Committee, which manages the business, property, and affairs of the Partnership; e) participation
in monthly Partnership meetings; f) access to financial and other confidential firm information;
g) acceptance and publication of IRS forms K-1 reflecting annual income; h) supervision of
Kelley Drye lawyers and staff; i) autonomous handling of client matters; and j) involvement in
client billing.
SECOND AFFIRMATIVE DEFENSE
13.
Because there are no “similarly situated employees of Kelley Drye,” and there are
no “similarly situated attorneys,” as those phrases are used in the Complaint, there is no “class of
similarly situated employees,” and the EEOC may not seek relief on behalf of such non-existent
persons. In fact, every individual who has been approached by the EEOC to participate in this
action has specifically rejected the EEOC’s overtures. To the extent the Court concludes that any
similarly situated employee or attorney exists, the following Affirmative Defenses would also
apply to any such employee or attorney with equal force.
THIRD AFFIRMATIVE DEFENSE
14.
The Complaint fails, in whole or in part, to state a claim upon which relief can be
granted.
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FOURTH AFFIRMATIVE DEFENSE
15.
To the extent any person on whose behalf the EEOC seeks relief, is or was an
employee of Kelley Drye, the exemption applicable to “bona fide executive[s] or high
policymaking employee[s],” under 29 U.S.C. § 631(c), applies.
FIFTH AFFIRMATIVE DEFENSE
16.
The EEOC’s claims are barred, in whole or in part, because Eugene D’Ablemont
suffered no tangible employment action in connection with any of the circumstances relevant to
this lawsuit.
SIXTH AFFIRMATIVE DEFENSE
17.
At all times, Defendant exercised reasonable care to prevent and correct promptly
unlawful discriminatory behavior, if any; and Eugene D’Ablemont unreasonably failed to take
advantage of the preventive and/or corrective opportunities provided by Defendant or to avoid
harm otherwise.
SEVENTH AFFIRMATIVE DEFENSE
18.
Defendant’s actions with respect to Eugene D’Ablemont were taken for
legitimate, non-discriminatory, non-prohibited reasons and/or for good cause.
EIGHTH AFFIRMATIVE DEFENSE
19.
The claims allegedly asserted on behalf of individual(s) other than D’Ablemont
are barred, in whole or in part, because no administrative charges were filed relating thereto.
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NINTH AFFIRMATIVE DEFENSE
20.
The EEOC failed to make reasonable efforts to conciliate with the Defendant
before instituting this action.
TENTH AFFIRMATIVE DEFENSE
21.
The EEOC’s claims on behalf of Eugene D’Ablemont are barred, in whole or in
part, by the doctrines of waiver, estoppel, laches, and unclean hands, due to the actions and/or
inactions of the EEOC and/or Eugene D’Ablemont including, without limitation: a) failure to
raise the allegations set forth in the complaint in a timely fashion; b) ratification of the provisions
of the Kelley Drye Partnership Agreement; c) representations within Kelley Drye, to third
parties, and to federal and state governmental authorities that he is a Kelley Drye Partner;
d) D’Ablemont’s representations within Kelley Drye that Life Partners should not be
compensated in the same manner and amounts as other Partners; e) acceptance of Life Partner
Payments and bonus payments; f) acceptance of support services and office space; g) acceptance
of client development allowances; h) acceptance of payments from third party income sources,
while also soliciting and receiving bonuses from the Firm, contrary to the Firm’s Partnership
Agreement and directive of the Executive Committee; i) failing to answer the Firm’s questions as
to the precise services provided to, and amounts received from, these third parties; and/or
j) acceptance of the various benefits and compliance with the requirements established by the
Life Partner provisions of the Kelley Drye Partnership Agreement.
ELEVENTH AFFIRMATIVE DEFENSE
22.
D’Ablemont failed to make reasonable efforts to mitigate his damages.
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TWELFTH AFFIRMATIVE DEFENSE
23.
D’Ablemont’s compensation as a Life Partner has been entirely non-
discriminatory, non-retaliatory and fair considering, inter alia: a) shortly after he became a Life
Partner, he transferred to other Partners the billing credit for all of his matters and the billing
responsibility for most of his matters; b) for certain of the clients he now purports to claim credit
for, he does little, if anything, beyond the ministerial act of preparing and sending them a bill;
c) during the last five years his billable hours have ranged from 195.4 to 324.2 hours per year,
which is an average of 7 to 10 times less, annually, than the hours he billed prior to becoming a
Life Partner; d) he has demanded and received tens of thousands of dollars of free legal services
from Firm attorneys for himself and his relatives that he was not entitled to, representing that he
and/or the relative would pay for these services and then objected to doing so; e) he has
demanded and received client development allowances far in excess of what he is entitled to
under the formula used for other Partners; f) he has received direct monetary payments from
third parties, while also soliciting and receiving a bonus from the Firm, contrary to the Firm’s
Partnership Agreement and the directive of the Firm’s Executive Committee, g) he has a history
of objectionable behavior inconsistent with the expectations for a Kelley Drye Partner; and h) the
Firm’s existing and anticipated level of business.
THIRTEENTH AFFIRMATIVE DEFENSE
24.
Punitive damages are inappropriate because they are not available under the
statutes that allegedly give rise to the claims asserted by the EEOC and/or Defendant’s conduct
did not rise to the level of culpability that would justify an award of such damages.
FOURTEENTH AFFIRMATIVE DEFENSE
25.
The EEOC cannot recover compensation for alleged “non-pecuniary losses”
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because any such losses are not compensable under the statutes which allegedly give rise to the
claims asserted by the EEOC.
FIFTEENTH AFFIRMATIVE DEFENSE
26.
To the extent D’Ablemont is successful in recovering any damages, Kelley Drye
is entitled to a setoff of, inter alia, the total amounts D’Ablemont has received from third parties
for legal services he has provided to those third parties, as well as amounts D’Ablemont has
received from the Firm, or owes the Firm, and all debts of D’Ablemont forgiven by the Firm.
WHEREFORE, Defendant requests that the Court enter judgment in favor of Defendant
and dismiss the Complaint in its entirety, together with its attorneys’ fees and costs and such
other relief as the Court deems just and proper.
Dated: September 7, 2011
New York, New York
PROSKAUER ROSE LLP
By:
/s Bettina B. Plevan
Bettina B. Plevan
Joseph C. O’Keefe
Eleven Times Square,
New York, New York 10036-8299
Phone: 212.969.3000
Fax: 212.969.2900
bplevan@proskauer.com
jokeefe@proskauer.com
Attorneys for Defendant
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