This article originally ran in Law360 on August 12, 2015.
Anapol Schwartz Weiss Cohan Feldman & Smalley PC won a round in a former employee’s discrimination suit Wednesday when a Pennsylvania federal judge threw out defamation, privacy and sexual orientation-related claims lodged by a gay attorney who accused the firm of persuading another firm not to hire him.
U.S. District Judge L. Felipe Restrepo granted summary judgment to Anapol Schwartz and Raynes McCarty PC, the would-be future employer, on some of Jeffrey Downs’ claims they discriminated against him in a plot to toss him out of both firms.
Downs had claimed the firms’ partners had gossiped that he was extorting Anapol Schwartz for $80,000 on his way out the door, ruining his reputation with the partners at Raynes McCarty and ultimately causing Raynes to revoke its employment offer, court records show.
But Judge Restrepo ruled that some of those claims didn’t pass muster, including one that Stephen Raynes defamed Downs in a conversation with two other partners in which he expressed his opinion about Downs. For one thing, the two partners in whom Raynes confided that opinion were the same ones who’d given him the news about Downs’ complaints at Anapol Schwartz, the judge said.
“To allow an individual to be sued for defamation for stating their opinion to two individuals who were the only sources of the information that formed the basis of the opinion would be ‘an extraordinary leap of logic,’” Judge Restrepo wrote.
The decision left standing two retaliation claims, one against each firm, in part because Downs was able to show that his troubles began just days after a meeting in which he and Anapol Schwartz were unable to reach a deal to end his claim for severance pay.
“While there is undoubtedly some difference between withdrawing an employment reference on the one hand, and refusing to give any reference or giving a negative reference on the other hand, the court is convinced that when the withdrawal of an employment reference can, under the right circumstances, be a sufficiently adverse employment action for the purpose of a ... retaliation claim,” Judge Restrepo wrote.
Downs launched his original lawsuit in state court in 2013, arguing that the planned move to Raynes McCarty in 2012 would have been a step forward in his careerlong aim of building a practice handling high-value catastrophic injury cases and also would have allowed him to escape a situation where he had fallen out of favor at Anapol Schwartz, where he was an associate, because of his sexual orientation.
After he accepted a job offer with Raynes McCarty, which he planned to join in April 2012, he approached management at Anapol Schwartz about issues he wanted to wrap up before leaving, court records show. The parties don’t agree on what happened in the meeting, but Downs evidently demanded payment for clients or cases he’d brought in equal to eight months’ pay, according to court records.
He expressly told Anapol Schwartz partner Tom Anapol not to tell Mark LeWinter, the partner he was following to Raynes McCarty, about the conversation about severance, according to court filings.
But Anapol did tell LeWinter, setting in motion a series of events that culminated in Raynes McCarty withdrawing its offer, according to Downs.
Downs lost his state court suit in May when a jury concluded that sharing the information with LeWinter was within the law.
Attorneys for Anapol and Raynes contended in their motion for summary judgment in the federal case that Downs’ own testimony in his state court trial supports their bid to toss his claims, but Downs fired back that the record shows his claims weren’t fully litigated in that forum.
On Wednesday, Judge Restrepo ruled that, particularly on the retaliation claims, Downs couldn’t argue as he had in state court that the Anapol defendants acted with malicious intent to harm him. But he could argue, for example, that they’d recklessly interfered with his ability to start work as his new job, the judge found.
John Gallagher of Gallagher Law Group PC, counsel for Downs, told Law360 on Wednesday his client was ready to move ahead. "Mr. Downs continues to believe that Raynes’ withdrawal of its job offer to him was motivated by defendants’ retaliatory conduct," Gallagher said. "He is gratified that Judge Restrepo recognized and respected the issues of fact that exist in this case, and looks forward to presenting his retaliation claims to a jury."
Representatives for the other parties didn’t immediately respond to requests for comment on Wednesday.
Anapol Schwartz is represented by Gaetan Alfano and Daniel McGravey of Pietragallo Gordon Alfano Bosick & Raspanti LLP and Louis Isaacsohn of Wilson Elser Moskowitz Edelman & Dicker LLP.
Raynes McCarty is represented by Howard M. Klein, Louis W. Fryman and Lorie K. Dakessian of Conrad O’Brien PC.
Downs is represented by John Gallagher of Gallagher Law Group PC.
The case is Downs v. Anapol Schwartz Weiss Cohan Feldman & Smalley PC et al., case number 2:14-cv-00630, in the U.S. District Court for the Eastern District of Pennsylvania.
--Additional reporting by Alex Wolf and Dan Packel. Editing by Brian Baresch.
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