As it appeared in Law360.
Berg & Androphy told a New York federal judge on Thursday that a former Black legal assistant wasn’t held to a higher standard than her non-Black peers when the law firm chastised and ultimately fired her for inappropriate conduct, such as wearing sneakers and showing up late.
The firm and its Manhattan office managing partner Jenny Kim urged the court to toss Akima Gurley’s lawsuit alleging that she was wrongly fired a week after complaining to New York City’s civil rights regulator about her alleged mistreatment, saying that nothing in Gurley’s lawsuit demonstrates that the purported actions were motivated by race.
“Plaintiff was criticized for her failure to abide by office policies and her poor work performance, and she may have felt uncomfortable in her workplace because of those negative assessments,” Berg & Androphy said. “However, these criticisms are not inherently related to race, and the complaint fails to offer any specific facts linking these criticisms to her race.”
Gurley claimed in her November lawsuit that she was the only Black employee working at Berg & Androphy’s New York office from 2017 to 2019 and that she was paid less than her peers, assigned more manual labor and kept from sitting at the front desk when she wore her hair naturally. Gurley also alleged that her non-Black coworkers got away with the same infractions that she was reprimanded and eventually fired for, including wearing sneakers, submitting false expense reports and coming into work late.
But the law firm called Gurley’s claims “wild speculation,” saying race was never mentioned or alluded to in these reprimands and that the lawsuit offers no evidence that similarly situated workers received better pay or treatment. Under U.S. Supreme Court and Second Circuit precedent, claims for racial discrimination require such evidence, Berg & Androphy said.
“Plaintiff admits that she was consistently late for work, but claims she was ‘disproportionately picked on’ about tardiness because, as she speculates, she is ‘African American,'” the firm said. “No specific facts are alleged even suggesting that the firm’s basic dress code, enforcement of reimbursement policies or requirement of punctuality were different for anyone else or driven by discriminatory intent.”
Berg & Androphy added that Gurley’s retaliation claims fail because there is no evidence that the firm was even aware of her discrimination complaint to New York City’s Commission on Human Rights when it fired her for her poor performance in March 2019. Her claims under New York State’s Equal Pay Act are also deficient, it said, because the statute was only amended to include racial discrimination months later, in October 2019.
Counsel for both Gurley and Berg & Androphy declined to comment on the motion Friday.
Berg & Androphy is represented in-house by Michael M. Fay, Chris L. Sprengle and David H. Berg.
Gurley is represented by Tiffany Ma of Young & Ma LLP and William Michael Brown of Brown Kwon & Lam LLP.
The case is Gurley v. David H. Berg & Associates, A Professional Corporation d/b/a Berg & Androphy et al., case number 1:20-cv-09998, in the U.S. District Court for the Southern District of New York.
–Additional reporting by Anne Cullen. Editing by Steven Edelstone.