Jones Day continued its push to escape portions of a lawsuit accusing it of rampant sex discrimination against female attorneys while the attorneys simultaneously sought to sure up their claims.
A third amended complaint filed Aug. 16 by a proposed class of women was proper and expected, because it was actually the one amendment federal procedural rules allow as of right, the attorneys say in a Sept. 3 filing opposing Jones Day’s motion to strike that pleading. The second amended complaint they filed Aug. 13 was required by the court in response to the denial of a former named plaintiff’s request to proceed in the case using a pseudonym rather than her real name, they say.
No federal court in the District of Columbia, where the case is pending, has ever held that plaintiffs may file an amended complaint as of right after having previously amended their lawsuit at a judge’s instruction. But the U.S. Court of Appeals for the Ninth Circuit has allowed the move, the women say.
If Judge Randolph D. Moss denies that approach, he should grant them leave to amend and accept the third amended complaint as proper on that basis, the women say.
Jones Day, in a Sept. 3 filing supporting its separate motion for partial judgment on the pleadings, objects to that approach. The third amended complaint wasn’t filed as of right and wasn’t proper without the court’s approval, the firm says. It declined to address the latest complaint’s additional allegations in its reply to a separate motion but asked for the chance to file further briefing on the merits should the third amended complaint be accepted by the court.
Regardless of which complaint is deemed “operative,” the case should go forward with fewer claims, the firm says. The women’s attempt to bolster their class allegations still lacks details regarding how the firm’s employment policies and culture result in systemic bias based on sex, Jones Day says.
They point to three aspects of Jones Day’s alleged “black box” compensation system as “facially neutral” job practices supporting their disparate impact claims, but none fits the bill, the firm says. They also still fail to assert a single act of discrimination by Managing Partner Stephen J. Brogan, who allegedly presides over the bias, Jones Day says.
Sanford Heisler Sharp represents the women. Jones Day represents itself.
The case is Tolton v. Jones Day, D.D.C., No. 1:19-cv-00945, motion papers filed 9/3/19.