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When an associate (Danielle Cesarano) received a burn that caused physiological damage and
impaired her ability to work, Sullivan pressured her to return to work earlier than her doctor
recommended and made little accommodation of her reduced hours requirements
Sullivan failed to rotate her back onto her prior cases and did not make new case assignments
from her, arguably keeping her billable hours low enough to justify termination
Imposed an anomalously high 200 billable hours a month standard on her, apparently as a sort
of “catch up” requirement to make up for her medical leave, and threatened termination if she
did not achieve this goal
Whereas Sullivan was patient with able-bodied male associates with low billable hours and
made excuses for them, he refused to take Cesarano’s circumstances, or her efforts to keep
total hours up, into account
Sullivan instructed Cesarano to downwardly revise her actual billable hours, which prompted
another partner to say Sullivan was playing games and that the head of the Litigation
Department would “shit a brick if he knew that Rip had told you to do those things”
He also postponed her performance evaluation, with the firm initially withholding the
evaluation even after it was finally conducted, giving her no opportunity to respond to or make
changes based upon its findings
When Cesarano confided to Sullivan that she felt she was being discriminated against on the
basis of her disability, he “responded that he did not like her reference to discrimination” rather
than addressing her concerns
Sullivan told Cesarano that “if you’re still injured, you’re of no use to anyone”
He also told her she was “difficult to staff” because her injury made her “unreliable” and that
the firm might not be able to keep “carrying” her
He was dismissive of a capital murder case she handled pro bono, dismissing it as “a little pro
Ultimately, he was the person who recommended her termination
In April 2001, while attending a trial training program for employer Reed Smith, then-third year
associate Danielle Cesarano sustained a severe burn injury when a defective coffeemaker overflowed
onto her right hand, sustaining nerve damage and a condition diagnosed as Reflex Sympathetic
Dystrophy / Complex Regional Pain System.
This allegedly resulted in permanent serve pain and
substantial physical limitations (“At times, the pain is so intense that Ms. Cesarano feels as if her hand is
“Plaintiff Danielle R. Cesarano’s Opposition to Motion for Partial Summary Judgment,” Danielle R. Cesarano v.
Reed Smith, LLP, Civil Action No 03-08644 at 1-2 (Superior Court of the District of Columbia, Civil Division, filed Oct
22, 2004) (“Opposition to Summary Judgment”).
on fire. At still other times, part of Ms. Cesarano’s hand goes completely numb, and is rendered
A month later, Ms. Cesarano was selected to lead an intensive document review, during which she
alleged exacerbation of her injury, but for which the head of the firm’s Litigation Department
commended her for a “terrific job.”
After this, however, she was forced to take a medical leave of
absence, during which time the firm temporarily removed her from payroll, and upon her return, she
alleged the firm refused to provide reasonable accommodations (e.g., voice-recognition software, an
ergonomic chair), intentionally limited her assignments, treated her inappropriately, established
unrealistic goals to cause her to fail, and ultimately forced her out of the firm,
despite more senior
associates with higher salaries providing fewer billable hours without being drummed out of the firm.
Rip Sullivan was her Practice Group Leader,
and as her supervisor, features prominently in the narrative
and the subsequent litigation. He is alleged to have made a number of dismissive comments and was the
driving force in her termination, in which she alleges disparate treatment with male associates in
Sullivan’s practice group, along with discrimination on the basis of her disability.
The case dragged on for over eight years from October 24, 2003 to December 2, 2011, with Cesarano
alleging violations of the D.C. Human Rights Act regarding the firm’s response to her disability, wrongful
termination given the circumstances of her dismissal, and gender discrimination on the grounds that less
productive able-bodied males were tolerated while her employment was terminated.
The case was
initially dismissed as time barred, but on appeal, the D.C. Court of Appeals reversed the Superior Court’s
ruling on applicable statutes of limitations
and remanded the case to the Superior Court for
reconsideration on the merits. Ultimately, the parties settled out of court on undisclosed terms.
Circuit Court Factual Summary
Although details of the case are better gleaned from other filings, and most of the following is reiterated
in other sections below, the factual summary of the D.C. Court of Appeals is worth quoting at length due
to its authoritative status. As a general summary of the case record:
The record in this case reveals that on October 24, 2003, Ms. Cesarano filed a complaint against
her employer, Reed Smith. She alleged that she was employed as an associate around March
20, 2000, and was assigned to the litigation department. On April 29, 2001, while she was
Id. at 10. Be aware that she apparently reached a settlement with the hotel and the coffeemaker manufacturer,
so she could be accused of being overly litigious.
Id. at 2.
Id. at 2-3.
“Plaintiff’s Statement of Material Facts at Issue,” Danielle R. Cesarano v. Reed Smith, LLP, Civil Action No 03-
08644 at 39-46 (Superior Court of the District of Columbia, Civil Division, filed Dec Oct, 2004) (“Material Facts at
Opposition to Summary Judgment, supra, at 3.
Material Facts at Issue, supra, at 39.
Vanderford, Richard. “Ex-Reed Smith Attorney’s Disability Suit Revived.” Law360, March 4, 2010. Available at
See docket for Danielle R. Cesarano v. Reed Smith, LLP, 2003 CA 08644 B.
attending a Reed Smith trial training program, Ms. Cesarano's dominant hand was burned. As
a result of her right hand injury, she developed complex regional pain syndrome/reflex
sympathetic dystrophy, a physiological disorder affecting the neurological body system. The
disorder, characterized as permanent, caused extreme pain and resulted in medical limitations
on her activities. She required physical therapy, occupational hand therapy, nerve block
procedures, and she had to take prescribed medication.
Based upon the recommendation of her physician, Ms. Cesarano took a leave of absence from
June 13 to July 12, 2001, for treatment of her hand injury. During her leave of absence, Ms.
Cesarano requested accommodations by Reed Smith for her disability. Specifically, she
requested (1) a reduced-hour schedule, (2) voice recognition software, and (3) an operator's
headset for her telephone. Upon her return to Reed Smith, Ms. Cesarano worked four hours
per day. Around July 19, 2001, she complained about the difficulty of working without voice
recognition software. In response, Richard Sullivan, her supervisor at the law firm, allegedly
informed Ms. Cesarano “that if she was still injured, she was ‘of no use to anyone.’ ” Ms.
Cesarano experienced difficulty in obtaining sufficient work assignments at Reed Smith to meet
the billing expectations of the firm.
On July 20, 2001, Ms. Cesarano complained to her employer that she was receiving neither
reasonable accommodation for her disability, nor enough work to generate billable hours. Reed
Smith's managing partner of the firm's District of Columbia office, Douglas Spaulding, advised
Ms. Cesarano “that she had experienced a ‘stutter step’ in her career,” that the firm could not
“carry her,” and that she might be “pushed out” of the firm…”
On allegations of gender discrimination:
Count V, entitled, “Sex discrimination in violation of the [DCHRA],” contained allegations
concerning (1) the differential treatment of males and females in the firm; (2) hostile treatment
of female associates by a female partner; (3) verbal abuse by a male partner; (4) yelling, name
calling and retaliation by two male partners and a female partner when she asked the female
partner, in November 2000, to be relieved of working with the male partner; (5) her support by
other members of the firm and the assignment of adequate billable work until her injury; (6)
removal from one of her cases and replacement by a male associate; (7) instructions around
Winter 2002, “to follow a strategy of writing off hours that purportedly would help her gain
respect at the firm”; (8) instruction around March 2002 “to seek the advice [of] ‘one of the
guys' to verify the legal research conducted and the advice provided by [her] on a specific
project”; (9) her termination from the firm (Reed Smith “terminated [her] in whole or in part
because of [her] gender and because of the objections she raised as to her treatment by [a male
Danielle R. Cesarano v. Reed Smith, LLP, Case No. 07-CV-1065 at 2-3 (District of Columbia Court of Appeals,
decided Mar 4, 2010).
and female] partner”); and (10) alleged “disparate treatment and retaliation based on her
On reasonable accommodations:
Ms. Cesarano made two requests to Reed Smith for reasonable accommodation-one during her
June/July 2001 leave of absence for a reduced-hour schedule, voice recognition software and an
operator's headset for her telephone; and the other in March 2002 for an ergonomic evaluation
of her worksite, which was completed on June 6, 2002. On September 6, 2002, in her self-
evaluation, Ms. Cesarano stated that the firm had denied her reasonable accommodation.
[…] Mr. Sullivan related to her the need for 200 billable hours per month before he could
recommend her retention. In response, Ms. Cesarano “expressed concern to Mr. Sullivan about
[his] statement given the medical restrictions on her workday.” Mr. Sullivan interpreted Ms.
Cesarano's reaction as an indication that “she could not do the work.” Ms. Cesarano repeated
her work restrictions and her request for accommodations.
Billable Hours and Evaluations
Due to her injury, Cesarano took two leaves of absence in 2001, the first from mid-June to mid-July and
the second from early August through late October on the advice of her physician, and her hours were
strictly limited throughout that year. Early in January 2002, her physician authorized—and she promptly
began and exceeded—eight hour work days,
a substantial improvement but still far lower than what is
expected of Big Law associates. Consequently, both her total hours and billable hours lagged standard
expectations for the firm.
Cesarano alleges that (1) in evaluating her performance, Sullivan and others made no allowance for her
disability; (2) they did not take dramatically improving chargeable hours into account; (3) the firm, and
Sullivan in particular, conspired to keep her hours low by assigning her few cases and then often ones
with billing restrictions; (4) despite her obvious need to improve her chargeables, Sullivan instructed her
to write down billable hours; and (5) the firm delayed her evaluation to her detriment, giving her little
opportunity to improve before her termination, which was already a fait accompli. She also alleged—as
is detailed later—that able-bodied male associates with lower billable hours and worse performance
Id. at 7.
Id. at 14. However, the appellate court held that this complaint was time barred, as “we see no indication that
she requested a new and different accommodation” and that “Ms. Cesarano should have recognized by June 6,
2002, or within a few days thereafter, that Reed Smith had failed to grant some of her requests for reasonable
accommodations, but did not file her complaint until October 24, 2003.”
Id. at 3.
“Brief for the Metropolitan Washington Employment Lawyers Association as Amicus Curiae in Support of
Appellant Urging Reversal,” Danielle R. Cesarano v. Reed Smith, LLP, Case No. 07-CV-1065 at 4 (District of Columbia
Court of Appeals, filed Apr 7, 2008) (“MWELA Amicus”).
While part-time, Cesarano contended that she was told by one Reed Smith partner not to expect
assignments until she was back full time, and by another not to even seek billable work because she
might be unable to handle it on a part-time schedule. After cleared by her doctor to work eight hours
per day, but with substantial restrictions on writing and keyboard use, the firm continued to assign little
billable work, and she was not rotated back onto cases on which she had been working prior to medical
After being cleared for eight hour days, Cesarano “seemed to be getting more than [her] share of
assignments wherein [she] was told there were billable hour restrictions,” such that Reed Smith
provided her with “quite a bit of discrete research assignments that were both limited in duration and
limited in the number of hours [she] was permitted to bill, on top of being told to write off [her] time
even with these assignments and others.”
Initially upon her return, for instance, one of her principle assigned responsibilities—selected for her by
the head of the Litigation Department—was a pro bono case.
Cesarano advised Sullivan of her need for
billable hours but continued to receive limited, short-term assignments while other associates remained
overloaded with billable assignments.
Worse still, Sullivan and his Deputy Practice Group Leader both instructed Cesarano to write off her time
for various reasons, fully aware that she was below the firm’s targets.
Learning later of these
instructions, a partner based in Pittsburgh, Efrem Grail, told her (per her deposition, informed by notes
she took memorializing the conversation), “I don’t know what kind of games Rip [Sullivan] is playing
but you should absolutely write down all the time you bill. It is not your responsibility to be doing
what they are advising you to do. And Tom McGough [the Head of the Litigation Department] ‘’would’
quote-unquote, ‘shit a brick if he knew that Rip had told you to do those things.’”
(Interestingly, Sullivan actually favorably cited Grail’s political work—keeping Nader off the ballot in
2004—during his 2007 campaign.
Grail got caught up in the “Bonusgate” scandal in Pennsylvania
involving state employees being paid bonuses for conducting political business on government time.
Specifically, Grail coordinated efforts by the Pennsylvania House Democratic Caucus to prepare
challenges to Ralph Nader’s nomination petitions on government time.
A five year investigation
Opposition to Summary Judgment, supra, at 4.
Material Facts at Issue, supra, at 17.
Opposition to Summary Judgment, supra, at 4.
Id. at 6.
Material Facts at Issue, supra, at 30.
Id. at 16.
“Rip Sullivan Liveblog 8-9pm Thursday.” Raising Kaine Blog, April 18, 2007, available at
District House of Delegates Democratic Candidates Debate, 2007.
Malloy, Daniel. “Nader Takes Pa. Ballot Case to D.C. Appeals Court.” Pittsburgh Post-Gazette, April 22, 2010.
Available at http://www.post-gazette.com/news/nation/2010/04/22/Nader-takes-Pa-ballot-case-to-D-C-appeals-
Nader, Ralph. Letter to Chief Justice Ronald Castille, Pennsylvania Supreme Court, June 21, 2011. Available at
resulted in 25 arrests and 21 convictions, including the convictions of five legislators.
Representative, Mike Veon, was sentenced to 6-14 years for his role in the corruption scandal.
firm stuck by Grail, who remains a partner.)
As her practice group leader, Sullivan was responsible for finding work for associates, an obligation both
her and his deputy, Helen Kirsch, acknowledged. Cesarano went to both Sullivan and Kirsch seeking a
larger caseload; Kirsch directed her back to Sullivan and “identified his role in terms of being responsible
for helping [her get work as the practice group leader who is in charge of monitoring all activities of
associates in the group, discovering who is busy, who is not busy, who has a need to fill.” When she
failed to get work, she was told by Kirsch that she was doing everything she could be doing, and that
“Mr. Sullivan has a responsibility to find work for you, which he acknowledges as well.”
And he did, telling her shortly before her termination, “We, the firm, have to get you busier. And it’s my
responsibility to do that. And you keep doing what you are doing. Everything you are doing is exactly
right. And I will make additional efforts as well.”
By this time, however, her fate was already sealed.
Per Cesarano’s counsel, “Despite Mr. Sullivan’s responsibility to distribute work equally, he did not do
so. As a result, some associates had an excessive amount of work, while others had little work, an
observation that Ms. Cesarano brought to Mr. Sullivan’s attention.”
Under standard procedure, Cesarano would have received her annual performance evaluation in the fall
of 2001, but the firm delayed it to the start of 2002 due to her injury, and then unaccountably
postponed it again to May 2002, arguably to her disadvantage.
The purpose of performance evaluation meetings, in Sullivan’s words, is “[t]o meet with the associates
directly and let him or her know what the results were; what the compensation decisions have been
made’ and hopefully exchange whatever, engage in a dialogue about what had or hadn’t gone well in
“Bonusgate: How the Statewide Public Corruption Case Unfolded.” Special feature, Pittsburgh Post-Gazette,
February 13, 2012. Available at http://www.post-gazette.com/home/2012/02/12/Bonusgate-How-the-statewide-
public-corruption-case-unfolded/stories/201202121900. See also, for the fifth legislator, Scolforo, Liz. “Steve
Stetler Found Guilty on all Charges.” The York Dispatch, June 26, 2012. Available at
Mauriello, Tracie. “Veon Given 6-14 Years.” Pittsburgh Post-Gazette, June 19, 2010. Available at
Material Facts at Issue, supra, at 15.
Id. at 32.
Id. at 15. Note, pace this assertion, the defense’s affidavit from Lynch: “Mr. Sullivan knew, as I did, that as
Practice Group Leader he could not tolerate a situation where an associate in his group was chronically at an
extremely low chargeable hours level. Given that Ms. Cesarano’s hours were low even before her reported injury,
given Ms. Cesarano’s mixed track record with D.C. attorneys who were potentially in a position to assign work, and
given that the group’s hours overall were light, Mr. Sullivan questioned Ms. Cesarano’s long-term chances at Reed
Smith. However, he stated to me, ‘I would love to give her an opportunity to succeed,’ as did I. We discussed ideas
for trying to increase Ms. Cesarano’s chargeable hours, including alerting the group’s partners concerning her
availability and her need for work. Later that day, Mr. Sullivan sent an email to the group’s partners to that effect,
and he subsequently made other similar efforts.” “Defendant’s Consolidated Reply in Support of its Motions in
Limine Nos. 1-14,” Danielle R. Cesarano v. Reed Smith, LLP, Civil Action No 03-08644 at 10-11 (Superior Court of the
District of Columbia, Civil Division, filed Jul 15, 2011) (“Defendant’s Consolidated Reply”). Cesarano’s billables
were, in fact, 5% above target in 2000.
the previous year and talk about goals for that particular associate we mutually thought he or she
should set for the year ahead.” Particularly, there is a feedback component: “[I]f there’s an issue, we
want them to know about it so they can hopefully address it.” Cesarano missed out on this due to the
In her pre-disability evaluation, she was rated as meeting or exceeding expectations for associates in
every rating category. After her subsequent evaluation, which covered a 20 month period instead of a
standard 12 month review, she was told that “she had met the firm’s high expectations as far as the
quality of her work was concerned, but that she had not met the firm’s expectation for billable hours”—
not a surprise given her medical leave.
Per her counsel’s statement of material facts:
Cesarano explained through her self-evaluation and in the meeting that she had been directed
to work restricted hours, not to exceed 8 hours per day by January or 2002; that she had not
been assigned billable work; that she had been advised not to seek billable work until she had
returned to full time status; and that she was instructed to write off some of her otherwise
billable time. Her Practice Group Leader, Rip Sullivan, acknowledged that she had done the right
things to obtain billable work and that he was partly at fault for not keeping her busy. Sullivan
also threatened that she would have to bill 200 hours per month to enable him to make the
argument to keep her around. Sullivan knew this requirement was impossible for her to meet
with the medical restrictions of her doctor, and this requirement was not expected of any
other associate in the firm. Ms. Cesarano pointed out to Sullivan that she was still injured and
noted that Reed Smith had not provided her with requested accommodations. Sullivan stated
that Ms. Cesarano would have to demonstrate significant improvement in her billable hours in
order to keep her job. However, only three and a half months remained in the evaluation
period, unlike the firm’s other associates who had been evaluated and provided with feedback
and an opportunity to improve in the fall.”
After her May 2002 evaluation was concluded, Cesarano was no longer assigned any significant new
billable work, and “On October 28, 2002, Mr. Sullivan and Ms. Kirsch [Sullivan’s deputy practice group
leader] met with Ms. Cesarano to discuss her evaluation. At that time, Ms. Cesarano was informed that
her employment would be terminated, effective November 11, 2002. Sullivan told her that ‘nothing had
improved’ and that she had not met Reed Smith’s expectations for billable hours. (In fact, Ms.
Cesarano’s billable hours had steadily and significantly increased since her May 2002 evaluation.)”
billed 136 hours in July and 155 in August—a total that, annualized, came close to the firm’s malleable
1900 billable hours target for associates.
Material Facts at Issue, supra, at 22.
Opposition to Summary Judgment, supra, at 5-6.
Id. at 5-6.
Id. at 7.
MWELA Amicus at 5.
In that evaluation, Cesarano received a Meets Expectations Minus rating due to “[l]ack of billable
hours.” (This is a mediocre rating, but not the lowest.
) She received 25 ratings at the Exceeds
Expectations level, 98 at Meets Expectations, and 6 at Falls Below Expectations.
“Mr. Sullivan made it
clear that the rating was about quantity, not quality, and that if her billable hours had been higher, she
would ‘absolutely—no question’ received a higher rating. Ms. Cesarano explained that ‘the type of
assignments [she] was receiving made it inherently impossible to meet [her] billable requirements.’” At
the time, Sullivan told her that it wasn’t “too late” to turn things around and encouraged her that “the
meets minus won’t last indefinitely” and that “we, the firm, have to get you busier.”
The firm initially refused to provide her with a copy of the summary of her ratings and the written
evaluations. When she finally received them, they showed that 8 of 9 evaluators rated her as meeting
Reed Smith’s expectations for legal ability and value added; the 9
put her 0.08 points below the meet
expectations score on a 5 point scale. She also came close to meeting total hours worked expectations
on an annualized basis.
Despite this, Sullivan told her that this substantial improvement was “slight”
and that, really, “nothing had improved.”
Her attorney argued that she was stigmatized as an associate
who had “nothing better to do” than pro bono cases, and that this stigma stuck even after she
substantially increased her billable hours.
In fact, as early as January 30, 2002, Sullivan had told Chief Human Resources Officer Michael Lynch that
if Cesarano’s hours remained low by fall, “it would be hard to justify continuing her employment.” He
conceded at the time that he knew that she could not drive, was aware that she had nerve blocks and
tingling in her hand and that there was no reason to believe that she was malingering,
but did not
appear to believe that these factors justified flexibility on the part of the firm.
Despite the postponement of her fall 2001 evaluation, one was conducted internally at the time, but
never provided to her. In that evaluation, she was rated at 3.29 in Legal Ability; 3.83 in Value Added; and
3.69 in Personal Qualities, all on a scale of 1-5, where anything 3 or above is Meets Expectations. “In the
various categories in which she was rated by the Reed Smith attorneys she worked for, Ms. Cesarano
received 22 ratings of Exceeds Expectations; 39 ratings of Meets Expectations; and only 3 ratings of Falls
Kirsch informed Cesarano in November 2011 that she had seen the review and characterized it as being
“positive.” David McAllister, who was Director of Professional Personnel at the time,
claimed that he
expected Sullivan to discuss Cesarano’s performance with her and tell her the firm wanted to give her
Id. at 4.
Material Facts at Issue, supra, at 31.
Id. at 32.
Opposition to Summary Judgment, supra, at 8.
Id. at 30.
Id. at 29.
Material Facts at Issue, supra, at 25-26.
Id. at 23.
“David J. McAllister, Partner.” Reed Smith. Available at http://www.reedsmith.com/david_mcallister/
more time to improve, but he did not—in fact, Sullivan didn’t meet with her concerning her
performance review until May 16, 2002.
Disability Discrimination / Reasonable Accommodation
Under the District of Columbia Civil Rights Act, as well as federal laws of general applicability, an
employer must make reasonable accommodations for disabled employees.
Based upon her doctor’s advice, Cesarano requested voice recognition software and an ergonomic
worksite evaluation, which she would ultimately receive in part after her return from her medical leave
but not after her first leave. In an email to Sullivan on September 16, 2001, Cesarano
wrote, “As you know, I have been eager to return since the day I left. I regretted very much that the firm
was unable to accommodate my disability [referring to the delay in getting Worksite Evaluation and
Voice Recognition Software] during the brief period I did attempt to return, in July.”
The firm would
never buy her the ergonomic workstation that her doctor recommended.
After the firm did not initially provide her with voice-recognition software or give her any work to do
while on a physician-ordered part time schedule, “Ms. Cesarano informed her Practice Group Leader,
Richard (Rip) Sullivan, that she felt she was being discriminated against on the basis of her disability.
Sullivan responded that he did not like her reference to discrimination. From that point onward, the
firm communicated to Ms. Cesarano that her job was in jeopardy. Specifically, Sullivan bluntly told her
that, as long as she was injured, she was of no use to anyone. Sullivan further explained that he was
torn, because he wanted to give her work but because she was injured he felt he could not.”
Cesarano also contended that she had to cut her medical leave short because of pressure from the firm.
From the plaintiff’s typed notes memorializing a meeting with managing partner Doug Spaulding:
Although my doctors ideally would liked me to take additional two weeks, solely because of the
situation with Sue and Cynthia, the incredible and inordinate stress it caused me, the fact that
emotionally I could no longer deal with not been in the office, and the pressure I perceived from
people like Rip Sullivan who called me and left voicemail messages wanting to know the status
of my condition, when I was returning, what was going on [sic] my cases, who was handling my
matters, what else he needed to know, and that he had an assignment in mind for me really
made me feel that I had no choice but to return to work.
[…] The bottom line was that, to my disadvantage, to people like Rip and Doug and others as
well, I looked fine, I sound fine, therefore, I must be fine. It is impossible to make anyone
Material Facts at Issue, supra, at 24.
“Order Granting Defendant’s Motion to File Under Seal Defendants’ Consolidated Reply in Support of Its Motions
for Summary Judgment and for Partial Summary Judgment,” Danielle R. Cesarano v. Reed Smith, LLP, Civil Action
No 03-08644 at 5 (Superior Court of the District of Columbia, Civil Division, filed Sep 17, 2011) (“Judgment Order”)
Judgment Order, supra, at 26. Cf. “Defendant offers evidence that it made several accommodations to plaintiff’s
condition; plaintiff believes that these accommodations were lacking and fail under DCHRA and DCFMLA.” Id. at 9.
MWELA Amicus at 5.
Opposition to Summary Judgment, supra, at 3.
Judgment Order, supra, at 23.
understand the amount of pain I often am in, and that is perhaps one of the most difficult and
worrisome parts of this condition.
[…] This type of indifference, inaction, mismanagement, and complete and utter disregard for
me not only has caused severe emotional distress, but is clearly typical of the way I was treated
while a [sic] my leave, and why I felt that I had no choice but to return. It is inconceivable to me
that this is happening, that none of these people is capable of following through their
commitments and to taking better care of employees; particularly, employees who have worked
hard, who or [sic] in pain, and who would not have been injured but for attendance at a work-
related event. And it is truly shameful and indescribably frustrating to deal with, because it is
apparent that no one else cares enough about me to spare me the emotional stress and
constant worrying over very simple, basic, easy issues to address.
Cesarano alleged further that, when she was in the office in 2001, Sullivan treated her dismissively. In
her testimony, she said, “Mr. Sullivan had expressed to me that as long as I was injured I was of no use
to anyone. He expressed to me reservations about staffing me on cases because of the unpredictable
nature of my pain condition and the fact that I had required medical leave were of concern to him. And
when I returned on a part-time basis he and others expressed to me that I should not expect to receive
any substantive billable assignments until I was able to return to work full time. So there were several
indications from Mr. Sullivan that he regarded me with my disability as either unable to take more
substantive work, inefficient, unreliable, etc.”
On July 23, 2001, Mr. Sullivan told Ms. Cesarano that her injury “put [her] into a separate category,” that
it was “hard to show what you can do if you’re not doing it,” and also that it was “difficult to staff you on
cases while injured because you’re unreliable.”
Cesarano raised these issues in her May 2002 self-evaluation, which undoubtedly did her few favors
with the firm, writing, “My firm’s behavior during my medical leave has left me with the distinct
impression that their bottom line is, choose between your health and your job…”
I told [Mr. Grail] about the conversations that I had with Mr. Sullivan and Mr. Spaulding in July of
2001. … I told him specifically that I had been threatened with termination because I required
medical leave of absence. I told that I was told that as long as I was injured I was of no use to
anyone. I told him that I had been threatened that I could be pushed out, that the firm did not
want to continue carrying me, that I was justified in fearing for my job, that Mr. Sullivan
indicated that he was torn about giving me work because not only was I of no use to anyone if I
was injured but was also unreliable; comments about the unpredictable nature of my disability
Id. at 24.
Id. at 25.
Material Facts at Issue, supra, at 11.
Id. at 10-11.
Judgment Order, supra, at 26.
with regard to the ability to give me work assignments, all of which were made by either Mr.
Sullivan and/or Mr. Spaulding during July of 2001.
In preparation for that May 2002 evaluation, the firm’s Chief Human Resource Officer specifically told
Sullivan to find out if Cesarano needed an accommodation on hours, testifying:
I asked [Sullivan] to find out from Ms. Cesarano whether we could expect from her the same
thing that we expect from any other associate, vis a vis hours. And the reason I asked that is I
was aware that she had the injury. I wanted to make sure … whether she would need some form
of accommodation vis a vis the hours issue. That’s what … I asked Mr. Sullivan to inquire
This did not happen. Per Cesarano’s filing in opposition to a motion for summary judgment:
Yet, Sullivan did not ask Ms. Cesarano if she needed an accommodation for her hours during her
May 2002 evaluation. Instead, Mr. Sullivan told Ms. Cesarano in the context of her
performance evaluation in May 2002 that she would need to ‘bill at least 200 hours per month
in order for him to make the argument to keep [her] around.’ Reed Smith disputes this
statement. In fact, the issue of an accommodation did not come up at all during the evaluation.
Only after the evaluation when Ms. Cesarano approached Sullivan with concern about his
ultimatum did Ms. Cesarano’s need for an eight-hour day get discussed. At this point, given the
supposed advice of Lynch, Sullivan could have suggested a possible accommodation for her
eight-hour day, but he did not.
In the context of Sullivan’s alleged comments, he appears to have been insisting that she make up for
time lost due to her medical absences and prior hours limitations. He had to know, however, that the
demand was unreasonable. As Cesarno’s lawyer noted, “No associate at Reed Smith was expected to bill
anywhere near 200 hours per month since the annual billable hours expectation was only 1,865.”
Furthermore, other attorneys, including in litigation department, worked on part-time status at the
In her lawsuit, Cesarano also cited disparaging comments by Sullivan and others, including:
Sullivan: “If you’re still injured, you’re of no use to anyone”
Your health is a “stutter step” in your career
The firm might not want to “carry you”
Sullivan: You are “difficult to staff” while you are injured because you are “unreliable”
Id. at 29
Opposition to Summary Judgment, supra, at 39-40.
Id. at 17-18.
All quotes from Opposition to Summary Judgment, supra, at 25. Some of these were disputed by Reed Smith.
Attribution made Id. at 26.
Do not seek billable work on a part-time schedule because you could be viewed as “inefficient or
It would be a mistake to take on billable work on a part-time schedule that you might not be
able to “handle”
You should write off time as a way to demonstrate “efficiency”
Sullivan: You have no more future with Reed Smith because the firm does not want to continue
Cesarano contends that Pittsburgh-based partner Efrem Grail told her that, based on his observations,
“people at the firm might be discriminating against [her] on the basis of [her] disability and doing things
that were illegal,” and that “he was extremely concerned that the firm was discriminating against [her]
and it bothered him and troubled him deeply that people at the firm might be behaving in an illegal
On July 24, 2003, Cesarano filed a charge of discrimination with the D.C. Human Rights Commission as
And “[i]n her deposition, plaintiff reiterated that in July 2001 she first heard discriminatory
comments relating to her disability; plaintiff stated that she heard these comments from Richard
Sullivan. Defendant further stated that she ‘heard discriminatory statements on the basis of my gender
prior to [July 2001].’”
At trial, Reed Smith argued that Cesarano’s injury did not constitute a disability,
but emails and
communications from partners regarding Cesarano strongly suggest they believed otherwise, and more
importantly for present purposes, Sullivan clearly understood that Cesarano’s injury was holding her
back (see quotes under “Termination,” immediately below).
Cesarano “was told that her billable hours were the lowest in Sullivan’s group” (not taking into account
medical leave and injury) and that this was the reason for her termination.
In the subsequent litigation,
both parties concurred that “[t]he decision to terminate plaintiff was recommended by Richard Sullivan,
Esq., plaintiff’s Practice Group Leader.”
On July 20, 2001, managing partner Doug Spaulding told her that her injury was a “definite stutter step
in [her career]” and “absolutely cause for concern,” commenting that it was “very bad timing, that it was
reasonable for her to fear for her job because she was “out of sight, out of mind” due to medical leaves
Id. at 30.
Material Facts at Issue, supra, at 17. (Note again, though, that Grail was called as a defense witness, sticking by
Judgment Order, supra, at 8.
Id. at 29.
“D.C. Appeals Court Revives Wrongful Termination Suit Against Reed Smith.” The Blog of LegalTimes, March 4,
2010. Available at http://legaltimes.typepad.com/blt/2010/03/dc-appeals-court-revives-wrongful-termination-
Opposition to Summary Judgment, supra, at 42.
Judgment Order, supra, at 6.
of absence, and that she might get “pushed out” because the firm might not want to continue “carrying”
her. He also told her she was “right to be worried about [her] job” and that she should make a
proposal to Rip Sullivan, David McAllister, and him outlining what the firm could expect health-wise
and when she would be able to guarantee she could return at a 100 percent healthy status. Said the
firm “might try to possibly work with that” and could accept her proposal or reject it, but if the latter,
reasonable that she could be “pushed out.”
By March 2002, Sullivan said he “would let her go,” this only six weeks after he finally got around to
advising partners of her need for work,
and months before her delayed performance evaluation –
despite the fact that, as noted earlier, Sullivan told Cesarano that it wasn’t “too late” to turn things
around after the May 2002 evaluation, encouraged her that “the meets minus won’t last indefinitely”
and admitted that “we, the firm, have to get you busier.”
Sullivan, moreover, clearly understood that the reason for Cesarano’s low productivity (which was on
the rise) was her injury: “Sullivan recognized at the time that Ms. Cesarano’s low hours were due to her
injury, explaining that Ms. Cesarano’s ‘health issues’ were the most significant factor in her
performance. Sullivan also told Lynch that Ms. Cesarano ‘fell off screens’ as a result of her medical
He said in an email that her injury “blew [a] hole in her year” and stated earlier that “[w]hen she has
been able to work, … she is meeting, or capable of meeting, our expectations from a quality of work
He also refused to take into account non-billable work that Cesarano took on when she failed to receive
sufficient billable assignments, despite using this as a valid excuse for other associates with low
By engaging in practice development and handling pro bono work for the firm when she
was not assigned enough billable work, Cesarano essentially met the firm’s total hours expectations.
This work did not, however, impress Sullivan, who referred to one client matter she handled, in which
she represented a defendant in a capital murder case, as “a little pro bono matter.”
She wasn’t forced out for a lack of trying on her part: “Cesarano assiduously sought to increase her
billable hours after May 2002, to the point of exceeding the eight-hour daily working limitation set by
her doctor even though Reed Smith had not provided the ergonomic workstation that he
Material Facts at Issue, supra, at 10.
Id. at 28.
Id. at 32.
Opposition to Summary Judgment, supra, at 27.
Id. at 42.
Material Facts at Issue, supra, at 45.
Id. at 27-28.
MWELA Amicus at 5.
Cesarano alleged that her treatment and termination constituted gender discrimination because male
associates with worse billing histories were carried along by the firm, to borrow Sullivan’s words. Per her
In firing Ms. Cesarano, Reed Smith treated her unfairly in comparison to several able-bodied
male associates, who were not terminated and whose low billable hours were repeatedly
excused by the firm despite better opportunities afforded to them and despite the fact that they
had no limitations on their workday.
In July 2001, Sullivan was asked by management to explain the situations of any lawyers in his practice
group whose chargeable hours were more than 15% below the hours budgeted for the year (pro-rated)
at the half-way mark. Evidently “Reed Smith management was seeking explanations from Mr. Sullivan to
address ‘productivity problems’ within his group.” As of that time, Cesarano was not one of those listed
as a productivity problem, and for 2000 she was above budgeted hours by 5%.
There were, however,
other problem attorneys—able-bodied males—all of whom remained on even as Cesarano was
terminated (only first names provided below):
Dexter. A male associate who was hired the same year as Cesarano and received a higher salary
than she did ($150,000 compared to $122,500), failed to meet expectations for two consecutive
years, was given a Meets Minus rating in 2001, and then saw his hours fall further the following
year. Sullivan kept him on, excusing his low billables because his assigned work hadbeen “very
light” and “when he has enough work to do, his reviews have been solid.”
Sullivan also claimed that “[h]is numbers for the last 4 months of last year showed marked
improvement, and he is off to a good start this year, with a strong workload.” In fact, he
averaged 101 chargeable hours per month over those four months. Sullivan took into account
that his group didn’t have a lot of work to do—this being the same group as Cesarano was in.
Notably, in a conversation with the HR director, Sullivan once compared Cesarano’s situation to
Dexter’s, even though Dexter had no injury or disability.
Richard. “Mr. Sullivan excused [Richard’s] low chargeable hours in part because he had been
assigned by the firm to undertake several pro bono matters which were time-consuming.”
course, the same could be said for Cesarano, but that was not considered mitigating in her case.
Sullivan also assigned Richard a significant case directly under him to get his hours up, which
never happened for Cesarano.
Sullivan said there was a quantity, not quality of work problem
Opposition to Summary Judgment, supra, at 8.
Material Facts at Issue, supra, at 39.
Id. at 42.
Id. at 43.
Id. at 29.
Id. at 39.
Id. at 40.
with Richard, but McAllister testified that Reed Smith took issue with the quality of his work as
He remained employed.
Joshua Bish. Worked 300 fewer chargeable hours than the firm’s target for associates, but
somehow received a “Meets Expectations” rating.
Philip. Worked 300 fewer than the target billable hours, had an unusually high comps-to-fees
ratio, and a high billable hours writeoff, but received a “Meets Expectations” rating and a raise
Paul. Worked more than 300 fewer chargeable and total hours than expected (Cesarano came
close to her total hours target), yet received a “Meets Expectations” rating. Sullivan excused
Paul’s low hours because a partner he worked for let the firm and he didn’t have enough work
to do. As Cesarano’s attorney noted, “In contrast to [Paul], Ms. Cesarano provided valuable
services for the firm by engaging in practice development and handling pro bono work for the
firm when she was not assigned enough billable work, and as a result, Ms. Cesarano was able to
essentially meet the firm’s total hours expectations.”
It is worth reiterating that “[d]efendant further stated that she ‘heard discriminatory statements on the
basis of my gender…’”
While gender discrimination can be very difficult to prove, the case was settled
out of court, and that able-bodied males were given multiple second chances while a disabled female
was shown the door is, at least, a point on which Sullivan might be challenged.
Cesarano’s Subsequent History
After her termination at Reed Smith, she went on to a career at the State Department,
and as of 2010
she was the leader of one of the three subgroups within Executive Women at State, one of the largest
affinity groups in the Department at over 800 members.
The purpose of the group is to promote and
mentor career women for senior leadership in the State Department, and each of the three subgroups
represents a different career rung—junior-level, mid-level, and senior-level.
Later in 2011, it appears
that she transferred to the Department of Defense, where she served as the Dispute Resolution Liaison
Id. at 41.
Id. at 43.
Id. at 44.
Id. at 45.
Judgment Order, supra, at 29.
“D.C. Appeals Court Revives Wrongful Termination Suit Against Reed Smith,” supra.
Saboe, Cynthia. “Exceptional Executives: Group Helps Women Advance as Leaders.” STATE Magazine, March
2011. Available at http://digitaledition.state.gov/publication/?i=62139&p=21
“Affinity Groups.” U.S. Department of State. Available at http://careers.state.gov/learn/diversity-
in the General Counsel’s office
and now appears to hold another position with regard to overseeing
aspects of Alternative Dispute Resolution.
See e,g, “Task Force Phoenix II Summit Summary Report of Proceedings.” Defense Equal Opportunity
Management Institute, May 26, 2011, p. 43.