Case 1:19-cv-02443-RDM Document 15 Filed 09/27/19 Page 1 of 37

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARK C. SAVIGNAC and
JULIA SHEKETOFF,
Plaintiffs,
v.
JONES DAY, et al.,
Defendants.

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Civ. No. 1:19-02443 (RDM)
DEFENDANTS’
MOTION TO DISMISS

DEFENDANTS’ MOTION TO DISMISS
Defendants Jones Day, Stephen J. Brogan, and Beth Heifetz respectfully move for an order
dismissing Plaintiffs’ Complaint under Federal Rule of Civil Procedure 12(b)(6). The grounds for
this motion are set forth in the attached memorandum of law. A proposed order is attached.

/s/ Traci Lovitt
Traci Lovitt (Bar No. 467222)
Terri L. Chase (pro hac vice)
JONES DAY
250 Vesey Street
New York, NY 10281
Phone: (212) 326-3939
Anderson T. Bailey (pro hac vice)
JONES DAY
500 Grant Street
Pittsburgh, PA 15219
Phone: (412) 391-3939
Mary Ellen Powers (Bar No. 334045)
JONES DAY
51 Louisiana Avenue NW
Washington, DC 20001
Phone: (202) 879-3939
Attorneys for Defendants

 Case 1:19-cv-02443-RDM Document 15 Filed 09/27/19 Page 2 of 37

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARK C. SAVIGNAC and
JULIA SHEKETOFF,
Plaintiffs,
v.
JONES DAY, et al.,
Defendants.

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Civ. No. 1:19-02443 (RDM)
MEMORANDUM OF LAW IN
SUPPORT OF DEFENDANTS’
MOTION TO DISMISS

Traci Lovitt (Bar No. 467222)
Terri L. Chase (pro hac vice)
JONES DAY
250 Vesey Street
New York, NY 10281
Phone: (212) 326-3939
Anderson T. Bailey (pro hac vice)
JONES DAY
500 Grant Street
Pittsburgh, PA 15219
Phone: (412) 391-3939
Mary Ellen Powers (Bar No. 334045)
JONES DAY
51 Louisiana Avenue NW
Washington, DC 20001
Phone: (202) 879-3939
Attorneys for Defendants

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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................................................................................... ii
INTRODUCTION ......................................................................................................................... 1
BACKGROUND ALLEGATIONS............................................................................................... 3
A.

Jones Day’s Leave Policies .................................................................................... 3

B.

Savignac’s Threats and Termination ..................................................................... 4

C.

Sheketoff’s Reviews and Compensation ............................................................... 5

LEGAL STANDARD .................................................................................................................... 7
ARGUMENT ................................................................................................................................. 8
I.

JONES DAY’S LEAVE POLICIES DO NOT DISCRIMINATE BASED ON SEX
(COUNTS I-III) .................................................................................................................... 8
A.

Jones Day’s Policies Are Gender-Neutral ............................................................. 8

B.

Plaintiffs’ Objections Lack Merit ........................................................................ 11

II.

SAVIGNAC’S COMPLAINTS ABOUT JONES DAY’S LAWFUL LEAVE POLICIES
WERE NOT “PROTECTED ACTIVITY” (COUNTS VII-IX) .................................................... 15

III.

AS THE COMPLAINT ITSELF ADMITS, SAVIGNAC WAS NOT TERMINATED
FOR TAKING OR REQUESTING FMLA LEAVE (COUNTS X-XI) .......................................... 19

IV.

SHEKETOFF HAS NOT ALLEGED PLAUSIBLE DISCRIMINATION CLAIMS
(COUNTS IV-VI) ............................................................................................................... 21

CONCLUSION ............................................................................................................................ 29

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TABLE OF AUTHORITIES
Page(s)
CASES
Alexander v. Marriott Int’l, Inc.,
No. 09-cv-2402, 2011 WL 1231029 (D. Md. Mar. 29, 2011) .................................................28
Amos v. Hous. Auth. of Birmingham Dist.,
927 F. Supp. 416 (N.D. Ala. 1996) ..........................................................................................17
Arban v. W. Pub’g Corp.,
345 F.3d 390 (6th Cir. 2003) ...................................................................................................19
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .......................................................................................................7, 25, 27
Ashraf-Hassan v. Embassy of France in U.S.,
878 F. Supp. 2d 164 (D.D.C. 2012) .........................................................................................21
Banawis-Olila v. World Courier Ground, Inc.,
No. 16-cv-982, 2016 WL 4070133 (N.D. Cal. July 29, 2016) ................................................27
Barcher v. N.Y. Univ. Sch. of Law,
993 F. Supp. 177 (S.D.N.Y. 1998) ..........................................................................................17
Barrett v. Forest Labs., Inc.,
39 F. Supp. 3d 407 (S.D.N.Y. 2014)........................................................................................28
Bass v. World Wrestling Fed. Ent’t, Inc.,
129 F. Supp. 2d 491 (E.D.N.Y. 2001) .....................................................................................28
Becknell v. Univ. of Ky.,
383 F. Supp. 3d 743 (E.D. Ky. 2019) ......................................................................................21
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ...................................................................................................................7
Bermudez v. TRC Holdings, Inc.,
138 F.3d 1176 (7th Cir. 1998) .................................................................................................13
Bones v. Honeywell Int’l, Inc.,
366 F.3d 869 (10th Cir. 2004) .................................................................................................20
Brown v. Dist. of Columbia,
919 F. Supp. 2d 105 (D.D.C. 2013) .........................................................................................22
Burley v. Nat’l Passenger Rail Corp.,
801 F.3d 290 (D.C. Cir. 2015) ...........................................................................................25, 26
Burnette v. Northside Hosp.,
342 F. Supp. 2d 1128 (N.D. Ga. 2004) ....................................................................................17
Bush v. Raymond Corp.,
No. 96-cv-302, 1996 WL 732558 (N.D.N.Y. Dec. 19, 1996) .................................................15

ii

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TABLE OF AUTHORITIES
(continued)

Page(s)

Cal. Fed. Sav. & Loan Ass’n v. Guerra,
479 U.S. 272 (1987) .....................................................................................................13, 14, 18
Chubb v. City of Omaha,
424 F.3d 831 (8th Cir. 2005) .............................................................................................20, 21
Clover v. Total Sys. Servs., Inc.,
176 F.3d 1346 (11th Cir. 1999) ...............................................................................................17
Commodore-Mensah v. Delta Air Lines, Inc.,
842 F. Supp. 2d 50 (D.D.C. 2012) .............................................................................................3
Crawford-El v. Britton,
523 U.S. 574 (1998) .................................................................................................................18
Curry v. Town of Islip,
No. 13-cv-3597, 2017 WL 6947742 (E.D.N.Y. Dec. 8, 2017) ................................................15
Daye v. Potter,
380 F. Supp. 2d 718 (M.D.N.C. 2005) ....................................................................................21
Easaw v. Newport,
253 F. Supp. 3d 22 (D.D.C. 2017) ...........................................................................................22
EEOC v. Port Auth. of N.Y. & N.J.,
768 F.3d 247 (2d Cir. 2014).....................................................................................................28
Faison v. Dist. of Columbia,
664 F. Supp. 2d 59 (D.D.C. 2009) ...........................................................................................23
Fed. Express Corp. v. Holowecki,
552 U.S. 389 (2008) .................................................................................................................11
Feng v. Sandrik,
636 F. Supp. 77 (N.D. Ill. 1986) ..............................................................................................15
Fowler v. Dist. of Columbia,
404 F. Supp. 2d 206 (D.D.C. 2005) .........................................................................................16
Frasier v. Gen. Elec. Co.,
930 F.2d 1004 (2d Cir. 1991)...................................................................................................27
Geduldig v. Aiello,
417 U.S. 484 (1974) .................................................................................................................12
Gen. Elec. Co. v. Gilbert,
429 U.S. 125 (1976) .......................................................................................................9, 12, 14
George v. Leavitt,
407 F.3d 405 (D.C. Cir. 2005) .................................................................................................16
Grosdidier v. Broad. Bd. of Govs.,
709 F.3d 19 (D.C. Cir. 2013) ...................................................................................................16
iii

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TABLE OF AUTHORITIES
(continued)

Page(s)

Gupta v. Oklahoma City Pub. Sch.,
No. CIV-18-317-G, 2019 WL 896295 (W.D. Okla. Feb. 22, 2019)........................................24
Hodges v. Dist. of Columbia,
959 F. Supp. 2d 148 (D.D.C. 2013) .........................................................................................19
Holbrook v. Reno,
196 F.3d 255 (D.C. Cir. 1999) .................................................................................................25
Howard Univ. v. Green,
652 A.2d 41 (D.C. 1994) .........................................................................................................15
Hughes v. Xerox Corp.,
37 F. Supp. 3d 629 (W.D.N.Y. 2014) ......................................................................................28
Iannone v. Frederic R. Harris, Inc.,
941 F. Supp. 403 (S.D.N.Y. 1996) ..........................................................................................17
Jackson v. Deen,
959 F. Supp. 2d 1346 (S.D. Ga. 2013) .....................................................................................13
Johnson v. Angels,
125 F. Supp. 3d 562 (M.D.N.C. 2015) ....................................................................................22
Johnson v. Univ. of Iowa,
431 F.3d 325 (8th Cir. 2005) ...................................................................................9, 10, 12, 14
King v. Jackson,
487 F.3d 970 (D.C. Cir. 2007) ...........................................................................................16, 18
Lehman v. Bergmann Assocs., Inc.,
11 F. Supp. 3d 408 (W.D.N.Y. 2014) ......................................................................................28
Macon v. J.C. Penney Co.,
17 F. Supp. 3d 695 (N.D. Ohio 2014)................................................................................24, 25
Marshall Cty. Health Care Auth. v. Shalala,
988 F.2d 1221 (D.C. Cir. 1993) .................................................................................................7
McBride v. Mass. Comm’n Against Discrimination,
677 F. Supp. 2d 357 (D. Mass. 2009) ......................................................................................26
Muldrew v. Joseph McCormick Constr. Co.,
Civ. No. 14-27, 2014 WL 3890336 (W.D. Pa. Aug. 8, 2014) .................................................27
Nev. Dep’t of Human Res. v. Hibbs,
538 U.S. 721 (2003) .................................................................................................................12
Newport News Shipbuilding & Dry Dock Co. v. EEOC,
462 U.S. 669 (1983) ...................................................................................................................9
Pendleton v. Rumsfeld,
628 F.2d 102 (D.C. Cir. 1980) .................................................................................................15
iv

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TABLE OF AUTHORITIES
(continued)

Page(s)

Pitt v. Dist. of Columbia,
491 F.3d 494 (D.C. Cir. 2007) .................................................................................................17
Rafferty v. Nynex Corp.,
60 F.3d 844 (D.C. Cir. 1995) .............................................................................................18, 19
Risley v. Fordham Univ.,
No. 99 Civ. 9304, 2001 WL 118566 (S.D.N.Y. Feb. 13, 2001) ...............................................17
Rumble v. Convergys,
No. C-1-07-979, 2010 WL 812775 (S.D. Ohio Mar. 9, 2010) ................................................25
Sarnowski v. Air Brooke Limousine, Inc.,
510 F.3d 398 (3d Cir. 2007).....................................................................................................20
Schwabenbauer v. Bd. of Educ. of City Sch. Dist. of City of Olean,
667 F.2d 305 (2d Cir. 1981).....................................................................................................12
Scott v. Dist. Hosp. Partners, L.P.,
60 F. Supp. 3d 156 (D.D.C. 2014) .........................................................................................4, 5
Sherrod v. Prairie View A & M Univ.,
Civ. No. H-10-1858, 2011 WL 843936 (S.D. Tex. Mar. 8, 2011) ..........................................27
Sloan v. Am. Brain Tumor Ass’n,
901 F.3d 891 (7th Cir. 2018) ...................................................................................................16
Smith v. Diffee Ford-Lincoln-Mercury, Inc.,
298 F.3d 955 (10th Cir. 2002) .................................................................................................20
Spencer v. Va. State Univ.,
224 F. Supp. 3d 449 (E.D. Va. 2016) ......................................................................................28
Spencer v. Va. State Univ.,
919 F.3d 199 (4th Cir. 2019) ...................................................................................................28
Spiteri v. AT&T Holdings, Inc.,
40 F. Supp. 3d 869 (E.D. Mich. 2014).....................................................................................17
Suzuki v. State Univ. of N.Y. Coll.,
No. 08-cv-4569, 2013 WL 2898135 (E.D.N.Y. June 13, 2013) ..............................................27
Taylor v. Union Inst.,
30 F. App’x 443 (6th Cir. 2002) ..............................................................................................25
Thomas v. City Coll. of S.F.,
No. 15-CV-05504, 2016 WL 6393508 (N.D. Cal. Oct. 28, 2016) ..........................................25
Thomas v. Dist. of Columbia,
227 F. Supp. 3d 88 (D.D.C. 2016) .....................................................................................19, 20
Thompson v. N. Am. Stainless, LP,
562 U.S. 170 (2011) ...........................................................................................................13, 15
v

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TABLE OF AUTHORITIES
(continued)

Page(s)

Throneberry v. McGehee Desha County Hosp.,
403 F.3d 972 (8th Cir. 2005) ...................................................................................................20
Townsend v. United States,
236 F. Supp. 3d 280 (D.D.C. 2017) .........................................................................................24
Volberg v. Pataki,
917 F. Supp. 909 (N.D.N.Y. 1996) ....................................................................................17, 18
Wienke v. Haworth, Inc.,
No. 92-1021, 1993 WL 6830 (6th Cir. 1993) ..........................................................................26
STATUTES
29 U.S.C. § 206 ..........................................................................................................................8, 27
29 U.S.C. § 215 ..............................................................................................................................15
29 U.S.C. § 2612 ............................................................................................................................21
29 U.S.C. § 2615 ............................................................................................................................19
42 U.S.C. § 2000e-2 .........................................................................................................................8
42 U.S.C. § 2000e-5 .......................................................................................................................13
D.C. Code § 2-1402.11 ....................................................................................................................8
D.C. Code § 32-502 .......................................................................................................................21

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INTRODUCTION
Plaintiffs Mark Savignac and Julia Sheketoff are former Jones Day associates who assert
four sets of claims against the Firm. All are legally meritless and should be dismissed.
First, Plaintiffs challenge Jones Day’s leave policies on the ground that they discriminate
against men. But they do not. Through its family leave policy, Jones Day offers birth parents who
are primary caregivers 10 weeks of paid leave—regardless of gender. Adoptive parents who are
primary caregivers are afforded 18 weeks of paid leave—regardless of gender. And all secondary
caregivers obtain 4 weeks of paid leave—regardless of gender. Those generous leave policies are
sex-neutral on their face and entirely lawful. Plaintiffs object that birth mothers alone may also
request eight weeks of paid leave under the Firm’s Short Term Disability policy. But, as both the
EEOC and the only court to address this issue have agreed, that is not discriminatory either, since
there is a key difference between birth mothers and fathers: Only the former undergo pregnancy
and childbirth. And the law in fact requires employers to treat disabilities arising from pregnancy
and childbirth on at least equal terms as any other disabilities. Plaintiffs thus resort to complaining
that Jones Day’s disability policy does not force new mothers to provide medical certification of
their disability. Nothing in the law requires imposing that pointless, intrusive burden. Nor does
this conceivably amount to discrimination against Savignac, who was not disabled and thus was
not eligible for any disability leave, with or without medical certification.
Second, Plaintiffs allege that Jones Day fired Savignac for complaining about the policies.
Actually, Jones Day fired him for the poor judgment and immaturity reflected by his extortionate
threat to harm the Firm in the “court of public opinion” unless it acceded to his unreasoned demand
for the same disability leave afforded to women who give birth. For present purposes, however,
what matters is that a reasonable lawyer in Savignac’s position could not have believed Jones
Day’s policies were unlawful. Savignac, a supposedly sophisticated attorney, cannot invoke
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retaliation provisions that protect complaints about unlawful practices—even if those statutes also
protect reasonable mistakes—when agency guidance, judicial precedent, first principles, and
common sense all establish that the policies here are non-discriminatory. On its face, Savignac’s
complaint was objectively unreasonable—and therefore legally unprotected.
Third, Savignac asserts that Jones Day unlawfully interfered with his protected leave under
the Family Medical Leave Act (“FMLA”) and its D.C. equivalent by firing him while he was out
on leave. That misunderstands the scope of these statutes. An employer is forbidden to fire an
employee because he has taken or will take protected leave. But there are no allegations, much
less plausible ones, that Jones Day terminated Savignac in order to interfere with his protected
leave. Instead, Savignac alleges that he was terminated because of his email demanding benefits
well beyond what the FMLA and its D.C. equivalent guarantee. An employee is not immunized
from termination on other grounds simply because he happens to be on leave. These claims
therefore also fail as a matter of law.
Finally, Sheketoff alleges unrelated claims of sex discrimination in violation of Title VII,
the Equal Pay Act (EPA), and D.C. law. She claims one male partner gave her a negative review
because she is a woman. And she attributes, to that one review, her compensation of $440,000 in
2017 and $525,000 in 2018. These claims fail on multiple grounds. The Title VII claim is timebarred because Sheketoff filed her EEOC charge more than 180 days after leaving the Firm. The
D.C. claim (as well as the Title VII claim) fails because Sheketoff has not alleged facts that give
rise to a plausible inference that the review stemmed from sex-based animus. She speculates that
a man would have received a better review for the same work, but that is not enough to unlock the
gates of discovery. Her EPA claim is not viable for the same reasons, and also because Sheketoff
does not adequately allege that a specific male associate was paid more for “equal work.”

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BACKGROUND ALLEGATIONS
A.

Jones Day’s Leave Policies

Jones Day has three relevant leave policies. This Court may consider the written policies
because Plaintiffs appended them to their complaint. See Commodore-Mensah v. Delta Air Lines,
Inc., 842 F. Supp. 2d 50, 52 (D.D.C. 2012).
First, parents “of a newly born child” can take “paid family leave”: ten weeks for primary
caregivers and four weeks for secondary caregivers. Compl. Add. at 3. This policy is sex-neutral.
“[I]f the mother is the primary caregiver,” the Firm will provide “ten weeks of paid family leave,”
and likewise, if “the father is the primary caregiver, the Firm will provide ten weeks of paid family
leave.” Id. By the same token, “if the mother is the secondary caregiver,” the Firm offers “four
weeks of paid family leave,” and “if the father is the secondary caregiver, the Firm will provide
four weeks of paid family leave.” Id. Beyond this ten-week period of paid parental leave, primary
caregivers (whether mothers or fathers) may request another “six weeks of unpaid leave.” Id.
Second, “[i]n the case of a newly adopted child,” the Firm offers “paid adoption leave”:
“18 weeks ... to the primary caregiver” and “four weeks” for the secondary caregiver. Id. As with
birth parents, the primary caregiver of an adoptive child may also seek approval for an additional
“six weeks of unpaid leave.” Id. The Firm’s adoption leave policy does not mention or distinguish
between mothers and fathers, or between men and women. See id.
Third, Jones Day’s “Short Term Disability policy” offers paid leave “in the event of a major
illness or medical condition, including pregnancy, childbirth or related medical conditions.” Id. at
4. An employee must submit a formal “application” to request this leave. Id. at 5. As to childbirth,
“[u]nless the Firm is notified otherwise, it will assume that a lawyer’s medical provider has
certified an eight-week, post-partum disability period for routine childbirth (including Caesareansection births).” Id. at 5. Thus, in the event of a newly born child, Jones Day “will provide mothers
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eight weeks of paid leave under the Firm’s Short Term Disability policy.” Id. at 3. Disability
leave serves a different purpose and is separate from family leave, and is available to women who
give birth regardless of whether they will be the primary or secondary caregiver. See id. The
disability leave must be taken prior to any period of family leave. See id.
B.

Savignac’s Threats and Termination

In August 2018, shortly before her scheduled, voluntary departure from the Firm, Sheketoff
asked Defendant Beth Heifetz, the Issues & Appeals practice leader, if the Firm, upon the birth of
the couple’s child, would grant Savignac “18 weeks paid [leave]”—i.e., 8 weeks more family leave
than primary caregivers receive— “and 24 weeks total leave.” Compl. ¶ 140. Heifetz referred the
request to the Firm’s HR Director, who denied it. Compl. ¶ 142. Savignac, who had started at the
Firm just over a year earlier (Compl. ¶ 40), responded: “I oppose your practice, which is made
illegal by Title VII.” Compl. ¶ 144. The HR Director promptly sent Savignac legal citations that
demonstrated the legality of Jones Day’s policies. Compl. ¶ 145; Ex. A.1
Five months passed without response. Jones Day took no action against Savignac. In
January 2019, shortly after Sheketoff gave birth, Savignac emailed the HR Director, demanding:
“Give me the treatment that Jones Day gives to all women with new children—18 weeks of paid
leave and 6 weeks of unpaid leave—or else I will file a charge with EEOC and then a class-action
lawsuit, and the matter will be decided in the D.C. Circuit and in the court of public opinion. We
are very familiar with the D.C. Circuit and confident that we will win.” Compl. ¶ 146. Savignac
acknowledged the caselaw and EEOC guidance that the Firm had previously cited, but maintained
(without explanation) that they “do not support Jones Day’s discriminatory policy.” Id.

1

Because the Complaint references and thereby incorporates this email exchange (Compl.
¶¶ 139-145), it may be considered on a motion to dismiss. Scott v. Dist. Hosp. Partners, L.P., 60
F. Supp. 3d 156, 161 (D.D.C. 2014).
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Jones Day fired Savignac six days later. Compl. ¶ 149. Plaintiffs allege that the Firm did
so “because of the January 16 email’s challenge to its parental leave policy.” Compl. ¶ 153. They
also contend that, in retaliation for Savignac’s email, the Firm authorized only “a single reference”
(from the three he requested) to speak with “potential employers.” Compl. ¶¶ 171, 174.
C.

Sheketoff’s Reviews and Compensation

Sheketoff joined Jones Day in October 2014, and voluntarily left in August 2018 to pursue
a career in the public sector. Compl. ¶¶ 57, 137, 210. In the Complaint, Sheketoff alleges that she
suffered sex discrimination in her compensation from July 2017 until her departure.
Sheketoff’s discrimination claim is centered on a review she received from “Partner A” for
work she performed in 2016. She alleges that she “wrote an initial draft” of a client memorandum
“and Partner A edited it.” Compl. ¶ 73. In response to her “suggesting further edits and explaining
to Partner A why she believed that he should not implement all of his edits,” Partner A allegedly
“sent Julia an email scolding her for second-guessing his edits.” Compl. ¶¶ 77-78. He then
allegedly wrote a “severely negative performance evaluation for being insufficiently deferential to
him.” Compl. ¶ 85. The Complaint alleges that this evaluation “influenced Julia’s consensus
statement for her 2016 work” and, in turn, led to a raise in 2017 of only “$15,000,” “resulting in a
salary of $440,000.” Compl. ¶¶ 88-89. Sheketoff alleges that this reduced raise also caused her
2018 salary—$525,000—to be lower than it otherwise would have been. Compl. ¶¶ 93-95.
Partner A’s email did not “scol[d]” Sheketoff “for second-guessing his edits” or say she
was insufficiently deferential. He made two “general comments.” Ex. B at 2. 2 Specifically, he
advised her to “avoid making style edits”—like changing “‘as well as’ to ‘and’”—“to the writing
2

Because the Complaint references and thereby incorporates Partner A’s email and review
as well as Sheketoff’s assessment statement, this Court may consider those materials on a motion
to dismiss. See Scott, 60 F. Supp. 3d at 161. These materials have been redacted to protect client
confidences and personal identities and to exclude materials not referenced in the Complaint.
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of the person whose name goes first on the memo” and “when the person whose name goes first
on the memos makes an edit, you should not change it back to the way you had it.” Id. When
Sheketoff responded that she “didn’t mean to impugn or undermine our hierarchy by suggesting
edits,” Partner A responded: “No worries. I did not presume you were trying to impugn or
undermine anything. You undoubtedly made the memo much better.” Id. at 1. “My point is that
I want you to be cognizant of time, and changing something back to the way you had it (after
someone else took the time to change it) is not efficient.” Id. The better course, he suggested,
would be to “leave the more senior person’s edit and ask about it in person or on the phone.” Id.
Partner A’s review was also not “severely negative.” It stated that, in light of Sheketoff’s
“superior academic credentials,” learning the “complicated” issues “presented no problems” for
her. Ex. C. It also rated her “3” or “4” (out of 5) on every metric. And the review said nothing
about Sheketoff’s supposed lack of deference or her revisions to the memo. See id. Instead, it
criticized other aspects of Sheketoff’s performance on the matter: (1) that “her initial drafts were
far more academic / pure legal analysis than helpful advice to the client,” although this “improved
in subsequent drafts”; (2) that she “exhibit[ed] little-to-no initiative” on the project, doing only
“what is asked of her”; and (3) that “her availability seems to be whatever is convenient for her.”
Id. Sheketoff does not allege in her Complaint that any of those criticisms were false.
Turning to the 2016 assessment statement, it included one clause referencing Partner A’s
critique that Sheketoff’s writing was overly academic—alongside similar criticisms from two other
reviewers. See Ex. D. It stated that Sheketoff’s “writing is generally very strong” but “at times
her drafts need to be better tailored to their intended audiences.” Id. For example, “some of her
writing was viewed as complicated for a judge who might not be as immersed in the law and facts;
a client memo was too focused on pure legal analysis without accompanying advice; and a motion

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did not read enough like an advocacy piece.” Id. (emphasis added). The statement also noted that
Sheketoff “shows passionate commitment to some matters … but in other matters does not take
initiative and seems to be protecting her time.” Id. And “[s]he is perceived as often absent from
the office during the weekday.” Id. Again, Sheketoff does not allege that any of this is false.
In claiming that Partner A’s review was motivated by animus toward her sex, Sheketoff
alleges the following: that Partner A was not as “fraternal and ingratiating” toward her as he was
with men at “the Jones Day cafeteria,” and that when Savignac “was assigned to work on a brief
for Partner A, Partner A deferred to [him] on both substance and style.” Compl. ¶¶ 72, 82-84.
As discussed below, these allegations fail as a matter of law to state a discrimination claim.
But if this claim proceeded to discovery, the facts would show that Partner A’s review of Sheketoff
had nothing to do with her gender. Partner A has submitted 28 substantive associate evaluations,
for 12 female associates and 8 male associates. With the exception of Sheketoff, his evaluations
of female associates have been uniformly positive, which is not true of his reviews of men.
LEGAL STANDARD
To survive a motion to dismiss and proceed to discovery, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must allege sufficient facts to “allow[]
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. And those factual allegations, if true, must “raise a right to relief above the speculative level,”
meaning they must render the claim not just “conceivable,” but “plausible.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 557, 570 (2007). If “the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct,” the court should dismiss. Iqbal, 556 U.S.
at 679. Of course, “a court can fully resolve any purely legal question on a motion to dismiss.”
Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993).
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ARGUMENT
I.

JONES DAY’S LEAVE POLICIES DO NOT DISCRIMINATE BASED ON SEX (COUNTS I-III)
In Counts I-III, Plaintiffs challenge Jones Day’s “parental leave policy,” claiming that the

policy, on its face, “discriminates on the basis of sex” in violation of federal and D.C. law. Compl.
¶¶ 184, 195. As Plaintiffs have correctly observed, that claim presents purely “a question of law.”
Dkt. 12 at 1. Specifically, do the Firm’s leave policies, by their terms, “discriminate against any
individual ... because of such individual’s ... sex”? 42 U.S.C. § 2000e-2(a)(1); see also D.C. Code
§ 2-1402.11(a) (prohibiting discrimination “based upon ... sex”). 3 As explained below, the policies
at issue do not discriminate based on sex. The question is not even a close one.
A.

Jones Day’s Policies Are Gender-Neutral

There are actually three distinct policies at issue. First, Jones Day offers paid family leave
to birth parents: 10 weeks to a primary caregiver and 4 weeks to a secondary caregiver. Second,
Jones Day offers paid adoption leave to adoptive parents: 18 weeks to a primary caregiver and 4
to a secondary caregiver. Third, Jones Day’s Short Term Disability policy entitles birth mothers
to apply for 8 weeks of paid disability leave based on the disabilities that arise from pregnancy and
childbirth. See supra at 3-4. None of these policies discriminates on the basis of sex.
1.

The family leave policy is sex-neutral in every respect. The “primary caregiver” of

a newly born child is entitled to “ten weeks of paid family leave”; that applies equally by its terms
to a “mother” and a “father.” Compl. Add. at 3. Likewise, the “secondary caregiver” of a newly
born child is entitled to “four weeks of paid family leave,” and that policy too governs both “the
mother” and “the father.” Id. The only disparate treatment here is between primary and secondary
caregivers—regardless of gender. That does not (and is not alleged to) violate the law.
3

Likewise, if the policies do not discriminate because of sex, any resulting disparity is
“based on” a “factor other than sex” and so does not violate the EPA. 29 U.S.C. § 206(d)(1).
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The adoption leave policy is also sex-neutral. Indeed, the adoption leave policy does not
refer to mothers or fathers at all. It simply provides for “18 weeks of paid adoption leave to the
primary caregiver” and “four weeks” of paid leave to the secondary caregiver. See id.
Finally, the disability leave policy does not discriminate based on sex by affording women
who undergo childbirth the same benefits available for every other “major illness or medical
condition.” Id. at 4. From the perspective of disability leave, fathers are not similarly situated to
postpartum mothers. Only the latter incur disabilities from pregnancy and childbirth. If a father
suffered a heart attack while in the delivery room, he too would be entitled to disability leave.
Notwithstanding Plaintiffs’ “opposition to archaic gender roles” (Compl. ¶ 5), it remains
true that, biologically, men cannot undergo childbirth. But that does not mean offering disability
leave for childbirth is discrimination based on sex. Quite the opposite: It is failure to afford
disability leave to women who give birth that would violate Title VII as amended by the Pregnancy
Discrimination Act (PDA). In the PDA, Congress made “clear that it is discriminatory to treat
pregnancy-related conditions less favorably than other medical conditions.” Newport News
Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 684 (1983). That Act superseded General
Electric Co. v. Gilbert, which had held that excluding “pregnancy-related disability benefits” from
a benefit plan is not unlawful sex discrimination. 429 U.S. 125, 128 (1976). Jones Day does not,
therefore, unlawfully discriminate against men by offering disability leave to women who become
unable to work by virtue of undergoing childbirth. The Firm is legally required to do so.
2.

The only Court of Appeals decision to have confronted a similar claim rejected it.

In Johnson v. University of Iowa, the employer gave six weeks of leave to biological mothers for
“temporary disability,” and one week to adoptive parents of either sex—but no leave to biological
fathers. 431 F.3d 325, 327 (8th Cir. 2005). The court held that these policies did not violate Title

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VII or its state equivalent: “Allowing biological mothers pregnancy-related disability leave on the
same terms as employees with other disabilities is not only permissible, but is required by the
Pregnancy Discrimination Act of 1978.” Id. at 329. In other words, favoring biological mothers
(who incur disabilities) over biological fathers (who do not) with respect to disability leave is not
discrimination based on sex. Id. As for the adoption policy, it “provides exactly the same benefits
to adoptive fathers as to adoptive mothers,” and therefore “does not discriminate on the basis of
gender” either. Id. at 331. To be sure, it favors adoptive fathers over biological fathers, but that
type of discrimination—which the Eighth Circuit deemed “reasonable” given the greater “demands
on [adoptive parents’] time and finances”—does not implicate Title VII. See id.
Jones Day’s leave policies are far more generous than those in Johnson—for mothers and
fathers—but, in material terms, these cases are on all fours. Like the disability policy in Johnson,
Jones Day’s disability policy grants leave only to “biological mothers,” because only they (unlike
biological fathers) undergo childbirth. That “is not only permissible, but is required by the [PDA].”
Id. at 329. And, like the adoption policy in Johnson, Jones Day’s adoption policy provides more
leave for adoptive fathers who are primary caregivers than for biological fathers who are primary
caregivers. But that is not discrimination “on the basis of gender.” Id. at 331.
No court has called Johnson’s analysis into question. Meanwhile, the EEOC has embraced
it. In its Enforcement Guidance on Pregnancy Discrimination and Related Issues (issued in June
2015), the EEOC cites Johnson and advises that “[l]eave related to pregnancy, childbirth, or related
medical conditions can be limited to women affected by those conditions.” Ex. E, § I(C)(3). It is
only “parental leave”— “for purposes of bonding with a child and/or providing care for a child”—
that “must be provided to similarly situated men and women on the same terms.” Id. The EEOC
then gives an example (id., Example 14) of a policy that presents “No Disparate Treatment”:

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An employer offers pregnant employees up to 10 weeks of paid pregnancy-related
medical leave for pregnancy and childbirth as part of its short-term disability
insurance. The employer also offers new parents, whether male or female, six
weeks of parental leave. A male employee alleges that this policy is discriminatory
as it gives up to 16 weeks of leave to women and only six weeks of leave to men.
The employer’s policy does not violate Title VII. Women and men both receive
six weeks of parental leave, and women who give birth receive up to an additional
10 weeks of leave for recovery from pregnancy and childbirth under the short-term
disability plan.
Again, the details of Jones Day’s policies are slightly different—it offers less disability
leave to biological mothers, and more parental leave to primary caregivers regardless of sex—but
the principle is the same. Per EEOC’s enforcement guidance—which earns Skidmore deference
due to the agency’s “experience and informed judgment,” Fed. Express Corp. v. Holowecki, 552
U.S. 389, 399-400 (2008)—Jones Day’s policy “does not violate Title VII.”
B.

Plaintiffs’ Objections Lack Merit

Plaintiffs do not seriously dispute that Jones Day is entitled—indeed, required—to afford
disability leave to biological mothers. And that disability leave must be beyond any sex-neutral
family leave, or else the policies would unlawfully discriminate against women. Instead, Plaintiffs
object that the eight weeks of disability leave that Jones Day offers is not really “disability leave,”
because that period is presumed without any particularized medical review of a particular female
associate’s postpartum ability to work. Compl. ¶¶ 110-116. Plaintiffs also object that adoptive
parents who are primary caregivers obtain more paid leave than biological fathers. Compl. ¶ 117.
These arguments are without merit. They do not establish any unlawful discrimination.
1.

In their Complaint, Plaintiffs argue that the eight weeks of disability leave that the

Firm provides to biological mothers is not genuine “disability leave,” because it is afforded “to all
biological mothers without regard for how long they are disabled from performing legal work.”
Compl. ¶ 112. They admit that “some mothers are disabled from performing legal work for eight
weeks after childbirth,” but allege that “others are not.” Compl. ¶ 118. Plaintiffs’ argument thus
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ultimately turns on whether it is legitimate to presume an eight-week disability period when a birth
mother files an application for such disability leave. On Plaintiffs’ view, employers must demand
individual medical certification from all mothers before authorizing any disability leave, or else
they are discriminating against biological fathers. That contention fails.
As the Eighth Circuit has recognized, “it is not unreasonable” for an employer “to establish
a period of presumptive disability so that it does not need to review medical records for each and
every employee who gives birth.” Johnson, 431 F.3d at 329. The employer in Johnson took the
same approach; the male employee raised the same challenge; and the court squarely rejected it.
See id. After all, pregnancy is an observable condition with predictable physical consequences
that, in the ordinary course, do not require medical confirmation. And courts and doctors have
long observed that childbirth is a disabling condition that necessitates a recovery period in the
range of eight weeks. Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 731 (2003) (citing “typical
4- to 8-week period of physical disability due to pregnancy and childbirth”); Geduldig v. Aiello,
417 U.S. 484, 500 n.4 (1974) (“The usual duration of such disability [from labor and puerperium]
is approximately six to eight weeks.’” (quoting Am. Coll. of Obstetricians and Gynecologists));
Gilbert, 429 U.S. at 130 (describing trial court’s findings that “normal pregnancy” is “disabling
for a period of six to eight weeks”); Schwabenbauer v. Bd. of Educ. of City Sch. Dist. of City of
Olean, 667 F.2d 305, 314 (2d Cir. 1981) (assuming “that disability due to pregnancy, without
complications, normally extends for a period of six to eight weeks”). Even Plaintiffs do not deny
that childbirth renders women unable to work for some period. In light of that reality, presuming
an eight-week disability period from a birth mother’s application for disability leave makes the
plan less burdensome for the Firm, its administrator, its associates, and their doctors. It also avoids
unnecessary intrusion into the details of a new mother’s childbirth and the medical conditions that

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can result (e.g., excessive bleeding, post-partum depression, incontinence, severe breast pain, etc.).
In short, this is not a gender-based distinction. It is a medical distinction based on the observability
of the underlying condition and the well-documented disability it causes.
Relatedly, the identified “discrimination,” if any, is discrimination in favor of pregnant
women and against both men and women who incur other disabilities: Only the former are exempt
from medical certification and so some might obtain more disability leave than they would be able
to medically justify. But Plaintiffs do not have standing to challenge that “discrimination.”
Savignac does not claim that he was ever disabled. Nor was he ever required to provide medical
certification of a disability. It would make no difference to him—and certainly would not redress
his “injury”—if the Firm began to demand medical certification from birth mothers (or ceased
requiring it for all disabled employees). In other words, the fact that the Firm’s policy imposes a
requirement on disabled men (and many disabled women) that it does not impose on pregnant
women does not amount to discrimination against Savignac, because he has no entitlement to
disability leave in any event. (And Sheketoff’s purported standing is derivative of his. See Compl.
¶¶ 187, 198.) In Title VII’s terms, Plaintiffs are not “aggrieved” by the Firm’s disability policy,
42 U.S.C. § 2000e-5(f)(1), and therefore cannot challenge it, Thompson v. N. Am. Stainless, LP,
562 U.S. 170, 176 (2011); see also Jackson v. Deen, 959 F. Supp. 2d 1346, 1354 (S.D. Ga. 2013)
(Title VII does not confer “a cause of action to remedy … discrimination directed toward third
parties”); Bermudez v. TRC Holdings, Inc., 138 F.3d 1176, 1179-80 (7th Cir. 1998).
Moreover, even setting all of that aside, the Supreme Court has held that Title VII and the
PDA do not prohibit “preferential treatment” for pregnancy. Cal. Fed. Sav. & Loan Ass’n v.
Guerra, 479 U.S. 272, 287 (1987). In Guerra, the Court upheld a state statute that required
employers to provide up to four months of unpaid disability leave for pregnancy or childbirth, even

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if the employer did not provide analogous benefits to similarly situated men. Id. at 275-76, 27980. In doing so, the Court treated the PDA as a “floor,” not a “ceiling,” for pregnancy protections.
Id. at 285. Thus, to the extent that Jones Day’s Short Term Disability policy “discriminates” by
presuming an eight-week disability period for pregnant women while requiring other disabled
associates to prove their inability to work with medical evidence, that preference is lawful. 4
2.

Plaintiffs also contend that, because Jones Day grants 18 weeks of paid leave to

primary-caregiver adoptive parents, “biological fathers” are “the only parents who do not receive
18 weeks of paid leave when they act as primary caregivers.” Compl. ¶ 108. That is mistaken. If
a female same-sex couple has a baby and the primary caregiver is not the birth mother, she would
also receive 10 weeks of paid leave. In any event, even if Plaintiffs’ premise were correct, it still
would not be discrimination based on sex. Adoptive fathers, too, are entitled to 18 weeks of leave
if they act as primary caregiver. See Compl. Add. at 3. The “discrimination” is thus between
biological fathers and adoptive fathers—which is not proscribed. And, as Johnson observed, it is
reasonable to grant adoptive parents extra leave, as they “face demands on their time and finances
that may be significantly greater than those faced by biological parents.” 431 F.3d at 331.
*

*

*

For these reasons, Jones Day’s leave policies do not impermissibly disfavor men. They
offer generous periods of paid family leave to male and female caregivers alike, and also afford
biological mothers the short-term disability leave to which they are entitled under the PDA. There

4

Of course, if an employer prohibited women from working for a period after childbirth,
based on “archaic or stereotypical notions about pregnancy and the abilities of pregnant workers,”
that would violate Title VII by discriminating against women. Guerra, 479 U.S. at 290; see also
Gilbert, 429 U.S. at 149 n.1 (Brennan, J., dissenting) (addressing “forced maternity leave”). But
there is no allegation that Jones Day forces any female associates to apply for disability leave, or
to take all eight weeks. And men who wish to “enable their wives to prioritize their careers over
childcare” (Compl. ¶ 122) are free to take “primary caregiver” leave.
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is no support in the law for Plaintiffs’ theory that employers cannot offer a standardized, medically
reasonable period of presumptive disability leave for employees who undergo childbirth, and must
instead demand doctors’ notes certifying the intimate details of a mother’s delivery and recounting
the resulting physical and emotional consequences that render her unable to work for a period of
time. Nor should this Court adopt such a rule. Counts I-III should be dismissed.
II.

SAVIGNAC’S COMPLAINTS ABOUT JONES DAY’S LAWFUL LEAVE POLICIES WERE NOT
“PROTECTED ACTIVITY” (COUNTS VII-IX)
Plaintiffs’ next set of claims alleges that Defendants unlawfully retaliated against Savignac

for opposing practices made unlawful by Title VII, the EPA, and D.C. law. 5 Actually, Plaintiffs
suffered no adverse consequences when they asserted in August 2018 that Jones Day’s policies
were unlawful. Compl. ¶¶ 140-145. Jones Day terminated Savignac five months later, only after
his intemperate, unreasoned threat in January 2019 to wage a public relations campaign to damage
the Firm if he did not receive the extra paid leave he demanded. 6 Terminating Savignac for “the
improper manner of [his] opposition”—rather than for “the opposition itself”—is not unlawful
retaliation. Pendleton v. Rumsfeld, 628 F.2d 102, 107 (D.C. Cir. 1980).

5

Sheketoff does not allege that Defendants took any adverse action against her; rather, she
purports to assert retaliation claims based on her derivative injuries from the adverse action against
Savignac. Compl. ¶¶ 228, 236, 246. But “[s]pouses of alleged victims of discrimination are not
entitled to sue for damages under Title VII.” Curry v. Town of Islip, No. 13-cv-3597, 2017 WL
6947742, at *3 (E.D.N.Y. Dec. 8, 2017). Spouses “cannot be said to fall within the class of persons
Title VII was intended to protect.” Feng v. Sandrik, 636 F. Supp. 77, 82 (N.D. Ill. 1986); see also,
e.g., Bush v. Raymond Corp., No. 96-cv-302, 1996 WL 732558, at *2 (N.D.N.Y. Dec. 19, 1996).
They therefore do not qualify as “aggrieved” persons with standing to sue. See Thompson, 562
U.S. at 176. And the same result obtains under the DCHRA, because D.C. courts generally follow
Title VII caselaw, Howard Univ. v. Green, 652 A.2d 41, 45 (D.C. 1994); and under the EPA,
which forbids retaliation only against “employee[s]” themselves, 29 U.S.C. § 215(a)(3). For that
reason, Sheketoff’s retaliation claims should be dismissed. In any event, because Sheketoff’s
claims are derivative of Savignac’s, they also fall for the same reasons as his.
6

Notably, Savignac did not request in that email that the Firm change its policy. He made
an extortionate demand for paid leave for himself, suggesting he would drop any challenge to the
Firm’s policies if he was paid off for his silence. See Compl. ¶ 146.
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More importantly for current purposes, Savignac’s retaliation claims also fail as a matter
of law. The anti-retaliation provisions protect only objectively reasonable complaints of unlawful
activity. No reasonable lawyer in Savignac’s position could have believed that Jones Day’s sexneutral policies—perfectly consistent with on-point appellate precedent and EEOC guidance, and
in fact compelled by the PDA—constituted unlawful discrimination.
A.

Complaining about an unlawful employment practice constitutes protected activity

that triggers the protections of anti-retaliation provisions under Title VII, the EPA, and D.C. law.
“[O]pposition activity” may also garner protection “even though the employer’s practices do not
amount to a violation of Title VII.” Grosdidier v. Broad. Bd. of Govs., 709 F.3d 19, 24 (D.C. Cir.
2013). In those circumstances, however, the employee “must have a good faith and reasonable
belief that the practices are unlawful.” Id. (emphasis added).
“Not all complaints are protected under this framework.” Id. In King v. Jackson, the D.C.
Circuit affirmed the dismissal of a retaliation claim by an employee who had complained about
the cessation of an affirmative action plan. 487 F.3d 970, 973 (D.C. Cir. 2007). The court held
that “failure to renew an affirmative action plan” is not an “unlawful employment practice” under
Title VII—even if it violates other parts of the statute—and that it was “unreasonable” to believe
otherwise. Id. Since the law was “unambiguous,” not “unsettled,” the complaint was unprotected.
Id. In George v. Leavitt, the Court of Appeals likewise rejected a retaliation claim because the
plaintiff’s complaints—about “insulting and demeaning statements,” including telling her to “go
back to Trinidad”—were “isolated incidents” that “could not reasonably be thought to constitute ...
[a] violation of Title VII.” 407 F.3d 405, 408, 417 (D.C. Cir. 2005). 7

7

D.C. law is the same on this point. See Fowler v. Dist. of Columbia, 404 F. Supp. 2d 206,
210 (D.D.C. 2005). And EPA retaliation claims are governed by the same rule. See Sloan v. Am.
Brain Tumor Ass’n, 901 F.3d 891, 895 (7th Cir. 2018) (requiring “objectively reasonable” belief
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“The objective reasonableness of an employee’s belief that her employer has engaged in
an unlawful employment practice must be measured against existing substantive law.” Clover v.
Total Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th Cir. 1999). And, at least where the underlying
dispute is purely legal, so is the question of objective reasonableness. Cf. Pitt v. Dist. of Columbia,
491 F.3d 494, 509-10 (D.C. Cir. 2007) (describing “whether an objectively reasonable officer
would have believed his conduct to be lawful” as “question of law”).
Evaluating the objective reasonableness of an employee’s belief requires an assessment of his
“legal sophistication.” Iannone v. Frederic R. Harris, Inc., 941 F. Supp. 403, 410 (S.D.N.Y. 1996).
Specifically, “an attorney ... will be held to a higher standard of expertise about Title VII than a
layperson.” Id. Thus, in Volberg v. Pataki, the court dismissed a retaliation claim on the papers
because the plaintiff was a lawyer and “a reasonable attorney in plaintiff’s position would not have
believed that defendants’ proposed downsizing violated the law,” in light of statutory and judicial
authority insulating bona fide seniority systems from Title VII attack. 917 F. Supp. 909, 914-16
(N.D.N.Y. 1996); see also Barcher v. N.Y. Univ. Sch. of Law, 993 F. Supp. 177, 185 (S.D.N.Y. 1998)
(“[N]o reasonable person, much less an attorney, could have had a reasonable belief that she had a
[v]alid Title VII claim.”); Amos v. Hous. Auth. of Birmingham Dist., 927 F. Supp. 416, 422 (N.D. Ala.
1996) (rejecting retaliation claim by plaintiff “trained to defend EEOC charges” because her
underlying complaint of unlawful activity had “no logical basis”); Risley v. Fordham Univ., No. 99
Civ. 9304, 2001 WL 118566, at *7 (S.D.N.Y. Feb. 13, 2001) (finding that, because plaintiff had “the
assistance of an attorney,” his assertion of unlawful conduct was “even less reasonable”) .

of unlawful conduct); Burnette v. Northside Hosp., 342 F. Supp. 2d 1128, 1134 (N.D. Ga. 2004)
(“As under Title VII and other employment discrimination statutes, the complaining employee
must have an objectively reasonable, good-faith belief that the employer’s conduct is
unlawful[.]”); see also Spiteri v. AT&T Holdings, Inc., 40 F. Supp. 3d 869, 876 (E.D. Mich. 2014)
(same).
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B.

Savignac’s 2019 complaint was objectively unreasonable and thus not protected by

the applicable statutes. Savignac is a highly educated lawyer who alleges that he was poised for
partnership in a major law firm. Compl. ¶¶ 36, 55. No reasonable lawyer, much less one with
Savignac’s background, could believe, in light of the sex-neutral terms of Jones Day’s parental
leave policies, that those policies facially discriminate based on sex. No reasonable lawyer could
believe, in view of the PDA, that offering short-term disability leave to women who undergo
childbirth is anything other than legally required. No reasonable lawyer could believe, given the
EEOC guidance, that offering disability leave in addition to sex-neutral parental leave is unlawful.
No reasonable lawyer could believe, after having been pointed to the only appellate precedent on
point, that it is forbidden to presume an eight-week disability period when a birth mother applies
for leave. No reasonable lawyer could believe, given basic standing principles, that the remedy
for such a presumption, even if it were unlawful, would be to give non-disabled men eight weeks
of disability leave. No reasonable lawyer could believe, in view of Guerra, that Title VII forbids
a disability plan’s preferential treatment for pregnant women. And no reasonable lawyer could
believe, under the statutory text and on-point precedent, that a birth parent is entitled to the same
leave as an adoptive parent. Indeed, at no point did Savignac identify any authority supporting his
claims, even after Jones Day identified its own. This is not a case where the law is “unsettled.”
King, 487 F.3d at 973. Instead, Savignac “could not have had a good faith, reasonable belief that
the underlying challenged actions of the employer violated the law.” Volberg, 917 F. Supp. at 916.
Plaintiffs are, undoubtedly, clever and creative lawyers with aspirational views of the law.
And the Court need not go so far as to deem their challenge “frivolous” in the sanctionable sense.
Crawford-El v. Britton, 523 U.S. 574, 600 (1998). Rule 11 protects arguments “for the extension,
modification or reversal of existing law.” Rafferty v. Nynex Corp., 60 F.3d 844, 852 (D.C. Cir.

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1995). That is evidently what Plaintiffs are trying to effectuate. Under the applicable retaliation
provisions, however, their complaints constitute protected activity only if it was reasonable to
believe that the Jones Day leave policies were unlawful—not that they should be unlawful. The
former belief clearly was not reasonable, and Plaintiffs therefore cannot invoke these retaliation
provisions to avoid the adverse consequences of their law-reform project. 8
III.

AS THE COMPLAINT ITSELF ADMITS, SAVIGNAC WAS NOT TERMINATED FOR TAKING
OR REQUESTING FMLA LEAVE (COUNTS X-XI)
In Counts X and XI, Savignac claims that the Firm “interfered” with his protected family

leave “by terminating his employment while he was on leave.” Compl. ¶¶ 251, 256. But he has
not pleaded an “interference” claim under either the FMLA or its D.C. equivalent. Savignac does
not allege that Jones Day fired him because he requested or took leave guaranteed by the FMLA.
In fact, Savignac claims the Firm fired him for other reasons—namely, for his email demanding
paid leave beyond the FMLA’s guarantees. Compl. ¶¶ 10, 153. That defeats his claims. Simply
being on family leave does not immunize an employee from termination for other reasons.
A.

“To state an FMLA interference claim, a plaintiff must allege facts sufficient to

show... that (1) he was entitled to take [FMLA] leave . . ., (2) he gave his employer adequate notice
of his intention to take leave and (3) his employer denied or otherwise interfered with his right to
take leave.” Hodges v. Dist. of Columbia, 959 F. Supp. 2d 148, 155 (D.D.C. 2013); see also
Thomas v. Dist. of Columbia, 227 F. Supp. 3d 88, 98 (D.D.C. 2016) (claims under the D.C. FMLA
are analyzed “under th[is] same legal framework”); 29 U.S.C. § 2615(a)(1).
But “the right to non-interference with [FMLA] leave is not absolute.” Arban v. W. Pub’g
Corp., 345 F.3d 390, 401 (6th Cir. 2003). In particular, “the FMLA does not provide employees
8

Whatever the merits (or lack thereof) of Plaintiffs’ policy arguments, they are misdirected.
The regime they seek—to deprive birth mothers of disability pay so as to ensure that mothers and
fathers spend exactly equal time with their babies—requires legislative action.
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with a right against termination for a reason other than interference with rights under the FMLA.”
Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 403 (3d Cir. 2007) (emphasis added).
Federal courts (including this one) have thus uniformly held that an employee has no FMLA claim
if he is terminated “for a reason unrelated to his intention to exercise his rights under the FMLA.”
Id.; see, e.g., Throneberry v. McGehee Desha County Hosp., 403 F.3d 972, 977 (8th Cir. 2005)
(“The FMLA simply does not force an employer to retain an employee on FMLA leave when the
employer would not have retained the employee had the employee not been on FMLA leave”);
Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 961 (10th Cir. 2002) (same); Thomas,
227 F. Supp. 3d at 110 (recognizing that FMLA claim cannot succeed where “the employee would
have been terminated regardless of the request for FMLA leave”).
In short, if Savignac alleges that his termination was not related to his request for, or taking
of, unpaid FMLA leave, he has not stated a claim that the Firm interfered with his FMLA rights—
and his claims fail “as a matter of law.” Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 877-78 (10th
Cir. 2004); see also Diffee, 298 F.3d at 961.
B.

That is precisely what Savignac alleges. By his own account, he was not terminated

for a “request for or taking of FMLA leave.” Diffee, 298 F.3d at 961. Instead, he alleges that he
was fired because he demanded that Jones Day grant him additional paid leave beyond anything
he would have been entitled to under the FMLA. See Compl. ¶ 10 (“Jones Day fired Mark because
of the January 16 email”); id. ¶ 153 (same).
Importantly, Savignac does not contend that his email requested any substantive right to
which he is entitled under the FMLA, or that Jones Day’s policies fall short of FMLA obligations.
After all, he demanded eighteen weeks of paid leave (Compl. ¶ 146)—and the FMLA “does not
require employers to provide paid leave.” Chubb v. City of Omaha, 424 F.3d 831, 833 (8th Cir.

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2005); see also Becknell v. Univ. of Ky., 383 F. Supp. 3d 743, 757 (E.D. Ky. 2019); Daye v. Potter,
380 F. Supp. 2d 718, 722 (M.D.N.C. 2005) (plaintiff “was not entitled to paid leave under the
FMLA”); 29 U.S.C. § 2612(a)(1)(A), (c); D.C. Code § 32-502(a)(1), (e)(1). Jones Day’s policies
entitled Savignac, if he served as primary caregiver, to 10 weeks of paid leave plus six weeks of
unpaid leave, which is fully compliant with the federal and D.C. laws. See 29 U.S.C. § 2612(d)(1)
(allowing paid leave to be supplemented with unpaid leave); D.C. Code § 32-502(e)(2).
Accordingly, judged by his own Complaint, there is no plausible inference that Savignac
was terminated for requesting or exercising his FMLA leave rights. These claims must therefore
also be dismissed as a matter of law.
IV.

SHEKETOFF HAS NOT ALLEGED PLAUSIBLE DISCRIMINATION CLAIMS (COUNTS IV-VI)
In Counts IV-VI, Plaintiff Sheketoff presses an unrelated set of claims, alleging that one

male partner gave her a bad review because she is a woman. Sheketoff claims this review caused
her annual compensation—which was set at $440,000 on July 1, 2017, and $525,000 on July 1,
2018—to be lower than it otherwise would have been. She asserts sex discrimination claims under
Title VII, the EPA, and the D.C. Human Rights Act (DCHRA).
A.

To start, the Title VII claim (Count IV) is time-barred. “An individual seeking to

challenge an unlawful employment practice under Title VII must file a charge with the EEOC
within 180 days ‘after the alleged unlawful employment practice occurred.’” Ashraf-Hassan v.
Embassy of France in U.S., 878 F. Supp. 2d 164, 170 (D.D.C. 2012) (quoting 42 U.S.C. § 2000e–
5(e)(1)). Sheketoff voluntarily left Jones Day in August 2018. Compl. ¶ 210. Even assuming that
each of Sheketoff’s paychecks until her departure constituted a separate discriminatory act, the last
such act occurred no later than August 2018. Yet Sheketoff did not file her sex-discrimination
charge with the EEOC until June 18, 2019. Compl. ¶ 22. Because that is a gap of well over 180
days, Count IV must be dismissed. See Ashraf-Hassan, 878 F. Supp. 2d at 171.
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B.

The DCHRA claim (Count VI) also fails. 9 To state a claim for disparate treatment,

a plaintiff must show “that (1) she is a member of a protected class, (2) she suffered an adverse
employment action, and (3) the unfavorable action gives rise to an inference of discrimination, that
is, an inference that her employer took the action because of her membership in the protected
class.” Brown v. Dist. of Columbia, 919 F. Supp. 2d 105, 115 (D.D.C. 2013) (emphasis added).
If a plaintiff does not allege “sufficient facts giving rise to an inference of discrimination,” her
claim must be dismissed. Easaw v. Newport, 253 F. Supp. 3d 22, 29-31 (D.D.C. 2017).
Sheketoff is a woman, and she alleges an “adverse employment action”—specifically, “a
disingenuous, severely negative performance evaluation” that allegedly caused her to receive a
raise to a salary of only “$440,000.” Compl. ¶¶ 85, 89. Sheketoff has not, however, alleged
sufficient facts to create a plausible inference that the review (or the allegedly resulting pay
decision) was the result of discrimination. “A sheer possibility” that the review was based on sex
“is insufficient to withstand a Rule 12(b)(6) challenge.” Johnson v. Angels, 125 F. Supp. 3d 562,
567 (M.D.N.C. 2015). Sheketoff’s allegations go no further than that.
It makes sense to start with the incident Sheketoff says led to the review. Sheketoff claims
that, in an email, Partner A “scold[ed]” her for changes she made to a memo and for not being
deferential to him. Compl. ¶ 78. But the email was not scolding and did not accuse her of being
insufficiently deferential. The email, which was professional in tone, simply stated that she should
not spend time making stylistic edits to a senior lawyer’s work and should not reverse changes that
the lead lawyer makes to a memo. The exchange that followed that initial email confirmed that
Partner A was not chiding Sheketoff for any lack of acquiescence. He praised her work, saying
she “undoubtedly made the memo much better.” Ex. B at 1. His “point” was just that Sheketoff

9

This is also an independent ground for dismissal of the Title VII claim.
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should be “cognizant of time, and changing something back to the way you had it (after someone
else took the time to change it) is not efficient.” Id. Partner A was thus focused on working
efficiently, not chastising Sheketoff for any failure of deference. The exchange demonstrates that
Sheketoff was actually the one who raised the specter of “undermin[ing] our hierarchy.” Id.
Partner A’s subsequent review also contradicts Sheketoff’s allegations. Sheketoff claims
that Partner A’s “severely negative” review attacked her for “being insufficiently deferential to
him.” Compl. ¶ 85. But the review—which actually gave Sheketoff acceptable or above-average
ratings (“3” or “4” out of 5 on every metric) and praised certain aspects of her work—says nothing,
explicitly or implicitly, about lack of deference. Ex. C. Rather, it shows that Partner A’s critique
was focused entirely on other aspects of Sheketoff’s performance, including: (1) that “her initial
drafts [of the memo] were far more academic / pure legal analysis than helpful advice”; (2) that
she “exhibit[ed] little-to-no initiative”; and (3) that “her availability seems to be whatever is
convenient for her.” Id. Sheketoff thus has alleged no link between the (imagined) criticism she
speculates was rooted in sexism (that she was “insufficiently deferential”) and the actual review.
And, notably, Sheketoff does not allege that the critiques actually contained in the review
are false or unwarranted. Cf. Faison v. Dist. of Columbia, 664 F. Supp. 2d 59, 68 (D.D.C. 2009)
(noting that “false reason” for adverse action could be suggestive of pretext and discrimination).
Indeed, Sheketoff’s assessment statement—which she does not challenge, other than based on its
reliance on Partner A’s review—recounts multiple examples of the same or related performance
criticisms coming from different reviewers. See Ex. D. Although “an employment discrimination
plaintiff need not anticipate legitimate, non-discriminatory reasons that may be proffered by the
employer for the adverse employment action nor allege pretext to survive a motion to dismiss,” it
is also true that when a complaint “contains fulsome factual context for the challenged adverse

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employment action, those allegations must be considered collectively in evaluating the
reasonableness and plausibility of the inferences urged by the plaintiff.” Townsend v. United
States, 236 F. Supp. 3d 280, 298 (D.D.C. 2017). Here, the review and assessment statement—
both incorporated by reference into the Complaint—“provided multiple details” about Partner A’s
“proffered rationale” for his review and the Firm’s “proffered rationale” for its pay determination.
Id. at 301. Sheketoff does not deny those rationales or plausibly assert them to be pretextual. That
is enough—at least in the absence of any other facts suggesting sex-based animus—to defeat any
reasonable inference of discriminatory motive.
And Sheketoff offers no facts suggesting sex-based animus. She does not allege that
Partner A “made any discriminatory comments about [her] or engaged in any overt discriminatory
conduct toward” her. Gupta v. Oklahoma City Pub. Sch., No. CIV-18-317-G, 2019 WL 896295,
at *4 (W.D. Okla. Feb. 22, 2019) (dismissing complaint). Instead, she alleges only that Partner A
was not as “fraternal and ingratiating” toward her as with male associates at lunch, and that Partner
A “deferred to [Savignac] on both substance and style.” Compl. ¶¶ 72, 82-84. These points are
not nearly enough to raise a plausible inference that Partner A’s criticisms were discriminatory.
First, the allegation that Partner A was not as “ingratiating” or “self-deprecating” toward
Sheketoff as he was toward men does not raise an inference of discrimination. Sheketoff does not
allege that Partner A treated women generally less favorably than men—only that he treated her
less favorably. Compl, ¶ 72 (“Partner A’s manner toward Julia was different from the manner he
adopts toward similarly situated male associates.”). There could be any number of reasons Partner
A treated Sheketoff differently, including that—as he explicitly indicated—he was unhappy with
aspects of her performance. See Macon v. J.C. Penney Co., 17 F. Supp. 3d 695, 698 (N.D. Ohio
2014) (“While Macon alleges she was treated differently from other terminated JCPenney

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employees, she offers no factual allegations to support the discriminatory inference she draws from
this different treatment.”). This observation alone cannot “allow[] the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
Moreover, Partner A’s alleged manner toward associates in the “cafeteria” (Compl. ¶ 83)
is too attenuated from the context of a performance review to support the inference that his review
of Sheketoff was discriminatory. Even if a supervisor is friendlier socially with men, that does not
reasonably imply that his professional reviews of women would be discriminatory. Rumble v.
Convergys, No. C-1-07-979, 2010 WL 812775, at *8 (S.D. Ohio Mar. 9, 2010) (“[A] plaintiff’s
opinion that a supervisor is friendlier and less critical of male employees does not evidence sex
discrimination.”); Taylor v. Union Inst., 30 F. App’x 443, 450-51 (6th Cir. 2002) (“[G]eneralized
allegations about the comparative warmth with which a few individuals treat non-minorities are
not sufficient to raise a genuine issue of fact regarding [defendant’s] discriminatory intent.”).
Second, the allegation that Partner A “deferred” to Savignac does not permit the Court to
make the “unsupported and unreasonable inferenc[e]” that his differing treatment of Savignac and
Sheketoff was based on sex discrimination. Thomas v. City Coll. of S.F., No. 15-CV-05504, 2016
WL 6393508, at *1 (N.D. Cal. Oct. 28, 2016). While a plaintiff can allege discrimination by
showing “that the employer treated other employees of a different [sex] … more favorably in the
same factual circumstances,” the more-favored employees must have been “similarly situated.”
Burley v. Nat’l Passenger Rail Corp., 801 F.3d 290, 301 (D.C. Cir. 2015). That means showing
that “all of the relevant aspects of her employment situation were nearly identical to those of the
male employee.” Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999). Sheketoff has not alleged
that she was similarly situated to Savignac. In particular, Plaintiffs do not allege that Savignac’s
performance was criticized in the ways Sheketoff’s was. They do not allege, for instance, that his

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drafts were too academic or that he was often unavailable. See Burley, 801 F.3d at 302 (finding
no discrimination, in part, because plaintiff was “unable to demonstrate either that other white
employees were found to have committed offenses of comparable seriousness”). In fact, they
allege the opposite: “Mark’s performance evaluations and consensus statement were very positive,
reflecting his excellent performance for numerous partners across a range of cases.” Compl. ¶ 44.
Sheketoff makes no analogous allegation about her own evaluations or assessment statements,
even apart from Partner A’s review. And while the Complaint boasts about Savignac’s billable
hours and how they prove his “commitment to Jones Day and its clients” (Compl. ¶ 49), it tellingly
alleges nothing comparable about Sheketoff’s hours or commitment. Cf. Ex. D (reporting 1066
client billable hours, and 461 pro bono hours, for Sheketoff in 2016).
Moreover, while Plaintiffs allege that Savignac worked with Partner A, they do not allege
that Partner A ever reviewed Savignac’s performance. (He did not. See Compl. ¶ 46.) Savignac
is thus, by definition, not similarly situated to Sheketoff. See Burley, 801 F.3d at 302 (finding no
discrimination, in part, because plaintiff was “unable to demonstrate … that [white employees]
were differently disciplined by the same supervisors who disciplined” plaintiff).
Beyond those factual allegations, Sheketoff baldly asserts that had a man done work similar
to her, Partner A would have given that male associate a positive review. See Compl. ¶ 87. But
“[m]ere personal beliefs, conjecture and speculation are insufficient to support an inference of ...
discrimination.” McBride v. Mass. Comm’n Against Discrimination, 677 F. Supp. 2d 357, 362 (D.
Mass. 2009); see also Wienke v. Haworth, Inc., No. 92-1021, 1993 WL 6830, at *4 (6th Cir. 1993)
(“The allegation that Wienke would not have been fired if she had been male is, of course,
conclusory and plainly insufficient to raise a triable issue of pretext.”).

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At bottom, Sheketoff has alleged only that Partner A criticized her performance on grounds
she does not allege to be false, whereas he seemed happy with Savignac’s work and was chummier
with male associates at lunch than with her. That does not “permit the court to infer more than the
mere possibility of misconduct.” Iqbal, 556 U.S. at 679. Sheketoff’s sex discrimination claims
do not deserve to proceed to discovery, and must be dismissed on the papers.
C.

Finally, Sheketoff’s EPA claim (Count V) also fails for much the same reason. The

EPA forbids employers to “discriminate … on the basis of sex by paying wages to employees …
at a rate less than the rate at which [they] pay[] wages to [similarly situated] employees of the
opposite sex.” 29 U.S.C. § 206(d)(1). But the Act allows such differentials where “such payment
is made pursuant to … a differential based on any other factor other than sex.” Id. Sheketoff has
pleaded that defense for Jones Day: She alleges that her pay disparity is attributable exclusively to
Partner A’s review. Compl. ¶ 212. Yet, as just discussed, she does not allege facts that plausibly
suggest that Partner A’s review was motivated by discriminatory animus. Thus, on Sheketoff’s
own allegations, her disparate pay was based “on a factor other than sex”—her reviews.
In addition, the EPA claim also fails because Sheketoff does not identify a male comparator
who earned more than she did for “equal work.” To state a plausible EPA claim, it is not enough
for a plaintiff to allege simply that she was paid less than men. Frasier v. Gen. Elec. Co., 930 F.2d
1004, 1007-08 (2d Cir. 1991). “Bald allegations that male employees were paid more than female
employees … will not survive a motion to dismiss.” Suzuki v. State Univ. of N.Y. Coll., No. 08cv-4569, 2013 WL 2898135, at *4 (E.D.N.Y. June 13, 2013). 10 Instead, a plaintiff must allege

10

See also Banawis-Olila v. World Courier Ground, Inc., No. 16-cv-982, 2016 WL
4070133, at *3 (N.D. Cal. July 29, 2016); Muldrew v. Joseph McCormick Constr. Co., Civ. No.
14-27, 2014 WL 3890336, at *7 (W.D. Pa. Aug. 8, 2014); Sherrod v. Prairie View A & M Univ.,
Civ. No. H-10-1858, 2011 WL 843936, at *9 (S.D. Tex. Mar. 8, 2011).
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facts making it plausible that the employer paid a man more for “work ‘virtually identical’ (or the
apparent synonym, ‘substantially equal’) to the plaintiff’s.” Spencer v. Va. State Univ., 919 F.3d
199, 203-04 (4th Cir. 2019). Alleging equal work “is a demanding threshold requirement,” id. at
203, “typically shown by comparison to a specific male comparator, which must be pled with
specificity,” Spencer v. Va. State Univ., 224 F. Supp. 3d 449, 456 (E.D. Va. 2016). When a
plaintiff does not “offer a male counterpart with a higher salary,” courts routinely dismiss. Bass
v. World Wrestling Fed. Ent’t, Inc., 129 F. Supp. 2d 491, 503 (E.D.N.Y. 2001). 11
Here, Plaintiffs—who know full well what Savignac, who was in the same practice group,
was earning at Jones Day—fail to identify any male associate who performed “equal” work yet
was paid more than her in 2017-2018. 12 Instead, she alleges, “on information and belief,” that her
salaries in those years were “below the salaries of male Issues & Appeals associates whose salaries
had been the same as Julia’s prior to 2017.” Compl. ¶ 95. That is nothing more than a “formulaic
recitation of the elements of an unequal pay claim.” Hughes v. Xerox Corp., 37 F. Supp. 3d 629,
645 (W.D.N.Y. 2014). “[C]ourts routinely dismiss EPA claims pled in this formulaic fashion.”
Lehman v. Bergmann Assocs., Inc., 11 F. Supp. 3d 408, 420 (W.D.N.Y. 2014).
Moreover, because she fails to identify a male comparator, Sheketoff necessarily also fails
to allege that she performed “equal work” as him. Instead, she implies that every associate in the
Issues & Appeals practice performs the same work. See Compl. ¶ 211. Courts have rejected that
premise on the pleadings. Port Auth., 768 F.3d at 257 (rejecting claim that “all lawyers perform

11

See also, e.g., Alexander v. Marriott Int’l, Inc., No. 09-cv-2402, 2011 WL 1231029, at
*5 (D. Md. Mar. 29, 2011) (dismissing due to “improper comparator”); EEOC v. Port Auth. of
N.Y. & N.J., 768 F.3d 247, 255-59 (2d Cir. 2014) (dismissing where comparators appeared
“random”); cf. Barrett v. Forest Labs., Inc., 39 F. Supp. 3d 407, 439, 452 (S.D.N.Y. 2014) (denying
motion to dismiss as to ten plaintiffs who each alleged “an identified male comparator”).
12

The reason is obvious: Sheketoff was earning more than her husband.
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the same or similar function[s]” and noting that such a “generalization” would “permit lawsuits
against any law firm ... that does not employ a lockstep pay model”). Particularly in the context
of a law firm, where work must be judged both by quality (reviews) and by quantity (hours), it is
telling that Sheketoff (unlike Savignac) does not allege anything about the strength of her reviews
(other than Partner A’s) or the number of hours she billed. Without alleging those facts about her
work, and how they compare to male comparators, Sheketoff has not pleaded an EPA claim.
CONCLUSION
For these reasons, the Court should dismiss Plaintiffs’ Complaint.

September 27, 2019

Respectfully submitted,
/s/ Traci Lovitt
Traci Lovitt (Bar No. 467222)
Terri L. Chase (pro hac vice)
JONES DAY
250 Vesey Street
New York, NY 10281
Phone: (212) 326-3939
Anderson T. Bailey (pro hac vice)
JONES DAY
500 Grant Street
Pittsburgh, PA 15219
Phone: (412) 391-3939
Mary Ellen Powers (Bar No. 334045)
JONES DAY
51 Louisiana Avenue NW
Washington, DC 20001
Phone: (202) 879-3939
Attorneys for Defendants

29