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New York Judge Rules Can’t Sue For Age Discrimination
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A grand decision for Holland & Knight in a long-running dispute over its termination of a former partner may make it harder for the other law firm partners to sue over the allegedly unfair treatment, at least in the Empire States.

John Weir has been fighting his former firm since 2002, when he was expelled from the partnership at the age 55, over what the firm says was a disagreement about the direction of it’s and employment practice, according to all of the court papers. Weir, who started being the so-called New Holland & Knight after the firm had merged with Haight Gardner Poor & Havens in 1997, at one point led the firm’s labor and employment group in New York.

  
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Weir initially sued the Holland & Knight in 2005 in Manhattan federal district court, saying that the firm had let him go because of his age and because the firm didn’t want to have to pay the retirement benefits he says that he was entitled to under its ERISA plan. After the judge hearing the case dismissed his claims in 2007 on the statue-of-limitations grounds, Weir changed his complaint and sued Holland & Knight in New York state court.

New York Supreme Court Justice Marcy Friedman ruled on summary judgement in a report on December 9, dismissing Weir’s entire complaint, which included claims of age discrimination and retaliation, breach of the fiduciary duties, breach of the contract, and a fraudulent inducement.

In tossing around Weir’s discrimination claims, Friedman relied in part on a six-part test established in a U.S. Supreme Court case, Clackamas Gastroenterology Associates v. Wells, that it was the first that was used to determine whether a shareholder in a professional corporation can be considered an employee under the Americans with Disabilities Act. This decision has since then been applied by the courts outside of the context of the ADA.

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Friedman has said that Weir did not pass the Clackamas test, nor did he ”submit any evidence to show that he was not a bona fide partner” with some degree of control over the firm to try and win over.

As the law firms continue to grow to include what, in some instances, are hundreds of partners, the line between partner and employee has grown increasingly blurry, says Robert Hillman, who is a professor at the University of California, Davis School of Law and an expert on partnership.



”This case reminds us that there’s an issue here, and it affects a lot of law firms,” says Hillman, also adding the facts that are related to an individual dispute often determine just how a given partner can be so incredibly influential with in their own firm or office.



 

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