Duane Morris Class Action Review - 2023 - Report - Page 161
violation of the ADA. The EEOC filed a motion for Rule 37(b) sanctions, and the court
denied the motion. The defendant previously requested, on recommendation from
Lescault’s psychologist Dr. Bursztajn, that the court order that no video or audio
recording of the defendant’s examination of Lescault be permitted, that Lescault must
be alone with no interruptions, and that the examination must be conducted outside of
the presence of the attorneys for the parties. Id. at *2. The EEOC did not object to these
requirements and the court granted the request. Dr. Bursztajn thereafter finalized the
examination, and asked one of his assistants to transcribe Lescault’s answers during
the process. Dr. Bursztajn did not interpret the court’s order on “limited attendees” as
barring him from relying on an off-screen transcriptionist listening to the audio feed to
transcribe answers. The EEOC argued that the entry into the room of an assistant to
help Dr. Bursztajn with computer issues and the off-camera presence in the room of the
transcriptionist listening to the audio feed to record the true/false answers constituted
two clear violations of the court's “unambiguous” order that “attendees at the
examination are limited to Mr. Lescault and Dr. Bursztajn.” Id. at *11. The EEOC
contended that the defendant should be sanctioned by exclusion of both the
examination report and all testimony based on the examination. Id. The court ruled that
Dr. Bursztajn acted consistently with his reasonable interpretation of the court's order,
as well as with his professional opinion regarding best practice for performing the courtordered examination, and particularly for ensuring the accuracy of the subject's test
answers. Id. at *12. The court noted that there could have been some confusion as to its
order, and that any confusion could be addressed through testimony at trial. For these
reasons, the court denied the EEOC’s motion for sanctions.
EEOC v. Activision Blizzard, Inc., 2022 U.S. Dist. LEXIS 108166 (C.D. Cal. June 3,
2022), represented in many ways the most unusual procedural decision of 2022. The
Commission filed an action alleging that the defendant subjected female employees to
discrimination on the basis of their gender in violation of Title VII. The parties ultimately
settled the matter, and the court approved the settlement and granted entry of a consent
decree. The California Department of Fair Employment and Housing (DFEH)
subsequently moved to intervene for the purposes of appeal. The court previously
denied the DFEH’s motion to intervene in the case for broader purposes. The DFEH did
not argue that the standard for intervention on appeal is different from the standard for
intervention prior to judgment or that the DFEH somehow has a greater interest in the
case on appeal for Rule 24 purposes than it had prior to judgment. Id. at *1-2. Instead,
the DFEH argued that it should be allowed to intervene on appeal because the EEOC
“lacks authority over the claims in the case,” “failed to comply with mandatory pre-suit
conditions” under Title VII, and “failed to defer to DFEH's statutory rights” under
California law. Id. at *2. The court found that there were no new arguments regarding
reasons to permit intervention. For these reasons, the court denied the DFEH’s motion
to intervene.
In EEOC v. George Washington University, 2022 U.S. Dist. LEXIS 157848 (D.D.C.
Sept. 1, 2022), the Commission filed an action on behalf of charging party Sara
Williams, a former athletics department executive assistant, alleging that the defendant
failed to promote her and gave her only menial jobs due to her sex in violation of Title
VII. The EEOC filed a motion to compel the defendant to produce documents relating to
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Duane Morris Class Action Review – 2023
