Week 6: The Importance of Civil and Criminal Procedure Section 8: Motions

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1 Example of a Housekeeping Motion IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION Kirstin Mailman, Plaintiff, v. Case No. 4:11CV1012 RWS Accenture, Defendant. PLAINTIFF S MOTION TO AMEND THE SIGNATURE BLOCK OF THE COMPLAINT Comes now the Plaintiff, and respectfully submits this Motion to Amend the Signature Block of the Complaint filed January 28, The signature block of that filing incorrectly spelled the name of Plaintiff s attorney as Kooby, whereas the correct spelling is Koby. Dated: February 2, 2011 Respectfully submitted, Falcone & Brockston By: Michael H. Koby, Esq. Federal Bar Number Central Ave., Suite 210 St. Louis, MO ( Attorneys for Plaintiff

2 CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of Plaintiff s Motion to Amend the Signature Block of the Complaint was delivered via facsimile and hand delivery this the 2nd day of February, 2011 to: Amy Marks, Esq. Battle & Boothby 1264 Brentwood Drive St. Louis, MO ( Falcone & Brockston By: Michael H. Koby, Esq. Federal Bar Number Central Ave., Suite 210 St. Louis, MO ( Attorneys for Plaintiff

3 United States Code Annotated Federal Rules of Civil Procedure for the United States District Courts Title II. Commencing an Action; Service of Process, Pleadings, Motions, and Orders Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing (a Time to Serve a Responsive Pleading. (1 In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows: (A A defendant must serve an answer: (i within 21 days after being served with the summons and complaint;*** (b How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:*** (6 failure to state a claim upon which relief can be granted;*** Rule 56. Summary Judgment (a Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense-- on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion. (b Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after

4 the close of all discovery.***

5 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION Kirstin Mailman, Plaintiff, v. Case No. 4:011CV1012 RWS Accenture, Defendant. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Plaintiff, Kirstin Mailman, by her attorney, Michael H. Koby, asks the Court to grant Plaintiff's Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the ground that there is no genuine issue as to any material fact. Under the mixed-motive analysis of Price Waterhouse v. Hopkins, 490 U.S. 228 ( and the Civil Rights Act of 1991, Defendant Accenture unlawfully discriminated against Plaintiff. Plaintiff's Motion for Summary Judgment should be granted. 1 Plaintiff admits there were legitimate reasons which may have factored into Defendant's decision not to hire Plaintiff, including that Plaintiff's lack of a grade point average at the Washington University Olin Business School was necessarily lower than that of Neil Eckhart, the candidate who received the position, at the University of Michigan Ross School of Business, and that Plaintiff, unlike Eckhart, was not doing research for an esteemed professor during her first semester of the MBA program. Plaintiff does not allege that discrimination was the sole factor in Defendant's employment decision; therefore, as both parties have stipulated, the pretext standard enunciated in McDonnell Douglas v. Green, 411 U.S. 792 (1973, is inapplicable to this case.

6 Dated: February 16, 2011 Respectfully submitted, Falcone & Brockston By: Michael H. Koby, Esq. Federal Bar Number Central Ave., Suite 210 St. Louis, MO ( Attorneys for Plaintiff

7 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION Kirstin Mailman, Plaintiff, v. Case No. 4:11CV1012 RWS Accenture, Defendant. AFFIDAVIT IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Kirstin Mailman, being duly sworn, deposes and says: 1. I am the named plaintiff in this action. In addition, I am currently a student in the two-year Master of Business Administration (MBA program at the Washington University Olin Business School. I make this affidavit in support of my Motion for Summary Judgment. 2. After graduating from Skidmore College in 2002 with a Bachelor of Arts in Psychology and Women s Studies, I worked for a year as a night manager at a non-profit child welfare agency. Following that, I worked for USIS/Altegrity; first as an Investigator, then as a District Manager, and finally I was promoted to Senior Investigator. In 2009, I left USIS/Altegrity to start my own company, Security Investigations, which specializes in conducting security and background investigations for federal agencies. 3. In my MBA program, I was not ranked because of the pass/fail policy of the school. The program began in August of 2009, so the first year was already over at the time of my

8 interview with Accenture. In addition to my school work, I have spent significant time volunteering with a local church and serving on the advisory board of a local choir. 4. I am still currently unemployed, except for what work I am able to find with my own company. 5. In July of 2010, I submitted my resume to the Career Services Offices at the business school to be considered for a position at Accenture. I was granted a screening interview on campus and was then invited for a day of call-back interviews. On October 14, 2010, I met with Allison Keating in the morning and then was walked around and met others in the office before participating in an interview over lunch with four male employees. 6. The interviewers present at lunch were Mr. Christopher Tillery, Mr. Paul Whittaker, Mr. Edward McCarthy, and Mr. Steven Whitcomb. During lunch, Mr. Tillery noticed my wedding ring and asked me if I was married. On finding out that I am married, Mr. Tillery then asked me what my husband would think of my working long hours at the office and traveling with other men. I told him that when I worked an investigator, I worked long hours, primarily with men, and my husband had no problem with it. 7. Mr. Tillery also asked me whether I planned to have children any time in the next few years. Before I could answer, Mr. Tillery went on to describe situations in which he had hired and trained female associates, only for them to leave the firm to raise children. The other gentlemen who were present, Mr. Paul Whittaker, Mr. Edward McCarthy, and Mr. Steven Whitcomb, did not say anything about Mr. Tillery s questions or my responses. Mr. Tillery concluded by stating that he loses at least one female employee each year to the baby. 8. These questions made me feel uncomfortable and concerned because I felt that Mr.

9 Tillery was questioning my commitment to being an consultant and work long hours simply because I am a woman. 9. On November 1, 2010, I received a rejection letter from Accenture. /s/ Kirstin Mailman Sworn before me this day of, 2010 /s/ Jamie Roggen Notary Public No Certified in St. Louis, MO Commission expires on 1/1/12

10 CERTIFICATE OF SERVICE The undersigned hereby certifies that copies of Plaintiff s Motion for Summary Judgment along with the Affidavit in Support of Plaintiff s Motion for Summary Judgment were delivered via facsimile and hand delivery this the 16th day of February, 2011 to: Amy Marks, Esq. Battle & Boothby 1264 Brentwood Drive St. Louis, MO ( Falcone & Brockston By: Michael H. Koby, Esq. Federal Bar Number Central Ave., Suite 210 St. Louis, MO ( Attorneys for Plaintiff

11 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION Kirstin Mailman, Plaintiff, v. Case No. 4:11CV1012 RWS Accenture, Defendant. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Defendant, Accenture, by its attorney, Amy Marks, asks the Court to grant Defendant's Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the ground that there is no genuine issue as to any material fact. While Defendant Accenture agrees that the Price Waterhouse mixed-motive analysis, rather than the McDonnell Douglas pretext analysis, is the correct framework, Defendant s actions do not constitute illegal discrimination. Defendant s Motion for Summary Judgment should be granted. Dated: February 16, 2011 /s/ Amy Marks, Esq. Fed. Bar No Battle & Boothby 1264 Brentwood Drive St. Louis, MO (

12 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION Kirstin Mailman, Plaintiff, v. Case No. 4:11CV1012 RWS Accenture, Defendant. AFFIDAVIT IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT CHRISTOPHER TILLERY, being duly sworn, deposes and says: 1. I am a senior partner of the consulting firm Accenture. I have been employed by Accenture for sixteen years. I became a partner in October 1994, and became a senior partner in partners. 2. Accenture employs eighty consultants in St. Louis, twenty-three of whom are 3. Consultants at Accenture work long hours during the busy season, as they do at most consulting firms. 4. To meet our hiring needs we have a Personnel Committee that consists of seven employees. The Committee follows a standard procedure. Every year it sends a member to several different schools in several cities to conduct screening interviews of business students planning to become professional consultants. From those screening interviews, the Committee selects twelve students to be invited for call-back interviews. During the call-back, each

13 candidate interviews with every member of the Personnel Committee and has lunch with at least two Committee members. The Committee meets after all of the candidates have been interviewed to discuss their impressions and the qualifications of the candidates. The Committee then votes on which candidate will be recommended to receive an offer. The chair of the Committee presents the Committee's recommendation at the next partnership meeting, and the partnership votes. In all my years with Accenture, I have never known of an instance where the partnership did not adopt the Committee's recommendation. 5. The chair of the Personnel Committee is Christopher Tillery, who is a senior partner at Accenture. The other members of the Committee, in order of seniority, are Mr. Paul Whittaker, Mr. Edward McCarthy, Mr. Steven Whitcomb, Mr. Blair Carpenter, Mr. Brian Bennett, and Mr. Joe Davis. 6. Each interviewer completes a standard evaluation at the conclusion of each interview. The evaluation asks the interviewer to rank the candidate on several different criteria, including communication skills, ability to fit in with the other employees at the firm, and the overall impression of the candidate. There is also a section for comments. 7. One offer is extended. If that candidate rejects our offer, the Committee meets again to decide which of the other candidates should receive an offer. 8. This year twelve students were invited for call-back interviews. Of those twelve, six were male and six were female. Seven students accepted their invitations; six of those were male. 9. On October 23, 2010, the partnership voted to accept the Personnel Committee's recommendation to extend an offer to Neil Eckhart. Neil Eckhart maintained an A average

14 during his first year in the Master of Business Administration (MBA program at the University of Michigan Ross School of Business (which is ranked twelfth in the nation for its graduate business program, ranking him in the top 5% of his class. Eckhart was also working as a research assistant for his well-known Management Objectives professor. The Committee sent a letter to Neil Eckhart making him an offer to join our firm as a consulting associate. He accepted our offer on October 30, 2010, at which time we sent letters to the other six candidates, including Plaintiff, notifying them that we would be unable to consider them further for a position at that time. /s/ Christopher Tillery Sworn before me this day of, 2011 /s/ Joseph C. Broyan Notary Public No Certified in St. Louis, MO Commission expires on 1/1/12

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