Employer burnt by scorched earth litigation tactics

After more than five years of “no holds barred” litigation, an employee received a jury award of $3.3 million. The worse news was the attorneys’ fees award of almost $5,000,000 that followed.

Tough litigation tactics justify large attorneys’ fee award

Diana Bronshteyn—whom a doctor had diagnosed with fibromyalgia—worked for the California Department of Consumer Affairs. In January 2019, she sued her employer under the California Fair Employment and Housing Act (FEHA) for failure to accommodate her disability, failure to engage in an interactive process to determine a reasonable accommodation, disability discrimination, and failure to prevent discrimination.

The case was a long shot. Jean Hyams, one of Bronshteyn’s lead attorneys, admitted to a “significant risk that the jury might be swayed by the fact that the [department] permitted [Bronshteyn] to take a long leave of absence and, on paper at least, offered her all of the accommodations she had previously requested.” From her work in disability rights, Hyams was aware that “women with fibromyalgia are often stigmatized and stereotyped as exaggerating or making up their symptoms.” Hyams also conceded the doctor’s notes Bronshteyn relied on in requesting leave were “ambiguous,” which compounded the risk in taking the case.