Kathleen Lowden is a graduate of New York University, cum laude, and the New York University School of Law. Ms. Lowden’s practice focuses on employment matters, on behalf of both employees and employers, and also includes general commercial litigation. She advises employers on compliance with federal, state and local employment statutes. She has been involved in defending mass transit agencies, as well as other U.S. and foreign defendants, in suits by employees alleging sex, race and disability discrimination, civil rights violations, and violations of the Family and Medical Leave Act. She has also participated in cases involving breach of contract, commercial torts and the Fair Labor Standards Act. Ms. Lowden is fluent in French.
New York University (B.A. 1978)
New York University School of Law (J.D. 1985)
HNRK Obtains Summary Judgment on Discrimination and Retaliation Claims in a Significant Win for Employers
On July 17, Hoguet Newman Regal & Kenney, LLP secured the dismissal of a multi-plaintiff employment and civil rights lawsuit against two public agencies. The case is a significant win for employers because the court rejected the idea that poorly performing employees who claim they were discharged in retaliation for engaging in protected activity can demonstrate pretext by arguing that their employers tolerated their poor performance prior to the protected activity.
This issue can arise in cases, for example, where employers give struggling employees a number of “second chances” before their patience runs out. One of the plaintiffs in this case, a contract consultant for the MTA Capital Construction Company, had made an internal race discrimination prior to Capital Construction’s decision not to renew her contract for performance reasons. The plaintiff argued that the nonrenewal was retaliatory and that the performance issues that Capital Construction cited as the reasons for its decision were pretext because it supposedly “tolerated” the plaintiff’s shortcomings “from the outset.”
The court succinctly rejected this argument, noting “[N]early all sub-standard employee performance is tolerated for some time by the employer before it results in a discharge.” The court’s rationale reflects a common-sense recognition of the realities of the modern workplace, and we imagine this language will be cited frequently in defense briefs and judicial opinions in the future.
The case is Mitchell v. Metropolitan Transportation Authority Capital Construction Corporation, No. 16 CIV. 3534 (KPF), 2018 WL 3442895 (S.D.N.Y. July 17, 2018) [view Opinion here]. The court dismissed the plaintiffs’ Title VII, Section 1981, and New York State Human Rights Law discrimination and retaliation claims with prejudice. It declined to exercise supplemental jurisdiction over the plaintiffs’ New York City Human Rights Law claims and dismissed those claims without prejudice.
In an August 27, 2015 decision, Justice Eileen Bransten of the Commercial Division of the New York County Supreme Court dismissed all claims brought by a Canadian company against the firm’s client and other individuals and entities accused of conspiring to obtain a controlling interest in a Russian oil company. The firm’s client was the former President and Chief Executive Officer of a co-defendant company. In a comprehensive opinion addressing claims that have been litigated in the federal and New York courts for over a decade, Justice Bransten upheld a favorable decision of a Siberian court determining similar claims and also found that New York lacks personal jurisdiction over our client.
A Law360 article discussing Justice Bransten’s decision can be accessed here.
On May 13, 2013, a federal jury returned a verdict in favor of Hoguet Newman Regal & Kenney, LLP’s client, a transit agency, after a week-long trial in the Eastern District of New York.
The plaintiff, a transit employee, alleged that he was retaliated against by his employer and 10 of its present and former employees for making a safety report. Hoguet Newman represented the defendants.
The suit was brought under a federal whistleblower statute: the National Transit Systems Security Act (“NTSSA”), 6 U.S.C. § 1142, which was enacted in 2007 to protect the employees of public transportation systems from retaliation due to having made a safety-related report or complaint (See, Retaliation Claims in the Transit System Context). The plaintiff also brought a First Amendment Claim under 42 U.S.C. § 1983, which was dismissed by Judge John Gleeson at the close of the plaintiff’s case, and several other claims that were dismissed by Judge Gleeson on summary judgment (including a Due Process claim under 42 U.S.C. § 1983 and a claim under the Family Medical Leave Act). All of the individual defendants were dismissed before the case went to the jury.
The jury determined that the transit agency did not retaliate against the plaintiff.
On March 9, 2012, Justice Charles Ramos granted Hoguet Newman Regal & Kenney’s motion to dismiss charges brought against two former independent directors of a mutual fund. In 2006, upon news that the principals of the fund’s investment advisor had been indicted for securities fraud and other offenses, the firm’s clients presided over the transition of the fund to a new investment advisor, and its merger and reorganization into a new family of funds. The court’s opinion, which granted the independent directors’ and the new fund’s respective motions to dismiss, and denied plaintiffs’ cross-motion for a default judgment, provides a useful overview of the legal relationships between the directors of a mutual fund, its financial advisor and the fund’s shareholders, as provided under the Investment Company Act of 1940 and the common law. John Kenney, Julia Peck, Kathleen Lowden, and Jules Cattie worked on the matter.