Prosecutors suing Contra Costa County DA call dismissal motion ‘frivolous’

Five female prosecutors who say Contra Costa County District Attorney Diana Becton discriminated against them because of their age and gender are challenging her second motion to dismiss their suit as a frivolous attempt to rewrite federal pleading standards.

Becton, however, asserts that it's a common practice for newly elected district attorneys to restructure their offices, and plaintiffs' reassignments were simply a product of that.

Plaintiffs Mary Knox, Rachel Piersig, Alison Chandler, Mary Blumberg and Jill Henderson sued Becton in federal court in February 2020 alleging they were demoted and denied opportunities for growth after Becton was elected district attorney in 2018 because they are all women and four of five of them are over 40. They say they were transferred to less desirable roles and replaced by less qualified and less experienced men, many of whom now supervise older, more tenured female prosecutors, because Becton wanted people in positions of power whom she could have more sway over. Knox et al. v. Contra Costa County et al., 3:20-cv-01449 (N.D. Cal., filed Feb. 26, 2020).

Becton and the county have twice moved to dismiss the lawsuit on the grounds that the complaint only offers conclusory personal views and experiences and not plausible claims that meet the federal pleading standards established by the U.S. Supreme Court. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009).

"Specifically, each plaintiff fails to allege facts suggesting that the decisions made with respect to their job assignments were made with any discriminatory motive or animus," John C. Fish of Littler Mendelson PC wrote in the motion to dismiss.

"It is clear from the second amended complaint that the plaintiffs disagree with their job assignments and would prefer different roles for varying reasons," Fish wrote. "However, it does not follow -- and plaintiffs have not properly pled -- that defendants discriminated or retaliated against any of the plaintiffs based on their gender or age."

But in opposing those arguments in a filing late Wednesday, the deputies argue Becton and the county are wasting court resources by attempting to "overstretch" the pleading standard.

"The defendants have taken these two cases and have misconstrued them to say that there is now a heightened pleading standard in federal court that you have to basically prove your cases in your complaint," plaintiffs' attorney David S. Ratner of Ratner Mollineaux LLP said in a phone interview Thursday. "That is not true."

He said under Iqbal and Twombly, the Supreme Court held that a civil complaint must plead factual allegations that articulate a plausible claim as opposed to conclusory statements. And he said the allegations in his complaint far exceed "bare-bones conclusory statements."

"In our case we say number one, Mary Knox is a woman," he said, using the lead plaintiff as an example. "That's a factual statement. Number two, that she suffered various job changes, such as she was reduced from a level five to a level four, her pay was consequently reduced and she was taken away from a supervisory role. And we also say a further factual statement that younger men were treated differently -- that younger men were put in the position she would have been put in."

According to the complaint, Knox was the first female head of the office's homicide unit and has tried more than 90 felony trials while having managed attorneys since the 1990s. She says Becton transferred her without warning to felony filings, a position she says is typically filled by attorneys with half the experience she has. Knox said she was replaced by a male deputy who had no prior experience as a supervisor. And despite recently showing interest in moving back to an open position in the homicide unit, Knox said she was overlooked for a younger man before being transferred to the Elder Abuse Unit in a nonsupervisory role.

Piersig, a former homicide prosecutor who has been a DA for more than 20 years, alleges that although Becton moved her to a supervisory role as a felony expediter on the felony preliminary hearing team, it's considered an entry level supervisory role that's beneath her prior experience and success. Piersig says Becton consistently denied her opportunities for growth while promoting less experienced men to roles she was qualified for and desired.

Chandler, Blumberg and Henderson also argue they have consistently sought opportunities for growth, including requesting supervisory roles, but have been passed over for younger, less qualified men.

The suit seeks lost wages, emotional distress, equitable and injunctive relief and attorney's fees. The motion to dismiss will be argued May 28.