Verizon obtains summary judgment win in prevailing wage dispute

Client(s) Verizon Communications, Inc.

Jones Day secured a victory on behalf of Verizon Communications, Inc. against a former employee of one of Verizon's contractors who had sued Verizon under a joint employer theory, winning summary judgment against the plaintiff on all of her claims. Jones Day had previously prevailed on a motion to dismiss the plaintiff’s discrimination claims under the Fair Employment and Housing Act on the grounds that the plaintiff failed to exhaust her administrative remedies and, facing a separate summary judgment motion, voluntarily agreed to dismiss claims for waiting time penalties and other California Labor Code penalties a short time later.

In a final summary judgment motion, the only claims that remained related to the plaintiff's allegation that Verizon failed to pay her prevailing wages. The plaintiff based her claim on the theory that she performed work under a specific classification under prevailing wage law. In opposing summary judgment, however, she abandoned this theory, arguing instead that she performed work under a different classification—a classification that she failed to mention in her complaint and other sworn testimony.

In its papers, Verizon stressed that this failing was an additional reason for the court to grant its motion for summary judgment, and the court agreed. The court found that the plaintiff had abandoned her initial prevailing wage claims and was "barred by Federal Rules of Civil Procedure 26 and 37 from changing her prevailing wage theory to oppose summary judgment" and entered judgment in favor of Verizon.

Silvia et al. v. Verizon Communications, Inc. et al., Case No. 3:15-cv-04677-JSC (N.D. Cal.)