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• Gilkey, Stephenson & Weese, P.A., January, 2000

Law Firm Overview

GILKEY & STEPHENSON, P.A.

FIRM PROFILE

Gilkey & Stephenson, P.A. was formed March 1, 1995, with the intent of confining its areas of practice to labor and employment law. The Firm exclusively represents employers, with a primary emphasis on litigation. We defend employers in the full array of employment claims, including Title VII, the Americans with Disabilities Act, Sections 1981 and 1983, and the New Mexico Human Rights Act, as well as common law claims recognized in New Mexico. In addition to its litigation practice, the Firm defends administrative charges; protects management's interests in all facets of labor relations from contract negotiations through arbitrations; reviews and revises personnel policies and procedures; provides management training in all areas of employment law; and serves as general counsel on employment issues. Through our specialization and experience, we are able to provide responsive and cost-effective service.

The Firm consists of five attorneys:

Shareholder Duane Gilkey has over thirty years of experience in the labor and employment field. He has tried well over 100 cases involving various employment claims. Mr. Gilkey is listed in the Best Lawyers In America in the field of employment law, and is the only New Mexico attorney who is a fellow in the College of Labor and Employment Lawyers.

Shareholder Barbara Stephenson has twenty-five years of legal experience and, for approximately the last ten years, has worked almost exclusively in employment law. Ms. Stephenson has defended several clients in Office of Federal Contract Compliance Programs ("OFCCP") investigations and reviews, and also has handled a variety of other administrative claims faced by employers. Her practice currently focuses on employment litigation, defending administrative claims, and counseling clients in personnel issues. Since 1995, she has tried three cases on behalf of clients such as CUNA Mutual and Delta Air Lines. Defense verdicts were obtained in all three cases. Ms. Stephenson is a frequent lecturer on employment law topics.

Shareholder Carol Dominguez Shay practiced employment law with the Indiana firm of Baker & Daniels before returning to her native New Mexico and joining Gilkey & Stephenson in 1998. Ms. Shay has acted as co-counsel in a complex and lengthy labor arbitration involving United Parcel Service, Inc. and has been directly involved in substantial litigation matters since joining the Firm. She graduated from Georgetown University Law Center in 1996.

George Kraehe joined the firm in 2002 after practicing law as a Texas Assistant Attorney General and as a partner in a law firm in South Texas, specializing in defense of government employees.  Mr. Kraehe has a wide range of experience representing local, regional, and national employers in all phases of employment litigation.  He has first or second-chaired twenty jury and bench trials, has been lead counsel in over thirty appeals in state and federal courts, and has been directly involved in other substantial litigation matters.  Mr. Kraehe also has created many employment policy handbooks and has written and lectured widely on matters of interest to employers.

Quentin Smith joined Gilkey and Stephenson as an associate attorney in 2004.  He is a recent graduate of the University of New Mexico School of Law, where he ranked second in his law school class and was an active member of the New Mexico Law Review.  While in law school, Mr. Smith received a number of awards, including the prestigious Lewis Sutin Award for Advocacy, Clinical Honors Award, West Book Award, and Certificate for Outstanding Contribution to Scholarship by a Member of the Third-Year Class, and the Lexis Award for Outstanding Academic Achievement in the Third-Year Class.

The Firm is "AV" rated by Martindale-Hubbell and listed in the Martindale-Hubbell Register of Preeminent Lawyers. We also are a member of LABNET, a nationwide network of law firms which devote their entire practice to representing management in all facets of labor and employment law. This membership will further enhance our ability to meet the needs of employers.

In recent years, employers have been faced with an ever-increasing number of administrative charges and lawsuits by employees or former employees. The volume of employment litigation shows no signs of decreasing, but rather continues to grow as Congress adds new rights and remedies in legislation such as the Americans with Disabilities Act, the 1991 Civil Rights Act amendments, and the Family and Medical Leave Act. The New Mexico Supreme Court has contributed to this growth by issuing decisions that expand the scope of claims and remedies available to a disgruntled employee.

Since opening our Firm, we have tried many employment cases in both federal and state courts. Victories have been obtained for large and small businesses, including jury verdicts.  We also have obtained numerous outright dismissals short of trial, and a considerable number of very reasonable settlements. Our success over the years is even more remarkable in light of the inherent difficulties present in employment litigation. Our general philosophy is to vigorously and aggressively defend against employment claims in order to avoid the type of "copy-cat" claims that often arise when an employer either loses a case, or agrees to unreasonable settlement demands.

As noted, our primary work is to defend employers in litigation. We also assist clients in averting personnel and employment issues through the use of carefully constructed and consistently applied personnel policies and procedures. Our Firm has extensive experience in advising clients regarding their personnel policies and practices. We have drafted many personnel handbooks for our clients, and have advised them on general human resources issues.

Gilkey & Stephenson also provides seminars to employer representatives on "preventative maintenance" in such issues as hiring and termination, ensuring compliance with minimum wage and overtime requirements, and complying with the many state and federal civil rights laws. The attorneys of Gilkey & Stephenson have been asked to participate as faculty members in numerous programs offered to employers on Title VII, the Americans with Disabilities Act, the Family and Medical Leave Act, labor relations, and other personnel issues.

In addition to "preventative maintenance," Gilkey & Stephenson strongly believes that an employer is best served by consulting with counsel before an employment action, such as a demotion or termination, is taken. We counsel employers on these personnel actions and, where appropriate, assist in the preparation of severance agreements and related documents.

Gilkey & Stephenson's administrative expertise includes an active practice before the Equal Employment Opportunity Commission ("EEOC"), the New Mexico Human Rights Division ("HRD"), and the OFCCP. We offer seminars to employers on responding to EEOC/HRD charges and also assist in the preparation of these responses. Our Firm has prepared dozens of EEOC/HRD responses, and we have compiled an extraordinary win-loss record. We also have assisted many federal contractors in responding to OFCCP compliance reviews and complaint investigations.

Mr. Gilkey has represented numerous employers before the National Labor Relations Board (local, regional and national proceedings). He has taken labor cases to the Court of Appeals in the Fifth, Ninth, Tenth, and District of Columbia Circuits. Some of his representative clients in labor matters have included United Parcel Service, Kerr-McGee, Intel Corporation, KOAT-TV, the University of New Mexico, New Mexico Institute of Mining & Technology, and the City of Albuquerque.

Since forming Gilkey & Stephenson, Mr. Gilkey has worked extensively on labor and union-related issues. As New Mexico counsel for United Parcel Service, the Firm was heavily involved in legal issues surrounding the recent nationwide strike of UPS by the International Brotherhood of Teamsters. These issues encompassed picket line activities, membership in the union questions, disciplinary actions, injunction issues, and several national labor relations board proceedings. Numerous collective bargaining agreement arbitrations have been handled successfully by our Firm for UPS and University of New Mexico Hospital. In addition, we have provided advice and consultation on union-avoidance to several other clients, including Intel Corporation and Philips Semiconductors.

Given the size of our Firm, we are not in a position to "overstaff" a case. In any event, it is not our philosophy to do so. We do seek to delegate as much of the work as possible to our associates or paralegal staff, working under the supervision of a shareholder. This is a significant way in which we seek to contain costs.

Most cases we handle start off with the "kitchen sink" approach; that is, all possible statutory and common law claims are included. Therefore, our practice is to file an early motion to dismiss to narrow the claims in order to focus discovery. We have been successful in this approach. After the case has been narrowed, we normally will take only one or two depositions before filing a summary judgment motion. All of our lawyers are familiar with the various federal and state statutes and common law claims that arise in the employment field. We do not "reinvent the wheel" every time an issue arises. We do one thing: employment law. We utilize brief banks and research files when drafting legal motions. We never prepare research memoranda prior to drafting a motion, nor do we attempt to research every issue that might arise. Instead, we focus on the real issues in the case.

In the discovery process, it is common for defense firms to take depositions of every witness listed by plaintiff. That is not our practice. Our Firm creates a discovery plan in every case that rarely goes beyond written discovery and the deposition of the plaintiff. With that information, we usually are able to draft a successful summary judgment motion and/or prepare to defend the case at trial. In light of the relatively new federal rule amendments, it may be unnecessary to take expert depositions and depositions of every other witness that might be called at trial. While employment cases typically involve complex legal and factual issues, most cases come down to the testimony of the plaintiff and one or two of the employer's decision-makers. In short, we save clients money by immediately focusing and narrowing the legal issues, and limiting the amount of discovery necessary to defend our clients' position on those issues.

Our federal courts usually order the parties to a settlement conference around the time a summary judgment motion is filed. This conference is held before a federal magistrate judge and we have had a great deal of success in these proceedings. It is the primary purpose of the federal magistrates to reduce the docket for the sitting federal judges. With a strong summary judgment motion pending, we usually are able to obtain the support of the federal magistrate in driving the plaintiff's settlement demands down to a reasonable range. Since opening our Firm, we have resolved close to twenty cases in these court-ordered settlement conferences. With only a few exceptions, each of these settlements has been below $15,000; many have been well below $10,000. We find that the effective use of settlement proceedings is an excellent way to contain litigation costs.

When a case has not been settled, we have had extraordinary success in prevailing on summary judgment motions. The federal judges in New Mexico, for the most part, are conservative in employment cases, and they do not hesitate to grant summary judgment motions if given the proper basis for doing so. In the four years that our Firm has been open, we have obtained fifteen complete dismissals at the summary judgment stage, and in approximately five other cases, the number of claims substantially was reduced through a summary judgment motion. We believe that positioning a case for summary judgment is one of the best ways to contain litigation costs.

If reasonable settlement offers have been refused and the entirety of the case has not been disposed of on summary judgment, we believe that the only reasonable action then is to proceed to trial. In most cases, the decision to take a case to trial is an easy one because the plaintiff and his or her attorney are demanding a high six-figure settlement. This Firm never has been involved in a settlement during a trial. We are proud of our record for employers.

In sum, our approach to litigation and the containment of the attendant costs is to try to dispose of a case either through settlement or dispositive motion, as quickly as possible. Nevertheless, at all times we keep in mind that any case may go to trial and that strategic decisions along the way must be made with this possibility in mind.

Gilkey & Stephenson believes that all forms of alternative dispute resolution ("ADR"), be it mediation, court-ordered settlement discussions, or ADR proceedings before the EEOC can be valuable and cost-effective. We have been able to obtain some genuine bargains for our clients through early mediation. As noted above, mediation also can be effective if done after the defendant has filed a dispositive motion. The plaintiff then is faced with the risk of losing his or her entire case through summary judgment and this can provide a considerable "carrot" to productive mediation.

On the other hand, not all cases are appropriate for mediation. In cases of employee dishonesty or other instances of particularly egregious conduct, the client may take the position that no settlement can be offered. We respect that approach. In any matter which we handle for our clients, we assess at the outset what we then believe to be the relative strengths and weaknesses of a case. Based on this assessment, together with our client's willingness to participate in mediation, we can determine whether some sort of early mediation is desirable. Obviously, the defendant must be careful so as not to send a message to plaintiff that it is eager to settle. This will only increase the settlement costs.

An early assessment is used regardless of whether the matter is an administrative charge before the EEOC or the Human Rights Commission or whether it is in state or federal court. Both the Human Rights Commission and the EEOC use mediation. Under the EEOC's new procedures, if a charging party consents to mediation, the EEOC will ask the employer to participate. The EEOC is making mediation a greater priority and this shift in emphasis could work to the benefit of employers. Frequently, a charging party has not yet retained counsel and mediation during the administrative stage can be particularly beneficial and cost effective.

In state court, cases may be ordered to mediation. The parties also can request appointment of a mediator or participate in private mediation. There are excellent mediators in the local bar and, in some cases, hiring one of them can be money well spent. In federal court, mandatory settlement conferences before a federal magistrate judge will be set or the parties also have the option of requesting an early settlement conference. As noted above, the federal magistrate judges are well qualified to conduct mediations and this service is provided at no cost to the parties.

We believe there is no such thing as a guaranteed win for the employers in any lawsuit. Whether mediation should be pursued and the likelihood of its success are matters which should be given great consideration in discussions with the client.

Areas of Practice

• Employment Law
• Employment Law Counseling
• Litigation and Alternative Dispute Resolution
• Labor & Employment Law 100%

Representative Clients

• Intel Corporation
• Philips Semiconductors
• Southwest Airlines Co.
• Dillard's Inc.
• Westinghouse Electric Corporation
• University of New Mexico
• State of New Mexico, Office of the Attorney General
• Raley's
• Home Depot USA, Inc.
• CUNA Mutual Insurance Group

Representative Cases

• Brillhart v. Philips Electronics North America Corp., 179 F.3d 1271 (10th Circuit 1999)
• Armijo v. Prudential Ins. Co. of America, 72 F.3d 793 (10th Circuit 1995)
• Carr v. Stryker Corp., 28 F.3d 112 (10th Circuit 1994)
• Jackson v. City of Bloomfield, 731 F.2d 652 (10th Circuit 1984)
• Jicarilla Apache Tribe v. United States, 657 F.2d 1126 (10th Circuit 1981)
• Sheet Metal Workers Intern Ass'n Local Union No. 49, AFL-CIO v. Los Alamos Constructors, Inc., 550 F.2d 1258 (10th Circuit 1977)
• Chicano Police Officer's Ass'n v. Stover, 552 F.2d 918 (10th Circuit 1977)
• Chicano Police Officer's v. Stover, 526 F.2d 431 (10th Circuit 1975)
• Salazar v. Furr's Inc., 629 F.Supp. 1403 (D.N.M. 1986)
• Zuniga v. Sears, Roebuck & Co., 671 P.2d 662 (N.M. 1983)

West Practice Categories

Sexual Harassment, Employment Law -- Employer, Affirmative Action -- Employer, Americans with Disabilities Act -- Employer, Employee Retirement Income Security Act (ERISA) -- Employer, Employment Contracts -- Employer, Employment Discrimination -- Employer, Family Medical Leave Act (FMLA) -- Employer, Federal Employer's Liability Act (FELA) -- Employer, Occupational Safety & Health Act (OSHA) -- Employer, Sexual Harassment -- Employer, Wage & Hour Laws -- Employer, Whistleblower -- Employer, Worker Adjustment and Retraining Notification (WARN) Act -- Employer, Wrongful Termination -- Employer, Estate Planning, Family Law, Labor Law, Collective Bargaining, Labor Arbitration, Labor Disputes, Labor Relations Boards & Proceedings, Unfair Labor Practices, Unions, Wage & Hour Laws, Litigation & Appeals, Real Estate Law