Calibuso v. Bank of America Corp.
893 F. Supp. 2d 374
E.D.N.Y2012Background
- Plaintiffs sue Bank of America Corporation, Bank of America, N.A., Banc of America Investment Services, Inc., Merrill Lynch & Co., and MLPF&S, alleging gender discrimination under EPA, NY EPA, Title VII, NYSHRL, FCRA, MHRA, and NJ LAD.
- Plaintiffs contend unvalidated compensation and account distribution systems produce a disparate impact favoring male financial advisors (FAs) over female FAs.
- Defendants rely on a nationwide compensation grid based on production credits and length of service, with alleged discretionary adjustments that favor male FAs.
- Production credits and account distributions are alleged to depend on unvalidated criteria and uniform procedures that allegedly disadvantage female FAs.
- The acquisition of Merrill Lynch by Bank of America (2009) merged BAI with Merrill’s brokerage operations, with policies claimed to have remained largely the same.
- Plaintiffs filed EEOC charges (and duplicative state charges) over several years; tolling agreements were executed sharing claims among named plaintiffs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of EEOC charges | Plaintiffs claim disparate impact is reasonably related to EEOC charges. | Charges do not mention unvalidated systems or disparate impact, thus exceed scope. | Disparate impact claims reasonably related; scope denied. |
| Commonality after Dukes | Plaintiffs allege a common policy causing discrimination; discovery will prove commonality at certification. | Dukes precludes class claims where discretion lacks a company-wide policy. | Rule 23(a) commonality plausible; motion to dismiss/strike denied at this stage. |
| 703(h) Title VII applicability | Compensation/distribution systems are not protected merit/production systems and show intentional discrimination. | § 703(h) bars such disparate impact claims where systems measure merit/production. | Plaintiffs adequately pled not protected by § 703(h); claims not barred. |
| Exhaustion and class claims at pleading stage | Discovery will reveal common questions; class certification will address predominance. | Dismissal/strike appropriate if not class-certifiable after Dukes. | Dismissal and strike denied; issues reserved for class certification. |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), 131 S. Ct. 2541 (Supreme Court 2011) (commonality requires a common policy; not all discretionary practices per se class-wide)
- McReynolds v. Merrill Lynch & Co., Inc., 672 F.3d 482 (7th Cir. 2012), 672 F.3d 482 (7th Cir. 2012) (distinguishes between discretionary discretion and company-wide criteria; supports class viability when criteria tainted)
- McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873 (7th Cir. 2012), 694 F.3d 873 (7th Cir. 2012) (disparate impact challenge to production-based system; discusses §703(h) interplay)
- Chen-Oster v. Goldman, Sachs & Co., 877 F. Supp. 2d 113 (S.D.N.Y. 2012), 877 F. Supp. 2d 113 (S.D.N.Y. 2012) (denied strike of class allegations; analyzes company-wide employment practices under Dukes)
- Jute v. Hamilton Sundstrand Corp., 420 F.3d 166 (2d Cir. 2005), 420 F.3d 166 (2d Cir. 2005) (reasonably related EEOC charges doctrine elaborated)
- Holtz v. Rockefeller & Co., 258 F.3d 65 (2d Cir. 2001), 258 F.3d 65 (2d Cir. 2001) (exhaustion/administrative prerequisites in Title VII actions)
- Guardians Ass’n of N.Y.C. Police Dep’t, Inc. v. Civil Serv. Comm’n, 633 F.2d 232 (2d Cir. 1980), 633 F.2d 232 (2d Cir. 1980) (limits of tests and production-based merit systems under §703(h))