Wednesday, March 31, 2010

Bank of America/Merrill Lynch Sued For Gender Discrimination

Investment News is reporting that Bank of America Merrill Lynch is on the receiving end of a gender discrimination class action. Three female financial advisors are alleging that the finanical institution discriminated against female registered employees with respect to account distributions, pay, and sales support. The plaintiffs are alleging that female registered employees were treated like "second class citizens". This is the latest class action lawsuit to be filed against a financial services business. And, comes on the heels of a number of multi-million dollar settlements of similar class action claims. Bank of America, through a spokesperson, denies it has done anything improper.

Tuesday, March 30, 2010

Summary Judgment in Age Case Reversed Because of Refusal to Allow Deposition of Chairman of the Board

In Marisco v. Sears Holding Corp, 2010 Fed App. 0191N (6th Cir. March 25, 2010), the Sixth Circuit Court of Appeals reversed a grant of summary judgment to Sears Corporation. The reversal was premised on the fact that the District Court refused to allow the deposition of Sears' Chairman Eddie Lampert. The Court concluded that Mr. Lampert's testimony could have borne out whether he had animus towards older employees. The Court remanded the case to the district court to continue proceedings and to allow the deposition of Mr. Lampert. The case is significant because corporate defendants tend to reflexively insulate senior management from depositions and discovery. In Marisco, the Court of Appeals ruled that when a senior executive has information that may lead to admissible evidence, that executive must be made available for deposition.

Wednesday, March 24, 2010

Broker Dealer GunnAllen Not Doing Business By FINRA Directive

Broker-dealer GunnAllen has been informed by FINRA that it cannot transact business for its clients. As a consequence, hundreds of its registered employees will likely be looking for new employment and a new broker-dealer to house their client accounts. FINRA has indicated GunnAllen cannot transact business because of a net capital violation. This event marks yet another employer having business and/or financial difficulties leading to unemployed registered financial advisors. Reductions in force, mass layoffs, and business liquidations have led to a historic unemployment rate, a significant portion of which has hit the financial services industry. It is hopeful that many of these registered representatives will be able to quickly find work so as not to create financial harship for them or uncertainty for their clients.

Middle District of Florida Rejects Constructive Discharge Claim

Often times employees resign their position because they believe that the workplace is intolerable. The employe then attempts to assert discrimination and/or retaliation claims identifying the "forced resignation" (or constructive discharge) as the actionable adverse employment action. These claims are incredibly difficult to establish and a recent decision bears this point out.

In Bozarth v. Sunshine Chevrolet-Oldsmobile of Tarpon Springs, Inc., 2010 U.S. Dist. LEXIS 25881 (M.D. Fla. March 19, 2010), the plaintiff, Jessica Bozarth, attempted to assert pregnancy discrimination and FMLA retaliation claims. The plaintiff's claims were premised, in large part, on an alleged constructive discharge. The plaintiff claimed that she could not tolerate the discrimination and retaliation in the workplace and that her resignation gave rise to claims under Title VII and the FMLA. In rejecting this claim, as a matter of law, the Court noted that to sustain a constructive discharge claim, the claim "must be so intolerable that a reasonable person would be forced to quit." The Court noted that while the plaintiff identified a numer of discrete events and testified she felt humiliated, she had failed to satisfy the significant threshold for a constructive discharge claim. Indeed, the Court ruled that an unwanted transfer, an unwanted change in pay, an offensive remark, and a change in job duties failed as a matter of law to establish a constructive discharge.

In sum, constructive discharge claims are difficult to plead and prove. An employee must establish frequent and significant discriminatory conduct for the Court to seriously entertain such a claim.