Evidence that 90% of a retaliatory discharge plaintiff’s workload was that of a position that was retained and later filled by a less experience applicant will support her claim that the elimination of her existing position was pretextual.
Wile vs. FINRA, No. 14-80218 (S.D. Fla., 12/16/14).
The Facts and Issues
Jill Wile filed suit against the Financial Industry Regulatory Authority, Inc. (“FINRA”), asserting various state and federal discrimination and retaliation claims as a result of her allegedly unlawful termination from her position as Deputy Regional Director of FINRA’s Dispute Resolution office in Boca Raton, Florida. FINRA sought summary judgment, which Wile did not oppose on her gender and disability discrimination claims, but did oppose on her various state and federal retaliation claims. The Court addresses each of the retaliation claims, and denies summary judgment.
Wile was employed with FINRA and its predecessor, the National Association of Securities Dealers, for over 20 years. As Deputy Regional Director, she oversaw the administration of arbitrations in FINRA’s Southeast Region. At a time when FINRA began reducing staff beginning in the wake of a significant decline in filed arbitration claims from 2009 to 2013, FINRA personnel held several discussions with Wile about various “management deficiencies,” and Wile filed three internal complaints, alleging sex, age, and disability discrimination. Following the filing of a fourth complaint in February 2013, an email exchange between several executives ultimately resulted in the decision to eliminate Wile’s position, effective March 1, 2013.
Since no direct evidence existed supporting her claims, Wile sought to present indirect evidence of retaliation using the burden-shifting framework set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Under this framework, a showing by the plaintiff of a prima facie case shifts the burden to the employer to proffer a legitimate, non-discriminatory reason for the adverse employment action. If the employer does so, the burden shifts back to the plaintiff to demonstrate that the employer’s preferred explanation is a “pretext for retaliation.”
The Court's Ruling
Analyzing the evidence in the light most favorable to Wile, the Court observes that the decision to terminate Wile came one hour after the filing of her fourth complaint in February 2013 through an email exchange between FINRA senior officials. Rejecting FINRA’s claims that its president was unaware of the protected conduct at the time it made the decision to terminate Wile, the Court finds that Wile has established a prima facie case of retaliation.
The Court also finds that FINRA has articulated a legitimate, non-discriminatory reason for the termination, through evidence that it has terminated the Deputy Regional Director position in all other regional offices due to the diminishing caseload. But was it a pretext? Wile points to evidence that 90% of her day-to-day responsibilities were as a Case Administrator Manager (“CAM”), a position that was not eliminated and was later filled by someone less experienced. FINRA did not consider whether Wile could have filled the CAM position or any other position after eliminating her position. Noting that FINRA did not cite Wile’s performance issues as a basis for her termination, the Court concludes that “Plaintiff has provided sufficient evidence from which a reasonable jury could conclude that Defendant’s stated reason or terminating Plaintiff was pretextual,” and it is for that jury to decide “whether there was a retaliatory motive behind Defendant’s conduct in terminating Plaintiff.”
(B. Wiand) (EIC: Last week, the jury returned a verdict for FINRA in this case. More specifically, the jury found that Wile engaged in protected activity, but that FINRA did not terminate her because of her protected activity. We covered the verdict in last week’s edition of our email-delivered sister newsletter, the Securities Arbitration Alert (SAA 2015-04).)
(SLC Ref. No. 2015-05-04)
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