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Jennifer Vuona, Sara Hunter Hudson, Julia Kuo, and Catherine Wharton v. Merrill Lynch & Co.

November 15, 2011

JENNIFER VUONA, SARA HUNTER HUDSON, JULIA KUO, AND CATHERINE WHARTON,
PLAINTIFFS,
v.
MERRILL LYNCH & CO., INC., MERRILL LYNCH, PIERCE FENNER & SMITH, INC., AND BANK OF AMERICA CORP., DEFENDANTS.



The opinion of the court was delivered by: Paul A. Engelmayer, District Judge

OPINION AND ORDER

This decision addresses a set of discovery disputes in this employment discrimination lawsuit. Plaintiffs Jennifer Vuona, Sara Hunter Hudson, Julia Kuo, and Catherine Wharton brought this suit against defendants Merrill Lynch, Pierce, Fenner & Smith, Inc., their former employer, and related entities Merrill Lynch & Co., Inc. and Bank of American Corporation (collectively, "Merrill Lynch") in September 2010. Plaintiffs allege a practice by Merrill Lynch of providing preferential treatment to male employees over female employees; they allege that this practice harmed their chances of success at the company, and ultimately resulted in their termination. Relatedly, Plaintiffs allege that Merrill Lynch impermissibly considered gender in making termination decisions. Plaintiffs‟ claims are brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the New York State Executive Law § 290 et seq., and the Administrative Code of the City of New York § 8-101 et seq.

There are currently three discovery disputes before the Court, each relating to a document request: (1) Plaintiffs request certain documents concerning employee trainees at Merrill Lynch; (2) Plaintiffs request certain documents concerning complaints of discrimination against Merrill Lynch management at the branch in question; and (3) Merrill Lynch seeks leave to issue subpoenas to three former employers of the Plaintiffs, seeking Plaintiffs‟ employment records. For the reasons set forth herein, Plaintiffs‟ requests are granted in part and denied in part, and Merrill Lynch‟s request is denied in its entirety.

I. Background

As alleged in the Complaint, Plaintiffs were Financial Advisor ("FA") trainees at Merrill Lynch‟s Fifth Avenue Branch in Manhattan. The FA trainee program is a two- to three-year program during which new hires are routinely evaluated based on various performance metrics. Complaint ("Cmplt.") ¶ 16. To graduate and become a full-fledged FA, trainees must meet certain progress benchmarks during the training period. Id.

Plaintiff Wharton was hired as an FA trainee in 2006; Vuona, Hudson, and Kuo were hired in 2008. Id. ¶¶ 11-14. All four Plaintiffs were terminated on January 26, 2009, as part of a company-wide reduction in force ("RIF"). Id. ¶ 28. There were 29 RIF-eligible FA trainees at the Fifth Avenue Branch in January 2009, of whom 13 or 14, including Plaintiffs, were terminated. Id. ¶¶ 27-28. Plaintiffs allege that all of the female FA trainees at the Fifth Avenue Branch were fired in the January 2009 RIF. Id. ¶ 28. Defendants deny this. Answer ("Ans.") ¶ 28. Plaintiffs further allege that male FA trainees who were not meeting progress benchmarks were nonetheless retained, Cmplt. ¶ 31, which Defendants likewise deny, Ans. ¶ 31.

Plaintiffs claim that Merrill Lynch had a practice of routinely favoring male FA trainees over female FA trainees. Cmplt. ¶¶ 30, 35, 39, 79. Plaintiffs allege that male FA trainees were given performance-boosting opportunities that female ones were not, such as the opportunity to work on a team with a senior FA. Id. ¶ 30. Plaintiffs argue that this unequal treatment based on gender resulted in higher performance results for male trainees, making male trainees less likely to be terminated as part of the January 2009 RIF. See Parties‟ Joint Letter re Discovery Disputes 1-2 (Sept. 14, 2011) ("Joint Discovery Letter"). Plaintiffs also argue that men who should have been part of the RIF based on objective performance criteria were removed from a pre-RIF list of candidates for termination (the "termination list") that had been prepared based on objective criteria, whereas women were not; and that women were added to the termination list despite higher performance profiles. Id. at 3.

For its part, Merrill Lynch denies any gender-based favoritism. It contends the RIF was a gender-neutral termination action based on objective performance criteria. Ans. ¶¶ 79-80; Joint Discovery Letter 2. Merrill Lynch contends that two of the Plaintiffs were selected for termination based on the computer-generated termination list that ranked the 14 lowest-performing FA trainees, based on objective performance results. Joint Discovery Letter 2. Merrill Lynch contends that those FA trainees who were removed from the termination list, and thus retained, were not similarly situated to Plaintiffs, because these trainees had extenuating contractual or medical circumstances that justified their removal from the list; Merrill Lynch asserts that gender played no role in the decision to remove someone from the list. Id. Defendants further claim that the remaining two Plaintiffs were added to the termination list, following the removal of others for unique extenuating circumstances, so as to reach the company‟s goal of reducing the workforce by 14 during the January 2009 RIF. Id. Merrill Lynch asserts that these two Plaintiffs were low-performing, and that its decision to add them to the termination list was based solely on objective performance criteria, not on gender. Ans. ¶¶ 79-80; Joint Discovery Letter 2.

II. The Three Disputed Areas of Document Discovery

First, Plaintiffs seek certain performance and personnel documents for 30 FA trainees who were employed during plaintiffs‟ tenure at the Fifth Avenue Branch, but who were not among the group of 29 employees who were eligible for the January 2009 RIF (of whom, as noted, 14 were terminated). The parties agree that Merrill Lynch has already satisfactorily produced such documents for the 29 FA trainees who were eligible for the RIF. As to the remaining 30 trainees, Plaintiffs seek seven categories of documents: (1) performance warnings, performance evaluations, and "Performance Details" reports; (2) separation documents relating to involuntary terminations; (3) teaming agreements; (4) Household Opportunity Reports; (5) Length of Service rollback documents; (6) hiring documents; and (7) leave of absence documents. Joint Discovery Letter 3. Merrill Lynch opposes this request, on the grounds that it is unduly burdensome, grossly overbroad, and irrelevant to Plaintiffs‟ claims. Id. at 7-8.

Second, Plaintiffs seek documents relating to complaints of discrimination against Merrill Lynch management at the branch. Specifically, Plaintiffs seek (1) complaints of gender discrimination, from January 2006 forward, as to any manager at the branch "with responsibilities that may have brought him or her in contact with FA trainees"; (2) complaints of any form of unfair treatment or discrimination, not limited to gender discrimination, from January 2006 forward, against the three key Merrill Lynch decision-makers in the January 2009 RIF; and (3) sworn statements and testimony from these three key decision-makers related to any such complaint. Id. at 11-12. The parties represent that Merrill Lynch has already agreed to produce complaints of gender discrimination and retaliation made against the three key decision-makers in the branch during this time period. Id. at 14. Merrill Lynch opposes this request on the same grounds as the first, arguing that discovery of complaints should be limited to complaints of gender discrimination against the three key decision-makers. Id. at 14, 17.

Finally, Merrill Lynch seeks leave to issue subpoenas for performance-related records from three former employers of plaintiffs Vuona, Kuo, and Hudson. Id. at 18. Plaintiffs oppose this request, on the grounds that this information is irrelevant and that such subpoenas would serve no purpose other than to harass Plaintiffs. Id. at 22.

III. Analysis

A. Legal ...


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