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Calibuso v. Bank of Am. Corp.

United States District Court for the Eastern District of New York

September 27, 2012, Decided; September 27, 2012, Filed

No 10-CV-1413 (JFB)(ETB)

Opinion

 [*376]  MEMORANDUM AND ORDER

Joseph F. Bianco, District Judge:

Plaintiffs Judy Calibuso ("Calibuso"), Julie Moss ("Moss"), Dianne Goedtel ("Goedtel"), Jean Evans ("Evans") and Mary DeSalvatore ("DeSalvatore") (collectively "plaintiffs") commenced this action on behalf of themselves and all others similarly situated, against Bank of America Corporation ("BofA," "BOA" or "Bank of America"), Merrill Lynch & Co. ("ML") and Merrill Lynch, Pierce, Fenner & Smith ("MLPF&S")1 (collectively "defendants"), claiming that the defendants' unvalidated compensation and account distribution systems cause a disparate impact on women because, inter alia, they rely on tainted criteria and are implemented in a discriminatory manner. Specifically, plaintiffs claim that the defendants have violated the Equal Pay Act, 29 U.S.C. § 206, et seq. (the "EPA"), the  [**2] New York Equal Pay Act New York Labor Law § 194 et seq. (the "NY EPA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), the New York States Human Rights Law, New York Executive Law § 296 et seq. ("NYSHRL"), the Florida Civil Rights Act of 1992, F.S.A. § 760.01 et seq. ("FCRA"), the Missouri Human Rights Act RSMo. § 213.010 et seq. ("MHRA"), and the New Jersey Law Against Discrimination, NJ.S.A. § 10:5-1 et seq. ("NJ LAD").

Defendants have moved to dismiss and/or strike the class claims in plaintiffs' third amended complaint. Specifically, defendants argue the following: (1) the disparate impact claim as it relates to the production and merit based policies must be dismissed as a matter of law because these policies are immune from attack pursuant [*377]  to § 703(h) of Title VII; (2) pursuant to the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011), the challenge to defendants' policies that allow manager discretion to make discriminatory decisions cannot be sustained; (3) defendants' commission plans do not need to be  [**3] validated; and (4) the disparate impact theory is outside of plaintiffs' EEOC charges. Moreover, defendants contend that the proposed classes are overbroad and include time-barred claims.

For the reasons set forth below, the Court denies the defendants' motion to dismiss for failure to exhaust, and denies the remainder of the motion without prejudice to defendants asserting these various grounds in response to plaintiffs' class certification motion.

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893 F. Supp. 2d 374 *; 2012 U.S. Dist. LEXIS 139606 **; 83 Fed. R. Serv. 3d (Callaghan) 797; 116 Fair Empl. Prac. Cas. (BNA) 355; 96 Empl. Prac. Dec. (CCH) P44,650; 2012 WL 4458404

JUDY CALIBUSO, JULIE MOSS, DIANNE GOEDTEL, JEAN EVANS, AND MARY DESALVATORE ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs, VERSUS BANK OF AMERICA CORPORATION, MERRILL LYNCH & CO., INC. AND MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Defendants.

Subsequent History: Later proceeding at Calibuso v. Bank of Am. Corp., 2013 U.S. Dist. LEXIS 146083 (E.D.N.Y., Oct. 3, 2013)

Motion denied by Calibuso v. Bank of Am. Corp., 2013 U.S. Dist. LEXIS 144087 (E.D.N.Y., Oct. 4, 2013)

Settled by, Request granted, Costs and fees proceeding at, Dismissed by, in part Calibuso v. Bank of Am. Corp., 2013 U.S. Dist. LEXIS 180848 (E.D.N.Y., Dec. 27, 2013)

Later proceeding at Calibuso v. Bank of Am. Corp., 2014 U.S. Dist. LEXIS 60229 (E.D.N.Y., Apr. 30, 2014)

CORE TERMS

defendants', disparate impact, female, allegations, class certification, plaintiffs', notice, male, third amended complaint, motion to dismiss, discriminatory, commonality, policies, unvalidated, company-wide, supplemental, brokers, distributed, documented, distribution system, class claim, parties, business opportunity, discriminate, retaliation, charges, teams, similarly situated, financial adviser, systematically