Fla.: Terminated Employee Should Have Been Considered for Overlapping Position

By Rosemarie Lally Jan 20, 2015

An employer’s failure to consider whether an employee could fill a position with overlapping duties before eliminating her position created “a reasonable inference” that the purpose of eliminating the position was to terminate and replace her, a Florida federal district court found, denying the employer’s request for summary judgment and allowing the case to proceed to trial.

Jill Wile, a staff attorney with the Financial Industry Regulatory Authority, Inc. (FINRA), was promoted to deputy regional director of its dispute resolution office in Boca Raton, Fla., in 2003. In this position, she was purportedly responsible for overseeing all aspects of case administration for the southeast region, although Wile later said that the promotion resulted in no change in her responsibilities. As her arbitration caseload diminished in 2006, she primarily assumed supervisory responsibility for the processing/logistical and case assistants and their managers. Kevin Rosen, a case assistant manager—a position at a pay grade lower than Wile’s—was responsible for supervising the remaining group of staff, the case administrators.

Wile asserted that her duties and those of Rosen switched in 2010, with 90 percent of her work performed as a case administrator manager (CAM), responsible for coordinating all cases in the Boca Raton office from filing to hearing. FINRA claims that Wile was never referred to as a CAM, and that the CAM position encompassed duties for which Wile was never responsible, including managing individual case assignments, serving as liaison between parties and arbitrators, and drafting and serving awards.

Between 2006 and 2013, the caseload continued to decline dramatically across all regions to the point where FINRA decided that the deputy regional director position was not cost-effective, and that the CAM position could replace it. By 2013, Wile was the only remaining deputy regional director in FINRA’s dispute resolution division.

Despite receiving favorable performance reviews overall, Wile met with her boss in February 2012 to discuss her "management deficiencies" and was offered three options: demotion, termination with severance, or a performance improvement plan. Following the meeting, Wile filed three internal complaints in quick succession, alleging age, sex, and disability discrimination, discriminatory treatment, and retaliation. An internal investigation was conducted after the second complaint was filed and Wile was not demoted, terminated, or placed on a performance improvement plan.

A fourth complaint alleging further discrimination and retaliation was filed with FINRA’s vice-president for human resources in February 2013. One hour after the complaint was forwarded to the in-house counsel, the assistant director for HR received a request from his boss for an "exit pack" for Wile. By close of business that day, HR had sent an e-mail confirming the elimination of the deputy regional director position to the president of the division, who quickly replied that she supported the decision.

The following day Wile was told her position was being eliminated, and offered a severance package. She sued FINRA, alleging age discrimination and retaliation, among other things.

Noting the temporal proximity – one hour -- between FINRA’s awareness of the filing of the fourth internal complaint and its decision to move forward with her termination as well as the decisionmakers’ uncertainty as to whether they had actual knowledge of the final complaint at the time they decided to terminate Wile’s position, the court found that Wile had established a prima facie case of retaliation.

However, the court also found that FINRA had articulated a nondiscriminatory reason for the termination. A steadily declining workload had led to the termination of the deputy regional director position in all other offices and its replacement with a position that had similar responsibilities at a lower pay grade.

However, Wile argued that the reason given was pretextual, noting that eliminating the deputy regional director position did not require her termination. Further, the CAM position was not eliminated, but was instead filled with an employee with less experience.

The court agreed with Wile, stating that at the time the position was eliminated, FINRA didn’t appear to consider whether Wile could have filled the CAM position or any other. “The overlap between Plaintiff's role as Deputy Regional Director and the responsibilities of the CAM position . . . combined with Defendant's resolve that elimination of the Deputy Regional Director position necessarily required termination of Plaintiff, creates a reasonable inference that the purpose of eliminating Plaintiff's position, at that particular moment, was to indeed terminate and replace her,” the court said. “It is reasonable to infer that the decision to terminate Wile was already final by the time the termination meeting was held.”

Finding sufficient evidence to conclude that FINRA's stated reason for terminating Wile was pretextual, the court denied summary judgment on the retaliation claims.

Wile v. Financial Industry Regulatory Authority, Inc., S.D. Fla., Case No. 14-80218-CIV-BLOOM/VALLE (Dec. 16, 2014).

Rosemarie Lally, J.D., is a freelance legal writer and editor based in Washington, D.C.


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