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Hightower v. Wells Fargo Bank, N.A.

United States District Court, E.D. Pennsylvania

March 28, 2018

FRANK HIGHTOWER and CHAMICKA POLLOCK, on behalf of themselves and all other similarly situated persons, Plaintiffs,
WELLS FARGO BANK, N.A., Defendant.


          Gerald Austin McHugh, United States District Judge

         This is a putative class action brought on behalf of current and former African American employees of Defendant Wells Fargo. Plaintiffs Frank Hightower and Chamicka Pollock allege that Defendant has engaged in a pattern or practice of discrimination in the compensation and promotion of African American employees in mid- to upper-level management positions. Plaintiffs stand on different procedural footings. Mr. Hightower timely filed this action after exhausting his administrative remedies and receiving a right-to-sue letter from the Equal Employment Opportunity Commission (EEOC). Ms. Pollock also pursued administrative remedies, but failed to bring suit within the allotted ninety days after she received her right-to-sue letter. She seeks to surmount that obstacle by “piggybacking” on Hightower's claim.

         Wells Fargo seeks to bar Pollock's claims as untimely, and to strike Hightower's class action claims as beyond the scope of his EEOC charge and otherwise not certifiable under Rule 23. The motion as to Pollock will be granted, and her Title VII claims will be dismissed with prejudice. The motion to strike Hightower's class action allegations will be granted, and those allegations stricken, but without prejudice.

         I. Factual Background

         Plaintiffs' Amended Complaint alleges that Defendant Wells Fargo has engaged in a “companywide pattern and practice of employment discrimination” against African American employees. Am. Compl. ¶ 1, ECF No. 12. They allege that Defendant maintains “company-wide career advancement and/or promotion policies and practices that deny African-Americans the same career advancement/promotion and compensation as employees who are not African-American.” Id. ¶ 4. As a result, African American employees are underrepresented in the company's mid-level and senior management and receive “substantially less” compensation than “their counterparts who are not African-American.” Id. ¶ 3.

         The career paths of Plaintiffs Hightower and Pollock capture the primary grievances they assert on behalf of themselves and other African American employees. Frank Hightower joined Wells Fargo as a branch manager in Chichester, PA, in 2012, receiving a starting salary of $48, 000. He alleges that Defendant awarded salaries based on the “level” of the branch, with levels assigned based on branch size. Hightower alleges that his branch was the “largest in the district, ” and was thus designated as “Level 2, ” and that he was the only African American branch manager in his area. After speaking to other managers, none of whom were African American, he learned that managers of smaller branches, which were designated as “Level 1, ” received greater pay. Id. ¶¶ 7, 34-36.

         Chamicka Pollock received an annual salary of $125, 000 when she began working as a district manager in the greater Washington, D.C. region in 2011. She alleges that another employee who held the same position, Michael Ormande, was paid $140, 000. Id. ¶ 37. She also alleges that, throughout her career, she was denied promotional opportunities based on her race. From 2011 through the present, she applied for area president positions that opened up in Pennsylvania, Georgia, Virginia, and Washington, D.C. She alleges that “in almost each case” she advanced to a final interview, but a white candidate ultimately received the position. Pollock also alleges that in some instances branch managers whom she had trained, and who were therefore arguably less qualified for the position, received the promotion instead of her. Id. ¶ 38.

         Plaintiffs contend that other African American employees have been subject to similar treatment. They allege that in September 2017, at least five qualified African American employees applied for a district manager opening in Northwest Philadelphia. Defendant awarded the position to a “White Hispanic” employee, Anthony Rosado, who was a “displaced area president.” Defendant had laid off Rosado earlier that year, and Plaintiffs allege that Wells Fargo had previously passed him over for a “region bank president” position because he had been subject to “multiple sales violation investigations” in districts he previously managed. According to Plaintiffs, Rosado's history should have disqualified him from the promotion, and yet he received the position “over other more qualified African-American candidates.” Id. ¶ 24. As further evidence of a pattern or practice of discrimination, Plaintiffs allege that, despite the existence of qualified African American candidates, none of the district managers in the Philadelphia area are African American. Id. ¶ 23.

         Plaintiffs' Amended Complaint sets forth various means by which Defendant allegedly obstructs career advancement opportunities for African American employees. First, Defendant's human resources staff allegedly coordinates with management to “manipulate” the process for posting company-wide job announcements to favor “only their desired candidates.” Defendant allegedly manipulates the process by either (1) directing a recruiter to “write the hiring profile to specifically fit the pre-identified candidate, ” or (2) “filling the candidate pool with decoy candidates” who are “employed or were previously employed in the position to be filled.” Id. ¶ 15. Second, Plaintiffs allege that, although Defendant uses standardized “Interview Guides” that prompt interviewers to ask the same questions of all interviewees, the interviewers “regularly fail to use the prompting questions provided to elicit a full response” from African American interviewees. In contrast, Plaintiffs allege, interviewers “use the prompting questions to elicit full responses from preferred applicants, ” thus yielding higher scores for preferred candidates. Id. ¶ 16. Third, with respect to compensation, Plaintiffs allege that Defendant uses compensation policies that disadvantage African American employees, in part by “relegating” African American employees to positions with capped, company-wide pay scales. Id. ¶¶ 27, 31.

         II. Procedural Posture

         Both Hightower and Pollock filed timely charges with the EEOC. Ms. Pollock filed her charge in May 2015, in which she alleged that she had been subject to discrimination in her applications for area president positions. As noted above, the EEOC sent Ms. Pollock a “right-to-sue” letter in late March 2016, setting forth the ninety-day deadline, but she did not file a federal claim within that timeframe, or at any later point, until she emerged as a second named plaintiff in the Amended Complaint in this action in December 2017. Mr. Hightower's EEOC charge was filed in November 2016, alleging that Hightower and other African American employees had been subject to racial discrimination, and that Defendant had retaliated against him for reporting discrimination concerns to a district manager. Def.'s Ex. A, ECF No. 16-3. He filed the present action on September 14, 2017, within his ninety-day window. Compl., ECF No. 1. His Amended Complaint then added Ms. Pollock as an additional named plaintiff for his proposed class claims. Am. Compl., ECF No. 12.

         III. Analysis

         A. Timeliness of Pollock's Claims

         To proceed with a Title VII claim in federal court, a plaintiff must first file a timely charge with the EEOC, and then receive a right-to-sue letter. The individual has ninety days after receiving the letter to initiate a lawsuit. 42 U.S.C. §§ 2000e-5(e), (f)(1); Mikula v. Allegheny Cty. of PA, 583 F.3d 181, 185 (3d Cir. 2009). Ms. Pollock's claim is clearly untimely; she seeks to avoid dismissal by invoking the “single-filing” or “piggybacking” rule, a judicially-created exception for failure to exhaust that has been applied in both Title VII and ADEA cases. See Tolliver v. Xerox Corp., 918 F.2d 1052, 1057-58 (2d Cir. 1990) (describing various tests courts have used). Within the Third Circuit, a plaintiff who has not filed an EEOC charge may nonetheless in some instances join a Title VII action filed by another plaintiff who has exhausted administrative remedies if that case and the ...

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