United States District Court, E.D. Pennsylvania
FRANK HIGHTOWER and CHAMICKA POLLOCK, on behalf of themselves and all other similarly situated persons, Plaintiffs,
WELLS FARGO BANK, N.A., Defendant.
Austin McHugh, United States District Judge
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.
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
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.
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,
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.
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.
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.
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.
Timeliness of Pollock's Claims
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 ...