FINRA Wins Discrimination Retaliation Lawsuit

February 23, 2015

The hotly contested, high-profile Wall Street employment lawsuit of Wile v. FINRA found the industry's self-regulatory organization defending against charges by a former Deputy Regional Director. Plaintiff Wile's allegations touched on purportedly discriminatory practices involving disability, sex, and age -- and also brought an unflattering scrutiny of FINRA's arbitration forum. Consequently, the outcome of this federal lawsuit was of interest to many constituencies. Read how it all turned out.

Case In Point

As previously reported in the Blog, FINRA was defending against allegations brought by former 25-year veteran NASD / FINRA employee Jill Wile, who at the time of her March 1, 2013, termination was a Deputy Regional Director in the FINRA Southeast Regional Dispute Resolution office in Boca Raton, Florida. Wile alleged that the self-regulatory organization had engaged in unlawful disability, sex, and age discrimination and/or retaliation under the Americans with Disabilities Act of 1990 ("ADA"); Title VII of the Civil Rights Act of 1964 ("Title VII"); the Age Discrimination in Employment Act ("ADEA"), and the Florida Civil Rights Act ("FCRA"). Jill Wile v. Financial Industry Regulatory Authority, Inc.(SDFL, First Amended Complaint, 14-80218-CV, June 20, 2014). In part, Wile alleged in her First Amended Complaint:

18. One week later, on May 7, 2012, Wile sent a written complaint of disability, sex, and age discrimination to Chris Snyder ("Snyder"), FINRA's Associate Director of Human Resources. Wile's complaint indicated that she felt her only option for continued employment at FINRA in her current position was through acceptance of the PIP plan, though Ray had threatened that she would not succeed under the plan. Wile noted that in her 24 years with FINRA, she had received only Exceptional or High Contributor performance ratings, and that she was well-respected by the users of the arbitration forum, the arbitrators, and staff. She noted that when she turned 50, Ray began treating her as a problem employee and treating her less favorably than the male manager in the office, Kevin Rosen ("Rosen"). Wile also pointed out in her complaint that Ray had criticized her for dressing too youthfully on casual Fridays by wearing jeans and a short-sleeved shirt - because "she was 50." When men and younger womenwore this type of clothing on casual Fridays, Ray did not criticize them for dressing inappropriately at any time.

. . .

26. Wile also disclosed that Ray had been treating her differently, and more negatively, than Rosen, the male manager in the office, in part by being supportive of Rosen's efforts to work close to normal business hours in order to be with his family. Like Wile, Rosen managed the office staff responsible for case administration, addressed case-related issues and personnel issues, responded to arbitrator and party inquiries, reported directly to Ray, and assisted Ray in the overall administration of the Southeast Regional office. When Wile complained to Ray in March 2012 that she had been working 12-hour days for almost two years, plus time on weekends, Ray responded with the threat of termination set forth in paragraph 16 above. Ray also asked Wile to perform secretarial functions, such as generating and printing letters for his signature, which he did not ask Rosen to do.

27. Wile also provided several examples of younger female employees whose dress on casual Fridays violated Ray's office dress policy, but whose choice of attire was not criticized by Ray.

28. This supplemental complaint again reported to FINRA that Ray targeted older employees to fire upon his arrival at the Boca Raton office, and also that older employees who were not fired were demoted with no opportunity for improvement. "I believe I am now being targeted because I objected to age discrimination in the workplace."

The Champagne Toast

As set forth in her
First Amended Complaint, a substantive aspect of Wile's case involved tis incident:

43. Before returning from medical leave, in a letter dated October 12, 2012, Wile had advised Berry of her concern that a FINRA panel held a champagne toast on April 3, 2012 at the Boca Raton office. On that date, Wile was summoned to a conference room by Ray to meet with the arbitration panel in FINRA Arbitration Case Number 10-04432 entitled Meri Ramazio and Tamara Smolchek vs. Merrill Lynch, Pierce, Fenner & Smith, Inc. FINRA staff had served the award in the case on the same day.

44. When Wile arrived, Ray was already in the conference room, along with Lisa Lasher, Senior Case Administrator and Margaret Blake, Case Assistant. The three panel members appointed to the above-referenced case - Bonnie A. Pearce (Chairperson) ("Pearce"), Fred Abramoff, and Harriet A. Kottick - were also present in the conference room. When Wile entered the conference room, she observed a celebration taking place, which appeared to conflict with the arbitrators' sworn impartiality. She was immediately handed a glass of champagne in order to participate in a champagne toast that Pearce was making to the issuance of the award in the case. Wile did not drink the champagne. She was later informed by FINRA that Pearce had provided the champagne.

45. Upon departing the conference room, Wile advised Ray that she thought the champagne toast regarding the arbitration was inappropriate in light of FINRA's mandated neutrality. In response, Ray ordered Wile not to disclose the celebratory gathering and champagne toast to Berry.

46. One purpose of Wile's October 12, 2012 letter to Berry was to permit him to determine whether the celebration of April 3, 2012 in the Smolcheck case should be disclosed to Respondent Merrill Lynch, in view of its existing federal court challenge to the impartiality of the Panel Chair. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Tamara Smolchek and Meri Ramazio (S.D. Fla. Sept. 17, 2012) (denying petition to vacate and confirming arbitration award) (case settled following appeal to the Court of Appeals for the Eleventh Circuit, Case No. 12-15166). No action was taken in response to Wile's letter, with the exception of a letter from Berry to her, dated December 6, 2012. In that letter, Berry reported that Ray denied instructing Wile not to report the champagne toast to him, and criticized her for not reporting the toast earlier. This action was unjustified, and an obvious retaliation for Wile's report of Ray's conduct.

47. This pattern of retaliating against Wile by falsely blaming her for following senior management's instructions was not new. In 2012, she was blamed by FINRA for the removal of three arbitrators for bias and misconduct when she had been ordered by FINRA's most senior management to recommend their removal - after she had reviewed the case and recommended only counseling for them.

FINRA's Answer

FINRA generally denied Wile's allegations and asserted various affirmative defenses. For an extensive consideration of FINRA's response, read FINRA's Answer Jill Wile v. Financial Industry Regulatory Authority, Inc. (SDFL, FINRA's Answer to the First Amended Complaint, 14-80218-CV, July 10, 2014).

Jury Verdict

On January 28, 2015, a SDFL jury rendered a verdict after trial in favor of FINRA and against Wile.

Bill Singer's Comment

A decisive and clear-cut win for FINRA over its former employee.

Among the most critical battles fought during a trial is one that comes near the end of hostilities and focuses on what should and should not be included in the Court's instructions to the jurors.  In particular, skirmishes are waged by each side in order to get what is deemed favorable language concerning the applicable law for the issues in dispute. Further, each side will argue as to what may and may not be considered as evidence and proof. Laypersons will often seek a copy of the Complaint and Answer as a means of gaining insight into how a case was decided; however, for veteran lawyers, in addition to those pleadings, the Jury Instructions provides significant insight into how everything boiled down before going into deliberation.