Federal Court Says Former Morgan Stanley Advisor's Discrimination Claims Are Time Barred

[S]he was employed by Morgan Stanley in March of 2015 as a Wealth Advisor Associate, and during her employment faced discrimination and retaliation on the basis of her disability (morbid obesity) and discrimination by Defendants based on "sex, race, and ethnicity" in violation of various federal statutes including 42 U.S.C. § 1981, the Americans with Disability Act ("ADA"), Title VII of the Civil Rights Act of 1964 ("Title VII"), and the Family Medical Leave Act ("FMLA"). See TAC, ¶¶ 14-98. Plaintiff also alleges that Defendants violated "Securities Laws." See TAC, ¶¶ 99-107. 

Additionally, on March 2, 2020, Plaintiff filed a motion for a "Preliminary or Alternatively Temporary Injunction" to compel arbitration of Plaintiff's claims before FINRA. ECF No. 64. Defendants filed a motion to dismiss Plaintiff's Third Amended Complaint on March 11, 2020. ECF No. 68.

You agree to arbitrate any dispute, claim or controversy that may arise between you and Morgan Stanley or any person that is required to be arbitrated: (i) under the rules, constitutions, or by-laws (as may be amended from time to time) of any self-regulatory organization with which you are or may become registered, including, but not limited to, the Financial Industry Regulatory Authority ("FINRA") or (ii) pursuant to any arbitration agreement to which you are a party. 

SIDE BAR: FINRA Code of Arbitration Procedure for Industry Disputes Rule 13201. Statutory Employment Discrimination Claims and Disputes Arising Under a Whistleblower Statute that Prohibits the Use of Predispute Arbitration Agreements

(a) Statutory Employment Discrimination Claims

A claim alleging employment discrimination, including sexual harassment, in violation of a statute, is not required to be arbitrated under the Code. Such a claim may be arbitrated only if the parties have agreed to arbitrate it, either before or after the dispute arose. If the parties agree to arbitrate such a claim, the claim will be administered under Rule 13802.

(b) Disputes Arising Under a Whistleblower Statute that Prohibits the Use of Predispute Arbitration Agreements

A dispute arising under a whistleblower statute that prohibits the use of predispute arbitration agreements is not required to be arbitrated under the Code. Such a dispute may be arbitrated only if the parties have agreed to arbitrate it after the dispute arose.

The Court agrees with Defendants that Plaintiff has not demonstrated the existence of an arbitration agreement compelling arbitration before FINRA of her claims found in her Third Amended Complaint. In this case, the sole arbitration provision between Plaintiff and Defendants presented to the Court requires disputes that are required to be arbitrated under FINRA rules be arbitrated before FINRA. Plaintiff is demanding that her claims in the Third Amended Complaint, which consist of allegations of discrimination and retaliation in violation of various federal statutes, be arbitrated pursuant to this arbitration provision. The Court finds, however, FINRA rules do not require that claims alleging employment discrimination in violation of a statute be arbitrated. See FINRA Rule 13201(a). Thus, Plaintiff's dispute does not fall within the arbitration provision in Plaintiff's Employment Agreement. Plaintiff has not otherwise demonstrated the existence of a valid arbitration agreement between the parties to arbitrate statutory employment discrimination claims before FINRA. Accordingly, Plaintiff's motion to compel arbitration of her claims found within the Third Amended Complaint before FINRA is denied.

First, Defendants contend that Plaintiff's ADA and Title VII claims are time-barred. ECF No. 68-1 at pp. 5-8. Defendants assert that as a prerequisite of filing an ADA or Title VII claim, a plaintiff must timely file an administrative charge with the EEOC within 300 days of the alleged discriminatory act. Id. at p. 5. Defendants claim that Plaintiff did not timely file either claim with the EEOC. Id. at pp. 6-7. To the best that the Court can discern, Plaintiff appears to argue that her claims are not time-barred because Plaintiff has continued to suffer discrimination and retaliation by Defendants after Plaintiff's employment was terminated and equitable tolling applies to her case. See TAC, ¶ 33; ECF No. 71 at pp. 11-21.

Here, Plaintiff alleges that her employment with Morgan Stanley was terminated on December 1, 2016 and that she "filed a complaint with the EEOC well within 300 days of learning of the unlawful acts affecting me." TAC, ¶¶ 25, 33. Plaintiff does not specify in her pleading the date on which she filed her charge of discrimination with the EEOC nor does she include in her pleading if, or when, she was issued a right to sue notice from the EEOC. Defendants, however, attached the right to sue notices issued to Plaintiff by the EEOC to their motion to dismiss, which are dated February 8, 2019 and June 28, 2019. See ECF No. 68-2, Declaration of Thomas A. Linthorst dated March 11, 2020 ("March 11, 2020 Linthorst Decl."), Exhibits D, G. Since Plaintiff certainly relied on the right to sue notices in making her ADA and Title VII claims, as such claims require Plaintiff to comply with pre-suit procedural filings and timeliness requirements, the Court will consider the right to sue notices in reaching a decision on whether Plaintiff is time-barred from pursuing these claims in this litigation. See Hilburn, 2010 WL 703202, at *12. 

[T]he right to sue notice issued to Plaintiff on February 8, 2019 states that it was issued less than 180 days after a charge was filed. See March 11, 2020 Linthorst Decl., Ex. D. Thus, Plaintiff could not have filed a charge earlier than August 12, 2018. A filing date of August 12, 2018 is well past either 180 or 300 days because the last date of alleged discrimination could not have been later than December 1, 2016 when Plaintiff's employment with Morgan Stanley ended.⁴ Similarly, the right to sue notice issued to Plaintiff on June 28, 2019 states that it was issued less than 180 days after a charge was filed. See March 11, 2020 Linthorst Decl., Ex. G. Thus, Plaintiff could not have filed her charge earlier than December 30, 2018. Again, this date is well past either 180 or 300 days because the last date of alleged discrimination could not have been later than December 1, 2016 when Plaintiff's employment ended. . . .

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Footnote 4: Plaintiff had until September 27, 2017 (300 days from her date of termination) to file a charge with the EEOC.

fails to allege that she diligently pursued her rights and that some extraordinary circumstance stood in her way to prevent her from asserting her rights. Accordingly, the doctrine of equitable tolling does not cure the procedural default of Plaintiff's initial untimely filing with the EEOC. . . .

[W]hile Plaintiff makes allegations that she received unequal treatment when compared to white employees,⁶ Plaintiff does not include factual allegations that the Defendants intended to discriminate on the basis of race or that the discrimination concerned one of the activities enumerated in the statute. The Third Amended Complaint is therefore devoid of facts to substantiate a claim under Section 1981. "[M]ere awareness [of the plaintiff's race], particularly in light of the conclusory nature of [the plaintiff's] other allegations, is patently insufficient to raise an inference of discrimination under § 1981." Holmes v. Fed Ex, 556 F. App'x 150, 151 (3d Cir. 2014). Accordingly, Plaintiff's claims under Section 1981 are dismissed.

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Footnote 6: Plaintiff makes references to "race" and "Black, Hispanic Wealth Advisor Associates" [TAC, ¶¶ 29, 32(g)-(h), 73- 74], but Plaintiff has not specifically pled that she is member of a racial minority. To the best the Court can discern, Plaintiff is alleging that she is Black and Hispanic. 

[P]laintiff has not pled a willful violation of the FMLA, nor has Plaintiff alleged the elements essential to an FMLA claim. To the best the Court can discern, with respect to her FMLA claims, Plaintiff alleges that Defendants failed to consider alternate positions for Plaintiff and failed to engage in a dialogue regarding her surgery. See TAC, ¶¶ 88-95. For example, Plaintiff alleges that Defendants "never exercised an option to transfer [her] temporarily to an available alternative position . . . or a position that better accommodates recurring periods of leave." See TAC, ¶ 89. Plaintiff also alleges that Defendants did not engage in an "interactive dialogue to discuss [her]surgery" and that Defendants "terminated [her] for inquiring about the status of [her] requests for interactive dialogue regarding surgery and for inquiring into how [her] surgery would change the schedule of the bonus compensation." See TAC, ¶¶ 91-92. 

Plaintiff, however, does not allege that Defendants denied her FMLA leave or any other benefit under the FMLA, or that she invoked her rights under the FMLA and as a result suffered an adverse employment decision. Plaintiff also fails to include allegations that any such denial of benefits or adverse employment decisions were "willful" or that Defendants showed any type of reckless disregard. Indeed, Plaintiff fails to set forth any allegations to support either an interference claim or retaliation claim under the FMLA let alone a "willful" violation of the FMLA. Accordingly, Plaintiff's claims under the FMLA are dismissed.

[P]laintiff fails to state a claim under the anti-retaliation provision of the Dodd-Frank Act because Plaintiff does not allege that she ever reported a violation of securities law to the Securities and Exchange Commission. In fact, Plaintiff makes no reference to the Securities and Exchange Commission at all. Accordingly, Plaintiff's claims under "Securities Laws" are dismissed

• Morgan Stanley
• DNJ
• ADA
• FMLA
• Title VII
• FINRA
• Arbitration
• Rule 13201
• Statutory Employment Discrimination
• FRCP 12
• Section 1981
• Dodd Frank
• Retaliation
• BrokeAndBroker
• Bill Singer