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Equal Employment Opportunity Commission v. Jackson National Life Insurance Co.

United States District Court, D. Colorado

September 13, 2018

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
JACKSON NATIONAL LIFE INSURANCE COMPANY, JACKSON NATIONAL LIFE DISTRIBUTORS, LLC, and JACKSON NATIONAL LIFE INSURANCE COMPANY OF NEW YORK, Defendants. and LA'TONYA FORD, KIMBERLY FUNCHESS, MARCUS ADAMS, KENNETH CONLEY, ALCENA GANNAWAY, THE ESTATE OF KONTAR TONEE MWAMBA, and MARIETTA VARGAS, Intervenor Plaintiffs,

          ORDER

          PHILIP A. BRIMMER UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendants' Consolidated Partial Motion to Dismiss Plaintiffs' Second Amended Complaint and First Amended Complaint in Intervention [Docket No. 53]. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

         I. BACKGROUND

         The Equal Employment Opportunity Commission (“EEOC”) filed this lawsuit on September 30, 2016. Docket No. 1. The Second Amended Complaint, filed on January 27, 2017, asserts claims on behalf of nine former employees of defendants “and other aggrieved individuals” who were allegedly subjected to discrimination, retaliation, and harassment on the basis of race, sex, color, and/or national origin. Docket No. 31 at 1-2. On December 1, 2016, seven of the employees represented in the EEOC action - La'Tonya Ford, Kimberly Funchess, Marcus Adams, Kenneth Conley, Alcena Gannaway, The Estate of Kontar Tonee Mwamba, and Marietta Vargas - moved to intervene in the lawsuit. Docket No. 9. The motion to intervene was granted on January 9, 2017, Docket No. 20, and on February 23, 2017, intervenor plaintiffs filed their First Amended Complaint in Intervention [Docket No. 51]. On March 2, 2017, defendants filed their consolidated partial motion to dismiss. Docket No. 53. Defendants seek dismissal of allegations asserted in both the First Amended Complaint in Intervention and the EEOC's Second Amended Complaint. On March 23, 2017, the EEOC and the intervenor plaintiffs filed a consolidated response in opposition to defendants' motion, Docket No. 58, to which defendants replied on April 7, 2017. Docket No. 62. The facts stated below are taken from the First Amended Complaint in Intervention and the Second Amended Complaint and are presumed to be true for purposes of this motion to dismiss.

         A. Second Amended Complaint

         The Second Amended Complaint asserts claims for race discrimination, sex discrimination, national origin discrimination, retaliation, and hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1 et seq., on behalf of Marcus Adams, Kenneth Conley, La'Tonya Ford, Kimberly Funchess, Alcena Gannaway, the Estate of Kontar Mwamba, Marietta Vargas, George Thomas Minas Hill, Robert Blanchette, and other aggrieved individuals. Docket No. 31 at 1, 29-32. At all times relevant to this lawsuit, defendants Jackson National Life Insurance Company (“JNL”), Jackson National Life Distributors, LLC (“JNLD”), and Jackson National Life Insurance Company of New York (“JNL - New York”) operated as a joint employer and/or integrated enterprise offering and distributing financial products. Id. at 3, ¶ 7. As discussed in more detail below, all of the aggrieved individuals worked in various sales representative positions in defendants' Denver office between 2007 and 2012. Those positions included Internal Wholesaler, Business Development Consultant (“BDC”), and External Wholesaler, with External Wholesaler being the highest paid position. Id. at 4-5, ¶ 17.

         1. La'Tonya Ford

         La'Tonya Ford, a black female, was hired in February 2006 as an Internal Wholesaler in defendants' Atlanta, Georgia office. Id. at 5, ¶ 25. In 2007, Ms. Ford was transferred to the headquarters of JNLD in Denver, where she began reporting to Corey Walker, the Desk Director of the Regional Broker Dealer Channel (“RBD Channel”). Id. at 6-7, ¶¶ 26, 28, 43, 45.[1] Following Ms. Ford's transfer to headquarters, she overheard or was directly targeted with a number of racist and/or sexist comments, including comments relating to the size of her breasts and the breasts of other female employees and racial slurs in reference to President Obama. Id. at 6-7, ¶¶ 32-35, 36-37. Despite Ms. Ford's success as an Internal Wholesaler and her ultimate promotion to BDC in or around March 2009, she was not given quarterly evaluations by Mr. Walker and was placed on a written performance plan on or about September 10, 2009. Id. at 7, ¶¶ 40-45. After the filing of a formal charge of discrimination with the EEOC on or about December 7, 2009 and an internal investigation into Ms. Ford's complaints of discriminatory treatment, Ms. Ford's performance plan was expunged and she was reassigned to the supervision of Robert Blanchette, Jackson's Vice President of National Sales Development. Id. at 8, ¶¶ 49, 51-52. Both Mr. Walker and James Bossert, Jackson's Senior Vice President of Sales Development and Mr. Blanchette's supervisor, pressured Mr. Blanchette to discipline Ms. Ford. Id. at 8-9, ¶¶ 56, 59, 62. Mr. Blanchette refused, finding no evidence that Ms. Ford's job performance was unsatisfactory, and ultimately recommended Ms. Ford for an External Wholesaler position in December 2009. Id. at 8-9, ¶¶ 59, 63-64. Mr. Bossert stated that she would not get the position, and Ms. Ford was never interviewed. Id., ¶¶ 65-66. Ms. Ford subsequently applied for at least eight External Wholesaler positions in 2010. Id. at 10, ¶¶ 79-82. Six of those positions were filled with less qualified White males. Id. at 10-11, ¶¶ 80, 83. After being subjected to additional incidents of racial and sexual harassment, Ms. Ford was constructively discharged in October 2010. Id., ¶ 92.

         2. Kimberly Funchess

         Kimberly Funchess, a black female, was hired by defendants in October 2005 as an Internal Wholesaler in the Atlanta, Georgia office. Id. at 11, ¶ 93. In 2006, Ms. Funchess was transferred to Denver, where she was promoted to a Desk Director position. Id. at 12, ¶¶ 94-95. In 2008, Ms. Funchess began reporting to Mr. Bossert, who referred to Ms. Funchess and Ms. Ford as “lazy, ” “prima donnas, ” “bitches from Atlanta, ” and “our two resident street walkers.” Id., ¶¶ 97-98. Mr. Bossert excluded Ms. Funchess from lunches and meetings with other, white desk directors in his office. Id., ¶ 100. When Ms. Funchess complained to CEO Clifford Jack about race discrimination in the company, Mr. Bossert warned Ms. Funchess to be careful. Id., ¶ 102. In November 2009, Mr. Bossert subjected Ms. Funchess to unwarranted discipline. Id., ¶ 103. The following month, she filed a charge of discrimination. Id., ¶ 104. After being subjected to unwarranted discipline a second time in April 2010, Ms. Funchess was fired on April 14, 2010. Id. at 13, ¶¶ 105-06.

         3. Marietta Vargas

         Marietta Vargas, an African-American female of Cabo Verdean national origin, was hired by defendants as an Internal Wholesaler in May 2008. Id. at 13, ¶ 109. Ms. Vargas was supervised by Mr. Walker. Id., ¶ 110. Despite her success as an Internal Wholesaler and her completion of additional training requirements, Ms. Vargas was not promoted to a higher Internal Wholesaler position and was told that she was not qualified to apply for a BDC position, which was ultimately filled by a white male with less experience. Id. at 13-14, ¶¶111-116. In November 2009, two months after she complained to Human Resources about discriminatory treatment, Ms. Vargas was involuntarily transferred to the Bank Channel. Id. at 14, ¶¶ 117-118. In December 2009, Ms. Vargas filed a charge of discrimination alleging retaliation and discrimination on the basis of race, sex, and national origin. Id., ¶ 119. Beginning in April 2010, Ms. Vargas reported to Elizabeth Griffith, a white female, who was in turn supervised by Mr. Bossert. Id., ¶¶ 120-22. Ms. Griffith, Mr. Bossert, and other supervisors actively ignored Ms. Vargas and did not respond reliably to her emails. Id., ¶¶ 123-24. Ms. Vargas was constructively discharged in May 2010. Id., ¶ 125.

         4. Kontar “Tonee” Mwamba

         Kontar “Tonee” Mwamba, a black male, was hired by defendants as a BDC in October 2008. Id., ¶ 126. In January 2009, Mr. Mwamba overheard an External Wholesaler make racist comments regarding another black employee. Id. at 15, ¶ 128. When he complained, Mr. Mwamba was told that the company allowed the External Wholesaler to do what he wanted. Id., ¶ 129. Mr. Mwamba also complained to management that white employees were throwing foam stress balls at him during work. Id., ¶ 130. After management ordered that the ball-throwing stop, Mr. Bossert sent an email to all employees overturning that directive and referring to Mr. Mwamba as an “outsider who does not understand the nature of the job.” Id., ¶¶ 130, 132-33. Sometime after September 2009, Mr. Mwamba - who had a number of contacts at Merrill Lynch based on his prior employment with the company - applied for a position designed to deal exclusively with Merrill Lynch. Id. at 16, ¶¶ 139-141. Although Mr. Mwamba was originally scheduled for an interview, his interview was cancelled by Desk Director Jake Milder. Id., ¶ 142. A white male employee who was less qualified than Mr. Mwamba was selected for the position. Id., ¶ 144. In September 2009, after complaining to Human Resources about not being interviewed and about being treated less favorably than white employees, Mr. Mwamba was placed on a performance improvement plan. Id. at 17, ¶¶ 145-46. Mr. Mwamba was removed from the plan on December 7, 2009, the same day Ms. Ford filed a charge of discrimination with the EEOC. Id., ¶ 149. Mr. Mwamba received a negative performance evaluation in January 2010. Id., ¶ 153. On January 26, 2010, he filed a charge of discrimination with the EEOC. Id., ¶ 154. After being subjected to continued discriminatory treatment, Mr. Mwamba was constructively discharged in April 2012. Id. at 18, ¶¶ 155-56.

         5. Kenneth Conley

         Kenneth Conley, a black male, was hired by defendants as a BDC in March 2008. Id. at 18, ¶ 157. After President Obama's election, Mr. Conley's coworkers told Mr. Conley to be careful not to celebrate. Id., ¶ 160. Mr. Conley began reporting to Desk Directors Jake Milder and James Horvath in July 2009. Id., ¶ 161. Despite Mr. Conley's success as a BDC, Mr. Milder and Mr. Horvath gave Mr. Conley low scores on his performance evaluations. Id. at 18-19, ¶¶ 163-170. In March 2010, Mr. Conley filed a charge of discrimination alleging race and national origin discrimination. Id. at 19, ¶ 172. In September and October 2010, Mr. Conley was given two unwarranted disciplinary actions. Id. at 20, ¶¶ 181-82. Mr. Conley was discharged on October 25, 2010. Id., ¶ 184.

         6. Marcus Adams

         Marcus Adams, a black male, was hired by defendants as an Internal Wholesaler in February 2007. Id. at 21, ¶ 185. During his first year of employment, Desk Directors Greg Sodja and Corey Walker only spoke with Mr. Adams when necessary. Id., ¶ 188. Mr. Bossert also did not speak to Mr. Adams even though he spoke often with white employees. Id., ¶ 189. In June 2008, Mr. Adams inquired about the possibility of working as an External Wholesaler. Id., ¶ 191. Divisional Vice President John Poulson told Mr. Adams that he would not succeed as an External Wholesaler due to his weight. Id., ¶ 192. Although Mr. Adams subsequently lost 60 pounds, he was not selected for an External Wholesaler position and an employee who weighed significantly more was promoted to the position. Id., ¶¶ 193-94. In 2008 and 2009, Mr. Adams pursued two professional training opportunities - “The Academy” and “Boot Camp.” Id. at 22, ¶¶ 196-203. Mr. Adams failed the boot camp test in October 2009 and was initially denied permission to retake it. Id. at 23, ¶¶ 205-06. In June 2010, Mr. Poulson finally agreed that Mr. Adams could retake the test on the condition that Mr. Adams kept his mouth shut. Id., ¶ 207. Mr. Adams interpreted this statement to mean that Mr. Adams was not allowed to join or support other black employees who had filed charges of discrimination. Id., ¶ 208. After Mr. Adams retook the test, Mr. Sodja applied such a stringent standard to Mr. Adams' answers that Mr. Adams ended up failing the test a second time. Id., ¶¶ 211-12. On July 30, 2010. Mr. Adams filed a charge of discrimination with the EEOC. Id., ¶ 213. Mr. Sodja and Mr. Bossert stopped interacting with Mr. Adams and, on September 2, 2010, Mr. Adams was terminated. Id. at 23-24, ¶¶ 214-16.

         7. ...


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