Fox v. Fifth Third Bank

OMAR FOX, Plaintiff, v. FIFTH THIRD BANK, FIFTH THIRD HOLDINGS, LLC, FIFTH THIRD HOME LENDING CORP.,FIFTH THIRD A CORP., FIFTH THIRD MORTGAGE COMPANY and PETER ANDREOTTI, Defendants.

Case No. 19-cv-3232

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

March 23, 2020

Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiff Omar Fox ("Plaintiff") brings suit against Defendants Fifth Third Bank, Fifth Third Holdings, LLC, Fifth Third Home Lending Corp., Fifth Third A Corp., Fifth Third Mortgage Company (collectively, "Fifth Third") and Peter Andreotti ("Andreotti") for employment discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), Section 1981 of the Civil Rights Act of 1866, as amended ("Section 1981"), as well a claim for violation of the Illinois Wage Payment and Collection Act. Currently before the Court are Fifth Third's [10] and Andreotti's [25] motions to dismiss the complaint for failure to state a claim. For the reasons that follow, both motions, [10], [25], are denied. This case is set for status hearing on April 23, 2020 at 9:30 a.m. Counsel are directed to file a joint status report, including a discovery plan and a statement of whether any settlement talks have occurred and whether the parties request an early settlement conference, no later than April 20, 2020.

I. Background¹

Plaintiff is a former employee of Fifth Third who began working for the company as a loan officer in January 2014. Andreotti is Fifth Third's hiring manager and interviewed Plaintiff for his job. Plaintiff was assigned to Fifth Third's Oak Park financial center, which has been designated a Low or Moderate Income Zone ("LMI Zone") by the Secretary of the Department of Agriculture. Plaintiff was also assigned to share the Melrose Park assignment with another loan officer. Melrose Park is also an LMI Zone.

According to the complaint, Fifth Third Bank did not pay loan officers a typical salary. Instead, the bank paid loan officers $24,000 per year as a draw against commissions—meaning that the first $24,000 in commissions a loan officer generates is kept by the bank, and the loan officer keeps only commissions earned in excess of $24,000. In addition, Fifth Third deducted from loan officers' salaries the $350 cost of the loan application or appraisal fee in the event a customer who completed an application did not actually close the loan. Loan officers, including Plaintiff, relied on bankers in the branches where they were assigned to refer potential mortgage customers.

The complaint alleges that, given the above-described structure and constraints, a loan officer's job success and compensation hinges on being assigned financial centers in affluent and high traffic neighborhoods. Plaintiff raised this concern with Andreotti and was unofficially assigned to another location, the Brickyard branch. However, the Brickyard branch is also in an LMI zone. The complaint alleges that as the months went on, it became increasingly clear to Plaintiff (1) "that a loan officer's success was directly tied to being assigned financial centers in affluent neighborhoods in high foot-traffic areas," and, (2) that Fifth Third, acting throughAndreotti, "was assigning white loan officers to financial centers in affluent neighborhoods and non-white loan officers to branches in low to moderate income neighborhoods." [1] at 5. As a result, Plaintiff alleges, he was making less compensation that white loan officers.

In February 2015, after trying but failing to work "within the system to move to a financial center in a more affluent neighborhood," Plaintiff decided to apply for a loan officer position in Fifth Third's Wilmette financial center, which is in an affluent suburb of Chicago. [1] at 6. According to Plaintiff, when he asked Andreotti for support, Andreotti falsely told Plaintiff that the position had been filled, even though it remained open for months thereafter.

On February 19, 2015, Plaintiff told Andreotti in a face-to-face meeting that "there were racial disparities in financial center assignments that w[ere] impacting the ability of non-white loan officers, like himself, to succeed and make money" and also "presented Andreotti with the list of branch assignments and pointed out to him how the loan officers of color were all assigned to financial centers in LMI Zones." [1] at 7. Andreotti allegedly responded that that non-white employees were the "best fit" for being relatable to the people who lived in LMI Zones and that there was nothing discriminatory about that, and refused to consider re-assigning branches based on non-racial criteria. Id. Plaintiff also complained that Andreotti would not approve overtime for him while approving it for white loan officers, and that Andreotti limited and scrutinized Plaintiff's monthly expenses much more than those of white loan officers.

On February 26, 2015, a week after Plaintiff complained, Andreotti asked Plaintiff to help cover Fifth Third financial centers in the Northwest suburbs, which were in affluent neighborhoods including Barrington. As soon as Plaintiff began receiving leads from Barrington and nearby financial centers in the Northwest suburbs, his sales increased.

On April 3, 2015, Plaintiff asked Andreotti to permanently assign him to the Barrington and nearby financial centers. When Andreotti refused, Plaintiff again brought up the racial disparities in financial centers assignments.

On April 20, 2015, Fifth Third, acting through Andreotti, placed Plaintiff on a Performance Improvement Plan, under which he was required to close four loans per month. On May 11, 2015, Plaintiff "raised with Andreotti the racial disparity in financial centers assignments that impacted him and other loan officers of color," and Andreotti again "swept [Plaintiff's] concerns under the table." [1] at 8. On May 15, 2015—less than thirty days after placing him on the performance plan—Fifth Third terminated Plaintiff. Andreotti allegedly told Plaintiff that he was being fired because he could not meet the terms of the performance plan. However, at the time of Plaintiff's termination, his "month-to-date numbers for applications taken equaled or exceeded each of his white male colleagues" and his "month-to date numbers for dollars booked in closings exceeded at least four of his white male colleagues." Id. at 9. Thus, according to Plaintiff, he was on pace to meet the requirements of his Performance Improvement Plan. Yet Fifth Third did not give him even thirty days to perform under the Performance Improvement Plan. Finally, Plaintiff alleges that Fifth Third failed to pay the final wages due to him, including commissions, when he was terminated.

Based on these facts, Plaintiff alleges Title VII claims against Fifth Third for discrimination on the basis of race (Count I) and retaliation (Count III), Title 1981 claims against Fifth Third and Andreotti for discrimination (Count II) and retaliation (Count IV), and a claim against Fifth Third for violation of the Illinois Wage Payment and Collection Act (Count V).

II. Legal Standard

A Rule 12(b)(6) motion challenges the legal sufficiency of the complaint. For purposes of a motion to dismiss under Rule 12(b)(6), the Court "'accept[s] as true all of the well-pleaded facts in the complaint and draw[s] all reasonable inferences in favor of the plaintiff.'" Calderon-Ramirez, 877 F.3d at 275 (quoting Kubiak v. City of Chicago, 810 F.3d 476, 480-81 (7th Cir. 2016)). To survive a motion to dismiss under Rule 12(b)(6), a plaintiff's complaint must allege facts which, when taken as true, "'plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level.'" Cochran v. Illinois State Toll Highway Auth., 828 F.3d 597, 599 (7th Cir. 2016) (quoting EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007)). The Court reads the amended complaint and assesses its plausibility as a whole. See Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011). It is also proper for the Court to "consider, in addition to the allegations set forth in the complaint itself, documents that are attached to the complaint, documents that are central to the complaint and are referred to in it, and information that is properly subject to judicial notice." Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013) (citing Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir.2012)); see also Fed. R. Civ. P. 10(c).

III. Analysis

A. Title VII Claims

Fifth Third argues that Plaintiff's Title VII claims are time-barred due to Plaintiff's alleged failure to file a charge of discrimination with the EEOC within 300 days of the adverse action alleged in this case. Instead, according to Fifth Third, Plaintiff waited 364 days after his termination to file his EEOC charge.

Fifth Third's argument cannot be resolved on a motion to dismiss. It is true that, "[b]efore bringing a Title VII claim, a plaintiff must first exhaust his administrative remedies by filing charges with the EEOC and receiving a right to sue letter." Chaidez v. Ford Motor Company, 937 F.3d 998, 1004 (7th Cir. 2019) (citing Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir. 1992)). After a plaintiff receives the right to sue letter, he or she may bring in federal court "only those claims that were included in her EEOC charge, or that are 'like or reasonably related to the allegations of the charge and growing out of such allegations.'" Geldon v. S. Milwaukee Sch. Dist., 414 F.3d 817, 819 (7th Cir. 2005). However, "Title VII's charge-filing requirement is not ... jurisdictional," Fort Bend County, Texas v. Davis, 139 S. Ct. 1843, 1850 (2019), but rather is "a precondition to bringing a Title VII claim in federal court." Burgett v. U.S. Dep't of Treasury, 603 F. Supp. 2d 1152, 1156 (N.D. Ill. 2009). Thus, "a plaintiff can present equitable reasons for failing to comply with the exhaustion...