united states district court northern … digest files/20180123... · case 1:18-cv-00225-elr-jkl...

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

MALLORRI S. HERMANSON, ))

Plaintiff, ) CIVIL ACTION FILE NO.) __________________

v. ) JURY TRIAL DEMANDED)

TD AMERITRADE, INC., )JUAN C. ARANGO, and )ADAM LEE, in their individual )capacities, )

)Defendants. )

)

COMPLAINT FOR DAMAGES

COMES NOW Plaintiff MALLORRI HERMANSON (“Hermanson”) and, by

and through the undersigned counsel of record, hereby files this Complaint for

Damages against Defendants, TD AMERITRADE, INC., JUAN C. ARANGO, and

ADAM LEE (“Ameritrade,” “Arango,” and “Lee,” respectively, and “Defendants”

collectively), respectfully showing the Court as follows:

JURISDICTION AND VENUE

1.

This is an action pursuant to: (1) Title VII of the Civil Rights Act of 1964 (“Title

VII”), as amended, 42 U.S.C. § 2000(e) et seq., for sexual harassment, hostile work

environment, race discrimination, and retaliation; (2) the Civil Rights Act of 1866,

Case 1:18-cv-00225-ELR-JKL Document 1 Filed 01/16/18 of 26

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42 U.S.C. § 1981, as amended by the Civil Rights Act of 1991 (“Section 1981”), for

race discrimination and retaliation; (3) the Fair Labor Standards Act (the “FLSA”),

as amended, 29 U.S.C. §201 et seq., for unpaid overtime wages; and (4) state law

claims of battery, intentional infliction of emotional distress, and negligent

supervision and retention.

2.

This Court has original jurisdiction over Plaintiff’s Title VII and Section 1981

claims pursuant to 28 U.S.C. §§ 1331.

3.

Venue in this district and division is proper under 28 U.S.C. § 1391 as Defendants

reside and maintain a place of business in the Northern District of Georgia, Atlanta

Division, and the unlawful conduct complained of herein occurred in this district and

division.

4.

This Court has Supplemental Jurisdiction over pendant state law claims under 28

U.S.C. § 1367 because said claims arise from the same nucleus of operative facts as

the federal claims which form the basis of the Complaint.

5.

Plaintiff satisfied all administrative prerequisites to institute this action under

Title VII. Specifically, Plaintiff timely filed a charge of discrimination with the


3

Equal Employment Opportunity Commission (the “EEOC”). The Notice of Right to

Sue for Plaintiff’s Charge was dated October 26, 2017 and Plaintiff received it

shortly thereafter. Plaintiff has brought this suit within ninety (90) days of receipt of

the Notice of Right to Sue.1

PARTIES

6.

Plaintiff is a citizen of the United States and is entitled to bring actions of this

nature and type. Plaintiff is a resident of the Northern District of Georgia and is

subject to this Court’s jurisdiction.

7.

At all times relevant to this action, Plaintiff was an employee of Defendant

Ameritrade within the meaning of Title VII of the Civil Rights Act and the FLSA §

3(e), 29 U.S.C. § 203(e). Plaintiff performed non-exempt work for Defendant

Ameritrade within the last three (3) years and regularly worked in excess of forty

(40) hours in a given work-week.

8.

Defendant Ameritrade is a New York corporation with its principal place of

business located at 200 South 108th Avenue, Omaha, NE 68154. It is authorized to

1 Plaintiff notes that her employment with Ameritrade was terminated after she received her Noticeof Right to Sue from the EEOC. As a result, Plaintiff filed a second Charge of Discrimination withthe EEOC and will amend her Complaint once the second Notice of Right to Sue is received.


4

do business, and is actually doing business in Atlanta, Georgia. Ameritrade may be

served by delivering process to its registered agent, Incorporating Services, Ltd., at

900 Old Roswell Lakes Parkway Suite 310, Roswell, GA 30076.

9.

Ameritrade is an employer within the meaning of Title VII and the FLSA: it is

engaged in an industry affecting commerce, employs more than 500 persons for each

working day in each of twenty (20) calendar weeks in the current or preceding

calendar year, and has an annual gross income well over $500,000.

10.

Defendant Arango is now, and was at all times relevant to this action, a resident

of the State of Georgia and is subject to the jurisdiction of this Court. At all times

relevant to this action, Arango was Plaintiff’s direct supervisor who had authority to

terminate Plaintiff’s employment.

11.

Defendant Arango may be served with Summons and Process through

Ameritrade’s registered agent, Incorporating Services, Ltd., at 900 Old Roswell

Lakes Parkway Suite 310, Roswell, GA 30076.

12.

Defendant Lee is now, and was at all times relevant to this action, a resident of

the State of Georgia and is subject to the jurisdiction of this Court. Plaintiff’s duties


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at Ameritrade required her to provide administrative and clerical support to Lee who

is a Senior Financial Consultant.

13.

Defendant Lee may be served with Summons and Process through Ameritrade’s

registered agent, Incorporating Services, Ltd., at 900 Old Roswell Lakes Parkway

Suite 310, Roswell, GA 30076.

STATEMENT OF FACTS

I. Background Unpaid Overtime

Defendant Ameritrade is a brokerage firm with over 100 branches in thirty-four

(34) states.

14.

Plaintiff—a thirty-one (31) year old African-American female—is a former

employee of Defendant Ameritrade who worked at the Atlanta, Georgia Branch (the

“Branch”) from December 8, 2016 until she was terminated on December 27, 2017.

15.

As a Client Service Specialist, Plaintiff was paid $21.00 per hour for performing

administrative duties such as answering phone calls; greeting, directing, and

assisting walk-in or call-in clients at the Branch; and scanning and mailing

documents.

16.


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In addition to the aforementioned duties, Plaintiff provided clerical support to the

Branch’s staff that required Plaintiff to work beyond 40 hours during several

workweeks. Thus, Plaintiff worked on average, 12 hours of overtime per week for

which she was entitled to receive overtime pay. However, Plaintiff was never

compensated for those additional hours.

17.

At all times relevant to this action, Plaintiff did not have independent discretion

or decision-making authority; all of Plaintiff’s actions and job duties were

undertaken at the explicit direction of her supervisors, or otherwise required

approval from the same.

18.

The reporting hierarchy within the Branch during Plaintiff’s employment was as

follows: Plaintiff was directly supervised by the Branch Manager, Defendant

Arango, who directly reports to the Senior Manager, George Villasi.

II. Disparate Treatment

19.

At all times relevant to this action, Plaintiff was the only African-American

female employee in an administrative position at the Branch.

20.


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Throughout Plaintiff’s employment with Ameritrade, Plaintiff was treated less

favorably than her non-African-American employees, especially from her

supervisor/Branch Manager, Defendant Arango.

21.

Defendant Arango constantly chastised and reprimanded Plaintiff even though

she performed her tasks diligently. For instance, although Plaintiff received excellent

client scores and an outstanding performance award from corporate, Defendant

Arango gave Plaintiff below average performance reviews and refused to give

Plaintiff any training even when Plaintiff requested it on numerous occasions.

22.

In addition, Ameritrade promised Plaintiff approximately 160 hours of study time

for a securities exam at the outset of Plaintiff’s employment. However, unlike her

non-African-American co-workers in similarly situated positions, not only was

Plaintiff forced to sign a contract to waive her rights to forego the allocated study

time but also Ameritrade never offered to reimburse her study materials for the

exam.

III. Sexual Harassment and Race Discrimination

23.

Shortly after Plaintiff began her employment with Defendant Ameritrade,

Defendant’s male employees began harassing Plaintiff based on her gender and race.


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The harassment persisted until Plaintiff’s termination of employment on December

27, 2017. The harassment was both verbal and physical and was carried out in the

workplace during regular workhours.

24.

All harassment alleged herein was unwanted, unwelcomed, and uninvited by

Plaintiff.

25.

Throughout Plaintiff’s employment with Defendant, Ameritrade’s Senior

Financial Consultant (Defendant Lee) frequently made comments and engaged in

conduct of a sexual nature about Plaintiff’s body, looks, and attire on numerous

occasions. Lee’s comments and conduct included, but are not limited to, the

following:

a. Lee stated that Plaintiff has “nice big thighs” and that he loved when

Plaintiff wore a skirt because he can “hear [her] thighs”;

b. Lee humped Plaintiff from behind in the copy room “like a dog”;

c. Lee asked Plaintiff out for lunch, dinner, and drinks;

d. Lee made sexual advances toward Plaintiff;

e. Lee grabbed Plaintiff’s buttocks; and

f. Lee followed Plaintiff to her home.

26.


9

In addition to the sexual comments and conduct, Lee also made racially

discriminatory remarks about Plaintiff’s African-American race. For instance, on

May 11, 2017, Lee threw a banana peel at Plaintiff. When Plaintiff criticized Lee’s

action, he responded, “What? I thought you people like bananas” and further stated

that Plaintiff was being “too sensitive” and that she needed to “get over it.”

27.

The following day, Lee followed Plaintiff into the copy room and asked Plaintiff

if they could “hug it out” and “have dinner together.” When Plaintiff refused, Lee

threw a banana cupcake at Plaintiff.

28.

Another Senior Financial Consultant, Everett Wilkerson (“Wilkerson”), at

Ameritrade also made racially discriminatory remarks about Plaintiff’s African-

American race during Plaintiff’s employment. On several occasions, Wilkerson

asked Plaintiff for opioids and marijuana because he “knows that [Plaintiff’s people]

have the good stuff.”

29.

Plaintiff reported all incidents mentioned herein to her supervisor/Branch

Manager (Defendant Arango) who immediately expressed his skepticism about

Plaintiff’s allegations. Arango, however, assured and promised Plaintiff on at least


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three (3) different occasions that he was going to “handle the situation” and report

the incidents to Ameritrade’s HR Department.

30.

Unbeknownst to Plaintiff until August 2017, Arango never reported these

incidents to HR.

31.

In fact, Arango himself also made numerous comments and engaged in conduct

of a sexual nature towards Plaintiff. Arango’s comments and conduct included, but

are not limited to, the following:

a. Arango asked Plaintiff how far she was willing to go sexually to keep

her job;

b. Arango asked Plaintiff what her favorite sex position is;

c. Arango showed Plaintiff pornographic images on his phone;

d. Arango asked Plaintiff for her naked pictures including pictures of

Plaintiff’s “pussy”;

e. Arango asked Plaintiff if she “gives fellatio”;

f. Arango told Plaintiff that she had to do some “special one-on-one

projects with [him] after-hours if she wanted to advance”;

g. Arango grabbed Plaintiff’s thighs and slapped her buttocks;

h. Arango deliberately touched Plaintiff’s shoulder and arms; and


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i. Arango followed Plaintiff to her home after work.

IV. Hostile Work Environment and Retaliation

32.

When Plaintiff learned that her supervisor (Arango) never reported any of the

incidents, Plaintiff filed a formal complaint about the incidents directly to HR.

33.

Shortly thereafter, Arango retaliated against Plaintiff by, among other things, (1)

stating that Plaintiff went “behind [his] back to make [him] look bad” and that her

investigation was “doomed” due to his close relationship with the HR personnel, (2)

telling Plaintiff to “watch [her] back” because he was capable of terminating

Plaintiff’s employment at any given time by putting Plaintiff on disciplinary action

for “any little thing,” (3) stating that Plaintiff would have a difficult time finding

another job in the industry since he was “well connected” and that he was surely

going to give Plaintiff a poor review and recommendation, (4) stating that he wasn’t

“going anywhere” since he had been with Ameritrade for 20 years and Plaintiff was

“expendable,” (5) reducing Plaintiff’s PTO, (6) refusing to let Plaintiff take a

securities exam that is granted to all Ameritrade’s employees, and which would have

resulted in higher pay to Plaintiff upon passing, (7) giving Plaintiff negative

performance reviews when she in fact was one of the three recipients in the Southern


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region for Ameritrade’s national outstanding performance award, and (8)

terminating Plaintiff’s employment.

34.

Despite Plaintiff’s report to Ameritrade’s HR department, Ameritrade failed to

address the issues and continued to expose Plaintiff to ongoing harassment by its

employees.

35.

As a result of Ameritrade’s inaction, Plaintiff felt frightened, anxious, nervous,

embarrassed, humiliated, and powerless at work.

36.

On September 28, 2017, Plaintiff decided to take matters into her own hands and

filed a charge with the EEOC.

37.

Shortly thereafter, Ameritrade terminated Plaintiff’s employment on December

27, 2017 for allegedly engaging in “disruptive and unprofessional behavior.”

38.

The stated reason for Plaintiff’s termination was pretext. In reality, Ameritrade’s

decision to terminate Plaintiff’s employment was motivated by—among others—(1)

Plaintiff’s African-American race, (2) Plaintiff’s unwillingness to yield to Defendant

Arango’s sexual advances, and (3) Plaintiff’s filing a charge with the EEOC.


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CLAIMS FOR RELIEF

COUNT ISEXUAL HARASSMENT

(QUID PRO QUO & HOSTILE WORK ENVIRONMENT)IN VIOLATION OF TITLE VII(Against Defendant Ameritrade)

39.

Plaintiff re-alleges and incorporates by reference each of the foregoing

paragraphs as if fully restated herein.

40.

Plaintiff is a female and member of a protected class under Title VII of the Civil

Rights Acts of 1964, as amended, 42 U.S.C. § 2000e, et. seq.

41.

At all times relevant to this action, the relationship between Plaintiff and

Defendant Ameritrade was a relationship of “employee” to “employer” within the

meaning of 42 U.S.C. § 2000e, et. seq., such that a cause of action exists where

harassment on the basis of sex is alleged to be the cause of an adverse action directed

to the employee by the employer.

42.

At all times relevant to this action, Defendant Arango and Defendant Lee were

employees of Ameritrade. Furthermore, Arango was Plaintiff’s direct supervisor


14

who had the authority to undertake and recommend tangible employment actions

against Plaintiff.

43.

Arango and Lee subjected Plaintiff to unwelcome sexual harassment by—among

other things—making sexual advancements and inappropriately touching Plaintiff,

conditioning Plaintiff’s advancement on sexual favors, making sexually explicit

comments, thereby exposing her to a hostile work environment.

44.

The unwelcome sexual harassment was sufficiently severe and pervasive so as to

unreasonably interfere with Plaintiff’s work performance or create an intimidating,

hostile and offensive work environment.

45.

Ameritrade knew or should have known of the continuous harassment in the

workplace but failed to take reasonable preventative or corrective measures with

respect to the hostile work environment and the unlawful termination of Plaintiff’s

employment due to her refusal to yield to Arango’s sexual advances.

46.

As a proximate and direct result of Ameritrade’s conduct, Plaintiff has suffered

and will continue to suffer damages including emotional distress, inconveniences,


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loss of income and benefits, humiliation, and other indignities, for which she is

entitled to recover.

COUNT IIRACE DISCRIMINATION

IN VIOLATION OF TITLE VII AND SECTION 1981(Title VII Against Defendant Ameritrade & Section 1981 Against All

Defendants)

47.



48.

Plaintiff is African-American and member of a protected class under Title VII of

the Civil Rights Acts of 1964, as amended, 42 U.S.C. § 2000e, et. seq.

49.


Defendant Ameritrade was a relationship of “employee” to “employer” within the

meaning of 42 U.S.C. § 2000e, et. seq., such that a cause of action exists where

discrimination on the basis of race is alleged to be the cause of an adverse action

directed to the employee by the employer.

50.

At all times relevant to this action, Arango, Lee, and Wilkerson were employees

of Ameritrade. Furthermore, Arango was Plaintiff’s direct supervisor.


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51.

Although Plaintiff was qualified to perform her duties, Defendants discriminated

against Plaintiff on the basis of her race by—among other things—denying Plaintiff

the same opportunities as her non-African-American coworkers such as allocated

study time, reimbursement of study materials, trustworthy performance reviews, a

thorough investigation and response from HR to her harassment and discrimination

claims; and terminated her employment on the same grounds. In addition, Lee and

Wilkerson made racial comments, slurs and insults. The environment that

Defendants created materially changed the terms and conditions of Plaintiff’s work,

creating a hostile environment.

52.

Defendants’ actions constitute unlawful race discrimination in violation of Title

VII and Section 1981.

53.

Defendants’ have willfully and wantonly disregarded Plaintiff’s statutory rights

and Defendants’ discrimination was undertaken in bad faith.

54.

As a direct and proximate result of the above-described unlawful employment

practices, Plaintiff has suffered and continues to suffer the indignity of race

discrimination, the invasion of right to be free from race discrimination, humiliation,


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emotional pain, mental distress, inconveniences and mental anguish, for which she

is entitled to recover.

COUNT IIIRETALIATION

IN VIOLATION OF TITLE VII AND SECTION 1981(Title VII Against Defendant Ameritrade &

Section 1981 Against Defendants Ameritrade and Arango)

55.



56.


Defendant Ameritrade was a relationship of “employee” to “employer.”

57.

At all times relevant to this action, Defendant Arango was an employee of

Ameritrade and was Plaintiff’s direct supervisor.

58.

Title VII and Section 1981 makes it unlawful for an employer to retaliate against

an employee who reports or opposes harassment and discrimination based on sex

and/or race.

59.


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Defendants Ameritrade and Arango unlawfully retaliated against Plaintiff by,

among other things, terminating Plaintiff’s employment because: (1) she opposed

Defendant Arango and Defendant Lee’s sexual advances and harassment, (2) she

opposed race discrimination and racial harassment, (3) she reported the harassment

to HR, and (4) she filed a charge with the EEOC.

60.

Defendants Ameritrade and Arango had knowledge of Plaintiff’s participation in

protected activities.

61.

Defendant Ameritrade’s conduct constitutes unlawful retaliation in violation of

Title VII and Section 1981.

62.

As a proximate and direct result of Defendant Ameritrade’s conduct, Plaintiff has

suffered, and will continue to suffer, damages including emotional distress,

inconveniences, loss of income and benefits, humiliation, and other indignities, for

which she is entitled to recover.

COUNT IVUNPAID OVERTIME

IN VIOLATION OF THE FLSA(Against Defendant Ameritrade)

63.


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64.

During the relevant time period, Plaintiff was an employee of Defendant

Ameritrade within the meaning of 29 U.S.C. § 203(e)(1).

65.

During the relevant time period, Plaintiff regularly worked more than forty (40)

hours per workweek. Therefore, Plaintiff was entitled to be paid one-and-one-half

times her regular rate for each hour worked in excess of forty (40) hours per

workweek.

66.

Throughout her employment with Defendant Ameritrade, Plaintiff was never

compensated for the hours she worked in excess of forty (40) hours per workweek.

67.

Defendant Ameritrade’s actions, policies, and/or practices described therefore

violate the FLSA, 29 U.S.C. § 207(a).

68.

Under any interpretation of the terms, Defendant’s conduct in violation of the

FLSA was both willful and in bad faith.

69.


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As a result of Defendant Ameritrade’s intentional, willful, and unlawful acts in

refusing to pay Plaintiff complete overtime compensation for the overtime hours she

worked, Plaintiff suffered damages in addition to incurring reasonable attorneys’

fees and costs for which she is entitled to recover.

COUNT VSTATE LAW – BATTERY

(Against Defendants Arango and Lee)

70.



71.

Defendant Arango and Defendant Lee intentionally and deliberately touched

Plaintiff’s body parts—including her shoulders, arms, waist, thighs and buttocks—

during her employment without her invitation or permission.

72.

Defendants’ actions as described herein were sexual and insulting and constitute

unlawful and offensive touching of Plaintiff.

73.

As a direct and proximate result of Defendants’ unlawful actions, Plaintiff has

suffered damages for which she is entitled to recover as provided by law.

COUNT VI


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STATE LAW – INTENTIONAL INFLICTION OF EMOTIONALDISTRESS

(Against All Defendants)

74.



75.

Defendants conduct towards Plaintiff mentioned herein was intentional and/or

reckless, extreme and outrageous, and caused Plaintiff severe shame, humiliation,

embarrassment and emotional distress of a nature that no reasonable person can

endure.

76.

Defendants knew or should have known that such conduct would result in severe

emotional distress by Plaintiff.

77.

As a result of Defendants’ conduct, Plaintiff has and will continue to suffer

damages for which she is entitled to recover as provided by law.

COUNT VIISTATE LAW – NEGLIGENT SUPERVISION AND RETENTION

(Against Defendant Ameritrade)

78.


22



79.

Defendant Ameritrade knew, or in the exercise of ordinary diligence, should have

known of its employees’ racial and sexual harassment of Plaintiff.

80.

Ameritrade owed a duty to Plaintiff to retain employees who would lawfully

conduct themselves and not engage in discriminatory and tortious conduct.

81.

Ameritrade breached the aforementioned duty by negligently supervising and

retaining its employees who continued to harass Plaintiff and therefore continued to

expose Plaintiff to a hostile work environment. Further, Ameritrade ratified,

condoned or adopted its employees’ conduct via inaction.

82.

Ameritrade acted maliciously, willfully, wantonly, oppressively, and with

specific intent to injure Plaintiff and/or her federally protected rights. Additional and

in the alternative, Ameritrade acted recklessly toward Plaintiff and/or her federally

protected rights. Accordingly, Defendant is thus liable to Plaintiff for all damages.

COUNT VIIIPUNITIVE DAMAGES(Against All Defendants)


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83.



84.

Defendants’ actions with respect to Plaintiff have shown willful misconduct,

malice, fraud, wantonness, oppression and complete disregard of care, thus entitling

Plaintiff to an award of punitive damages in order to deter, punish and penalize

Defendants for and from such conduct in the future.

COUNT IXATTORNEYS FEES

(Against All Defendants)

85.



86.

Plaintiff is entitled to an award of attorneys’ fees and expenses of litigation on

each and every cause of action alleged herein, because Defendants have acted in bad

faith, been stubbornly litigious, and caused Plaintiff unnecessary trouble and

expense.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that this Court:


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(1) Grant Plaintiff a trial by jury as to all triable issues of act;

(2) Grant declaratory judgment that Plaintiff’s right under the FLSA, Title

VII, Section 1981, and Georgia State Laws have been violated;

(3) Grant an injunction prohibiting the Defendants from engaging in such

unlawful conduct in the future;

(4) Award compensatory damages in an amount to be determined by a

jury;

(5) Award appropriate back overtime pay, reimbursement for lost salary,

unpaid wages, and compensate for other damages in amounts to be

shown at trial;

(6) Award prejudgment interest on any award of back pay made by the

jury as required by law;

(7) Award liquidated damages equal to any back pay for Defendants’

willful violation of the FLSA;

(8) Award punitive damages in an amount reasonable and commensurate

with the harm done and calculated to be sufficient to deter such

conduct in the future;

(9) Award Plaintiff’s attorneys’ fees, costs, and disbursements; and

(10) Award Plaintiff such further and additional relief as may be just and

appropriate.


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Respectfully submitted this 16th day of January 2018.

By: /s/ Regina S. MoldenRegina S. MoldenGeorgia Bar No. [email protected] & ASSOCIATESPeachtree Center – Harris Tower233 Peachtree St, NE, Suite 1245Atlanta, Georgia 30303Telephone: (404) 324-4500Facsimile: (404) 324-4501ATTORNEY FOR PLAINTIFF


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CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 5.1

The undersigned hereby certifies that the foregoing document has been

prepared in accordance with the font type and margin requirements of Local Rule

5.1 in the Northern District of Georgia, using a font type of Times New Roman and

a point size of 14.

By: /s/ Regina S. MoldenRegina S. MoldenGeorgia Bar No. 515454


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