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Plaintiff, :


v. : CA 10-29 S



& SMITH, INC., d/b/a BANC OF :



Defendants. :


David L. Martin, United States Magistrate Judge Before the Court is Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint and Request for Hearing (Docket (“Dkt.”) #8) (“Motion to Dismiss” or “Motion”) for failure to state a claim upon which relief may be granted. The Motion has been referred to me for preliminary review, findings, and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B).

After reviewing the filings, listening to oral argument, and performing independent research, I recommend that the Motion be granted in part and denied in part.

I. Facts Plaintiff Abdul-Giyath O. Mayale-Eke (“Plaintiff” or “Mayale-Eke”) is a resident of Providence, Rhode Island. Amended Complaint (Dkt. #5) 1.1 He was born in Nigeria and is of African descent. Id. 2. His skin is dark brown. Id. MayaleEke immigrated to the United States in 2001 and became an American citizen in 2007. Id.

Defendant Merrill Lynch, Pierce, Fenner & Smith, Inc.

(“Merrill Lynch”), is a Delaware corporation with headquarters in Charlotte, North Carolina. Id. 5. It is in the business of investment counseling and management. Id. 8. Merrill Lynch was acquired by Bank of America Corporation (“Bank of America”) in 2009 and is now a wholly-owned subsidiary of Bank of America.

Id. 5.

In 2007, Merrill Lynch interviewed Mayale-Eke for employment as an investment specialist at its Lincoln, Rhode Island, location. Id. 9. At that time, Plaintiff had already become a registered representative by passing the general securities representative exam, a prerequisite for being an investment specialist at Merrill Lynch. Id. 10. Plaintiff was hired by Merrill Lynch on October 1, 2007, and his duties were to provide customer service, answer questions, and place customers’ investment orders by phone. Id. 11. Mayale-Eke successfully completed a two week training program and thereafter passed the The paragraphs of Plaintiff’s Amended Complaint (Dkt. #5) are numbered 1 to 9 followed by paragraphs 1 to 59. Such numbering is confusing and should be avoided. As renumbering the paragraphs would create even more confusion, the Court notes the anomaly and uses Plaintiff’s numbering in citing to the Amended Complaint.

licensing exam to become a securities agent. Id. 12-14.

Jason Misiano (“Misiano”), a Caucasian Merrill Lynch employee, was one of Plaintiff’s supervisors. Id. 9. Both Merrill Lynch and Misiano (collectively “Defendants”) knew Plaintiff’s race, color, place of birth, and religion. Id. 3.

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his accent, some customers asked him where he was born, if he was Muslim, or what he thought of Osama Bin Laden and terrorists.

Id. 15-18. Additionally, some customers expressed dislike for Muslims or asked to be transferred to someone who spoke “American English.” Id. 19-20. Some customers also complained to Merrill Lynch about Mayale-Eke. Id. 21. All calls between Mayale-Eke and Merrill Lynch customers were recorded, and some were monitored by supervisors and/or quality assurance (“QA”) evaluators. Id. 22.

On April 29, 2008, within several weeks of customers’ complaints to Merrill Lynch, Plaintiff received a written warning (“First Written Warning”) that his performance was not meeting expectations. Id. 23. The First Warning was issued by Joseph Kelly (“Kelly”), Plaintiff’s immediate supervisor who reported directly to Misiano. Id. 24. Merrill Lynch uses an objective quality assurance score (“QA score”) on a scale of zero to 100% to grade the performance of its customer service agents, and the First Written Warning noted that Mayale-Eke’s QA score was 77.47% for the first quarter of 2008. Id. 26-27. According to the Merrill Lynch handbook governing Plaintiff’s employment (the “Handbook”), investment specialists who receive a QA score of 70% or greater are eligible to participate in the company’s incentive system, and specialists who receive a QA score of 75% or greater receive a bonus. Id. 28-29. Mayale-Eke’s QA score of 77.47% made him eligible for a bonus. Id. 29. After the First Written Warning, Plaintiff was informed that he received a bonus for his performance in the first quarter of 2008, the first

–  –  –

Plaintiff’s First Written Warning, Kelly wrote that Mayale-Eke had to “improve his Quality scores immediately, to be in line with the... average of 87.49.” Id. 31 (alteration in original). A requirement that specialists attain the average score for their team2 does not appear in the Handbook, and it is inconsistent with the policy that investment specialists with a score of 70% participate in the incentive system and the provision that investment specialists with a 75% score or more get a bonus. Id. 32.

Plaintiff was issued a second and final written warning (“Final Written Warning”) by Kelly two weeks after receiving the First Written Warning. Id. 33. The Final Written Warning was The Amended Complaint does not explain who or what constituted Plaintiff’s “team.” Amended Complaint 32.

temporally proximate to customers’ inquiries regarding Plaintiff’s country of origin and religion and customers’ complaints about him. Id. 34. The Final Written Warning indicated that Mayale-Eke’s QA score for April 2008 through May 2008 had increased by 13% to 82.54 since the first quarter of 2008, which, according to the Handbook, would entitle Plaintiff to a bonus. Id. 36-37. Kelly wrote in Mayale-Eke’s Final Written Warning that Plaintiff was expected to improve his QA scores immediately to be in line with the average of 87.49. Id.

37. Plaintiff’s QA score of 82.45 was 4.95% less than this.


Two weeks after the Final Written Warning, Misiano terminated Plaintiff. Id. 38. Misiano told Plaintiff that he was a “business risk” and was causing clients to take their business away from Merrill Lynch. Id. 39.

II. Travel On September 9, 2008, Plaintiff filed a charge of discrimination based on race, color, national origin, and religion with the Rhode Island Commission for Human Rights (“Commission”), which on December 31, 2009, issued him a right to sue letter. Id. 7-8. Plaintiff commenced the instant action on or about January 5, 2010. See Notice of Removal, Exhibits (“Exs.”) 1-2 (Complaint). He filed his Amended Complaint on February 15, 2010. See Amended Complaint. Defendants filed the instant Motion to Dismiss on March 1, 2010. See Dkt. The Court conducted a hearing on the Motion on April 14, 2010, and thereafter took the matter under advisement.

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In 2007, the Supreme Court altered the Rule 12(b)(6) standard in a manner which gives it more heft. ACA Fin. Guar.

Corp. v. Advest, Inc., 512 F.3d 46, 58 (1st Cir. 2008). In order to survive a motion to dismiss a complaint must allege ‘a plausible entitlement to relief.” Id. (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 559, 127 S.Ct. 1955 (2007)). This pleading standard applies to all civil actions, including

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1937, 1953 (2009).

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Id. at 1949 (quoting Rule 8(a)(2)). The pleading standard Rule 8 announces does not require “detailed factual allegations,” id., but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation, id. (citing Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Id. (citing Twombly at 555). Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id.

(citing Twombly at 557).

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. (citing Twombly at 570). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. (citing Twombly at 556). The plausibility standard is not akin to a “probability requirement,” id., but it asks for more than a sheer possibility that a defendant has acted unlawfully, id. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. (citing Twombly at 557).

In Iqbal, the Supreme Court explained that two working principles underlay its decision in Twombly. Id. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.

Id. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id.

(citing Twombly at 555). Although for the purposes of a motion to dismiss a court must take all of the factual allegations in the complaint as true, the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Id. at 1949-50. While Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Id. at 1950. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. (citing Twombly at 556). Determining whether a complaint states a plausible claim for relief is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Id. Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not “show[n]”-“that the pleader is entitled to relief.” Id.

(quoting Rule 8(a)(2)).

A court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. Id.

While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. Id. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. The Iqbal court cited its analysis in Twombly as illustrating this “two-pronged approach.” Id.

B. Employment Discrimination The Supreme Court held in Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, 122 S.Ct. 992 (2002), that a complaint in an employment discrimination lawsuit does not have to contain specific facts establishing a prima facie case of discrimination under the framework set forth in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). Swierkiewicz appears

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Cir. 2007)(“Because the Supreme Court majority [in Twombly] distinguished Swierkiewicz and nowhere expressed an intent to overturn it, we have no basis for concluding that Swierkiewicz is no longer good law.”); Westmoreland v. Prince George’s County, Maryland, Civil Action No. 09-CV-2453 AW, 2010 WL 3369169, at *3 n.5 (Aug. 23, 2010)(“The Twombly Court made clear that its holding did not contradict the Swierkiewicz rule that a complaint in an employment discrimination lawsuit [need] not contain specific facts establishing a prima facie case of discrimination.”)(internal quotation marks omitted); Goodman v.

Merrill Lynch & Co., No. 09 Civ. 5841(SAS), 2010 WL 1404155, at *4 (S.D.N.Y. Apr. 6, 2010)(“Twombly itself held that Swierkiewicz remains good law.”); see also Desrouleaux v. Quest Diagnostics, Inc., No. 09-61672-CIV, 2009 WL 5214964, at *2 (S.D. Fla. Dec.

29, 2009)(holding that Twombly and Iqbal “did not necessarily overturn Swierkiewicz” and stating “this Court will continue to follow Swierkiewicz in the employment discrimination context”).

But see Kleehammer v. Monroe Cnty., No. 09-CV-6177-CJS, 2010 WL 3609707, at *6 (W.D.N.Y. Sept. 8, 2010)(stating that “some courts and commentators have concluded that Twombly and Iqbal repudiated Swierkiewicz, at least to the extent that Swierkiewicz relied upon pre-Twombly pleading standards”).

C. Reconciling Twombly, Iqbal, and Swierkiewicz At least two courts have reconciled Swierkiewicz, Twombly, and Iqbal by holding that a complaint need not establish a prima facie case of employment discrimination to survive a motion to dismiss, but the claim must be facially plausible and must give fair notice to the defendants of the basis for the claim.

Barbosa v. Continuum Health Partners, Inc., 09 Civ. 6572(SAS), 2010 U.S. Dist. LEXIS 21052, at *8 (S.D.N.Y. Mar. 5, 2010); see also Kleehammer, 2010 WL 3609707, at *6 (finding reasoning in Barbosa persuasive and applying that standard). The standard stated in Barbosa appears to this Court to be an accurate distillation of the principles stated in Swierkiewicz, Twombly, and Iqbal. Accordingly, this Court will review Plaintiff’s Amended Complaint to determine whether it is facially plausible and gives fair notice to Defendants as to the basis for Plaintiff’s claim.

IV. Discussion

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Plaintiff’s discrimination claims are set forth in Counts I through V. Count I alleges that Merrill Lynch violated Title VII of the Civil Rights Act of 1964. Count II charges Merrill Lynch and Misiano with violating 42 U.S.C. § 1981. Counts III and IV allege, respectively, that Merrill Lynch and Misiano violated the Rhode Island Fair Employment Practices Act (“RIFEPA”).3 Count V alleges that both Defendants violated the Rhode Island Civil Rights Act (“RICRA”).

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