You're viewing Docket Item 18 from the case Pacle v. JP Morgan Chase Bank, NA (SW). View the full docket and case details.

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Case3:13-cv-03379-TEH Document18 Filed09/19/13 Page1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

ALMA PACLE,

Plaintiff,

v.

JPMORGAN CHASE BANK, N.A.,

Defendant.

NO. C13-3379 TEH
ORDER GRANTING
DEFENDANT’S MOTION TO
DISMISS

This matter comes before the Court on Defendant’s motion to dismiss Plaintiff’s third

cause of action for disparate impact. After carefully reviewing the parties’ written
arguments, the Court finds oral argument unnecessary and now VACATES the
September 23, 2013 hearing. Defendant’s motion is GRANTED for the reasons set forth
below.

BACKGROUND

Approximately two months after her June 9, 2011 termination by Defendant

JPMorgan Chase Bank, N.A. (“Chase”), Plaintiff Alma Pacle filed an administrative charge
of age discrimination with both the Equal Employment Opportunity Commission (“EEOC”)
and the California Department of Fair Employment and Housing (“DFEH”). In full, her
administrative complaint alleges the following:

I began working for predecessor employer Great Western Bank in
1996. I became a Branch Manager at Oakland E. 14th Street
branch in May 1999 for successor employer WAMU. In about
2003, I became Branch Manager of E. 14th Street, San Leandro
branch. In about July 2009, I became an employee of JP Morgan
Chase when Chase took over WAMU and was Branch Manager
of E. 14th Street, San Leandro until my termination on June 9,
2011. My total compensation from Chase in 2010 was
approximately $95,000 (about $82,000 base plus incentives).



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Case3:13-cv-03379-TEH Document18 Filed09/19/13 Page2 of 5

In my 2009 written performance evaluation, my District Manager
wrote, “Alma, you’ve had a tremendous year in 2009 ... were
[sic] #1 in revenue through Nov for the district, met all campaign
targets and achieved the highest PVCs in the district 5 months
straight .... You are an absolute joy to work with and I appreciate
and thank you for your contributions in 2009 and I look forward
to a successful 2010 working together.” In my 2010 written
performance evaluation, District Manager Elena Caselle rated me
as meets or exceeds expectations in every single category.

In January 2011, I got a new District Manager, Scott Mac
Cormac. I believe that Mr. Mac Cormac was looking for a way
to replace me from the moment he became my District Manager
because of my age. Mr. Mac Cormac is approximately 45 or 46
years of age.

In January 2011, Mr. Mac Cormac fired Oakland, 20th Street
Branch Manager Ms. Tai Filo (in her mid-50’s) and replaced her
with Ms. Jasmine (last name unknown), approximately 26 years
old.

On June 9, 2011, Mr. Mac Cormac fired me and replaced me with
Idania (last name unknown), approximately 26 years old. Idania
is clearly less qualified than I am to be Branch Manager because I
have 12 years’ experience as Branch Manager of a large branch
and she only had approximately six months’ experience as
Branch Manager of a smaller branch.

I believe that I have been discriminated against because of my
age and wrongfully terminated because of my age.

Ex. A to Compl. at 3.

Pacle’s complaint asserts three causes of action, all under state law: (1) disparate

treatment based on age, in violation of California Government Code sections 12940 et seq.;
(2) wrongful termination against public policy; and (3) disparate impact based on age, in
violation of California Government Code sections 12900 et seq. Pacle’s disparate impact
claim is based on her allegation that Chase “followed a facially neutral policy of terminating
as many former Great Western and WAMU Branch Managers as possible, resulting in a
disparate impact on Branch Managers over the age of 40.” Compl. ¶ 12. Chase now moves
to dismiss that claim for failure to exhaust administrative remedies.
//
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Case3:13-cv-03379-TEH Document18 Filed09/19/13 Page3 of 5

DISCUSSION

An employment discrimination plaintiff must exhaust administrative remedies, and

this Court only has jurisdiction over conduct alleged in the administrative charge and conduct
that is “like or reasonably related to” the administrative allegations. Rodriguez v. Airborne
Express, 265 F.3d 890, 896-97 (9th Cir. 2001) (internal quotation marks and citation
omitted). “This standard is met where the allegations in the civil suit are within the scope of
the administrative investigation which can reasonably be expected to grow out of the charge
of discrimination.” Id. at 897 (internal quotation marks and citation omitted). In evaluating
whether the standard has been satisfied, administrative charges must be liberally construed.
Id.

The parties dispute whether investigation into Pacle’s disparate impact claim – that a
neutral policy of terminating former branch managers of Great Western and WAMU had a
disproportionate impact on older employees – would be “reasonably expected to grow” out
of Pacle’s administrative complaint. For the reasons discussed below, the Court agrees with
Chase that it would not.

Disparate treatment and disparate impact claims raise distinct theories of

discrimination:

Disparate treatment is the most easily understood type of
discrimination. The employer simply treats some people less
favorably than others because of their race, color, religion, sex, or
other protected characteristic. Liability in a disparate-treatment
case depends on whether the protected trait actually motivated the
employer’s decision. By contrast, disparate-impact claims
involve employment practices that are facially neutral in their
treatment of different groups but that in fact fall more harshly on
one group than another and cannot be justified by business
necessity. Under a disparate-impact theory of discrimination, a
facially neutral employment practice may be deemed illegally
discriminatory without evidence of the employer’s subjective
intent to discriminate that is required in a ‘disparate-treatment’
case.

Raytheon Co. v. Hernandez, 540 U.S. 44, 52-53 (2003) (internal quotation marks, citations,
and alterations omitted). Pacle relies solely on Gomes v. Avco, 964 F.2d 1330 (2d Cir. 1992),
to support the proposition that “an investigation of plaintiff’s disparate impact claim would



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Case3:13-cv-03379-TEH Document18 Filed09/19/13 Page4 of 5

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reasonably have flowed from an investigation of the disparate treatment claim.” Opp’n at 3.
However, Gomes is distinguishable because the administrative charge in that case alleged
that Gomes, the only Portuguese employee in his job category, was denied a promotion under
a facially neutral rule requiring at least eight years of practical experience or completion of
an apprenticeship course. Gomes, 964 F.2d at 1331, 1334. Here, by contrast, Pacle’s
administrative charge, quoted in full above, discusses only her belief that she was
discriminated against based on her age – i.e., was subjected to disparate treatment. For
example, she asserts “that Mr. Mac Cormac was looking for a way to replace me from the
moment he became my District Manager because of my age,” and “that I have been
discriminated against because of my age and wrongfully terminated because of my age.”
Ex. A to Compl. at 3. While the charge references Pacle’s previous employment by Great
Western and WAMU, nothing in the charge suggests a policy of terminating such individuals
or any other facially neutral employment practice. Consequently, as other courts have found
in similar circumstances, it would not be reasonably expected for an investigation into the
alleged policy to grow out of the administrative charge in this case, and Pacle’s disparate
impact claim must be dismissed for failure to exhaust. E.g., Pacheco v. Mineta, 448 F.3d
783, 792 (5th Cir. 2006) (“In this case, we hold that a disparate-impact investigation could
not reasonably have been expected to grow out of Pacheco’s administrative charge because
of the following matters taken together: (1) it facially alleged disparate treatment; (2) it
identified no neutral employment policy; and (3) it complained of past incidents of disparate
treatment only.”); De Los Santos v. Panda Express, Inc., No. C10-1370 SBA, 2010 WL
4971761, at *4-5 (N.D. Cal. Dec. 3, 2010) (finding that a “passing reference” to a neutral
policy “neither states nor implies that [the policy] had any disparate impact on [plaintiff] or
any other employee,” and that plaintiff’s administrative charge alleging disparate treatment
therefore failed to exhaust her disparate impact claim).

With few exceptions, an administrative claim must be filed before the DFEH within

one year of the alleged unlawful practice. Cal. Gov’t Code § 12960(d). Pacle does not
contend that any of the exceptions apply here, and she alleges that she was terminated on



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Case3:13-cv-03379-TEH Document18 Filed09/19/13 Page5 of 5

June 9, 2011. Thus, the time for filing a claim with DFEH long ago expired, and it is too late
for Pacle to exhaust her disparate impact claim. Dismissal is therefore with prejudice.

Accordingly, with good cause appearing, Chase’s motion to dismiss Pacle’s third

cause of action based on disparate impact is GRANTED without leave to amend.

IT IS SO ORDERED.

Dated: 09/19/13


THELTON E. HENDERSON, JUDGE
UNITED STATES DISTRICT COURT



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