Cremin v. Merrill Lynch Pierce Fenner & Smith, Inc., No. 96 C 3773.

• Court: United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
• Writing for the Court: Castillo
• Citation: 957 F.Supp. 1460
• Docket Number: No. 96 C 3773.
• Decision Date: 21 February 1997
• Parties: Marybeth CREMIN, Plaintiff, v. MERRILL LYNCH PIERCE FENNER & SMITH, INC., Joseph Gannotti, The New York Stock Exchange and The National Association of Securities Dealers, Defendants.

957 F.Supp. 1460 Marybeth CREMIN, Plaintiff,
v.
MERRILL LYNCH PIERCE FENNER & SMITH, INC., Joseph Gannotti, The New York Stock Exchange and The National Association of Securities Dealers, Defendants. No. 96 C 3773. United States District Court, N.D. Illinois, Eastern Division. February 21, 1997.

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Mary Stowell, Linda Debra Friedman, Leng, Stowell, Friedman & Vernon, Chicago, IL, Michael Rubin, Altshuler, Berzon, Nussbaum, Berzon & Rubin, San Francisco, CA, for Plaintiffs.

James P. DeNardo, Kristin L. Dvorsky, McKenna, Storer, Rowe, White & Farrug, Chicago, IL, for Merrill Lynch Pierce Fenner & Smith, Inc.

David L. Lee, Tomes, Lee & Dvorak, Chicago, IL, Jonathan P. Tomes, Law Offices of Jonathan P. Tomes, Chicago, IL, Russell E. Brooks, Brian Kelly Kiser, Milbank, Tweed, Hadley & McCloy, New York City, New York Stock Exchange.

James Stephen Poor, Robert L. Jackson, III, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, Terri L. Reicher, Nat. Assoc. of Securities Dealers, Inc., Washington, DC, for Nat. Assoc. of Securities Dealers.

MEMORANDUM OPINION AND ORDER

CASTILLO, District Judge.

Plaintiff Marybeth Cremin sues her employer, Merrill Lynch, and supervisor, Joseph Gannotti, alleging that they subjected her to gender and pregnancy discrimination in violation of Title VII. She anticipates, however, that both defendants will move to send these claims to arbitration based on securities exchange arbitration rules. Heading them off at the pass, Count III of Cremin's complaint adds the New York Stock Exchange and the National Association of Securities Dealers as defendants, and seeks a declaratory judgment that the exchange-mandated arbitration of discrimination claims deprives Cremin of her constitutional due process and statutory rights. All four defendants contest this allegation, and have accordingly moved to dismiss Count III.

RELEVANT FACTS A. The Arbitration Agreement

In 1982, Marybeth Cremin was hired by Merrill Lynch as a licensed Financial Consultant. Compl. ¶ 2. To work in this area, Cremin had to register with the NASD and the NYSE¹ so that she could trade on the exchanges. Id. ¶ 7. She registered by completing the Uniform Application for Securities Industry Registration (Form U-4),

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which contained a clause requiring applicants to submit disputes to arbitration as specified in the NASD and NYSE rules:

I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm or a customer or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws of the organizations with which I register as indicated in Question 8.

Mot. Defs. Merrill.Lynch and Ganotti to Dismiss, Ex. 1 (Form U-4) at 4.² The U-4 incorporates not only the rules of the exchanges with which the applicant registers, but also their prospective amendments:

"I hereby apply for registration with the organizations indicated in Question 8 and ... I submit myself to the jurisdiction of such ... organizations and hereby certify that I have read, understand and agree to abide by, comply with, and adhere to all the provisions, conditions, and covenants of the.. constitutions, by-laws and rules and regulations of the ... organizations as they are and may be adopted, changed or amended from time to time...."

Id. These provisions are on the same page and preceded at the top by directions, in capital letters, that "THE FOLLOWING SHOULD BE READ VERY CAREFULLY BY THE APPLICANT"; a signature line appears at the bottom. Id. Using this form, Cremin registered with the NASD on October 20, 1982 and with the NYSE on September 11, 1983. Id. Ex. 2 ("Registrations & Exams: Cremin, Marybeth N.").

Both the NYSE and NASD have promulgated sets of arbitration rules that apply to registrants and member³ firms. The NYSE has two provisions relevant here:

• Article XI, section 1 of the NYSE Constitution states that any controversy between a member and any other person arising out of the business of the member shall be arbitrated according to the NYSE Constitution and any rules the Board may adopt.

• NYSE Rule of Board 347 provides that any controversy between a registered representative and any member arising out of the representative's employment with the member shall be settled by arbitration under the procedure prescribed in the rules.

Id. Ex. 3 (N.Y.SE, Constitution and NYSE Operation of Member Organizations). At the time Cremin signed the U-4, the NASD Code of Arbitration did not explicitly address employment disputes. In 1993, however, Part I, section 1 of the Code was amended to cover:

any dispute, claim or controversy arising out of or in connection with the business of any member of the Association, or arising out of the employment or termination of

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employment of associated person(s)⁴ with any members....

Id. Ex. 3 (NASD Code of Arbitration Procedure). The Code further provides that disputes eligible for submission under Part I "shall be arbitrated." Id.

B. The Discrimination Claims

While working in the securities industry for Merrill Lynch, Cremin claims she was the victim of discrimination on numerous occasions. Compl. ¶ 8. First, her supervisor, Joseph Gannotti, allegedly made disparaging remarks about her status as a working mother. Id. Among other things, Gannotti allegedly criticized the number of children Cremin had, stated he did not think women could combine family and career, hinted that Cremin would do "better" at Merrill Lynch if she divorced her husband, and told Cremin he thought she was too busy having children to develop her customer accounts. Id.

Second, Cremin claims that Merrill Lynch took adverse action against her because she was a woman and had children. Id. She was allegedly denied the same career opportunities that were offered her male colleagues, and worked under less favorable conditions. Id. The company allegedly pressured her to transfer clients to other brokers when she became pregnant and, later, denied her proper maternity leave benefits. Id. ¶¶ 8-16. When Cremin returned to work after the birth of her child in May 1995, Gannotti allegedly induced her to surrender all her accounts to predominantly male brokers, then fired her immediately afterward. Id. ¶¶ 17-23. Cremin's complaint does not reveal when the discrimination began, but the allegations are clear that it lasted through her child's birth in May 1995 and her subsequent termination that same year.

Cremin filed suit in this Court on June 21, 1996, claiming both employer and securities industry-wide discrimination against women in violation of Title VII. Count III, the subject of the defendants' motions to dismiss,⁵ deals only with industry discrimination in the form of mandatory arbitration. Distilled, Count III alleges that the exchange-mandated arbitration of Title VII claims robs females employed in the securities industry of due process and perpetuates sex discrimination. The injury is twofold — plaintiffs are allegedly deprived of both constitutional protections and statutory rights under the 1991 Civil Rights Act. The defendants have two responses: (1) Cremin's constitutional claims fail because they are not the product of state action, and (2) Cremin cannot claim the arbitration rules deny her statutory rights because the United States Supreme Court upheld mandatory arbitration of discrimination claims in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). These arguments form the basis of the defendants' motions to dismiss Count III. After careful consideration, we grant the defendants' motions.⁶

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LEGAL STANDARDS

A motion to dismiss tests the sufficiency of the complaint, not the merits of the suit. Triad Assocs., Inc. v. Chicago Housing Auth., 892 F.2d 583, 586 (7th Cir.1989). The court must view all facts alleged in the complaint, as well as any reasonable inferences drawn from those facts, in the light most favorable to the plaintiff. Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir.1996). Any ambiguities are likewise resolved in the plaintiff's favor. Dawson v. General Motors Corp., 977 F.2d 369, 372 (7th Cir.1992). Nevertheless, a motion to dismiss should be granted if the complaint fails to state a claim that entitles the plaintiff to relief. Corcoran v. Chicago Park Dist., 875 F.2d 609, 611 (7th Cir.1989). With these standards in mind, we turn to the sufficiency of Count III.

ANALYSIS

With Count III as her springboard, Cremin mounts the following attacks on the securities industry's mandatory arbitration scheme: First, compulsory arbitration deprives her the right to a jury trial under the Seventh Amendment and the 1991 Civil Rights Act. Second, arbitration forces Cremin to forgo her right, granted by the Constitution and the 1991 Civil Rights Act, to have an Article III court adjudicate her discrimination claims. Third, the arbitration process is unaccompanied by the procedural protections that the Fifth Amendment guarantees litigants. Fourth, arbitration operates to forfeit the statutorily mandated benefits that Title VII confers, compounding the due process violation. Finally, Cremin argues that requiring her to waive each of these rights is both an unconstitutional condition of employment and a violation of the 1991 Civil Rights Act. Because the majority of Cremin's contentions center on Fifth Amendment due process rights, we address them first.

A. State Action

Since 1883, the Supreme Court has hewed to the principle that only governmental actors can violate constitutional due process rights. See The Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883); Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349, 95 S.Ct. 449, 452-53, 42 L.Ed.2d 477 (1974); Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777, 2784-85, 73 L.Ed.2d 534 (1982); NCAA v. Tarkanian, ...