Richman v. Merrill Lynch, Pierce, Fenner & Smith, Inc.

• Decision Date: 20 October 1977
• Docket Number: No. 76 Civ. 3301 (CHT).,76 Civ. 3301 (CHT).
• Citation: 441 F. Supp. 517
• Parties: Janice G. RICHMAN, Plaintiff, v. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., a corporation, and Goodbody & Co., a partnership, Defendants.
• Court: U.S. District Court — Southern District of New York

441 F. Supp. 517

Janice G. RICHMAN, Plaintiff, v. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., a corporation, and Goodbody & Co., a partnership, Defendants.

No. 76 Civ. 3301 (CHT).

United States District Court, S. D. New York.

October 20, 1977.

Wells, Brown, Mason, Burns & Hall, New York City, Thomas M. Kerr, Kaufman & Harris, Pittsburgh, Pa., Howard Moore, Jr., Moore & Bell, Oakland, Cal., John de J. Pemberton, Jr., San Francisco, Cal., for plaintiff; Charles E. Williams, III, New York City, of counsel.

Brian F. Amery, Thomas W. Smith, Merrill Lynch, Pierce, Fenner & Smith, Inc., New York City, for defendant Merrill Lynch, Pierce, Fenner & Smith, Inc.

MEMORANDUM

TENNEY, District Judge.

Defendant Merrill Lynch, Pierce, Fenner & Smith, Inc. ("Merrill Lynch") has moved for various forms of pretrial relief in this action alleging sex discrimination in employment under 42 U.S.C. §§ 2000e et seq. ("Title VII"). The Court is asked to dismiss plaintiff's claims in whole or in part or, failing that, to order a venue change. Because the Court has determined that venue properly lies in the United States District Court for the District of Nevada,¹ it will leave to the transferee court the matters of dismissal or striking of claims pursuant to Rules 12(b)(6) and 12(f) of the Federal Rules of Civil Procedure.

In April 1969, plaintiff Janice G. Richman was employed as a securities account executive by a then-member-firm of the New York Stock Exchange, Goodbody & Company ("Goodbody")² in their Houston office. Plaintiff alleges that a combination of pervasive sex discrimination in the executive ranks of the securities industry and focal discrimination by her Houston superior forced her to terminate that employment in 1970. She left Texas and moved to Nevada, where she sought reemployment with Goodbody in their Las Vegas office. When this was refused, plaintiff immediately filed discrimination charges against Goodbody with the federal Equal Employment Opportunity Commission ("EEOC"), which deferred the charge to the State of Nevada Labor Commission for investigation. In September 1970, the state agency dismissed plaintiff's charge as unsubstantiated.

In the interim, Goodbody had suffered severe financial reversals, and defendant Merrill Lynch was recruited by the other members of the New York Stock Exchange to refinance and assume the operations of the foundering Goodbody organization. In 1972, the EEOC attempted on plaintiff's behalf to reassert the original discrimination claim against Merrill Lynch in its role as Goodbody's successor. Merrill Lynch disclaimed all liability for Goodbody's conduct. Shortly thereafter, the plaintiff attempted to secure employment at the Merrill Lynch (formerly Goodbody) Las Vegas office and was rebuffed.³ Plaintiff again filed a charge of sex discrimination with the EEOC, this time against Merrill Lynch directly. This charge was likewise taken up with the Nevada Labor Commission and likewise dismissed. Plaintiff then renewed the Merrill Lynch claim with the EEOC, and her charges were joined with those of seventeen others in a consolidated action brought by the EEOC alleging a pattern and practice of employment discrimination by Merrill Lynch. This action and a related class action against the same defendant were heard in the United States District Court for the Western District of Pennsylvania. In 1976 both actions were concluded by the entry of consent decrees directing, inter alia, extensive affirmative activity by Merrill Lynch to increase the number of women on the executive level. EEOC v. Merrill Lynch, Civ. No. 76-754 (W.D.Pa. June 4, 1976); O'Bannon v. Merrill Lynch, Civ. No. 73-905 (W.D.Pa. June 4, 1976). However, both decrees specifically reserved to any plaintiffs represented in the actions the right to disassociate themselves from the relief afforded and to pursue their claims against Merrill Lynch individually.⁴ Ms. Richman opted to do so, and commenced the action in this district.

Venue

The choice of forum in a Title VII action is strictly governed by the venue provisions in 42 U.S.C. § 2000e-5(f)(3). Stebbins v. State Farm Mutual Auto Ins. Co., 134 U.S. App.D.C. 193, 413 F.2d 1100, cert. denied, 396 U.S. 895, 90 S.Ct. 194, 24 L.Ed.2d 173 (1969); Dubnick v. Firestone Tire & Rubber Co., 355 F.Supp. 138 (E.D.N.Y.1973). The statute specifies four categories of judicial districts where a Title VII action may be brought. The plaintiff can choose among the first three: (1) where "the unlawful employment practice is alleged to have been committed"; (2) where "the employment records relevant to such practice are maintained and administered"; and (3) where "the plaintiff would have worked but for the alleged unlawful employment practice." 42 U.S.C. § 2000e-5(f)(3). The fourth choice of venue is conditioned on the first three being unavailable: "But if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office." Id.

The facts clearly demonstrate that the District of Nevada is both where the plaintiff would have worked but for the alleged discrimination and the place where the discriminatory acts allegedly occurred. Obviously, then, plaintiff can assert venue in the Southern District of New York only on the basis of employment records allegedly maintained and administered here, although defendant states that these materials are in Las Vegas. Defendant's Memorandum at 19. Two separate tacks are taken by plaintiff in defense of her choice: first, she offers copies of correspondence between the EEOC and the Merrill Lynch Law Department, which is located in New York, and extrapolates from the fact that Merrill Lynch responded from New York to an EEOC investigation of its hiring practices that employment records pertinent to her individual complaint are located in New York. However, most of the information supplied by Merrill Lynch concerns its hiring practices in general, and in its answers to interrogatories propounded by the EEOC, Exhibit to Plaintiff's Memorandum of Law, Merrill Lynch states that final hiring decisions are made by branch managers. Answer 12, Interrogatories by EEOC to Merrill Lynch. Id. Furthermore, one of the few particularized references to plaintiff's individual claim occurs in defendant's Answer 10 to EEOC interrogatories, which is submitted by plaintiff in support of her choice of venue: "The full facts surrounding the determination not to hire Mrs. Richman were litigated and are fully reported in the State of Nevada proceeding brought as a result of Mrs. Richman's charge against Merrill Lynch." Id. It appears to this Court that even the material which plaintiff submits argues for the proposition that all documentary material relevant to her claim against Merrill Lynch is to be found in Nevada.

Plaintiff's other argument for New York venue is more properly a matter of substantive law. She claims that Merrill Lynch is liable to her for Goodbody's discriminatory acts on the theory of "successor corporation liability," see EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086 (6th Cir. 1974), and that in order to prove this she must have access to records which detail the agreement by which Merrill Lynch succeeded to Goodbody. These records may indeed be valuable to support this claim, and plaintiff's New York counsel may want to engage in discovery here, but these are not the "employment records" the location of which forms a basis for venue in a Title VII action. And while Merrill Lynch apparently has custody of whatever Goodbody personnel records remain extant, Letter from Thomas W. Smith, Law Department, Merrill Lynch to Charlene Suneson, Investigator, EEOC Los Angeles District Office, dated July 12, 1972, Exhibit to Plaintiff's Memorandum of Law, it is not clear from the material submitted to the Court that those records are physically within this district. Letter from Smith to Suneson dated February 27, 1973. Id. Furthermore, the State of Nevada, having once investigated plaintiff's Goodbody claim through its Labor Commission, may have access to whatever relevant material remains concerning plaintiff's employment at Goodbody.

Finally, even were this Court to conclude that venue was properly laid in the Southern District of New York on the basis of some pertinent records located here, transfer in the interests of justice and for the convenience of all the parties is not foreclosed by 42 U.S.C....