Department of Labor: 05 3470

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------x : CHARLES J. BRADY, : : Plaintiff, : : -v: : CALYON SECURITIES (USA), f/k/a : CREDIT LYONNAIS SECURITIES (USA) INC., : CALYON, CREDIT AGRICOLE S.A., ERIC : SCHINDLER and FRANCOIS PAGES, : : Defendants. : : ---------------------------------------------------------------x Richard A. Hubell, The Dweck Law Firm, LLP, New York, New York, for plaintiff. Barbara M. Roth, Lauren G.
  UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------x:CHARLES J. BRADY,::Plaintiff,:: 05 Civ. 3470 (GEL)-v-:: OPINION AND ORDER  CALYON SECURITIES (USA), f/k/a :CREDIT LYONNAIS SECURITIES (USA) INC.,:CALYON, CREDIT AGRICOLE S.A., ERIC:SCHINDLER and FRANCOIS PAGES,::Defendants.::---------------------------------------------------------------xRichard A. Hubell, The Dweck Law Firm, LLP, New York, New York, for plaintiff.Barbara M. Roth, Lauren G. Krasnow, Ariana R. Jaffe,Torys LLP, New York, New York, for defendants.GERARD E. LYNCH, District Judge:Plaintiff Charles J. Brady brings this action against his former employer, CalyonSecurities (USA) (formerly known as Credit Lyonnais Securities (USA)), its French parentcompany, Calyon, previously Credit Agricole, S.A. (“Credit Agricole”), and two individualofficers and managers. Plaintiff alleges that defendants discriminated against him based on hisnational srcin, age, and prior military service, and retaliated against him for his multiplecomplaints to supervisors and compliance officers about defendants’ alleged violations of various securities laws, rules and regulations. Defendants move to dismiss under 12(b)(6) of theFederal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted.For the reasons stated below, defendants’ motion will be granted in part and denied in part.  2 BACKGROUND The facts stated below are taken from plaintiff’s complaint, the allegations of which must be accepted as true for purposes of this motion.Plaintiff Charles J. Brady (“Brady”) is a 52-year-old graduate of the United StatesMilitary Academy at West Point, and a “Vietnam War Era Veteran.” (Am. Compl. ¶ 1.) After his military service, he earned an MBA degree from the University of Chicago School of Business. Brady currently holds multiple licenses to work in the securities industry, and isregistered with and licensed by both the New York Stock Exchange (“NYSE”) and NationalAssociation of Securities Dealers (“NASD”). (Id. at ¶¶ 17, 18.) In February 1999, Brady washired by Calyon Securities (USA) as an equity analyst. (Id. at 19.)Calyon Securities (USA) is a broker-dealer incorporated in New York, and an indirectwholly owned subsidiary of the French company, Calyon. Until a recent corporate acquisition,Calyon Securities (USA) was known as a Credit Lyonnais Securities (USA), Inc., and was awholly owned subsidiary of Credit Agricole. (D. Mem. 2.) Francois Pages was the Chief Executive Officer of Credit Lyonnais Securities (USA)/Calyon Securities (USA), and EricSchindler was the Head of Investment Banking. (Am. Compl. ¶¶ 8-9.)In 2001, Brady was promoted and began reporting to Schindler. Brady objected toreporting directly to Schindler, who was the head of the investment banking department, because both NASD and NYSE rules and the Sarbanes-Oxley Act (“Sarbanes-Oxley) forbid a researchanalyst from being supervised or controlled by an employee in the investment bankingdepartment. (Id. at ¶ 31.) Brady informed various supervisors and compliance officers of hisobjections.  3In the summer of 2003, Brady met with Pages and again complained about thecompany’s failure to comply with the NYSE and NASD rules. Because Brady felt that hiscomplaints were not adequately addressed, he approached Pages to submit his resignation.Pages informed Brady that he was aware of the problem and that it would be correctedimmediately. (Id. at ¶ 88.) Brady turned down another job elsewhere, but his employer continued to require Brady to report to Schindler in the investment banking department. (Id. at ¶¶ 89, 92.)Plaintiff alleges that Schindler subsequently began to berate Brady for his rigid “military-like” approach to following the NYSE and NASD rules. (Id. at ¶ 43.) During Brady’s lastemployee review in February 2004, Schindler told Brady that he rated him poorly, not for hisactual job performance, but for getting in the way of the investment banking department, and thathe no longer needed “an old wise man to run research.” (Id. at ¶ 42.) He then repeatedlydescribed Brady as the “old man with all the wisdom” and “the old man that is so knowledgeablein research.” (Id. at ¶ 44.)On July 1, 2004, Brady gave the Head of Compliance a letter, complaining again aboutthe research department being controlled and supervised by the head of investment banking.Brady was terminated that day. (Id. at ¶¶ 47, 48.) DISCUSSION I.Standard on a Motion to DismissOn a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Courtmust accept as true all well-pleaded factual allegations in the complaint and view them in thelight most favorable to the plaintiff, drawing all reasonable inferences in his favor. Leeds v.  4Meltz, 85 F.3d 51, 53 (2d Cir. 1996). The Court will not dismiss a complaint for failure to statea claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). To bedeemed adequate at the pleading stage, a complaint need not use particular words nor demonstrate that the plaintiff will prevail on the merits, but need only provide “a short and plainstatement of the claim showing that the pleader is entitled to relief.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Fed. R. Civ. P. 8(a)). However, “[w]hile the pleadingstandard is a liberal one, bald assertions and conclusions of law will not suffice.” Leeds, 85 F.3dat 53; see also De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 70 (2d Cir. 1996) (“A complaintwhich consists of conclusory allegations unsupported by factual assertions fails even the liberalstandard of Rule 12(b)(6).”) (internal quotation marks omitted).When deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents attached to the complaint as exhibits or incorporated in it by reference. Brass v. Am.Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993). Because plaintiff refers to his employer’scompliance manual in his complaint and it is crucial to plaintiff’s claims, it may properly beconsidered for the purposes of this motion. See Chambers v. Time Warner, Inc., 282 F.3d 147,153 (2d Cir. 2002) (determining that documents were properly considered in a motion to dismissas plaintiff had relied on the terms and effects of the documents, and were integral to thecomplaint).II.Alleged Violations of NYSE and NASD RulesPlaintiff alleges in Counts Two and Three that defendants have unlawfully retaliatedagainst plaintiff in violation of NYSE Rule 2711 and NASD Rule 2711. NYSE Rule 2711
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