Employment — race discrimination

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United States Court of Appeals For the Seventh Circuit

Civil

Employment — race discrimination

An employer’s retention program based on past performance did not discriminate on the basis of race.

“As described in the complaint, the retention program awarded bonuses based on a race-neutral assessment of a broker’s prior level of production, which suffices to protect the program under § 703(h) unless it was adopted with intent to discriminate. It is not enough to allege, as the complaint does, that the bonuses incorporated the past discriminatory effects of Merrill Lynch’s underlying employment practices. See Am. Tobacco Co. v. Patterson, 456 U.S. 63 (1982); Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977). The disparate impact of those employment practices is the subject of the first lawsuit, and if proven, will be remedied there. With respect to the retention program itself, the complaint alleges discriminatory intent in a wholly conclusory fashion, so dismissal was proper under the pleading standards announced in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and amplified in Iqbal.”

Affirmed.

11-1957 McReynolds v. Merrill Lynch & Co., Inc.

Appeal from the United States District Court for the Northern District of Illinois, Gettleman, J., Sykes, J.