Judge clears way for a trial in BofA discrimination suit

By Will Boye | Charlotte Business Journal

Josh Van Kampen in ADA lawsuit against Bank of AmericaA federal judge in Charlotte has ruled that a lawsuit alleging Bank of America Corp. fired an employee because he is disabled can go to trial.

In his ruling, Judge Dennis Howell said Gerard Eckhardt, a quadriplegic who was terminated by the bank in 2005, has provided “direct evidence of discrimination” and denied the bank’s motion for summary judgment late last month.

A separate claim alleging the company negligently inflicted emotional distress upon Eckhardt was dismissed.

The ruling is a victory for Eckhardt, who had worked at BofA locally since 1996 as a computer programmer, because many federal disability lawsuits don’t survive summary judgment.

Eckhardt’s lawyer, Joshua Van Kampen, says he and his client are looking forward to presenting their case to a jury, probably in late January or early February. They allege BofA violated the Americans with Disabilities Act in firing Eckhardt.

“It’s just one battle,” he says. “We’re redoubling our efforts to make sure that we win at the jury stage as well.”

BofA spokeswoman Shirley Norton says the company believes the allegations are without merit and the bank intends to defend itself against the charges.

Eckhardt was laid off in the wake of the bank’s acquisition of FleetBoston Financial Corp. and was told his job could be handled overseas at one-third of the cost. One of his managers also told him he was selected because his job had taken a “physical toll” on him, according to court documents. “You’ve also had some recent health issues, and this will allow you to find a less demanding position,” Mary Ellen Statland, a then-senior technology manager told him, the suit claims.

The judge found those references could be direct evidence of discrimination and also pointed to an instant message sent by Eckhardt’s direct supervisor, Michelle Krause, to another employee.

“Don’t you worry about Gerard anymore,” the message read. “Just know that it is being dealt with … as I told you before it will just take a little time to fix the situation.”

Howell wrote in his order that while no disability was mentioned in the message, an inference could be made that Krause “had a preexisting motive to remove (Eckhardt).”

One other employee in Eckhardt’s department was laid off, but was quickly rehired for another position. Eckhardt applied for other jobs at the bank but was not hired or interviewed. He filed his suit in October 2006.

The judge said Eckhardt has also provided evidence that he was outperforming other employees — he was the highest-rated member of his team in 2004 according to the bank’s depth chart — and that some colleagues who had suffered disciplinary warnings were allowed to stay.

One team member who was retained showed up to work drunk, for example, and was later terminated for attempting to sell a bank computer, according to court documents.

Another employee in the department allegedly assaulted her supervisor in her cube over a performance review but was also retained.

Howell also noted the bank shifted its reasoning for the termination when it responded to Eckhardt’s charge of disability discrimination with the Equal Employment Opportunity Commission. Then, the company said the group had three “team lead” positions that could be consolidated into one. Eckhardt had not held a “team lead” position for over a year, according to his suit.

Eckhardt, who just turned 50, remains unemployed. His lawyer says a difficult economy, his age and the negative stereotypes that a quadriplegic faces have made finding work difficult for his client. “It’s just been an uphill battle from an employment standpoint,” he says.