Gonzales v. Wells Fargo Bank, NA

MOTION for Summary Judgment

W.D. Tex.June 15, 2017

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION BEATRICE GONZALES, § § Plaintiff, § § v. § CIVIL ACTION NO. SA-16-CA-39-DAE § WELLS FARGO BANK, NA, § § Defendant. § DEFENDANT’S MOTION FOR SUMMARY JUDGMENT COMES NOW Wells Fargo Bank, N.A. (“Wells Fargo”), Defendant in the above-entitled cause of action, and files this, its Motion for Summary Judgment, respectfully showing the Court as follows: I. INTRODUCTION Plaintiff Beatrice Gonzales worked for Wells Fargo from March 4, 2013, through October 28, 2014, at which time Wells Fargo terminated Plaintiff’s employment for her failure to meet the performance standards associated with her position. As a Loan Servicing Specialist (“LSS”), one of Plaintiff’s primary job duties involved answering inbound calls regarding home mortgage loans. Plaintiff understood the importance of fully authenticating a borrower before releasing confidential account information and of not disclosing account information to an unauthorized party, as such actions created security risks for Wells Fargo customers and legal risks for Wells Fargo. Despite this understanding, and recurrent counseling and coaching by two different supervisors, Plaintiff had multiple compliance failures for repeated instances of disclosing account information without having fully authenticated the caller and/or to an unauthorized party. Wells Fargo afforded Plaintiff the benefit of progressive discipline and Case 5:16-cv-00039-DAE Document 18 Filed 06/15/17 Page 1 of 20 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 2 ample opportunity to improve before it ultimately terminated her employment. Thereafter, Plaintiff filed the instant lawsuit on January 15, 2016, asserting claims of age, “race (Mexican American),” and “national origin (Mexican)” discrimination, hostile work environment, and retaliation, in alleged violation of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), and the Age Discrimination in Employment Act (“ADEA”).1 II. SUMMARY OF THE ARGUMENT Wells Fargo is entitled to summary judgment because Plaintiff cannot establish a prima facie case of discrimination on the basis of age, race, or national origin. Specifically, Plaintiff cannot show that she was treated less favorably than similarly-situated employees outside the protected classes under nearly identical circumstances. Likewise, Plaintiff cannot establish a prima face case of hostile work environment because the alleged harassment was neither severe or pervasive, nor was it objectively hostile or based on Plaintiff’s age, race, or national origin. Finally, Plaintiff cannot establish a prima facie case of retaliation because she never engaged in protected activity prior to her termination of employment. Even if Plaintiff establishes a prima facie case, which she cannot, Wells Fargo terminated Plaintiff for a legitimate, non- discriminatory, non-retaliatory reason, namely, her documented performance concerns throughout the majority of her employment with Wells Fargo. Plaintiff has no evidence to rebut Well Fargo’s stated reason or to show that its stated reason was pretextual for discrimination or retaliation. Accordingly, summary judgment is warranted. III. STANDARD OF REVIEW Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56. Unsubstantiated assertions of unlawful conduct are not competent summary judgment evidence. Forsyth v. Barr, 1 See Plaintiff’s Complaint [Doc. 1], p. 1, ¶ 1. Case 5:16-cv-00039-DAE Document 18 Filed 06/15/17 Page 2 of 20 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 3 19 F.3d 1527, 1533 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994). To avoid summary judgment, the plaintiff must instead present evidence, not simply conjecture and speculation, of discrimination. Grimes v. Texas Dep’t of Mental Health & Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996). Additionally, a plaintiff must set forth specific facts showing there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Assertions of ultimate facts without supporting specifics will not suffice to avoid summary judgment. Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir. 1986). Summary judgment should be granted “not only when the non-movant presents no evidence, but also when there is not a sufficient conflict in substantial evidence to create a jury question.” Scott v. Univ. of Miss., 148 F.3d 493, 504 (5th Cir. 1998) (internal citation omitted). “A mere scintilla of evidence is insufficient to present a question for the jury.” Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc), overruled on other grounds, Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997) (en banc). Mere conclusory allegations are not competent summary judgment evidence and thus, are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Likewise, unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. Forsyth, 19 F.3d at 1533. The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports her claim. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). Subjective belief alone is insufficient to survive summary judgment on discrimination or retaliation claims. See McCoy v. Tex. Instruments, Inc., 183 S.W.3d 548, 555 (Tex. App.—Dallas 2006, no pet.) (“An employee’s subjective belief of discrimination or retaliation, no matter how genuine, cannot serve as the basis for judicial Case 5:16-cv-00039-DAE Document 18 Filed 06/15/17 Page 3 of 20 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 4 relief.”); see also Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994) (“Self-serving, generalized testimony stating [a] subjective belief [the complained of act] occurred is insufficient to sustain a finding of [discrimination].”). As explained below, no genuine issue of material fact exists with respect to Plaintiff’s inability to establish a prima facie case of age, race, and national origin discrimination, hostile work environment, or retaliation. Likewise, no genuine issue of material fact exists with respect to Plaintiff’s inability to ultimately show that Well Fargo’s stated reason for her termination was not true and was instead pretextual for discrimination or retaliation. This Court should accordingly grant Wells Fargo’s Motion for Summary Judgment. IV. FACTUAL BACKGROUND Please refer to Exhibit A to Defendant’s Appendix to its Motion for Summary Judgment. V. ARGUMENTS AND AUTHORITIES A. STANDARD OF REVIEW Plaintiff’s claims of discrimination are evaluated under the burden shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under the McDonnell Douglas framework, Plaintiff first must satisfy the elements of a prima facie case. Miller v. Raytheon Co., 716 F.3d 138, 144 (5th Cir. 2013). If Plaintiff meets her initial burden, the burden of production shifts to Wells Fargo to articulate a legitimate, non-discriminatory reason for termination of employment. Id. At this stage, Wells Fargo’s burden is one of “production, not persuasion,” and “involve[s] no credibility assessment.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (internal quotation marks and citation omitted). “If the employer meets its burden, then the burden shifts back to the plaintiff to make an ultimate showing of intentional discrimination.” Reed v. Neopost USA, Inc., 701 F.3d 434, 439 Case 5:16-cv-00039-DAE Document 18 Filed 06/15/17 Page 4 of 20 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 5 (5th Cir. 2012). For this third and final step of the McDonnell Douglas analysis, the burdens differ between the ADEA and Title VII. Id. at 440.; Squyres v. Heico Cos., L.L.C., 782 F.3d 224, 231 (5th Cir. 2015). Under the ADEA, the employee must “prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Squyres, 782 F.3d at 231 (internal citation omitted). Under Title VII, “[i]f the employer sustains its burden, the prima facie case is dissolved, and the burden shifts back to the plaintiff to establish either: (1) that the employer’s proffered reason is not true but is instead a pretext for discrimination; or (2) that the employer’s reason, while true, is not the only reason for its conduct, and another ‘motivating factor’ is the plaintiff’s protected characteristic.” Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007).. B. PLAINTIFF’S DISCRIMINATION CLAIMS FAIL AS A MATTER OF LAW. 1. Plaintiff Cannot Establish A Prima Facie Case of Discrimination. To establish a prima facie case of discrimination, Plaintiff must show: (1) she is a member of a protected class; (2) she was qualified for her position; (3) she was subjected to an adverse employment action; and (4) she was treated less favorably than a similarly situated employee outside of the protected class under nearly identical circumstances. See Moghalu v. Bd. of Supervisors for the Univ. of La. Sys. for Nw., 643 F. App’x 326, 330 (5th Cir. Mar. 11, 2016); Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349, 353 (5th Cir. 2007). To establish “nearly identical circumstances,” Plaintiff must present “evidence regarding the comparators’ job descriptions, qualifications, experience, work and disciplinary history, or other information that would indicate that they were similarly situated.” Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 514 (5th Cir. 2001). Plaintiff’s claim fails because she cannot establish the fourth element of her prima facie case. Case 5:16-cv-00039-DAE Document 18 Filed 06/15/17 Page 5 of 20 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 6 In particular, Plaintiff admitted that she could not identify any similarly situated employee who had as many compliance failures as she did, let alone one who was not terminated as she was.2 This admission is fatal to Plaintiff’s prima facie case of discrimination. Moreover, the undisputed summary judgment evidence establishes that no other LSS reporting to Ms. Molleda during the same time period had as many compliance failures as Plaintiff.3 Plaintiff claims she was treated less favorably than John Garza,4 Terrance Ruff,5 and an unidentified female employee6 on Ms. Molleda’s team.7 First, Plaintiff claims that Mr. Garza was allowed to use his cell phone and she was not aware of him having been disciplined.8 Second, Plaintiff claims that Mr. Garza, Mr. Ruff, and the female employee would mark themselves as “unavailable” on their phones and walk around the call floor, and she was not aware of them having been disciplined.9 Plaintiff confirmed that these were the only individuals treated more favorably than her and that these were the only examples of more favorable treatment.10 Even assuming these individuals to be outside the protected classes, the alleged differential treatment is wholly insufficient to establish a prima facie case of discrimination because Plaintiff was never disciplined for the same activities.11 Moreover, the alleged activities are not comparable infractions to Plaintiff’s in that Plaintiff’s compliance failures created security risks for Wells Fargo’s customers and exposed Wells Fargo to legal risk. 2 See Exhibit C to Defendant’s Appendix to its Motion for Summary Judgment, Deposition of Beatrice Gonzales (“Plaintiff’s Deposition”), at 120:20-24. 3 See Exhibit D to Defendant’s Appendix to its Motion for Summary Judgment, Declaration of Teresa Molleda (“Molleda Declaration”), at p. 4, ¶ 20. 4 Mr. Garza is younger than Plaintiff and is Hispanic. See Exhibit B to Defendant’s Appendix to its Motion for Summary Judgment, Declaration of Chris Clerkley (“Clerkley Declaration”), at p. 1, ¶ 6. 5 Mr. Ruff is younger than Plaintiff and is African American. See Exhibit B, Clerkley Declaration, at p. 2, ¶ 7. 6 Plaintiff is presumably referring to Rae Rodriguez, who is younger than Plaintiff and who is Hispanic. See Exhibit B, Clerkley Declaration, at p. 2, ¶ 8. 7 See Exhibit C, Plaintiff’s Deposition, at 159:23-160:17. 8 See Exhibit C, Plaintiff’s Deposition, at 155:17-156:19. 9 See Exhibit C, Plaintiff’s Deposition, at 157:17-160:17. 10 See Exhibit C, Plaintiff’s Deposition, at 159:23-160:17. 11 See Exhibit C, Plaintiff’s Deposition, at 159:15-19. Case 5:16-cv-00039-DAE Document 18 Filed 06/15/17 Page 6 of 20 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 7 In sum, Plaintiff cannot establish a prima facie case of age, race, or national origin discrimination because she has no evidence of differential treatment under nearly identical circumstances. For this reason, Wells Fargo is entitled to summary judgment on Plaintiff’s discrimination claims. 2. Wells Fargo Has Articulated A Legitimate, Non-Discriminatory Reason for Plaintiff’s Termination. Wells Fargo terminated Plaintiff for a legitimate, non-discriminatory reason, namely, her continued failure to meet the performance standards associated with her position. Poor job performance is a legitimate, non-discriminatory reason for termination. Palacios v. City of Crystal City, Tex., 634 F. App’x 399, 402 (5th Cir. 2015) (per curiam). Plaintiff underwent the same initial training process as other LSSs.12 Plaintiff understood the metrics by which all Wells Fargo’s LSSs were measured, and she acknowledged those metrics were exactly the same.13 Plaintiff acknowledged that Wells Fargo recorded the calls of all LSSs and that Wells Fargo’s Quality Assurance team regularly reviewed the calls of all LSSs.14 Plaintiff knew that Wells Fargo required the managers of the LSSs to regularly review their calls, in addition to the calls being reviewed by Quality Assurance.15 In sum, Plaintiff’s performance was measured in the same manner as the performance of her peers and by the same standards. Plaintiff demonstrated the same performance issues throughout the majority of her employment and under two different supervisors. In her performance review, Mr. Bridges 12 See Exhibit C, Plaintiff’s Deposition, at 21:20-22:13. 13 See Exhibit C, Plaintiff’s Deposition, at 24:5-10; 26:20-23; 27:18-28:2; 28:3-29:4; 29:7-16; 29:17-31:9; 65:16-25. 14 See Exhibit C, Plaintiff’s Deposition, at 23:15-24:4. 15 See Exhibit C, Plaintiff’s Deposition, at 66:17-25. Case 5:16-cv-00039-DAE Document 18 Filed 06/15/17 Page 7 of 20 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 8 advised Plaintiff as early as September 2013 that she needed to be consistent in quality.16 Mr. Bridges addressed the same issue in December 2013 and at the time he administered her 2013 performance review.17 Plaintiff did not disagree with his feedback and did not find any of it to be unfair.18 These same performance concerns continued under Ms. Molleda’s supervision and did not improve despite continued coaching and feedback.19 Shortly after becoming Plaintiff’s supervisor, Ms. Molleda provided Plaintiff with a tracking sheet to follow during her calls to ensure that she followed Wells Fargo’s procedures and in particular, to ensure that she requested the information necessary to fully authenticate the borrower before releasing account information.20 The third item on this list was for “Verifying the Customer.”21 Plaintiff would submit the tracking sheets to Ms. Molleda, including a checkmark by each item for each call; yet, Plaintiff continued to experience significant compliance failures, suggesting to Ms. Molleda that Plaintiff was simply checking off the list without ensuring she covered each step during the call.22 As the compliance failures continued, Ms. Molleda afforded Plaintiff the benefit of progressive discipline.23 Plaintiff did not dispute her compliance failures and importantly, did not find any of the Action Plans, Coaching Sheets, or Warnings to be unfair.24 Plaintiff understood that she was not meeting performance expectations and that her failure to 16 See Exhibit C, Plaintiff’s Deposition, at 49:25-50:9; Exhibit B, Clerkly Declaration, at p. 2, ¶ 10; and Exhibit B-2 to Defendant’s Appendix to its Motion for Summary Judgment, a business record consisting of Plaintiff’s 2013 performance review. 17 See Exhibit C, Plaintiff’s Deposition, at 48:18-49:16; 50:24-51:4; and Exhibit B-2. 18 See Exhibit C, Plaintiff’s Deposition, at 48:18-51:22. 19 See Exhibit D, Molleda Declaration, at p. 2, ¶ 19. 20 See Exhibit C, Plaintiff’s Deposition, at 59:25-61:4; Exhibit D, Molleda Declaration, at p. 3, ¶ 12; and Exhibit D-1 to Defendant’s Appendix to its Motion for Summary Judgment, a business record consisting of a Tracking Sheet. 21 See Exhibit D, Molleda Declaration, at p. 3, ¶ 12; and Exhibit D-1. 22 See Exhibit D, Molleda Declaration, at p. 3, ¶ 12. 23 See Exhibit D, Molleda Declaration, at pp. 2-3, ¶¶ 10, 11, 15, 16, 17, 18 ; Exhibit B-6, Exhibit B-7, Exhibit B-9, Exhibit B-10, Exhibit B-12, and Exhibit B-13 to Defendant’s Appendix to its Motion for Summary Judgment. 24 See Exhibit C, Plaintiff’s Deposition, at 38:21-40:14; 41:8-24; 41:25-42:6; 42:23-46:2; 46:3-48:6; 56:22-58:6; 58:7-61:4; 67:15-17; 80:7-82:3; 83:6-11; 83:12-17; 85:7-9; 85:10-21; 86:1-87:17; 87:18-88:23; 90:14-18. Case 5:16-cv-00039-DAE Document 18 Filed 06/15/17 Page 8 of 20 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 9 demonstrate sustained improvement would result in further corrective action, up to and including termination of employment.25 Importantly, Plaintiff understood the significance of her compliance failures, particularly for those in which she released account information without fully authenticating the borrower and/or to an unauthorized party.26 Wells Fargo could not continue to employ a LSS who continually exposed its customers and the institution to significant risk, and for this reason, Wells Fargo terminated Plaintiff’s employment.27 3. Plaintiff Has No Evidence Of Pretext. Plaintiff’s age discrimination claim ultimately fails because she must show that her age was the “but for” reason for her termination of employment. Plaintiff cannot carry such a burden because she not only acknowledged the compliance failures forming the basis for her termination but she acknowledged their significance. In these circumstances, Plaintiff would need to show that despite the performance issues, she was terminated because of her age. Miller, 716 F.3d at 144. Here, Plaintiff’s only evidence of age discrimination is an alleged stray remark from Ms. Molleda. Plaintiff testified that shortly after she transferred to Ms. Molleda’s team in July 2014, Ms. Molleda allegedly told Plaintiff that she reminded Ms. Molleda of her “elderly” mother and then referred to Plaintiff as “elderly.”28 Plaintiff acknowledged that this was a one-time discussion.29 More importantly, Plaintiff acknowledged that Ms. Molleda never made any other comments regarding her age at any time.30 Additionally, Plaintiff acknowledged that no one else 25 See Exhibit C, Plaintiff’s Deposition, at 83:4-17. 26 See Exhibit C, Plaintiff’s Deposition, at 38:21-40:14; 87:1-9. 27 See Exhibit D, Molleda Declaration, at p. 4, ¶ 19. 28 See Exhibit C, Plaintiff’s Deposition, at 160:19-163:15. 29 See Exhibit C, Plaintiff’s Deposition, at 162:17-19. 30 See Exhibit C, Plaintiff’s Deposition, at 163:16-19. Case 5:16-cv-00039-DAE Document 18 Filed 06/15/17 Page 9 of 20 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 with Wells Fargo ever made any comments regarding her age at any time during her employment.31 The Fifth Circuit has consistently held that one stray remark, without any other evidence of discriminatory conduct, is not sufficient to establish discriminatory animus. Kelly v. Costco Wholesale Corp., 632 F. App’x 779, 782–83 (5th Cir. 2015), citing Waggoner v. City of Garland, Tex., 987 F.2d 1160, 1166 (5th Cir. 1993) (“[A]s we have held on several occasions, a mere ‘stray remark’ is insufficient to establish age discrimination[.]”); Cervantez v. KMGP Servs. Co., 349 Fed. App’x 4, 10–11 (5th Cir. 2009) (“[A] comment is not evidence of discrimination if it is the sole proof of pretext[.]”). Here, Plaintiff has produced no other evidence that she was discriminated against because of her age, particularly whereas here, Wells Fargo hired Plaintiff when she was 76 years old.32 While Plaintiff may utilize the “mixed motive” analysis as it relates to her Title VII claims, Plaintiff’s only “evidence” of alleged race or national origin discrimination is her speculative believe that an unidentified, Caucasian employee of Wells Fargo participated in the termination decision.33 Yet, Plaintiff admittedly has no idea who else (other than Ms. Molleda) may have been involved in the decision, let alone if the person is Caucasian.34 A speculative and unfounded assumption of this sort is wholly insufficient to create a fact issue on pretext. As it relates to her claims of race and national origin discrimination, Ms. Molleda made the decision to terminate Plaintiff’s employment, and she, too, is Hispanic.35 Ms. Molleda’s membership in the same protected class as Plaintiff bolsters the inference that race or national origin discrimination was not the reason for her termination. Kelly, 632 F. App’x at 783. 31 See Exhibit C, Plaintiff’s Deposition, at 163:23-164:1. 32 See Exhibit C, Plaintiff’s Deposition, at 8:23-24; 17:22-18:4. 33 Plaintiff’s Complaint [Doc. 1], at p. 8, ¶ 48; Exhibit C, Plaintiff’s Deposition, at 150:8-151:2. 34 See Exhibit C, Plaintiff’s Deposition, at 150:8-151:3. 35 See Exhibit D, Molleda Declaration, at p. 1, ¶ 2. Case 5:16-cv-00039-DAE Document 18 Filed 06/15/17 Page 10 of 20 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 Additionally, Plaintiff denied that any employee of Wells Fargo, including Ms. Molleda, ever have made a comment about her race or national origin that she found offensive.36 Finally, some of Plaintiff’s proffered comparators, including Mr. Garza, are also Hispanic,37 belying any notion that race or national origin played any factor in employment decisions. Furthermore, Plaintiff acknowledged that there was no mention of her age, race, or national origin during her termination meeting.38 Likewise, Plaintiff acknowledged that no one with Wells Fargo ever told her that she had been terminated because of her age, race, or national origin.39 In the end, all that remains in Plaintiff’s subjective belief of discrimination and her belief that her termination was unfair. As to the latter point, Plaintiff testified that she requested additional training on September 15, 2014, after her receipt of a second Action Plan from Ms. Molleda.40 Ms. Molleda allegedly responded by saying, “No, because we can’t afford it.”41 Plaintiff testified that she felt her termination was unfair since she had been terminated for performance, yet, denied the additional training she requested.42 Even if we accept this as true, Plaintiff is essentially critiquing the fairness and correctness of the decision to terminate her employment. “But fairness and correctness do not bear on pretext.” Kelly, 632 F. App’x at 784. “The laws ‘do not require an employer to make proper decisions, only non-[discriminatory] ones.’” Id., citing LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 391 (5th Cir. 2007). 36 See Exhibit C, Plaintiff’s Deposition, at 163:20-22; 164:2-5. 37 See Exhibit B, Clerkley Declaration, at p. 1, ¶ 6; Exhibit C, Plaintiff’s Deposition, at 159:23-160:13. 38 See Exhibit C, Plaintiff’s Deposition, at 92:9-14. 39 See Exhibit C, Plaintiff’s Deposition, at 92:15-20. 40 See Exhibit C, Plaintiff’s Deposition, at 96:16-97:10; 119:19-120:7. 41 See Exhibit C, Plaintiff’s Deposition, at 96:16-97:10. 42 See Exhibit C, Plaintiff’s Deposition, at 96:2-96:15. Case 5:16-cv-00039-DAE Document 18 Filed 06/15/17 Page 11 of 20 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 12 Given the complete lack of any evidence to establish pretext, Plaintiff’s age, race, and national origin claims fail as a matter of law. Wells Fargo is entitled to summary judgment on these claims. C. PLAINTIFF’S HOSTILE WORK ENVIRONMENT CLAIMS FAIL AS A MATTER OF LAW. 1. Legal Analysis To establish a prima facie case of hostile work environment, Plaintiff must show: (1) she belongs to a protected group; (2) she was subjected to unwelcome harassment; (3) the harassment complained of was based on her protected characteristic; (4) the harassment complained of affected a term, condition, or privilege of employment; and (5) there exists some basis for liability on the part of the employer. Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 441 (5th Cir. 2011) (ADEA); Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (Title VII). For harassment to affect a term, condition, or privilege of employment, it must be “‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986). To satisfy the fourth element, Plaintiff must demonstrate that the harassment was objectively unreasonable. Dediol, 655 F.3d at 441. “This means that not only must a plaintiff perceive the environment to be hostile, but it must appear hostile or abusive to a reasonable person.” Id. (internal citation omitted) To determine whether conduct is objectively offensive, the totality of the circumstances is considered, including: “(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or merely an offensive utterance; and (4) whether it interferes with an employee’s work performance.” Id. (internal citation omitted). Case 5:16-cv-00039-DAE Document 18 Filed 06/15/17 Page 12 of 20 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 13 2. Plaintiff Cannot Establish a Prima Facie Case of Hostile Work Environment. Plaintiff’s hostile work environment claims fail as a matter of law because she cannot show that she was subjected to harassment because of her age, race, or national origin, let alone that the complained-of conduct was objectively offensive, or severe or pervasive. Plaintiff identifies a number of trivial complaints associated with Ms. Molleda’s management style, none of which constitute actionable harassment: (1) Ms. Molleda reviewed her phone calls using speakers at her desk, rather than earphones, such that other team members in the area may have overheard the calls;43 (2) Ms. Molleda presumably directed other team managers, team leads, and tenured peers to conduct side-by-side coaching with Plaintiff where they would listen to her phone calls and provide feedback, which embarrassed Plaintiff;44 (3) Ms. Molleda would ask Plaintiff to meet with her in the conference room when Ms. Molleda was going to provide coaching or administer discipline, and Plaintiff did not observe her peers being called into the conference room;45 (4) Plaintiff assumed that Ms. Molleda was speaking about Plaintiff’s performance with other members of Ms. Molleda’s team;46 and (5) Ms. Molleda was not disciplining other members of the team because Plaintiff asked a few of her peers and they denied disciplinary action.47 Additionally, Plaintiff cited to two instances where her peers declined to provide her with assistance as further evidence of harassment.48 Regarding Ms. Molleda’s use of speakers, Plaintiff acknowledged that she was aware of Ms. Molleda using speakers to review calls prior to Plaintiff’s transfer from Mr. Bridges’ team.49 In other words, Ms. Molleda did not begin this practice when she began managing Plaintiff. 43 See Exhibit C, Plaintiff’s Deposition, at 121:3-122:9. 44 See Exhibit C, Plaintiff’s Deposition, at 54:20-55:2; 112:7-17; 113:4-16; 114:7-115:3. 45 See Exhibit C, Plaintiff’s Deposition, at 68:3-14; 69:3-6. 46 See Exhibit C, Plaintiff’s Deposition, at 144:23-145:15. 47 See Exhibit C, Plaintiff’s Deposition, at 77:10-23; 77:24-78:3. 48 See Exhibit C, Plaintiff’s Deposition, at 132:19-134:23; 136:6-11. 49 See Exhibit C, Plaintiff’s Deposition, at 132:2-13. Case 5:16-cv-00039-DAE Document 18 Filed 06/15/17 Page 13 of 20 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 14 Additionally, while Plaintiff felt that Ms. Molleda listened to her calls more frequently than she listened to the calls of her peers, Plaintiff acknowledged that Ms. Molleda was required to periodically review the calls of all the LSSs she supervised.50 Plaintiff also acknowledged having heard Ms. Molleda reviewing the calls of her peers using the speakers.51 In short, Ms. Molleda’s manner of reviewing the calls (i.e., her use of speakers as opposed to Mr. Bridges’ use of headphones)52 does not give rise to a claim of hostile work environment, particularly whereas here there is no evidence to support Plaintiff’s subjective belief that Ms. Molleda listened to her calls more frequently and/or at a higher volume. Similarly, there is no evidence to substantiate Plaintiff’s opinion that Ms. Molleda was assigning other supervisors, team leads, and peers to conduct side-by-sides with Plaintiff for the purpose of “scrutinizing” her calls.53 Plaintiff testified that she felt “singled out” and harassed because she was the only member on Ms. Molleda’s team receiving the side-by-side coaching.54 Plaintiff similarly objected to Ms. Molleda’s practice of calling Plaintiff into a conference room when Ms. Molleda sought to provide coaching or administer disciplinary action.55 Plaintiff testified that she felt “singled out” by Ms. Molleda since she did not see her peers being called into a conference room.56 Yet, neither practice constitutes evidence of differential treatment, let alone harassment, when Plaintiff admittedly cannot identify any other LSS who had as many compliance failures as she did.57 The additional coaching, for example, could never be indicative of harassment unless there were other LSSs under Ms. Molleda’s management who had equally poor performance, 50 See Exhibit C, Plaintiff’s Deposition, at 66:17-25. 51 Id. 52 See Exhibit C, Plaintiff’s Deposition, at 38:4-20. 53 See Exhibit C, Plaintiff’s Deposition, at 106:7-15. 54 See Exhibit C, Plaintiff’s Deposition, at 54:20-55:2; 117:3-12. 55 See Exhibit C, Plaintiff’s Deposition, at 68:3-14; 69:3-6. 56 See Exhibit C, Plaintiff’s Deposition, at 68:3-14; 69:3-6. 57 See Exhibit C, Plaintiff’s Deposition, at 120:20-24. Case 5:16-cv-00039-DAE Document 18 Filed 06/15/17 Page 14 of 20 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 15 yet, were not required to submit to the additional coaching. As previously stated, the summary judgment evidence establishes that there were no similarly situated LSSs on Ms. Molleda’s team with performance issues similar to Plaintiff’s.58 For the same reason, Plaintiff’s assumption that Ms. Molleda was not disciplining the other members of her team in similar fashion is irrelevant without evidence that they had similar performance issues. Moreover, Plaintiff’s assumption, which she formulated through discussion with some of her team members,59 is inaccurate. Ms. Molleda also administered an informal warning for compliance failures to Steve Washington, who was one of Plaintiff’s peers.60 Mr. Washington is considerably younger than Plaintiff and he is African American.61 Unlike Plaintiff, Mr. Washington improved his performance, such that further corrective action was unnecessary.62 At most, Plaintiff’s allegations of harassment constitute nothing more than careful monitoring of her job performance. Careful monitoring of an employee’s job performance, absent any other evidence of prohibited discrimination, does not suffice to support a claim for hostile work environment. Rowe v. Jewell, 88 F. Supp. 3d 647, 675 (E.D. La. 2015). A manager holding her employee accountable for the performance standards associated with her position is not objectively offensive. See Harrell v. Orkin, LLC, 876 F. Supp. 2d 695, 706 (E.D. La. 2012) (a manager’s placement of write-ups in the plaintiff’s personnel file is not objectively harassing). It is even questionable as to whether Plaintiff found Ms. Molleda’s alleged conduct to be subjectively harassing. Plaintiff testified that she never considered requesting a transfer to 58 See Exhibit D, Molleda Declaration, at p. 4, ¶ 20. 59 See Exhibit C, Plaintiff’s Deposition, at 77:10-78:3. 60 See Exhibit D, Molleda Declaration, at p. 4, ¶ 20; Exhibit B, Clerkley Declaration, at pp. 2-3, ¶ 10; and B-14 to Defendant’s Appendix, a business record consisting of an Informal Warning for Steve Washington. 61 Exhibit B, Clerkley Declaration, at p. 2, ¶ 9. 62 See Exhibit D, Molleda Declaration, at p. 4, ¶ 20. Case 5:16-cv-00039-DAE Document 18 Filed 06/15/17 Page 15 of 20 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 16 another department because the hours of her job were “perfect for her,” such that she was willing to continue working on Ms. Molleda’s team.63 Similarly, performance coaching or negative performance evaluations do not give rise to a claim of a hostile work environment. Standley v. Rogers, 202 F. Supp. 3d 655, 674 (W.D. Tex. 2016), aff’d, No. 16-51092, 2017 WL 958318 (5th Cir. Mar. 10, 2017). Finally, disciplinary action and even threats of termination do not suffice unless there is evidence that such actions are based on the employee’s protected category. Id. Plaintiff presents no evidence that any of the above-described actions by Ms. Molleda were motivated by Plaintiff’s age, race, or national origin. Once again, Plaintiff acknowledged that no one with Wells Fargo ever made an offensive comment regarding Plaintiff’s race or national origin.64 Likewise, other than one alleged stray remark by Ms. Molleda, Plaintiff acknowledged that Ms. Molleda made no other ageist comments and that no one else with Wells Fargo ever made an offensive comment regarding Plaintiff’s age.65 Finally, Plaintiff complains that two of her peers once made “hateful and unprofessional remarks.”66 First, when Plaintiff asked Mr. Garza for help, he allegedly told Plaintiff, “You are always asking questions. Don’t you know how to do anything?”67 Another time, Plaintiff asked an unidentified female on her team for help, and the female responded by saying, “Just look it up. You will find it.”68 These comments are neither severe nor pervasive, nor objectively offensive. Moreover, neither comment relates to Plaintiff’s age, race, or national origin. Finally, any claims related to these remarks fail for the additional reason that Plaintiff never utilized 63 See Exhibit C, Plaintiff’s Deposition, at 75:20-76:4. 64 See Exhibit C, Plaintiff’s Deposition, at 163:20-22; 164:2-5. 65 See Exhibit C, Plaintiff’s Deposition, at 163:16-19; 163:23-164:1. 66 See Exhibit C, Plaintiff’s Deposition, at 132:19-134:23. 67 Id. 68 Id. Case 5:16-cv-00039-DAE Document 18 Filed 06/15/17 Page 16 of 20 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 17 Wells Fargo’s various reporting procedures to make a complaint of any kind.69 Without having made a complaint, Wells Fargo had no reason to know of the alleged “hateful and unprofessional remarks” by Plaintiff’s co-workers. See Vance v. Ball State Univ., 570 U.S. ––––, 133 S.Ct. 2434, 2439, 2441 (2013) (If the harassing employee is the victim’s co-worker, “the employer is liable only if ... the employer knew or reasonably should have known ... but failed to take remedial action.”). On these facts, Plaintiff cannot establish a prima facie case of hostile work environment. Wells Fargo is entitled to summary judgment on these claims. D. PLAINTIFF’S RETALIATION CLAIMS FAIL AS A MATTER OF LAW. To establish a prima facie case of retaliation, Plaintiff must show: (1) she engaged in a protected activity; (2) she suffered an adverse employment action, and (3) there is a causal connection between the protected act and the adverse action. McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007). Plaintiff’s retaliation claims fail as a matter of law because she never engaged in a protected activity prior to her termination of employment. Plaintiff claims she engaged in protected activity when she allegedly called a meeting with Ms. Molleda and Work Director Roberta Collins on September 15, 2014.70 Plaintiff testified that she said during this meeting, “I feel like I am working in a very hostile area. I don’t seem to be able to do anything right.”71 Plaintiff also requested further training, which she claims was denied.72 While Plaintiff allegedly used the word “hostile,” Plaintiff admittedly did not complain of discrimination during this meeting.73 Specifically, Plaintiff did not inform Ms. 69 See Exhibit C, Plaintiff’s Deposition, at 84:18-85:2; 141:24-142:3. 70 Plaintiff’s Complaint, pp. 6-7. 71 See Exhibit C, Plaintiff’s Deposition, at 101:23-103:20. 72 Id. 73 See Exhibit C, Plaintiff’s Deposition, at 165:13-24. Case 5:16-cv-00039-DAE Document 18 Filed 06/15/17 Page 17 of 20 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 18 Molleda or Ms. Collins that she felt she was being treated differently because of her age, race, or national origin.74 As a result, Plaintiff’s statements during this meeting on September 15, 2014, did not constitute protected activity sufficient to give rise to a claim of retaliation. See Rodriquez v. Wal-Mart Stores, Inc., 540 F. App’x 322, 329 (5th Cir. 2013) (holding employee’s internal complaints were not protected activities because they did not reference discrimination or any other unlawful employment activity). Beyond this, Plaintiff acknowledged that she never utilized any of Wells Fargo’s internal procedures to complain of discrimination or harassment prior to her termination of employment.75 Because Plaintiff never engaged in a protected activity, her retaliation claims fail as a matter of law, and Wells Fargo is entitled to summary judgment. Moreover, as discussed above, Wells Fargo terminated Plaintiff’s employment for a legitimate, non-discriminatory, non- retaliatory reason, and Plaintiff has no evidence of pretext. VI. CONCLUSION Plaintiff’s discrimination claims under Title VII and the ADEA fail as a matter of law because she cannot show that she was treated less favorably than similarly situated employees outside her protected classes under nearly identical circumstances. Plaintiff admitted that she did not know whether any of her peers had as many compliance violations as she did. Moreover, the summary judgment evidence establishes that no one else on Ms. Molleda’s team had similar performance problems. Beyond this, Wells Fargo terminated Plaintiff for a legitimate, non- discriminatory reason, namely, her failure to meet the performance standards associated with her position. Two different supervisors provided similar coaching and feedback to Plaintiff 74 See Exhibit C, Plaintiff’s Deposition, at 165:13-24. 75 See Exhibit C, Plaintiff’s Deposition, at 84:18-85:2; 141:24-142:3; 166:22-25. Case 5:16-cv-00039-DAE Document 18 Filed 06/15/17 Page 18 of 20 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 19 regarding her compliance failures, and Plaintiff was given several Action Plans and Warnings before Wells Fargo terminated her employment. Plaintiff has no evidence of pretext. Therefore, Wells Fargo is entitled to summary judgment on Plaintiff’s claims of age, race, and national origin discrimination. Similarly, Plaintiff’s hostile work environment claims fail as a matter of law because the alleged harassment was not severe or pervasive, nor did it relate to Plaintiff’s age, race, or national origin. Rather, the alleged acts of harassment simply related to the performance management process, which is not objectively harassing. Wells Fargo is entitled to summary judgment on Plaintiff’s claims of hostile work environment. Finally, Plaintiff never engaged in a protected activity because she never complained of discrimination or harassment during her employment with Wells Fargo. Without a protected activity, Wells Fargo could not have engaged in retaliation. For this reason, summary judgment is warranted. WHEREFORE, PREMISES CONSIDERED, Defendant Wells Fargo Bank, N.A., respectfully requests that the Court enter an order: (1) granting this Motion in its entirety; (2) awarding Wells Fargo its costs and fees; (3) dismissing Plaintiff’s case with prejudice; and (4) awarding Wells Fargo any further relief to which it may be entitled. Case 5:16-cv-00039-DAE Document 18 Filed 06/15/17 Page 19 of 20 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 20 Respectfully submitted, /S/ TIFFANY L. COX Tiffany L. Cox Texas Bar No. 24050734 tiffany.cox@ogletree.com Juan Hernandez Texas Bar No. 24094717 juan.hernandez@ogletree.com Ogletree, Deakins, Nash, Smoak & Stewart, P.C. tiffany.cox@ogletreedeakins.com 2700 Weston Centre 112 East Pecan Street San Antonio, TX 78205 210.354.1300 210.277.2702 (Fax) ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE I hereby certify that on this 15th day of June, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following: Arthur G. Vega The Law Offices of Arthur G. Vega 104 Palm Circle San Antonio, Texas 78213 /S/ TIFFANY L. COX Tiffany L. Cox 30042799.1 Case 5:16-cv-00039-DAE Document 18 Filed 06/15/17 Page 20 of 20 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION BEATRICE GONZALES, § § Plaintiff, § § v. § CAUSE NO. SA-16-CA-0039-DAE § WELLS FARGO BANK, NA, § § Defendant. § ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Before the Court is Defendant’s Motion for Summary Judgment. After due consideration of Defendant’s motion, the pleadings on file, and the arguments of counsel, the Court is of the opinion that Defendant’s motion is meritorious and should be in all things granted. It is therefore ORDERED, ADJUDGED and DECREED that Defendant’s Motion for Summary Judgment is in all things GRANTED. The Court hereby renders a take nothing judgment against Plaintiff. The costs of court are taxed against the Plaintiff. All relief not granted herein is denied. SIGNED this _____ day of __________________, 2017. _____________________________________________ DAVID A. EZRA SENIOR UNITED STATES DISTRICT JUDGE 30171107.1 Case 5:16-cv-00039-DAE Document 18-1 Filed 06/15/17 Page 1 of 1