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Jones v. Wells Fargo Bank, N.A.

United States District Court, E.D. Louisiana

September 23, 2019

KIM N. JONES
v.
WELLS FARGO BANK, N.A.

         SECTION "F"

          ORDER AND REASONS

          MARTIN L. C . FELDMAN UNITED STATES DISTRICT JUDGE.

         Before the Court is Wells Fargo Bank, N.A.’s motion for summary judgment. For the reasons that follow, the motion is GRANTED.

         Background

         This Title VII employment discrimination and state law whistleblower lawsuit arises from a 58-year-old African American woman’s claim that Wells Fargo wrongfully terminated her after 16 months as a home mortgage consultant. Kim Jones alleges that Wells Fargo discriminated against her because of her age (58), her race (African American), and her sex (female) in violation of state and federal antidiscrimination law. In addition to asserting wrongful termination, Jones alleges that she was mistreated because of these protected categories of age, race, and sex. She also alleges state law claims in which she seeks to recover for wrongful termination as a whistleblower, to recover unpaid commissions, and for negligence.

         From August 14, 2015 until her termination on December 10, 2016, Kim Jones worked for Wells Fargo as a mortgage loan officer. During her employment, she failed to meet the minimum production standards Wells Fargo required of mortgage loan officers. In September 2016, Wells Fargo placed Jones on a performance improvement plan, which set forth specific requirements she had to meet to remain employed. She failed to meet them. In December 2016, her employment was terminated.

         Kim Jones was hired on August 13, 2015 to work as a home mortgage consultant for Wells Fargo Bank at its Metairie, Louisiana location. At that time, Maurice Williams, an African-American male who is about five years older than Jones, managed Wells Fargo’s Metairie branch. Williams was responsible for managing the day to day operations of the Metairie branch; hiring and training home mortgage consultants; and ensuring that the branch met Wells Fargo’s market-based production goals. Williams interviewed, hired, and supervised Jones. And, he eventually participated in the collective decision to fire her. Williams reported to Area Manager Stephen Cook and Regional Manager Jamie Klinnert; collectively, the three generally made hiring and firing decisions regarding home mortgage consultants like Jones.

         As a loan officer or “home mortgage consultant, ” Jones was responsible for originating residential mortgage loans for Wells Fargo. All mortgage consultants must meet minimum production requirements. Jones signed the Minimum Production Threshold Acknowledgment, which provided that her employment could be terminated if she did not meet the minimum requirements. Jones also signed the Minimum Production Volume Standards Application and Funded agreements, which set forth the production requirements for home mortgage consultants, requiring that they fund at least $5.4 million in loan volume after being in the role for 12 months.

         During her first three months working as a home mortgage consultant, Jones was paid an hourly rate. After that interim period, Jones received an hourly draw as an advance on her commissions or incentive payments, which were determined based on the loans she closed. If she did not earn enough commission to cover her hourly draw, she would carry a deficit, also known as being “in the hole.”[1]

         Jones now says that she disagreed with or took issue with some Wells Fargo processes. For example, as part of the loan origination process, Jones alleges that when a loan application was delayed, Williams on behalf of Wells Fargo ordered her to contact her clients and have them pay a rate lock fee to preserve their original, lower interest rate. Jones says that the delays were not her customers fault, but Williams nevertheless threatened to call customers if she refused. Within the first three months of her employment, as part of a federal audit, Jones alleges that she took issue with her manager again; she says she reported that Williams regularly followed and enforced practices that conflicted with the Equal Credit Opportunity Act. Williams, Jones alleges, supported withholding less desirable loan applications from review and encouraged review by loan officers who were not trained to qualify applicants in order to increase the number of approved applications -- a figure Jones suggests is directly tied to Williams’ bonus and compensation. She contends that Williams reprimanded her for “throwing him under the bus.”

         Jones struggled to meet the home mortgage consultants’ minimum production requirements. She first became aware that she was “in the hole” in April 2016. By the end of August 2016, Jones had failed to fund the requisite $5.4 million in loan volume (or 36 purchase units) in the previous 12 months, nor had she funded $1.35 million in the previous three months; she also had a negative carryover commission balance of $5, 129.37. As a result, in September 2016, Williams issued Jones a performance improvement plan (PIP), effective until November 30, 2016. The plan mandated that Jones fund $450, 000 in loans each month between September and November 2016.[2] Jones failed to do so.

         On December 6, 2016, Williams emailed Human Resources to request a meeting to discuss terminating Jones’s employment because she had not met the production requirements of the performance improvement plan. The next day, Williams and Cook spoke with Human Resources Consultant Melissa Pritchard. During the call, Williams stated that Jones had loans in her pipeline, but that she was not timely closing the loans. Williams stated that Jones was resistant to his coaching and failed to follow his instructions for structuring and submitting loans. Cook stated that the pipeline was meaningless if the loans did not close, and that Jones was not adhering to Wells Fargo’s application standards and should not have accepted some of the loan applications.

         Jones was out of the office on Friday, December 9, 2016.[3]Williams emailed her and told her that she must report to the office to attend a meeting that afternoon at 4:00 p.m. Wondering why she had to report to the office to attend a meeting on her day off, Jones contacted Human Resources; Senior Employee Relations Consultant Glenda Longren took the call. Jones told Longren that Williams had told her to report to the office and that she (Jones) believed Williams had done something “fraudulent” with a loan.[4]Jones also said she realized that her vacation days had been cancelled in the system. Jones acknowledged that she was on a performance improvement plan and that her sales were down, and she feared that she would be fired once she reported to the office.

         That afternoon, Williams notified Jones that her employment was being terminated because she was “in the hole.” At that time, Jones had a negative carryover commission balance of more than $5, 000. Jones recalled that Williams told her that she was being terminated because she was either “$9, 000” or “$5, 000” “in the hole” but Jones believed that she was only $2, 300 in the hole; she did not know how many loans she had closed in the last three months before her termination. Jones asked Williams to call Cook, who told Jones that she (Jones) was eligible for rehire and she could always come back. When asked about commissions for loans that had yet to close, Jones alleges she was told that -- consistent with company policy, if the loans closed within 30 days of her termination -- she would receive payment.

         Jones submitted a Dispute Resolution Request form on January 3, 2017 and reported that she was unfairly fired after she informed her manager of concerns regarding a purchase agreement related to the borrower’s signature and suspicions that it was a “flip” transaction.[5] Notably, Wells Fargo investigated Jones’s claims regarding the irregularities of the loan transaction, as well as Jones’s termination from employment. Ultimately, Wells Fargo determined that neither of Jones’s complaints had merit.

         Milton Dejesus investigated Jones’s claims regarding the loan transaction she reported to Longren on December 9. Jones had reported that there may have been a “flip” transaction and that a contract was altered.[6] A “flip” purchase is one in which the buyer buys a home with the intention of selling the home shortly after buying it. Dejesus interviewed Williams, the loan processor, as well as the underwriter who worked on the transaction. Dejesus determined that Wells Fargo’s escalation process was properly followed. Dejesus concluded that the purchase in question was not a “flip” transaction and that the contract had not been not altered. Dejesus wrote these additional findings:

The consistent feedback and evidence points to a culture conflict between Kim [Jones] and Wells Fargo, in that she had her own unique perspective of how things should operate... There seems to be a consistent theme between her files as far as how she failed to follow [Wells Fargo] process or overrule established policy.

         ” Wells Fargo’s Human Resources department investigated Jones’s allegations regarding her termination. Amy Blair, Employee Relations Consultant, interviewed Williams. Williams told Blair that Jones was getting, but not closing, loans; and that she was not following Wells Fargo’s processes. Williams told Blair that customers were upset because they believed their loans were being processed, but Jones had not yet entered them into the system. Williams also explained that after he spoke with Human Resources and Cook on December 7, 2016, he reviewed the loans in Jones’s pipeline and determined that most would not close by the end of the month because too many steps were still incomplete.[7]Ultimately, Wells Fargo’s Human Resources department independently reviewed Jones’s pending loans and determined that Jones was not owed any additional commission, and that there were no unnecessary closing delays.[8]

         In mid-May 2017, Jones filed with the Equal Employment Opportunity Commission a charge of discrimination against Wells Fargo. On the form, she indicated (by checking boxes) that she was discriminated against on December 9, 2016[9] based on “race” and “sex;” in addition to checking the boxes indicating “race” and “sex” discrimination, Jones checked boxes for “retaliation” and “other: Equal Pay.” As to the factual “particulars” of the alleged discrimination, Jones wrote:

I began my employment with Wells Fargo on August 17, 2015 most recently as Home Mortgage Consultant earning $12.00 per hour. On December 7, 2016, I had a meeting with Branch Manager, Maurice Williams, to discuss the goals for 2017. There was no mention of poor performance plus I was ranked as #2 salesperson. On December 9, 2016, I was terminated by Branch manager, Maurice Williams; Area Manager, Steven Cook; and District Manager, Jamie Kleinart. The company employs over than [sic] 15 persons.
According to the company, I was discharged for not meeting minimum production standard sales.
I believe I have been discriminated against because of my sex, Female; race, Black; and retaliated against in violation of Title VII of the Civil Rights Act of 1964, as amended; and my wages in violation of the Equal Pay Act.

         Other than this allegation in this EEOC Charge, Wells Fargo did not receive an amended charge or any other documents describing or explaining the factual basis for Jones’s claim.

         On September 6, 2017, Ms. Jones, pro se, sued Wells Fargo, Stephen Cook, Jamie Klinnert (improperly named as Jaime Kleinhart), and Maurice Williams, alleging that she was fired because of her whistleblowing, refusing to participate in illegal activity, engaging in protected activity, and because of race, sex, and age discrimination. After retaining counsel, Ms. Jones amended her complaint alleging that she was discriminated against based on her age, sex, and race; that Wells Fargo retaliated against her because she reported and refused to participate in mortgage fraud; and that Wells Fargo failed to pay her timely earnings and commissions. Specifically, Jones alleges causes of action in violation of various federal laws including: (1) The Age Discrimination in Employment Act, 29 U.S.C. § 621;[10] (2) Title VII disparate treatment based on gender;[11] and (3) Title VII disparate treatment based on race.[12] Jones also alleges the same conduct she experienced while employed at Wells Fargo violates various Louisiana state laws including: (a) the Louisiana Employment Discrimination Law, La.R.S. 23:301, intentional discrimination on the basis of age, gender, and race; (b) retaliation against a whistleblower under La.R.S. 23:967;[13] (c) failure to timely pay commissions under La.R.S. 23:631 and La.R.S. 51:443; and (d) negligent hiring, retention, and supervision under La. C.C. art. 2315.[14] The plaintiff’s claims against Maurice Williams, Stephen Cook, and Jamie Klinnert were dismissed without prejudice for failure to prosecute. Wells Fargo now moves for summary relief.

         I. Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine dispute as to any material fact such that the moving party is entitled to judgment as a matter of law. No. genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine dispute of fact exists only “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claims. Id. Hearsay evidence and unsworn documents that cannot be presented in a form that would be admissible in evidence at trial do not qualify as competent opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed.R.Civ.P. 56(c)(2). “[T]he nonmoving party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.” Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)(internal quotation marks and citation omitted). Ultimately, “[i]f the evidence is merely colorable ... or is not significantly probative, ” summary judgment is appropriate. Id. at 249 (citations omitted); King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (“Unauthenticated documents are improper as summary judgment evidence.”).

         Summary judgment is also proper if the party opposing the motion fails to establish an essential element of her case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also McClendon v. United States, 892 F.3d 775, 781 (5th Cir. 2018)(“When the nonmovant bears the burden of proof at trial, the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial.”) In deciding whether a fact issue exists, courts must view the facts and draw reasonable inferences in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). Although the Court must “resolve factual controversies in favor of the nonmoving party, ” it must do so “only where there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts.” Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)(internal quotation marks and citation omitted).

         In resolving a motion for summary judgment, the Court "may only consider admissible evidence." Coleman v. Jason Pharmaceuticals, 540 Fed.Appx. 302, 306 (5th Cir. 2013)(citing Fed.R.Civ.P. 56(c)(2) and Mersch v. City of Dallas, 207 F.3d 732, 734-35 (5th Cir. 2000)). Federal Rule of Evidence 56(c)(2) provides that “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Affidavits and declarations used to support a motion must only “be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4).

         II.

         A.

         Title VII of the Civil Rights Act of 1964 was enacted “to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973). Employers are prohibited from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Moreover, “an employer may not discriminate against an employee because the employee has ‘opposed any practice made an unlawful employment practice ... or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing’ under Title VII.” See LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 388 (5th Cir. 2007)(omission in original)(quoting 42 U.S.C. § 2000e-3).

         Although a plaintiff may prove her claim of intentional discrimination by direct or circumstantial evidence, there is nothing in the record to indicate that Jones has direct evidence; accordingly, absent direct evidence of disparate treatment or retaliation, Jones must prove her case through circumstantial evidence. See McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007).

         Claims of discrimination based on circumstantial evidence are analyzed in accordance with the familiar McDonnell Douglas burden-shifting regime. See Caldwell v. KHOU-TV, 850 F.3d 237, 241 (5th Cir. 2017)(citing McDonnell Douglas, 411 U.S. at 800). This three-part framework first requires the plaintiff to make a prima facie case of discrimination. Morris v. Town of Independence, 827 F.3d 396, 400 (5th Cir. 2016). If the plaintiff makes this showing, a presumption of discrimination arises and the burden of production shifts to the defendant employer to articulate a legitimate non-discriminatory or non-retaliatory reason for the adverse employment action. Id. If the defendant satisfies that burden of production, then the inference of discrimination disappears, and the burden shifts back to the plaintiff, who must prove by a preponderance of the evidence that the proffered reason was merely a pretext for race (or sex or age) discrimination. Rogers v. Pearland Ind. Sch. Dist., 827 F.3d 403, 408 (5th Cir. 2016).[15] “A plaintiff may establish pretext either through evidence of disparate treatment or by showing that the employer’s proffered explanation is false or ‘unworthy of credence.’” Thomas v. Johnson, 788 F.3d 177, 179 (5th Cir. 2015). Notably, the Court does not assess the credibility of the employer’s explanation. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)(explaining that the defendant’s burden is one of production, not persuasion). To prove pretext, the plaintiff must demonstrate “both that the reason was false, and that discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (2007)(emphasis in original).[16]

         To establish a prima facie case of employment discrimination, a plaintiff must establish that she (1) is a member of a protected class; (2) was qualified for the position; (3) was subject to an adverse employment action; and (4) was treated less favorably than a similarly situated employee outside of her protected group under nearly identical circumstances. Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009); Bryan v. McKinsey & Co., Inc., 375 F.3d 358, 360 (5th Cir. 2004).[17]

         Only ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating constitute adverse employment actions in the context of Title VII disparate treatment claims. Thompson v. City of Waco, 764 F.3d 500, 503-05 (5th Cir. 2014); see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006)(explaining that the language of Title VII’s antidiscrimination provision “explicitly ...


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