United States District Court, E.D. Louisiana
KIM N. JONES
WELLS FARGO BANK, N.A.
ORDER AND REASONS
L. C . FELDMAN UNITED STATES DISTRICT JUDGE.
the Court is Wells Fargo Bank, N.A.’s motion for
summary judgment. For the reasons that follow, the motion is
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.
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
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.
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
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
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.”
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. Jones failed to do so.
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.
was out of the office on Friday, December 9,
2016.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.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.
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.
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. 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.
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. 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
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.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
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,
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.
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.
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; (2) Title VII
disparate treatment based on gender; and (3) Title VII
disparate treatment based on race. 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; (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. 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.
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).
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 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
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).
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).
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).
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). “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).
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).
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 ...