Pat Chandler v. Regions Bank
Filing
OPINION filed: AFFIRMED, decision not for publication. Damon J. Keith, Circuit Judge; Eric L. Clay, (authoring) Circuit Judge and David W. McKeague, Circuit Judge.
Case: 13-6433
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0593n.06
No. 13-6433
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Aug 04, 2014
DEBORAH S. HUNT, Clerk
PAT CHANDLER,
Plaintiff-Appellant,
v.
REGIONS BANK,
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
Defendant-Appellee.
BEFORE:
KEITH, CLAY, and McKEAGUE, Circuit Judges.
CLAY, Circuit Judge.
Plaintiff Pat Chandler appeals the district court’s grant of
summary judgment in favor of Plaintiff’s former employer, Defendant Regions Bank, on
Plaintiff’s gender discrimination and retaliation claims. Plaintiff alleges that Defendant violated
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e (“Title VII”), and the Tennessee
Human Rights Act, Tenn. Code. Ann. § 4-21-101, et. seq. (“THRA”) by implementing
employment practices that favor female employees, and by retaliating against Plaintiff for
complaining about this alleged discrimination. For the reasons that follow, we AFFIRM the
district court’s grant of summary judgment in favor of Defendant.
BACKGROUND
Plaintiff worked as a Mortgage Loan Originator (“MLO”) at Defendant Regions Bank
from November 2008 until his resignation in June 2011. In this position, Plaintiff’s duties
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included generating mortgage leads, assisting customers with selecting among the various loan
programs, and gathering required documentation to complete the mortgage loan application.
Plaintiff was also responsible for submitting the completed mortgage application to a loan
processor and underwriter, who finalized and closed the loan.
Defendant maintains line of business (“LOB”) relationships between MLOs and its bank
branches. At the time he was hired, Plaintiff was assigned three branches in the Rutherford
County Mortgage Production Office. After one of Plaintiff’s branches closed, Plaintiff was left
with two branches.
Plaintiff contends that branch allocations were made at the ultimate
discretion of Gayle Kindig. The number of branches assigned to each MLO varies, and appears
to range from as few as one to as many as nine.
In December 2010, Plaintiff sent an e-mail to his supervisor, Joseph Campopiano, in
which he requested a change in his branch assignments. Plaintiff wrote that, in order to meet his
minimum production standards, he would either need to be assigned additional branches to
increase his volume, or be transferred to a more affluent area with a higher average loan amount.
Plaintiff specifically requested that he be assigned to a large branch in Goodlettsville, Tennessee,
where there was a vacancy. Defendant assigned Plaintiff to a “small rural branch” in Franklin,
Kentucky.
Plaintiff considered the Franklin branch to be a “booby door prize.”
The
Goodlettsville branch was allocated to Lee Mingo, a male MLO.
Plaintiff felt that the allocation of branches at Regions was inequitable and
discriminatory. He complained that male MLOs received fewer, and less desirable, branch
assignments than certain female MLOs. Plaintiff contends female employees sometimes had two
or three times more branches assigned to them as male employees. Sandy Glass, a female MLO,
had nine branches assigned to her, while Plaintiff at one time had only two. Plaintiff also
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contends that female MLOs Debbie Large and Becky Lynch had a greater number of branches
than Plaintiff. Neither party has submitted any data regarding the actual number of branches
assigned to any MLO, other than the deposition testimony of Ellie Teed, who testified that she
had three branches as of the date of her deposition, but had, at other times during her
employment, been assigned as few as one branch.
Plaintiff also took issue with Defendant’s system for “internal referrals”––branch
employees’ referral of walk-in customers. Defendant employs an “open architecture” referral
system, meaning that branch employees are permitted to refer potential mortgage customers to
any MLO in the company, and not obligated to send referrals to the MLO assigned their
particular branch. Branch employees receive a small incentive for making internal mortgage
referrals, but the amount of the incentive is the same regardless of to which MLO they refer the
potential customer.
Joyce Mungle, the branch manager at one of Plaintiff’s assigned branches, typically
referred potential loan customers to Ellie Teed, a female MLO, rather than to Plaintiff. Mungle
testified that she referred potential loan customers to Teed instead of Plaintiff because she had
received complaints about Plaintiff’s customer service. Plaintiff disputes the contention that he
provided poor customer service, and contends that he had a stellar customer service ranking.
Campopiano testified that Plaintiff received positive reviews on customer feedback surveys, and
received a score of 100% for customer service in the year 2010. However, Campopiano also
testified that he had, at one time, discussed with Plaintiff his concern that branch managers
thought “customers were getting gouged” by Plaintiff’s aggressive approach to overage charges.
Plaintiff allegedly replied that it was not the branch managers’ responsibility to worry about how
much money he made or what he charged the customers.
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Plaintiff alleges that the internal referral system at Regions was inherently flawed
because it allowed female branch employees to favor female MLOs at the expense of male
Plaintiff contends that Defendant “fostered an environment of discrimination by
MLOs.
allowing branch managers and employees to refer customers to any MLO, or their favorite MLO,
all the while maintaining that a certain MLO was responsible for each branch.” (R. 42, Response
at 580.)
Plaintiff submits that the “open architecture” referral system “was ripe for
discrimination and it was evident that at least one female employee was referring customers
exclusively to a female MLO, and was permitted to do so.” (Id.)
Around December 2010, Plaintiff filed a formal complaint with Joseph Campopiano,
Chuck Mander, and Gayle Kindig about the discriminatory assignment of branches as well as the
encouraging of employees at his branch to send leads to female MLOs. Plaintiff then filed
another complaint with Human Resources about the discriminatory practices, and alleges that no
corrective action was taken. On March 3, 2011, the Area Human Resources Manager, Marlene
Akin, met with Plaintiff to discuss his complaints. Akin told Plaintiff that she would look into
his complaints and follow up with him.
On March 22, 2011, Plaintiff filed an EEOC Charge. He filed a second EEOC Charge on
April 13, 2011. Near the end of April 2011, Campopiano was terminated, and Gayle Kindig
replaced Campopiano as Plaintiff’s direct supervisor.
In one of her initial meetings with
Plaintiff, Kindig informed Plaintiff that she was aware that he had filed a charge with the EEOC.
Plaintiff contends that the loan approval process became “more hostile” prior to his
resignation in June 2011, and submits that his loans were being “slow walked” through the
process, meaning that his loans took an exceptionally long time to close after he submitted loan
applications to the loan processor. Plaintiff ultimately resigned on June 16, 2011; he contends
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that his resignation was constructive discharge. Plaintiff also alleges that Defendant sabotaged
his job application at a future place of employment by indicating that Plaintiff was “ineligible for
rehire” and giving him a poor review.
Plaintiff filed a complaint against Defendant in the Middle District of Tennessee on July
24, 2012, alleging violations of Title VII, THRA, and the Civil Rights Act of 1991.1 On August
2, 2013, Defendant filed a motion for summary judgment. Plaintiff filed a response opposing
Defendant’s motion for summary judgment on September 4, 2013, and Defendant filed its reply
twenty days later. On October 1, 2013, the district court granted Defendant’s motion for
summary judgment. Plaintiff timely appealed. On appeal, Plaintiff challenges only the dismissal
of his retaliation and disparate impact discrimination claims.
DISCUSSION
We review de novo a district court’s grant of summary judgment. Laster v. City of
Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014). In evaluating Defendant’s motion for summary
judgment, we accept Plaintiff’s evidence as true, and draw all reasonable inferences in Plaintiff’s
favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is
appropriate when the evidence is so lacking or one-sided that a reasonable jury could arrive at
only one conclusion. Id. at 251–52. “The ultimate question is whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Laster, 746 F.3d at 726 (internal quotation marks and
citations omitted.) However, “[t]he mere existence of a scintilla of evidence in support of the
plaintiff’s position is insufficient; there must be evidence on which the jury could reasonably
find for the plaintiff.” Anderson, 477 U.S. at 252.
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Plaintiff initially pled a hostile work environment claim, but that claim was later dropped.
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1. TITLE VII DISPARATE IMPACT DISCRIMINATION CLAIM
To establish a prima facie case of discrimination under the disparate impact theory, “a
plaintiff must: (1) identify a specific employment practice; and (2) present data indicating that
the specific practice had an adverse impact on a protected group.” Davis, 717 F.3d at 494; see
also Dunlap v. Tennessee Valley Authority, 519 F.3d 626, 629 (6th Cir. 2008) (describing the
second element as: “the plaintiff . . . through relevant statistical analysis proves that the
challenged practice has an adverse impact on a protected group.”). Plaintiff satisfied the first
element by identifying two specific employment practices: 1) the allegedly arbitrary assignment
of branches, and 2) the allegedly flawed “open architecture” internal referral system. However,
Plaintiff’s claim falls short on the second element because Plaintiff has presented virtually no
statistical data or other evidence indicating that these specific practices had an adverse impact on
male MLOs.
The evidence in this case consists of: 1) the affidavit of Human Resources professional
Rena Ramsey, and attached exhibit (a compilation of internal referral data); and 2) deposition
testimony from Plaintiff, Chuck Mader, Joseph Campopiano, Gayle Kindig, Ellie Teed, and
Joyce Mungle. The only statistical evidence presented with regard to the internal referral policy
is Exhibit A––a spreadsheet tallying the total number of internal referrals received by each MLO.
As the district court correctly observed, “the numbers of referrals do not reflect a noticeable
discrepancy between male and female MLOs.” Chandler v. Regions Bank, No. 3-12-0767, 2013
WL 5503139 at *3 (M.D. Tenn. Oct. 1, 2013). To the contrary, as Rena Ramsey stated in her
sworn affidavit, Defendant’s “records for the period in question do not indicate that female
MLOs, as a group, are being treated differently from male MLOs, as a group, with respect to
internal referrals within the Rutherford County group.” (R. 33-9, Ex. 9, at 407.) Apart from
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Exhibit A and his own deposition testimony, Plaintiff did not submit any other evidence––
statistical or otherwise––to support his claim that male MLOs are disproportionately
disadvantaged by the internal referral policies.
Similarly, Plaintiff has not submitted any
statistical evidence or other data about branch allocations apart from the testimony of Ellie Teed
and himself. The deposition testimony does not support the finding that the discretionary system
of branch allocations had a disparate impact on males. In fact, Ellie Teed testified that she was
allotted fewer branches than Plaintiff. Plaintiff’s unsupported contention that certain female
MLOs were assigned to a greater number of branches is insufficient to satisfy Plaintiff’s burden
of production. Without more evidence to support Plaintiff’s allegation that the system of branch
allocations had a disparate impact on male MLOs, a jury could not find that the system was
discriminatory.
Plaintiff argues that the law does not require that he present statistics in order to make a
prima facie showing on his disparate impact claim. In Lynch, we held that a plaintiff was “not
required to prove her case by statistics.” 817 F.2d at 387. We observed: “Both §§ 703(a)(1) and
(a)(2) speak in terms of ‘any individual.’ The focus of § 703(a)(1) is discriminatory treatment of
any individual, and of § 703(a)(2) discriminatory consequences,” id. at 388, and stated: “While
Title VII plaintiffs may be able to prove some disparate impact cases by statistics, that is not the
only avenue available,” id. at 387–88. In Lynch, the plaintiff presented credible expert testimony
explaining the disparate impact on female employees, which served as an alternative “avenue” to
support the plaintiff’s claim. In this case, unlike Lynch, not only did Plaintiff present no
statistical evidence to support his claim, but he presented no evidence of any kind to support a
jury finding that the specified policies had a disparate impact on male employees. Moreover,
Plaintiff has not alleged that Defendant withheld this information, and has provided no other
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reason for this Court to overlook the paucity of evidence in this case. Accordingly, the district
court properly dismissed this claim.
It is true that “[t]he evidentiary requirements of a prima facie case of discrimination are
not onerous.” Lynch v. Freeman, 817 F.2d 380, 388 (6th Cir. 1987), but Plaintiff has produced
virtually no evidence upon which a jury could conclude that Defendant’s policies had a disparate
impact on male MLOs. Defendant, on the other hand, has produced evidence suggesting that the
challenged policies did not impose a disproportionate burden on male MLOs. Plaintiff could
have attempted to compile additional data to support his disparate impact claims during the
discovery period, but that period has expired. In light of the paucity of evidence to support
Plaintiff’s disparate impact claim, the district court did not err in granting Defendant’s motion
for summary judgment.
2. TITLE VII RETALIATION CLAIM
Because Plaintiff has not presented direct evidence of retaliation, we analyze his claim
under the burden-shifting framework of McDonnell Douglas, 411 U.S. 792. See Laster, 746
F.3d at 730. Plaintiff bears the initial burden to establish a prima facie case of retaliation. If he
succeeds in making out the elements of a prima facie case, “the burden of production of evidence
shifts to [Defendant] to articulate some legitimate, non-discriminatory reason for its actions.”
Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007) (internal quotation marks omitted) If
Defendant satisfies its burden of production, the burden shifts back to Plaintiff to demonstrate
that Defendant’s proffered reason was not the true reason for the action. Id. Although the
burden of production shifts between the parties, Plaintiff bears the burden of persuasion
throughout the process. Id.
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To establish a prima facie case of retaliation under both Title VII and THRA, Plaintiff
must demonstrate that: (1) he engaged in activity protected by Title VII; (2) his exercise of such
protected activity was known by Defendant; (3) thereafter, Defendant took an action that was
“materially adverse” to the plaintiff; and (4) a causal connection existed between the protected
activity and the materially adverse action. Laster, 746 F.3d at 730; see also Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 67–68 (2006) (modifying the third element to require a
“materially adverse action” rather than an “adverse employment action”). The first two elements
of Plaintiff’s prima facie case are not disputed.
The district court erred in analyzing the third element of Plaintiff’s retaliation claim. In
assessing this element, the district court referred back to its analysis of Plaintiff’s discrimination
claim, stating:
This Court has already found . . . that Plaintiff has not demonstrated that he
suffered an adverse employment action. Neither the alleged “slow walking” nor
the accusations of forgery (which were eventually dropped) constitutes an adverse
employment action for these purposes.
Chandler, 2013 WL 5503139 at *4. As we recently stated in Laster, “[t]he ‘materially adverse
action’ element of a Title VII retaliation claim is substantially different from the ‘adverse
employment action’ element of a Title VII . . . discrimination claim.” 746 F.3d at 719 (citing
Burlington N., 548 U.S. at 59). To establish the third element of a retaliation claim, Plaintiff
need only show that “the challenged action . . . well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.” Burlington N., 548 U.S. at 68 (internal
quotation marks and citations omitted). The burden of showing that Plaintiff was subjected to
adverse action is “less onerous” in the context of a retaliation claim than in the context of a
discrimination claim; actions which are not “adverse” for purposes of a discrimination claim may
nevertheless qualify as such for purposes of a retaliation claim.
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Laster, 746 F.3d at 732.
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Accordingly, the district court erred in finding that the alleged “slow walking,” and other actions
could not constitute “material adverse action” for the purposes of Plaintiff’s retaliation claim.
Nevertheless, Plaintiff’s claim must fail––not because the alleged actions cannot form the
basis of a retaliation claim as a matter of law, but because Plaintiff has failed to produce any
evidence that many of these actions even occurred, as a matter of fact, or that they occurred as a
result of Plaintiff’s protected activity.
First, Plaintiff has not produced any evidence to support his allegation that his loans were
being “slow walked.” Apart from his own assertion, Plaintiff has not submitted a modicum of
evidence showing that his loans took longer than average to process. To the contrary, the record
shows that delays in loan processing had been an ongoing problem for all MLOs, and not only
Plaintiff. Moreover, Plaintiff admits that several of his loans were delayed due to the fact that
Plaintiff submitted applications that were incomplete.
Plaintiff also failed to produce any
evidence that the pace of his loans was influenced by individuals who were aware of Plaintiff’s
protected activities. There is no evidence from which a jury could conclude that the underwriters
who were allegedly “slow-walking” Plaintiff’s loans had any retaliatory motive or knowledge of
Plaintiff’s protected activity or that Plaintiff’s supervisors encouraged any delays. Accordingly,
there is insufficient evidence to support the notion that Plaintiff’s loans were “slow walked” in
retaliation for engaging in protected activity.
Plaintiff’s remaining subclaims––his allegations that Defendant failed to investigate his
complaints of discrimination, denied him assignment to a branch that he desired, and sabotaged
his application for future employment––fail because Plaintiff cannot show that there was any
causal connection between his protected activity and the alleged adverse actions. Retaliation
claims “must be proved according to traditional principles of but-for causation.” Univ. of Texas
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Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). Because Plaintiff has not proffered
evidence sufficient to raise an inference that his protected activity was the likely reason for the
adverse action, EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997) (quoting
Zanders v. National R.R. Passenger Corp., 898 F.2d 1127, 1135 (6th Cir. 1990)), Plaintiff’s
retaliation claim must fail.
CONCLUSION
For the reasons set forth above, we AFFIRM the district court’s grant of summary
judgment in favor of Defendant.
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