Stewart v. Wells Fargo Bank National Association

Filing 47

MEMORANDUM OPINION - For the foregoing reasons, the Court DENIES Wells Fargos motion for summary judgment. (Doc. 29). Because the Court did not rely on the disputed material in reaching its decision, it DENIES both Mr. Stewarts and Wells Fargos motions to strike as MOOT. (Docs. 41, 44). Signed by Judge Madeline Hughes Haikala on 3/14/2017. (KEK)

FILED
2017 Mar-14 PM 12:40
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
SCOTT STEWART, AS
PERSONAL REPRESENTATIVE
OF THE ESTATE OF
DEBORAH W. STEWART
Plaintiff,
v.
WELLS FARGO BANK,
NATIONAL ASSOCIATION
Defendant.

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Case No.: 5:15-cv-00988-MHH

MEMORANDUM OPINION
Plaintiff Scott Stewart, as the representative for the estate of Deborah W.
Stewart, brings this action against Wells Fargo. (Doc. 1). Mr. Stewart contends
that Wells Fargo terminated Ms. Stewart’s employment in violation of the Family
Medical Leave Act of 1993, 29 U.S.C. §§ 2601, et seq. (Doc. 1). 1 Wells Fargo
argues that it terminated Ms. Stewart’s employment for poor performance. (Doc.
29). The parties have presented evidence in support of their respective positions.
1

On September 16, 2015, after filing this action, Ms. Stewart died. (Doc. 34, pp. 15–16; Doc.
17). Pursuant to Federal Rule of Civil Procedure 25(a)(1), if a deceased plaintiff’s action
survives the plaintiff, then the decedent’s successor or representative may file a motion for
substitution within 90 days after service of the statement noting death. On December 21, 2015,
within the 90-day window proscribed by Rule 25, Ms. Stewart’s personal representative, Scott
Stewart, filed a motion to substitute himself as plaintiff. (Doc. 21). The Court granted the
motion. (Doc. 23).

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On this record, pursuant to Federal Rule of Civil Procedure 56, Wells Fargo asks
the Court to enter judgment in favor of the company. (Doc. 29). Mr. Stewart asks
the Court to strike various statements made in evidentiary materials that Wells
Fargo submitted. (Doc. 41). Wells Fargo has also moved to strike Mr. Stewart’s
declaration. (Doc. 44). For the reasons discussed below, the Court denies Wells
Fargo’s motion for summary judgment and the Court denies both Mr. Stewart’s
and Wells Fargo’s motions to strike as moot.
I.

SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). To demonstrate that there is a genuine
dispute as to a material fact that precludes summary judgment, a party opposing a
motion for summary judgment must cite “to particular parts of materials in the
record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ.
P. 56(c)(1)(A).
When considering a summary judgment motion, the Court must view the
evidence in the record in the light most favorable to the non-moving party.
See White v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015).
2

Accordingly, the Court presents the facts in this opinion in the light most favorable
to Mr. Stewart. See White, 789 F.3d at 1191; see also Feliciano v. City of Miami
Beach, 707 F.3d 1244, 1252 (11th Cir. 2013) (“[W]hen conflicts arise between the
facts evidenced by the parties, [courts] must credit the nonmoving party’s
version.”). “The court need consider only the cited materials, but it may consider
other materials in the record.” Fed. R. Civ. P. 56(c)(3).
II.

FACTUAL BACKGROUND
On March 5, 2012, Wells Fargo hired Ms. Stewart to serve as a treasury

management sales consultant. (Doc. 32-3, pp. 1–2; Doc. 32, p. 48). Several team
members interviewed Ms. Stewart and selected her from a field of candidates
because she had decades of industry experience, including some prior experience
with Wells Fargo. (Doc. 32, pp. 18–21; Doc. 33, p. 16–17). Ms. Stewart’s
supervisor, Jason Kincaid, Senior Vice President of Treasury Management, was
“excited” and “impressed” to have Ms. Stewart on his team. (Doc. 32, pp. 23–24).
Mr. Kincaid was not the sole decision-maker in hiring determinations, but he made
the ultimate decision in terminating employees on his team. (Doc. 32, p. 86; Doc.
33, pp. 19–21, 23).
As a treasury management sales consultant, Ms. Stewart developed and
maintained business for an assigned customer base in north Alabama and

3

Tennessee. (Doc. 30-1, ¶ 6; Doc. 30-2, ¶ 6; Doc. 32, p. 16). According to Wells
Fargo, Ms. Stewart’s responsibilities included:
partnering with Bank relationship managers and business bankers in a
consultative selling role, meeting annual sales goals and sales activity
targets by developing and executing a strategy to retain and fully
penetrate existing client relationships, develop sales plans for her
assigned territory and key customer accounts, providing training on
treasury management products and services to relationship managers
and business bankers as needed, and managing her assigned territory
with minimal oversight from management.
(Doc. 30-1, ¶ 6; Doc. 30-2, ¶ 6).
At the end of her first year at Wells Fargo, Ms. Stewart did not meet her
sales goal. (Doc. 30-4, p. 2–4; Doc. 30-5, p. 2; Doc. 1, ¶ 10). Mr. Kincaid testified
that “it’s not uncommon in the first year [as a treasury management sales
consultant] . . . to [have to] build up your pipeline, build up your relationships and
partnerships, and then the sales performance comes from that.” (Doc. 32, p. 51).
In addition to falling short of her annual sales goals, according to her annual
performance evaluation, Ms. Stewart underperformed in other areas of her work in
2012. (Doc. 30-4, p. 2–4; Doc. 32, pp. 64, 74). Mr. Kincaid expressed concern in
the review about Ms. Stewart’s achievement and set future performance
expectations. (Doc. 30-4, p. 3; Doc. 32, pp. 64–65). Mr. Kincaid recognized that
Ms. Stewart had “faced market headwinds with a low starting pipeline, high bank
turnover and new BBG leadership.” (Doc. 30-4, p. 3). Mr. Kincaid also noted that
Ms. Stewart “ha[d] worked very hard.” (Doc. 30-4, p. 2; Doc. 30-2, p. 7). Despite
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Wells Fargo’s allegations of Ms. Stewart’s poor 2012 performance, Wells Fargo
rated her overall evaluation performance for 2012 a “3.” (Doc. 30-4, p. 2–4). 2 Not
only that, Wells Fargo gave Ms. Stewart an end-of-the-year performance bonus.
(Doc. 32, pp. 52–55).
During the first quarter of 2013, according to Wells Fargo, Ms. Stewart’s
performance worsened; Mr. Kincaid testified he received “more complaints from
bankers . . . [and] clients” about Ms. Stewart’s work. (Doc. 32, pp. 64–66, 102–
03). In April 2013, Ms. Stewart’s sales were 32 percent of her year-to-date goal
and 11 percent of her annual goal. (Doc. 30-7, p. 2). Wells Fargo issued Ms.
Stewart an informal warning for her underperformance. (Doc. 32-8). Mr. Kincaid
testified that “it’s not uncommon” for a treasury management sales consultant to
receive an informal performance warning. (Doc. 32, p. 47). The informal review
set out an improvement plan to help Ms. Stewart achieve her benchmark standards.
(Doc. 30-7, pp. 2–3).
In the months that followed, Wells Fargo contends that Ms. Stewart’s
performance did not improve. (Doc. 30-2, ¶ 8). On June 26, 2013, Wells Fargo
issued a formal performance warning to Ms. Stewart which stated that failure to
improve would result in “further corrective action, up to and including termination

2

The grading scale that Wells Fargo used to assess Ms. Stewart’s performance is not in the
record. The Court infers that a “3” is toward the top of the scale and that Ms. Stewart “met
expectations.”

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of employment.” (Doc. 30-2, ¶ 8; Doc. 30-10, pp. 2–4). Mr. Kincaid testified he
“drove the process” to place Ms. Stewart on formal warning and Mr. James Walsh,
Wells Fargo’s Southeast Division Sales Manager to whom Mr. Kincaid reported,
was simply made aware of Mr. Kincaid’s decision. (Doc. 32, p. 110). While Mr.
Kincaid conducted monthly one-on-one meetings with his team members, after
Ms. Stewart was placed on a formal performance warning, Mr. Kincaid moved to
weekly one-on-one meetings with her. (Doc. 32, p. 71).
One week before Ms. Stewart received the formal warning, she visited her
doctor for treatment of chronic neck pain. (Doc. 43-7, p. 4). Scott Stewart, Ms.
Stewart’s son, testified that Ms. Stewart had complained about her neck troubles
for years. (Doc. 34, p. 16). Her doctor diagnosed myelopathy, and Ms. Stewart
and her doctor agreed that she should have surgery. The doctor ordered a presurgical diagnostic CT and prescribed medicine for Ms. Stewart. (Doc. 43-7, p. 4).
When Mr. Kincaid discussed the formal warning with Ms. Stewart, she asked if
she was about to be terminated and explained that she was having health issues that
she needed to resolve. (Doc. 32, pp. 70-71).
At some point during the performance warning process, probably in May or
June of 2103, Mr. Kincaid asked Ms. Stewart if she was looking for another job.
(Doc. 32, pp. 74-76). Mr. Kincaid testified he “actively talk[ed] with Miss Stewart
about trying to help her find a place she could succeed” because “[w]hen [he]
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see[s] someone not performing . . . [it] create[s] a lot of concern for [him].” (Doc.
32, pp. 74, 76). ). On July 8, 2013, Wells Fargo gave Ms. Stewart a mid-year
performance review. Wells Fargo told Ms. Stewart that she was “Off Track” in
every category of work. (Doc. 30-11, p. 2; Doc. 40-1, p. 1).
In July 9, 2013, Wells Fargo received Ms. Stewart’s request for medical
leave for neck surgery. (Doc. 30-12, p. 2). On July 10, 2013, Wells Fargo granted
Ms. Stewart’s request. (Doc. 30-12, p. 2). Wells Fargo’s Leave Management team
informed Mr. Kincaid that Ms. Stewart’s “leave of absence qualifies for job
protection under the Family and Medical Leave Act.” (Doc. 30-12, p. 9). Mr.
Kincaid testified that he was “not really familiar” with FMLA leave because he
was “on the front line.” (Doc. 32, p. 71). Ms. Stewart had neck surgery and was
on leave for five weeks from July 19, 2013 to August 26, 2013. (Doc. 30-2, ¶ 20;
Doc. 30-12, p. 2; Doc. 30-13, p. 2).
On August 26, 2013, Ms. Stewart returned to Wells Fargo, and Mr. Kincaid
allowed her to work with limited responsibilities for two weeks. (Doc. 30-14, p.
2). Mr. Kincaid testified that he informed Ms. Stewart that he “assum[ed] [she]
probably [was] not going to be 200 percent coming back” after her surgery because
he understood she “had gone through a procedure, had been on leave, and . . .
needed some time to try to ramp back up.” (Doc. 32, p. 81). Mr. Kincaid stated he

7

warned Ms. Stewart that she was still “close to being terminated,” regardless of her
medical issues or leave. (Doc. 32, pp. 81, 84–85).
When Ms. Stewart resumed her regular duties, Mr. Kincaid determined that
“there was really nothing Miss Stewart was doing to indicate there was a path for
success.” (Doc. 32, p. 83). On October 2, 2013, just weeks after Ms. Stewart
returned to work from medical leave, Mr. Kincaid, in an e-mail to human resources
and Mr. Walsh, stated: “I am writing to express my continued concern for Debby
Stewart’s performance level in her role as a TMSC. I believe we need to move to
termination as soon as possible for several reasons.” (Doc. 40-1, p. 1). Mr.
Kincaid provided a number of performance-based explanations and added that
termination was justified because “Debby submits a request for medical leave.”
(Doc. 40-1, p. 1). Mr. Walsh replied, “I fully support Jason’s determination that
we move to termination.” (Doc. 40-1, p. 1).
On October 9, 2013, five weeks after Ms. Stewart’s return to work from her
FMLA leave, Mr. Kincaid terminated her employment “for continued poor
performance.” (Doc. 30-1, ¶ 7; Doc. 30-2, ¶ 8). Wells Fargo acknowledges that
other treasury management sales consultants who reported to Mr. Walsh and Mr.
Kincaid had failed to meet their annual sales goals but had not been terminated.
(Doc. 30-1, ¶ 10; Doc. 30-2, ¶ 10). Mr. Kincaid testified that “[t]oward the end of

8

[Ms. Stewart’s] tenure in the role, [he did not] believe she was trying . . . to
succeed.” (Doc. 32, p. 79).
Mr. Stewart, who works in finance, testified that Ms. Stewart, as a single
mother raising him, had throughout her career “worked from the smallest bank to
the biggest bank” and had “always [been] a top performer.” (Doc. 34, p. 36).
Wells Fargo replaced Ms. Stewart with Nicole Burgess, who Wells Fargo
acknowledges “was a junior person, did not have the level of experience Miss
Stewart had,” and “did not have experience in treasury management sales.” (Doc.
32, pp. 73, 99). After Wells Fargo terminated Ms. Stewart, Ms. Stewart filed for
disability benefits and never worked again. (Doc. 34, p. 66–67). Mr. Stewart
observed the “stress that [losing her job at Wells Fargo]” in a “very unjust” manner
had “put on her.” (Doc. 34, p. 36). On September 16, 2015, three months after
filing this action, Ms. Stewart died unexpectedly after suffering a heart attack.
(Doc. 34, pp. 15–16).
III.

ANALYSIS
Mr. Stewart argues Wells Fargo violated the FMLA by terminating Ms.

Stewart’s employment because she requested medical leave from work. (Doc. 1).
The FMLA guarantees to eligible employees the right to twelve weeks of leave
during any twelve-month period due to a serious health condition. See 29 U.S.C. §
2612(a)(1). To state a claim for FMLA retaliation, Mr. Stewart “must show that
9

[Wells Fargo] intentionally discriminated against [Ms. Stewart] for exercising an
FMLA right.” Martin v. Brevard Cnty. Pub. Sch., 543 F.3d 1261, 1267 (11th Cir.
2008) (emphasis in original). In this circuit, a plaintiff may prove retaliation under
the FMLA through direct or circumstantial evidence of discrimination.

See

Strickland v. Water Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199,
1207 (11th Cir. 2001); see also Dockens v. DeKalb Cnty. Sch. Sys., 441 Fed. Appx.
704, 708 (11th Cir. 2011).
Direct evidence is “evidence, which if believed, proves the existence of a
fact without inference or presumption.” Merritt v. Dillard Paper Co., 120 F.3d
1181, 1189 (11th Cir. 1997) (quotation omitted). Evidence that merely suggests
retaliation, see Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081–82 (11th Cir.
1990), or that could “have more than one possible meaning,” see Harris v. Shelby
Cnty. Bd. of Educ., 99 F.3d 1078, 1083 n. 2 (11th Cir. 1996), is circumstantial
evidence. See Merritt, 120 F.3d at 1189.
At the summary judgment stage, even if the factual predicate for the direct
evidence is disputed, if “a jury could find that the decisionmaker had made the
statement, there [is] direct evidence . . . precluding summary judgment.” Bass v.
Bd. of Cnty. Comm’rs, Orange Cnty., Fla., 256 F.3d 1095, 1112 (11th Cir. 2001);
see also Merritt, 120 F.3d at 1189 (“‘Where the non-movant presents direct
evidence that, if believed by the jury, would be sufficient to win at trial, summary
10

judgment is not appropriate even where the movant presents conflicting
evidence.’”) (quoting Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th
Cir. 1996)).
In Merritt, the Eleventh Circuit discussed “a long line of cases” in which it
“found direct evidence where ‘actions or statements of an employer reflect[] a
discriminatory or retaliatory attitude correlating to the discrimination or retaliation
complained of by the employee.’” Id. at 1189–90 (alteration in original) (quoting
Caban–Wheeler v. Elsea, 904 F.2d 1549, 1555 (11th Cir.1990)) (collecting cases).
“The quintessential example of direct evidence” in an age discrimination case is
“‘a management memorandum saying, “Fire Earley—he is too old.”‘” Id. at 1190
(quoting Earley, 907 F.2d, at 1081). Similarly, in a race retaliation case, the
quintessential example of direct evidence is, “Fire Merritt—he gave the most
damning deposition testimony” in a Title VII lawsuit. Id.
In this case, Mr. Stewart has established his prima facie case through direct
evidence. On October 2, 2013, in an e-mail to human resources and Mr. Walsh,
Mr. Kincaid stated, “I believe we need to move to termination as soon as possible
for several reasons[.]” (40-1, p. 1). One of those reasons was: “Debby submits a
request for medical leave.” (Doc. 40-1, pp. 1). Mr. Walsh replied to Mr.
Kincaid’s e-mail, reporting, “I fully support Jason’s determination that we move
to termination.” (Doc. 40, p. 1). On October 9, 2013, five weeks after Ms.
11

Stewart returned from FMLA leave, Mr. Kincaid terminated Ms. Stewart’s
employment. (Doc. 30-1, p. 4).
Mr. Kincaid’s e-mail constitutes direct evidence of retaliation.

Mr.

Kincaid’s statement that “I believe we need to move forward on termination”
because “Debby submit[ted] a request for medical leave” does more than merely
suggest a discriminatory motive. It is a blatant remark.
Wells Fargo argues that it is entitled to summary judgment because the
company terminated Ms. Stewart for poor performance. 3 Wells Fargo’s argument
fails because Mr. Stewart has produced direct evidence to support his claim. As a
result, the burden of persuasion does not shift to Wells Fargo to “rebut this type of
showing of [retaliation] simply by articulating or producing evidence of legitimate,
nondiscriminatory reasons” for terminating Ms. Stewart. Lee v. Russell County Bd.
of Educ., 684 F.2d 769, 774 (11th Cir. 1982). 4 Instead, Mr. Stewart’s claim

3

Wells Fargo argues that Mr. Stewart should have to demonstrate that, “but for” Ms. Stewart’s
FMLA leave request, Wells Fargo would not have terminated her. The Court is not persuaded.
Neither the Supreme Court nor the Eleventh Circuit requires plaintiffs bringing FMLA retaliation
claims to prove causation under the “but for” standard. The Eleventh Circuit applies the
“motivating factor” causation standard in FMLA retaliation cases. See Pereda v. Brookdale
Senior Living Communities, Inc., 666 F.3d 1269, 1275 (11th Cir. 2012); Smith v. BellSouth
Telecomms., Inc., 273 F.3d 1303, 1313 (11th Cir. 2001). As the Eleventh Circuit recently
observed, “in the FMLA context, neither the Supreme Court nor [the Eleventh Circuit] has
required plaintiffs to prove that illegal retaliation was the ‘but-for’ cause of the adverse
employment action suffered.” Coleman v. Redmond Park Hosp., LLC, 589 Fed. Appx. 436, 438
(11th Cir. 2014).
4

Because the Court finds that Mr. Stewart has established his prima facie case of FMLA
retaliation through direct evidence, the Court does not have to evaluate his circumstantial
evidence to rule on Wells Fargo’s summary judgment motion. The Court notes that the Eleventh

12

survives summary judgment and proceeds directly to a jury. At the summary
judgment stage, in the face of direct evidence of retaliation, a jury—not this
Court—must decide whether Wells Fargo terminated Ms. Stewart in violation of
the FMLA. See Mora v. Jackson Mem’l Found., Inc., 597 F.3d 1201, 1204 (11th
Cir. 2010) (vacating summary judgment and explaining that the plaintiff’s
evidence of discriminatory remarks “should be taken at face value” and to
conclude otherwise “would be to deny Plaintiff the benefit of resolving all
reasonable inferences in her favor as the nonmoving party.”).
IV.

CONCLUSION
For the foregoing reasons, the Court DENIES Wells Fargo’s motion for

summary judgment. (Doc. 29). Because the Court did not rely on the disputed
material in reaching its decision, it DENIES both Mr. Stewart’s and Wells
Fargo’s motions to strike as MOOT. (Docs. 41, 44).

Circuit analyzes FMLA retaliation claims using the burden-shifting framework set out in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Hulbert v. St. Mary’s Health
Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir. 2006). Under this test, in the absence of direct
evidence, a plaintiff can establish a prima facie case of FMLA retaliation with circumstantial
evidence by proving: (1) she engaged in statutorily protected activity; (2) she suffered an adverse
employment decision; and (3) the decision was causally related to the protected activity. Id. If
the employee makes this showing, “the burden then shifts to the defendant to articulate a
legitimate reason for the adverse action.” Finally, “[i]f the defendant does so, the plaintiff must
then show that the defendant’s proffered reason for the adverse action is pretextual.” Id. The
Court recognizes that in addition to direct evidence, Mr. Stewart has presented some
circumstantial evidence of retaliation in violation of the FMLA.

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DONE and ORDERED this March 14, 2017.
_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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