Rowberry v. Wells Fargo Bank NA et al

Filing 45

ORDER - Wells Fargo's 37 Motion for Summary Judgment is GRANTED. The Clerk of the Court shall enter judgment accordingly and terminate this case. (See Order for details.) Signed by Judge Douglas L Rayes on 11/17/2015. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kimberly Rowberry,

No. CV-14-01801-PHX-DLR

Plaintiff,

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v.

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ORDER

Wells Fargo Bank NA, et al.,

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Defendants.

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Before the Court is Defendant Wells Fargo Bank, N.A.’s (“Wells Fargo”) Motion

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for Summary Judgment. (Doc. 37.) The motion is fully briefed. For the following

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reasons, Wells Fargo’s motion is granted.
BACKGROUND

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This case arises from the termination of Plaintiff Kimberly Rowberry’s

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employment with Wells Fargo.

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terminated her for: (1) refusing to join in her supervisor’s scheme of falsifying bank

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records; (2) requesting/taking leave under the Family and Medical Leave Act (“FMLA”);

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(3) seeking Arizona workers’ compensation; and (4) her disabling back issues and

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anxiety. (See Doc. 1-1.) She also alleges that Wells Fargo or certain of its employees

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made defamatory statements about her termination. (Id.)

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I. Rowberry’s Employment with Wells Fargo

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Rowberry alleges that Wells Fargo wrongfully

Wells Fargo hired Rowberry as a teller in 2004 and promoted her several times,

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including most recently to Service Manager Level 2—second in command behind Branch

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Manager Teresa Pena.1 (Doc. 38, ¶¶ 7-11.) During this time, Rowberry requested and

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received accommodations for back issues. Wells Fargo granted Rowberry FMLA leave

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in 2006 and 2010. (Id., ¶¶ 13, 17.) Rowberry exhausted her FMLA leave during both

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absences and, each time, Wells Fargo extended her leave. (Id., ¶¶ 14, 17.) Rowberry

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returned to her same position at the branch and received fair performance evaluations

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following each of these absences. (Id., ¶¶ 15-16, 18-19.) To accommodate Rowberry’s

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back issues, Wells Fargo allowed her to reduce her work schedule and provided her with

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an ergonomic chair. (Id., ¶ 18.)

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II. Wells Fargo’s Internal Investigation

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Wells Fargo uses a third party vendor to conduct customer satisfaction surveys.

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(Id., ¶ 21.) The vendor contacts customers to ask about their experiences at the branch

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using the phone numbers listed in Wells Fargo’s records. (Id.) Wells Fargo calls these

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surveys “WOW Shops” and expects its employees to receive positive reviews. (Id., ¶¶

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21-22.)

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In April 2013, a customer had a negative experience with a teller at Rowberry’s

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branch. (Id., ¶ 23.) The customer asked the teller for her business card and stated that

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she planned to complain to her private banker about the incident. (Id., ¶ 24.) The

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customer left a message for her private banker to call her about the incident, but her

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private banker was unable to reach her using the number in Wells Fargo’s records. (Id., ¶

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25.) When the customer eventually reached her private banker, the two discovered that

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the customer’s phone number had been changed to an incorrect number in Wells Fargo’s

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system. (Id.)

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Wells Fargo assigned an investigator, Von Faler, to look into the incident. (Id., ¶

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26.) Based on his investigation, Faler concluded that personal banker Alexis Segura had

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improperly changed the customer’s phone number. (Id., ¶ 27.) In May 2013, Wells

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Rowberry named Pena as a defendant but did not serve her. (Doc. 38, ¶ 1.)
Consequently, Pena was dismissed from this action on September 23, 2015. (Doc. 43.)
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Fargo terminated Segura’s employment for falsification of records. (Id., ¶ 28.)
Segura appealed his termination, contending that Pena instructed him to change

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the customer’s phone number to avoid a negative WOW Shop score.

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Employee Relations Consultant Michelle Wilkie investigated Segura’s complaint but

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could not substantiate his claims. (Id., ¶¶ 33-34.) However, Segura’s claim that he

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changed the customer’s phone number to avoid a negative WOW Shop score prompted

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Wilkie to audit the entire branch.2 (Id., ¶¶ 35-36.)

(Id., ¶ 31.)

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Wilkie contacted Wells Fargo’s Sales Quality Department and requested a list of

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all questionable phone number changes at the branch between January 1, 2013, and April

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30, 2013. (Id., ¶ 36.) Sales Quality produced 18 phone number changes that appeared

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questionable. (Id.) Wilkie asked Sales Quality to gather similar information from a

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comparable branch to determine if the number of questionable phone number changes at

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Rowberry’s branch was normal. (Id.) Sales Quality produced only five questionable

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phone number changes at the comparison branch. (Id.) Based on this information,

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Wilkie asked Faler and Investigator Larenn Griffus to investigate the phone number

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changes at Rowberry’s branch. (Id., ¶ 37.)

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Wells Fargo identified five employees, including Rowberry, who had questionably

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changed customer phone numbers. (Id., ¶ 36.) Griffus and Faler interviewed these

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employees and concluded that the phone numbers changed by all except Rowberry were

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legitimate or adequately explained. (Id., ¶¶ 38-43.)

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Griffus and Faler determined that Rowberry had changed the home and cell phone

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numbers of a customer in February 2013.3 (Id., ¶ 48.) They also discovered that other

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Rowberry denies that Wilkie was concerned about Segura’s claims, but cites
only to an email from Pena to Rowberry in which Pena discusses Segura’s termination.
(Doc. 40, ¶ 35.) Nothing in the email contradicts the statement that Wilkie was
concerned about Segura’s claims that he changed customers’ phone numbers to avoid
negative WOW Shop scores.
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Rowberry denies this fact, but cites only to a document that appears to have been
prepared by Rowberry herself, and which narrates an alleged conversation between her
and Faler regarding her termination. (Doc. 40, ¶ 48; Doc. 40-1 at 30.) Nothing in this
document contradicts Wells Fargo’s statement of fact. Moreover, Rowberry fails to
explain what this document is, its context, how it was produced, or who produced it. The
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Wells Fargo employees corrected the customer’s numbers in March and April, indicating

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that Rowberry’s changes were not valid. (Id., ¶ 49) Griffus and Faler reviewed security

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footage for the date the phone numbers were altered and found that Rowberry spent

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almost an hour with a visibly angry customer. (Id.) The investigation revealed that the

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customer’s phone numbers were changed the same day as this visit by someone using

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Rowberry’s user identification number. (Id., ¶ 51.)

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Griffus and Faler interviewed Rowberry about the phone number changes on June

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20, 2013. (Id., ¶ 52.) Rowberry stated that she did not recall changing this customer’s

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phone numbers, but that she often changed customer phone numbers. (Id.) Based on this

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information, Wells Fargo placed Rowberry on paid administrative leave pending the

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outcome of the investigation. (Id., ¶ 53.) Rowberry contends that Faler informed her

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during this meeting that her employment was going to be terminated.4 (Id., ¶ 54.)

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The following day, Wells Fargo District Manager Justin Martz contacted the

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customer to ask about his experience at the branch. (Id., ¶ 55.) He confirmed that he had

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a negative experience and that he had not requested any phone number changes. (Id.)

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III. Rowberry’s Termination

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On June 24, 2013, Wells Fargo decided to terminate Rowberry’s employment for

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falsifying customer phone numbers. (Id., ¶ 56.) The following day, Pena left a message

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for Rowberry to come into the branch at 4:00 P.M. (Id., ¶ 57.) Wells Fargo intended to

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document includes commentary, such as “THAT IS PROOF THAT I WAS FRAMED
BY A CONSPIRACY FROM WELLS FARGO BANK DUE TO MY HARASSMENT
COMPLAINT.” (Doc. 40-1 at 30.) As presented, the admissibility of this self-prepared
document is questionable, at best.
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Rowberry denies this fact, but cites no admissible portion of the record. (Doc.
40, ¶ 54.) Rowberry alleged in her complaint and stated during her deposition that the
decision to terminate her employment was made on June 20, 2013. (Doc. 38, ¶ 54, Doc.
1-1, ¶ 26, Doc. 38-1 at 38-39.) To the extent Rowberry’s barebones affidavit generically
avowing that “[t]he facts set forth in the response to the motion for summary judgment
and the response to statement of facts are true and correct and are incorporated herein by
this reference,” (Doc. 40-2), is intended to support her denial, this affidavit cannot create
a genuine issue of material fact. See Hambleton Bros. Lumber Co. v. Balkin Enters., Inc.,
397 F.3d 1217, 1225 (9th Cir. 2005) (explaining that a plaintiff “cannot create an issue of
fact by an affidavit controverting [her] prior deposition testimony.” (quotation and
citation omitted)).
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terminate her at this meeting, but Rowberry did not appear.5 (Id.) Instead, she submitted

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an application for FMLA leave and a workers’ compensation claim stating that she had

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suffered a workplace injury on May 15 and 28, 2013. (Id., ¶¶ 58-59.). Wells Fargo

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notified Rowberry by letter that her employment was terminated effective July 3, 2013,

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for falsification of records. (Id., ¶ 60.)

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Wells Fargo’s third party leave administrator initially approved Rowberry’s June

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25, 2013 request for FMLA leave because it was unaware that Wells Fargo had

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terminated her employment. (Id., ¶ 61.) After learning of Rowberry’s termination, the

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leave administrator contacted Rowberry, notified her of the error, and explained that her

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medical leave ended when her employment was terminated. (Id., ¶ 62.) Rowberry’s

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workers’ compensation claim was processed and resolved through a settlement. (Id., ¶

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63.)

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PRELIMINARY ISSUES

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Rowberry’s separate statement of facts does not comply with Local Rule of Civil

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Procedure 56.1(b). It contains mostly argument, superfluous and immaterial explanation,

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and lengthy allegations unsupported by citation to admissible portions of the record. For

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purposes of this order, the Court deems admitted any statement of fact not clearly denied

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by Rowberry, and disregards all allegations in Rowberry’s separate statement of facts that

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are not supported by citation to admissible portions of the record. See Szaley v. Pima

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Cty., 371 F. App’x 734, 735 (9th Cir. 2010).

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Additionally, Rowberry generically contends that Wells Fargo’s “affidavits” are

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hearsay. (Doc. 39 at 6.) Her objections are overruled because she fails to identify any

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specific statements of fact that she believes are unsupported by admissible evidence.

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LEGAL STANDARD

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Summary judgment is appropriate if the evidence, viewed in the light most

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favorable to the nonmoving party, demonstrates “that there is no genuine dispute as to

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Rowberry denies these facts, but nothing she cites contradicts Wells Fargo’s
statement. (Doc. 40, ¶ 57.)
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any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

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P. 56(a). “[A] party seeking summary judgment always bears the initial responsibility of

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informing the district court of the basis for its motion, and identifying those portions of

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[the record] which it believes demonstrate the absence of a genuine issue of material

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fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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Substantive law determines which facts are material and “[o]nly disputes over

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facts that might affect the outcome of the suit under the governing law will properly

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preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 248 (1986). “A fact issue is genuine ‘if the evidence is such that a reasonable jury

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could return a verdict for the nonmoving party.’” Villiarimo v. Aloha Island Air, Inc.,

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281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at 248). Thus, the

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nonmoving party must show that the genuine factual issues “‘can be resolved only by a

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finder of fact because they may reasonably be resolved in favor of either party.’” Cal.

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Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th

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Cir. 1987) (quoting Anderson, 477 U.S. at 250).

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summary judgment “may not rest upon mere allegations of denials of pleadings, but . . .

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must set forth specific facts showing that there is a genuine issue for trial.” Brinson v.

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Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995); see also Fed. R. Civ. P.

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56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

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If the nonmoving party’s opposition fails to specifically cite to materials either in the

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court’s record or not in the record, the court is not required to either search the entire

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record for evidence establishing a genuine issue of material fact or obtain the missing

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materials. See Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir.

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2001); Forsberg v. Pac. N.W. Bell Tel. Co., 840 F.2d 1409, 1417-18 (9th Cir. 1988).

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Furthermore, the party opposing

DISCUSSION
I. Wrongful Termination/Retaliation

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Rowberry’s complaint does not identify the legal basis for her wrongful

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termination/retaliation claim. (See Doc. 1-1 at 13.) Wells Fargo understands the claim

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as arising under the Arizona Employment Protection Act (“AEPA”), A.R.S. § 23-1501.

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(Doc. 37 at 10.) Rowberry does not dispute this characterization or provide an alternative

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legal basis for her claim. (See Doc. 39 at 7-8.) The Court will analyze Rowberry’s claim

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under the AEPA.

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The AEPA provides, in relevant part, that an employee has an actionable claim for
wrongful termination when:
(c) The employer has terminated the employment relationship of an
employee in retaliation for any of the following:
(i) The refusal by the employee to commit an act or omission that would
violate the Constitution of Arizona or the statutes of this state.
(ii) The disclosure by the employee in a reasonable manner that the
employee has information or a reasonable belief that the employer, or an
employee of the employer, has violated, is violating or will violate the
Constitution of Arizona or the statutes of this state to either the employer or
a representative of the employer who the employee reasonably believes is
in a managerial or supervisory position and has the authority to investigate
the information provided by the employee and to take action to prevent
further violations of the Constitution of Arizona or statutes of this state or
an employee of a public body or political subdivision of this state or any
agency of a public body or political subdivision.

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A.R.S. § 23-1501(A)(3)(c)(i)-(ii). To prevail, Rowberry bears the burden of establishing

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either that Wells Fargo terminated her employment because she refused to engage in

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conduct that would violate Arizona law, or because she reasonably believed Wells Fargo

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or its employees were violating Arizona law and she reported that information to a

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supervisory or investigative authority. See Galati v. Am. W. Airlines, Inc., 69 P.3d 1011,

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1013 (Ariz. Ct. App. 2003). Wells Fargo argues that it is entitled to summary judgment

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because Rowberry did not engage in activity protected by the AEPA and cannot establish

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a causal link between the allegedly protected activity and her termination.

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A. Protected Activity

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Rowberry alleges that she refused to follow Pena’s directions to alter customer

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phone numbers to avoid negative WOW Shop scores. Her complaint does not identify an

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Arizona statute prohibiting such conduct, and she admits that she has no knowledge of

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whether altering customer phone numbers violates Arizona law.

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(Doc. 38, ¶ 75.)

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Instead, Rowberry argues that falsifying bank records violates “federal reserve rules,

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regulations, and the like,” and that “[i]t would be anomalous if retaliation in termination

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would only lie for breaking Arizona, and not federal law.” (Doc. 39 at 7.) Rowberry’s

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argument is squarely foreclosed by Galati, in which the Arizona Court of Appeals

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concluded based on the plain language of the AEPA that no “statutory public policy

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exception exists for whistleblowing associated with federal regulations.” 69 P.3d at

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1015.6 Rowberry bears the burden of establishing the elements of her claim; it is not the

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duty of this Court to review the entirety of the Arizona Revised Statutes in search of a

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provision that applies.

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The AEPA also protects an employee who reports conduct that she reasonably

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believes violates Arizona law, regardless of whether such conduct actually is illegal.

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Rowberry cannot prevail under this approach because she admits that she did not know

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whether changing customer phone numbers violates Arizona law. (Doc. 38, ¶ 75.)

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Accordingly, based on the undisputed facts and Rowberry’s unavailing legal arguments,

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no reasonable jury could conclude that she engaged in activity protected by the AEPA.

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B. Causation

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Even if Rowberry could show that she engaged in protected activity, she cannot

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establish a causal link between the alleged protected activity and her termination. This

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Court could identify no Arizona authority discussing the appropriate test for determining

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causation in AEPA retaliation cases. Some cases in this District have assumed that the

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McDonnell-Douglas burden-shifting framework utilized in Title VII cases applies. See

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Levine v. TERROS, Inc., No. CV-08-1458-PHX-MHM, 2010 WL 864498, at *8-10 (D.

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Ariz. March 9, 2010); Cox v. Amerigas Propane, Inc., No. CV-04-101-PHX-SMM, 2005

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WL 2886022, at *12-14 (D. Ariz. March 26, 2009).

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causation by asking whether “a retaliatory motive played a part in the employment

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action.” Knox v. United States Rental Highway Techs, Inc., No. CIV 07-0297-PHX-

This framework determines

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Moreover, assuming, as Rowberry argues, that Arizona law somehow
incorporates Federal Reserve rules, she identifies no particular Federal Reserve rule
prohibiting the conduct at issue here.
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DKD, 2009 WL 806625, at *5 (D. Ariz. March 26, 2009) (citing Cohen v. Fred Meyer,

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Inc., 686 F.2d 793, 798 (9th Cir. 1982)). The plaintiff must first establish a prima facie

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case by offering evidence that she: (1) engaged in protected activity; (2) suffered an

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adverse employment action; and (3) was terminated as a result.

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Spacelabs Med. Inc., 343 F.3d 1107, 1112-13 (9th Cir. 2003). If the plaintiff makes such

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a showing, the burden shifts to the defendant to articulate a legitimate, non-retaliatory

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reason for its actions. Id. If the defendant articulates such a reason, the burden returns to

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the plaintiff to show that the reason is pretextual. Id.

See Hernandez v.

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More recent decisions have adopted the approach utilized in First Amendment

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retaliation cases. See Revit v. First Advantage Tax Consulting Servs., LLC, No. CV 10-

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1653-PHX-DGC, 2012 WL 1230841, at *4-5 (D. Ariz. April 12, 2012); Evers v. Safety-

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Kleen Sys., Inc., No. CV 10-02556-PHX-NVW, 2012 WL 910392, at *9-10 (D. Ariz.

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March 19, 2012). This approach uses a two-part burden-shifting test, under which:

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an employee must prove that the conduct at issue was . . . protected, and
that it was a substantial or motivating factor in the termination. If the
employee discharges that burden, the [employer] can escape liability by
showing that it would have taken the same action even in the absence of the
protected conduct.

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Bd. Of Cty. Comm’rs, Wabaunsee County, Kan. v. Umbehr, 518 U.S. 668, 675 (1996).
These decisions concluded that Arizona courts would adopt a First Amendment
retaliation approach for two reasons: (1) the “substantial or motivating factor” test most
closely resembles the test applied by Arizona courts in whistleblowing retaliation cases
before the adoption of the AEPA, see, e.g., Murcott v. Best Western Int’l, Inc., 9 P.3d
1088, 1099 (Ariz. Ct. App. 2000), and (2) by asking whether the employer would have
taken the same action regardless of the employee’s whistleblowing, the First Amendment
retaliation test “ensures that employees will not blow the whistle simply to put
themselves in a more secure position than they would have been otherwise.” Evers, 2012
WL 910392, at *10 (citing Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S.
274, 285-86 (1977)).
The Court agrees that Arizona courts likely would adopt an approach to causation
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consistent with the First Amendment retaliation test. Under either standard, however, no

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reasonable jury could conclude that Wells Fargo terminated Rowberry for refusing to

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falsify customer phone numbers or for reporting Pena’s alleged conduct. It is undisputed

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that, after conducting an investigation, Wells Fargo concluded that Rowberry had

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falsified customer phone numbers and terminated her for such conduct.

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entirely ignores the causation prong in her response to Wells Fargo’s motion for

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summary judgment. Instead, she asserts that she did not falsify customer phone numbers

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and Wells Fargo reached the wrong conclusion through its investigation. But this Court

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does not review the employer’s internal investigation to determine whether it reached an

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accurate result. The Court merely ensures that an employee is not terminated for a reason

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prohibited by law. Here, it is undisputed that Wells Fargo terminated Rowberry because

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it believed that she had falsified customer phone numbers. It is of no moment whether

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that belief was correct, so long as Wells Fargo was not substantially motivated to

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terminate Rowberry because she refused to violate Arizona law or reported such conduct.

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Moreover, the decision to terminate Rowberry was made by Wilkie and Martz, not

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by Pena,7 and Rowberry cites no evidence suggesting that either knew of her alleged

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refusal to falsify customer phone numbers or reports about Pena. There is no evidence

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that Wells Fargo terminated Rowberry for refusing to violate company policy, especially

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considering the decision to terminate Rowberry was made by people uninvolved in

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Pena’s alleged scheme. Rather, the undisputed evidence is that Wells Fargo terminated

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Rowberry because it believed, rightly or wrongly, that she had falsified customer phone

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numbers. Wells Fargo is entitled to summary judgment on Rowberry’s AEPA claim.

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II. Defamation

Rowberry

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To succeed on her defamation claim, Rowberry bears the burden of proving that

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Wells Fargo published false statements concerning her “honesty, integrity, virtue, or

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reputation,” and that the statements were not privileged. Turner v. Devlin, 848 P.2d 286,

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Rowberry contends that the decision to terminate her employment was left to
Pena and Martz, but the exhibit to which she cites for support says nothing about Pena
being one of the ultimate decision makers. (Doc. 40, ¶ 53; Doc. 40-1 at 30.)
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288-89 (Ariz. 1993). “Publication for defamation purposes is communication to a third

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party.” Dube v. Likins, 167 P.3d 93, 104 (Ariz. Ct. App. 2007).

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One who publishes a false and defamatory communication concerning a
private person . . . is subject to liability if, but only if, he (a) knows that the
statement is false and it defames the other, (b) acts in reckless disregard of
these matters, or (c) acts negligently in failing to ascertain them.

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Id. (quoting Rowland v. Union Hills Country Club, 757 P.2d 105, 110 (Ariz. Ct. App.

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1988)).

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Rowberry contends that an unemployment determination issued by the Arizona

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Department of Economic Security (“DES”) contains a “false and libelous” reason for her

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termination.

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Deputy from DES that cited Arizona Administrative Code (“AAC”) Section R6-3-51140,

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entitled “Misappropriation of Funds; Falsification of Employment Records,” as the

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reason for her termination from Wells Fargo. (Id., ¶ 65.) Rowberry argues that the

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inclusion of the AAC section title is defamatory because it “essentially called [her] a

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bank robber . . . .” (Id.)

(Doc. 38, ¶ 64.)

Specifically, Rowberry received a Determination of

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The DES determination cannot form the basis of an actionable defamation claim

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against Wells Fargo for several reasons. First, DES made the statement, not Wells Fargo.

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Rowberry acknowledges that she has no personal knowledge of the statements Wells

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Fargo made to DES regarding her termination.8 (Id., ¶ 66.) Second, Wells Fargo’s actual

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statement to DES was true. Wells Fargo communicated to DES that Rowberry “was

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discharged for violating known company code of ethics by falsifying bank records.” (Id.,

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¶ 67.) Although Rowberry might disagree with the conclusion reached by Wells Fargo’s

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internal investigators, it is undisputed that Wells Fargo’s stated reason for terminating

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Rowberry was that it believed she was involved in falsifying bank records. (Id., ¶ 68.)

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Third, this statement is not actionable because Rowberry has no evidence that the DES

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Rowberry denies this fact, but cites only to the DES Determination itself. (Doc.
40, ¶ 66.) Moreover, Rowberry testified at her deposition that she did not know who
made the statements in the DES Determination, and she acknowledged that Wells Fargo’s
letter to DES stated that she “was discharged for violating known company code of ethics
by falsifying bank records.” (Doc. 38-1 at 57-58, 116.)
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determination was communicated to anyone other than herself.

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Rowberry cannot establish that the AAC section title was published.

(Id., ¶ 69.)

Thus,

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The only other evidentiary support Rowberry offers for her defamation claim

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comes from an affidavit provided by Billy Ray Coach, a former Wells Fargo employee.

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(Id., ¶ 72; Doc. 40, ¶ 96.) According to Coach, after Rowberry was terminated “[i]t was

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stated by store manager [Pena] and others that [Rowberry] was the one who said to

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change phone numbers and ruined many customers’ lives.” (Doc. 38-2 at 242.)

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Coach’s affidavit does not create a triable issue of fact. First, to the extent

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Rowberry’s defamation claim is based on statements allegedly made by the unknown

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“others” referenced in Coach’s affidavit, she will be unable to carry her burden of proof

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at trial because, without knowing the identities of the speakers, there is no way to know

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whether the speakers knew that their statements were false. Indeed, Coach’s affidavit

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fails to identify specific statements made by each of the unknown “others.” Second,

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Pena’s alleged statement that Rowberry was responsible for the phone number

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alternations was made after Rowberry’s termination. It is undisputed that Wells Fargo’s

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stated reason for terminating Rowberry was that its internal investigators believed, rightly

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or wrongly, that she falsified customer phone numbers.

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communicating to others the reasons for Rowberry’s termination, her statement is true.

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Coach’s affidavit so vaguely describes Pena’s alleged statement that it is impossible to

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determine the context in which it was made. Rowberry offers no evidence to elucidate

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the precise statement made by Pena, or the context in which and audience to whom it was

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made. Without such evidence, no reasonable jury could conclude based on Coach’s

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affidavit that Wells Fargo is liable for defamation. Wells Fargo is entitled to summary

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judgment.

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III. FMLA Violation

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To the extent Pena was

“The FMLA creates two interrelated, substantive employee rights:

first, the

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employee has a right to use a certain amount of leave for protected reasons, and second,

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the employee has a right to return to his or her job or an equivalent job after using

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protected leave.” Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1222 (9th Cir.

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2001). It is “unlawful for any employer to interfere with, restrain, or deny the exercise of

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or the attempt to exercise, any right provided” by the act. 29 U.S.C. § 2615(a)(1).

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“[T]his prohibition encompasses an employer’s consideration of an employee’s use of

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FMLA-covered leave in making adverse employment decisions[.]” Bachelder, 259 F.3d

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at 1222.

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Rowberry alleges that Wells Fargo denied her FMLA leave. (Doc. 1-1, ¶¶ 49-51.)

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This allegation has no factual support. Wells Fargo granted Rowberry’s FMLA leave

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requests in 2006 and 2010. (Doc. 38, ¶¶ 13, 17.) Wells Fargo’s third party leave

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administrator approved Rowberry’s June 25, 2013 request for FMLA leave and, after

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learning of Rowberry’s termination, explained that her medical leave ended when her

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employment terminated. (Id., ¶¶ 61-62.)

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Presumably, then, Rowberry’s claim is based on allegations that Wells Fargo

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terminated her, in part, for taking FMLA leave. This allegation, too, has no factual

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support. To prevail on such a claim, Rowberry must show “by a preponderance of the

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evidence that her taking of FMLA-protected leave constituted a negative factor in the

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decision to terminate her.” Bachelder, 259 F.3d at 1225. The parties disagree about the

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date on which Wells Fargo decided to terminate Rowberry’s employment. Rowberry

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alleges in her complaint and stated during her deposition that Wells Fargo made the

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decision on June 20, 2013. (Id., ¶ 54.) Wells Fargo claims that the decision was made on

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June 24, 2013. (Id., ¶ 56.) Either way, the decision to terminate Rowberry occurred prior

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to her June 25, 2013 request for FMLA leave and, therefore, her request could not have

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been a negative factor in the decision. Wells Fargo is entitled to summary judgment on

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Rowberry’s FMLA claim.

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IV. Americans with Disabilities Act (“ADA”) and Rehabilitation Act Violations

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Although Rowberry alleges that Wells Fargo violated the ADA and Rehabilitation

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Acts, (Doc. 1-1 at 15-16), she fails to respond to any of Wells Fargo’s arguments on

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summary judgment. On the merits, her claims fail.

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The ADA prohibits discrimination “against a qualified individual with a disability

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because of the disability of such individual in regard to job application procedures, the

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hiring, advancement, or discharge of employees, employee compensation, job training,

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and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).

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Rowberry bears the burden of proving that she (1) is disabled under the ADA, (2) is a

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qualified individual, meaning she is able to perform the essential functions of her position

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with or without reasonable accommodation, and (3) was discriminated against or

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otherwise suffered an adverse employment action because of her disability. Bates v.

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United Parcel Serv., Inc., 511 F.3d 974, 988-89 (9th Cir. 2007).

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Rowberry alleges that she is disabled due to her anxiety and back issues. (Doc.

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38, ¶ 77.) The basis for her ADA claim is not clear from the face of her complaint. She

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alleges that Wells Fargo’s investigation triggered her anxiety and exacerbated her

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conditions, (Id., ¶ 78; Doc. 1-1, ¶ 53), but the fact that Wells Fargo’s investigation made

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her anxious does not amount to discrimination in “application procedures, the hiring,

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advancement, or discharge of employees, employee compensation, job training, and other

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terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Rowberry’s

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only allegation of discrimination is that Pena referred to her as “handicapped” during a

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meeting in March 2013. (Doc. 38, ¶ 81.) But “‘stray’ marks are insufficient to establish

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discrimination.” Merrick v. Farmers Ins. Grp., 892 F.2d 1434, 1438 (9th Cir. 1990)

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(citing Price Waterhouse v. Hopkins, 490 U.S. 228, 250-52 (1989)). Rowberry offers no

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evidence of the context for Pena’s alleged remark, nor does she explain how the remark

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relates to an adverse employment action.

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Indeed, Rowberry’s contention that Pena held discriminatory animus toward her is

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belied by the fact that Pena promoted Rowberry after allegedly learning of her anxiety

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and back issues. (Id., ¶ 10.) Where the same actor is responsible both for hiring and/or

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promoting the discrimination plaintiff and for taking the the alleged adverse employment

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action, “and both actions occur within a short period of time, a strong inference arises

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that there was no discriminatory motive.” See Bradley v. Harcourt, Brace & Co., 104

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F.3d 267, 270-71 (9th Cir. 1996) (collecting cases).

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Finally, “[t]he Rehabilitation Act is materially identical to and the model for the

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ADA, except that it is limited to programs that receive federal financial assistance.”

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Castle v. Eurofresh, Inc., 731 F.3d 901, 908 (9th Cir. 2013) (quotation and citation

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omitted).

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assistance.9 (Id., ¶ 76.) Moreover, the same standards that apply to claims under the

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ADA apply to claims under the Rehabilitation Act. McLean v. Runyon, 222 F.3d 1150,

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1153 (9th Cir. 2000). Thus, Wells Fargo is entitled to summary judgment on Rowberry’s

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ADA and Rehabilitation Act claims.

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Rowberry offers no evidence that Wells Fargo receives federal financial

V. Workers’ Compensation Violation

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Rowberry contends that Wells Fargo terminated her in retaliation for seeking

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Arizona workers’ compensation benefits. (Id., ¶ 82.) However, it is undisputed that

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Rowberry filed her workers’ compensation claim after Wells Fargo decided to terminate

14

her employment. (Id., ¶¶ 54, 56, 59.) Accordingly, Wells Fargo is entitled to summary

15

judgment on Rowberry’s workers’ compensation retaliation claim because Rowberry

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cannot establish a causal connection between her application for workers’ compensation

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benefits and her termination.

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CONCLUSION

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For the foregoing reasons, Wells Fargo is entitled to summary judgment on all

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claims. Accordingly,

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///

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///

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///

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Rowberry disputes this fact but cites no admissible portion of the record. (Doc.
40, ¶ 76.) Moreover, Wells Fargo supports its statement of fact with citation to
Rowberry’s deposition, during which she stated that she does not “have a clue” about
whether Wells Fargo receives federal financial assistance. (Doc. 38-1 at 76-77.)
Rowberry cannot manufacture an issue of fact by contradicting her previous deposition
testimony.
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IT IS ORDERED that Wells Fargo’s Motion for Summary Judgment, (Doc. 37),

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is GRANTED. The Clerk of the Court shall enter judgment accordingly and terminate

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this case.

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Dated this 17th day of November, 2015.

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Douglas L. Rayes
United States District Judge

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