Williams v. SunTrust Banks Inc et al
ORDER granting 24 Motion for Summary Judgment as to Williams's ADA claim and otherwise denied. Signed by Judge D. P. Marshall Jr. on 7/23/2013. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
SUNTRUST BANKS INC. and
Paula Williams was a Regional Operations Manager for Sun trust Banks
for about four years. NQ 31 at 1. Her job was to police compliance with
Suntrust' s internal operational controls at Sun trust retail branches to prevent
losses due to fraud or theft. Ibid. She lost her job in June 2010, about a month
after she returned from FMLA leave. Suntrust says it fired her because the
manager who filled in for her found that Williams had allowed two control
violations at one branch to persist, omitting the violations from her required
and critical quarterly Key Operational Control Activity reports. Williams
claims that she was in fact fired for taking FMLA leave and because her
medical conditions left her disabled. Suntrust and Brian Lamb, the bank
supervisor who recommended letting Williams go, have moved for summary
Interpreting the genuinely disputed facts more favorably to Williams,
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en bane), she
has made a strong prima facie case that she was terminated in retaliation for
taking FMLA leave. Williams worked for Suntrust for almost twenty years.
N2 25-2 at 109 (transcript pagination). In her last few years at the bank, she
took a lot of FMLA leave- about six weeks beginning November 2007, about
four weeks beginning April2008, and about ten weeks beginning March 2010.
NQ 31 at 9
40; NQ 25-2 at 67-68. She took leave the last time because she
crushed her arm in a fall, requiring metal implants, surgery to remove them,
and efforts to address post-surgical infections. NQ 25-2 at 110-114.
Williams fell during a busy time for Suntrust: She had worked thirty
straight hours, N2 25-2 at 110; and it was the twelfth day of a nineteen-day
schedule that included no days off, even Saturdays and Sundays. Ibid. While
she was out, Lamb called her asking with an exasperated tone when she
would be back at work. NQ 25-2 at 112-113. Suntrust' s employee in charge of
FMLA also called to ask when Williams would be coming back. N2 25-2 at
Lamb recommended termination after discussing with Williams her
positive annual performance review, NQ 31 at 11
at the end of which he
gave her a raise. NQ 25-2 at 92. He says the control violations were discovered
after the report period, and thus not embraced by this review. Closing the
discussion, Lamb told Williams he would have to talk to HR about the control
violations. The next day he did, and recommended termination. Williams
was shocked when Lamb told her that afternoon that she was losing her job.
NQ 25-2 at 96.
Suntrust offers a sufficient nondiscriminatory reason to meet its burden
under the McDonnell Douglas framework. Williams admitted knowing about
and not reporting two control violations. Suntrust says the second violationnot reporting that two Humphreys branch employees had worked out of the
same cash box- was serious. But the circumstances of Williams's firing
present a fact issue on pretext. Ridout v. JBS USA, LLC, 716 F.3d 1079, 1084
(8th Cir. 2013). Williams received a favorable review immediately before she
was terminated. Stallings v. Hussmann Corp., 447 F.3d 1041, 1052 (8th Cir.
2006) (receiving a favorable review shortly before termination can show
pretext). The two branch employees who committed the control violations
that Williams failed to report were not punished at all. This circumstance is
not determinative, because these employees were not situated exactly like
Williams; but the lack of discipline to others involved could support a
reasonable inference that the two problems Williams didn't report were not
as serious as Suntrust said.
An employee can demonstrate pretext by
showing that it was unlikely an employer would have acted on the basis of the
proffered reason." Ridout, 716 F.3d at 1084 (quotation omitted); see also Marez
v. Saint-Gobain Containers, Inc., 688 F.3d 958, 964 (8th Cir. 2012).
Suntrust argues hard that it should prevail as a matter of law at the
pretext stage because Williams lacks comparators. E.g., Rodgers v. U.S. Bank,
N.A., 417 F.3d 845, 853-54 (8th Cir. 2005), overruled in immaterial part by.
Torgerson,643 F.3d at1043. A comparator outside the protected class must be
similarly situated in all relevant respects," having been subject to the same
standards, and engaged in the same conduct without any mitigating or
distinguishing circumstances." Muor v. U.S. Bank Nat. Ass'n, 716 F.3d 1072,
1077-78 (8th Cir. 2013).
Besides Williams, Brian Lamb disciplined two
Regional Operations Managers he directly supervised. NQ 25-3 at 34. Pam
Roach was one. In 2010 she negligently performed a surprise cash count that,
if conducted properly, should have uncovered theft by a teller and prevented
an actual loss to Suntrust. NQ 25-3 at 52. Correctly conducting the surprise
cash count is a key operational control activity, just like accurately doing the
critical reports Williams botched. NQ 25-3 at 52.
This conduct was of
comparable seriousness. Harvey v. Anheuser-Busch Inc., 38 F.3d 968, 972-73
(8th Cir. 1994) (quotation omitted). Lamb gave Roach a warning. NQ 25-3 at
Suntrust argues that Roach does not qualify as a comparator because she
engaged in the same protected activity as Williams- she had taken FMLA
leave. Indeed, the Court of Appeals has repeatedly said that a retaliation
plaintiff can demonstrate pretext by showing that" the employer meted out
more lenient treatment to similarly situated employees who were not in the
protected class, or as here, who did not engage in protected activity."
Fitzgerald v. Action, Inc., 521 F.3d 867, 874 (8th Cir. 2008) (quotation omitted).
But the Court has been unable find a case where a retaliation claim rose or fell
on whether a proposed comparator had engaged in protected activity or not.
In Marez v. Saint-Gobain Contractors, Inc., for example, the Court of Appeals
relied in part on inconsistent discipline of comparators and upheld a jury
finding of FMLA retaliation though "neither party presented evidence
whether any other [comparator] had ever requested or taken leave under the
FMLA." 688 F.3d at 962, 964.
This is an instance where " [w ]e must think things not words, or at least
constantly translate our words into the facts for which they stand, if we are to
keep to the real and the true." O.W. Holmes Jr., "Law in Science and Science
in Law," 12 HARV. L. REV. 443, 460 (1899). The substance of the comparator
inquiry is to isolate situations where the protected activity, such as taking
FMLA leave, can reasonably be inferred to have been a motivating favor in
discipline because all other material circumstances are much the same. In
those situations, whether the protected conduct motivated the adverse
employment action is for the jury.
When Roach took her FMLA leave, and how much leave she took, make
a legal difference. Lamb hazarded in his deposition that Roach had taken
"maybe four to six weeks" of FMLA leave in the two or three years before his
deposition. NQ 25-3 at 56. Taking the record in Williams's favor, this was quite
wide of the mark. Suntrust's HR consultant, who keeps up with such things
to the day, said that Roach took thirteen days of leave in May 2007. NQ 32-1.
That leave was at least two years before her faulty cash count. Compare
Williams, who took about twenty weeks leave across those three years. And
Williams's longest leave- ten weeks- ended a month before her firing. In
terms of both timing and amount, then, Roach's leave should not disqualify
her from being compared with Williams.
Though Roach had engaged in the same protected activity as Williams,
she is nonetheless properly considered a comparator at the pretext stage. The
cases discussing a plaintiff's prima facie retaliation case hold that, as common
sense would dictate, any inference of retaliation evaporates as more time
passes between the protected activity and the adverse employment action.
E.g., Marez, 688 F.3d at 963. By the same principle, an otherwise similarly
situated employee's stale history of protected activity should not disqualify
her as a comparator. Without deciding how stale is stale enough, the more
than two years between Roach's FMLA leave and her serious and similar
infraction suffices. So too on the amount of protected activity. Thirteen days
of FMLA leave across roughly three years is de minimis in comparison to
twenty weeks of leave during the same period. Considering all the facts for
which the word comparator stands, Roach qualifies.
Add five things to this proof about a manager's different discipline for
a similar policy violation: Williams's hectic work schedule immediately
before her fall, the exasperated phone call from Lamb, her contemporaneous
raise-prompting review for 2009, her extensive leave history, and the lack of
any discipline for the tellers whose hands were in the same cash box. The sum
is a jury question on FMLA retaliation.
Williams does not defend her ADA claim. And in light of her admission
that she did not seek accommodation, NQ 25-2 at 118-19, the Court concludes
she concedes that claim.
Motion for summary judgment, NQ 24, granted as to Williams's ADA
claim and otherwise denied.
D.P. Marshall Jr.
United States District Judge
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