Dhir v. Wells Fargo Bank, NA
ORDER granting 56 Motion for Summary Judgment. See attached for memorandum of decision. The Clerk is directed to close this case. Signed by Judge Vanessa L. Bryant on 3/1/2017. (Hoffman, S)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
WELLS FARGO BANK, N.A.
March 1, 2016
MEMORANDUM OF DECISION GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. 56]
Plaintiff Mamta Dhir, a former employee of Defendant Wells Fargo Bank,
N.A. (“Wells Fargo”) brings this action for employment discrimination under Title
VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., the
Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen. Stat. § 56a60(a)(1), the Americans with Disabilities Amendments Act (“ADAA”), 42 U.S.C. §
12112(a), and the Connecticut Workers’ Compensation Act (“CWCA”), Conn. Gen.
Stat. § 31-290a. The Defendant has filed a Motion for Summary Judgment. [Dkt.
56]. For the reasons that follow, Defendant’s motion is GRANTED.
Wells Fargo is a nationwide, diversified financial services company that
provides banking, insurance, investments, mortgage, and consumer and financial
banking services. [See Dkt. 58-1, Affidavit of Jeffrey Bruneau (“Bruneau Aff.”) ¶
3]. Plaintiff is female, was born in India, and is Asian (Indian). [Dkt. 58-3,
Deposition of Mamta Dhir (“Dhir Dep.”) at 16, 20-21]. She moved to the United
States in 1982. Id. at 21-22. Plaintiff became a store manager in Wells Fargo’s
Prospect, Connecticut store in August 2011. [Dkt. 21 ¶ 14; Dhir Dep. at 31, 80].
As store manager, Plaintiff was responsible for the store’s performance,
operations, and employees, and managed customer service, staffing, cash flow,
sales, and compliance with Wells Fargo policies and procedures. [Bruneau Aff. ¶
14; Dhir Dep. at 31-32]. Plaintiff had three direct reports: two Personal Bankers
and the Service Manager, Joy Robertson. [Dhir Dep. at 34-35]. Tellers reported to
Ms. Dhir through Ms. Robertson. [Dhir Dep. at 35].
A. Policies and Procedures
Wells Fargo maintains “Diversity and Inclusion,” “Affirmative Action, EEO,
& Diversity,” anti-harassment, and “Nonretaliation” policies. [Bruneau Aff. ¶ 5;
Dkt. 58-2 (“Handbook”) at WF000004]. The Handbook sets forth the following
hiring policy: “Our policy is that we do not discriminate on the basis of race,
color, gender, national origin, religion, age, sexual orientation, gender identity,
genetic information, physical or mental disability, pregnancy, marital status,
veteran status, or any other status protected by federal, state or local law.” [Id. at
WF000029]. The Handbook also directs employees to contact Human Resources
when the employee “need[s] advice or help in solving an issue that [he or she]
ha[s] on the job.” [Id. at WF000008]. Should the employee have a dispute, he or
she is advised to first resolve the issue with the direct manager, or if the dispute
cannot be resolved, to then seek out the Dispute Resolution Resources
referenced in the Handbook. [Id. at WF000046].
Wells Fargo also maintains a “Code of Ethics & Business Conduct,” which
requires each employee to be “consistently honest and trustworthy in everything
one does,” and to “prepar[e] and maintain accurate records.” [Id. at WF000014WF000021; Dhir Dep. at 46-49]. The code also prohibits “[f]alsification of any
company or personal information” and gaming, or the “manipulation,
misrepresentation, or both of sales or sales reporting in an attempt to receive
compensation or to meet sales goals.” [Handbook at WH000019-20; Dhir Dep. at
46-49, 53-56]. Managers in particular are expected “to exemplify the highest
standards of ethical behavior,” “[t]o ensure that team members understand that
business results are never more important than ethical conduct and compliance
with applicable law and Wells Fargo’s policies,” and “[t]o ingrain the principles of
the Code and compliance with applicable laws, regulations, and Wells Fargo’s
policies into [their] business unit’s practices.” [Handbook at WF000022; Dhir
Dep. at 57-58, 65-66]. Defendant’s “Immediate Dismissal” policy states that (1)
violating the ethics code; (2) falsification of records, including “[e]ntering false
sales or referrals on a sales tracking system,” or (3) gaming, “may result in
immediate termination of employment.” [Handbook at WF000065; Dhir Dep. at 6263].
At the time Plaintiff was employed, Wells Fargo ran a “Teller Referral”
program that encouraged tellers to (1) uncover a customer’s potential need for a
financial product or service and, if the customer was amendable, (2) refer him or
her to a Personal Banker to discuss the product or service further. [Bruneau Aff.
¶¶ 6-8; Dhir Dep. at 50-53, 68-75; Dkt. 58-4 (“Sales Quality Manual”) at WF000080].
If the referral resulted in a sale of a product or service, the teller would receive
credit, and managers would be evaluated in part based on the number of credits
tellers earned. [Bruneau Aff. ¶¶ 9-10]. The program was governed by a Sales
Integrity Policy, which prohibited “manipulations and/or misrepresentations of
sales or referrals and reporting of sales or referrals in an attempt to receive
compensation or to meet sales goals that is inconsistent with customer needs.”
[Sales Quality Manual at WF000072]. Sales integrity violations could “result in
disciplinary action, up to and including disqualification from participation in
incentive compensation plans and termination of employment.” Id.
An “unearned referral” occurs when a teller is given credit for a referral
that did not result from uncovering a customer’s potential need for a product or
service. [Bruneau Aff. ¶ 11; Dhir Dep. at 50-53; Sales Quality Manual at
WF000080]. For instance, if a teller obtains a credit for a sale when the teller had
no contact with the customer, this credit would be “unearned,” and the behavior
would be considered impermissible “gaming.” Id. Other types of “inappropriate”
sales behavior described in the Sales Quality Manual included: (1) “[s]ubmitting
a referral after directing a customer who came into the store with the intent to
purchase a product or service, even if other products or services are discussed
before the customer is directed to the banker”; (2) “[b]ankers supplying tellers
with customer information to input as a referral when the teller did not have any
contact with the customer”; (3) “[r]esubmitting a referral without having an
additional sales conversation and without regaining consent from the customer”;
(4) “[r]eceiving referral credit for yourself or any other store personnel (e.g., a
teller cannot refer another teller to a banker for referral credit)”; (5) “[a] teller
submitting a referral after translating for a customer or banker without
uncovering a need for a product or service”; and (6) “[e]ntering teller referrals for
customers at a Wells Fargo at Work offsite event.” [Sales Quality Manual at
Plaintiff’s compensation as Store Manager included a “quarterly incentive
compensation opportunity,” which was based, in part, on teller contributions.
[Bruneau Aff. ¶ 19; Dhir Dep. at 49-52, 76; Dkt. 58-7 (“Compensation Plan”) at
DWF000608]. Plaintiff was also eligible for a “coach’s bonus” of 15 percent of
store team members’ incentive compensation payments, which was also based
on teller credits. [Bruneau Aff. ¶ 19; Dhir Dep. at 76-78; Compensation Plan at
B. Plaintiff’s Disability
On or around August 12, 2013, Plaintiff tripped while at work, injuring her
shoulder, neck, knees, and right ankle. [Dkt. 21 at ¶ 16; Dhir Dep. at 134-36].
Plaintiff reported her injury to Wells Fargo the next day, and took a day and a half
off to seek medical treatment. [Dkt 21 ¶ 17; Dhir Dep. at 137-38]. Thereafter,
Wells Fargo permitted the Plaintiff to go to physical therapy appointments two to
three days a week during her workday. [Dhir Dep. at 139-40]. Wells Fargo also
accommodated Plaintiff’s lifting restrictions. [Dhir Dep at 143-44]. Plaintiff
attended therapy through September and October 2013, and Defendants claim
that she complained to Mr. Bruneau that her doctors “were forcing [her] to start
therapy again,” to which Plaintiff claims Mr. Bruneau responded, “they want you
to continue so they can make money.” [Dkt. 21 ¶ 22; Dhir Dep. at 142]. Plaintiff
also claims that Mr. Bruneau and Area President Kent McClun asked her how
long she would require treatment. [Dkt. 21 ¶ 21; Dhir Dep. at 262-64].
C. Informal Warning
In mid-2013, a teller complained to Wells Fargo that the Plaintiff had
discriminated against him because of his religion. [Bruneau Aff. ¶ 20; Dhir Dep.
at 146-53; Kent Aff. ¶ 3]. Employee relations investigated this claim, but
determined that the Plaintiff had not discriminated against him. [Bruneau Aff. ¶
21; Dhir Dep. at 146-62; Kent Aff. ¶ 4]. During the course of the investigation,
however, Plaintiff’s subordinates described her behavior as “threatening,
condescending, horrifying, and degrading.” [Bruneau Aff. ¶¶ 22-23; Dhir Dep. at
152-54; Dkt. 58-10]. Wells Fargo found these claims credible, and concluded that
Plaintiff’s “poor judgment and unprofessional behavior” violated its
Professionalism and Code of Ethics and Business Conduct policies. [Bruneau
Aff. ¶¶ 22-23; Dhir Dep. at 152-54; Dkt. 58-10]. Plaintiff was given an “Informal
Warning” based on these findings.
During the course of the investigation into the religious discrimination
claim, tellers told Employee Relations that the store had been submitting
unearned referrals. [Kent Aff. ¶ 5; Bruneau Aff. ¶ 24; Dhir Dep. at 149-50].
Plaintiff separately informed Wells Fargo District Manager Jeffrey Bruneau that
her subordinates were submitting unearned referrals. [Dkt. 21 ¶¶ 24, 26-27; Dhir
Dep. at 162-63]. Mr. Bruneau asked Plaintiff to let him handle the matter because
if Plaintiff formally reported the unearned referrals, the report might be perceived
as retaliation for the discrimination complaint and her subordinates’ participation
in the accompanying investigation. [Dkt. 21 ¶¶ 28-30, 33; Dhir Dep. at 163-64].
After Plaintiff continued raising the issue with Mr. Bruneau, Plaintiff called
Wells Fargo’s “EthicsLine” and reported the unearned referrals. [Dkt. 21 ¶ 32;
Bruneau Aff. ¶ 25; Dhir Dep. at 163-64, 173-79; Dkt. 58-11]. Plaintiff also gave Mr.
Bruneau documents purportedly showing instances of unearned referrals by her
subordinates. [Dkt. 21 ¶ 27; Dhir Dep. at 179-88; Dkt 58-12]. Wells Fargo
dispatched an investigator to look into the unearned referrals, and he met with
each store employee individually. [Bruneau Aff. ¶ 27; Dhir Dep. 189-98]. On
October 30, 2013, Joy Robertson told the investigator that she gave tellers
unearned referrals as part of a plan that Ms. Robertson and the Plaintiff
concocted to alleviate teller frustration. [Bruneau Aff. ¶ 28; Dhir Dep. at 204-05].
During Plaintiff’s November 4, 2013 interview with the investigator, Plaintiff
admitted that she too awarded unearned referrals, rationalizing that she only
agreed to award unearned referrals “to stop the ongoing battle with Joy.”
[Bruneau Aff. ¶ 33; Dhir Dep. at 197-98; Dkt. 58-14].
The investigator presented his findings on a November 5, 2013 conference
call with Employee Relations Consultant Jennifer Kent, Human Resources
Business Partner Ryan Muir, Regional President Joseph Kirk, and Mr. Bruneau.
Mr. Kirk and Mr. Bruneau recommended issuing a written warning, but Ms. Kent
believed that termination was warranted. [Bruneau Aff. ¶ 36; Kent Aff. ¶¶ 10-11;
Dkt. 58-15 at WF000125]. On November 6, 2013, Ms. Kent convened a conference
call with the investigator and Employee Relations Manager Anne Cox. [Kent Aff.
¶¶ 12; Dkt. 58-15 at WF000125-WF000126; Dkt. 58-16 (“Cox Aff.”) ¶ 3]. Ms. Kent
and Ms. Cox concluded that Plaintiff gave tellers unearned referrals, that this
conduct violated the “Acting with Honesty, Integrity, & Trustworthiness” policy,
and that Plaintiff should be terminated. [Dhir Dep. at 210-13; Kent Aff. ¶¶ 14-15;
Dkt 58-15 at WF000125-WF000126; Cox Aff. ¶¶ 4-6].
Mr. Bruneau informed the Plaintiff that she had been terminated on
December 6, 2013 for awarding unearned referrals in violation of Wells Fargo’s
policies. [Bruneau Aff. ¶ 38]. Ms. Robertson was also terminated. [Kent Aff. ¶ 15;
Cox Aff. ¶ 6]. However, the tellers under Plaintiff’s supervision only received
written warnings, because Ms. Kent and Ms. Cox determined that the tellers
accepted the unearned referrals as part of the Plaintiff’s and Ms. Robertson’s
“plan,” and because Wells Fargo’s investigation had determined that the tellers
had been subjected to a “hostile work environment.” [Kent Aff. ¶ 19; Dkt 58-18 at
WF000125-WF000126; Cox Aff. ¶ 10].
Plaintiff claims that Mr. Bruneau did not “stand up” for her in the
discussions which led to her termination. [Dhir Dep. at 247-49]. In support of her
assertion that her termination was discriminatory, Plaintiff, who is Asian, testified
that Mr. Bruneau made a comment about her “culture,” and said of her new car,
“All you guys believe in these kind of models.” [Dhir Dep. at 247-49]. Although
he stated that Asians preferred a particular type of car, Plaintiff neither alleges
nor presents facts tending to establish that Mr. Bruneau considered the
preference reflected negatively on Asians. Plaintiff also testified that Mr. Bruneau
was aware of her age because she told him that she would be turning 50. [Dhir
Dep. at 251-54, 59-60]. She does not assert or present any facts tending to show
that Mr. Bruneau made any disapproving comments about her age.
Mr. Bruneau selected a white, male Store Manager from another store in Mr.
Bruneau’s district to replace the Plaintiff. [Bruneau Aff. ¶¶ 39-40; Dhir Dep. at
251]. Ms. Robertson’s replacement was female and Indian-American. [Bruneau
Aff. ¶ 41]. Defendant claims that neither Ms. Kent nor Ms. Cox knew Plaintiff was
Asian. [Kent Aff. ¶ 16; Cox Aff. ¶ 7]. Defendant also claims that neither Ms. Kent
nor Ms. Cox were aware of Plaintiff’s injury or her age when they decided to
terminate her employment. [Kent Aff. ¶ 17; Cox Aff. ¶ 8].
Between January 2012 and July 2016, Defendant terminated two Store
Managers and three Service Managers in Connecticut for misconduct related to
unearned referrals: (1) Plaintiff; (2) Store Manager Nathan Sherwood, a white
man; (3) Ms. Robertson, a black woman; (4) Service Manager Janet Smith, a black
woman; and (5) Service Manager Monika Malhota, a Hispanic woman. [Bruneau
Aff. ¶ 43]. None of these non-Asian individuals had any known disabilities. Id. ¶
Standard of Review
“A party may move for summary judgment, identifying each claim or
defense—or the part of each claim or defense—on which summary judgment is
sought. 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. The court should state on the record the reasons for
granting or denying the motion.” Fed. R. Civ. P. 56(a). In order to prevail, the
moving party must sustain the burden of proving that no factual issues exist.
Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). “In determining
whether that burden has been met, the court is required to resolve all ambiguities
and credit all factual inferences that could be drawn in favor of the party against
whom summary judgment is sought. Id. (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986)). “If there is any evidence in the record that could reasonably
support a jury’s verdict for the nonmoving party, summary judgment must be
denied.” Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446
F.3d 313, 315-16 (2d Cir. 2006) (quotation omitted). In addition, “the court should
not weigh evidence or assess the credibility of witnesses” on a motion for
summary judgment, as “these determinations are within the sole province of the
jury.” Hayes v. New York City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996).
“A party opposing summary judgment ‘cannot defeat the motion by relying
on the allegations in [her] pleading, or on conclusory statements, or on mere
assertions that affidavits supporting the motion are not credible.’ At the
summary judgment stage of the proceeding, [p]laintiffs are required to present
admissible evidence in support of their allegations; allegations alone, without
evidence to back them up, are not sufficient.” Welch-Rubin v. Sandals Corp., No.
3:03-cv-481, 2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (quoting Gottlieb v.
County of Orange, 84 F.3d 511, 518 (2d Cir. 1996)). “Summary judgment cannot
be defeated by the presentation . . . of but a ‘scintilla of evidence’ supporting [a]
claim.” Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 726 (2d Cir.
2010) (quoting Anderson, 477 U.S. at 251).
A court must make the threshold determination of whether there is the
need for a trial—whether, in other words, there are any genuine factual issues
that properly can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party. Anderson, 477 U.S. at 250.
Judges are not required “to submit a question to a jury merely because some
evidence has been introduced by the party having the burden of proof, unless the
evidence be of such a character that it would warrant the jury in finding a verdict
in favor of that party. Formerly it was held that if there was what is called a
scintilla of evidence in support of a case the judge was bound to leave it to the
jury, but recent decisions of high authority have established a more reasonable
rule, that in every case, before the evidence is left to the jury, there is a
preliminary question for the judge, not whether there is literally no evidence, but
whether there is any upon which a jury could properly proceed to find a verdict
for the party producing it, upon whom the onus of proof is imposed.” Anderson,
477 U.S. at 251 (quoting Improvement Co. v. Munson, 14 Wall. 442, 448, 20 L.Ed.
867 (1872)) (citing Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 343 (1933);
Coughran v. Bigelow, 164 U.S. 301, 307 (1896); Pleasants v. Fant, 22 Wall. 116,
120–121 (1875)). Indeed, summary judgment should be granted where the
evidence is such that it “would require a directed verdict for the moving party.”
Sartor v. Arkansas Gas Corp., 321 U.S. 620, 624 (1944).
“A party asserting that a fact . . . is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations, admissions, interrogatory answers, or other materials.”
Fed. R. Civ. P. 56(c)(1). A party may also support their assertion by “showing that
the materials cited do not establish the absence . . . of a genuine dispute.” Id.
Cited documents must consist of either “(1) the affidavit of a witness competent
to testify as to the facts at trial and/or (2) evidence that would be admissible at
trial.” Local R. Civ. P. 56(a)3; see also Fed. R. Civ. P. 56(c)(4).
The Court need not consider any materials that the parties have failed to
cite, but may in its discretion consider other materials in the record. Fed. R. Civ.
P. 56(c)(3). If a party fails to properly support an assertion of fact, or fails to
properly address another party’s assertion of fact, the Court may grant summary
judgment on the basis of the undisputed facts. D. Conn. Local R. 56(a)3 (stating
that “failure to provide specific citations to evidence in the record as required by
this Local Rule may result in the Court deeming certain facts that are supported
by the evidence admitted in accordance with [Local] Rule 56(a)1 or in the Court
imposing sanctions, including . . . an order granting the motion if the undisputed
facts show that the movant is entitled to judgment as a matter of law”).1 Because
While Rule 56(e) also permits the Court to give a party the “opportunity to
properly support or address the fact,” such a course of action is not warranted.
Defendants complied with Local Rule 56(b)’s mandate to provide pro se plaintiffs
with notice of the procedures required to oppose a motion for summary
judgment. [See Dkt. 56]. Plaintiff therefore was aware of these requirements
before filing her opposition, and has not suggested that she will produce a brief
that comports with Rule 56 if given the opportunity to do so.
Plaintiff has filed no Rule 56(a) statement, the Court is not obligated to consider
any of the facts Plaintiff asserts in her Opposition. However, the Court has
nevertheless considered facts asserted in Plaintiff’s Opposition where they are
supported by admissible evidence elsewhere in the record.
Plaintiff claims that Wells Fargo discriminated against her on the basis of
her race, sex, and disability, and retaliated against her for filing a claim for
workers’ compensation.2 Upon review of all facts supported by evidence properly
admitted to the record, the Court finds no genuine issues of fact that would
preclude summary judgment.
A. Race and Gender Discrimination Claims
Courts analyze CFEPA and Title VII claims using the same legal standards.
See Kaytor v. Elec. Board Corp., 609 F.3d 537, 556 (2d Cir. 2010); Craine v. Trinity
Coll., 259 Conn. 625, 637 n.6 (2002)). Title VII claims are evaluated using the
burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491-92 (2d Cir.
2010); Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996). “Under
this framework, a plaintiff must first establish a prima facie case of
discrimination.” Ruiz, 609 F.3d at 491 (citation omitted). “The burden of proof
that must be met to permit an employment discrimination plaintiff to survive a
summary judgment motion at the prima facie stage is de minimis.” Chambers v.
Although Plaintiff mentioned age discrimination in her deposition, her Amended
Complaint does not allege age discrimination. [See Dkt. 21]. The Court therefore
declines to rule on this issue.
TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994). “Once a plaintiff meets
this initial burden, the burden then shifts to the defendant to offer a legitimate
non-discriminatory reason for the termination.” Ruiz, 609 F.3d at 492 (citation
omitted). If the defendant offers a legitimate non-discriminatory reason for the
termination, “the burden returns to the plaintiff to show that the real reason for
plaintiff’s termination was his race and national origin.” Id. (citation omitted).
1. Prima Facie Case
To establish a prima facie case of disparate treatment, “a plaintiff must
show that (1) [s]he is a member of a protected class; (2) [s]he was qualified for
the position [s]he held; (3) [s]he suffered an adverse employment action; and (4)
the adverse action took place under circumstances giving rise to the inference of
discrimination.” Ruiz, 609 F.3d at 491-92 (citation omitted). The parties do not
dispute that, as a woman of Indian descent, Plaintiff is a member of a protected
class, that she was qualified for her position as a Store Manager, and that she
suffered adverse employment actions when she was terminated. However, the
facts in the record do not evidence circumstances giving rise to an inference of
Evidence giving rise to an inference of discrimination includes (1) the
employer’s criticism of the plaintiff’s performance in ethnically degrading terms;
(2) invidious comments about others in the employee’s protected group; or (3)
the more favorable treatment of employees not in the protected group. See
Chambers, 43 F.3d at 37. “Because an employer who discriminates is unlikely to
leave a ‘smoking gun’ attesting to a discriminatory intent, a victim of
discrimination is seldom able to prove [her] claim by direct evidence, and is
usually constrained to rely on circumstantial evidence.” Id. A plaintiff usually
presents a prima facie case by “showing that the employer . . . treated [the
employee] less favorably than a similarly situated employee outside [her]
protected group.” Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). The
plaintiff must be “similarly situated in all material respects to the individuals with
whom she seeks to compare herself.” Id. (citations omitted).
“Whether two employees are similarly situated ordinarily presents a
question of fact for the jury.” Id. However, “where a plaintiff seeks to establish
the minimal prima facie case by making reference to the disparate treatment of
other employees, those employees must have a situation sufficiently similar to
plaintiff’s to support at least a minimal inference that the difference of treatment
may be attributable to discrimination.” McGuinness v. Lincoln Hall, 263 F.3d 49,
54 (2d Cir. 2001); see also Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499
n.2 (2d Cir. 2001) (“[A] court can properly grant summary judgment where it is
clear that no reasonable jury could find the similarly situated prong met.”).
Plaintiff named tellers who claimed unearned referrals, but were not
terminated, as alleged comparators. However, Wells Fargo offered unrebutted
evidence that it believed the tellers to be less culpable than the Plaintiff or Ms.
Robertson, because (1) Plaintiff and Ms. Robertson encouraged the tellers to
claim unearned referrals; and (2) the tellers felt “bullied” by the Plaintiff or
characterized their work environment as “extremely hostile.” [Dhir Dep. at 198208; Kent Aff. ¶ 19; Dkt. 58-15 at WF000122; Cox Aff. ¶ 10]. Additionally, Plaintiff
was the manager of all branch employees, including the tellers, and the evidence
does not show that Plaintiff shared the tellers’ job duties or responsibilities. [See
Dhir Dep. at 31-32; Robertson v. Wells Fargo Bank, N.A., No. 3:14-CV-01861 (VLB),
2017 WL 326317, at *9 (D. Conn. Jan. 23, 2017) (holding that Ms. Robertson did
not present a prima facie case because as a Service Manager, she was similarly
situated to her supervisor Ms. Dhir, but she was not similarly situated to the
tellers she directly supervised)]. The evidence in the record therefore does not
raise a genuine issue of fact suggesting that Plaintiff’s alleged comparators bore
“a reasonably close resemblance” with respect to Plaintiff’s conduct or the
conditions of her employment. See Graham, 230 F.3d at 40.
Moreover, the fact that Plaintiff’s position was filled by a Caucasian male of
European descent does not give rise to an inference of discrimination under the
circumstances present in this case. First, the only other Store Manager in
Connecticut who was terminated due to unearned referrals was also a white man.
[Bruneau Aff. ¶ 43]. Second, Ms. Robertson, a black woman similarly terminated
for encouraging tellers to take unearned referral credits, was replaced by an
Indian-American woman. [Bruneau Aff. ¶ 41].
Plaintiff admitted that she did not know who decided to terminate her, that
she was not privy to discussions about her termination, and that she did not
know if her immediate supervisor, Mr. Bruneau, recommended termination. [Dhir
Dep. at 253-54]. Wells Fargo, on the other hand, has offered undisputed evidence
that Mr. Bruneau recommended that Plaintiff not be terminated, and that Ms. Cox
and Ms. Kent decided to terminate Plaintiff over his objections. [Bruneau Aff. ¶
36; Kent Aff. ¶¶ 10-12, 14-15; Dkt. 58-15 at WF000125-126; Cox Aff. ¶¶3-6]. Mr.
Bruneau’s comments about Plaintiff’s “culture” or her new car and the Plaintiff's
factually unsupported allegation that Mr. Bruneau failed to “stand up” for her
during the “referral process,” are thus irrelevant to whether Plaintiff’s termination
was racially motivated.
Although Plaintiff cannot establish a prima facie case of disparate
treatment, the Court nevertheless will proceed with the remaining steps of the
McDonnell Douglass framework.
2. Legitimate Non-Discriminatory Reason
Supposing a plaintiff establishes a prima facie case, “the burden shifts to
the employer to come forward with a legitimate, nondiscriminatory reason for the
adverse employment action.” Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir.
2012). Here, Wells Fargo stated that it terminated Plaintiff for the
nondiscriminatory reason that she violated the company’s sales referral policy
and suborned others to do the same. Plaintiff submitted this handwritten
statement to a Wells Fargo investigator:
“Joy [Robertson] came up with the plan to help the teller frustration that if
tellers are trying hard & consistent with 5 or 6 walkovers [on] a daily basis
& getting nothing then we should give them something once in a while. To
stop this battle & I couldn’t take this argument with Joy & my staff, I told
Joy when this kind of frustration or situation occur[s], please bring it to my
attention & at that point we will see why [personal bankers] are not able to
close any deals for the tellers[.] At that point if you think we need to give
tellers something to boost his or her moral[e] then we will decide at that
[Dkt. 58-14 at WF000205]. The investigator also asked Plaintiff in writing, “How
many times did you approve a teller referral that was not earned, under the plan
that you and Joy discussed, for your tellers this year[?].” [Id. at WF000206]. She
replied, “As I recall it once or twice.” Id. The Code of Ethics & Business Conduct
states, “Only valid sales referrals made by the team member seeking the credit
may be submitted to meet sales goals or receive credit under sales incentive
programs.” [Handbook at WF000020]. And a violation of the Code is “grounds
for corrective action, which may include termination of . . . employment.” [Id. at
WF000014]. Plaintiff also admitted that it is inappropriate for a team member to
enter a sale and assign it to another team member who did not make the sale.
[Dhir Dep. at 50-51]. Her conduct violated company policy and her violation was
punishable by employment termination. As such, Wells Fargo had a nondiscriminatory reason taking this action.
If the employer cites a proper explanation for the adverse employment
action, the plaintiff must show pretext. Ruiz, 609 F.3d at 492. “Pretext may be
demonstrated either by the presentation of additional evidence showing that the
employer’s proffered explanation is unworthy of credence, or by reliance on the
evidence comprising the prima facie case, without more.” Chambers, 43 F.3d at
38 (quotations and citations omitted); Lifranc v. New York City Dep’t of Educ., No.
07-CV-1109 (KAM) (LB), 2010 WL 1330136, at *10 (E.D.N.Y. Apr. 6, 2010) (citing
Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1225 (2d Cir.
1994)) (stating a plaintiff may survive summary judgment “through direct,
statistical, or circumstantial evidence as to whether the employer's reason for its
decision to discharge is false and as to whether it is more likely that a
discriminatory reason motivated the employer to make an adverse employment
decision”). The ultimate question on summary judgment is whether “the
employee’s admissible evidence . . . show[s] circumstances that would be
sufficient to permit a rational finder of fact to infer that the employer’s
employment decision was more likely than not based in whole or in part on
discrimination.” Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014)
(quoting Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003)).
Plaintiff fails to demonstrate that her violation of the Code of Ethics was
pretext. A plaintiff may not establish pretext through mere speculation, see
Crawford-Mulley v. Corning Inc., 194 F. Supp. 2d 212, 220 (W.D.N.Y. 2002), and no
evidence suggests that Ms. Kent and Ms. Cox decided to terminate Plaintiff’s
employment on the basis of her race and gender. In fact, Kent and Cox submitted
affidavits stating they did not know Plaintiff’s race when they decided to
terminate her employment. [Kent Aff. ¶ 16; Cox Aff ¶ 7]. While it is possible that
Kent and Cox could have guessed Plaintiff’s ancestry based on her name, this
alone is insufficient to show that their stated reason for terminating Plaintiff was
false. Therefore, the Court DISMISSES the Title VII and CFEPA claims with
respect to Plaintiff’s allegations of race and gender discrimination.
B. Disability Discrimination Claims
Plaintiff also claims that she became disabled as a result of a workplace
accident, and that Wells Fargo unlawfully terminated her because this disability,
in violation of the ADAA and CFEPA. The Court analyzes these claims using the
McDonnell Douglass burden-shifting framework. Stefanidis v. Jos. A. Bank
Clothiers, Inc., No. 3:14-CV-971 (VAB), 2016 WL 845297, at *5-6 (D. Conn. Mar. 2,
2016) (citing Heyman v. Queens Vill. Comm. for Mental Health for Jamaica Cmty.
Adolescent Prog., Inc., 198 F.3d 68, 72 (2d Cir. 1999) (ADA); Hopkins v. New Eng.
Health Care Employees Welfare Fund, 985 F. Supp. 2d 240, 255-56 (D. Conn.
2013) (CFEPA)) (“Because the Court need not address the definition of disability
to dispose of this case, it will treat the analysis of [the plaintiff’s] claims under
ADA and CFEPA as the same.”). Wells Fargo does not dispute that Plaintiff was
disabled, [Dkt. 57 at 28], and as discussed in Section IV.A.2., supra, Defendants
have provided a legitimate nondiscriminatory reason for terminating her. The
Court therefore need only determine whether Wells Fargo’s proffered reason for
terminating the Plaintiff was pretext for disability discrimination.
Neither Ms. Cox nor Ms. Kent were aware of Plaintiff’s disability when they
decided to terminate her employment. [Kent Aff. ¶ 18; Cox Aff. ¶ 9]. Moreover,
the only evidence Plaintiff has offered of any discriminatory animus are Mr.
Bruneau’s comment that Plaintiff’s doctors were only recommending continued
physical therapy “so they can make money,” and the fact that he and Mr. McClun
asked the Plaintiff how long she would require treatment. [Dhir Dep. at 265-66].
Because Mr. Bruneau and Mr. McClun did not decide that Plaintiff should be
terminated, and Mr. Bruneau recommended against terminating her, these
comments are insufficient to show that Plaintiff’s termination was motivated by
disability discrimination. Furthermore, the fact that Wells Fargo terminated and
reprimanded other, non-disabled employees because of unearned referrals,
suggests that the unearned referrals were the “real” reason Plaintiff was
terminated. Plaintiff’s claims for disability discrimination under the ADAA and
CFEPA are therefore DISMISSED.
C. Worker’s Compensation
The Court will not exercise supplemental jurisdiction over Plaintiff’s CWCA
claim, and therefore dismisses it without prejudice.
For the foregoing reasons, Defendant’s Motion for Summary Judgment is
GRANTED. The Clerk is directed to close this file.
IT IS SO ORDERED.
_ ______ /s/ ______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: March 1, 2017
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