Dickinson v. Edward Jones & Co., L.P.

Filing 36

MEMORANDUM DECISION AND ORDER re: 26 Defendant's MOTION for Summary Judgment . It is hereby ORDERED that Defendant's Motion for Summary Judgment (Docket No. 26 ) is GRANTED, in part, and DENIED, in part, as follows: 1. Dickinson may proceed with her religious and disability discrimination claims. In these respects, Defendant's Motion for Summary Judgment is DENIED; and 2. Dickinson's retaliation claim is dismissed. In this respect, Defendant's Motion for Summary Judgment is GRANTED. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

Case No.: 4:14-cv-00397-REB

SHANNON DICKINSON
Plaintiffs,

MEMORANDUM DECISION AND
ORDER RE:

vs.
EDWARD D. JONES & CO., L.P., a Missouri
limited partnership,

DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
(Docket No. 26)

Defendant.

Now pending before the Court is Defendant’s Motion for Summary Judgment (Docket
No. 26). Having carefully considered the record, participated in oral argument, and otherwise
being fully advised, the Court enters the following Memorandum Decision and Order:
I. BACKGROUND
Defendant Edward D. Jones & Co., L.P. (“Edward Jones”) is a full-service brokerage
firm, with branch offices throughout the United States. The majority of Edward Jones’ branch
offices are operated by a single Financial Advisor (“FA”) who is responsible for maintaining the
branch, servicing existing clients, and marketing the firm’s services to potential clients. FAs are
typically supported by a singe Branch Office Administrator (“BOA”) whose primary
responsibility is to assist the FA with office administration.
In June 2006, Edward Jones hired Plaintiff Shannon Dickinson as a BOA in one of its
Idaho Falls, Idaho branches. From June 2006 through September 2007, Dickinson worked
alongside the branch’s FA, Jeff Jones. In September 2007, Maurice Miller replaced Jones as the
branch’s FA. Dickinson remained the branch’s BOA until she was fired on November 30, 2012.

MEMORANDUM DECISION AND ORDER - 1

Although there are many moving parts surrounding the events leading up to Dickinson’s
termination, things ultimately came to a head during her performance review. At that time
Miller and Dickinson had what can best be described as a disagreement. While there is a factual
dispute over what exactly was said during that review, it appears clear that Dickinson left the
meeting over Miller’s objections. Dickinson was fired soon thereafter by Edward Jones’
Associate Relations (“AR”) department. This lawsuit followed.
In her Complaint, Dickinson asserts federal and state law claims for religious
discrimination, disability discrimination, and retaliation. Specifically, Dickinson alleges that
Edward Jones, through Miller, discriminated against her because of her religion; that Miller
perceived her as having a disability and discriminated against her on that basis; and that Miller
(and Edward Jones’ AR employees) illegally retaliated against her for complaining about
religious and disability discrimination.
Edward Jones now moves for summary judgment, arguing that Dickinson’s claims should
be dismissed because, (1) generally speaking, a traditional “cat’s paw” theory of liability does
not exist to connect Miller’s allegedly-discriminatory conduct with Dickinson’s actual
termination; and, (2) more particularly, there is no evidence of any (a) religious discrimination,
(b) disability discrimination, or (c) actionable retaliation.
II. DISCUSSION
A.

Legal Standards
1.

Summary Judgment Standard

Summary judgment is appropriate where a party can show that, as to any claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to

MEMORANDUM DECISION AND ORDER - 2

judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of summary
judgment “is to isolate and dispose of factually unsupported claims . . . .” Celotex Corp. v.
Catrett, 477 U.S. 317, 323-34 (1986). It is “not a disfavored procedural shortcut,” but is instead
the “principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and
prevented from going to trial with the attendant unwarranted consumption of public and private
resources.” Id. at 327. “[T]he mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). There must be a genuine dispute
as to any material fact – a fact “that may affect the outcome of the case.” Id. at 248.
The evidence must be viewed in the light most favorable to the non-moving party, and
the Court must not make credibility findings. Id. at 255. Direct testimony of the non-movant
must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir.
1999). On the other hand, the Court is not required to adopt unreasonable inferences from
circumstantial evidence. See McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
The moving party bears the initial burden of demonstrating the absence of a genuine
dispute as to a material fact. See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en
banc). To carry this burden, the moving party need not introduce any affirmative evidence (such
as affidavits or deposition excerpts) but may simply point out the absence of evidence to support
the nonmoving party’s case. See Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th
Cir. 2000).
This shifts the burden to the non-moving party to produce evidence sufficient to support a
jury verdict in his favor. See Devereaux, 263 F.3d at 1076. The non-moving party must go

MEMORANDUM DECISION AND ORDER - 3

beyond the pleadings and show “by her [ ] affidavits, or by the depositions, answers to
interrogatories, or admissions on file” that a genuine dispute of material fact exists. Celotex, 477
U.S. at 324.
2.

McDonnell Douglas Standard

Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), prohibits an
employer from discriminating against an individual because of (among other things) an
individual’s religion. See 42 U.S.C. § 2000e-2(a)(1). Likewise, the Americans with Disabilities
Act (“ADA”) prohibits an employer from discriminating against a qualified individual “on the
basis of disability.” 42 U.S.C. § 12112(a). Both Title VII and the ADA prohibit an employer
from retaliating against an employee for engaging in protected activity. See 42 U.S.C. § 2000e3(a) (Title VII); 42 U.S.C. § 12203(a) (ADA). Dickinson claims her termination violated each of
these statutory prohibitions.
Dickinson’s religious and disability discrimination claims, as well as her retaliation
claim, proceed under the now-familiar McDonnell Douglas three-step burden-shifting
framework. First, Dickinson must establish a prima facie case of discrimination/retaliation;
second, if she does, Edward Jones must then articulate a legitimate nondiscriminatory reason for
its conduct; and third, if it does, Dickinson must then demonstrate that the articulated reason is a
pretext for discrimination/retaliation. See McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04 (1973); see also Wallis v. J.R. Simplot Co., 26 F.3d 885, 888-89 (9th Cir. 1994) (applying
framework to Title VII claims); Snead v. Metro Prop. & Cas. Ins. Co., 237 F.3d 1080, 1093 (9th
Cir. 2001) (applying framework to ADA claims); Hashimoto v. Dalton, 118 F.3d 671, 680 (9th
Cir. 1997) (Title VII retaliation claim); Pardi v. Kaiser Found. Hosp., 389 F.3d 840, 849 (9th Cir.
2004) (ADA retaliation claim).

MEMORANDUM DECISION AND ORDER - 4

B.

Questions of Fact Exist to Preclude Summary Judgment on Some, but Not All, of
Dickinson’s Claims Against Edward Jones
1.

Dickinson’s Religious and Disability Discrimination Claims
a.

The Cat’s Paw Theory

Preliminarily, Edward Jones argues that, even if Mr. Miller’s alleged conduct represents
a discriminatory animus, there is no evidence that Dickinson suffered an adverse employment
action as a result of that animus. See Mem. in Supp. of MSJ, pp. 2-3, 9-11, 14 (Docket No. 26,
Att. 1). Instead, according to Edward Jones, Dickinson was terminated by Edward Jones’ AR
employees – Laura Faulstich and Martha Schneberger – as a result of Dickinson’s admitted
insubordinate conduct during her performance review. Hence, Edward Jones would argue,
because Miller was not consulted on Faulstich’s and Schneberger’s decision to fire Dickinson, a
“cat’s paw”1 theory of liability cannot exist. See id. at p. 9 (“[I]n order to establish that there is
any causal connection between the alleged discriminatory animus and the adverse employment
action (the termination), [Dickinson] must establish a ‘cat’s paw’ theory of liability.”).
Under the “cat’s paw” theory, “if a supervisor performs an act motivated by
[discriminatory] animus that is intended by the supervisor to cause an adverse employment

1

As explained by Justice Scalia:

The term “cat’s paw” derives from a fable conceived by Aesop, put into verse by La
Fontaine in 1679, and injected into United States employment discrimination by
[Seventh Circuit Judge Richard] Posner in 1990. In the fable, a monkey induces a
cat by flattery to extract roasting chestnuts from the fire. After the cat has done so,
burning its paws in the process, the monkey makes off with the chestnuts and leaves
the cat with nothing. A coda to the fable (relevant only marginally, if at all, to
employment law) observes that the cat is similar to princes who, flattered by the
king, perform services on the king’s behalf and receive no reward.
Staub v. Proctor Hosp., 562 U.S. 411, 415 n.1 (2011) (citing Shager v. Upjohn Co., 913 F.2d
398, 405 (7th Cir. 1990)). “In the context of employment litigation, the fable serves as a
cautionary tale to employers against the rubberstamping of a supervisor’s recommendations.”
Glynn v. City of Stockton, 2016 WL 4009809, *11 n.2 (E.D. Cal. 2016).
MEMORANDUM DECISION AND ORDER - 5

action, and if the act is a proximate cause of the ultimate employment action, then the employer
is liable.” Staub, 562 U.S. at 422. “In ‘cat’s paw’ cases, courts regard the biased subordinate’s
actions as direct evidence of discrimination.” See Robles v. Agreserves, Inc., 2016 WL 323775,
*27 (E.D. Cal. 2016) (citing Nichols v. Michigan City Plant Planning Dept., 755 F.3d 594, 600
(7th Cir. 2014)).
To establish a “cat’s paw” theory, the plaintiff must show that (1) a supervisor performs
an act motivated by discriminatory animus, (2) that is intended by the supervisor to cause an
adverse employment action, and (3) that act is a proximate cause of the ultimate employment
action. See Staub, 562 U.S. at 422. “Since a supervisor is an agent of the employer, when he
causes an adverse employment action the employer causes it; and when discrimination is a
motivating factor in his doing so, it is a motivating factor in the employer’s action . . . .” Id. at
421 (internal quotation marks and citation omitted). “Proximate cause requires only some direct
relation between the injury asserted and the injurious conduct alleged, and excludes only those
links that are too remote, purely contingent, or indirect.” Id. at 419 (internal quotation marks and
citation omitted). If an employer’s independent investigation “results in an adverse action for
reasons unrelated to the supervisor’s original biased action,” then the employer will not be liable.
Id. at 421. However, if the independent investigation “relies on facts provided by the biased
supervisor,” then the investigation is not actually independent, and the employer is liable. Id.
That is, a non-decisionmaker’s biased report “may remain a causal factor if the independent
investigation takes into account without determining that the adverse action was, apart from the
supervisor’s recommendation, entirely justified.” Id.
Here, Edward Jones contends that there is no “biased report” that could allow Dickinson
to establish a “cat’s paw” theory of liability because (1) Miller reported to AR that Dickinson

MEMORANDUM DECISION AND ORDER - 6

had left the office against his instruction and said words to the effect of “I’m not asking you, I’m
telling you,” as she left;2 and (2) Dickinson admitted that this had in fact occurred during a
subsequent conversation with AR.3 See Mem. in Supp. of MSJ, p. 10 (Docket No. 26, Att. 1)

2

The record of the November 30, 2012 telephone call from Miller to Faulstich reads:

Maury called and said he was giving Shannon her annual performance appraisal. He
said during the appraisal, which was an Exceeds Expectations, that Shannon became
upset by the ratings for different topics. Maury said he could see Shannon getting
visibly upset and told her she needed to calm down and the overall rating was an E.
Maury said she told him she was done with the conversation and wanted to get the
RL or HR on the phone. Maury said he told her that they would not resolve it today
however they would get HR involved and that he had spoken with someone. Maury
then said Shannon went to her desk, got her purse, and said she was leaving. Maury
said he told her “I am not giving you authorization to leave.” He said Shannon
turned to him and said “I am leaving and you can’t stop me.” Maury then said “then
you better be prepared to find another job,” as Shannon walked out of the office. I
told Maury to give me a few minutes and I would call him back to discuss next steps.
Ex. K, p. 5 to Jaskowiak Decl. (Docket No. 26, Att. 16).
3

The record of the November 30, 2012 telephone call from Faulstich and Schneberger to
Miller reads in relevant part:
•

Maury told her he controls things; we asked her to explain, and she clarified
that he said “I’m the one who makes decisions here” and “you better be
careful what you’re doing b/c I’m still in control here.”

•

That Maury told her he contacted HR, had documentation, and she said she
told him “so do I.”

•

She suggested RL Chris should “mediate” and that Maury told her it
wouldn’t be for today. She said “that’s fine” and that she told him “call me
when you get ahold of Chris.”

•

She gathered “up my books” and that Maury told her had concerns for her
taking personal calls/personal time.

•

Said the conv[ersation] happened around 12 noon and that it was her lunch
time. Said Maury told her “you’re not leaving for the rest of the day.”

MEMORANDUM DECISION AND ORDER - 7

(“In other words, this is not a situation in which the alleged discriminator gave a biased account
to the decisionmaker which led to an adverse employment action, but rather a situation where the
account was accurate and was expressly confirmed by the plaintiff. As a result of this admitted
conduct, Plaintiff is precluded from establishing a ‘cat’s paw’ theory of liability as a matter of
law because there is no evidence that Ms. Faulstich and Ms. Schneberger acted with
discriminatory animus.”).4 The undersigned is not so sure.
In leaving work when Miller said to stay, Dickinson was arguably acting insubordinately.
Generally speaking, insubordination is grounds for termination. But the facts of Dickinson’s
firing do not compel such a finding as a matter of law because the context surrounding
Dickinson’s firing must also be taken into account. When doing so (and when viewing the
evidence and its potential inferences in the light most favorable to Dickinson as is required at
this stage of the proceedings), it is equally plausible that the allegedly “hostile environment”
created by Miller’s discriminatory animus induced the purported insubordination which was then
offered as justification for Dickinson’s firing. Viewed thusly, a factual dispute exists as to
whether Miller set in motion and/or otherwise influenced Edward Jones’ decision to terminate

•

Acknowledged she told Maury “I didn’t ask you. I told you.” Shannon told
us she probably shouldn’t have said it, and that she felt it was “an extremely
hostile environment.” She said called RL Chris last night and that “I left.”

Ex. K, p. 4 to Jaskowiak Decl. (Docket No. 26, Att. 16).
4

Also on November 30, 2012, Miller emailed Schneberger, stating:

Martha, I was given your name as a person who will be helping me handle my BOA
situation. Well things have escalated today during her review and she walked out
without my authorization, and left for the day. We need to discuss this as soon as
possible and see if there is a workable solution. As of right now, I do not want her
back in my office as this will be non-productive and not good for our clients.
Ex. L to Jaskowiak Decl. (Docket No. 26, Att. 17).
MEMORANDUM DECISION AND ORDER - 8

Dickinson. See Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007) (“[I]f a [biased]
subordinate . . . sets in motion a proceeding by an independent decisionmaker that leads to an
adverse employment action, the subordinate’s bias is imputed to the employer if the plaintiff can
prove that the allegedly independent adverse employment decision was not actually independent
because the biased subordinate influenced or was involved in the decision or decisionmaking
process.”).5 The summary judgment record here supports a claim that Dickinson’s firing was
related to Miller’s allegedly biased actions. Summary judgment is denied in this respect.
b.

Religious Discrimination Claim

A prima facie case of Title VII discrimination requires that Dickinson show (1) she
belongs to a protected class, (2) she was performing her job satisfactorily, (3) she suffered an
adverse employment action, and (4) she was treated less favorably than other employees with
similar qualifications. See Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 640 n.5 (9th Cir. 2003).6
Dickinson has stated a prima facie case of religious discrimination.

5

Plaintiff additionally argues this is the case because, in October 2012, Miller called AR
and reported that Dickinson was having performance issues because of “all the medication she is
taking,” claiming she blacked out, and was having cognitive problems. See Opp. to MSJ, p. 11
(Docket No. 29) (citing Ex. K, p. 6 to Jaskowiak Decl. (Docket No. 26, Att. 16). From this,
Plaintiff further contends that Miller “sought to impose some kind of disciplinary action based
upon that perceived disability” thus invoking the “cat’s paw.” Opp. to MSJ, p. 11 (Docket No.
29). Even so, Dickinson later (alternatively) argues that Miller’s alleged discriminatory animus
need not be imputed to Edward Jones’ AR department because Faulstich “was aware of Miller’s
agenda, and in fact, assisted him with it asking him to provide follow-up documentation on
Dickinson” such that “it is unnecessary to tie Miller’s discriminatory animus to the final
decisionmakers with the ‘cat’s paw’ doctrine.” Opp. to MSJ, p. 16 (Docket No. 29). This Order
does not speak to these additional arguments vis à vis the application the “cat’s paw” theory of
liability to the facts involved here.
6

Plaintiff has sued under the Idaho Human Rights Act (“IHRA”) for religious
discrimination, disability discrimination, and retaliation. See Compl., ¶¶ 52-55, 64-67, 75-80
(Docket No. 1). Federal law guides the interpretation of the IHRA and that the summary
judgment analysis is the same under the relevant statutes. See Hatheway v. Bd. of Regents of
Univ. of Idaho, 155 Idaho 255 (Idaho 2013); Mackay v. Four Rivers Packing Co., 179 P.3d 1064,
1069 (Idaho 2008); Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004).
MEMORANDUM DECISION AND ORDER - 9

There is no dispute in this record that Dickinson is a member of the LDS religion and
therefore belongs to a protected class. See Compl, ¶ 13 (Docket No. 1). Dickinson performed
her job duties satisfactorily. See Pl.’s SOF No. 13 (Docket No. 29, Att. 1) (discussing reviews
and monetary raises between 2007 and 2011). Dickinson suffered an adverse employment action
when she was terminated and when, just before being terminated, she received smaller bonuses
and was given a lower annual review. See id. at SOF No. 38; see also Ex. A to Jaskowiak Decl.
(Docket No. 26, Att. 4) (discussing various ratings for trimester bonuses). Finally, the individual
who replaced Dickinson was a member of Miller’s church, Calvary Chapel. See Pl.’s SOF No.
54 (Docket No. 29, Att. 1).
Under McDonnell Douglas, the burden shifts to Edward Jones to articulate a legitimate
nondiscriminatory reason for firing Dickinson. On that point, Edward Jones contends that
Dickinson’s termination was the result of insubordinate conduct which she admitted to Faulstich
and Schneberger. See Mem. in Supp. of MSJ, p. 11 (Docket No. 26, Att.1). This represents a
legitimate nondiscriminatory reason for firing Dickinson.7
Under McDonnell Douglas, the burden now shifts back to Dickinson to demonstrate that
Edward Jones’ articulated reason is merely a pretext for discrimination. On that point,
Dickinson offers evidence of three types. First, Dickinson argues that her actions were not
reflective of insubordination when considering the contextual backdrop of Miller’s alleged

7

Dickinson does not dispute that her alleged insubordination is a legitimate
nondiscriminatory reason for firing her, but argues that it does not represent a legitimate
nondiscriminatory reason for lower ratings on her performance reviews or lower trimester
bonuses. See Opp. to MSJ, p. 5 (Docket No. 29). The Court need not resolve this issue here,
given its resolution of the underlying Motion for Summary Judgment concerning Dickinson’s
religious discrimination claim.
MEMORANDUM DECISION AND ORDER - 10

discriminatory conduct in the first place. See Opp. to MSJ, pp. 7-8 (Docket No. 29) (citing
Robinson v. Southeastern Penn. Transp. Auth., 982 F.2d 892, 895-86 (3rd Cir. 1993)
(“[D]iscrimination analysis must not concentrate on individual incidents, but on the overall
scenario” and that employer’s conduct was aimed at “generally trying to provoke [plaintiff] to
insubordination.”); see also supra. Second, Dickinson alleges that, during her November 30,
2012 performance review, Miller made critical references to her mental state, commenting that “I
don’t think your medications are dosed correctly,” and “I think the election of Obama has made
you crazy and tipped you over the edge.” See Opp. to MSJ, p. 8 (Docket No. 29); see also Pl.’s
SOF No. 41 (Docket No. 29, Att. 1); infra (discussing ADA’s “regarded as” impairment in
context of Dickinson’s disability discrimination claim). Finally, Dickinson noted Miller’s
history of feeling like an outcast and/or discriminated against himself as a non-Mormon in
eastern Idaho, and that, after Miller hired two non-Mormons, she felt increasingly isolated in a
changing office environment where she was not welcome to participate. See Opp. to MSJ, pp. 89 (Docket No. 29) (citing Ex. K, p. 7 to Jaskowiak Decl. (Docket No. 26, Att. 16)); see also
Pl.’s SOF Nos. 16-18 (Docket No. 29, Att. 1); see also Pl.’s SOF Nos. 30-32 (Docket No. 29,
Att. 1) (highlighting Miller’s support of Obama during 2012 Presidential election “because
[Romney] was LDS” and Miller’s statements to her after Mr. Romney’s loss on Election Day
2012 that “You have no business being in this type of business and in my business. You get out
of here. I can’t afford someone telling my clients that the sky is falling.”). To this end,
sufficient evidence exists to create a genuine dispute as to material facts on whether Edward
Jones’ articulated reason for firing Dickinson was pretextual. Summary judgment is denied in
this respect.

MEMORANDUM DECISION AND ORDER - 11

c.

Disability Discrimination Claim

To state a prima facie case of ADA discrimination, Dickinson must show that (1) she is a
disabled person within the meaning of the ADA, (2) she was able to perform the essential
functions of the job, with or without reasonable accommodation, and (3) she suffered an adverse
employment action because of her disability. See Allen v. Pac. Bell, 348 F.3d 113, 114 (9th Cir.
2003). Again, Dickinson has stated a prima facie case of disability discrimination.
The ADA defines “disability,” in part, as “being regarded as having a [physical or mental
impairment].” 42 U.S.C. § 12102(1)(C). An individual is “regarded as” having a disabling
impairment if she has been subjected to unlawful discrimination “because of an actual or
perceived physical or mental impairment whether or not the impairment limits or is perceived to
limit a major life activity.” 42 U.S.C. § 12102(3)(A). Here, the record supports an argument
that Edward Jones regarded Dickinson as disabled. For example, the record of an October 16,
2012 telephone call between Miller and Edward Jones’ AR department reads:
FA, Maury Miller, called about performance concerns with his BOA, Shannon
Dickinson. Maury immediately said Shannon has no focus and he believes
Shannon’s performance concerns are occurring because of all the medication she is
taking. I cautioned Maury about making an assumption that medication is the cause
for performance concerns. I asked Maury if he has addressed his performance
concerns with Shannon. Maury said he approaches the conversation by asking
Shannon if she is feeling ok and how things have been going. He will walk out to
Shannon’s desk to ask this. Maury will ask Shannon if she remembers speaking with
a client or what was discussed because she entered something incorrectly or didn’t
complete a task correctly. I asked about Shannon’s response and Maury said she will
tell him she remembers the conversation and about Shannon’s response and Maury
said she will tell him she remembers the conversation and denies doing anything
incorrectly. I asked Maury if he does notice any improvement after the conversation
and he said no because Shannon’s response to him is that she is not doing anything
wrong. I asked if clients have shared any concerns or problems and Maury said no.
Maury said Shannon will mix up conversations with clients – for example, she spoke
with one client about a credit card and the next person that walks in she will think
is the exact same client and speak about the credit card when it isn’t the correct client
MEMORANDUM DECISION AND ORDER - 12

and they actually have never spoken about a credit card. Maury is concerned that
Shannon is going to give incorrect information because Shannon gets very confused
while on the phone. He has noticed she doesn’t remember something that happened
30 minutes ago. Maury said Shannon had a car accident where she almost drove off
a bridge. Shannon told Maury that she blinked and the accident happened. Maury
said he believes that she blacked out. Maury made multiple comments about
Shannon’s medication but said he is very careful with keeping performance separate.
Maury said the ratings he has awarded on the BOA trimester bonus have gone down
for Shannon to reflect performance. Maury said John has also noticed similar
concerns. Maury said he would like additional help in moving forward and with
having the conversation with Shannon. Maury asked to be contacted on his cell
phone. Emailed notes and ticket to HR Specialist.
Ex. K, p. 6 to Jaskowiak Decl. (Docket No. 26, Att. 16). Then, a week later, Edward Jones’ AR
department followed up with Miller about these “concerns,” with the record of an October 25,
2012 telephone call between Faulstich and Miller reading:
I spoke with Maury regarding his concerns and explained the caution given to him
about his concerns with medication. Maury and I decided I would review the
documentation he has and decide if we need to move forward with a call and
conversation. Maury said he would get me the documentation by Monday 10/29/12.
Id. at pp. 5-6.8 Additionally, Dickinson points to correspondence between an Edward Jones
employee to Miller (in early November 2012), detailing alleged incidents reflecting Dickinson’s
cognitive problems. See Pl.’s SOF No. 34 (Docket No. 29, Att. 1). Finally, during the at-issue
performance review, Miller allegedly told Dickinson that her medications were not dosed
correctly and that she was having memory problems. See supra. Considered together, with
inferences drawn in favor of Dickinson, the evidence can show that Dickinson was regarded as
disabled – the first element toward establishing a prima facie disability discrimination claim.

8

At least three telephone calls took place in the interim – October 18, 23, and 24, 2012.
See Ex. K, p. 6 to Jaskowiak Decl. (Docket No. 26, Att. 16). It would appear from the notations
that, for each call, Faulstich left a message for Miller. Separately, there is no indication that
Miller provided any of the requested documentation by October 29, 2012. See id.
MEMORANDUM DECISION AND ORDER - 13

Concerning the other elements of the claim, Dickinson was able to perform the essential
functions of the BOA position, given her history at Edward Jones and more-or-less positive
reviews leading up to her dismissal. See supra. She also suffered an adverse employment
action, having been fired and also having received smaller bonuses and a lower annual review.
See id. Finally, the record cited above also supplies an inference that this adverse employment
action was motivated by Dickinson’s perceived disability. See id.; see also Opp. to MSJ, pp. 1314 (Docket No. 29) (identifying Miller’s phone calls to AR, discussing Dickinson’s alleged
“performance issues” owing to cognitive problems, statements made by Edward Jones
employees to Miller regarding same, and comments made by Miller to Dickinson following
Presidential election). On balance, then, Dickinson has stated a prima facie case of disability
discrimination.
Having overcome the first hurdle of the McDonnell Douglas three-step burden-shifting
framework, the burden shifts to Edward Jones to articulate a legitimate nondiscriminatory reason
for firing Dickinson. This analysis, in addition to the analysis addressing Dickinson’s in turn
burden to show pretext is, in all relevant aspects, identical to the analyses of Dickinson’s
religious discrimination claim. And, like Dickinson’s religious discrimination claim, sufficient
evidence exists to create a genuine dispute as to material facts on whether Edward Jones’ reason
for firing Dickinson was pretextual. Summary judgment is denied in this respect.
2.

Dickinson’s Retaliation Claim

A prima facie retaliation case requires that Dickinson show that (1) she engaged in a
protected activity, (2) she suffered an adverse employment decision, and (3) there was a causal
link between the two. See Bergene v. Salt River Project Agric. Improvement and Power Dist.,
272 F.3d 1136, 1140-41 (9th Cir. 2001). Dickinson has not done so.
MEMORANDUM DECISION AND ORDER - 14

The basis for Dickinson’s retaliation claim relates to (1) a conversation she had with
Chris Klein in which she discussed the fact that there were religious conversations taking place
within the office, and (2) comments she made during her call with AR following her November
30, 2012 performance review. See Compl., ¶¶ 34,42, 69-70 (Docket No. 1). Even if such
instances represent protected activity, Dickinson cannot show the necessary link between that
protected activity and her termination.
There is no evidence that Edward Jones’ AR department (through Faulstich and
Schneberger, the individuals responsible for formally firing Dickinson) was aware of
Dickinson’s conversation with Klein before Dickinson was terminated. See Def.’s SOF No. 21
(Docket No. 26, Att. 2) (“Mr. Klein did not report the conversation to Associate Relations.”); see
also Cohen v. Fred Meyer, 686 F.2d 793, 797 (9th Cir. 1982) (“[A]t the time Reynolds made the
decision that directly resulted in the adverse action against Bires, he did not know that she had
engaged in a protected activity. This breaks the requisite causal link between the decision to
implement the policies and Bires’ EEOC complaint.”). Similarly, before even speaking with
Dickinson, Faulstich and Schneberger had already discussed the possibility of terminating
Dickinson. See SOF Nos. 45-46 (Docket No. 26, Att. 2) (citing Ex. I to Jaskowiak Decl. (Docket
No. 16, Att. 14) (email from Faulstich to Schneberger stating: “Just got off the phone with
Maury Miller . . . his BOA walked out during the appraisal . . . may want to let her go but want
to talk with you about it . . . it is your area.”); Exs. C-D to Jaskowiak Decl. (Docket No. 16, Atts.
8-9) (deposition testimony of Faulstich and Schneberger discussing possibility of terminating
Dickinson prior to talking with Dickinson).
In short, these realities do not support any inference, even when drawn most favorably in
favor of Dickinson as the non-movant, that her termination was the result of the conversations
MEMORANDUM DECISION AND ORDER - 15

she had with Klein or Faulstich and Schneberger related to any protected activity. Summary
judgment is granted in this respect.
III. ORDER
Based on the foregoing, IT IS HEREBY ORDERED that Defendant’s Motion for
Summary Judgment (Docket No. 26) is GRANTED, in part, and DENIED, in part, as follows:
1.

Dickinson may proceed with her religious and disability discrimination claims. In

these respects, Defendant’s Motion for Summary Judgment is DENIED; and
2.

Dickinson’s retaliation claim is dismissed. In this respect, Defendant’s Motion

for Summary Judgment is GRANTED.
DATED: August 26, 2016

Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 16