Gwinn v. U.S. Bancorp et al
MEMORANDUM OPINION AND ORDER Signed by Judge Rebecca Grady Jennings on 3/31/2021. Defendant Haverman and Weimer's Motion for Judgment on the Pleadings (DE 7 ) is GRANTED. The Clerk of the Court shall terminate Defendants Haverman and Weimer from this proceeding. The Court will issue a separate Order for Meeting and Report under Fed. R. Civ. P. 16 and 26. cc: Counsel (SMJ)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
Civil Action No. 3:20-cv-00338-RGJ
U.S. BANCORP d/b/a U.S. BANK
NATIONAL ASSOCIATION; MATT
HAVERMAN, individually and in his
capacity as a Representative of U.S. Bank;
and KRISTOPHER WEIMER, individually
and in his capacity as a Representative of
* * * * *
MEMORANDUM OPINION AND ORDER
Defendants Matt Haverman (“Haverman”) and Kristopher Weimer (“Weimer”) move for
judgment on the pleadings. [DE 7]. Plaintiff Pamela Gwinn responded, [DE 10], and Defendants
replied. [DE 13]. This matter is ripe. For the reasons below, Defendants’ Motion for Judgment
on the Pleadings is GRANTED.
Plaintiff is “an adult female over the age of forty[.]” [DE 1-1 at 20]. For several years,
Plaintiff worked for U.S. Bancorp (“U.S. Bank”) in both banker and supervisor roles. [Id. at 13].
At all times relevant, Plaintiff worked at U.S. Bank’s Churchill Downs branch (the “Branch”). [Id.
at 12-13]. The Branch typically operated from 11:00 AM until 5:00 PM on Wednesdays through
Sundays. [Id. at 14]. Plaintiff regularly arrived at work sometime in the hour preceding the
Branch’s opening “to prepare the Branch for business.” [Id.]. In 2017, Haverman became the “InStore District Manager” for the Branch. [Id.]. Haverman created a recurring social event called
“Mango Mondays” for “a selective group of employees from across the branches of the Company”
where the group would go on “an outing to a local restaurant and/or bar[.]” [Id.]. Plaintiff was
not invited to Mango Mondays. [Id.].
In fall 2017, John Mills, the Branch Manager, told Plaintiff that “Haverman communicated
to [Mills] that [Plaintiff] was not to begin work until 10:30” AM and that Haverman specifically
asked Mills “not to inform [Plaintiff] where those instructions originated.” [Id.]. Plaintiff
“believes this was an attempt to force [her] to quit and/or resign since everyone knew she was not
interested in obtaining additional hours at other branches[.]” [Id. at 14-15]. Plaintiff contacted a
Human Resources (“HR”) representative about this hours reduction, and shared additional
concerns with the representative, including her opinion that there was a lack of typical ongoing
employee training, as well as her “belie[f that] Haverman was after her.” [Id. at 15]. Plaintiff’s
complaints to the HR representative “led to a meeting with Mills, [Plaintiff], and Haverman” in
which Haverman told her that “the reduction in her hours was to help the Branch save money.”
[Id.]. Plaintiff continued beginning work at 10:15 AM, but “she recorded her time as 10:30 [AM]
on her timesheet as she had been instructed.” [Id. at 15.]
In April 2018, Mills left U.S. Bank and Weimer took over the role of Branch Manager.
[Id.]. “It was well known that Weimer and Haverman had an established relationship outside of”
U.S. Bank. [Id.]. Plaintiff “believes Weimer was sent to the Branch to get rid of” her. [Id.].
Plaintiff recalls Weimer questioning her about not entering her time for lunch during a busy season,
and Plaintiff “explained [she was] too busy to take a lunch,” because the Branch typically only had
two individuals working there, so “it was very rare that either of the employees took lunch and it
had been that way since [Plaintiff] began to work there.” [Id. at 16]. Weimer, in response, “went
on about saving the bank money.” [Id.].
The next month, “Weimer worked as a substitute banker, as the regular banker went on
vacation.” [Id.]. While working with Plaintiff, Weimer told her that she would be eligible for
retirement that fall; Plaintiff responded that she did not plan to retire in the fall. [Id.]. A few weeks
after he worked as a substitute banker, Weimer “implied that he had communicated with [Plaintiff]
and the banker that they were to clock in at 10:45” AM, but neither Plaintiff nor the banker recalled
“any communications from Weimer regarding this change.” [Id.]. Plaintiff “felt the change in
their hours was directed to her in retaliation of her speaking to HR regarding the initial reduction
of hours and other concerns.” [Id.]. A few weeks after the new reduction of Branch hours, Plaintiff
“received an email from Weimer asking when she planned to retire so he could begin searching
for a replacement[,]” and in response, Plaintiff again stated that she was not planning to retire at
that time. [Id.].
In July 2018, the Branch began operating on Mondays, and Plaintiff informed Weimer that
because of a longstanding commitment, she would be unable to work Mondays. [Id. at 17]. The
Branch’s hours were also updated to 11:00 AM to 5:00 PM, and “Weimer relayed that the Branch
employees were to report to work five minutes before the Branch opened.” [Id.]. Despite
Plaintiff’s scheduling conflict on Mondays, “since Weimer reduced [Plaintiff]’s hours again,
[Plaintiff] informed Weimer she would work those Mondays after all and complied with the new
hours.” [Id.]. Plaintiff remembers a Monday sometime later when Weimer called the Branch and
asked Plaintiff why she was working; he informed her that working six consecutive days, as she
had, was “not permitted.” [Id.]. That said, Plaintiff believed that “[t]his was untrue and was not
policy and/or procedure throughout” U.S. Bank. [Id.]. She believed “Weimer was trying to
instigate her . . . to retire.” [Id.].
In September 2018, “Carol Paul (“Paul”) was sent to the Branch to ‘coach’” Plaintiff on
management techniques that, according to Plaintiff, “had not previously existed at the Branch
during [her] tenure.” [Id.]. Paul and Haverman were friends, so Plaintiff “felt Paul was sent to the
Branch so Paul would report to Haverman any grievances Paul had of [Plaintiff]’s work
performance or to encourage [Plaintiff] to speak critically about Haverman and/or Weimer.” [Id.
at 17-18]. Plaintiff recalls Paul talking about the new management coaching being “unnecessary”
because of the way the Branch operated. [Id. at 17-18].
In fall 2018, “Haverman changed the Branch opening hours from 12:00 p.m. to 5:30 p.m.”
which “created conflicts with existing” customers. [Id. at 18]. Plaintiff informed Haverman that
this hours change did not adhere “to the [U.S. Bank] operational procedures, namely the policy
governing branch hour changes[,]” and Plaintiff “believed the reduction in hours was another
attempt to force her into retirement[.]” [Id.].
In November 2018, Plaintiff’s coworker told Plaintiff that at the weekly Mango Monday
event, Weimer “engage[d] in a negative conversation with her about” Plaintiff. [Id.]. Plaintiff
“was not interested in hearing” the substance of the negative comments, so Plaintiff “does not
know what was said[.]” [Id.]. Plaintiff asked Paul for advice as to what to do, and Plaintiff also
took her concerns to Haverman, who “never responded or acknowledged one way or another.”
[Id.]. Plaintiff also made a report to HR, and an HR representative scheduled a telephone
conference to discuss the incident.
The telephone conference occurred just before
Thanksgiving break, and Plaintiff took a medical break immediately following Thanksgiving for
a procedure, so ultimately “nothing was accomplished before [Plaintiff] left for medical leave.”
[Id. at 19]. When she returned in early 2019, there was a new employee working at the Branch
and there was no money in her “‘vault’ because she had been out for six weeks, and the new
employee did not have money as well.” [Id.]. The day after her return, Plaintiff perceived Weimer
as being uncharacteristically nice to her, and he informed her that they would be downsizing her
vault. [Id.]. The next week, the coworker that told Plaintiff the Mango Monday gossip informed
Plaintiff, by text, that she had just been terminated over an account transaction, and that “she
believed management was coming for [Plaintiff] next.” [Id.]. An hour later, “Haverman, Weimer,
and the District Operations Manager . . . terminate[d]” Plaintiff. [Id.]. Plaintiff does not state the
grounds for her termination in her Complaint. Plaintiff concluded, however, that Haverman and
Weimer conspired to terminate her while she was on medical leave, and that they “retaliated
against [her] for reporting the inappropriate behavior and gossip that Weimer attempted to share
with [Plaintiff’s coworker].” [Id. at 19-20]. Plaintiff also maintains that “Haverman and Weimer
retaliated against [her] because of her age and her wish to continue working rather than retire.”
[Id. at 20]. In her Response to Defendants’ Motion, Plaintiff asserts that she was terminated for
“transfer[ring] money between clients with different types of accounts[,]” which she argues was a
regular, known practice or policy of U.S. Bank. [DE 10 at 102].
Fed. R. Civ. P. 12(c) provides that “a party may move for judgment on the pleadings.” A
court is to apply the same standard to a motion for judgment on pleadings that it applies to a motion
to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Warrior Sports, Inc.
v. Nat'l Collegiate Athletic Ass’n, 623 F.3d 281, 284 (6th Cir. 2010) (citing EEOC v. J.H. Routh
Packing Co., 246 F.3d 850, 851 (6th Cir. 2001)). “For purposes of a motion for judgment on the
pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be
taken as true, and the motion may be granted only if the moving party is nevertheless clearly
entitled to judgment.” JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007)
(quoting S. Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir.
1973)). A motion for judgment on the pleadings may be “granted when no material issue of fact
exists and the party making the motion is entitled to judgment as a matter of law.” Id. (quoting
Paskvan v. City of Cleveland Civ. Serv. Comm’n, 946 F.2d 1233, 1235 (6th Cir. 1991)).
“The liberal pleading standard applicable to civil complaints does not require that a
retaliation complaint set forth specific facts establishing a prima facie case, but it must allege facts
that establish a plausible claim to relief.” Carrethers v. Speer, 698 Fed. App’x 266, 270 (6th Cir.
2017) (citing Keys v. Humana, 684 F.3d 605, 609-10 (6th Cir. 2012)). That said, a plaintiff must
allege that he was engaged in a protected activity to state a claim under the Kentucky Civil Rights
Act (“KCRA”). Krueger v. Home Depot USA, Inc., 674 Fed. App’x 490, 495 (6th Cir. 2017).
“The KCRA states that it is unlawful for an employer to ‘retaliate or discriminate in any manner
against a person because he has opposed a practice declared unlawful by this chapter, or because
he has made a charge, filed a complaint, testified, assisted, or participated in any manner in any
investigation, proceeding, or hearing under this chapter.’” Id. (quoting Ky. Rev. Stat. § 344.280).
“The requirement that a protected activity be alleged is necessary to state a claim under the KCRA
and therefore, does not heighten the pleading standard or reflect a prima facie evidentiary
standard.” Id. So, to allege “engage[ment] in a protected activity under the KCRA,” a plaintiff
must plead that they “contest[ed] an unlawful employment practice.” Id. “Making abusive
remarks is not illegal under the KCRA, so making a complaint about such actions cannot constitute
protected activity under the KCRA.” Id. (citing Ky. Rev. Stat. § 344.280).
Defendants correctly point out that “none of the issues Plaintiff alleges she complained
about are illegal under the KCRA[.]” [DE 7-1 at 88]. Plaintiff’s allegation that she “contacted a
HR representative of [U.S. Bank] about the reduction in her hours” and told them about her “other
concerns i.e.,” a lack of employee coaching and her “belie[f that] Haverman was after her[,]” [DE
1-1 at 15], does not constitute a protected activity. Krueger, 674 Fed. App’x at 495. Nor does
Plaintiff’s allegation that she told HR about “a negative conversation” Weimer had with Plaintiff’s
coworker, especially where the contents of said conversation were unknown to Plaintiff. [Id. at
18]. Because Plaintiff was unaware of the contents of Weimer’s gossip about her, any information
she could have relayed to HR about said gossip amounts, at most, to a generalized complaint of
“abusive remarks[,]” which “is not illegal under the KCRA[.]” Krueger, 674 Fed. App’x at 495.
The gravamen of Plaintiff’s complaints to HR was her disagreement about management practices
and qualms with her reduced hours. [See DE 1-1 at 20].1 Plaintiff’s response to the Motion
clarifies this point further:
[Plaintiff]’s claims against U.S. Bank extend to both Mr. Haverman and Mr.
Weimer for actions they individually took against [Plaintiff] either based on her age
(e.g. repeatedly discussing retirement options with [Plaintiff] after she confirmed
on more than one occasion that she had no intent to retire); or in retaliation against
[Plaintiff] for reporting a continuous reduction in her work hours to HR.
[DE 10 at 101] (emphasis added). Viewing all of Plaintiff’s allegations in the light most favorable
to her, Plaintiff might have presented a generalized grievance about abusive remarks to HR, which
is not a protected activity. Krueger, 674 Fed. App’x at 495. As a result, Plaintiff has failed to
state a claim under the KCRA. Thus, Defendants’ Motion for Judgment on the Pleadings [DE 7]
Plaintiff alleges that “Haverman and Weimer retaliated against [her] for reporting the inappropriate
behavior and gossip that Weimer attempted to share with” Plaintiff’s coworker. [DE 1-1 at 20] (emphasis
added). “Further, Haverman and Weimer retaliated against [Plaintiff] because of her age and her wish to
continue working rather than retire.” [Id.] (emphasis added). Plaintiff’s allegations make clear that her
communications with HR were about her hours reduction and the gossip incident, generally.
The Court being otherwise sufficiently advised, the Court ORDERS that Defendant
Haverman and Weimer’s Motion for Judgment on the Pleadings [DE 7] is GRANTED. The Clerk
of the Court shall terminate Defendants Haverman and Weimer from this proceeding. The Court
will issue a separate Order for Meeting and Report under Fed. R. Civ. P. 16 and 26.
March 31, 2021
Copies to: Counsel
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