Jones v. Wells Fargo et al
Filing
110
ORDER AND REASONS - IT IS ORDERED that the defendant's Motion for Summary Judgment (Rec. Doc. 33 ) is GRANTED. The plaintiff's claims are hereby dismissed with prejudice. Signed by Judge Martin L.C. Feldman on 9/23/2019. (sa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KIM N. JONES
CIVIL ACTION
v.
NO. 17-8712
WELLS FARGO BANK, N.A.
SECTION "F"
ORDER AND REASONS
Before the Court is Wells Fargo Bank, N.A.’s motion for
summary judgment.
For the reasons that follow, the motion is
GRANTED.
Background
This
Title
VII
employment
discrimination
and
state
law
whistleblower lawsuit arises from a 58-year-old African American
woman’s claim that Wells Fargo wrongfully terminated her after 16
months as a home mortgage consultant. Kim Jones alleges that Wells
Fargo discriminated against her because of her age (58), her race
(African American), and her sex (female) in violation of state and
federal antidiscrimination law.
In addition to asserting wrongful
termination, Jones alleges that she was mistreated because of these
protected categories of age, race, and sex. She also alleges state
law claims in which she seeks to recover for wrongful termination
as
a
whistleblower,
to
recover
negligence.
1
unpaid
commissions,
and
for
From August 14, 2015 until her termination on December 10,
2016, Kim Jones worked for Wells Fargo as a mortgage loan officer.
During her employment, she failed to meet the minimum production
standards Wells Fargo required of mortgage loan officers.
September
2016,
Wells
Fargo
placed
Jones
on
a
In
performance
improvement plan, which set forth specific requirements she had to
meet to remain employed.
She failed to meet them.
In December
2016, her employment was terminated.
Kim Jones was hired on August 13, 2015 to work as a home
mortgage consultant for Wells Fargo Bank at its Metairie, Louisiana
location.
At that time, Maurice Williams, an African-American
male who is about five years older than Jones, managed Wells
Fargo’s Metairie branch.
Williams was responsible for managing
the day to day operations of the Metairie branch; hiring and
training home mortgage consultants; and ensuring that the branch
met
Wells
Fargo’s
market-based
production
interviewed, hired, and supervised Jones.
goals.
Williams
And, he eventually
participated in the collective decision to fire her.
Williams
reported to Area Manager Stephen Cook and Regional Manager Jamie
Klinnert; collectively, the three generally made hiring and firing
decisions regarding home mortgage consultants like Jones.
2
As a loan officer or “home mortgage consultant,” Jones was
responsible for originating residential mortgage loans for Wells
Fargo.
All mortgage consultants must meet minimum production
requirements.
Jones
Acknowledgment,
signed
which
the
provided
Minimum
that
her
Production
Threshold
employment
could
terminated if she did not meet the minimum requirements.
be
Jones
also signed the Minimum Production Volume Standards Application
and Funded agreements, which set forth the production requirements
for home mortgage consultants, requiring that they fund at least
$5.4 million in loan volume after being in the role for 12 months.
During her first three months working as a home mortgage
consultant, Jones was paid an hourly rate.
period,
Jones
received
an
hourly
draw
as
After that interim
an
advance
on
her
commissions or incentive payments, which were determined based on
the loans she closed.
If she did not earn enough commission to
cover her hourly draw, she would carry a deficit, also known as
being “in the hole.” 1
1
Home mortgage consultants are paid an hourly draw against their
commissions. If a home mortgage consultant’s commission earnings
in a month fail to exceed their hourly pay, then their hourly pay
deficit is carried over to the next month. Carrying a deficit is
sometimes referred to as being “in the hole.” The deficit will
carry over until the home mortgage consultant earns sufficient
commissions to eliminate the deficit. A home mortgage consultant
who has a deficit when her employment terminates, however, is not
required to repay the hourly earnings deficit amount.
3
Jones now says that she disagreed with or took issue with
some Wells Fargo processes.
For example, as part of the loan
origination process, Jones alleges that when a loan application
was delayed, Williams on behalf of Wells Fargo ordered her to
contact her clients and have them pay a rate lock fee to preserve
their original, lower interest rate.
Jones says that the delays
were not her customers fault, but Williams nevertheless threatened
to call customers if she refused.
Within the first three months
of her employment, as part of a federal audit, Jones alleges that
she took issue with her manager again; she says she reported that
Williams regularly followed and enforced practices that conflicted
with the Equal Credit Opportunity Act.
Williams, Jones alleges,
supported withholding less desirable loan applications from review
and encouraged review by loan officers who were not trained to
qualify applicants in order to increase the number of approved
applications
Williams’
--
bonus
a
figure
and
Jones
suggests
compensation.
She
is
directly
contends
that
tied
to
Williams
reprimanded her for “throwing him under the bus.”
Jones
struggled
to
meet
the
home
mortgage
consultants’
minimum production requirements.
She first became aware that she
was “in the hole” in April 2016.
By the end of August 2016, Jones
had failed to fund the requisite $5.4 million in loan volume (or
36 purchase units) in the previous 12 months, nor had she funded
4
$1.35 million in the previous three months; she also had a negative
carryover
commission
balance
of
$5,129.37.
As
a
result,
in
September 2016, Williams issued Jones a performance improvement
plan (PIP), effective until November 30, 2016.
The plan mandated
that Jones fund $450,000 in loans each month between September and
November 2016. 2
Jones failed to do so.
On December 6, 2016, Williams emailed Human Resources to
request
a
meeting
because
she
had
to
not
discuss
met
the
performance improvement plan.
terminating
production
Jones’s
employment
requirements
of
the
The next day, Williams and Cook
spoke with Human Resources Consultant Melissa Pritchard.
During
the call, Williams stated that Jones had loans in her pipeline,
but that she was not timely closing the loans.
Williams stated
that Jones was resistant to his coaching and failed to follow his
instructions for structuring and submitting loans.
Cook stated
that the pipeline was meaningless if the loans did not close, and
2
Supervisors had access to more leads than non-supervisors.
Williams distributed leads for potential customers to home
mortgage consultants including Jones.
Williams provided Jones
with leads weekly; upon request, he gave Jones more leads.
In
September 2016, Williams gave Jones access to the leads to which
Williams had access. And in October 2016, Jones learned how to
use the lead tracker system, which allowed Jones to find her own
leads. Jones increased her originations and felt that she had a
sufficient number of leads by October 2016.
5
that Jones was not adhering to Wells Fargo’s application standards
and should not have accepted some of the loan applications.
Jones was out of the office on Friday, December 9, 2016. 3
Williams emailed her and told her that she must report to the
office to attend a meeting that afternoon at 4:00 p.m.
Wondering
why she had to report to the office to attend a meeting on her day
off, Jones contacted Human Resources; Senior Employee Relations
Consultant Glenda Longren took the call.
Jones told Longren that
Williams had told her to report to the office and that she (Jones)
believed Williams had done something “fraudulent” with a loan. 4
Jones also said she realized that her vacation days had been
cancelled in the system.
3
Jones acknowledged that she was on a
Jones testified that her “day off was Friday” but that she was
working from home, working on leads.
4 Jones testified that, in the days leading up to her termination,
there appeared to be some irregularities with a loan she was
handling: the signatures on the loan contract were “scribbled,”
which led the underwriter to request a new contract (but upper
management ended up approving the loan because the underwriter was
on vacation), and Williams had told her that the person who signed
the contract was actually the son of the seller. Jones testified
that she did not know the details. She had also received an
automatic alert that the loan she entered might be a “flip”
transaction. Jones believed the transaction violated Wells Fargo’s
lending guidelines because a “flip” transaction might not be worth
the value of its sale price. (Nevertheless, Jones also testified
that it was not illegal for Wells Fargo to mortgage flipped
property).
Jones says she had notified Williams of the flip
transaction alert, and Williams had led her to believe that the
loan would be denied, but then the loan was actually cleared to
close the next day (a day or two before she was fired).
6
performance improvement plan and that her sales were down, and she
feared that she would be fired once she reported to the office.
That afternoon, Williams notified Jones that her employment
was being terminated because she was “in the hole.”
At that time,
Jones had a negative carryover commission balance of more than
$5,000.
Jones recalled that Williams told her that she was being
terminated because she was either “$9,000” or “$5,000” “in the
hole” but Jones believed that she was only $2,300 in the hole; she
did not know how many loans she had closed in the last three months
before her termination.
Jones asked Williams to call Cook, who
told Jones that she (Jones) was eligible for rehire and she could
always come back.
When asked about commissions for loans that had
yet to close, Jones alleges she was told that -- consistent with
company
policy,
if
the
loans
closed
within
30
days
of
her
termination -- she would receive payment.
Jones submitted a Dispute Resolution Request form on January
3, 2017 and reported that she was unfairly fired after she informed
her manager of concerns regarding a purchase agreement related to
the borrower’s signature and suspicions that it was a “flip”
transaction. 5
5
Notably, Wells Fargo investigated Jones’s claims
In completing the form, Jones wrote: “Unfair termination –
incorrect
compensation
–
retaliation
from
mgr.
–
7
regarding the irregularities of the loan transaction, as well as
Jones’s termination from employment.
Ultimately, Wells Fargo
determined that neither of Jones’s complaints had merit.
Milton Dejesus investigated Jones’s claims regarding the loan
transaction she reported to Longren on December 9.
Jones had
reported that there may have been a “flip” transaction and that a
contract was altered. 6
A “flip” purchase is one in which the buyer
buys a home with the intention of selling the home shortly after
buying it.
Dejesus interviewed Williams, the loan processor, as
well as the underwriter who worked on the transaction. Dejesus
determined that Wells Fargo’s escalation process was properly
followed.
Dejesus concluded that the purchase in question was not
a “flip” transaction and that the contract had not been not
altered.
Dejesus wrote these additional findings:
The consistent feedback and evidence points to a culture
conflict between Kim [Jones] and Wells Fargo, in that
she had her own unique perspective of how things should
operate... There seems to be a consistent theme between
her files as far as how she failed to follow [Wells
Fargo] process or overrule established policy.
miscalculation/misrepresentation of sales practices – favoritism
and unprofessional work environment.”
6 At that time, she did not report any concerns regarding a rate
lock extension fee such as that described in her amended complaint
in this case.
8
Wells Fargo’s Human Resources department investigated Jones’s
allegations
regarding
her
termination.
Amy
Relations Consultant, interviewed Williams.
Blair,
Employee
Williams told Blair
that Jones was getting, but not closing, loans; and that she was
not following Wells Fargo’s processes.
Williams told Blair that
customers were upset because they believed their loans were being
processed, but Jones had not yet entered them into the system.
Williams also explained that after he spoke with Human Resources
and Cook on December 7, 2016, he reviewed the loans in Jones’s
pipeline and determined that most would not close by the end of
the
month
because
too
many
steps
were
still
incomplete. 7
Ultimately, Wells Fargo’s Human Resources department independently
reviewed Jones’s pending loans and determined that Jones was not
owed any additional commission, and that there were no unnecessary
closing delays. 8
7
Jones stated that she had not been paid for each loan she had
closed. But Jones has not identified any loans that closed within
30 days of her termination for which she failed to receive payment.
8
Wells Fargo’s compensation plan provided that terminated
employees like Jones were entitled to receive commission on loans
originated by the outgoing employee that closed within 30 days of
the employee’s termination.
Wells Fargo’s Human Resources
department requested an independent review of Jones’s pending
loans and determined that Jones had been paid on all loans she had
originated and that had closed within 30 days of her termination.
9
In
mid-May
2017,
Jones
filed
with
the
Equal
Employment
Opportunity Commission a charge of discrimination against Wells
Fargo.
On the form, she indicated (by checking boxes) that she
was discriminated against on December 9, 2016 9 based on “race” and
“sex;” in addition to checking the boxes indicating “race” and
“sex” discrimination, Jones checked boxes for “retaliation” and
“other: Equal Pay.” As to the factual “particulars” of the alleged
discrimination, Jones wrote:
I began my employment with Wells Fargo on August 17,
2015 most recently as Home Mortgage Consultant earning
$12.00 per hour. On December 7, 2016, I had a meeting
with Branch Manager, Maurice Williams, to discuss the
goals for 2017. There was no mention of poor performance
plus I was ranked as #2 salesperson.
On December 9,
2016, I was terminated by Branch manager, Maurice
Williams; Area Manager, Steven Cook; and District
Manager, Jamie Kleinart. The company employs over than
[sic] 15 persons.
According to the company, I was discharged for not
meeting minimum production standard sales.
I believe I have been discriminated against because of
my sex, Female; race, Black; and retaliated against in
violation of Title VII of the Civil Rights Act of 1964,
as amended; and my wages in violation of the Equal Pay
Act.
9
Jones indicated that December 9 was both the “earliest” and
“latest” “date(s) [on which] discrimination took place.”
Jones
did not check the box indicating “continuing action.”
10
Other than this allegation in this EEOC Charge, Wells Fargo did
not receive an amended charge or any other documents describing or
explaining the factual basis for Jones’s claim.
On September 6, 2017, Ms. Jones, pro se, sued Wells Fargo,
Stephen
Cook,
Jamie
Klinnert
(improperly
named
as
Jaime
Kleinhart), and Maurice Williams, alleging that she was fired
because of her whistleblowing, refusing to participate in illegal
activity, engaging in protected activity, and because of race,
sex, and age discrimination. After retaining counsel, Ms. Jones
amended her complaint alleging that she was discriminated against
based on her age, sex, and race; that Wells Fargo retaliated
against her because she reported and refused to participate in
mortgage fraud; and that Wells Fargo failed to pay her timely
earnings and commissions.
Specifically, Jones alleges causes of
action in violation of various federal laws including: (1) The Age
Discrimination in Employment Act, 29 U.S.C. § 621; 10 (2) Title VII
disparate treatment based on gender; 11 and (3) Title VII disparate
10
Jones alleges she was discriminated against on the basis of age
and that younger similarly situated employees with similar
production numbers were not terminated.
11 Jones alleges Williams treated her differently than the rest of
the team by not inviting her to team lunches, not celebrating
Jones’s birthday, and yelling and berating Jones in front of other
employees.
11
treatment based on race. 12
experienced
Louisiana
while
state
Jones also alleges the same conduct she
employed
laws
at
including:
Wells
(a)
Fargo
the
violates
Louisiana
various
Employment
Discrimination Law, La.R.S. 23:301, intentional discrimination on
the basis of age, gender, and race; (b) retaliation against a
whistleblower under La.R.S. 23:967; 13 (c) failure to timely pay
commissions under La.R.S. 23:631 and La.R.S. 51:443; and (d)
negligent hiring, retention, and supervision under La. C.C. art.
2315. 14
The plaintiff’s claims against Maurice Williams, Stephen
Cook, and Jamie Klinnert were dismissed without prejudice for
failure to prosecute.
Wells Fargo now moves for summary relief.
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
12
Jones contends she suffered many instances of her loans being
unduly delayed, miscalculated, and cancelled along with refusal to
refer business to her and customer complaints spurred by the
intentional mishandling of Jones’s files by loan processors. Jones
alleges that the racial discrimination was reported to the branch
manager, Williams, but he shrugged off the complaints. Wells Fargo
allegedly created new positions for three Caucasian loan officers,
who had poor production performance, instead of terminating them.
13 Jones alleges that Wells Fargo terminated her in retaliation
when she reported and refused to participate in mortgage fraud and
the Rate Lock Extension Fee Scheme.
14 Jones submits that Wells Fargo failed to fire or discipline
Williams or other supervisors after it knew of the discrimination
and retaliation.
12
judgment as a matter of law.
No genuine dispute of fact exists if
the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine
dispute of fact exists only “if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The mere argued existence of a factual dispute does not defeat
an otherwise properly supported motion. See id. In this regard,
the non-moving party must do more than simply deny the allegations
raised by the moving party. See Donaghey v. Ocean Drilling &
Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he
must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims. Id. Hearsay evidence and
unsworn documents that cannot be presented in a form that would be
admissible
in
evidence
at
trial
do
not
qualify
as
competent
opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819
F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2). “[T]he
nonmoving party cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions, or only a scintilla of
evidence.”
Hathaway
v.
Bazany,
507
F.3d
312,
319
(5th
Cir.
2007)(internal quotation marks and citation omitted). Ultimately,
“[i]f the evidence is merely colorable ... or is not significantly
13
probative,” summary judgment is appropriate. Id. at 249 (citations
omitted);
King
v.
(“Unauthenticated
Dogan,
documents
31
F.3d
are
344,
improper
346
as
(5th
Cir.
summary
1994)
judgment
evidence.”).
Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of her case. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also
McClendon v. United States, 892 F.3d 775, 781 (5th Cir. 2018)(“When
the nonmovant bears the burden of proof at trial, the movant may
merely point to an absence of evidence, thus shifting to the nonmovant the burden of demonstrating by competent summary judgment
proof that there is an issue of material fact warranting trial.”)
In deciding whether a fact issue exists, courts must view the facts
and draw reasonable inferences in the light most favorable to the
non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007).
Although the Court must “resolve factual controversies in favor of
the nonmoving party,” it must do so “only where there is an actual
controversy, that is, when both parties have submitted evidence of
contradictory facts.” Antoine v. First Student, Inc., 713 F.3d
824, 830 (5th Cir. 2013)(internal quotation marks and citation
omitted).
14
In resolving a motion for summary judgment, the Court "may
only
consider
admissible
evidence."
Coleman
v.
Jason
Pharmaceuticals, 540 Fed. Appx. 302, 306 (5th Cir. 2013)(citing
Fed. R. Civ. P. 56(c)(2) and Mersch v. City of Dallas, 207 F.3d
732, 734-35 (5th Cir. 2000)). Federal Rule of Evidence 56(c)(2)
provides that “[a] party may object that the material cited to
support or dispute a fact cannot be presented in a form that would
be admissible in evidence.” Affidavits and declarations used to
support a motion must only “be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant
or
declarant
is
competent
to
testify
on
the
matters
stated.” Fed. R. Civ. P. 56(c)(4).
II.
A.
Title VII of the Civil Rights Act of 1964 was enacted “to
assure equality of employment opportunities and to eliminate those
discriminatory practices and devices which have fostered racially
stratified
citizens.”
(1973).
job
environments
to
the
disadvantage
of
minority
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800
Employers are prohibited from discriminating “against any
individual with respect to his compensation, terms, conditions, or
privileges
of
employment,
because
15
of
such
individual’s
race,
color, religion, sex, or national origin.”
2(a)(1).
42 U.S.C. § 2000e-
Moreover, “an employer may not discriminate against an
employee because the employee has ‘opposed any practice made an
unlawful employment practice ... or because he has made a charge,
testified,
assisted,
or
participated
in
any
manner
in
investigation, proceeding, or hearing’ under Title VII.”
an
See
LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 388 (5th
Cir. 2007)(omission in original)(quoting 42 U.S.C. § 2000e-3).
Although a plaintiff may prove her claim of intentional
discrimination by direct or circumstantial evidence, there is
nothing in the record to indicate that Jones has direct evidence;
accordingly, absent direct evidence of disparate treatment or
retaliation, Jones must prove her case through circumstantial
evidence.
See McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th
Cir. 2007).
Claims of discrimination based on circumstantial evidence are
analyzed in accordance with the familiar McDonnell Douglas burdenshifting regime.
See Caldwell v. KHOU-TV, 850 F.3d 237, 241 (5th
Cir. 2017)(citing McDonnell Douglas, 411 U.S. at 800). This threepart framework first requires the plaintiff to make a prima facie
case of discrimination.
396, 400 (5th Cir. 2016).
Morris v. Town of Independence, 827 F.3d
If the plaintiff makes this showing, a
16
presumption of discrimination arises and the burden of production
shifts to the defendant employer to articulate a legitimate nondiscriminatory
or
employment action.
non-retaliatory
Id.
reason
for
the
adverse
If the defendant satisfies that burden of
production, then the inference of discrimination disappears, and
the burden shifts back to the plaintiff, who must prove by a
preponderance of the evidence that the proffered reason was merely
a pretext for race (or sex or age) discrimination.
Rogers v.
Pearland Ind. Sch. Dist., 827 F.3d 403, 408 (5th Cir. 2016). 15
“A
plaintiff
of
may
establish
pretext
either
through
evidence
disparate treatment or by showing that the employer’s proffered
explanation
is
false
or
‘unworthy
of
credence.’”
Johnson, 788 F.3d 177, 179 (5th Cir. 2015).
Thomas
v.
Notably, the Court
does not assess the credibility of the employer’s explanation.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142
(2000)(explaining
that
the
production, not persuasion).
demonstrate
“both
that
defendant’s
burden
is
one
of
To prove pretext, the plaintiff must
the
reason
was
false,
and
that
Instead of pretext, a plaintiff may seek to establish that the
plaintiff’s
protected
characteristic
or
the
employer’s
discriminatory animus was a motivating factor for the adverse
employment decision. But the plaintiff here has not advanced this
mixed motive argument, ostensibly opting to pursue a singular
theory of pretext.
17
15
discrimination was the real reason.”
St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 515 (2007)(emphasis in original). 16
To establish a prima facie case of employment discrimination,
a plaintiff must establish that she (1) is a member of a protected
class; (2) was qualified for the position; (3) was subject to an
adverse employment action; and (4) was treated less favorably than
a similarly situated employee outside of her protected group under
nearly identical circumstances.
Lee v. Kansas City S. Ry. Co.,
574 F.3d 253, 259 (5th Cir. 2009); Bryan v. McKinsey & Co., Inc.,
375 F.3d 358, 360 (5th Cir. 2004). 17
16
The Age Discrimination in Employment Act prohibits an employer
from firing an employee “because of such individual’s age”. 29
U.S.C. § 623(a)(1). To establish an ADEA claim, a plaintiff must
“prove by a preponderance of the evidence (which may be direct or
circumstantial), that age was the ‘but-for’ cause of the challenged
employer decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,
177-78 (2009).
Although the Supreme Court “has not definitely
decided whether the evidentiary framework of [McDonnell Douglass],
utilized in Title VII cases is appropriate in the ADEA context,”
Gross, 557 U.S. at 175-76 n.2, the Fifth Circuit has applied it
since Gross. See, e.g., Holliday v. Commonwealth Brands, Inc.,
483 Fed. Appx. 917, 921 (5th Cir. 2012); Manaway v. Med. Ctr. of
Southeast Tex., 430 Fed. Appx. 317, 321 (5th Cir. 2011); Moss v.
BMC Software, Inc., 610 F.3d 917, 922-23 (5th Cir. 2010); Jackson
v. Western Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010)
(“[W]e are bound by our circuit precedent applying McDonnell
Douglas to age discrimination cases.”).
17
Similarly, applying McDonnell Douglas to age discrimination
claims, the plaintiff’s prima facie case must show: (1) she was
discharged; (2) she was qualified for the position; (3) she was
within the protected class at the time of the discharge; and (4)
she was either i) replaced by someone outside the protected class,
18
Only ultimate employment decisions such as hiring, granting
leave, discharging, promoting, and compensating constitute adverse
employment actions in the context of Title VII disparate treatment
claims.
Thompson v. City of Waco, 764 F.3d 500, 503-05 (5th Cir.
2014); see also Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 62 (2006)(explaining that the language of Title VII’s
antidiscrimination provision “explicitly limit[s] the scope of
that provision to actions that affect employment or alter the
conditions of the workplace”).
B.
A plaintiff must exhaust her administrative remedies before
pursuing
employment
discrimination
claims
in
federal
court.
Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir.
2002); Melgar v. T.B. Butler Publishing Company, Inc., 931 F.3d
375, 378-79 (5th Cir. 2019)(citations omitted).
This exhaustion
ii) replaced by someone younger, or iii) otherwise discharged
because of her age. Holliday, 483 Fed.Appx. at 921 (citation
omitted).
And, then, the familiar burden-shifting framework
continues: After the employee establishes a prima facie case, the
burden of production shifts to the employer to articulate a
“legitimate,
nondiscriminatory
reason
for
terminating
the
plaintiff.” Id. If the employer articulates a legitimate, nondiscriminatory reason for terminating the employee, the plaintiff
must then rebut the employer’s purported explanation by showing
that the employer’s reason is pretextual. Moss, 610 F.3d at 922.
19
occurs
when
the
complainant
files
a
charge
with
the
Equal
Employment Opportunity Commission, § 2000e-5(e)(1), (f)(1); 29
U.S.C. § 626(d), and then “receives a statutory notice of right to
sue.” Taylor, 296 F.3d at 379.
suit
is
a
This charge-filing prerequisite to
non-jurisdictional
claim-processing
rule
that
“promote[s] the orderly progress of litigation by requiring that
the parties take certain procedural steps at certain specified
times.”
Fort Bend Cnty., Texas v. Davis, 139 S. Ct. 1843, 1849
(2019).
To determine whether a Title VII plaintiff exhausted her
administrative remedies, the Court broadly construes the scope of
an EEOC complaint to advance Title VII’s primary purpose, which
“is to trigger the investigatory and conciliatory procedures of
the EEOC, in an attempt to achieve non-judicial resolution of
employment discrimination claims.”
783,
788-89
(5th
Cir.
Pacheco v. Mineta, 448 F.3d
2006)(citations
omitted).
“[W]hat
is
properly embraced in a review of a Title VII claim,” the Fifth
Circuit has thus instructed, is not confined to the administrative
charge
itself,
but
is
informed
by
“the
scope
of
the
EEOC
investigation which can reasonably be expected to grow out of the
charge of discrimination.”
Id. at 789; Fellows v. Universal
Restaurants, Inc., 701 F.2d 447, 451-52 (5th 1983)(“a cause of
action for...employment discrimination may be based, not only upon
20
the specific complaints made by the employee’s initial EEOC charge,
but also upon any kind of discrimination like or related to the
charge’s
allegations,
limited
only
by
the
scope
of
the
EEOC
investigation that could reasonably be expected to grow out of the
initial charges of discrimination.”); Sanchez v. Standard Brands,
Inc., 431 F.2d 455, 465-467 (5th Cir. 1970)(“[T]he specific words
of the charge of discrimination need not presage with literary
exactitude the judicial pleadings which may follow.”). The factual
statement contained in the charge is “the crucial element.”
Price
v. Southwestern Bell Telephone Co., 687 F.2d 74, 78 (5th Cir.
1982)(citation omitted).
C.
Wells Fargo submits that Jones failed to exhaust any claim
she seeks to advance for wrongful termination based on her age and
that
she
also
mistreatment.
Could
failed
to
exhaust
any
claims
for
general
The Court agrees.
Jones’s
charge
be
discrimination investigation?
expected
to
trigger
an
age
The Court looks beyond Jones’s
mere failure to check the “age” box as a mere technical omission
(see Sanchez, 431 F.2d at 462) and considers the factual statement
Jones wrote to support her EEOC charge.
Unlike the plaintiff in
Sanchez, nowhere in Jones’s charge did she allege any facts that
21
would give rise to an age discrimination claim. Jones mentions sex
and race discrimination as well as unequal pay, but she fails to
state any facts regarding age.
She fails to suggest how her charge
might have put Wells Fargo on notice of any age discrimination
claim.
This
same
mistreatment”
reasoning
claims
termination claims.
which
precludes
are
her
untethered
“discriminatory
to
her
wrongful
Again, the Court scrutinizes the charge to
determine what sort of investigation would be triggered by its
factual narrative.
Jones checked both the “sex” and “race” boxes
in her charge and stated in the “facts” portion of the charge that
she believed that Wells Fargo discriminated against her based on
her race and sex.
The factual narrative and the lone date (the
“date(s) discrimination took place”) she invokes in her charge
refer solely to her termination and to the date of termination.
Jones testified in her deposition that she was excluded from
lunches, her coworkers and supervisors failed to celebrate her
birthday,
and
she
was
called
“baby”
and
by
the
wrong
name.
However, she fails to suggest how these alleged slights fall within
the scope of her EEOC charge.
How an investigation into these
examples of alleged mistreatment could be expected to grow from
the limited narrative presented in her charge is unclear.
Because
the factual summary in her charge failed to contain allegations
22
giving rise to any sort of cumulative mistreatment facts or hostile
work environment claims, any such claims must be dismissed for
failure to exhaust administrative remedies.
Regardless of her failure to exhaust claims relating to age
discrimination
and
general
“mistreatment,”
Wells
Fargo
nevertheless has demonstrated entitlement to judgment as a matter
of law dismissing these claims. 18
As to the general “mistreatment”
claims, if they had been exhausted, they nevertheless fail as a
matter of law. Unlike her claim that she was wrongfully terminated
based on protected characteristics of race and sex, Jones’s claims
of mistreatment fail to implicate Title VII, fail to constitute
adverse employment actions, 19 and otherwise fail to satisfy the
severe
or
pervasive
environment claims.
conduct
test
applicable
to
hostile
work
See Lauderdale v. Texas Dept. of Criminal
Justice, 512 F.3d 157, 163 (5th Cir. 2007)(to show that harassment
or mistreatment affects a term of condition of employment, it must
be “sufficiently severe or pervasive ‘to alter the conditions of
[the
18
victim’s]
employment
and
create
an
abusive
working
Jones’s age discrimination is addressed on the merits below
along with her claims that her employment was terminated based on
other protected characteristics.
19 Adverse employment actions are limited to ultimate employment
decisions such as hiring, granting leave, discharging, promoting,
or compensating. McCoy v. City of Shreveport, 492 F.3d 551, 556
(5th Cir. 2007); Anthony v. Donahoe, 460 Fed.Appx. 399, 403 (5th
Cir. 2012).
23
environment.’”). To be sure, Title VII “is not a ‘general civility
code[.]’” Id. (citation omitted).
That Jones initially lacked
access to sales leads, was called “Teresa” or “Baby” on two or
three occasions, was not included in discussions about sports, was
not invited to lunches, and that her birthday was not celebrated, 20
at most, constitute mere “petty slights, minor annoyances, and
simple lack of good manners.”
See Aryain v. Wal-Mart Stores Tex.
LP, 534 F.3d 473, 485 (5th Cir. 2008)(quoting Burlington Northern
and Santa Fe Railway Co. v. White, 548 U.S. 53, 60, 67 (2006)).
Any Title VII claims based on anecdotal “mistreatment,” divorced
from her termination claim, fail as a matter of law.
III.
Jones alleges violations of the ADEA for age discrimination,
violations of Title VII of the Civil Rights Act of 1964 including
gender and race discrimination, violations of the LEDL for age,
Jones testified that Williams’ wife was named Teresa, that he
called her “baby” a couple times, which offended her “but I hear
other people say baby a lot in New Orleans,” and that Williams
told Jones regarding her relationship with two loan processers,
“you black females have to get along. You guys have to cut that
out.” Jones suggests in conclusory fashion that this is “direct
evidence of discrimination” and that she was insulted that he
suggested she “didn’t get along” with certain people.
Jones
complained in an email to Williams on August 5, 2016 about a loan
processor Jones called Shenea; Jones suggested in the email that
they do not get along and she was being treated unprofessionally
by Shenea.
24
20
gender, and race discrimination, a violation of La. R.S. 23:967
for a whistleblower claim, a violation of La. R.S. 23:631 and
51:443 for untimely payment of commissions, and negligent hiring
retention, and supervision in relation to Wells Fargo’s employees.
Wells Fargo seeks summary judgment in its favor on each claim.
A.
The Court first takes up whether Wells Fargo is entitled to
summary judgment dismissing Jones’s wrongful termination claims
based on discrimination.
The record shows that it is.
Even assuming Jones makes out a prima facie case of age, race,
or
sex
discrimination,
it
is
undisputed
that
Wells
Fargo
articulated a legitimate nondiscriminatory reason for terminating
her
employment:
requirements.
Jones
Having
failed
satisfied
to
its
meet
minimum
burden
of
production
production
in
articulating this reason for termination, the burden shifts back
to Jones, who must show by a preponderance of the evidence that
this proffered reason was merely a pretext for discrimination.
Jones fails to identify a genuine dispute as to any material fact
concerning pretext.
indicating
that
She fails to identify evidence in the record
Wells
explanation is false.
Fargo’s
proffered
non-discriminatory
(Indeed, she does not dispute that she
failed to meet minimum production requirements).
25
She likewise
fails to identify evidence indicating that discrimination was the
real reason her employment was terminated.
The
plaintiff
argues
that
Wells
Fargo’s
reason
for
termination -- that she failed to meet performance standards -was
merely
a
pretext
and
that
the
plaintiff
was
actually
“discriminated against...and excluded from the same opportunities
as others making it impossible for her to meet her performance
standards and keep her job.”
But she fails to point to any
evidence in the summary judgment record that supports a finding
of, or creates a factual dispute concerning, pretext.
She fails
to invoke similarly situated individuals who were younger than
her, male, or non-African American who failed to meet production
standards and yet were treated more favorably.
Jones’s argument that Wells Fargo’s nondiscriminatory reason
for her termination was a mere pretext is based on unsubstantiated
assertions and conjecture.
any
nearly
identically
Jones has not produced evidence that
situated
home
treated more favorably than she was.
mortgage
consultant
was
At any given time in her
various submissions, she purports to identify 10 or more possible
comparators (and has continued to request additional discovery so
that she can seek “potentially more” comparators even beyond the
Metairie branch and beyond those supervised by Williams).
26
But
none of the proffered comparators create a genuine dispute about
any material fact concerning pretext; rather, each supports Wells
Fargo’s submission that it merely enforced its home mortgage
consultant
performance
standards
objectively
across-the-board.
Consider these alleged comparators:
•
•
•
•
•
•
•
Carl Osborne, a younger male home mortgage consultant, was
terminated by Williams for failure to meet minimum production
requirements on July 18, 2016.
Jonathan Lily’s employment ended almost exactly on his 12month employment anniversary; Wells Fargo did not have the
opportunity to issue Lily a performance improvement plan or
address his future performance.
After Russell Flowers had worked at the Metairie branch for
six months, Williams was replaced as branch manager and no
longer managed Flowers. Jones does not contend that Flowers’
production after 12 months was comparable or lower than her
12-month production level.
Scarlett Alaniz was a non-African American home mortgage
consultant whom Jones submits was terminated for failing to
meet minimum production requirements. Jones does not explain
how Alaniz’s situation is relevant, material, or how it
supports her claims in the case.
Nor does she cite to
evidence relating to Alaniz’s production levels.
Erica Poole, a home mortgage consultant, was younger than
Jones and non-African American. Poole was also placed on a
PIP by Williams for failure to meet minimum production
requirements. The PIP was issued to Poole on December 21,
2016 and was scheduled to be in effect through February 28,
2017, but Poole resigned from Wells Fargo before the PIP
ended.
Debbie Hebert was a home mortgage consultant like Jones. She
was not placed on a PIP or terminated. However, Jones has
failed to show that she was nearly identical as a comparator
because, according to the undisputed portion of the summary
judgment
record,
Hebert
met
the
minimum
production
requirements for home mortgage consultants.
Rebecca McGilvray was placed on a PIP in March 2016 for
failure to meet minimum production requirements. The summary
27
•
•
•
judgment record shows that, unlike Jones, McGilvray’s
production increased and she met the PIP requirements.
Elizabeth Poole began working for Wells Fargo as a home
mortgage consultant on February 10, 2016, but she was fired
on July 19, 2016 for failure to meet minimum production
requirements.
Marilyn “Ann” Sheffield voluntarily resigned from her
employment with Wells Fargo in November 2015.
Joe Bellows, who was 38 years old and a non-African American,
was a retail sales supervisor before he was demoted to a home
mortgage consultant position. Williams issued Bellows a PIP
because he failed to meet minimum production requirements in
May 2016. Bellows’ production improved, and he met the terms
of the May 2016 PIP.
In the latter part of 2016, his
production decreased, and Bellows was issued another PIP in
January 2017.
Jones’s
kitchen-sink,
potential
comparators
scattershot
undermines,
approach
rather
to
than
supports,
discrimination claim or attempt to prove pretext.
that
some
comparators
did
not
requirements but were not fired.
meet
identifying
minimum
her
Jones claims
performance
But there is no dispute that
that these individuals’ tenures as home mortgage consultants was
short-lived and in the other capacities in which they worked, they
were not required to abide by the same performance standards:
•
•
Brock Ryder worked as a home mortgage consultant for a few
months, but then he worked in a different position (as a home
mortgage assistant until December 2016) and, therefore, was
not required to meet the minimum performance requirements of
a home mortgage consultant.
Ryder became a junior home
mortgage consultant in December 2016 and resigned one month
later.
Mike Grout was a home mortgage consultant for the first three
months of his employment until October 2015, when he became
a junior home mortgage consultant until February 2016, when
he resigned. For the majority of his employment with Wells
28
Fargo, Grout was not a home mortgage consultant, and he was
therefore not required to meet the same requirements as Jones.
Regarding the state of the record concerning Ryder and Grout,
Jones takes issue with one of the defendant’s affiants, Amy Blair.
Blair, Wells Fargo’s Employee Relations Manager, stated (and Jones
does not dispute) that Brock Ryder was a home mortgage associate
(not consultant) during most of Jones’s employment.
Jones notes,
however, that Blair fails to state in her sworn declaration that
Brock Ryder was a home mortgage consultant for a few months before
he became a home mortgage associate.
Jones also takes issue with
Blair’s statement that Mike Grout was a home mortgage associate
when, in fact, he was a home mortgage consultant before he became
a junior home mortgage consultant in October 2015 and then he
eventually
resigned
in
February
2016.
Wells
Fargo
moves
to
withdraw the single incorrect statement in Blair’s declaration
(the first sentence of paragraph 10); the request is granted. 21
Regardless, Jones fails to offer any contested material facts and
she fails to suggest how either Grout or Ryder were treated more
Jones also takes issue with Blair’s sworn declaration insofar as
Blair “fails to mention Scarlett Alaniz.”
Blair’s declaration,
Wells Fargo explains, addressed those 10 employees Jones
identified in her deposition as those treated more favorably under
similar circumstances.
Jones did not identify Alaniz in her
deposition.
And for good reason: as discussed, Alaniz was not
treated more favorably -- Alaniz’s employment was terminated for
failing to meet minimum production requirements. Just like Jones.
29
21
favorably as nearly identical comparators.
Both worked briefly as
home mortgage consultants before being demoted to home mortgage
associate
and
junior
home
mortgage
consultant.
The
summary
judgment record shows that, during the brief time that either may
have been similarly situated as Jones, neither were treated more
favorably, having been demoted after being in the home mortgage
consultant position for just a few months. 22
A position Jones
occupied for 16 months despite the record reflecting that she
failed to meet production requirements.
In short, Jones identifies no factual controversy in the
record to raise a material issue as to whether her termination was
based on any of the three protected characteristics she invokes.
The summary judgment record shows that home mortgage consultants
22
Insofar as Jones now seeks to present yet another theory of
disparate treatment, a failure to demote theory (i.e., that she
should have been demoted to home mortgage assistant before being
fired), any such claim is barred.
Jones fails to point to any
record evidence to indicate that she told Wells Fargo that she
wanted to be demoted to work as an administrative assistant (home
mortgage assistant) or a junior home mortgage consultant. Nor did
she mention or include any facts regarding a failure to demote
claim to the EEOC. Having failed to show how a failure to demote
claim could reasonably be expected to grow out of her charge of
discrimination, the Court declines to consider this theory on the
merits. Jones also (now) appears to challenge, as a discriminatory
practice, her placement on a performance improvement plan. But she
does not dispute that the decision to do so was based on her
failure to meet objective production requirements applied to all
home mortgage consultants.
Jones admitted in her deposition
testimony that she did not meet her 12-month loan volume
requirement.
30
were
treated
consistently
regardless
of
their
race
or
other
demographic characteristics; that objective performance criteria
drove Wells Fargo’s decision to terminate (and issue PIPs to)
underperforming
home
mortgage
consultants.
Given
that
the
plaintiff has failed to point to record evidence in support of her
suggestion
that
she
was
treated
differently
than
nearly
identically situated employees who were younger or male or of a
different
race
than
her,
the
Court
declines
to
indulge
the
plaintiff’s argumentative tangential distortions by addressing
each and every “potential” comparator or by permitting a fishing
expedition into other home mortgage consultants supervised by
different managers in other Wells Fargo offices.
Jones has failed to identify any evidence indicating that
she was replaced by someone outside of her race, gender, or age.
And she fails to identify any similarly situated comparator who
was treated more favorably.
In fact, the summary judgment record
is replete with examples of Wells Fargo employees of varying ages,
genders, and races, being disciplined or terminated for failing to
meet
the
company-wide
“[u]nsubstantiated
production
assertions,
requirements.
improbable
Jones’s
inferences,
and
unsupported speculation are not sufficient to defeat a motion for
summary judgment.”
541 (5th Cir. 2003).
See Brown v. City of Houston, 337 F.3d 539,
Because Jones has failed to demonstrate that
31
Wells Fargo’s reason for terminating her was false and she fails
to demonstrate that her termination had any connection to her race,
sex, or age, Wells Fargo is entitled to summary relief dismissing
her Title VII (and identical state discrimination law) claims.
In addition to failing to identify any similarly situated
comparators who were younger and non-African American and treated
more favorably, thereby failing to prove or create a fact issue on
pretext, Jones fails to rebut the same actor inference. The record
also shows that Jones was hired and, 16 months later, fired by
Williams, an African American who is five years older than Jones. 23
On this record, Wells Fargo urges the Court to apply the “same
actor inference,” which is “a presumption that animus was not
present where the same actor responsible for the adverse employment
action either hired or promoted the employee at issue.”
Spears v.
Patterson UTI Drilling Co., 337 Fed.Appx. 416, 421-22 (5th Cir.
2009); Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir.
1996)(approving
application
of
same
actor
inference
in
age
discrimination case), abrogated on other grounds by Reeves v.
23
Jones does not dispute that Williams interviewed Jones and hired
her as a home mortgage consultant. It is likewise undisputed that
the decision to terminate Jones’s employment was unanimous; that
decision was made collectively by Williams, Jamie Klinnert, and
Steve Cook.
Williams testified that he participated in the
decision to terminate Jones, the decision was unanimous, and that
“[e]motionally, I didn’t [want to fire Jones,] but with all the
facts and the numbers, we had to.”
32
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 134 (2000); Corley
v. Louisiana ex rel. Div. of Admin., Office of Risk Mgmt., 816 F.
Supp. 2d 297, 318 (M.D. La. 2011), aff’d, 498 Fed.Appx. 448 (5th
Cir. 2012)(holding that plaintiff could not establish prima facie
case that race was a motivating factor in her termination where
the same supervisor who hired her was also involved in the decision
to terminate her employment).
“While evidence of [same actor]
circumstances is relevant in determining whether discrimination
occurred,” the Fifth Circuit has “decline[d] to establish a rule
that
no
inference
circumstances.”
(5th Cir. 1996).
of
discrimination
could
arise
under
such
Haun v. Ideal Indust., Inc., 81 F.3d 541, 546
In other words, the same actor inference is
neither mandatory nor irrebuttable.
Nevertheless, where, as here,
the non-moving party has otherwise failed to raise a genuine
dispute as to a material fact, the same actor inference simply
reinforces the defendant’s submission with respect to Jones’s age
and race discrimination claims. 24
24
Courts have recognized that the inference is stronger when (1)
there is close temporal proximity between the favorable employment
action and the adverse action, and (2) the decision maker is in
the same protected category as the plaintiff. See Proud v. Stone,
945 F.2d 796, 797 (4th Cir. 1991)(When termination “occurs within
a relatively short time span following the hiring, a strong
inference exists that discrimination was not a determining factor
for the adverse action taken by the employer.”); Skinner v. Brown,
951 F. Supp. 1307, 1320 (S.D. Tex. 1996), aff’d 134 F.3d 368 (5th
Cir. 1997)(where the decision maker was in the same protected
33
The record shows that Wells Fargo is entitled to summary
judgment on Jones’s claim of wrongful termination based on age,
sex, and race.
Even if she makes out a prima facie case, she
failed to identify a fact issue as to pretext concerning Wells
Fargo’s legitimate, non-discriminatory reason for termination.
Notably, she does not dispute nor is there any dispute in the
record that she failed to meet minimum production requirements.
Thus, she has failed to show that Wells Fargo’s proffered reason
for termination was false.
Likewise, she fails to show that
discrimination based on her age, sex, or race was the real reason
she was fired: there is no evidence in the record supporting her
allegation of disparate treatment based on her age, sex, or race.
The summary judgment record shows that Jones was fired because she
never met the objective performance measures required of all
mortgage
loan
consultants
at
Wells
Fargo.
Summary
judgment
category as the plaintiff, the court noted “[t]hese facts enhance
the inference that no discriminatory motive existed.”); Chapman v.
Dallas Morning News, L.P., No. 06-2211, 2008 WL 2185389, at *9
(N.D. Tex. May 27, 2008)(noting that the plaintiff and the
decisionmaker are in the same protected category, and that the
plaintiff’s purported comparator “evidence appears to even
undermine her claims”). Both of these factors are present here.
34
dismissing all of Jones’s employment discrimination claims is
warranted. 25
The Court now turns to consider her state law claims, taking
up first her claim in which she alleges that she was fired for
whistleblowing.
B.
Wells
Fargo
next
contends
that
Jones’s
vague
and
unsubstantiated allegations are insufficient to oppose its motion
for summary judgment dismissing her whistleblower claim under
La.R.S. 23:967.
Jones’s whistleblower claim is predicated on her
belief that Wells Fargo terminated Jones when she refused to
participate in “mortgage fraud” and a “rate lock extension fee
scheme” or because she reported such conduct.
Wells Fargo submits
that her whistleblower claim fails as a matter of law.
The Court
agrees.
Louisiana’s Whistleblower Statute provides, in part:
A. An employer shall not take reprisal against an employee
who in good faith, and after advising the employer of the
violation of the law:
25
Jones
failed
to
exhaust
her
age
discrimination
and
“mistreatment” claims and she likewise fails to demonstrate how
her age, sex, or race played a part in Wells Fargo’s decision to
terminate her as a home mortgage consultant. Jones’s claims under
the Louisiana Employment Discrimination Law fail for the same
reasons as her federal claims.
35
(1)
Discloses or threatens to disclose a workplace act or
practice that is in violation of state law.
(2)
Provides information to or testifies before any public
body conducting investigation, hearing, or inquiry
into any violation of law.
(3)
Objects to or refuses to participate in an employment
act or practice that is in violation of law.
La. R.S. 23:967. To prevail, Jones must establish that (1) Wells
Fargo violated the law through a prohibited workplace act or
practice; (2) she advised Wells Fargo of the violation; (3) she
then
refused
to
participate
in
the
prohibited
practice
or
threatened to disclose the practice; and (4) she was fired as a
result of her refusal to participate in the unlawful practice or
threat to disclose the practice.
See Hale v. Touro Infirmary, 886
So. 2d 1210, 1216 (La. App. 4 Cir.
11/3/04).
Notably, to prevail,
then, Jones must show, among other things, “that [Wells Fargo]
engaged in workplace conduct constituting an actual violation of
state law,” and that she notified Wells Fargo of the state law
violation and threatened to disclose it.
See Williams v. Hosp.
Servs. Dist. Of W. Feliciana Parish, Louisiana, 250 F. Supp. 3d
90, 94-95 (M.D. La. 2017)(quoting Encalarde v. New Orleans Ctr.
for Creative Arts/Riverfront, 158 So. 3d 826 (La. 2015)). Failure
to put forth evidence to satisfy any of these elements must result
in a summary judgment in favor of Wells Fargo.
36
Summary
warranted.
judgment
in
Wells
Fargo’s
favor
is
patently
Jones testified that she has no personal knowledge of
any violation of state law by Wells Fargo; she never complained
about an actual violation, nor did she refuse to engage in illegal
conduct.
Although
connection
with
she
what
invokes
she
mused
the
talisman
could
be
of
“fraud”
in
irregularities
in
processes, including the “scribbled” flip transaction contract and
the rate lock extension fees, she admitted that none of the
transactions that she personally encountered actually violated
state law.
In argument, she suggests that she “put...in writing”
her complaint to Williams, and also that she “told him face to
face” “about her issues” with the rate lock scheme, which she
testified she believed “violated something.”
The emails Jones
invokes, however, mention no violation of state law and appear to
only address Jones’s dispute with another employee named Shenea,
who said aloud (allegedly about Jones) “some people can’t read” or
“some people are really [dumb or stupid].” 26
26
Although in her
In an email on August 5, 2016, Jones wrote to Williams requesting
a new processing assignment because Shenea “chastise[d] me” and
was unprofessional. Jones also suggested that “the customer should
not have to pay extension fees we could avoid and it hurts my
loyalty scores.”
Jones stated that she “didn’t like” that her
customers might have to pay “more than what [I] promised” and that
they “should not have to pay an extension fee due to the previous
[processor]” failing timely to complete a processing task. Jones
has not identified any customer who was forced to pay a rate lock
extension fee, or any Louisiana law that would be violated if such
37
complaint
she
alleges
in
conclusory
fashion
that
she
“had
a
reasonable belief” that Wells Fargo violated state and federal
laws, nowhere does she identify actual violations of state law,
nor does she point to record evidence indicating that she advised
Wells Fargo of those violations. Jones testified in her deposition
that she was concerned that her customers would give her poor
reviews or not refer business to her if they incurred extension
fees, not that she believed charging such fees violated state law.
Absent any evidence on these threshold elements of her state
whistleblower claim (that state law was violated and that she
advised Wells Fargo of the violation), her claim fails as a matter
of law.
Jones’s claim for retaliation as a whistleblower under
La. R.S. 23:967 must be dismissed.
C.
Wells Fargo next moves for summary judgment dismissing her
unpaid commissions claim.
Jones has failed to identify any loans
she originated that closed within 30 days of her termination for
a fee had been charged. Her whistleblower claim fails. See Wilson
v. Tregre, 787 F.3d 322, 327 (5th Cir. 2015)(citations omitted,
emphasis added)(“To qualify for protection under the Louisiana
Whistleblower Statute, a plaintiff must prove that [her] employer
committed an actual violation of state law.”).
38
which she was not paid. 27
Therefore, summary judgment dismissing
this “claim” is warranted.
D.
Jones alleges that Wells Fargo is liable in tort for negligent
hiring, retention, and supervision under Louisiana Civil Code
article 2315.
But a plaintiff cannot recover for negligence based
upon the same conduct underlying an employment discrimination
claim.
Jones v. Children’s Hosp., 58 F. Supp. 3d 656, 669-70 (E.D.
La. 2014).
Indeed, as another Section of this Court observed:
Louisiana’s worker’s compensation statute bars any
negligence cause of action that plaintiff might
otherwise have against her former employer [and]
violations of anti-discrimination laws do not of
themselves give rise to general tort liability, although
they might meet the definition of ‘fault’ under Civil
Code article 2315. To hold otherwise would abrogate the
legislative remedial scheme for redressing employment
discrimination.
Weathers v. Marshalls of MA, Inc., No. 02-717, 2002 WL 1770927, at
*3 (E.D. La. July 31, 2002)(Engelhardt, J.)(citations omitted).
27
Jones argues that she believes that “Wells [Fargo] deliberately
held her loans so that commissions would not have to be paid.”
But she offers no evidence in support of this assertion. Although
she generally disputes whether she should have been paid on some
unidentified loans, she fails to identify a genuine dispute as to
any material fact on this issue. It is undisputed that Wells Fargo
researched each loan transaction originated by Jones before her
termination and produced the findings from that investigation.
Jones fails to identify how much compensation she is owed and for
which loans.
39
The plaintiff’s negligence claims based on the same conduct forming
her employment discrimination claims must be dismissed. 28
Accordingly, for the foregoing reasons, IT IS ORDERED that
the defendant’s motion for summary judgment is GRANTED. 29
The
plaintiff’s claims are hereby dismissed with prejudice.
New Orleans, Louisiana, September __, 2019
_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
Jones appears to take issue with this principle of law and
attempts to circumvent it by concluding that her negligence claims
are beyond the scope of her employment discrimination claims. But
when she attempts to explain how this is so, she simply argues
that her supervisor admitted to using cocaine. (As if the Court
may on summary judgment invoke a formula: supervisor’s cocaine
usage plus alleged wrongful termination of employee equals
negligence under Louisiana law).
Jones suggests that Williams
shared this information concerning his cocaine use with other
employees and perhaps Wells Fargo was aware of this and did not
correct it.
(Her “argument” such as it is in support of any
negligence claim that could arise from this “fact” stops there).
Plaintiff’s counsel’s unsupported and extraneous cherry-picking is
the sort of confounding and frivolous “argument” (or personal
attack) that 28 U.S.C. § 1927 is intended to dissuade.
29 Her request to reopen discovery to continue searching for
potential comparators is denied as moot.
40
28
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