Wisz v. Wells Fargo et al

Filing 54

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 07/02/2014. (bas, Deputy Clerk) (c/m on 7/2/14 bca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DAWN WISZ,

:

Plaintiff,

:

v.

:

WELLS FARGO, et al.,

:

Defendants.

Civil Action No. GLR-12-2957

:
MEMORANDUM OPINION

THIS MATTER is before the Court on Defendants’ Motions for
Summary Judgment, (ECF No. 48), and Plaintiff’s Motion for Summary
Judgment, (ECF No. 52).

Pro Se Plaintiff Dawn Wisz brings this

action against her former employer, Wells Fargo, and her first-line
supervisor
failure

Renee

to

Bender

accommodate,

(collectively
retaliation,

“Wells

Fargo”),

wrongful

alleging

discharge,

and

hostile work environment under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 (2012) and Rehabilitation Act, 29 U.S.C.
§ 794(a) (2012), and interference under the Family and Medical
Leave Act (“FMLA”), 29 U.S.C. § 2615(a)(2) (2012).
The
necessary.

issues

have

been

fully

briefed

See Local Rule 105.6 (D.Md. 2011).

and

no

hearing

is

For the reasons set

forth below, Wisz’s Motion for Summary Judgment will be denied and
Wells Fargo’s Motion for Summary Judgment will be granted.

BACKGROUND1

I.
Prior

to

commencing

her

employment

at

Wells

Fargo,

Wisz

suffered a serious injury to her back and neck in a car accident
that occurred in December 2008.

As a result, Wisz suffered from

periodic

varying

migraine

headaches

intensity,

and

duration.

additional

ailments.

of

She

Wisz

began

also

degrees

suffered

employment

in

from

with

frequency,

a

number

of

Fargo

on

Wells

September 8, 2009, and held the position of Collector II.

She was

later transferred to the loss mitigation group where she held the
position of Loan Support Specialist.
Wisz held the position of Loan Support Specialist at the time
of her termination and during the relevant time period.

The Loan

Support Specialist role is a customer service position in which
Wisz was responsible for answering customer calls.
position

requires

daily

contact

with

customers,

Because the

strong

customer

service skills and proper handling of customer calls are essential
functions of the position.
In April 2010, Wisz received a performance review for the
period comprising of her first four months of employment in 2009.
The performance review resulted in an overall year-end rating of
one

on

a

scale

of

five.

Subsequent

to

receiving

her

poor

performance review, Wisz mishandled two telephone calls on October
22, 2010.

Both of these calls were reviewed by an independent

1
Unless otherwise noted, the following facts are taken from
the parties’ briefings on the instant motions, and are viewed in
the light most favorable to the nonmoving party.
2

quality assurance individual unfamiliar with Wisz.

On a quality

assurance scale from zero to one-hundred percent, Wisz received a
score

for

both

calls

below

sixty

percent.

As

a

result,

Wisz

received a written warning concerning her mishandling of the calls.
On March 10, 2011, Wisz mishandled another call, during which she
engaged in the same poor customer service that was addressed in the
written

warning.

The

March

10,

2011

call

was

reviewed

by

a

different independent quality assurance individual, also unfamiliar
with Wisz.

On a quality assurance scale from zero to one-hundred

percent, Wisz received a score of forty-one percent.
Wisz was terminated on April 1, 2011.
Wisz

was

terminated

performance.

as

a

result

of

her

Wells Fargo contends
poor

customer

service

Wisz, however, alleges she was wrongfully discharged

in retaliation for protected activity and as a result of disability
discrimination.

Although Wisz concedes that the calls for which

she was disciplined included some minor infractions, she contends
that the infractions did not warrant termination but that she was
being

subjected

to

unwelcome

harassment

by

Bender

due

to

her

disability.
Additionally,

during

her

employment

at

Wells

Fargo,

Wisz

exercised her right to take FMLA leave on several occasions.

Wisz

does not dispute that she was provided FMLA leave, exhausted her
allowable

leave,

absences.

Wisz alleges, however, that Wells Fargo interfered with

her

leave

FMLA

and

received

because

it

no

improperly
3

discipline

for

calculated

FMLA-related

the

date

of

expiration

for

absences.

leave

and

failed

to

pay

her

for

her

FMLA

Wisz further alleges Wells Fargo refused to engage in an

interactive
required

her

process

by

the

to
ADA

determine
and

that

suitable
she

was

accommodations
refused

as

requested

accommodations.
Both parties now seek summary judgment in their favor on all
counts.

The Motions are ripe for disposition.
II. DISCUSSION

A. Standard of Review
Under Federal Rule of Civil Procedure 56, the Court must grant
summary judgment if the moving party demonstrates that there is no
genuine issue as to any material fact, and that the moving party is
entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(a).

In reviewing a motion for summary judgment, the Court views
the

facts

in

a

light

most

favorable

to

the

non-moving

party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing
Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970)).

Once a

motion for summary judgment is properly made and supported, the
opposing party has the burden of showing that a genuine dispute
exists.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586-87 (1986).

“[T]he mere existence of some alleged

factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.”
U.S. at 247-48.
4

Anderson, 477

A “material fact” is a fact that might affect the outcome of a
party’s case.

Id. at 248; see also JKC Holding Co. v. Wash. Sports

Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citing HoovenLewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001)).
fact

is

considered

to

be

“material”

is

Whether a

determined

by

the

substantive law, and “[o]nly disputes over facts that might affect
the

outcome

of

the

suit

under

the

governing

preclude the entry of summary judgment.”

law

will

properly

Anderson, 477 U.S. at

248; Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001).
A “genuine” issue concerning a “material” fact arises when the
evidence

is

sufficient

to

allow

a

reasonable

verdict in the nonmoving party’s favor.

jury

to

return

a

Anderson, 477 U.S. at 248.

Rule 56(c) requires the nonmoving party to go beyond the pleadings
and

by

its

own

affidavits,

or

by

the

depositions,

answers

to

interrogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial.
Catrett, 477 U.S. 317, 324 (1986).

Celotex Corp. v.

The nonmoving party “cannot

create a genuine issue of material fact through mere speculation or
the building of one inference upon another.”

Beale v. Hardy, 769

F.2d 213, 214 (4th Cir. 1985) (quoting Barwick v. Celotex Corp.,
736 F.2d 946, 963 (4th Cir.1984).

5

B. Analysis
When analyzing claims under the ADA2, courts apply the proof
scheme articulated in McDonnell Douglas Corporation v. Green, 411
U.S. 792 (1973).

See Hill v. Lockheed Martin Logistics Mgmt.,

Inc., 354 F.3d 277, 284-86 (4th Cir. 2004) (employing the McDonnell
Douglas

framework

principally

on

to

analyze

circumstantial

a

discrimination

evidence).

Under

claim
the

based

McDonnell

Douglas standard, Wisz must first establish a prima facie case of
discrimination.

Id. at 285.

If she meets this burden, Wells Fargo

can rebut the presumption of discrimination raised by Wisz’s prima
facie case by establishing a legitimate, nondiscriminatory reason
for her termination.

Id.

If Wells Fargo succeeds in doing so,

Wisz must then “prove by a preponderance of the evidence that the
legitimate

reasons

offered

by

[Wells

Fargo]

were

reasons, but were a pretext for discrimination.”
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

not

its

true

Tex. Dep’t of
Wisz “bears

the ultimate burden of proving that [Wells Fargo] intentionally
discriminated against her.”

Evans v. Techs. Applications & Serv.

Co., 80 F.3d 954, 959 (4th Cir. 1996) (citing Burdine, 450 U.S. at
253).

2
“[W]hether suit is filed . . . under the Rehabilitation Act
or . . . under the ADA, the substantive standards for determining
liability are the same.” Myers v. Hose, 50 F.3d 278, 281 (4th Cir.
1995).
6

1. Wrongful discharge under the ADA and Rehabilitation Act
Wisz has failed to establish a prima facie case for disability
discrimination.

To do so, she must show that: (1) “she was a

qualified individual with a disability; (2) she was discharged; (3)
she was fulfilling her employer’s legitimate expectations at the
time of discharge; and (4) the circumstances of her discharge raise
a

reasonable

inference

of

unlawful

discrimination.”

Rohan

v.

Networks Presentations LLC, 375 F.3d 266, 272 n.9 (4th Cir. 2004)
(quoting Haulbrook v. Michelin N. Am., Inc., 252 F.3d 696, 702 (4th
Cir. 2001)) (internal quotation marks omitted).
demonstrate

that

she

was

meeting

expectations

under

the

third

prong,

Wells
or

Wisz has failed to
Fargo’s

that

there

legitimate
was

a

nexus

between her disability and her termination under the forth prong.
Wisz

was

terminated

customer calls.

as

a

result

of

her

mishandling

three

The Loan Support Specialist is responsible for

answering customer calls.

As a result, good customer service and

proper handling of customer calls are essential elements of the
Loan Support Specialist position.

Subsequent to her poor 2009

performance evaluation, (see Defs.’ Mot. Summ. J. Ex. B, Attach.
11, ECF No. 48-3), Wisz mishandled two customer service calls on
October 22, 2010, for which she received a written warning, (see
Defs.’ Mot. Summ. J. Ex. B, Attach. 12).
Specifically,
unprofessional
tone,

and

discussing

Wisz

spoke

with

discourteous
personal

manner,

issues,
7

the

customers

including

interrupting,

using
and

in
a

an
poor

placing

a

customer on hold without warning and while he was speaking.

(See

Defs.’ Mot. Summ. J. Ex. D, Attach. 1, ECF No. 48-5); (see also
Defs.’ Mot. Summ. J. Ex. C, Attach. 1, ECF No. 48-4) (customer
email complaining about the mishandling of his customer service
call).

Despite

the

written

warning,

on

March

10,

2011,

Wisz

mishandled a third call in which she engaged in the same poor
customer service skills that were exhibited during the October 2010
calls.

(See Defs.’ Mot. Summ. J. Ex. C, Attach. 2, ECF No. 48-4).

Thus, Wisz cannot establish that she was fulfilling Wells Fargo’s
legitimate expectations at the time of her discharge.
Wisz

cannot

establish

the

fourth

prong

of

her

prima

Further,
face

case

because she has presented no evidence of a causal nexus between her
alleged

disability

and

Wells

Fargo’s

decision

to

terminate

her

employment.
Even assuming arguendo that Wisz can establish a prima facie
case

of

discriminatory

legitimate,

termination,

nondiscriminatory

reason

Wells
for

Fargo
her

articulated
termination

a
-

mishandling of the customer calls – and Wisz has failed to carry
her burden of demonstrating that the legitimate reasons offered
were a pretext for discrimination.
“[Wells Fargo] is not required to persuade [the Court] that
the

proffered

motivation

for

reason
[its]

[for

Wisz’s

decision.

termination]

[It]

must

was

merely

the

actual

articulate

a

justification that is legally sufficient to justify a judgment in
its favor.”

Mereish v. Walker, 359 F.3d 330, 335 (4th Cir. 2004)
8

(citation omitted) (quoting Burdine, 450 U.S. at 254-55) (internal
quotation marks omitted).

Moreover, “when an employer articulates

a reason for discharging the plaintiff not forbidden by law, it is
not [the Court’s] province to decide whether the reason was wise,
fair, or even correct . . . .”

DeJarnette v. Corning Inc., 133

F.3d 293, 299 (4th Cir. 1998) (quoting Giannopoulos v. Brach &
Brock Confections, Inc., 109 F.3d 406, 410-11 (7th Cir. 1997)).
The

Court

concludes

that

termination

of

Wisz

constitutes

a

legitimate,

termination.

–

Wells
the

Fargo’s

stated

mishandling

of

nondiscriminatory

reason

customer

for
calls

reason

for

its
her

Thus, the burden shifts to Wisz to offer evidence

that the articulated reason for her termination was pretextual.
Wisz does not dispute the content or mishandling of the three
calls for which she was terminated, only that her infractions did
not

warrant

however,

to

termination.
question

performance.

an

It

is

employer’s

not

in

the

perception

Court’s
of

an

purview,

employee’s

See Evans v. Techs. Applications & Serv. Co., 80 F.3d

954, 960-61 (4th Cir. 1996); see also E.E.O.C. v. Clay Printing
Co., 955 F.2d 936, 946 (4th Cir. 1992) (explaining that it is not
the

“function

of

this

business decisions.”).
was

disciplined

were

[C]ourt

to

second

guess

the

wisdom

of

Further, all of the calls for which Wisz
reviewed

by

independent

quality

assurance

personnel who were not aware of or involved in any issues related
to Wisz’s disability, or accommodation and FMLA leave requests.

9

Wisz has offered no evidence that would demonstrate that the
stated reasons for her termination should be disbelieved or that
the

true

reason

for

her

termination

was

discriminatory.

Accordingly, Wells Fargo is entitled to summary judgment in its
favor as to Wisz’s disability discrimination claims.
2. Hostile Work Environment under the ADA and
Rehabilitation Act
Wisz has failed to establish a prima facie case for a
hostile work environment claim.

To do so, she must show that:

(1) [she] is a qualified individual with a disability;
(2) [she] was subjected to unwelcome harassment; (3) the
harassment was based on [her] disability; (4) the
harassment was sufficiently severe or pervasive to alter
a term, condition, or privilege of employment; and (5)
some factual basis exists to impute liability for the
harassment to the employer.
Fox v. Gen. Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001).

Wisz

has failed to establish that she is a qualified individual under
the

first

prong,

or

that

she

suffered

severe

or

pervasive

harassment under the forth prong.
First,
individual

a

qualified

who,

with

or

individual
without

with

a

reasonable

disability

is

“an

accommodation,

can

perform the essential functions of the employment position that
such individual holds or desires.”

42 U.S.C. § 12111(8) (2012).

To resolve whether a person is a qualified individual, a court must
consider

whether

that

person

is

able

to

perform

the

essential

functions of the job in question, and if not, whether the person
could do the job with reasonable accommodation. Tyndall v. Nat’l
10

Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994) (citing
Chandler v. City of Dallas, 2 F.3d 1385, 1393–94 (5th Cir. 1993)).
For the reasons discussed above, the Court concludes that Wisz is
unable

to

perform

the

essential

Support Specialist at Wells Fargo.

functions

required

of

a

Loan

Further, Wisz has failed to

identify any accommodation that would have allowed her to perform
the essential functions.

Thus, Wisz cannot establish the first

prong of her prima facie case.
Next, to establish the fourth prong of a hostile environment
claim, Wisz must demonstrate that the harassment she experienced
was both subjectively and objectively hostile.

Fox, 247 F.3d at

178.

to

“Factors

to

be

considered

with

respect

the

objective

component include ‘the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes
with

an

employee’s

work

performance.’”

Id.

(quoting

Walton

v.

Mental Health Ass’n. of Se. Pa., 168 F.3d 661, 667 (3d Cir. 1999)).
Wisz

testified

that

she

felt

she

was

being

harassed

by

Bender

because “she would make smart remarks all the time” and “then [she
was] constantly turning around and . . . writing me up for anything
. . . .”

(Wisz Dep. 53:10-14, April 1, 2013, ECF No. 48-3).

Wisz

has failed to put forth sufficient evidence from which a reasonable
person could conclude that the alleged harassment was sufficiently
frequent,

severe,

physically

ability to perform her job.

harmful,

interfered

with

her

Thus, Wisz cannot establish the fourth
11

or

prong of her prima facie case. Accordingly, Wells Fargo is entitled
to

summary

judgment

in

its

favor

as

to

Wisz’s

hostile

work

environment claim.
3. Failure to Accommodate under the ADA and Rehabilitation Act
Wisz has failed to establish a prima facie case for failure to
accommodate.

To do so, she must show that: (1) “‘[s]he was an

individual who had a disability within the meaning of the statute;
(2) that the [employer] had notice of [her] disability; (3) that
with

reasonable

functions
refused

of

to

accommodation

the

make

position
such

.

[she]
.

.;

could
and

accommodations.’

perform

(4)
”

that

Wilson

the
the

v.

essential
[employer]

Dollar

Gen.

Corp., 717 F.3d 337, 345 (4th Cir. 2013) (quoting Rhoads v. Fed.
Deposit

Ins.

Corp.,

257

F.3d

(alteration in the original).

373,

387

n.11

(4th

Cir.

2001)

Wisz has failed to establish that

she could perform the essential functions of her position with or
without a reasonable accommodation under the first and third prong,
or that she requested an accommodation that was not provided or in
the process of being provided at the time of her termination under
the fourth prong.
First, for the reasons discussed above, the Court concludes
that Wisz is unable to perform the essential functions required of
a Loan Support Specialist at Wells Fargo.
to

identify

any

accommodation

that

perform the essential functions.

Further, Wisz has failed

would

allowed

her

to

Thus, Wisz cannot establish the

first or third prong of her prima facie case.
12

have

Second,
deposition

although

not

testimony

accommodations

identified

in

her

pleadings,

identifies

number

the

including

a
to

move

ability

of

Wisz’s

requested

around,

additional

break time, additional time off, a new chair, and an ergonomic work
station.

(Wisz

Dep.

68:18-71:10).

While

Wisz

disputes

the

accessibility of her placement to the bathroom, she admits that
Wells Fargo moved her work station so that she was closer to the
bathroom,

gave

her

additional

break

time,

and

granted

additional time off despite having exhausted her FMLA leave.
Dep. 78:8-16, 217:11-221:14).

her
(Wisz

With respect to her request for a

new chair and an ergonomic work station, Wisz testified that after
presenting a note from her doctor establishing the need for the
ergonomic accommodation, Wells Fargo scheduled an ergonomic review
of her workplace.

(Wisz Dep. 71:11-75-4).

Wisz, however, began a

prolonged absence prior to the ergonomic review being completed and
lasting through the termination of her employment. (Wisz Dep. 75:510).

Thus, Wisz has failed to identify a requested accommodation

that was not provided or in the process of being provided at the
time of her termination.

Accordingly, Wisz cannot establish the

fourth prong of her prima facie case.
Even assuming arguendo Wisz could establish a prima facie
case for failure to accommodate, the point becomes moot because
Wells Fargo articulated a legitimate, nondiscriminatory reason for
her termination and Wisz cannot sufficiently demonstrate pretext
for the same reasons she could not make that showing with respect
13

to her discrimination claim.
to

summary

judgment

in

Accordingly, Wells Fargo is entitled

its

favor

as

to

Wisz’s

failure

to

accommodate claim.
4. Retaliation under the ADA and Rehabilitation Act
Wisz

has

retaliation.

failed

to

establish

a

prima

facie

case

for

To do so, she must show that: (1) that she engaged in

a protected activity; (2) that an adverse employment action was
taken

against

her;

and

(3)

that

there

between the first two elements.”3

was

a

causal

connection

Dowe v. Total Action Against

Poverty in Roanoke Valley, 145 F.3d 653, 656 (4th Cir. 1998).

Wisz

has failed to establish that the relevant decision-makers at Wells
Fargo were aware that she filed a complaint with the EEOC under the
third prong.
To

establish

the

necessary

causal

connection

between

her

filing a complaint with the EEOC and her termination Wisz must
establish

that

she

protected activity.

was

terminated

because

she

engaged

in

that

Wells Fargo’s knowledge that Wisz filed a

complaint with the EEOC is, therefore, “absolutely necessary to
establish the third element of the prima facie case.”
Wisz

asserts

termination

of

her

only

that

she

employment.

called

(See

the

Compl.

EEOC
at

2,

Id. at 657.
prior
ECF

to

the

No.

1).

During her deposition testimony, however, she admits she cannot

3
“Because the ADA echoes and expressly refers to Title VII,
and because the two statutes have the same purpose-the prohibition
of illegal discrimination in employment-courts have routinely used
Title VII precedent in ADA cases.” Fox v. Gen. Motors Corp., 247
F.3d 169, 176 (4th Cir. 2001).
14

remember whether she told Ms. Bender that she called the EEOC.
(Wisz Dep. 65:16 - 66:20). Ms. Bender and Mr. Pellicot, the two
individuals who participated in the decision to terminate Wisz’s
employment, testified that they were not aware of Wisz’s call to
the EEOC.

(See Defs.’ Mot. Summ. J. Ex. C [“Bender V.S.”], at 4,

ECF No. 48-4); (see also Defs.’ Mot. Summ. J. Ex. D [“Pellicot
V.S.”], at 4, ECF No. 48-5).

Wisz has failed to produce any

evidence to dispute this testimony or establish that any other
relevant

decision-maker

with

respect

knowledge of her call to the EEOC.

to

her

termination

had

Thus, Wisz cannot establish the

third prong of her prima facie case.
Even assuming arguendo Wisz could establish a prima facie case
of

retaliation,

articulated

a

the

point

legitimate,

becomes

moot

because

nondiscriminatory

Wells

reason

Fargo

for

her

termination and Wisz cannot sufficiently demonstrate pretext for
the same reasons she could not make that showing with respect to
her discrimination claim.

Accordingly, Wells Fargo is entitled to

summary judgment in its favor as to Wisz’s retaliation claim.
5. Interference under the FMLA
Finally, Wisz argues Wells Fargo interfered with her exercise
of FMLA by inaccurately tracking her available leave time.

The

Court disagrees.
It is unlawful under the FMLA for an employer “to interfere
with, restrain, or deny the exercise of or the attempt to exercise
any right provided” by the Act.

29 U.S.C. § 2615(a)(1) (2012).
15

To

sustain a cause of action under the FMLA, an employee must show
both

that

her

rights

prejudice as a result.

were

obstructed

and

that

she

suffered

See Ragsdale v. Wolverine World Wide, Inc.,

535 U.S. 81, 89 (2002) (discussing what an employee must prove to
establish a violation of the FMLA).
that

Wells

Fargo’s

inaccurate

Here, Wisz does not allege

tracking

of

her

render her unable to exercise her FMLA leave.
220:5-221:14).

FMLA

leave

time

(Wisz Dep. 85:12-17,

Having exhausted her FMLA leave, having been given

additional leave beyond that required under FMLA, and acknowledging
no discipline occurred related to her leave beyond that required
under FMLA, Wisz cannot demonstrate that she was prejudiced by
Wells Fargo’s failure to accurately track her available leave time
and, thus, cannot establish an FMLA interference claim premised on
the same.
Wisz also alleges Wells Fargo violated the FMLA because she
was not paid during her leave. (Compl. at 2).

The FMLA, however,

does not require that employees be paid while they are on leave. 29
C.F.R.

§

825.100

(“The

[FMLA]

allows

eligible

employees

of

a

covered employer to take job-protected, unpaid leave. . . .”); see
also

29

leave.”).

C.F.R.

§

825.207(a)

(“Generally,

FMLA

leave

is

unpaid

Accordingly, Wells Fargo is entitled to summary judgment

in its favor as to Wisz’s claim for interference with leave under
FMLA.

16

III. CONCLUSION
For the reasons given above, Wells Fargo’s Motion for Summary
Judgment, (ECF No. 48), is GRANTED, and Wisz’s Motion for Summary
Judgment, (ECF No. 52), is DENIED.

A separate Order will follow.

Entered this 2nd day of July, 2014

/s/
_____________________________
George L. Russell, III
United States District Judge

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