Sanford v. Quicken Loans

Filing 58

Order Granting Defendant's 31 Motion for Summary Judgment. Signed by District Judge Avern Cohn. (SCha)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARK SANFORD,
Plaintiff,
v.

Case No. 13-11929
HON. AVERN COHN

QUICKEN LOANS,
Defendant.
______________________________________/
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT (Doc. 31)
I. INTRODUCTION
This is an employment discrimination case. Plaintiff Mark Sanford (Sanford) is
suing Defendant Quicken Loans (Quicken), his former employer, for discriminating
against him and ultimately terminating him because of his disability (dyslexia) under the
Americans With Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., and the Persons
With Disabilities Civil Rights Act (PWDCRA), M.C.L. § 37.1101, et seq. In addition,
Sanford alleges discrimination based on his age (47-years-old) under the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq. and the ElliotLarsen Civil Rights Act (ELCRA), M.C.L. § 37.2101, et seq. Sanford’s complaint is in
eight counts:
Count I:
Count II:
Count III:
Count IV:
Count V:
Count VI:

ADA—Disability Discrimination–Failure to Accommodate
ADA—Disability Discrimination–Termination
ADA—Disability Discrimination–Hostile Work Environment
PWDCRA—Disability Discrimination–Failure to Accommodate
PWDCRA—Disability Discrimination–Termination
PWDCRA—Hostile Work Environment
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Count VII: ADEA—Age Discrimination
Count VIII: ELCRA—Age Discrimination
In November 2013, after Quicken filed a motion for partial summary judgment,
the parties stipulated to the dismissal with prejudice of Sanford’s state law claims
(Counts IV, V, VI, and VIII) (Doc. 19). On September 17, 2014, the parties stipulated to
the dismissal with prejudice of Sanford’s hostile environment claim and age
discrimination claims (Counts III and VII) (Doc. 41). Thus, the only remaining claims are
for failure to accommodate under the ADA (Count I) and for wrongful termination under
the ADA (Count II).
Now before the Court is Quicken’s Motion for Summary Judgment on the
remaining claims (Doc. 31). In addition, Quicken has moved to exclude testimony by
Sanford’s expert witness, school psychologist Kelly Elliott (Doc. 41). For the reasons
that follow, Quicken’s Motion for Summary Judgment (Doc. 31) is GRANTED. Because
the motion has been granted for reasons unrelated to Sanford’s psychological
evaluation, the Court need not consider Quicken’s Motion to Exclude Testimony of
Plaintiff’s Expert (Doc. 44).
II. BACKGROUND
The facts set forth below are taken from the Joint Statement of Facts for
Defendant’s Motion for Summary Judgment (Doc. 55), as supplemented by references
to the record.1

Because Sanford claims that Quicken wrongfully denied him

On November 19, 2014, the Court held a hearing, intending to hear argument on
these motions. However, because the parties had failed to submit a joint statement of
material facts, and because their separate statements of material facts were
argumentative and contained significant distortions of the record, the Court directed the
parties to submit an amended statement of facts, a response, and a joint submission.
(See Doc. 50).
1

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accommodation and wrongfully terminated him because of his disability, the facts
related to each claim are set forth below.
A. Sanford’s Disability
As a crucial element of his case, Sanford says he is dyslexic and therefore
“disabled” under the ADA.
1.
To establish that he is dyslexic, Sanford provided the Court with a psychological
evaluation by Dr. Diane Barnard from February 1975, while Sanford was an elementary
student in the Grosse Pointe school district. Dr. Barnard’s evaluation states that the
school had monitored Sanford since 1971, when it came to the school’s attention that
Sanford was slow to grasp directions and had difficulty with reversals, or the reversing
of a letter’s appearance or of the order of letters within a word. After diagnostic testing
and examination, Sanford was held back in the second grade. In 1975, while in the fifth
grade, Dr. Barnard found that Sanford had a deficiency in reading skills. Dr. Barnard
administered a number of diagnostic tests and concluded that Sanford had a disability in
learning, and recommended the use of a reading specialist and/or teacher consultant.
However, the evaluation did not diagnose Sanford with dyslexia, per se.
2.
In July 2014, Sanford met with school psychologist Kelly Elliott, who evaluated
Sanford’s disability status. In her evaluation, Elliott relied on three sources of data to
conclude that Sanford has dyslexia: (1) the Complaint; (2) statements by Sanford during
two interviews totaling 2 ½ hours; and (3) the 1975 psychological evaluation by Dr.
Barnard. During the interviews, Elliott asked Sanford how his disability affected him, the

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ways he accommodated his disability from childhood, and the impact of his disability on
his work performance. Elliott admits that during the interviews she accepted Sanford’s
statements as true because she had no reason to doubt them, and that she had no
independent verification of the statements. Elliott conducted no diagnostic tests of her
own during the evaluation. Based on the above, Elliott concluded, “It is this examiner’s
professional opinion that if Sanford were a student in today’s schools, his deficits would
satisfy special education criteria as a student with a Learning Disability (also commonly
called dyslexia) in the area of language arts.”
B. Sanford’s Employment History / Request for Accommodation
In April 1995, Quicken hired Sanford as a loan officer. During the course of his
employment, Sanford was promoted several times, first to Senior Mortgage Banker,
then to Executive Mortgage Banker, and finally to the highest level of President’s Club
Mortgage Banker.
From 1996 through 2008, Quicken provided assistants to its high producing
mortgage bankers. As a high-volume producer, Sanford was provided with an assistant
during most of that period.

However, between 2007 and 2008, Quicken began

eliminating assistants to mortgage bankers due to the transition to a web-based
mortgage process and the 2008 economic downturn.

By June 2008, Quicken had

eliminated assistants completely.
In January 2010, Sanford received an “Opportunity Letter,” a form of workplace
reprimand, regarding his failure to satisfy the loan volume required for his position as
President’s Club Banker during the prior 60 days.

Sanford explains that due to a

substantially decreased loan volume during the economic downturn, he was able to

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perform his job without an assistant; however, after the market started to pick up in
2009 Sanford’s work increased and, because of his dyslexia, he had difficulty
performing a high volume of clerical work.
Sanford also says that after receiving this Opportunity Letter, another of his
supervisors, Andrew Miller, told Sanford that he noticed reversals and clerical errors in
Sanford’s work, and that he would try to get him an assistant to help increase his
production numbers.

Miller, however, denies that Sanford ever had problems with

transposing numbers or inputting information into a computer; rather, Miller says that
Sanford was “resistant” to using computers. (Doc. 38-38, Miller Dep. at 86)
On September 3, 2010, Sanford was given another Opportunity Letter because
of his failure to reach volume requirements during May, June and July 2010. He was
demoted from the highest level, President’s Club Banker, to the second highest level,
Executive Mortgage Banker. However, he could regain President’s Club Banker status
if he met the requisite loan volume during the next several months.
After Quicken advised him of this demotion in September 2010, Sanford told
Quicken for the first time that he had dyslexia, and stated that he required an assistant
to meet the numbers associated with the President’s Club Banker position level. This
request was denied. However, during August, September, and October 2010, Sanford’s
loan volume had again increased, exceeding the level required for President’s Club
Banker status.

Sanford worked without an assistant during these months, until his

termination on October 29, 2010.2

Therefore, the relevant period for Sanford’s

Sanford claims that his increased volume during these months was due to “coworkers and certain managers” acting as his assistant. However, there is no support for
the contention that he received assistance during, but not prior, to this period.
2

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accommodation claim is roughly two months, September and October 2010.
C. Sanford’s Employment History / Termination
As part of its quality control and customer service functions, Quicken has an
internal process to identify mortgage bankers’ inappropriate behavior on loans. When
such behavior is identified, it may result in coaching sessions and/or corrective actions.
In April 2009, Sanford received an Opportunity Letter regarding three discrete incidents
of inappropriate behavior. In August 2010, Sanford received two additional Opportunity
Letters regarding a client’s claim that he had misrepresented Quicken’s deposit policy,
and another client’s claim that he lied to the client about closing costs.
In 2010, Sanford began working with clients Kelly and Jody Sizemore.

On

October 26, 2010, Mrs. Sizemore complained to Quicken that Sanford had not returned
her calls and voicemails. The complaint was referred to Laura Kreder of the Quicken’s
Client Relations team. Her investigation revealed that despite three voice messages left
by Mrs. Sizemore, Sanford failed to return the call from his Quicken telephone or from
his personal telephone.3 Kreder also reviewed the recorded calls between Sanford and
the Sizemores, and noted that on October 27, Sanford spoke to Sizemore’s realtor,
saying that he could not complete the loan because the Sizemores “got him in hot water
with [human resources] because he didn’t return their call in 3-seconds, and now he has
to deal with that.” Kreder reported that Sanford later spoke with Mr. Sizemore and
“berated” him for the no-call complaint, and implied that he could not work on the loan
because of it. Kreder noted that Sanford’s tone was “inappropriate” and was acting like

Sanford says that he returned the Sizemore’s phone calls on October 19, 2010
and October 21, 2010 from his home number, but that he was terminated before he
could provide these records to the Client Relations team. However, the phone records
he cites do not support this statement.
3

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it was Mr. Sizemore’s fault that the loan was not going to close. Kreder summarized, “I
can honestly say I am sick to my stomach after reviewing everything. This is one of
those situations where I am not sure a [second] chance is in order.” (Doc. 32, Ex. 15)
On October 28, Sanford again called Mr. Sizemore. Sanford asked Mr. Sizemore
to call Thomas Dempsey, Sanford’s supervisor at the time, withdrawing the no-call
complaint and explaining that Sanford had returned all of his calls and answered all of
his questions. When Mr. Sizemore refused, Sanford got upset, called him an “a--hole,”
and threatened to walk away from the loan unless Mr. Sizemore “got him off the hook.”
(Doc. 32, Ex. 16). Mr. Sizemore immediately called Dempsey. Dempsey asked Mr.
Sizemore to submit a written complaint, which he promptly did.
The complaint was then forwarded to Daniel Majewski, Quicken’s Vice President
of Human Resources, who called Mr. Sizemore to confirm his account of Sanford’s
conduct. Majewski reported Sizemore’s complaint to William Emerson, Quicken’s Chief
Executive Officer, who made the decision to terminate Sanford. Emerson explained in
his deposition, “Mr. Sanford had basically coerced his client into trying to get them to
rescind this call complaint . . . . Profanity used towards this client. All unprofessional
things . . . that we will not tolerate in an organization on how we communicate with the
client.”

Justifying his decision to terminate Sanford, Emerson also noted Sanford’s

propensity and reputation for “bullying people.” (Doc. 32, Ex. 3) Emerson did not know
at the time that Sanford claimed to have dyslexia.
III. LEGAL STANDARD
The summary judgment standard of review under Fed. R. Civ. P. 56 is well
known and not repeated here. Ultimately a district court must determine whether the

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record as a whole presents a genuine issue of material fact drawing “all justifiable
inferences in the light most favorable to the non-moving party.” Hager v. Pike Cnty. Bd.
of Ed., 286 F.3d 366, 370 (6th Cir. 2002).
IV. ANALYSIS
A. Count I: Failure to Accommodate
Quicken argues that Sanford cannot establish a failure to accommodate claim.
To constitute a prima facie case for “failure to accommodate,” Sanford must
demonstrate: (1) he has a disability under the ADA; (2) he was “otherwise qualified” to
perform the job requirements, with or without reasonable accommodation; (3) he
proposed a specific, objectively reasonable accommodation; and (4) Quicken Loans
failed to make reasonable accommodation for his disability. Smith v. Ameritech, 129
F.3d 857, 866-68 (6th Cir. 1997).
1.
Quicken challenges Sanford’s claim on two grounds, arguing (1) that Sanford is
not disabled under the ADA, and (2) that Sanford cannot show that he requested, but
was not provided, a reasonable accommodation. Assuming, arguendo, that Sanford is
disabled under the ADA, his claim nevertheless fails because he cannot demonstrate
that he requested a reasonable accommodation. Because Quicken’s second argument
is dispositive, the Court will not address whether Sanford is disabled under the ADA.
2.
To begin, a plaintiff claiming a failure to accommodate “bears the initial burden of
proposing an accommodation and showing that that accommodation is objectively
reasonable.” Cassidy v. Detroit Edison Co., 138 F.3d 629, 633 (6th Cir. 1998) (quoting
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Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1183 (6th Cir. 1996)). “In order for
an accommodation to be reasonable, it should be necessary in light of the plaintiff’s
known physical limitations.” Johnson v. Cleveland City Sch. Dist., 344 F. App’x 104,
111 (6th Cir. 2009). A court may grant summary judgment where a plaintiff fails to
demonstrate that a requested accommodation is reasonable. Cassidy, 138 F.3d at 635.
Further, courts in this circuit have denied reasonable accommodation claims
where a plaintiff is able to perform the essential functions of the job without any
accommodation. See Black v. Wayne Center, 225 F.3d 658, 2000 WL 1033026, *3 (6th
Cir. Jul.17, 2000) (“[W]here Plaintiff is able to perform the job without accommodation,
plaintiff

cannot

demonstrate

the

objective

reasonableness

of

any

desired

accommodation.”); Obnamia v. Shinseki, 569 F. App’x 443, 445 (6th Cir. 2014)
(affirming summary judgment where the plaintiff was able to successfully perform her
job without accommodation, and suggesting that this was a relevant factor weighing
against the reasonableness of an accommodation).
3.
Here, the record demonstrates that Sanford was able to perform his job without
an assistant, both before and after he advised Quicken that he had dyslexia. Between
the time Sanford’s assistant was eliminated in 2008 and when his numbers fell in 2010,
Sanford performed his job duties and maintained his President’s Club Banker position
without an assistant. Sanford explains that due to a decreased loan volume during the
economic downturn, he was able to perform his job without an assistant, and that, after
the market started to pick up in 2009 his work increased and, he had difficulty
performing the high volume of clerical work because of his dyslexia. However, this

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claim is undermined by the fact that, after Sanford was demoted and he advised
Quicken of his dyslexia, his numbers again increased to the level required for his prior
President’s Club Banker, without the benefit of an assistant.4

Aside from several

months of low production in 2010, the record shows that Sanford reached and was able
to maintain the highest level among mortgage bankers for nearly two years without the
benefit of an assistant.
4.
Finally, Quicken argues that Sanford’s request for an assistant to help with
clerical work is not a reasonable accommodation. Indeed, courts in this circuit have
held that the duty to accommodate does not require employers to provide full-time
assistants. Steward v. Chrysler, 415 F. App’x 632, 642 (6th Cir. 2011); Bratten v. SSI
Servs., Inc., 185 F.3d 625, 632 (6th Cir. 1999) (“Courts have continuously found that
employers are not required to assign existing employees or hire new employees to
perform function or duties of a disabled employee’s job which the employee cannot
perform by virtue of his disability.”) In response, Sanford states that he is not requesting
a full-time assistant, but rather an assistant to help with the “marginal duty” of preparing
and reviewing paperwork. However, this argument is unavailing. Especially as here,
where Quicken eliminated the use of personal assistants in 2008 and transitioned to a
web-based mortgage process, requiring Quicken to assign an existing employee to help

Sanford’s now admits that his numbers were sufficient for the President’s Club
Bankers position during these months, but claims that he was assisted by co-workers
and managers during this period. As noted previously, this statement lacks support in
the record. See infra note 2. In addition, Sanford’s previous counter statement of
material facts denies this, and states that Sanford’s numbers during this period were
half of what was required. (Doc. 38 at 9) Such inconsistencies in Sanford’s admissions
severely undermine the substantiality of his claims.

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with Sanford’s essential job functions does not constitute a reasonable accommodation.
B. Count II: Termination
Next, Quicken argues that Sanford cannot establish a wrongful termination claim.
To prove a prima facie case of discrimination, Sanford must establish: (1) his
membership in a protected group; (2) his qualification for the job in question; (3) that he
suffered an adverse employment action; and (4) that he was replaced by someone
outside his protected class or was treated less favorably than a similarly situated
individual outside of his protected class. Swierkiewicz v. Sorema N.A., 534 U.S. 506,
510 (2002); Johnson v. University of Cincinnati, 215 F.3d 561, 572-73 (6th Cir. 2000).
If Sanford can establish a prima facie case, Quicken Loans has the opportunity to
offer a legitimate, nondiscriminatory reason for his termination. Johnson, 215 F.3d at
573 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Sanford
then must prove Quicken Loans’ reason was a pretext for discrimination.

Id.

To

demonstrate that a nondiscriminatory reason for his termination is pretextual, Sanford
must show “‘(1) that the proffered reasons had no basis in fact, (2) that the proffered
reasons did not actually motivate his [discharge], or (3) that they were insufficient to
motivate discharge.’” Chattman v. Toho Tenax America, Inc., 686 F.3d 339, 349 (6th
Cir. 2012) (emphasis in original) (quoting Manzer v. Diamond Shamrock Chems. Co.,
29 F.3d 1078, 1084 (6th Cir. 1994)).
1.
First, Quicken argues that Sanford cannot establish that he was treated less
favorably than non-disabled individuals.

To sustain this burden, Sanford must

“demonstrate[] that a comparable non-protected person was treated better.” Ercegovich

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v. Goodyear Tire & Rubber Co., 154 F.3d 344, 350 (6th Cir. 1998). “To satisfy the
similarly-situated requirement, a plaintiff must demonstrate that the comparable
employee is similar ‘in all of the relevant aspects.’”

Martin v. Toledo Cardiology

Consultants, Inc., 548 F.3d 405, 412 (6th Cir. 2008) (quoting Ercegovich, 154 F.3d at
352).
Sanford notes several other non-disabled employees who had been investigated
for customer service violations and unprofessional conduct but were not terminated.
Indeed, Quicken concedes that several of these employees had been the subject of
repeated no-call complaints, misrepresentations and miscommunications regarding
credit reports and appraisal issues (Doc. 38, Ex. 27), failure to ask the correct
application questions (Doc. 38, Ex. 28, Doc. 38, Ex. 29), becoming defensive with a
client and threatening to “blacklist” the client (Doc. 38, Ex. 14). However, Quicken is
correct that these incidents are relatively “benign” compared to Sanford’s conduct.
Unlike these other employees, Sanford had received several prior complaints and had a
bully’s reputation; he “berated” Mr. Sizemore and cursed at him; he asked Mr. Sizemore
to retract the no-call complaint in order to impede the internal Quicken investigation; and
he threatened that he would walk away from the loan if Mr. Sizemore did not call
Dempsey to “get him off the hook.”
Sanford’s conduct is substantially more egregious than that of the other, nondisabled employees who were not terminated. For this reason, the other employees are
not similarly situated to Sanford “in all of the relevant aspects.”

Sanford cannot

demonstrate that he was treated less favorably than any similarly situated comparator
without a disability. In addition, there is no evidence, and Sanford does not argue, that

12 

someone without a disability replaced him. Thus, Sanford fails to establish a prima
facie case of wrongful termination.
2.
In addition, Quicken argues that it had a legitimate nondiscriminatory reason for
Sanford’s termination—specifically, his treatment of the Sizemores. Quicken notes that
Sanford (1) failed to return the Sizemores’ calls; (2) “berated” Mr. Sizemore for the nocall complaint; (3) threatened not to work on the Sizemore’s loan unless they withdrew
their complaint; and (4) cursed at Mr. Sizemore.
Sanford argues that these reasons are pretextual. First, he suggests that the
Sizemores are lying about his threats, and notes that there is no recorded evidence that
he actually threatened Mr. Sizemore, other than Mr. Sizemore’s written complaint and
his statements to Dempsey and Majewski. This argument is without merit.
Next, Sanford says that Quicken did not interview him as part of their
investigation before terminating him; therefore, Quicken failed to make a reasonably
informed decision and could not have honestly believed that Sanford actually
threatened the Sizemores. However, all that is required is that Quicken reasonably
believed that Mr. Sizemore’s complaint was credible. Chen v. Dow Chem. Co., 580
F.3d 394, 401 (6th Cir. 2009). “For an employer to avoid a finding that its claimed
nondiscriminatory reason was pretextual, the employer ‘must be able to establish its
reasonable reliance on the particularized facts that were before it at the time the
decision was made.’” Brooks v. Davey Tree Expert Company, 478 Fed. Appx. 934, 942
(6th Cir 2012) (quoting Wright v. Murray Guard, Inc., 455 F.3d 702, 707 (6th Cir. 2006)).
Here, between the telephone logs, recorded phone calls, Sizemore’s statements

13 

to Dempsey, and Sizemore’s written complaint, Quicken has demonstrated that it
reasonably relied on the Sizemore’s claims.

Sanford cannot establish that these

reasons are merely pretextual, and his wrongful termination claim therefore fails to state
a genuine issue of material fact.
V. CONCLUSION
For the reasons stated above, Quicken’s Motion for Summary Judgment has
been granted. The case is DISMISSED.
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: February 18, 2015

I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, February 18, 2015, by electronic and/or ordinary mail.

S/Sakne Chami
Case Manager, [phone]

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