Rimmer v. The Cleveland State Bank

Filing 56

MEMORANDUM OPINION re 55 Order on Motion for Summary Judgment. Signed by Neal B. Biggers on 05/15/2013. (jlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DELTA DIVISION

KIERRE T. RIMMER

PLAINTIFF

v.

CASE NO. 2:11CV256-B-A

THE CLEVELAND STATE BANK
DEFENDANT
______________________________________________________________________________
MEMORANDUM OPINION
Presently before the court is Defendant Cleveland State Bank’s motion for summary
judgment [40]. Upon due consideration of the parties’ filings and supporting and opposing
authority, the court is ready to rule.
Kierre Rimmer was hired as a teller by The Cleveland State Bank on June 7, 2010, after
interviewing with George Steen, bank president, and Brian Bishop, a bank vice-president.
Rimmer, an African-American male, worked at the bank’s drive-thru window along with two
other full-time tellers, Rebekah Robinson and Lei-Anne Vestal, both white females. All three
tellers were directly supervised by Anita Sauerwein, a white female. Over his nine month tenure,
Rimmer overdrafted his personal account with the bank on 61 occasions, in violation of bank
policy for employees. For the months of January and February, 2011, Rimmer’s drawer
shortages totaled $2,226.65.
On February 23, 2011, it was determined that $2,000.00 in the form of twenty $100 bills
was missing from the vault of the bank’s drive-thru. The three full-time tellers were the only
employees with access to the vault on the date of the loss. All tellers’ personal accounts were
inspected for suspicious activity. Rimmer’s personal account revealed that on March 7, 2011, he
deposited $1,870.00 in the form of eighteen $100 bills, three $20 bills, and one $10 bill. He then

wrote a check for $2,000.00. Bishop considered this activity to be suspicious since it transpired
after the vault shortage.
On March 31, 2011, Bishop and other bank officers met with Rimmer to discuss the
suspicious transaction as well as his issues with overdrafts and drawer shortages. When Bishop
inquired as to the source of Rimmer’s funds for the $1,870.00 transaction, Rimmer stated the
money must have been obtained from his tax refund, but Bishop pointed out to him a separate
transaction in Rimmer’s account which deposited the tax refund. Rimmer then speculated that
the money was the proceeds of a t-shirt business Rimmer owned along with his wife. At the
conclusion of this meeting, Bishop informed Rimmer not to return to work because the bank had
lost confidence in his trustworthiness and ability to perform his job satisfactorily.
Rimmer immediately discussed the termination with his wife who reminded him that he
sold a vehicle for $2,700.00 on March 4, 2011. When Rimmer turned in his bank keys to
Sauerwein, he informed her of the vehicle sale and subsequent deposit. Sauerwein told Rimmer
he could report this information to Bishop, but Rimmer declined.
Rimmer filed the instant action alleging claims of race and gender discrimination in
violation of Title VII. Title VII prohibits an employer from “discharg[ing] an individual, or
otherwise discriminat[ing] against any individual . . . because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Defendant Cleveland Bank
subsequently filed this motion for summary judgment, arguing that Rimmer cannot establish a
prima facie case for either race or gender discrimination.

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Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show that there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed.2d
265 (1986). An issue of material fact is genuine if a reasonable jury could return a verdict for the
nonmovant. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed.2d
202 (1986). In reviewing the evidence, this court must draw all reasonable inferences in favor of
the nonmoving party, and avoid credibility determinations and weighing of the evidence.
Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 2110, 147 L.
Ed.2d 105 (2000). In so doing, the court must disregard all evidence favorable to the moving
party that the jury is not required to believe. Reeves, 530 U.S. at 151, 120 S. Ct. at 2110.
Claims of racial and gender discrimination are governed by the evidentiary standard
adopted in McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973). Under McDonnell
Douglas, a plaintiff has the initial burden of making a prima facie case. Id. at 802. Once the
plaintiff has established a prima facie case, the burden shifts to the defendant to articulate a
legitimate non-discriminatory reason for the employment decision. Id. at 802-03. If the
defendant is able to articulate a legitimate reason for its action the ultimate burden rests on the
plaintiff to prove the employment decision was the result of a discriminatory practice. Id. at 804.
A plaintiff may make a prima facie case for racial or gender discrimination by showing
that: (1) he is a member of a protected class; (2) he was qualified for the position in question;

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(3) he suffered some adverse employment action; and, (4) he was treated less favorably because
of his membership in that protected class than were other similarly situated employees who were
not members of the protected class, under nearly identical circumstances. Lee v. Kansas City
S. Ry. Co., 574 F.3d 253, 258 (5th Cir. 2009). Employment actions are “taken under nearly
identical circumstances when the employees being compared held the same job or
responsibilities, shared the same supervisor . . . and have essentially comparable violation
histories.” Id. at 260 (citations omitted).
There is no dispute that Rimmer meets the first three prongs of a prima facie case in that
he is a black male who worked in an office consisting of all white females, he was qualified to be
a bank teller, and his employment was terminated. Defendant argues that Rimmer cannot
identify a similarly situated individual who was treated more favorably since the other employees
who retained their jobs had fewer violations of bank policy and no suspicious account activity.
First, Defendant Cleveland Bank argues that no other full-time teller overdrafted a
comparable number of times as Rimmer. As previously stated, the bank recorded 61 overdrafts
on Rimmer’s personal account. The bank recorded 24 overdrafts for Robinson, and no overdrafts
for Vestal. While “[e]ach employee’s track record at the [bank] need not comprise the identical
number of identical infractions . . . these records must be comparable.” Id. at 261. The court
finds that Rimmer’s 61 overdrafts are not comparable in number to the overdrafts by any other
employee holding his same position at the bank.
Next, Defendant contends that no other full-time teller recorded drawer losses as
substantial as Rimmer’s. On February 2, 2011, Rimmer’s teller drawer was short $1,988.84. On
March 1, 2011, Sauerwein gave each teller a memo regarding outages for the months of January

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and February in 2011. Rimmer’s drawer shortages totaled $2,226.65. Robinson’s drawer was
short $313.00, while Vestal had no recorded shortages. Given the large discrepancy between
Rimmer and the other tellers’ shortage totals, the court finds that Rimmer cannot show a
comparator with regards to drawer shortages.
Finally, Defendant argues that no other employee had suspicious account activity.
Rimmer counters that a deposit of $1,870.00 three days after he sold a vehicle for $2,700.00 is
hardly suspicious. However, the relevant issue is whether Rimmer and “his alleged comparator
employees were similarly situated from the perspective of their employer at the time of the
relevant employment decisions.” Perez v. Texas Dept. of Criminal Justice, Inst. Div., 395 F.3d
206, 210 (5th Cir. 2004) (citations omitted). No person involved in terminating Rimmer had
knowledge of the sale of the vehicle at the time of the decision. The fact that Rimmer has
produced evidence after the fact purporting to show that the so-called suspicious deposit was the
result of an honest transaction is irrelevant, as the focus is on the employer’s rationale at the time
of the decision. Id. (citing Sabree v. United Bhd. of Carpenters & Joiners Local No. 33, 921
F.2d 396, 404 (1st Cir. 1990). At the time Bishop decided to terminate Rimmer, Rimmer’s
account activity seemed reasonably suspicious and no other teller had similar activity.
Based on these reasons, Rimmer has failed to produce evidence that the bank treated him
more harshly than similarly situated white female employees. The differences between Rimmer
and the other tellers’ histories at the bank more than account for the differential treatment they
received. Thus, Rimmer has not established a prima facie case for either race or gender
discrimination.

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Additionally, Defendant is arguably entitled to a same-actor presumption. Bishop, a bank
vice-president, interviewed Rimmer and had a role in deciding to hire Rimmer as a teller, also
terminated him. See Haun v. Ideal Indus., Inc., 81 F.3d 541, 546 (5th Cir. 1996). While the
presumption is not determinative on the issue of whether discrimination occurred in Rimmer’s
termination, when considering the evidence as a whole, it appears to the court that Bishop
terminated Rimmer based on his infractions and perceived suspicious activity, not due to race or
gender.
For the foregoing reasons, the court finds that the defendant is entitled to summary
judgment on all claims. A separate order in accord with this opinion will issue this day.
This, the 15th day of May, 2013.

/s/ Neal Biggers
NEAL B. BIGGERS, JR.
UNITED STATES DISTRICT JUDGE

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