MERCADO et al v. WELLS FARGO et al

Filing 66

OPINION. Signed by Judge Kevin McNulty on 10/27/17. (DD, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 15-4086 (KM-MAH)

LUZ MERCADO; MAROLYN LA PAZ;
ANNMARJE LAWNE,

OPINION
Plaintiffs,

V.

WELLS FARGO [and fictitious parties],
Defendants.

The three plaintiffs, Luz Mercado, Marolyn La Paz, and Annmarie Lavine,
were employees of a branch of Wells Fargo Bank (the “Bank”) located on South
Street in Morristown, New Jersey. They, as well as a fourth employee, David
Bagley, were fired on May 1, 2013. The Bank told the employees it was
dismissing them because they had opened accounts or issued debit cards
without the customer’s presence or authorization, and because Lavine and La
Paz had falsified La Paz’s employee time records. The plaintiffs assert that their
dismissal was actually motivated by racial discrimination, and seek damages
under the New Jersey Law Against Discrimination (“NJLAD”). Now before the
Court is the Bank’s motion for summary judgment (ECF no. 51).
Two factors are perhaps most critical. First, the plaintiffs were fired
based on misconduct that was thoroughly investigated and contemporaneously
documented as the basis for dismissal. Second, these three plaintiffs—two
identified as Black, arid one as Hispanic—were replaced. Three persons—two
identified as Black, and one as Hispanic—were hired as their replacements.
Under such circumstances, it is difficult to infer the necessary discriminatory

1

intent. And in fact the evidence gives rise to no such inference. For the reasons
stated herein, the Bank’s motion for summary judgment will be granted.
I.

PROCEDURAL BACKGROUND

Plaintiffs filed this state-law Complaint in New Jersey Superior Court on
April 27, 2015. (ECF no. 1) Count 1 of the Complaint asserts claims under the
New Jersey Law Against Discrimination (“NJLAD”), N.J. Stat. Ann. § 10:5-1 et
seq., that the plaintiffs were discriminatorily dismissed on the basis of race and
age. Count 2 asserts that the plaintiffs’ dismissal constituted a breach of
contract. Count 3 asserts that the plaintiffs’ dismissal breached the implied
contractual covenant of good faith and fair dealing.’
On June 16, 2015, the Bank removed the case to federal court based on
this Court’s diversity jurisdiction. See 28 U.S.C. 1332(a). The notice of removal
recites that the plaintiffs are citizens of New Jersey, that the Bank is a citizen
of South Dakota, and that the amount in controversy exceeds $75,000.
The parties have engaged in fact discovery. On August 7, 2017, the Bank
filed the motion for summary judgment (ECF no. 51) that is now before the
Court. The plaintiffs filed a response (ECF no. 60), and the Bank filed a reply
(ECF no. 65). The matter is fully briefed and ripe for decision.
II.

SUMMARY JUDGMENT STANDARD

Federal Rule of Civil Procedure 56(a) provides that summary judgment
should be granted “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Kreschollek v. S. Stevedoñng Co., 223 F.3d 202, 204 (3d Cir. 2000). In
deciding a motion for summary judgment, a court must construe all facts and
inferences in the light most favorable to the nonmoving party. See Boyle v.
County of Allegheny Pennsylvania, 139 F.3d 366, 393 (3d Cir. 1998). The
moving party bears the burden of establishing that no genuine issue of

Counts 2 and 3, as well as the age discrimination component of Count 1, have
now been dropped. See Section III.A, infra.
1

2

material fact remains, See Celotex Corp. a Catrett, 477 U.S. 317, 322—23
(1986). “[W]ith respect to an issue on which the nonmoving party bears the
burden of proof

...

the burden on the moving party may be discharged by

‘showing’—that is, pointing out to the district court—that there is an absence
of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325.
Once the moving party has met that threshold burden, the non-moving
party “must do more than simply show that there is some metaphysical doubt
as to material facts.” Matsushita Elec. Indus. Co., Ltd. u. Zenith Radio Corp., 475
U.S. 574, 586 (1986). The opposing party must present actual evidence that
creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at
248; see also Fed. I?. Civ. P. 56(c) (setting forth types of evidence on which
nonmoving party must rely to support its assertion that genuine issues of
material fact exist). “[U]nsupported allegations

...

and pleadings are insufficient

to repel summary judgment.” Schoch v. First Fid. Bancorporation, 912 F.2d 654,
657 (3d Cir. 1990); see also Gleason v. Nonvest Mortg., Inc., 243 F.3d 130, 138
(3d Cir. 2001) (“A nonmoving party has created a genuine issue of material fact
if it has provided sufficient evidence to allow a jury to find in its favor at trial.”).
If the nonmoving party has failed “to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial,

...

there can be ‘no genuine issue of

material fact,’ since a complete failure of proof concerning an essential element
of the nonmoving party’s case necessarily renders all other facts immaterial.”
Katz v. Aetna Cas. & Stir. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex,
477 U.S. at 322—23).
In deciding a motion for summary judgment, the court’s role is not to
evaluate the evidence and decide the truth of the matter, but to determine
whether there is a genuine issue for trial. Anderson, 477 U.S. at 249, 106 S.
Ct. 2505. Credibility determinations are the province of the fact finder. Big
Apple BMW, Inc. v. BMWof N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992).

3

The summary judgment standard, however, does not operate in a
vacuum. “[I]n ruling on a motion for summary judgment, the judge must view
the evidence presented through the prism of the substantive evidentiary
burden.” Anderson u. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). That

shifting “evidentiary burden” is discussed in Section III.B.1, infru.
III.

ANALYSIS
A.

Age Discrimination and Breach of Contract

In response to the Bank’s motion for summary judgment, the plaintiffs
have consented to the dismissal of a majority of their claims. In particular, they
have abandoned Count 1, insofar as it alleges an NJLAD claim of age
discrimination; Count 2, which alleges breach of contract; and Count 3, which
alleges breach of the implied contractual covenant of good faith and fair
dealing. See P1. Brf. 8 (concluding discussion of racial/ethic discrimination and
stating “C. Plaintiffs abandon all other claims in the Complaint.”)).
Those abandoned claims are therefore dismissed on consent, with
prejudice.
B.

Racial or Ethnic Discrimination under the NJLAD

A single claim remains: the portion of the Count 1 NJLAD claim that
alleges discriminatory dismissal on the basis of race. The remainder of this
Opinion discusses that racial discrimination claim.
1.

Standard of proof— McDonnell Douglas

In discrimination cases, courts evaluate motions for summary judgment
under the specialized burden-shifting regime set out in McDonnell Douglas v.
Green, 411 U.S. 792 (1973). That framework, adopted from federal Title VII
cases, applies where, as here, the plaintiff asserts an NJLAD claim that rests
on circumstantial evidence of discrimination. Zive v. Stanley Roberts, Inc., 182
N.J. 436, 447, 867 A.2d 1133, 1139 (2005) (applying McDonnell Douglas test to

4

NJLAD discrimination case); Bergen Commercial Bank v. Sisler, 157 N.J. 188,
209, 723 A.2d 944, 954 (1999) (same).
McDonnell Douglas divides the burden of production into three steps,
shuttling between the plaintiff and the defendant.
Step 1: The Prima Fade Case. At the outset, the plaintiff must state a
prima facie claim of discrimination. Zive, 182 N.J. at 447, 867 A.2d at 1139;
see Burton v. Telefiex Inc., 707 F.3d 417, 426 (3d Cir. 2013). To make out a
prima facie case “in a [NJLAD discriminatoryj discharge case, a plaintiff must
prove that: (1) she2 was in the protected group; (2) she was performing her job
at a level that met her employer’s legitimate expectations;3 (3) she nevertheless
was fired; and (4) the employer sought someone to perform the same work after
she left.” Id. at 450, 867 A.2d at 1141 (citing Clowes v. Tenninbc Int’l, Inc., 109
N.J. 575, 597, 538 A.2d 794, 805 (1988)).
Step 2: Legitimate non-discriminatory reason for the termination.
If the plaintiff states a prima facie case, the burden of production shifts
to the defendant, which must articulate a legitimate, nondiscriminatory basis
for the adverse employment action. Zive, 182 N.J. at 449, 867 A.2d at 1140
(citing Clowes, 109 N.J. at 596, 538 A.2d at 805).
Step 3: Pretext. Once the defendant has proffered a non-discriminatory
reason, the burden of production shifts back to the plaintiff.
In the third stage of the burden-shifting scheme, the burden
of production shifts back to the employee to prove by a
preponderance of the evidence that the reason articulated by the
employer was merely a pretext for discrimination and not the true
To prove pretext, a
reason for the employment decision.
plaintiff may not simply show that the employer’s reason was false
but must also demonstrate that the employer was motivated by
.

.

.

The plaintiffs here happen to be female, in quotations I will as necessary
substitute the female pronoun when referring to a generic plaintiff.
In a discriminatory refusal-to-hire case, the plaintiff’s qualfications for the job
play a more central role. In a discriminatory discharge case, the plaintiff already has
been hired, and by hypothesis possesses the necessary qualifications. In that context,
then, this element requires no more than a showing that the plaintiff had been
“actually performing the job” satisfactorily. Zive, 182 N.J. at 454, 867 A.2d at 1143.
2

3

That burden merges with the plaintiffs
discriminatory intent.
ultimate burden of persuading the court that she or he was
subjected to intentional discrimination.
.

.

.

Zive, 182 N.J. at 449—50, 867 A.2d at 1140—4 1 (citations omitted). That shifting
burden of production, however, must always be applied with an eye to the
ultimate issue on a summary judgment motion; whether the proffered evidence
creates a genuine, material issue of fact for trial,4

2.

McDonnell-Douglas standard applied to the evidence
a.

Prima fade case

For purposes of this motion, the Bank does not dispute that the plaintiffs
have made the minimal four-part prima facie showing required at McDonnellDouglas step one.
First, the plaintiffs are members of a protected minority. Ms. Mercado
and Ms. LaPaz, who hail from the Dominican Republic, identify themselves as
Latina, or Hispanic. Ms. Lavine, who is from Barbados, identifies herself as
Black. (E.g., P1. Brf. 5)5 The District Manager who dismissed them, Ms.
Adrienne Anzalone, is identified as racially Caucasian.

The McDonnell Douglas burden-shifting regime was adopted in recognition of
the difficulty of proving discriminatory intent. Of course, where direct evidence exists,
a plaintiff may offer direct evidence of discriminatory intent, i.e., “not only a hostility
toward members of the employee’s class, but also a direct causal connection between
that hostility and the challenged employment decision.” Bergen Commercial Bank, 157
N.J. at 207—08. Where the evidence is direct, the standard of proof is similarly
straightforward; “[T]he quality of evidence required to survive a motion for summary
judgment is that which if believed, proves [the] existence of [a] fact in issue without
inference or presumption.” Sisler, 723 A.2d 944, 954 (N.J. 1999). See also Pray v. New
Jersey Transit, Inc., No. A-3831-12T3, 2014 WL 684592, at *10 (N.J. Super. Ct. App.
Div. Feb. 24, 2014) (drawing this distinction); Kirschling v. ML City Bd. of Educ., 10
F.Supp.3d 587 (D.N.J. 2014) (same).
Here, however, no such direct evidence is proffered. There is, for example, no
contention that the relevant decision maker ever expressed racial hostility. Hence, as
is common, the plaintiffs have gone the indirect, McDonnell Douglas route.
A caveat; Because discrimination is based on irrational and distasteful
perceptions, a Court hearing a discrimination case must sometimes employ, or at least
describe, distinctions that it does not endorse. Here is one statement of the plaintiffs’
discrimination claim:
4

6

Second, all three plaintiffs held down their positions at the Bank for
some period of time, without serious disciplinary or other problems.6
Third, they were fired.
And fourth, this firing was not merely the elimination of a position or
positions; the Bank hired replacement employees.
No more is required to satisfS’ McDonnell Douglas step one as interpreted

by Zive, supra.
b.

Nondiscriminatory reason for dismissal

With similar ease, the Bank meets its step two burden to articulate a
legitimate, nondiscriminatory basis for the dismissal of the plaintiffs. It offers
evidence of the following facts, which are not substantially contradicted.
Lavine was the Manager of the South Street store, and La Paz and
Mercado were Personal Bankers there. (DSOMF

¶f

1, 2, 5, 7) On February 19,

2013, Anzalone, as District Manager, received a report from Sehrish Firdaus,
the South Street Service Manager, of misconduct in the South Street branch.
Firdaus reported (a) that Lavine was instructing the store’s bankers to order
debit cards for customers who had not requested them; (b) that bankers had
Ms. Mercado believed that Wells Fargo’s reason for her termination was a
pretext for racial discrimination against her as she was from the
Dominican Republic. Ms. LaPaz believed that Wells Fargo’s reason for her
termination was a pretext for racial discrimination against her as she
was also from the Dominican Republic. Ms. Lavine believed that Wells
Fargo’s reason for her termination was a pretext for racial discrimination
against her as she was from Barbados.
(PSOMF ¶ 8) In their brief, the plaintiffs repeatedly refer to race as the basis for
discrimination, stating, for example, that the Bank “purged the South Street Branch of
persons of color (Latino and Black).” (P1. Brf. 5)
The clear sense of plaintiffs’ case is that they believe they are the victims of
discrimination against persons who are Black or Hispanic/Latina. Although Hispanics
may of course be of any race, I will adopt the plaintiffs’ use of the term “racial”
discrimination as a convenient description of their claims. True, plaintiffs identify their
countries of origin as Barbados and the Dominican Republic, but they do not allude to
any form of discrimination that is specific to those islands or countries; I therefore do
not employ the term “ethnic” discrimination.
The Bank cites disciplinary action against La Paz and Mercado for tardiness
(DSOMF ¶f 34—41), but does not appear to rely on it as a basis for dismissal.

6

7

opened bank accounts for employees of Company X who had not even arrived
in the United States; and (c) that Lavine permitted La Paz to falsify her time
records. (DSDMF

¶f

42—43, 61—71)

The Bank investigated, and then interviewed plaintiffs. (DSOMF

¶

76—

78, 79—94) The investigation confirmed to the Bank’s satisfaction that (a)
Lavine and La Paz had falsified time records (DSOMF ¶ 96); (b) that Mercado
had issued four debit cards without customer consent (DSOMF

¶

97—98); and

(c) that Lavine, Mercado, and La Paz had all been involved in opening accounts
for customers who were not even present in the U.S. (DSOMF ¶ 99). A fourth
employee, Bagley, not a plaintiff here, was also found to have been involved.
(Id.) Based on these actions in violation of company policy, the three plaintiffs,
as well as Bagley, were dismissed on May 1, 2013. (DSOMF ¶J 100, 115)
The justification for the plaintiffs’ dismissal, as proffered by the Bank, is
a legitimate, nondiscriminatory one. NJLAD cases and other discrimination
cases applying the McDonnell Douglas standard have recognized that an
employer may legitimately and non-discriminatorily dismiss an employee for
acts of dishonesty and violations of company policy. See, e.g., Kremp zc
Wachovia Bank, N.A., 451 F. App5c 151, 155-56 (3d Cir. 2011) (“ignoring
company policy” against using certain accounts to reverse customer fees “was
plainly a legitimate, nondiscriminatory reason for [the employee’s]
termination”); Lopez v. Lopez, 997 F. Supp. 2d 256, 270 (D.N.J. 2014)
(plaintiff’s “violations of [his employer, Verizon’s] Code of Conduct” when, inter
alia, he damaged his work station, constituted a “legitimate, non
discriminatory reason” for his termination) (McNulty, Ji; Lindsey u. Wachovia
Bank, No. 08-2506, 2009 WL 749655, at *2, 6 (D.N.J. Mar. 19, 2009) (plaintiffs
falsification of bank records in violation of Wachovia’s Code of Conduct and
Ethics was a legitimate, nondiscriminatory reason for her termination); Jason
u. Showboat Hotel & Casino, 329 N.J. Super. 295, 307 (App. Div. 2000)
(plaintiffs “misconduct on the job” was a “legitimate, non-discriminatory
reason for his termination”).

8

The Bank submitted ample written evidence that the plaintiffs took on
their positions with the clear understanding that they were at-will employees
who could be terminated with or without cause. (DSOMF ¶j 9—14) The Bank
submitted copies of training materials, the Wells Fargo’s Code of Ethics &
Business Conduct, and the Sales Quality Manual. All of these written policies
and manuals outlaw the practices of which plaintiffs were accused. They warn
that applicable sanctions would include termination. (DSOMF

¶

17—33)

At any rate, nothing about the basis for dismissal suggests racial
discrimination, and plaintiffs have abandoned any claim that the dismissals
violated their contractual rights. The Bank’s stated basis for dismissal was a
legitimate, non-discriminatory one.
c.

Pretext

We come to the real issue. The plaintiffs assert that the ostensible basis
for their dismissal is not the real one, but a pretext for racial discrimination.
At this third stage, the plaintiff can meet her burden of demonstrating
pretext by either of two methods: (1) she can discredit defendant’s stated
reason (in the context of showing that discrimination was the real reason); or
(2) she can offer evidence that discrimination was more likely than not a
motivating or determinative factor in the adverse action. See Romano i-c Brown
& Williamson Tobacco Corp., 284 N.J. Super. 543, 551 (App. Div. 1995) (NJLAD
case, citing Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).
If the plaintiff relies on the first method (discrediting the defendant’s
proffered reasons), she faces a demanding standard: she must present evidence
that allows a factfinder “reasonably to infer that each of the employer’s
proffered non-discriminatory reasons.. .was either a post hoc fabrication or
otherwise did not actually motivate the employment action (that is, the
proffered reason is a pretext).” Fuentes, 32 F.3d at 764 (internal quotations and
citations omitted); see also Romano, 284 N.J. Super. at 551. The plaintiff “must
show such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employers proffered legitimate reasons for its action that

9

a reasonable factfinder could rationally find them unworthy of credence, and
hence infer that the employer did not act for [the assertedj non-discriminatory’
reasons.” Fuentes, 32 F.3d at 764; accord E1-Sioufi v. St. Peter’s Univ. Hosp.,
382 N.J. Super. 145, 173—74, 887 A.2d 1170, 1287 (App. Div. 2005) (NJLAD
case, citing Fuentes).
Viewed through the lens of the first method, the plaintiffs’ proofs fail to
raise a triable issue that the Bank’s basis for firing was so weak or unfounded
that it could not have been the real reason. It was not a post hoc fabrication,
but a contemporaneously documented basis for dismissal. The evidence is
uncontradicted that the Bank received reports of irregularities in account
openings and time records. It then conducted a thorough investigation,
including interviews of the plaintiffs. ((DSOMF

¶3f

76—78, 79—94) The

investigation confirmed that Lavine and La Paz had falsified La Paz’s time
records (DSOMF

¶

96); that Mercado and Bagley had between them issued

seven debit cards to customers who had not ordered them (DSOMF

¶

97-98);

and that all three plaintiffs had been involved in opening the accounts without
the presence or authorization of the account holders (DSOMF

¶

99). At the

time, the Bank identified the account openings and falsified time records as the
reason for the dismissal.
The Bank submitted copies of training materials, the Wells Fargo’s Code
of Ethics & Business Conduct, and the Sales Quality Manual, all of which are
written policies and manuals that outlaw the practices of which plaintiffs were
accused. They warn that applicable sanctions would include termination.
(DSOMF

¶11

17—33) The Bank thus could permissibly have viewed these as

serious infractions. A bank need not condone the unauthorized opening of
accounts and issuance of debit cards for persons who are not present in the
United States. Nor need it countenance an employee’s falsification of time
records. In short, these are not insubstantial or technical pretexts for
dismissal; the Bank legitimately viewed them as firing offenses. See Section
II.B.2.b, supra, and cases cited.

10

The Bank’s basis for dismissal “was specific, and substantiated by direct
evidence. Thus, defendants’ reason is distinguishable from the vague,
conclusory or speculative reasons” cited in other cases. Sanks-King v. Univ. of
Med. &Dentistry of New Jersey, No. A-3050-11T4, 2013 WL3744098, at*8
(N.J. Super. Ct. App. Div. July 18, 2013) (contrasting, e.g., ladimarco v.
Runyon, 190 F.3d 151, 166 (3d Cir. 1999), in which the court did not accept a
defendant’s bare assertion that plaintiff was “not the right person for the job”).
The plaintiffs offer testimony that they had good reason for acting as they
did, or that the unauthorized opening of accounts had been condoned before.
They assert that, in previous years, customer accounts had been opened as an
accommodation to “Company X,” which periodically sent employees to the
United States. Pre-opening the accounts, say plaintiffs, was an established
means of ensuring that those employees’ pay could be direct deposited when
they arrived in the U.S.
Thc evidence of the issuance of debit cards, too, is not substantially
disputed. Plaintiffs deny that the Bank had a policy of automatic termination
for issuance of fewer than three unauthorized debit cards. (PSOMF ¶ 9)8
Neither, however, did the Bank’s policies insulate them from such a dismissal.
Dismissal was surely an available sanction for even a single such violation of
Bank policies. (See DSOMF ¶j 23, 26, 27.)
Plaintiffs do not really deny the falsification of time records; rather, they
say that it was justified by the desire to make up for other hours worked by La
Plaintiffs focus on the Company X accounts. Although it is not critical to my
decision, it seems that some of the unauthorized accounts were unrelated to Company
X. (See DSOMF ¶ 77) Unauthorized debit cards, too, seem to have been unrelated to
Company X. (See DSOMF ¶11 54—60, 77) The falsification of time records, involving
Lavine and La Paz, was unrelated to Company X. (See DSOMF ¶j 48—53.)
7

This contention may be the plaintiffs’ negative implication from the following
deposition testimony:
Q. In and of itself, three and over is grounds for termination
automatically, right?

8

A.

It’s grounds for termination, yes.

(King Dep. 54:20-22, ECF no. 51-27 at 15)
11

Paz that she had not recorded. Once again, the Bank was not required to
excuse this kind of self-help. This kind of manipulation defeats the purpose of
the system, which is to monitor employees’ hours. That is why falsification of
such records is prohibited by company policy. (See DSOMF

¶

21.)

Before the Bank was credible evidence of serious infractions. To say that
the Bank was precipitate, unfair, hypocritical,

or even mistaken as to the

facts is not to say that the Bank discriminated on the basis of race. Selectivity
may be inequitable, but unless exercised on a racial basis it is not actionable
under NJLAD. A plaintiff cannot defeat summary judgment by showing that an
employer’s decision to terminate her was a bad decision. Fuentes, 32 F.3d at
765. NJLAD is not a vehicle for challenging employment decisions that are
harsh, unfair, or inconsistent. See Peper v. Princeton Univ. 3d. of Ths., 77 N.J.
55, 87 (1978) (“Anti-discrimination laws do not permit courts to make
personnel decisions for employers. They simply require that an employer’s
personnel decisions be based on criteria other than those proscribed by law.”).
Evidence that an employer’s “reason for firing [a plaintiff] was a mistake or an
overreaction” does not imply that “it was a pretext for discrimination.” Klimek v.
United Steelworkers Local 397, 618 F. App’x 77, 80 (3d Cir. 2015).
Consistent with the NJLAD, “an employer can legally discharge an
employee without violating employment discrimination statutes for good
reason, bad reason, or no reason at all, as long as there is no intentional
discrimination.” Maiorino v. Schering-Plough Corp., 302 N.J. Super. 323, 345
(App. Div. 1997) (internal quotation marks omitted); see also Witkowski v.
Thomas J. L4ton, Inc., 136 N.J. 385, 397 (1994). Hence, whether an employee’s
termination was “unfair to he?’ is “not the issue in a[n NJ]LAD claim.” Jason,
329 N.J. Super. at 307-08. Nor is it determinative that a plaintiff believes she
These events, by the way, preceded by some three years the 2016 revelation
that Wells Fargo had opened millions of accounts without authorization. These local
officials of the Bank, it seems, were justified, if precocious, in their concern; to date,
Wells Fargo has paid customer compensation exceeding $10 million and regulatory
fines of $185 million as a result of such practices. See, e.g.,
http: / /fortune.com/20 17/08/31/wells-fargo-increases-fake-account-estimate!.
12

“received a harsher punishment than her conduct warranted.” Klimek, 618 F.
App’x at 80. See also id. (observing that the Court is “not ‘a super-personnel
department’ tasked with correcting unduly harsh employment actions”).
In short, the basis for plaintiffs’ firing, viewed in context, was not so
flimsy that a fact finder could infer that racial discrimination must have been
the real reason. Nor are there any more direct indicia of discrimination.
The second method (evidence that discrimination was a motivating
factor) can be established by at least three kinds of proof: “by showing that the
employer in the past had subjected [the employee] to unlawful discriminatory
treatment, that the employer treated other, similarly situated persons not of
her protected class more favorably, or that the employer has discriminated
against other members of her protected class or other protected categories of
persons.” Fuentes, 32 F.3d at 765.
The plaintiffs offer no examples of prior discriminatory treatment— no
racially charged remarks, no disparate treatment with respect to salaries or

working conditions—indeed, no actions remotely of that kind.’0 (See DSOMF ¶j
109, 110, 112, 114) Indeed, they offer little beyond the statement that they
“believed” the Bank’s motive was racial discrimination. (PSOMF

¶

8)

Nor is there any indication that the Bank treated employees of other
racial/ethnic groups in disparate fashion. In evaluating such a claim, a court
may consider whether comparator employees committed acts similar to those

that led to the plaintiffs’ termination, but were not terminated by the relevant
decision maker. See, e.g., Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142

There is a special consideration in the case of Lavine. Anzaione—the person
who executed the allegedly discriminatory firing—was the very person who had hired
Lavine just two and one half years before. It is difficult to infer discriminatory intent
under such circumstances. See, e.g., Taylor ri. AmcorFlexibles Inc., 669 F. Supp. 2d
501, 511 (D.N.J. 2009) (“Employers who lmowingly hire workers within a protected
group seldom will be credible targets for charges of pretextual firing”) (internal
quotation marks omitted), affd, 507 F. App’x 231 (3d Cir. 2012); DeMary ic Kennedy
Health Sys., No. 11-5984, 2014 WL 3748591, at *8 (D.N.J. July 30, 2014) (finding it
“illogical” to conclude that a decisionmaker who hired and supervised plaintiff
to discriminate against Plaintiff because of her race”).
“suddenly decided
...

13

F.3d 639, 645 (3d Cir. 1998); Wilcher z’. Postmaster Gen., 441 F. Appx 879,
881-82 (3d Cir. 2011).
Four employees at the South Street branch, including the three plaintiffs,
were implicated in the particular wrongdoing at issue here. All four, plaintiffs
acknowledge, were fired simultaneously. (DSOMF

¶31

95—100, 111—13) See

Fernandez u. Costco Wholesale Corp., No. A-6466-06T1, 2009 WL 36440 (N.J.
App. Div. Jan. 8, 2009) (no inference of discrimination where all employees
involved in fraudulent coupon scheme were dismissed). The fourth employee,
Bagley, was perceived as racially White by Lavine and Anzalone. (DSOMF

¶31

111, 115) In their summary judgment papers, plaintiffs state that Bagley is “of
half Cuban descent.” (PSOMF

¶

8) Plaintiffs cite no evidence that Anzalone

knew that, or acted on the basis of it.

Spreading their net wider, the plaintiffs point to the preceding year,
2012. Then, they say, Company X accounts had been opened by Ms. Firdaus.
Firdaus, a supposedly “white-looking” Pakistani (PSOMF

¶

3), was the person

who reported the plaintiffs’ wrongdoing to Anzalone. Firdaus was never
deposed, however, and the facts were not developed. (ECF no. 62 at 3

¶

43).

One possible basis for disparate treatment—that Firdaus reported wrongdoing
to her superiors—suggests itself, but apparently it was not explored in
discovery. Nor have the plaintiffs established that the decision maker in that
hypothetical case of wrongdoing in 2012 would have been the same decision
maker who fired plaintiffs. Nor have the plaintiffs established that any 2012
wrongdoing by Firdaus was reported or known to management at the time.
The record contains no history of similar discrimination against members
of the plaintiffs’ racial or ethnic group. Lavine acknowledged in her deposition
that the South Street branch was like a “United Nations.” See Lewis v.
11

I had a Russian. I had a Caucasian guy. I had two Dominicans. It was me and
Sarah who was Pakistani. My teller line was pretty much the same. After a
while, it got to be a more ethnic teller line, meaning that there were black
tellers. There was an Asian teller and then there was one Caucasian on my
teller line.

(DSOMF ¶116)
14

Cablevision Sys. Corp., No. 08-2793, 2010 WL 1133872, at *8 (D.N.J. Mar. 22,
2010) (no inference of discrimination where employer had “a long record of
hiring racially diverse candidates”); Glover-Daniels v. 1526 Lombard St. SNF
Operations LLC, No. 11-5519, 2012 WL 2885935, at *11 (E.D. Pa. July 16,
2012) (employer’s diverse workforce “cuts against an inference of
discrimination”).
Perhaps most significantly of all, these three dismissals could not have
advanced any hypothetical agenda to reduce diversity or “purge[] the South
Street Branch of persons of color (Latino and Black).” (P1. Brf. 5) All three
plaintiffs were replaced, and their replacements were of precisely the same
racial/ethnic mix as the plaintiffs. Lavine was replaced as Manager by Ricardo
Cruz, who is identified as Hispanic; La Paz and Mercado were replaced as
Personal Bankers by Jonathan Charles and Norma Bowles, both identified as
Black. (Facts

¶ 117-23.)

To put it in the crudest terms, two Black employees

and one Hispanic employee were replaced by two Black employees and one
Hispanic employee. in short, the firing and replacement of these three plaintiffs
did not alter the racial mix of the South Street branch one bit. See, e.g., Qeng v.
PNC Fin. Sews. Grp., Inc., No. 13-0004, 2014 WL 3778299, at *10 (D.N.J. July
31, 2014) (granting employer’s summary judgment motion where, after
plaintiff’s termination, “the overall racial diversity at the Lambertville Branch
[of PNC Bank], as well as the fact that [plaintiff] Geng [an Asian] was replaced
by another ethnic minority [an Hispanic], undercuts the inference of racial
discrimination”)
Viewed as a whole, in the light most favorable to plaintiffs, the record
suggests at most that their dismissals were unfair or arbitrary. It does not
establish, or even tend to establish, that these dismissals were discriminatory.

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CONCLUSION

For the reasons stated above, the motion for summary judgment of
defendant Wells Fargo (ECF no. 51) is GRANTED, and the Complaint will be
dismissed in its entirety, with prejudice. A separate order and judgment in
favor of defendants is filed herewith.

Dated: October 27, 2017
KEVIN MCNULTY
United States District Ju

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