Silvers v. Wells Fargo Bank, N. A
Filing
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MEMORANDUM OPINION & ORDER re: 22 MOTION for Summary Judgment . filed by Wells Fargo Bank, N. A. For the foregoing reasons, defendant's motion for summary judgment is hereby GRANTED. The Clerk of Court is directed to enter judgment for the defendant and to terminate this matter. (Signed by Judge Katherine B. Forrest on 10/7/2016) (cla)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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KENNETH SILVERS,
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Plaintiff,
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WELLS FARGO BANK, N.A.,
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Defendant.
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: October 7, 2016
15-cv-6721 (KBF)
MEMORANDUM
OPINION & ORDER
KATHERINE B. FORREST, District Judge:
On August 25, 2015, plaintiff Kenneth Silvers (“plaintiff”) brought this action
against defendant Wells Fargo Bank, N.A. (“defendant” or “Wells Fargo”) alleging
violations of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621
et seq., and the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law
§ 290 et seq. Plaintiff’s complaint alleges that he was discriminated against on the
basis of his age when he was terminated from his position as a Wells Fargo store
manager. (Compl. ¶ 1.) On June 30, 2016, defendant moved for summary judgment
pursuant to Fed. R. Civ. P. 56. (ECF No. 22.) For the following reasons,
defendant’s motion for summary judgment is GRANTED.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are undisputed unless indicated otherwise. The Court
discusses only facts directly relevant to the disposition of the motion for summary
judgment.
Plaintiff was hired by Wells Fargo as a Financial Specialist on July, 21 2009,
(Def. Rule 56.1 Statement of Undisputed Material Facts (“Def. 56.1”) ¶ 1, ECF No.
26.) He was 66 years old at the time of hiring. (See id. at ¶ 1.) Plaintiff was
promoted to the position of Store Manager of the Croton, NY Wells Fargo store in
October 2012. (Id. at ¶ 10.) He was 69 years old at the time of his promotion. (See
Id. at ¶ 1.)
On June 7, 2013, a customer complained to plaintiff’s supervisor, Miguel
Vargas (“Vargas”), that plaintiff left him a voicemail that the customer found
offense.1 (Id. at ¶ 36.) As a result of this customer complaint, Wells Fargo
conducted an investigation of the incident and Vargas issued plaintiff a “final
warning.” (Id. at ¶¶ 37, 38.)
In October 2013, one of plaintiff’s direct reports lodged a formal complaint
with Wells Fargo about plaintiff, alleging that the plaintiff had threatened her with
corrective action based on fictitious performance standards. (Id. at ¶ 40.) Vargas
investigated the allegation and determined that plaintiff improperly threatened the
employee. (Id. at ¶ 41.) As a result, Vargas gave plaintiff another warning (Id. at
¶ 41; Pl. Ex. B, Vargas Tr. at 81.)
In May 2014, a customer complained that plaintiff attempted to lock her in a
bank vault with him. (Def. 56.1 ¶ 43.) The customer stated that because of this
incident she closed her accounts with Wells Fargo and moved her home equity
The parties dispute whether plaintiff used profane language on the voicemail. The Court need not
resolve that dispute for this motion but notes that plaintiff does not dispute the general content of
the statement or that it was recorded on the customer’s voicemail. (Plaintiff’s Rule 56.1
Counterstatement (“Pl. 56.1”) ¶ 36, ECF No. 30.)
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loan.2 (Id.) Vargas investigated the incident and recommended a formal warning.
(Id. at ¶ 44; Pl. Ex. B., Vargas Tr. at 84-85). Plaintiff alleges that this
recommended warning was not actually given and that plaintiff received coaching
from Vargas as a result of the incident. (Pl. 56.1 ¶ 44.)
Plaintiff alleges that in fall 2014, Vargas told plaintiff that Vargas was
conducting staffing planning and asked whether plaintiff had any plans to retire.
(Pl. 56.1 ¶ 76.) Plaintiff alleges he told Vargas that he had no plans to retire. (Id,)
Plaintiff further alleges that Vargas then asked whether plaintiff had interest in
stepping down as store manager, and plaintiff alleges that he told Vargas no. (Pl.
56.1 ¶ 76.)3 Defendant admits that Vargas asked plaintiff if he wanted to return to
the role of banker instead of store manager. (Def. Resp. 56.1 ¶ 76.)
At the time of plaintiff’s employment, the Wells Fargo Code of Conduct
(“Code”) and the Wells Fargo Handbook, Code and Sales Quality Manual (“Manual”)
prohibited opening unnecessary accounts; “gaming” accounts by, e.g., opening and
closing them to increase sales numbers; self-funding customer accounts; and
“pinning” debit cards without the customer being present. (Def. 56.1 ¶¶ 15, 16.)
Additionally, the Wells Fargo policy provided that a non-resident alien customer
must be present “face-to-face” at the store with proper identification before an
account could be opened in his or her name. (Id. at ¶¶ 21, 22.) Wells Fargo policy
Plaintiff denies that he attempted to lock the customer in the bank vault but does not deny the
existence or content of the complaint. (Pl. 56.1 ¶ 44.)
3 Defendants deny that Vargas asked plaintiff about plaintiff’s retirement plans. (Def. Response to
Pl. Rule 56.1 Counterstatement (“Def. Resp. 56.1”) ¶ 76, ECF No. 32.)
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also provided that violations of the Code and Manual could result in employee
discipline, included termination. (Id. at ¶ 25.)
In September 2014, Wells Fargo conducted a Store Operations Control
Review audit of plaintiff’s store. (Id. at ¶ 48.) Plaintiff’s store failed this audit. (Id.
at ¶ 49.) Plaintiff was notified that he was responsible for correcting deficiencies
found in the audit. (Id. at ¶ 51.) In December 2014, a customer complained to
Wells Fargo that plaintiff had tried to convince the customer to close existing
accounts and open new accounts to increase sales. (Def. 56.1 ¶ 45.) On January 6,
2015, a Wells Fargo employee conducted a follow-up review of plaintiff’s store and
reported that many of the issues identified in the September 2014 audit had not
been corrected. (Def. 56.1 ¶ 52.) The report also noted apparently improper
opening and closing of customer accounts serviced by a banker, Stefan Rosenthal
(“Rosenthal”), who reported directly to plaintiff. (Id. ¶ 54.) This led to an additional
investigation of plaintiff’s store, which revealed that between October 2014 and
January 2015 Rosenthal and another banker reporting directly to plaintiff, Talat
Kakar (“Kakar”), opened and closed customer accounts without signatures and
without customers present, and pinned debit cards without customers present. (Id.
at ¶¶ 56-60.)
In January 2015, plaintiff expressly authorized Kakar to open an account for
a non-resident alien who did not appear in person to provide identification or to
personally authorize the opening of the account. (Def. 56.1 ¶¶ 63, 67.) The account
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was funded by Kakar and not the individual in whose name the account had been
opened. (Def. 56.1 ¶ 63.)
On January 22, 2015, Kakar and Rosenthal were terminated by Vargas for
violations of Wells Fargo policy. (Def. 56.1 ¶ 71.) The same day plaintiff was also
terminated and was informed that his termination was due to violations of Wells
Fargo policy. (Id. at ¶ 73.) On this date Rosenthal was 30 years old, Kakar was 46
years old, and plaintiff was 71 years old. (See id. at ¶ 54; see Pl. 56.1 ¶ 1.). Vargas
also provided a letter to plaintiff stating that the reason for his termination was
“Violation of Company Policies.” (Id. at ¶ 78.) Vargas later testified that he made
the decision to terminate plaintiff because plaintiff failed to ensure that company
policies regarding the opening of customer accounts were followed. (Id. at ¶ 73.)
At no point prior to his termination did plaintiff complain to anyone within
Wells Fargo that he was being discriminated against on the basis of age, or that
anyone made age-related comments to him. (Id. at ¶ 80.) Plaintiff never contacted
the Wells Fargo internal hotline to complain about age discrimination or any agerelated comments. (Id. ¶ 81.)
On August 15, 2015, plaintiff initiated this action. (ECF No. 1.) Defendant
answered on October 9, 2015. (ECF No. 9.) Following completion of discovery, the
defendant filed a motion for summary judgment. (ECF No. 23.)
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II.
LEGAL PRINCIPLES
A. Legal Standard for Summary Judgment.
Summary judgment may only be granted if the movant demonstrates, based
on admissible evidence in the record, “that there is no genuine dispute at to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The movant bears the burden of “demonstrat[ing] the absence of a
genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Material facts are “facts that might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also
Matsushita Elect. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)
(stating that the non-movant “must do more than simply show that there is some
metaphysical doubt as to the material facts”).
In deciding whether to grant summary judgment, the Court must “construe
all evidence in the light most favorable to the nonmoving party, drawing all
inferences and resolving all ambiguities in its favor.” Dickerson v. Napolitano, 604
F.3d 732, 740 (2d Cir. 2010). Once the movant has asserted facts to support the
conclusion that the non-movant’s claims cannot be sustained, the non-movant must
“set out specific facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e). “[A]
party may not rely on mere speculation or conjecture as to the true nature of the
facts to overcome a motion for summary judgment,” because “[m]ere conclusory
allegations or denials . . . cannot by themselves create a genuine issue of material
fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d
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Cir.2010) (citations omitted). Summary judgment may be “appropriate even in the
fact-intensive context of discrimination cases.” Abdu-Brisson v. Delta Air Lines, 239
F.3d 456, 466 (2d Cir.2001), cert. denied, 534 U.S. 993 (2001).
B. ADEA and NYSHRL claims
The ADEA makes it “unlawful for an employer to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because
of such individual's age[.]” 29 U.S.C. § 623(a)(1). The NYSHRL prohibits an
employer from “discharge[ing] from employment [an] individual” “because of an
individual’s age[.]” N.Y. Exec. Law. § 296(1)(a). Under both the ADEA and the
NYSHRL, plaintiff must raise a triable issue that his or her age was the “‘but for’
cause of the challenged adverse employment action’ and not just a contributing or
motivating factor” in order to survive summary judgment. Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 176 (2009)); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93,
106 (2d Cir.2010) (applying the but-for causation requirement to the NYSHRL).
The plaintiff “presents no direct evidence of discriminatory intent based on
age.” Woodman v. WWOR-TV, Inc., 551 F.3d 69, 76 (2d Cir. 2005). The Court
therefore evaluates plaintiff’s ADEA claim under the three-step burden shifting
analysis set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); see Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119,
129 (2d Cir. 2012) (“This [burden-shifting] framework, which was developed in the
context of claims for discrimination under Title VII, applies to claims of age
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discrimination under the ADEA[.]”). Under McDonnell Douglas, a plaintiff must
first establish a prima facie case of discrimination by “show[ing] (1) that she was
within a protected group; (2) that she was qualified for her position; (3) that she
suffered an adverse employment action; and (4) that such action occurred under
circumstances giving rise to an inference of discrimination.” Gorzynski, 596 F.3d at
107. If the plaintiff can produce facts in support of these elements, the burden of
production shifts to the defendant to “articulate some legitimate, nondiscriminatory
reason” for the adverse employment action. Leibowitz v. Cornell Univ., 584 F.3d
487, 499 (2d Cir.2009) (internal quotation marks omitted). “The ultimate burden of
persuading the trier of fact that the defendant intentionally discriminated against
the plaintiff remains at all times with the plaintiff.” Tex. Dep’t of Cmty, Affairs v.
Burdine, 450 U.S. 248, 253 (1981).
Once a defendant has carried his or her burden, a plaintiff must then raise a
triable issue of fact as to whether defendant's “legitimate, nondiscriminatory
reason” for the adverse employment action was merely pretextual. McDonnell
Douglas, 411 U.S. at 802. For ADEA and NYSHRL claims, a plaintiff on this step of
the analysis “retains the burden of persuasion to establish that age was the ‘but for’
cause of the employer’s adverse action.” Gross v. FBL Fin. Servs., Inc., 557 U.S.
167, 177 (2009); see also Fried v. LVI Servs., Inc., 500 F. App’x 39, 41 (2d Cir. Oct.
15, 2012) (holding that a plaintiff failed to overcome summary judgment on his
ADEA and NYSHRL claims because “the third step of analysis required [plaintiff]
to show more than possible age bias; he was required to adduce sufficient evidence
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to permit a reasonable jury to find that ‘but for’ defendants’ age bias, he would not
have been terminated.”). To meet his burden, a plaintiff cannot merely proffer facts
supporting an inference that his or her age was one possible motive among others.
Gross, 557 U.S. at 175 (explaining that the ADEA “does not” “authorize[] a mixmotives age discrimination claim”). Rather, the facts must support an inference
that plaintiff would not have been terminated in the absence of the bias. Id. at 176.
If the plaintiff cannot produce facts sufficient meet the “but-for” motive requirement
from Gross, the defendant is entitled to summary judgment. See, e.g., Delaney v.
Bank of Am. Corp., 766 F.3d 163, 170 (2d Cir. 2014) (affirming summary judgment
for defendant when an ADEA plaintiff’s “allegations d[id] not suffice to create a
genuine issue of fact as to whether his age was the but-for cause of his
termination”).
III.
ANALYSIS
Plaintiff asserts two claims: (1) age discrimination under the ADEA, and (2)
age discrimination under the NYSHRL. Neither of these claims survives. Plaintiff
offers no facts apart from the happenstance of his age that support an inference of
discrimination and therefore has failed to raise a triable issue supporting a prima
facie case of age discrimination. Moreover, even if plaintiff made out a prima facie
case of age discrimination, in light of the voluminous, undisputed facts supporting
defendant’s stated reason for plaintiff’s termination—that he repeatedly violated
Wells Fargo company policy—plaintiff has failed to raise a triable issue on the
question of pretext.
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A.
Plaintiff does put forth a prima facie case of age discrimination
Plaintiff raises no triable issue of material fact as to whether defendant
discriminated against him on the basis of age. As the Court must resolve “all
factual inferences . . . in favor of the nonmovant” when facts are disputed, Danzer v.
Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998), the Court assumes for the sake of
summary judgment that Vargas did ask, months before his termination, whether he
had plans for retirement or had interest in stepping down from management.
Standing alone, this fact does not support an inference of age discrimination. At
best, the alleged remarks occurred months before the termination decision, the
content of the alleged remarks did not indicate that Vargas actively encouraged
plaintiff to retire or evinced concern about his age, and the context of the remark
was not related to the decision-making process about plaintiff’s termination. Henry
v. Wyeth Pharm., Inc., 626 F.3d 134, 149 (2d Cir. 2010) (“In determining whether a
remark is probative, [district courts] consider[] four factors: (1) who made the
remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the
remark was made in relation to the employment decision at issue; (3) the content of
the remark (i.e., whether a reasonable juror could view the remark as
discriminatory); and (4) the context in which the remark was made (i.e., whether it
was related to the decision-making process.”); Tomassi v. Insignia Fin. Grp., Inc.,
478 F.3d 111, 115 (2d Cir. 2007) (“[T]he closer the remark’s relation to the allegedly
discriminatory behavior, the more probative that remark will be.”); Monte v. Ernst
& Young LLP, 148 F. App’x 43, 45 (2d Cir. Sept. 7, 2005) (“With little evidence
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beyond the few stray remarks unrelated to the termination decision . . . a
reasonable factfinder could not conclude that age or national origin was the real
reason for [plaintiff’s] termination.”); c.f. Carlton v. Mystic Tranps., Inc., 202 F.3d
129, 136 (2d Cir. 2000) (holding that plaintiff made out a prima facie case of age
discrimination when plaintiff was replaced by two younger employees and told
“during the meeting regarding his termination, that he should retire”).
While a plaintiff may “rely on the cumulative weight of circumstantial
evidence” to make out a prima facie case, Luciano v. Olsten Corp., 110 F.3d 210, 215
(2d Cir. 1997), plaintiff’s allegations, in the context of all the undisputed facts and
drawing any supportable inferences in his favor, do not support a prima facie case of
age discrimination. Plaintiff admits that he did not report any discriminatory
comments or treatment prior to his termination that would support an inference
that age discrimination was a necessary cause of his termination. (Pl. 56.1 ¶¶ 8081.) Vargas’s alleged inquiry into plaintiff’s retirement plans or interest in leaving
management are too attenuated from the termination in time and too distant from
discrimination in content.4 Plaintiff therefore does not produce sufficient facts
supporting a causal connection between his age and his termination to make out a
prima facie case of age discrimination.
It cannot be the case that, without facts suggestive of discrimination, the ADEA and the NYSHRL
prohibit employers from planning for the future based on when current employees intend to retire.
Courts have upheld claims when an employer’s encouragement of an employee to retire, in the
context of other factors, raises an inference of unlawful discrimination. See, e.g., Carlton, 202 F.3d
at 136.
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B.
Plaintiff does not produce sufficient evidence that defendant’s stated
reason for termination was pretextual
Even if plaintiff did put forward a prima facie case of age discrimination, his
claim would fail under step three of the McDonnell Douglas burden-shifting
framework. McDonnell Douglas, 411 U.S. at 802. To meet his or her burden, “a
plaintiff must show that there is a triable issue of fact as to whether (1) the
employer’s asserted reason for discharge is false or unworthy of belief and (2) more
likely than not the employee’s age was the real reason for the discharge.” Woroski
v. Nashua Corp., 31 F.3d 105, 108-09 (2d Cir. 1994). As the Supreme Court made
clear in Gross, an ADEA plaintiff “must prove that age was the ‘but-for’ cause of the
employer’s adverse decision,” 557 U.S. at 176, and to survive summary judgment
plaintiff must therefore raise a triable issue of fact as to whether age was a but-for
cause of his termination. Plaintiff’s lack of evidence as to age discrimination in
connection with his termination, combined with the defendant’s substantial
unrebutted reasons for termination, fail to raise a triable issue of fact under Gross.
Defendant informed plaintiff that he was terminated for violations of
company policies. (Def. 56.1 ¶ 78.) Defendant offers a trove of undisputed facts to
support their allegations that prior to his termination, plaintiff repeatedly
personally violated or condoned violations of Wells Fargo company policy regarding
the treatment of customers and the opening of accounts. Under these facts,
plaintiff’s termination was “fully consistent with the conduct of non-discriminatory
business affairs.” Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 717 (2d Cir.
1994). Plaintiff does not dispute these facts, nor does he set forth facts indicating
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defendant’s stated reasons presented “weaknesses, implausibilities, inconsistencies,
or contradictions.” Zann Kwan v. The Andalex Grp. LLC, 737 F.3d 834, 846 (2013).
Plaintiff appears to misunderstand the term “inconsistent;” at most, plaintiff’s facts
support the conclusion that defendants offered consistent and non-contradictory
reasons regarding plaintiff’s violations of company policy, which were multiple and
varied across different provisions of the Wells Fargo Code and Manual.
It is also undisputed that the bankers who engaged in company policy
violations under plaintiff’s management were terminated the same day as plaintiff;
that both of these bankers were significantly younger than plaintiff; and that one of
the bankers, Rosenthal, was only 30 years old on the date of his and plaintiff’s
termination. (See Def. 56.1 ¶¶ 71-73; Pl. 56.1 ¶ 1.) These undisputed facts support
the inference that plaintiff’s termination was motivated by the repeated violations
of company policy that occurred under plaintiff’s management. Failure to rebut
these facts requires dismissal on summary judgment.
Finally, even if plaintiff had successfully proffered evidence that his
termination was motivated at least in part by age discrimination, this is still
insufficient to survive a motion to dismiss. In Gross the Supreme Court made clear
that mixed-motive analysis does not apply to age discrimination claims; instead, “‘a
plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove,
by a preponderance of the evidence, that age was the ‘but-for’ cause of the
challenged adverse employment action’ and not just a contributing or motivating
factor.” Gorzynski, 569 F.3d at 106 (quoting Gross, 557 at 180). Given the
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undisputed facts about complaints from customers and employees against plaintiff,
his store’s failed audit and his subsequent failure to correct deficiencies identified in
the audit, the violations of Wells Fargo policy among his direct reports, and the fact
that one of the bankers terminated on the same day as plaintiff for related reasons
was the exact age of the branch manager hired as plaintiff’s replacement, no
reasonable jury could infer that plaintiff’s age was the but-for cause of his
termination.
Because plaintiff has raised a triable issue, the motion for summary
judgment must be granted. See McDonnell Douglas, 411 U.S. at 802.
IV.
CONCLUSION
For the foregoing reasons, defendant’s motion for summary judgment is
hereby GRANTED. The Clerk of Court is directed to enter judgment for the
defendant and to terminate this matter.
Dated:
New York, New York
October 7, 2016
______________________________________
KATHERINE B. FORREST
United States District Judge
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