Mohammad v. J.P. Morgan Chase National Corporate Services, Inc. et al
Filing
23
OPINION AND ORDER granting 20 Motion for Summary Judgment. Signed by Judge James L Graham on 10/28/13. (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Majeda Mohammad,
Plaintiff,
v.
Case No. 2:12-cv-702
J.P. Morgan Chase National
Corporate Services, Inc.,
et al.,
Defendants.
OPINION AND ORDER
This is an action brought pursuant to Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. §2000e-2(a)(1), 42
U.S.C. §1981, and Ohio Rev. Code Chapter 4112 by plaintiff Majeda
Mohammad against defendants J.P. Morgan Chase National Corporate
Services, Inc. (“Chase”)1 and Brad Arnold, a former operations unit
manager for Chase.
In her complaint, plaintiff alleged that the
defendants discriminated against her on the basis of her race
(Arabic), national origin (Iraq), and religion (Muslim) in failing
to hire her for three positions for which she allegedly interviewed
with Arnold on August 16, 2011.
This matter is before the court on
defendants’ motion for summary judgment.
I. Summary Judgment Standard
“The court shall grant summary judgment 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.”
P. 56(a).
1
N.A.
Fed. R. Civ.
The central issue is “whether the evidence presents a
Chase notes that its correct business entity name is JPMorgan Chase Bank,
sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
A
party asserting that a fact cannot be or is genuinely disputed must
support the assertion by citing to particular parts of materials in
the record, by showing that the materials cited do not establish
the absence or presence of a genuine dispute, or by demonstrating
that an adverse party cannot produce admissible evidence to support
the fact.
Fed. R. Civ. P. 56(c)(1)(A) and (B).
In considering a
motion for summary judgment, this court must draw all reasonable
inferences and view all evidence in favor of the nonmoving party.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986); Am. Express Travel Related Servs. Co. v. Kentucky,
641 F.3d 685, 688 (6th Cir. 2011).
The moving party has the burden of proving the absence of a
genuine dispute and its entitlement to summary judgment as a matter
of law.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The moving party’s burden of showing the lack of a genuine dispute
can be discharged by showing that the nonmoving party has failed to
establish an essential element of his case, for which he bears the
ultimate burden of proof at trial.
Id.
Once the moving party
meets its initial burden, the nonmovant must set forth specific
facts showing that there is a genuine dispute for trial.
322 n. 3.
Id. at
“A dispute is ‘genuine’ only if based on evidence upon
which a reasonable jury could return a verdict in favor of the nonmoving party.”
(6th Cir. 2008).
Niemi v. NHK Spring Co., Ltd., 543 F.3d 294, 298
A fact is “material” only when it might affect
the outcome of the suit under the governing law. Id; Anderson, 477
2
U.S. at 248.
The nonmovant must “do more than simply show that there is
some metaphysical doubt as to the material facts[.]”
475 U.S. at 586.
Matsuchita,
A mere scintilla of evidence is not enough.
Anderson, 477 U.S. at 252; Ciminillo v. Streicher, 434 F.3d 461,
464
(6th
Cir.
2006).
Further,
the
nonmoving
party
has
an
affirmative duty to direct the court's attention to those specific
portions of the record upon which it seeks to rely to create a
genuine
issue
of
material
fact.
See
Fed.
R.
Civ.
P.
56(c)(3)(noting that the court “need consider only the cited
materials”).
II. Factual Background
The record reveals that plaintiff completed an application on
Chase’s online career site expressing an interest in the positions
of Senior Operations Analyst, Operations Specialist - Foreclosure
(“Operations
Foreclosure
Specialist”);
(“Senior
Senior
Operations
Operations
Specialist”),
Specialist
and
-
Operations
Manager, Foreclosure (“Operations Manager”), for which interviews
were to be held at an August 16, 2011, hiring event or job fair at
the Westerville, Ohio location.
The job description for the
position of Operations Specialist stated that
previous experience
in mortgage banking and foreclosure or legal experience were
preferred qualifications.
Doc. 20-3, Ex. C; Doc. 20-12, Aff. of
Chase Recruiting Officer Mary DeMello, ¶ 5.
Plaintiff’s resume
indicated that: she had a B.A. in education and social studies from
the University of Baghdad, Iraq; she was currently enrolled in a
distance-learning program in early childhood education at Ashworth
University in Georgia; she is fluent in Arabic and English; she was
3
familiar with Microsoft Office; and that she had previously taught
social studies and provided translation services; that she was
currently the owner and operator of a learning center in Dublin,
Ohio; and that she had established and operated a refugee services
center which provided a variety of social services. Doc. 20-2, Ex.
B.
According to the affidavit of Brad Arnold, plaintiff was a
walk-in candidate at the Chase job fair. Plaintiff stated that she
wanted to interview for the positions of Operations Specialist and
Operations Manager.
Doc. 20-10, Arnold Aff., ¶ 2.
Arnold was
conducting interviews for the position of Operations Specialist.
He determined that plaintiff was not on his interview schedule,
which meant that plaintiff had not been selected by Human Resources
for an interview.
Arnold Aff., ¶ 2.
He also noted that plaintiff
was not on the list for an interview for the Operations Manager
position, which meant that plaintiff had not been selected by Human
Resources to interview for that position.
Arnold
told
plaintiff
that
he
Operations Specialist position.
would
Arnold Aff., ¶ 3.
interview
her
for
Mr.
the
Arnold explained that he was not
qualified to interview her for the Operations Manager position, and
that
if
position,
he
he
determined
would
that
let
an
she
might
assistant
be
vice
qualified
president
for
that
or
vice
president know so that he or she could decide whether to invite
plaintiff to interview for that position.
Arnold Aff., ¶ 4.
However, Arnold informed her that Chase would most likely be
seeking someone with prior mortgage or default experience, and
plaintiff had neither.
Arnold Aff., ¶ 4.
Arnold further stated in his affidavit that, in an effort to
4
“break the ice” prior to the interview, he asked plaintiff about
her first name.
She responded that she was from Iraq, and Arnold
stated that he had been there while serving in the army. Plaintiff
asked several questions about his experience there, and Arnold
responded, trying to speak positively, indicating that the people
were very friendly and that the physical landscape was beautiful.
This discussion lasted a few minutes. Arnold Aff., ¶¶ 6-7. Arnold
then proceeded to interview plaintiff, asking her questions about
her previous experience and other job-related matters.
Aff., ¶ 8.
Arnold
Plaintiff stated that she was looking for a career
change, but admitted that she did not have any prior mortgage
banking or foreclosure experience, and she was not familiar with
the job responsibilities of the Operations Specialist position.
Arnold Aff., ¶ 10.
At the conclusion of the interview, plaintiff
stated that it was nice to meet someone who knew her home country,
and Arnold responded that he would like to go back to Iraq some day
as a tourist.
He informed plaintiff that from that point on, he
would not be communicating with her; rather, Human Resources would
continue any discussions regarding the status of her application.
Arnold Aff., ¶ 11.
Arnold stated that he never discussed with
plaintiff any of his war-related experiences while in Iraq. Arnold
Aff., ¶ 12.
Arnold further stated that although he knew that
plaintiff was originally from Iraq, he did not know her race or
religion, which were never mentioned during the interview.
Arnold
Aff., ¶15.
Arnold also stated that he was impressed with plaintiff, and
that he recommended plaintiff for the position of Operations
Specialist despite the fact that she did not have the preferred
5
qualifications for the position.
Arnold Aff., ¶ 13.
Arnold
interviewed two other candidates for the Operations Specialist
position on August 16, 2013, a Caucasian male and a Caucasian
female.
Arnold did not recommend the male candidate, who had no
prior mortgage, finance or banking experience, and who, unlike
plaintiff, did not have the communication skills necessary for the
position.
Arnold
also did not recommend the Caucasian female
candidate, who did have prior mortgage and finance experience,
because he did not think that she was otherwise suited for the
position.
Arnold Aff., ¶14.
Following the interview, Arnold sent a “Chase Retail Financial
Services-Offer/Decline” form recommending plaintiff for hire in the
Operations Specialist position, which he identified as Exhibit E to
defendants’
motion
for
summary
judgment,
to
Assistant
President/Operations Manager Christina Lieb August.
Vice
On that form,
he noted that “Majeda is looking to change careers away from
teaching, and would make a great addition to foreclosure.” Ex. E.
Arnold also identified Exhibit D as his interview notes.
Aff., ¶ 13.
Arnold
This form indicated that the position being discussed
was “Senior Ops Specialist/Operations Specialist - Foreclosure
Department.”
On that form, Arnold stated that plaintiff “was
unaware of the job responsibilities” but was “familiar with Chase.”
In answer to the question “what makes a good employee” and a “good
manager,” plaintiff responded, “good communicator” and “patience.”
Arnold noted that in response to a question about adapting to a
changing environment, plaintiff indicated that she “would prefer
change to stagnation.”
Arnold also noted that plaintiff wanted to
“work her way up,” that she “owns a language school,” that there
6
were no gaps in employment, and that she was not on any type of
disciplinary action or probation.
After sending Exhibit E to
Christina August, he had no further involvement in the hiring
process for the Operations Specialist position. Arnold Aff., ¶ 16.
Plaintiff’s version of the interview on August 16th differs
from that provided by Arnold. Plaintiff stated that Arnold’s first
question to her was about her nationality.
that
she
was
from
Iraq,
Arnold
After she informed him
“proceeded
with
a
one-sided
conversation about his war experience in Iraq going into detail
about working in the Taji prison and his war experience in the city
of Faluja.”
Mohammad Aff., ¶ 8.
She stated that Arnold’s
conversation was “condescending, disrespectful and arrogant” and
made her feel humiliated and embarrassed.
Mohammad Aff., ¶ 9.
Plaintiff stated that Arnold asked only two job-related questions
about her degree and why she taught social studies. Mohammad Aff.,
¶ 10.
At the end of the interview, Arnold informed her that there
was only one position she might be qualified for, and when she
asked who she should contact to follow up on the interview, he
curtly responded twice, “Don’t call me.”
Mohammad Aff., ¶ 11.
Plaintiff claimed that Arnold took no notes during the interview,
and that he did not have Exhibit D, the interview notes, with him
at that time.
Mohammad Aff., ¶ 12.
Mary DeMello, the Chase recruiting officer responsible for
evaluating the candidates interviewed at the August 16, 2011, job
fair,
stated
in
her
affidavit
that
she
received
a
list
of
candidates from Christina August. DeMello Aff., ¶ 2. Twenty-seven
candidates applied for twenty open positions, and it was DeMello’s
responsibility to determine who to hire.
7
DeMello Aff., ¶ 3.
DeMello found that plaintiff did not meet the minimum preferred
qualifications for the Operations Specialist position.
Plaintiff
was not extended an offer because there were more recommended
candidates than open positions, and plaintiff did not meet the
preferred minimum qualifications for the position.
¶ 4.
DeMello Aff.,
At that time, DeMello had no knowledge of plaintiff’s
national origin, race or religion.
DeMello Aff., ¶ 5.
Following the interview, plaintiff telephoned her to ask about
the status of her offer. At that point, DeMello informed plaintiff
that she had not yet received any feedback from the interviews,
that selected candidates would be notified by telephone, and that
non-selected candidates would be notified by e-mail. DeMello Aff.,
¶ 7.
Later that day or the following day, plaintiff called again
to ask about her offer.
DeMello returned the call and left a
message stating that the decision-making process was still ongoing.
DeMello Aff., ¶ 8.
Plaintiff called a third time and asked
to discuss the details of her offer.
DeMello was taken aback by
this, as she had never indicated to plaintiff that she would be
receiving an offer.
Plaintiff asked for the name and number of
DeMello’s manager. DeMello informed plaintiff that her manager was
John Morell, and that she would have him contact plaintiff.
DeMello Aff., ¶ 9.
Plaintiff was notified by e-mail on August 24, 2011, that she
was not selected for the Operations Specialist position.
Aff., ¶ 6; Doc. 20-6, Ex. F.
DeMello
The e-mail advised plaintiff that she
was not selected for the position of Operations Specialist. The email further stated that plaintiff’s profile would remain in the
system, and it encouraged plaintiff to continue to explore other
8
positions and to visit the career site from time to time to update
her profile.
On August 17, 2011, plaintiff filed a complaint with Chase
concerning her interview with Arnold.
20-7, Ex. G.
Mohammad Aff., ¶ 13; Doc.
Plaintiff stated in her affidavit that on August 18,
2011, she received a message from DeMello wanting to talk about
“the problem.”
When plaintiff called DeMello, she did not discuss
“the problem,” but rather asked her it she was still interested in
a job with Chase.
Plaintiff said that she was, and DeMello
promised to get back with her in a few days.
Mohammad Aff., ¶ 14.
Plaintiff called DeMello on August 22, 2011, to ask about the job,
and DeMello replied, “Why are you in such a hurry?
the interview on August 16, 2011.”
a few days.
You just had
DeMello said she would call in
Plaintiff further stated that when she called DeMello
on August 31, 2011, DeMello denied ever talking to her before, and
informed plaintiff that she had not been accepted in any position.
When plaintiff asked for the name of DeMello’s supervisor, she
responded “John Morell” and stated that she would have Morell
contact her. When plaintiff did not hear from Morell, she sent him
a letter on September 5, 2011, complaining about her interview with
Arnold and her interactions with DeMello.
Mohammad Aff., ¶ 17;
Doc. 20-8, Ex. H.
John Morell, Vice President/Recruiting Officer II for Chase,
stated in his affidavit that on August 17, 2013, he was given a
letter
from
plaintiff
plaintiff’s friend.
by
Amal
Aziz,
a
Chase
employee
and
In this letter, identified as Exhibit G,
plaintiff alleged that Arnold’s first question was about her
national
origin,
and
that
Arnold
9
spent
a
great
deal
of
the
interview talking about his war experience in Iraq. In her letter,
plaintiff claimed that Arnold “thought of me as a captive audience
on whom he can safely unload his ‘psychological burden of war.’”
Doc. 20-7, Ex. G. Plaintiff stated that Arnold was “condescending,
disrespectful and arrogant” and that it was “very embarrassing and
humiliating.”
Ex. G.
Plaintiff alleged that Arnold told her that
she was not qualified for the position of manager, and that, of
twelve postings, she might qualify for one, but he refused to tell
her which position that was.
Plaintiff stated that she asked
Arnold which job the interview was for, and he told her “None.”
Ex. G.
Plaintiff concluded that “strong elements of bias in Mr.
Arnold’s conduct and demeanor were filtering through his facade.
Surely, Chase would not allow its reputation to be maligned as a
discriminatory organization.”
Ex. G.
Morell forwarded the letter
to Human Resources for investigation.
Doc. 20-11, Morell Aff., ¶
2.
On September 5, 2011, Morell received an e-mail from plaintiff
complaining about her interactions with DeMello. Morell Aff., ¶ 3.
He telephoned plaintiff on September 7, 2011, to acknowledge
receipt of her e-mail and to inform her that the matter would be
investigated.
Both Arnold and DeMello were contacted by Human
Resources concerning plaintiff’s complaints.
DeMello Aff., ¶ 10.
Arnold Aff., ¶ 17;
Following the investigation, Morell was
informed by Human Services that Arnold and DeMello did not act
inappropriately.
Morell Aff., ¶¶ 2, 4.
On September 9, 2011,
Morell telephoned plaintiff and told her that her complaints had
been
investigated
and
that
Chase
had
found
no
evidence
of
inappropriate or discriminatory practices in the hiring process.
10
He also informed plaintiff that she was welcome to apply for other
positions at Chase.
Morell Aff., ¶ 5.
Plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission on October 4, 2011.
The EEOC
issued a right-to-sue letter on or about May 16, 2012.
III. Plaintiff’s Claims
A. Applicable Standards
Absent
direct
evidence
of
discrimination,2
plaintiff’s
failure-to-hire discrimination claims under Title VII, §1981 and
Ohio
Rev.
Code
§4112.02
are
governed
by
the
burden-shifting
framework announced in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973).
White v. Baxter Healthcare Corp., 533 F.3d 381, 391
(6th Cir. 2008)(applying McDonnell Douglas analysis to Title VII
and §1981 claims); Laderach v. U-Haul of Northwestern Ohio, 207
F.3d 825, 828 (6th Cir. 2000)(Title VII standards apply to Ohio
discrimination laws)(citing Little Forest Med. Ctr. of Akron v.
Ohio Civil Rights Comm’n, 61 Ohio St.3d 607, 575 N.E.2d 1164, 1167
(1991)).
Under the McDonnell Douglas framework, plaintiff bears the
burden of establishing a prima facie case of discrimination by a
White, 533 F.3d at 391.
preponderance of the evidence.
To
establish a prima facie case of discrimination, plaintiff must
2
There is no direct evidence of discrimination in this case.
Direct
evidence is evidence which, if believed, requires the conclusion that unlawful
discrimination was at least a motivating factor in the employer’s actions. Amini
v. Oberlin Coll., 440 F.3d 350, 359 (6th Cir. 2006). Where one must draw an
inference to determine the actor’s motivation, the evidence is not direct.
Romans v. Michigan Dep’t of Human Services, 668 F.3d 826, 836 (6th Cir. 2012).
Because it would be necessary to infer from Arnold’s inquiry about plaintiff’s
national origin and his discussion of his wartime experiences in Iraq that his
actions or decisions were motivated at least in part by a discriminatory animus
based on her national origin, his statements do not constitute direct evidence.
11
demonstrate: (1) that she is a member of a protected class; (2)
that she suffered an adverse employment action; (3) that she was
qualified for the position; and (4) that another similarly-situated
candidate outside the protected class was hired or treated more
favorably, or that the employer continued to seek applications from
persons with plaintiff’s qualifications. Rodriguez-Monguio v. Ohio
State University, 499 Fed.Appx. 455, 459 (6th Cir. 2012)(citing
Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 363 (6th Cir.
2010)); Birch v. Cuyahoga Cty. Probate Court, 392 F.3d 151, 165-66
n. 12 (6th Cir. 2004).
Once plaintiff establishes this prima facie case, the burden
shifts to the defendants to “offer evidence” of a legitimate, nondiscriminatory reason for the adverse employment action.
White,
533 F.3d at 391; see also Adamov v. U.S. Bank Nat’l Ass’n, 726 F.3d
851,
854-55
(6th
Cir.
2013)(defendant’s
production, not persuasion).
burden
is
one
of
If the defendants succeed in this
task, the burden shifts back to the plaintiff to show that the
defendants’ proffered reason was not the true reason, but merely a
pretext for discrimination. Adamov, 726 F.3d at 854 (burden was on
plaintiff
to
demonstrate
by
competent
evidence
that
the
presumptively valid reasons for his rejection were in fact a
coverup for a discriminatory decision); White, 533 F.3d at 391-92;
Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1083 (6th
Cir. 1994). Although the burdens of production shift, the ultimate
burden
of
persuading
the
trier
of
fact
that
the
defendants
intentionally discriminated against the plaintiff remains at all
times with the plaintiff.
White, 533 F.3d at 392.
Pretext may be established by showing that the employer’s
12
stated reason for the adverse employment action either: (1) has no
basis
in
fact;
(2)
was
not
the
actual
reason;
or
(3)
is
insufficient to explain the employer’s action. Imwalle v. Reliance
Med. Prods., Inc., 515 F.3d 531, 545 (6th Cir. 2008).
Plaintiff
may demonstrate pretext by offering evidence which challenges the
reasonableness of the employer’s decision “to the extent that such
an inquiry shed light on whether the employer’s proffered reason
for the employment action was its actual motivation.”
Wexler v.
White’s Fine Furniture, Inc., 317 F.3d 564, 578 (6th Cir. 2003).
Plaintiff bears the ultimate burden to prove pretext, and to
survive summary judgment, she must provide evidence that could lead
a reasonable jury to find that the defendants’ proffered reasons
for declining to hire her were pretextual.
Davis v. Cintas Corp.,
717 F.3d 476, 492 (6th Cir. 2013).
B. Defendant’s Knowledge of Plaintiff’s Membership in Protected
Groups
Defendants do not dispute that plaintiff is a native of Iraq,
that her race is Arabic, and that her religion is Muslim. However,
in proving a case of discrimination, plaintiff bears the burden of
demonstrating that the decision-maker for the employer had actual
knowledge of her membership in these protected classes.
See
Prebilich-Holland v. Gaylord Entertainment Co., 297 F.3d 438, 443444 (6th Cir. 2002).
In this case, there is no evidence that Brad Arnold, the
person who interviewed plaintiff, or Mary DeMello, the recruiting
officer who made the decision not to hire plaintiff, knew that
plaintiff’s race was Arabic, or that she was a Muslim.
Plaintiff
has provided no evidence that anyone at Chase commented on her race
13
or religion, nor does plaintiff claim that she and Arnold discussed
her race or religion during the interview.
Because there is no
evidence in the record concerning plaintiff’s physical appearance,
it cannot be inferred that Arnold, in meeting plaintiff, would
think of her as anything other than Caucasian.
Arnold also stated
in his affidavit that he did not know plaintiff’s race or religion.
Arnold Aff., ¶ 15.
The first time plaintiff referred to her race
and religion was in her September 5, 2011, e-mail correspondence to
DeMello’s supervisor, John Morell.
This occurred after DeMello’s
August 24, 2011, decision not to extend plaintiff an offer.
See
Doc. 22-2, DeMello Aff. ¶¶ 14-15; Doc. 20-8, Ex. H.
DeMello, who reviewed the referrals from the interviews and
made the decision concerning which candidates would receive job
offers, stated that she had no knowledge of plaintiff’s race,
religion, or national origin at the time she made her decision.
DeMello Aff., ¶¶ 3, 5.
DeMello also stated in her affidavit that
she did not make any conclusions about plaintiff’s race, religion
or national origin based upon information provided in her resume,
such as where she attended college (Baghdad), the languages she
speaks, or her extracurricular activities.
Aff., ¶ 14.
Doc. 22-2, DeMello
Plaintiff’s name alone would not establish that
DeMello would have been aware of that information.
The well-known
African-American boxer, Muhammad Ali, who changed his name from
Cassius Clay, is one example of how a Middle Eastern-sounding name
is not necessarily an accurate indicator of race or national
origin.
In this day of global travel and interaction, it is not
unusual for individuals to live, work, marry or study outside their
native country.
14
Arnold stated that he did know that plaintiff was from Iraq.
Arnold Aff., ¶ 15.
In view of Arnold’s knowledge of plaintiff’s
national origin, the relevant question is whether he took any
adverse action which influenced DeMello’s decision not to hire
plaintiff.
The first dispute of fact plaintiff attempts to raise concerns
the number of positions for which she actually interviewed.
Plaintiff claims that she attended the August 16, 2011, hiring event
for the positions of Operations Specialist, Senior Operations
Specialist, and Operations Manager.3
Mohammad Aff., ¶ 6.
She
stated that she was interviewed by Arnold “for what I believed to
be all three job positions[.]”
Mohammad Aff., ¶ 7.
Plaintiff’s
subjective and conclusory allegations that she “believed” that she
was interviewing for all three positions when she talked with Arnold
are insufficient to raise a genuine dispute of material fact in
regard to Arnold’s statement that he interviewed plaintiff only for
the Operations Specialist position.
See Hartsel v. Keys, 87 F.3d
795, 804 (6th Cir. 1996); Mitchell v. Toledo Hosp., 964 F.2d 577,
584-85
(6th
Cir.
1992)(“conclusory
allegations
and
subjective
beliefs ... are wholly insufficient evidence to establish a claim
of discrimination as a matter of law”).
Plaintiff’s affidavit is
also insufficient under Fed. R. Civ. P. 56(c)(4), as it fails to
disclose that she had any personal knowledge concerning Chase’s
interview practices and procedures.
See Mitchell, 964 F.2d at 584.
Defendant has presented evidence that plaintiff was not invited
3
The job number 110067669 referred to by plaintiff in her affidavit as
being connected with the position of senior operations specialist was actually
the job requisition number for the position of Senior Operations Analyst. See
Doc. 20-1, Ex. A, p. 1.
15
by Human Resources to the August 16, 2011, job fair to interview for
any of the three positions. Plaintiff was interviewed by Arnold for
the position of Operations Manager as a walk-in applicant. Doc. 222, DeMello Aff., ¶ 11; Arnold Aff., ¶¶ 2-4.
Arnold explained to
plaintiff that he could only interview her for the position of
Operations Specialist because he was not qualified to interview her
for the management level position of Operations Manager.
Aff., ¶ 4.
Arnold
Exhibit E, the Offer/Decline Form Arnold forwarded to
Christina August, recommended offering plaintiff the position of
Operations Specialist, hiring number 110053989.
The computer
printout of plaintiff’s job application file includes a note by
DeMello next to the position of Senior Operations Specialist, hiring
number 110053992, that plaintiff was interviewed on August 16, 2011,
but that note does not specifically state that plaintiff was
interviewed for the position of Senior Operations Specialist.
Significantly, the entry for the Operations Specialist position for
which plaintiff was interviewed includes the notation “Offer 1 Created”
dated August 18, 2011, but the record for the Senior
Operations Specialist position does not.
32-34.
See Doc. 22-7, Ex. B, pp.
The computer printout does not indicate that plaintiff
interviewed for any other positions on August 16, 2011.
Defendants have also presented additional evidence on the issue
of whether plaintiff interviewed for other positions.
Assistant
Vice President/Foreclosure Manager Michael Fleshman stated in his
affidavit that Arnold did not conduct the interviews for the
positions of Operations Manager and Senior Operations Analyst;
rather, those interviews were conducted by Fleshman and other
employees.
Doc. 22-1, Fleshman Aff., ¶ 6.
16
The only rejection e-
mail sent to plaintiff which is included in the record is the August
24, 2011, e-mail referring to the Operations Specialist, hiring
number 110053989.
See Ex. E.
The only evidence in the record concerning Arnold’s involvement
in the hiring process for the position of Operations Specialist is
that Arnold recommended plaintiff for hire for the Operations
Specialist position despite the fact that she did not have the
preferred qualifications for the position and had no relevant
experience. Arnold Aff., ¶ 13. Arnold identified Exhibit E as the
“Chase Retail financial Services-Offer/Decline Form he completed for
plaintiff, and Exhibit D as his interview notes. Arnold Aff., ¶ 13.
After sending Exhibit E, the Offer/Decline form, to Assistant Vice
President/Operations Manager Christina Lieb August, he had no
further involvement in the hiring process.
Arnold Aff., ¶ 16.
Plaintiff now seeks to raise a dispute of fact about the
authenticity of Exhibits D, E and F.
In regard to Exhibit D,
identified by Arnold as his notes from his interview with plaintiff,
see Arnold Aff., ¶ 13, plaintiff claims that Arnold did not take any
notes during the interview.
Mohammed Aff., ¶ 12.
However, Arnold
did not specify that he wrote the notes during the interview; they
easily could have been completed afterward.
Plaintiff also challenges Exhibits E and F.
Exhibit E is an
Offer/Decline Form for the Operations Specialist position, hiring
requisition no. 110053989, which is filled in by hand, with the
“OFFER” box checked.
at the top.
The form includes the date “07/27/2011" typed
Exhibit F is the rejection e-mail dated August 24,
2011, which informed plaintiff of her non-selection for the position
of Operations Specialist, no. 110053989.
17
with no discussion of the
factual basis for her belief, plaintiff claims that these forms
related to a previous Chase job fair she attended on July 26, 2011,
when she allegedly interviewed with Mike Fleshman for the position
of Operations Specialist. Mohammad Aff., ¶¶ 3-5. Plaintiff suggests
that defendants are attempting to fraudulently substitute documents
from the earlier interview in an effort to falsely establish that
Arnold
recommended
her
for
hire,
thereby
minimizing
Arnold’s
allegedly discriminatory actions.
Defendants note that although Exhibit E refers to a position
“Reporting To: Mike Fleshman,” Fleshman’s name does not appear
anywhere on the form as the interviewer.
Fleshman stated in his
affidavit that he has never have any contact with plaintiff, has
never interviewed plaintiff for or in connection with any position
at Chase, and has never completed an Offer/Decline Form relating to
plaintiff.
Fleshman Aff., ¶ 3.
DeMello stated in her affidavit
that Chase did not hold any hiring event on July 26, 2011, and that
August 16, 2011, was the only time plaintiff interviewed for the
Operations Specialist position.
Even
accepting
Doc. 22-2, DeMello Aff., ¶ 16.
plaintiff’s
conclusory
statement
that
she
interviewed with Fleshman on July 26, 2011, this evidence is
insufficient to create a genuine dispute of material fact concerning
the authenticity of Exhibit E as being the Offer/Decline document
prepared by Arnold following his interview with plaintiff, or of
Exhibit F as being the e-mail notification of non-selection relating
to the August 16th interview identified by DeMello. With their reply
memorandum,
defendants
have
submitted
additional
evidence
establishing that Exhibit E was completed by Arnold following his
interview of plaintiff on August 16, 2011.
18
Christina August stated
in
her
affidavit
that
she
was
responsible
for
compiling
the
Offer/Decline Forms in connection with the Operations Specialist
position, job number 110053989.
Doc. 22-3, August Aff., ¶ 3.
She
identified Reply Exhibit A as an e-mail dated August 16, 2011, which
she received from Arnold with the subject line “Offer-Decline forms
8/16 hiring event: with “Majeda Mohammed [sic] - Offer 110053989"
as an attached document.
The attached document is a typed version
of Exhibit E, the Offer/Decline Form, bears the correct interview
date of 8/16/2011, with plaintiff as the person being interviewed
for job number 110053989, and the “OFFER” box is checked.
The date
on Exhibit E is “07/27/2011," not July 26, 2011, the date on which
plaintiff alleges that she interviewed with Fleshman. The Interview
Notes box includes the same language which was handwritten in that
box on Exhibit E, namely, “Majeda is looking to change careers away
from teaching, and would make a great addition to the foreclosure
department.”
In addition, DeMello identified Exhibit F as the e-
mail plaintiff received informing her that she was not selected for
the position of Operations Specialist after DeMello evaluated the
candidates recommended for offers at the August 16, 2011, job fair.
Doc. 20-12, DeMello Aff.,
¶¶ 2, 4-6.
There is no genuine dispute of material fact that Arnold
recommended that plaintiff receive an offer for the position of
Operations Specialist.
There is also no evidence from which a jury
could reasonably find that any discriminatory animus Arnold may have
felt
based
on
plaintiff’s
national
origin
adversely
impacted
DeMello’s decision-making process.
DeMello, who reviewed the referrals from the interviews and
made the decision concerning which candidates would receive job
19
offers, stated that she had no knowledge of plaintiff’s race,
religion, or national origin at the time she made the decision not
to hire plaintiff on August 24, 2011.
DeMello Aff., ¶¶ 3, 5-6.
DeMello also stated that on August 24, 2011, she was not aware that
plaintiff had any issues with her interview with Arnold. Doc. 22-2,
DeMello Aff., ¶ 15.
DeMello was also unaware on August 24, 2011,
that
any
plaintiff
had
complaints
about
her
interaction
with
DeMello; plaintiff’s letter to Morell complaining about DeMello was
e-mailed to him on September 5, 2011.
Plaintiff
seeks
to
create
a
DeMello Aff., ¶ 15.
dispute
of
fact
concerning
DeMello’s knowledge of her national origin, race or religion by
claiming that on August 18, 2011, she received a voice mail message
from DeMello stating that she wanted to discuss “the problem.”
Plaintiff stated that when she returned DeMello’s call, DeMello did
not discuss “the problem” and only asked if plaintiff was still
interested in a job with Chase.
Mohammad Aff., ¶ 14.
Plaintiff
claimed that on August 31, 2011, after the rejection notice of
August 24, 2011, she called DeMello again and DeMello denied ever
having had a conversation with plaintiff.
Mohammad Aff., ¶ 16.
Even assuming that DeMello made the statements attributed to her by
plaintiff, there is no evidence that DeMello ever made any reference
to plaintiff’s national origin, race or religion in any of these
conversations. Plaintiff has provided no evidence that DeMello ever
explained what she meant by “the problem.”
The nature of “the
problem” allegedly mentioned by DeMello in her phone message is
purely speculative.
sufficient
to
raise
This vague reference to “the problem” is not
an
inference
that
DeMello
was
aware
of
plaintiff’s national origin, race or religion, or that she had any
20
knowledge of plaintiff’s complaints concerning her interview with
Arnold.
Plaintiff also attempts to discredit DeMello by claiming that
DeMello went on-line and cancelled out each of the positions that
plaintiff applied and interviewed for with Arnold on August 16,
2011.
However, DeMello stated that each position was assigned both
a sourcing requisition number (when the position was opened in the
system
by
the
recruiter
assigned
to
fill
the
position
in
anticipation of the one-day hiring event) and a hiring requisition
number.
Doc. 22-2, DeMello Aff., ¶¶ 5, 7, 10.
After the hiring
event was concluded, the sourcing requisition numbers were no longer
relevant, and DeMello cancelled them on August 23, 2011.
Aff., ¶ 8.
DeMello
The hiring requisition number for the position of
Operations Specialist, 110053989, remained in the system, and was
used
to
hire
positions.
individuals
for
the
DeMello Aff., ¶ 9.
open
Operations
Specialist
The deletion of the sourcing
requisition numbers by DeMello fails to prove that DeMello acted
improperly during the hiring process.
The evidence fails to show that DeMello, the person who
ultimately decided not to extend plaintiff a job offer, had any
knowledge of plaintiff’s national origin, race or religion or was
negatively influenced by Arnold or anyone who had such knowledge.
No genuine dispute of material fact has been shown to exist in that
regard, and plaintiff has not established the first element of her
prima facie case.
C. Qualified for the Position
The second element of the prima facie case requires evidence
sufficient to prove that plaintiff was qualified for the job.
21
The
job description for the position of Operations Specialist states
that mortgage banking experience was preferred, and that previous
foreclosure or legal experience was preferred.
Doc. 20-3, Ex. C.
Plaintiff admitted to Arnold that she did not have any prior
mortgage banking experience or previous foreclosure experience.
Arnold Aff., ¶ 10. Plaintiff’s resume reflects no mortgage banking,
foreclosure or legal experience and plaintiff has presented no other
evidence that she has any such experience.
See Doc. 20-2, Ex. B.
However, without discussing the factual basis for her knowledge,
plaintiff now argues that when she completed the on-line application
process
and
received
an
acknowledgment
of
receipt
of
her
application, she was automatically pre-qualified for the positions
for which she applied.
There is no evidence in the record to support plaintiff’s claim
that she was pre-qualified for these three positions prior to her
interview.
DeMello stated in her affidavit that Chase’s on-line
application process uses information provided by the applicant to
automatically generate computer notifications of open positions for
which an applicant may want to apply.
3.
Doc. 22-2, DeMello Aff., ¶
If the applicant receives a job posting notification, that does
not mean that the applicant is pre-qualified for the position.
At
the time such notices are sent, no Chase recruiter has reviewed the
applicant’s qualifications, and Chase does not pre-qualify any
applicant for a position.
DeMello Aff., ¶ 4.
The language of the computer notifications sent to plaintiff
speaks for itself. The notice acknowledged that each of plaintiff’s
applications expressing an interest in the positions of Operations
Specialist, Senior Operations Analyst and Operations Manager “has
22
been successfully received.”
The notices further stated that “[a]
member of our Staffing department will review your qualifications.
Those
candidates
with
the
experience
and
qualifications
that
correspond to our requirements may be contacted by a member of our
Staffing department.”
See Doc. 22-8, Reply Ex. C.
There is no
evidence that plaintiff was ever contacted by a Staffing member.
According to DeMello, plaintiff was not pre-qualified for any
position for which she received a job posting notification or for
which she applied, and Chase did not invite plaintiff to attend the
August 16, 2011, job fair.
DeMello Aff., ¶¶ 4, 11.
determined
did
that
plaintiff
not
meet
the
DeMello also
minimum
qualifications for the Operations Specialist position.
preferred
DeMello
Aff., ¶ 13.
The evidence is insufficient to create a genuine dispute of
material fact in regard to whether plaintiff was qualified for any
of the positions for which she applied.
D. Adverse Employment Action
The third element of the prima facie case is that plaintiff
suffered an adverse employment action.
The evidence shows that
plaintiff suffered an adverse employment action when she was not
hired for the Operations Specialist position.
element of the prima facie case is satisfied.
Therefore, this
However, because the
evidence is insufficient to show the existence of a genuine dispute
of material fact in regard to whether plaintiff interviewed for the
positions of Senior Operations Specialist, Senior Operations Analyst
and Operations Manager Foreclosure, or whether she received notice
of
her
non-selection
for
those
positions,
her
claim
of
discrimination based on Chase’s failure to hire her for those
23
positions fails.
E. Similarly-Situated Persons Outside Protected Group Were Hired
The fourth element of the prima facie case requires plaintiff
to prove that another similarly-situated candidate outside the
protected class was hired or treated more favorably, or that the
employer
continued
to
seek
plaintiff’s qualifications.
applications
from
persons
with
See White, 429 F.3d at 242 (in order
to satisfy the fourth prong, plaintiff must establish that she and
the non-protected person who ultimately was hired for the desired
position had similar qualifications).
Plaintiff acknowledges that
she has no direct evidence indicating that comparable, non-protected
persons were treated more favorably.
Doc. 21, p. 12.
However, she
claims for the first time in her memorandum contra defendants’
motion for summary judgment that she does not have this information
because it is in the defendants’ possession.
Defendants note that plaintiff and her counsel never requested
the production of information concerning the other individuals who
were hired for the Operations Specialist position following the
August 16, 2011, job fair in the discovery phase of this case.
Chase provided answers, responses and objections to plaintiff’s
First Set of Interrogatories and First Request for Production of
Documents,
see
Doc.
21,
Ex.
3,
and
Arnold
provided
answers,
responses and objections to plaintiff’s Request for Admissions,
Interrogatories and Request for Production of Documents, see Doc.
22, Ex. D.
Eve M. Ellinger, co-counsel for defendants, stated in
her affidavit that at no time did plaintiff or plaintiff’s counsel
contact her or Chase to complain that Chase’s discovery responses
24
were deficient in any way. Doc. 22-5, Ellinger Aff., ¶ 3. She also
stated that plaintiff and her counsel never contacted her regarding
taking depositions, and never sent a notice for depositions.
The
scheduling
order
entered
by
the
magistrate
judge
on
November 14, 2012, set a discovery deadline of May 7, 2013, thus
allowing almost six months for discovery.
The record reveals that
plaintiff never moved to extend that deadline, and never filed a
motion to compel discovery or a notice of deposition.
Under Fed.
R. Civ. P. 56(d) (formerly Fed. R. Civ. P. 56(f)), a nonmovant may
show by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, and
request that the court allow time for additional discovery.
R. Civ. P. 56(d)(2).
56(d).
Fed.
Plaintiff never filed a motion under Rule
Under Fed. R. Civ. P. 56(c)(1)(A), a party moving for
summary judgment may rely on a variety of materials in the record,
including
affidavits.
documents,
electronically
Defendants
were
under
stored
no
information,
obligation
to
and
schedule
depositions on their own initiative, with no request from plaintiff,
in order to provide plaintiff with discoverable information.
Having failed to fully take advantage of the discovery process,
plaintiff cannot excuse her failure to provide evidence sufficient
to establish the fourth element of her prima facie case by saying
that the information is in the custody of the defendants.
Because
there is no evidence that other similarly-situated applicants
outside plaintiff’s protected class were hired for the Operations
Specialist positions, plaintiff has failed show that she could prove
the fourth element of her prima facie case.
F. Legitimate Nondiscriminatory Reason for Failure to Hire
25
Even assuming that plaintiff had established a prima facie
case, defendants have advanced a legitimate, nondiscriminatory
reason for not hiring plaintiff.
Operations
Specialist
position
The job description for the
stated
that
mortgage
banking
experience was preferred, and that previous foreclosure or legal
experience was preferred. Doc. 20-3, Ex. C. Plaintiff did not have
these qualifications. Doc. 20-3, Ex. B; Arnold Aff., ¶ 10. DeMello
stated that there were twenty-seven candidates who were interviewed
on August 16, 2011, and who were recommended to receive offers.
Doc. 20-12, DeMello Aff., ¶ 3.
DeMello determined that plaintiff
did not meet the minimum preferred qualifications for the Operations
Specialist position.
Plaintiff did not receive an offer because
there were more recommended candidates than open positions, and
plaintiff did not meet the preferred minimum qualification for the
position. DeMello Aff., ¶ 4. In plaintiff’s computer file, DeMello
noted
On
Specialist
August
24,
position,
2011,
in
number
foreclosure/mortgage exp.”
connection
110053989,
with
that
the
Operations
plaintiff
“lacks
Doc. 22-7, p. 32.
Although plaintiff acknowledges that defendants’ burden is one
“of production, not persuasion[,]” plaintiff argues that defendants
“offer
little
to
this
court
to
prove
legitimate and non-discriminatory[.]”
that
their
reason
was
See Doc. 21, pp. 14-15.
Defendants were only required to “offer evidence of a legitimate,
nondiscriminatory reason for the adverse employment action.” White,
533 F.3d at 391; Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 142 (2000)(the employer’s burden is one of production, not
persuasion).
The defendants have offered competent evidence in the
form of affidavits and documentary evidence sufficient to meet their
26
burden of producing evidence of a legitimate reason for Chase’s
reason not to hire plaintiff.
G. Proof of Pretext
Pretext may be established by showing that the employer’s
stated reason for the adverse employment action either: (1) has no
basis in fact; (2) was not the actual reason; or (3) is insufficient
to explain the employer’s action.
Imwalle, 515 F.3d at 545.
Plaintiff has not met this burden.
She does not dispute that she
has no prior mortgage banking, foreclosure or legal experience.
Plaintiff
has
produced
no
evidence
that
her
lack
of
these
qualifications has no basis in fact or was not the actual reason for
Chase’s failure to hire her.
She has offered no evidence that her
lack of these qualifications was insufficient to explain Chase’s
action.
Plaintiff argues that defendants were required to show that the
twenty applicants who were awarded Operations Specialist positions
had prior mortgage banking, foreclosure or legal experience.
This
mischaracterizes the defendants’ burden and improperly shifts the
burden of showing pretext away from plaintiff. See Adamov, 726 F.3d
at 854.
It is plaintiff “who needed to ‘demonstrate by competent
evidence that the presumptively valid reasons for [her] rejection
were in fact a coverup for a ... discriminatory decision.’”
Id.
(quoting McDonnell Douglas, 411 U.S. at 805); see also Davis, 717
F.3d at 492 (to survive summary judgment, plaintiff must provide
evidence that could lead a reasonable jury to find that the
defendants’ proffered reasons for declining to hire here were
pretextual).
Plaintiff has not met her burden in this case.
IV. Conclusion
27
The court concludes that no genuine dispute of material fact
has been shown to exist in this case, and that defendants are
entitled to summary judgment on plaintiff’s claims. The defendants’
motion for summary judgment (Doc. 20) is granted.
The clerk is
directed to enter judgment in favor of defendants on all of
plaintiff’s claims.
Date: October 28, 2013
s/James L. Graham
James L. Graham
United States District Judge
28
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