Sims v. Wells Fargo Bank, N.A.

Filing 21

MEMORANDUM OPINION AND ORDER DENYING 20 MOTION for Extension of Time Agreed Motion to Amend Scheduling Order to Extend Deadlines, DENYING 15 MOTION for Summary Judgment Wells Fargo Bank, N.A.'s Motion for Summary Judgment Against Claims Asserted by Plaintiff Rochelle Sims.(Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ROCHELLE SIMS,
Plaintiff,
v.
WELLS FARGO BANK, N.A.,
Defendant.

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CIVIL ACTION H-16-3212

MEMORANDUM OPINION AND ORDER
Pending before the court is a motion for summary judgment filed by defendant Wells Fargo
Bank, N.A. (“Wells Fargo”). Dkt. 15. Having considered the motion, response, reply, record
evidence, and applicable law, the court is of the opinion that the motion should be DENIED.
I. BACKGROUND
In this employment discrimination case, plaintiff Rochelle Sims, an African American
woman, worked as the branch manager of Wells Fargo’s Waterside branch from 2010 to 2015.
Dkt. 15-5. Initially, Wells Fargo paid Sims $50,147 and later increased her salary to $53,000. Id.
As branch manager, she reported to various district managers, including Riad Ali. Dkt. 16
at 7. Sims received many performance reviews from her district managers. Dkts. 15-6, 15-7, 15-8,
15-9, 15-10, 15-11, 15-12. Those performance reviews regularly indicated that Sims “[m]et some
but not all key targets” or “[m]et all and may have exceeded some key targets.” Id. The reviews also
contained specific instances of positive and negative feedback. Id.
In 2013 and 2014, Sims received numerous awards for her job performance. Dkt. 16-3.
Notably, she received one award on November 5, 2014. Id. Two days before, Wells Fargo placed

Sims on a Performance Improvement Plan (“P.I.P.”). Dkt. 15-13. The P.I.P. alerted Sims that she
fell below the bank’s expectations in various areas and gave her a plan to improve as manager. Id.
Several months earlier in July 2014, Abdul Hannan transferred to Sims’s branch as a business
banking specialist. Dkts. 15-17, 15-18. As branch manager, Sims conducted Hannan’s performance
reviews. Dkt. 16-1 at 8. In March 2015, while conducting that review, Sims alleges that she learned
the bank paid Hannan more than it paid her.1 Id. When Sims learned about the pay gap with
Hannan, she gathered information about the salaries of male, non-African American branch
managers (“Counterparts”). Id. at 5. She claims that the bank paid her Counterparts more than it
paid her. Id. at 7. Sims acknowledges that certain factors (such as performance, experience, and
tenure) dictate a manager’s salary, but she claims she outperformed the other managers with respect
to several of those factors. Id. at 4–5, 9.
In the same month, Sims asked district manager Ali about her pay. Dkt. 16-1 at 8. She also
discussed her pay with the bank’s human resources department (“H.R.”). Dkt. 15-2 at 17. Sims
maintains that she specifically raised the issue of discrimination to H.R. Dkt. 16-1 at 10.
Ali spoke with H.R. multiple times about Sims’s pay and performance as branch manager.
Dkt. 15-4 at 13–14; Dkt. 15-25. In April 2015, Sims and Ali met. Dkt. 15-2 at 20. Sims alleges that
Ali told her to step down from her position and become a business banking specialist, or Wells Fargo
“would eat her lunch.” Id. Then, Sims transferred to a different branch and took on the business
banking specialist role. Dkt. 15 at 14. Wells Fargo adjusted Sims’s pay to $25.47 per hour, which

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Wells Fargo claims that it paid Sims more than Hannan, not including Hannan’s overtime
compensation. Wells Fargo’s evidence supports that claim. Compare Dkt. 15-5, with Dkt. 15-18
(indicating that Sims made $25.25 per hour in March 2015, resulting in an annual pay of $52,520
at 40 hours a week for 52 weeks).
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equates to nearly $53,000 per year. Dkt. 15-5. Approximately a year after Sims’s transfer, Wells
Fargo promoted Hannan to manage a branch in Edison, New Jersey. Dkt. 15-29.
Sims sued Wells Fargo alleging: (1) gender discrimination under Title VII of the Civil Rights
Act of 1964 (“Title VII”); (2) race discrimination under Title VII; (3) violation of the Equal Pay Act
(“EPA”); and (4) retaliation under Title VII. Dkt. 1. In the instant motion, Wells Fargo seeks
summary judgment on all of Sims’s causes of action. Dkt. 15.
II. LEGAL STANDARD
A court shall grant summary judgment when a “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). “[A] fact is genuinely in dispute only if a reasonable jury could return a verdict for
the nonmoving party.” Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006). The
moving party bears the initial burden of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548 (1986). If the moving party meets
its burden, the burden shifts to the non-moving party to set forth specific facts showing a genuine
issue for trial. Fed. R. Civ. P. 56(e). The court must view the evidence in the light most favorable
to the non-movant and draw all justifiable inferences in favor of the non-movant.

Envtl.

Conservation Org. v. City of Dallas, 529 F.3d 519, 524 (5th Cir. 2008).
III. ANALYSIS
A.

Gender/Race Discrimination
Sims alleges that Wells Fargo violated Title VII when it: (1) paid her less than Hannan and

her Counterparts; and (2) demoted her and replaced her with Hannan, a non-African American male.
Dkt. 1 at 4–5. Wells Fargo moves for summary judgment on those claims.

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Title VII prohibits employers from discriminating based on an individual’s race, color,
religion, sex, or national origin. 42 U.S.C. § 2000e–2(a). Where, as here, a plaintiff only relies on
circumstantial evidence, courts apply the framework from McDonnell Douglas. Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir. 2007) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802–04, 93 S. Ct. 1817 (1973)). Under McDonnell Douglas, Sims must first make
a prima facie case of gender or racial discrimination. Vaughn v. Woodforest Bank, 665 F.3d 632,
636 (5th Cir. 2011). To establish her prima facie case, Sims must show that she was: (1) a member
of a protected group; (2) qualified for the position in question; (3) subjected to an adverse
employment action; and (4) replaced by someone outside of her protected class, or was treated less
favorably than similarly situated persons outside of her protected class. Okoye v. Univ. of Tex. Hous.
Health Sci. Ctr., 245 F.3d 507, 512–13 (5th Cir. 2001).
If Sims makes that showing, the burden of production shifts to Wells Fargo to identify a
legitimate, nondiscriminatory reason for the adverse employment action. Johnson v. Louisiana, 351
F.3d 616, 621 (5th Cir. 2003). Finally, Sims—who bears the ultimate burden of persuasion to prove
discrimination—must raise a genuine issue of material fact that Wells Fargo’s proffered
nondiscriminatory reason is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 142–43, 120 S. Ct. 2097 (2000).
1.

Prima facie case

Wells Fargo first argues that Sims cannot establish her prima facie case because she cannot
produce any evidence showing that she suffered an adverse employment action or that the bank
replaced her, or treated her less favorably than, someone outside her class. Dkt. 15 at 16. Sims

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argues that the change of positions,2 which Ali forced upon her, and the pay gap (with Hannan and
with her Counterparts) count as adverse employment actions. Dkt. 16 at 10–12.
Wells Fargo challenges the alleged pay gap with Hannan by arguing that it paid Hannan less
than Sims and that he does not count as a similarly situated comparator. Dkt. 15 at 16. The court
agrees. Sims was a branch manager and Hannan was a business banking specialist. Sims produces
no evidence she and Hannan were similarly situated.3 Without any such evidence, Sims does not
have a claim for discrimination based on the pay disparity, if any, between them.
However, Sims raises a material fact issue regarding the pay gap with her Counterparts. In
her deposition, Sims stated that she knew that the bank paid her Counterparts more than she was
paid.4 Dkt. 15-2 at 7. Thus, the amount the bank paid her Counterparts constitutes a material fact
issue. Because there is a material fact issue on Sims’s ability to establish her prima facie case,
summary judgment is not appropriate on that ground.

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In her complaint, Sims argues that she was replaced as branch manager by Hannan. Dkt. 1
at 3. Sims seems to abandon that argument in her response to Wells Fargo’s motion for summary
judgment. Further, no evidence supports that assertion. Thus, Sims cannot establish her prima facie
case for her demotion because she provides no evidence that she was replaced by someone outside
her class or treated less favorably than similarly situated persons outside her class.
3

In an unrelated section of her response, Sims argues that “[t]here is no question that Mr.
Hannan took over many of the duties that Ms. Sims performed as a Branch Manager when he
transferred to her location.” This unsupported claim is no evidence that Hannan did, in fact, share
responsibilities and duties with Sims.
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Wells Fargo conclusorily asserts that Sims relies on speculation, rumors, and inadmissible
hearsay to support her claim. Dkt. 15 at 16. However, Wells Fargo does not object to any piece of
evidence proffered by Sims, and certainly not with any specificity. Thus, the court will consider the
evidence Sims relied on.
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2.

Legitimate, nondiscriminatory reason

Next, Wells Fargo argues that even assuming Sims makes her prima facie case, summary
judgment is still proper because the bank had a legitimate, nondiscriminatory reason for any pay
disparity and because Sims cannot prove that the bank’s reason was pretextual. Dkt. 15 at 17.
Wells Fargo meets its burden of showing a legitimate, nondiscriminatory reason. Wells
Fargo’s burden is “‘exceedingly light,’” and it “‘must merely proffer non[discriminatory] based
reasons, not prove them.’” Lenihan v. Boeing Co., 994 F. Supp. 776, 798 (S.D. Tex. 1998) (quoting
Meeks v. Comput. Assocs. Int’l, 15 F.3d 1013, 1019 (11th Cir. 1994)). Wells Fargo produces
evidence that it uses a branch manager’s performance, experience, and tenure to determine that
manager’s salary. Dkt. 15-2 at 4–5. Thus, to the extent that the bank paid any other branch manager
more than Sims, it argues the pay disparity was because of that specific manager’s performance,
experience, and tenure. Dkt. 15 at 18.
3.

Pretext

Because Wells Fargo proffers a legitimate, nondiscriminatory reason for any pay disparity,
Sims must raise a material fact issue on pretext to defeat summary judgment. Reeves, 530 U.S. at
142–43. Sims does so.
In her deposition, Sims stated that she knew “that [she] performed above as a store manager
on [her] audits above [her Counterparts].” Dkt. 15-2 at 9. She explained that she had stronger
customer service scores and more tenure than some managers. Id. Viewing the evidence in a light
most favorable to Sims, she raises a material fact issue of whether Wells Fargo’s nondiscriminatory
reason was pretextual. Thus, Wells Fargo’s motion is DENIED as to Sims’s Title VII discrimination
claims.

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B.

Equal Pay Act
Sims alleges that Wells Fargo violated the EPA by paying Hannan and her Counterparts more

than she was paid. Dkt. 1 at 6. Again, the bank argues that Sims cannot establish her prima facie
case. Dkt. 15 at 19. Sims argues that Hannan is a comparator for the purposes of her EPA claim and
that the bank paid him more than it paid her. Dkt. 16 at 16.
The EPA requires covered employers to pay employees of opposite sexes equal wages “for
equal work on jobs the performance of which requires equal skill, effort, and responsibility, and
which are performed under similar working conditions.” 29 U.S.C. § 206(d)(1). To establish her
prima facie case, Sims must show: “(1) that her employer is subject to the Act; (2) that she
performed work in a position requiring equal skill, effort[,] and responsibility under similar working
conditions; and (3) that she was paid less than members of the opposite sex.” Jones v. Flagship Int’l,
793 F.2d 714, 722-23 (5th Cir. 1986); see also Chance v. Rice Univ., 984 F.2d 151, 153 (5th Cir.
1993). If Sims does so, the burden shifts to Wells Fargo to demonstrate that it made disparate wage
payments pursuant to: (1) a seniority system; (2) a merit system; (3) a system which measures
earnings by quantity or quality of production; or (4) a differential based upon any factors other than
sex. King v. Univ. Healthcare Sys., L.C., 645 F.3d 713, 723 (5th Cir. 2011).
Wells Fargo argues that Sims cannot produce evidence that it paid her less than her
Counterparts.5 Dkt. 15 at 19. Further, the bank argues that Hannan cannot be Sims’s comparator.
Id. at 20. Thus, Wells Fargo claims that Sims fails to meet her initial burden. Id.

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Sims does not respond to this argument, and thus it is unopposed. S.D. Tex. L.R. 7.4.
However, Wells Fargo still bears the burden of demonstrating the absence of a genuine issue of
material fact. Celotex Corp., 477 U.S. at 323.
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While the court agrees that Hannan fails as a comparator, the bank fails to demonstrate the
absence of a material fact issue regarding the pay of Sims’s Counterparts. Wells Fargo claims that
Sims admits that she can only speculate that she was paid less than her Counterparts. Id. at 19. But,
the evidence demonstrates a material fact issue.
In her deposition, Sims indicated that she can only speculate as to the salary of her
Counterparts. Dkt. 15-2 at 7 (“Q. First of all, do you know what their pay was, any of [your
Counterparts]? A. Not exactly.”). However, Sims stated that she is aware that Wells Fargo paid
those Counterparts more than she was paid. Id. Sims can have personal knowledge that her
Counterparts were paid more than she was paid without having personal knowledge of their salaries.
Thus, whether the bank paid Sims’s Counterparts more than it paid her is a material fact issue, and
summary judgment is inappropriate. Wells Fargo’s motion is DENIED as to Sims’s EPA claim.
C.

Retaliation
Sims alleges that Wells Fargo retaliated against her when it demoted her for complaining to

Ali about her pay. Dkt. 1 at 7. Wells Fargo argues that Sims cannot establish her prima facie
showing of retaliation. Dkt. 15 at 21. Further, Wells Fargo argues that even if she could, Sims
cannot point to any evidence showing that the bank’s reason for the demotion was pretextual. Id.
at 23. Sims responds that she makes her prima facie case and provides sufficient evidence that the
bank would not have demoted her but for her protected activity. Dkt. 16 at 17–18.
To make her prima facie showing in a retaliation case, Sims “must show that (1) [s]he
engaged in conduct protected by Title VII; (2) [s]he suffered a materially adverse action; and (3) a
causal connection exists between the protected activity and the adverse action.” Jenkins v. City of
San Antonio Fire Dep’t, 784 F.3d 263, 269 (5th Cir. 2015). If Sims does so, the burden shifts to
Wells Fargo to demonstrate a legitimate, non-retaliatory reason for the adverse employment action.
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Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir. 2004). Sims then assumes the
burden to present proof that the bank’s stated reason is pretextual. McCoy v. City of Shreveport, 492
F.3d 551, 557 (5th Cir. 2007). Under this framework, Sims’s ultimate burden is to prove that the
adverse employment action would not have occurred “but for” her protected conduct. Pineda, 360
F.3d at 487. In other words, “this requires proof that the unlawful retaliation would not have
occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 570 U.S. 338, 133 S. Ct. 2517, 2533 (2013); see also Long v. Eastfield Coll.,
88 F.3d 300, 305 n.4 (5th Cir. 1996).
1.

Prima facie case

Wells Fargo argues that Sims’s prima facie case fails because she cannot present any
evidence that she engaged in protected conduct or that a causal connection exists between any
protected conduct and her demotion.6 Dkt. 15 at 21. Sims argues that she engaged in protected
conduct when she complained about her pay to Ali and to H.R.7 Dkt. 16 at 17–18.
Wells Fargo correctly asserts that the alleged protected conduct must at least alert an
employer to the employee’s reasonable belief that unlawful discrimination is at issue. Brown v.
United Parcel Serv., Inc., 406 F. App’x 837, 840 (5th Cir. 2010). As for her complaints to Ali, Sims
points to no evidence that she raised any issues of discrimination. Rather, the evidence only shows
that Sims asked about her pay. Dkt. 16-1 at 9 (“I had already reached out to [Ali]. And when I did,

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Wells Fargo seems to suggest that the change in position was not a demotion and was Sims’s
voluntary choice. Dkt. 15 at 22. However, for the purposes of this motion, Wells Fargo fails to
argue whether the position change constitutes an adverse employment action. Thus, the court need
not consider that potential ground for summary judgment.
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In her complaint, Sims only asserts that her complaint to Ali constituted a protected activity.
Dkt. 1 at 7. But, the court finds that, reading the complaint as a whole, it can be construed broadly
enough to allege that the complaint to H.R. also constituted a protected activity.
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I had reached out to human resources as well about my pay.”); Dkt. 15-2 at 19 (“[Ali] came into the
branch and we sat and spoke and I asked him about my concerns about my pay.”). Sims points to
no evidence to raise a fact issue regarding whether she alerted Ali to concerns of discrimination.
Thus, Sims’s complaints to Ali do not constitute protected conduct.
But, Sims raises a material fact issue regarding her complaints to H.R. Wells Fargo suggests
that Sims cannot show that her complaints were based on discrimination. Dkt. 15 at 22. However,
Sims points to evidence that she did raise that issue with H.R. Dkt. 16-1 at 10 (“Q. Is there anything
else you can remember about your conversation with the woman [in H.R.]? A. Not that I recall
outside of my concerns about the discrimination and the retaliation that I was going through.”).
Thus, Sims provides evidence that she engaged in protected conduct.
Further, a material fact issue exists on causation. Sims’s prima facie case only requires her
to show that she made a complaint, her supervisor knew about the complaint, and her supervisor took
adverse action against her after learning of the complaint. See Long, 88 F.3d at 306. Wells Fargo
admits that Ali spoke with H.R. about Sims’s complaint to the department. Dkt. 15 at 12. After that
conversation, he met with Sims and demoted her. Id. at 14.
Because material fact issues exist on two prima facie elements of Sims’s retaliation claim,
summary judgment is not appropriate on that ground.
2.

Legitimate, non-retaliatory reason

Next, Wells Fargo argues that its legitimate, non-retaliatory reason for the demotion and
Sims’s inability to prove pretext warrants summary judgment. Id. at 23.
Wells Fargo produces evidence that it made Sims transfer from branch manager to business
banking specialist because Ali thought Sims would be “better suited” in the latter role. Dkt. 15-2
at 20. Further, Wells Fargo produces evidence that Sims was struggling to perform as branch
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manager, giving Ali reason to make her transfer. See Dkts. 15-6, 15-7, 15-9, 15-10, 15-11, 15-12,
15-13, 15-14, 15-23. This reason, “taken as true, would permit the conclusion that there was a
nondiscriminatory reason for the adverse action.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
509, 113 S. Ct. 2742 (1993). Thus, “the focus shifts to the ultimate question of whether the
defendant unlawfully retaliated against the plaintiff.” Long, 88 F.3d at 305.
3.

Pretext

Because Wells Fargo has provided a legitimate, non-retaliatory reason for the demotion, Sims
must provide enough evidence to raise a material fact issue that the demotion would not have
occurred “but for” the protected activity in order to defeat summary judgment. Id. at 308. In other
words, Sims must provide evidence that the reason proffered by the bank was a pretext. Id.
Viewing the evidence in the light most favorable to Sims, a material fact issue exists on the
reason for Sims’s demotion. Sims produces evidence that throughout 2013 and 2014, she received
numerous awards for her performance as branch manager. Dkt. 16-3. Wells Fargo alleges that Sims
failed to meet expectations as branch manager during that same time period. Dkt. 15 at 10. Notably,
Sims received one award just two days after the bank placed her on the P.I.P. Dkt. 16-3 at 10;
Dkt. 15-13 at 2. While Sims admits that her performance reviews are fair, the question still remains
if the performance reviews justified her demotion, especially when viewed in light of Sims’s awards.
Wells Fargo’s evidence suggests that its justification for demoting Sims was not pretextual,
but the “evidence is not of such magnitude that a reasonable jury could only find in their favor.”
Russell v. McKinney Hosp. Venture, 235 F.3d 219, 225 (5th Cir. 2000). Thus, summary judgment
is inappropriate and Wells Fargo’s motion is DENIED as to Sims’s retaliation claim.

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IV. CONCLUSION
Because Sims produces enough evidence to raise material fact issues on her causes of action,
Well Fargo’s motion for summary judgment (Dkt. 15) is DENIED.
It is further ORDERED that the joint motion for continuance (Dkt. 20) is DENIED.

Signed at Houston, Texas on February 7, 2018.

___________________________________
Gray H. Miller
United States District Judge

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