Wallace v. Chase Investment Services Corporation

Filing 86

MEMORANDUM AND OPINION setting forth the reasons for the Court's October 11, 2011 Order (Docket No. 85) granting Defendant's Motion for Summary Judgment. Signed by Judge Robert C. Chambers on 10/13/2011. (cc: attys; any unrepresented party) (skm)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

DOLAN L. WALLACE,
Plaintiff,
v.

CIVIL ACTION NO. 3:10-0497

CHASE INVESTMENT SERVICES
CORPORATION, a corporation
licensed to do business in West Virginia, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This Memorandum Opinion and Order sets forth the reasons for the Court’s October 11,
2011 Order (Docket No. 85) granting Defendant’s Motion for Summary Judgment. In deciding to
grant the motion, the Court considered the motions, the responses, the replies, and heard argument
on the motions by counsel at the October 3, 2011 pretrial conference. For the following reasons,
Defendant’s Motion is GRANTED.
I. Background
Dolan Wallace began his employment with Bank One, a predecessor of Chase Investment
Services, in 1993. He worked for Bank One, and then for Chase, from that time until April 2009,
when he was terminated. Mr. Wallace was a hard worker who, by the time he was terminated, was
responsible for supervising financial advisors throughout West Virginia. Mr. Wallace suffers from
retinitis pigmentosa, a disease that causes progressive vision loss and can ultimately result in total
blindness. By midsummer 2008, Mr. Wallace’s condition had progressed to the point where he was
unable to view his computer screen and required the assistance of a driver to travel between the

branch offices within his territory. Mr. Wallace’s supervisor, John Estrella, was aware of Mr.
Wallace’s limitations and approved of the use of a driver. In early 2009, one of Mr. Wallace’s
supervisors noticed some questionable expense reports and brought them to the attention of the
Human Resources department, triggering an investigation by JPMorgan Chase’s Global Security
Investigations (GSI). The GSI investigators reviewed hundreds of pages of expense reports and
interviewed Mr. Wallace, his assistant Ms. Malone, and Ms. Haney, another employee and Mr.
Wallace’s one-time girlfriend. The investigation resulted in the termination of Mr. Wallace and Ms.
Malone, as well as a written reprimand for Ms. Haney.
Mr. Wallace is suing Chase Investment Services, alleging a wrongful termination in violation
of the West Virginia Human Rights Act, W. Va. Code §§ 5-11-1 et seq. Mr. Wallace alleges that
he received disparate treatment and was fired due to his disability, retinitis pigmentosa, which has
caused him to suffer progressive loss of vision. Defendant responds that Mr. Wallace was
terminated for violating corporate policies and not because of his disability. Defendant further
contends that Mr. Wallace has not received disparate treatment because non-disabled employees
involved in similar activity were treated similarly.
II. Standard of Review
To obtain summary judgment, the moving party must show that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the evidence
and determine the truth of the matter[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Instead, the Court will draw any permissible inference from the underlying facts in the light most

-2-

favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587-88 (1986).
Although the Court will view all underlying facts and inferences in the light most
favorable to the nonmoving party, the nonmoving party nonetheless must offer some “concrete
evidence from which a reasonable juror could return a verdict in his [or her] favor[.]” Anderson, 477
U.S. at 256. Summary judgment is appropriate when the nonmoving party has the burden of proof
on an essential element of his or her case and does not make, after adequate time for discovery, a
showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The nonmoving party must satisfy this burden of proof by offering more than a mere “scintilla of
evidence” in support of his or her position. Anderson, 477 U.S. at 252.
III. Discussion
A.

Prima Facie Discrimination Under the West Virginia Human Rights Act
The West Virginia Supreme Court of Appeals has expressly adopted a burden-shifting

process that mirrors the McDonnell-Douglas framework for claims under Title VII. Ford Motor
Credit Co. V. West Virginia Human Rights Comm’n, 696 S.E.2d 282, 292 (W. Va. 2010) (citing
McDonnell Douglass Corp. v. Green, 411 U.S. 792 (1973)). In order to prove a prima facie case
of disparate treatment under the West Virginia Human Rights Act, the plaintiff must prove that (1)
that he is a member of a protected class; (2) that the employer made an adverse employment decision
concerning the plaintiff; and (3) that, but for the plaintiff’s protected status, the adverse decision
would not have been made. Id. at Syl. Pt. 1. The West Virginia Supreme Court of Appeals has since
clarified the third component of the prima facie case, stating: “Use of the ‘but for’ language may
have been unfortunate, at least if it connotes that a plaintiff must establish anything more than an

-3-

inference of discrimination to make out a prima facie case.” Barefoot v. Sundale Nursing Home, 457
S.E.2d 152, 161 (W. Va. 1996).
It is not disputed that Mr. Wallace has a disability or that he was terminated from his
employment with Chase. For purposes of this motion, the Court accepts that the evidence is
sufficient to raise an inference of discrimination and that the plaintiff has met his burden of
establishing a prima facie case.
B.

Legitimate Non-Discriminatory Justification
Next, the burden shifts to the employer to rebut the prima facie case by presenting a

legitimate nondiscriminatory reason for such person's discharge. Id. at 160. If the employer meets
this burden, the complainant must prove by a preponderance of the evidence that the employer's
proffered reason was not a legitimate reason but a pretext for the discharge. Id. As the Fourth
Circuit has explained in the context of Title VII, “once an employer rebuts the prima facie case with
a legitimate, nondiscriminatory reason for the employment action, ‘the McDonnell Douglas
framework-with its presumptions and burdens-disappear [s], and the sole remaining issue [is]
discrimination vel non.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir.
2005) (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142-43 (2000)).
The burden of proving pretext merges with the plaintiff’s ultimate burden of proving to the
trier of fact by a preponderance of the evidence that the defendant intentionally discriminated against
him. In order to survive summary judgment at this step, the plaintiff must demonstrate “that there
is a genuine dispute of material fact regarding pretext.” Nicholson v. Hyannis Air Service, Inc., 580
F.3d 1116 (9th Cir. 2009).

-4-

GSI’s investigators ultimately found five distinct violations of Chase policies. They found
(1) that Mr. Wallace failed to follow policies for recording hours worked by his assistant; (2) that
he improperly used his assistant to move his personal residence during work hours; (3) that he
improperly allowed his daughter to use his corporate credit card and that he processed her personal
expenses as business expenses; (4) that he rented his personal moving van on his corporate account;
and (5) that he allowed unauthorized access to his e-mail and files, including confidential business
information. Together and separately, Chase relies on the conclusions of its GSI investigators as
reasonable nondiscriminatory justifications for terminating Mr. Wallace. In order to survive
summary judgment, the plaintiff must show that there is a genuine issue of material fact that these
conclusions were pretextual. Analyzing each of these proffered justifications, and taking all factual
inferences in the light most favorable to Mr. Wallace, he has failed to present sufficient evidence
to support a finding either of pretext or intentional discrimination.
1 and 2: Mr. Wallace failed to follow policies for recording hours worked by his
assistant and improperly used his assistant to help move his personal residence during
work hours.
The defendant offers as a justification for termination the fact that Mr. Wallace’s assistant,
Ms. Malone, improperly and without authorization, prepared, approved, and submitted expense
reports on behalf of herself, and that she submitted mileage reimbursement requests for trips to
Charleston that never occurred.

Early on, Ms. Malone reported to her Human Resources

representative that she felt she was being asked to perform tasks outside her job description. This
initial report, along with concerns about Mr. Wallace’s expenses, sparked the GSI investigation that
ultimately led to the termination of both Ms. Malone and Mr. Wallace. In her interview with the
-5-

GSI investigators, Ms. Malone reported that Mr. Wallace instructed her to submit the false mileage
reports. She submitted a signed statement to that effect. Mr. Wallace responds that he was not
aware of the fraudulent expense reports and that, as an accommodation to his blindness, the
defendant approved of Ms. Malone’s submission of expense reports since Mr. Wallace could not
read or see the computer screen. He further contends that Ms. Malone was lying when she
implicated him in the fraud.
As another justification for dismissal, Defendant offers that during the course of their
investigation, Ms. Malone told the GSI investigators that she was routinely required to perform tasks
which she believed to be outside the scope of her position as Plaintiff’s Administrative Assistant,
including on one occasion assisting the Plaintiff to move from Ms. Haney’s residence into his own
personal residence during work hours. Plaintiff denies that Ms. Malone assisted in the move and
would offer testimony to that effect. The notes from his GSI interview indicate that he admitted to
the investigators that Ms. Malone assisted with his move.
Unfortunately for Mr. Wallace, disagreement on these issues is not the sufficient to survive
summary judgment. Chase investigated both of these matters and found Ms. Malone to be more
believable. Even if we credit Mr. Wallace’s story, it does not give rise to an inference that Chase’s
decision to terminate him was motivated by his disability or that this or other justification are pretext
for discrimination.
3. Mr. Wallace allowed his daughter to use the corporate card and processed her
personal charges as business expenses.
Mr. Wallace’s daughter drove him on many of his business trips because of his blindness.
For these trips, they used both the plaintiff’s private car as well as rental cars. The defendant had
-6-

knowledge and approved of this accommodation. During the investigation that led to Mr. Wallace’s
termination, it came to light that his daughter had used the corporate credit card to purchase personal
items and that these personal items were processed as business expenses. During the investigation,
Mr. Wallace initially denied knowledge of the purchases but later admitted that he knew she had
used the card to purchase cigarettes. Mr. Wallace would also seek to offer evidence that similarly
situated employees were not terminated for accidental use of their corporate credit cards.1
Accepting the plaintiff’s argument does not create a sufficient showing of pretext to survive
summary judgment.

While similarly minor transgressions may have gone unpunished, the

investigation in this case uncovered both minor misuse of the credit card as well as major violations
of other expense reporting and reimbursement policies.
4. Mr. Wallace charged his personal moving van as a work-related expense and
received reimbursement.
The moving van used to move Mr. Wallace personal residence was charged to his corporate
car rental account at Enterprise. Mr. Wallace claims he told the Enterprise clerk that the car was to
be charged to his personal account and that the charge to his corporate card was an oversight on their
part. Although Mr Wallace subsequently supplied documentation from Enterprise supporting this
position, the fact remains that at the time of the investigation, the van was billed to Chase. The
investigators had only Mr. Wallace’s word that the charge was accidental, which they did not credit
in the context of other misstatements and other expense report irregularities. Accepting Mr.

1

Chase has filed a motion in limine (Docket No.77) to exclude Plaintiff’s proffered character
evidence. The Court reserves judgment on that motion and assumes, for the purposes of this motion
only, that the proffered evidence would be admissible at trial.
-7-

Wallace’s explanation creates an inference that Chase’s investigators were poor judges of his
credibility at the time they made their recommendations. Even if they were wrong in their judgment,
the plaintiff has not presented evidence that their judgment was a pretext or that Mr. Wallace was
terminated due to his disability.
5. He allowed a Financial Advisor with whom he had a personal relationship to have
access to his e-mail and files, including access to confidential business information and
information regarding peers.
The defendant cites as grounds for termination the fact that Mr. Wallace allowed another
employee, specifically his then-girlfriend Susan Haney, to access his e-mail and other files. Mr.
Wallace responds that, due to his blindness, he was permitted to allow others to access his computer
and files. The GSI investigators concluded that Ms. Haney’s access was unauthorized. In his
deposition, Mr. Wallace admits that the only accommodation he requested from his supervisors was
to have a driver when commuting. Furthermore, Chase issued a written reprimand to Ms. Haney,
who admitted in a written statement that she not only read and responded to emails but that she also
submitted expense reports in 2005-2006, before Mr. Wallace’s condition had deteriorated and well
before any request for accommodation. Other than his naked assertion that, “arrangements were
made” to allow others to access his computer, Mr. Wallace has provided no evidence that
management approved or was aware that he allowed Ms. Haney to access his computer.
IV. Conclusion
This court “does not sit in judgment of the merits of the [d]efendant’s proffered reason, only
the sincerity behind it. ‘If the fact finder believes that the proffered reason was the true reason for
the decision, then the employer, while he may be guilty of poor business practices, is not guilty of
-8-

discrimination.’” Prater v. Henry Schein, Inc., 621 F.Supp 2d 363, 369 (citing Conway v. Eastern
Associated Coal Corp., 358 S.E. 2d 423, 430 (W. Va. 1986)). Taking every inference in favor of
Mr. Wallace, there is not a material dispute that Chase’s proffered justifications are pretext. Chase
discovered fraud including the submission of mileage reimbursements for trips that never took place,
unauthorized use of an assistant, improper handling of the company credit card, unauthorized car
rentals, and violations of computer access policies. Chase brought in outside investigators who were
ultimately confronted with a situation where the primary employees involved in the fraud provided
conflicting stories, each implicating the other. The GSI investigators believed Ms. Malone’s story
and found Mr. Wallace not to be credible. Chase terminated them both and reprimanded Susan
Haney.
Crediting Mr. Wallace’ viewpoint on every one of these issues, as the Court is required to
do at summary judgment, could lead a fact finder to conclude that Chase is guilty of poor business
practices or that their investigators are poor judges of credibility, but not that their justifications are
pretext for terminating Mr. Wallace because of his disability. Put simply, even if Chase’s
investigators were wrong in all their judgments and conclusions, there is no evidence to suggest that
those conclusions were pretext to cover up for terminating Mr. Wallace on account of his disability.
Only Mr. Wallace’s allegation that the defendant was “tired of dealing with him” supports a finding
of pretext, and that alone is not “concrete evidence from which a reasonable juror could return a
verdict in his [or her] favor[.]” Anderson, 477 U.S. at 256. Mr. Wallace has the burden of proof on
both pretext and discrimination and has not made, after adequate time for discovery, a showing
sufficient to establish that element. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). For
these reasons, Defendant’s motion is GRANTED.

-9-

The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to counsel
of record and any unrepresented parties.

ENTER:

October 13, 2011

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

-10-