ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT, DENYING AS MOOT MOTION TO SEVER, AND SETTING CASE MANAGEMENT CONFERENCE (Docket Nos. 64 and 74)
CLAUDIA WILKEN, District Judge.
Plaintiffs Yesenia Guitron and Judi Klosek allege that Defendants Wells Fargo Bank, N.A., Wells Fargo & Co., and Pam Rubio unlawfully retaliated and discriminated against them based on Plaintiffs' reporting of unlawful and unethical business practices, as well as their disability, age, gender and marital status. Defendants move for summary judgment on Plaintiffs' claims against them and move to sever Plaintiffs' claims from one another. Having considered the papers filed by the parties and their oral arguments at the hearing, the Court GRANTS in part Defendants' motion for summary judgment, and DENIES it in part. The Court also DENIES AS MOOT Defendants' motion to sever.
The following summary presents any disputed facts in the light most favorable to Plaintiffs, as the non-moving parties.
I. Facts related to Plaintiff Guitron
In March 2008, Guitron, a single mother, began work as a Personal Banker One at the Wells Fargo branch in St. Helena, California. Guitron Depo., Tr. 382:6, 409:6-13; Guitron Decl. ¶ 5.
Guitron was told on numerous occasions by "Branch management" to unbutton her shirt to get more sales. Guitron Decl. ¶ 6. One day Pam Rubio, the branch manager, sent her a text message requesting permission to open a package that Guitron had received from a customer, "an admirer," and asking who it was from. Guitron Depo., Tr. 333:10-16.
Prior to the time that Guitron began to work at the St. Helena branch, Liz Mendez, who worked there as a Personal Banker from December 2000 through January 2007, was told about once a week by Rubio, "Maybe if you unbutton that top button you'll get more accounts." Mendez Depo. Tr. 128:18-129:9; Mendez Decl. ¶ 2. Marcela Franco, who was employed by Wells Fargo from November 2001 through January 2007, again, before Guitron began working there, heard Rubio make similar comments to other employees on multiple occasions. Franco Depo. Tr. 87:7-88:23; Franco Decl. ¶ 2. Matt Taylor, a single father who worked at the St. Helena branch as a financial consultant, was never encouraged to use his physical assets to achieve more sales. Taylor Decl. ¶¶ 4-6.
In June 2009, Guitron asked to take eighteen days of paid family leave in order to care for her son who had surgery. Guitron Depo., Tr. 352:2 353:21. Guitron was permitted to take the time off, but she was paid one week of vacation time and was given unpaid leave for the remainder of the time.
Guitron was required to submit a typed request to modify her work schedule to a six-day work week and to take a shorter lunch break and a longer break in the afternoon to pick up her children, while others were able to request days off or a vacation on handwritten Post-it notes. Guitron Depo., Tr. 345:4-346:11.
From 2008 through 2009, Guitron repeatedly complained to branch management about certain activities of other bankers within the St. Helena branch. Guitron Depo., Tr. 155:18-25, 172:4-176:6; Guitron Decl. ¶¶ 20-56.
Guitron stated that, at the time of some of her complaints, she had two "main reasons to make these reports:" first, as a Wells Fargo employee, it was her responsibility to report any suspicions or acts of unethical behavior; and second, she wanted to protect herself from future retaliation. Ex. 99, at 2163-64. When asked during her deposition on May 12, 2011 whether she believed that the practices that she reported to management were unlawful, Guitron stated, "I don't think that I ever considered them illegal. I knew they were against our sales—sales practices." Guitron Depo. Tr. 241:16-18. She also stated that "somebody is getting financial gain for committing these activities. So it could be; it could not be. It just depends on the specifics."
Guitron alleges that Wells Fargo failed to investigate her complaints properly. At the branch level, two of the individuals whom Guitron accused of misconduct, Zavaleta and Mary Crisp, were never questioned about accusations leveled by Guitron. Zavaleta Depo., Tr. 29:15-31:25; Crisp Depo., Tr. 153:2-22. Both of these individuals are now assistant managers at the branch. Zavaleta Depo., Tr.9:21-10:21; Crisp Depo., Tr. 181:15-182:25. When Guitron contacted the regional Vice President, Greg Morgan, to request a meeting with him about her complaints, he directed her to contact Human Resources. Ex. 67, emails between Guitron and Morgan. Guitron also reported certain incidents to the Wells Fargo Ethics Hotline. One investigator, Jodi Takahashi, who was assigned to Guitron's complaints, interviewed only Rubio about the complaints. Takahashi Depo., Tr. 30:1-25, 36:5-38:8, 80:18-85:10. When Guitron attempted to follow up with another investigator, Damian Brown, he declined to provide her with any information regarding the status of the investigation, citing confidentiality of the personnel matters involving the employees she had accused. Pls.' Ex. 83, emails between Brown and Guitron. Guitron also complained to Diana Brandenburg, a Human Resources consultant, whose ensuing investigation involved interviews of only Rubio and Guitron. Guitron Depo., Tr. 181:25-182:14, 186:24-188:8; Brandenburg Depo., Tr. 50:21-51:13, 66:14-75:21.
Guitron adhered to "proper procedures and ethical means" to get sales, and she struggled to meet her sales requirements. Guitron Decl. ¶ 8. During the time that Guitron worked at Wells Fargo, she had a number of performance reviews. In 2008, during the first two quarters that Guitron worked at Wells Fargo, she did not meet her minimum sales goals. Guitron Depo., Tr. 427:23-428:14. Rubio did not give her any corrective actions, because she was still in training and a "rookie."
In February 2009, Rubio informed all of the personal bankers at the St. Helena branch that an assistant manager position had been opened for the branch. Guitron Decl. ¶ 36. Guitron emailed Rubio to express her interest in the position and Rubio indicated her support by offering to discuss the position with Guitron.
Guitron again failed to meet her minimum sales goals in the first quarter of 2009 and, at that time, Rubio gave her an informal warning.
In the fall of 2009, Rubio recorded certain accusations against Guitron. Rubio documented a complaint from Zavaleta that Guitron was "borderline harassing her" with the complaints Guitron had made about Zavaleta's work ethics. Pls.' Ex. 66. Rubio also documented Guitron's alleged misuse of "banker notes" in violation of company policy. Pls.' Ex. 90. Rubio questioned Guitron regarding a customer complaint on an account that Guitron had opened. Pls.' Exs. 95, 96. Rubio also recorded an incident in which Zavaleta said that Guitron had pushed her into a desk out of malice. Pls.' Exs. 93-94.
Between October 28, 2009 and November 22, 2009, several anonymous complaints were made to the Wells Fargo Ethics line regarding Guitron.
At Rubio's direction, in December 2009, Park sent a complaint to Brown about Guitron, related to an incident in October 2009 in which Guitron allegedly asked her about opening an account for a customer with a fake Mexican identification card. Pls.' Ex. 108; Park Depo., Tr. 154:5 159:15.
In January 2010, Rubio sent Brandenburg and Hale Walker, the district manager, an email with a formal warning and corrective action plan for Guitron for missing her sales goals in the fourth quarter of 2009; this was never given to Guitron. Pls.' Ex. 86-87.
On January 26 and 27, 2010, Rubio asked Guitron to attend a meeting. Guitron Depo., Tr. 507:9-18, 510:6-17. Guitron insisted that Rubio have "some neutral senior management people" present for the meeting.
Two days later, Guitron emailed Walker, Rubio, Park and several others, stating that she had been fired and asking to be allowed to gather the rest of her personal belongings. Pls.' Ex. 114. On January 29, 2010, Walker responded to Guitron, stating that Rubio had not terminated her and had instead placed her on administrative leave. Guitron Depo., Tr. 524:13-525:9. Walker asked that Guitron contact her to discuss her return to her job.
On February 8, 2010, Rubio announced the hire of a new Personal Banker One, Andrew Keopraseuth. Klosek Decl. ¶ 27. When he started work, he took over Guitron's desk.
On February 9, 2010, Walker sent Guitron another letter stating that she had not been terminated, that she was still an employee of Wells Fargo, and that she had to appear at Walker's office on February 11, 2010 to discuss her return to work or she would be deemed to have voluntarily resigned, effective on that date. Guitron Depo., at Ex. 16.
On February 10, 2010, Guitron responded to Walker by email stating that she would not be returning to work, because she had already been terminated.
On February 12, Walker sent Guitron a letter by email and regular mail, stating that Walker had processed her voluntary resignation effective February 11, 2010, because Guitron had not reported to her office on that day.
Guitron filed a complaint with the Department of Labor against Wells Fargo alleging violations under section 206 of the Sarbanes-Oxley Act (SOX). Second Amended Complaint (2AC) ¶ 69; Answer to 2AC ¶ 69. Guitron alleges that she filed this complaint on or about May 11, 2010. 2AC ¶ 69.
On June 18, 2010, Guitron filed complaints against Wells Fargo and Rubio with the California Department of Fair Employment and Housing (DFEH), alleging that they had subjected her to discrimination and failed to accommodate her based on "her status as a single woman and a single mother." 2AC ¶ 68, Ex. B. Guitron listed certain conduct by Wells Fargo and Rubio that she alleged was discriminatory.
On June 23, 2010, Guitron filed a complaint against Wells Fargo with the Equal Employment Opportunity Commission (EEOC), alleging discrimination based on sex and marital status and retaliation for filing complaints. 2AC ¶ 67, Ex. A. Guitron did not provide a description of the particulars and instead stated "See Attached DFEH."
II. Facts related to Plaintiff Klosek
In approximately 1987, Klosek received a juris doctorate from Southwestern University School of Law and was later admitted to the state bar of California. Klosek Depo., Tr. 9:25-10:12. In September 2008, Klosek began work as a Registered Personal Banker Two at the Wells Fargo branch in Sonoma, California. Klosek Depo., Tr. 422:12-15. Klosek was sixty-three or sixty-four years old at the time she applied to Wells Fargo.
On April 2, 2009, Klosek emailed her supervisor at the Sonoma branch, John Alejo, to report that a customer had complained that tellers had been taking money out of his mother's account instead of his, that he was not sure why a joint savings account had been opened for him and his mother, and that he wanted his name taken off all accounts.
Also on April 2, 2009, Klosek received a memorandum from Brandenburg confirming a conversation that the two had on March 24, 2009, in which Klosek had reported unfair treatment by Alejo and her coworkers at the branch. Pls.' Ex. 78; Klosek Depo., Tr. 508:24-509:19. In the memorandum, Brandenburg asked Klosek to let her know if she had additional concerns or facts that were not in the memorandum. Pls.' Ex. 78 at WFB002344. Klosek felt that Brandenburg left out certain points and misstated others. Klosek Depo., Tr. 509:20-24.
On April 7, 2009, Klosek sent Brandenburg two lengthy emails documenting the complaints she made in their meeting. Pls.' Exs. 76-77; Klosek Depo., Tr. 509:24-510:1. In the emails, Klosek stated, among other things, that when she had returned to work after a leave of absence due to an illness and had suggested that she sit and welcome customers rather than stand, Alejo told her, "I am not having a WalMart greeter in my branch." Pls.' Ex. 76, at 5.
In response to Klosek's concerns, Brandenburg interviewed about a dozen people who worked at the branch, including Alejo. Brandenburg Depo., Tr. 189:4-17, Ex. 4. On June 4, Klosek told Brandenburg that "accounts were excessively being opened and closed, and that I suspected bankers were unethically forcing customers to open and close accounts unnecessarily to gain" sales credits. Klosek Decl. ¶ 14. On that same day, during a telephone call, Brandenburg informed Klosek that she had been unable to substantiate Klosek's allegations. Klosek Depo., Tr. 510:20-511:5. Klosek then asked to transfer to another branch.
In June 2009, Klosek transferred to the St. Helena branch. At that time, the St. Helena branch had not had a Registered Personal Banker Two since 2006 or 2007. Rubio Depo., Tr. 287:20-288:10.
During each of the three quarters that Klosek had worked at the Sonoma branch, she failed to achieve at least some of her minimum sales goals. Klosek Depo., Tr. 437:21-438:7. Klosek attested that she believes that she was held accountable for her sales goals for days that she was absent from work due to medical reasons and that this negatively impacted her performance reviews. Klosek Decl. ¶ 5. She also testified that, while at the St. Helena branch, she was "pretty much knocked out of the teller referral system" and got few referrals. Klosek Depo. Tr. 207:8-24.
Beginning around August 2009, Klosek raised concerns with the St. Helena branch about "unethical conduct, opening and closing accounts, forced sales, ordering products that customers don't want, . . . shoving products down customers' throats." Klosek Depo., Tr. 370:20-376:3, 385:2-387:18. On September 4, 2009, Klosek objected to Rubio about being asked to give referral credit to a banker who had not made the referral. Klosek Depo., Tr. 375:13-376:16; Pls.' Ex. 68. On November 16, 2009, Klosek reported to Rubio that a customer wanted to close several accounts that another banker had "insisted on opening." Pls.' Ex. 71. Klosek believed at the time that the conduct violated both Wells Fargo's ethical rules and the law, including "consumer rules and laws that you shouldn't conduct fraudulent activity." Klosek Depo., Tr. 419:2-421:19. Although Klosek did not know which specific "consumer rights laws" may have been violated, she thought the conduct may have violated "consumer rights — a consumer has a right to know what he or she is buying, not to be forced into something they're not asking for and full disclosure."
At the St. Helena branch, Klosek refused to participate in this conduct herself and only secured her sales credits by following Wells Fargo's proper procedures and ethical means. Klosek Decl. ¶¶ 9, 10. She found it difficult to meet the sales goals set by Wells Fargo, which she characterizes as unreasonable.
In October or November 2009, Rubio, who was fifty-five years old at the time, told Klosek, "You're too old for banking," and that she had noticed her date of birth when she reviewed her file. Klosek Depo., Tr. 168:7-169:1; Rubio Decl. ¶ 3. In November 2009, Rubio asked Klosek if she had any plans for retirement.
In early December 2009, Rubio gave Klosek her third quarter performance review. Klosek Depo., Tr. 471:13-22. The performance review stated that Klosek had received a verbal warning in October for not meeting her sales goals. Pls.' Ex. 61, at 4791, 4794. However, prior to the review, Klosek had not received a verbal warning from Rubio. Klosek Depo., Tr. 378:5-382:8.
On December 12, 2009, Klosek emailed Rubio about her quarterly review. Klosek Decl. ¶ 23.
On December 28, 2009, Klosek sent Rubio an email documenting a conversation from several days before. Pls.' Ex. 118. Klosek stated that, in that conversation, Rubio had asked Klosek about several matters, including Klosek's activities in opening a particular bank account and documenting a complaint against another banker, and Klosek had asked Rubio to make certain changes to her third quarter performance review. Pls.' Ex. 118. On January 5, 2010, Rubio emailed Takahashi asking him to look into an account that was apparently opened by Klosek and for which the second identification appeared to be falsified. Takahashi Depo., Tr. 114:21-119:5. After an investigation, Takahashi determined that Klosek was not the one who had entered the information.
On January 12, 2010, Alejo, Klosek's supervisor at the Sonoma branch, submitted her performance reviews from the first and second quarters of 2009. Alejo Depo., Tr. 110:8-11. Alejo usually tried to do this type of review within a month of the quarter for which the review applied.
On February 6, 2010, Klosek sent Rubio an email about not receiving the "same leads, referrals, introductions and level of support" given to other bankers, including "Dreydy, Mary, Xavier and even our very temporary banker, Daniel." Klosek Decl. ¶ 26; Pls.' Ex. 207. The examples that Klosek provided were that Rubio said that she could not "do Business Solutions like the others," that Rubio took a long time to respond to Klosek's request that "all Bankers and tellers send CD referrals and renewals to me," and that Rubio was "trying to force her to work now on Wednesdays until 7PM," although Klosek had told her that she could not "do that for personal reasons."
On February 11, 2010, Klosek emailed Park with concerns about the calculation of her paid time off and sick leave during the prior month, and sent a copy to Rubio. Klosek Decl. ¶ 28, Ex. 58. Klosek complained that Chris Jensen required her to submit a doctor's note after the third day of her illness, although Wells Fargo policy required a note only after the seventh day.
On February 22, 2010, Klosek met with Rubio and Walker "to address the concerns" that Klosek had raised with Rubio. Klosek Depo., Tr. 518:23-25, 520:9-12.
In February 2010, Klosek asked Susan Eagles-William that Wells Fargo conduct "an objective, independent investigation" of her concerns. Klosek Depo., Tr. 516:13-16. Wells Fargo engaged Debbie Cook, a human resources consultant from Southern California, to conduct an investigation; prior to that time, Cook did not have knowledge of the St. Helena branch, Rubio, Klosek or Guitron. Eagles-William Depo., Tr. 227:17-25; Cook Depo., Tr. 46:22-47:19.
When Cook completed her investigation on or before April 29, 2010, she concluded that Klosek's "allegation of harassment and retaliation" were "largely unsubstantiated," but that there was an appearance of favoritism at the branch, along with an environment in which some team members were afraid to come forward to express concerns out of a fear of reprisal. Pls.' Ex. 137, at WFB003921. The specific allegations that Cook investigated were (1) that Alejo's performance reviews of Klosek "contained errors, omissions and misstatements," (2) that Rubio "falsely accused Klosek of participating in a complaint involving another banker," undermining her credibility with her coworkers; (3) that Rubio was rude, generally unresponsive, managed by favoritism, and offered support selectively; (4) that Klosek had not received incentive credit for a large sale; (5) that she received few referrals, if any, and that customers referred by Rubio were not interested; (6) that Rubio instructed her to give referral credit to Zavaleta for a transaction that Klosek referred; (7) that she was not allowed to attend an offsite sales event to generate new business unless she used personal time; (8) that Rubio said she was overqualified for her position and Rubio would make sure she was promoted to financial advisor but this did not happen; (9) that her chance to be promoted to financial advisor "was blocked by senior management" and the position was filled by a "young guy from Sacramento; (10) that Rubio completed the 2009 third quarter review and said she had given Klosek a verbal warning when she had not; (11) that Rubio "picked on her for everything; and (12) that Park told her to lie to a bank official and say she was busy to avoid participating in a compliance review.
On April 24, 2010, Klosek filed a DFEH complaint against Wells Fargo, Rubio, and Walker, alleging that they discriminated against her because of her age and national origin, and retaliated against her for making complaints about unlawful and unethical company policies and practices. 2AC ¶ 127, Ex. E. DFEH issued Klosek right to sue letters on the same day.
On April 29, 2010, Klosek filed a charge with the EEOC against Wells Fargo of discrimination based on age, disability and national origin. 2AC ¶ 126, Ex. C.
Klosek filed a complaint with the Department of Labor against Wells Fargo alleging violations under section 206 of the SOX. 2AC ¶ 129; Answer to 2AC ¶ 129. Klosek alleges that she filed this complaint on or about May 11, 2010. 2AC ¶ 129.
On May 14, 2010, Klosek went on a leave of absence due to work-related stress. Klosek Depo., Tr. 248:20-249:1. Klosek did not pursue a worker's compensation claim for her leave.
Klosek received a letter dated July 29, 2010 from "Wells Fargo Leave Management" stating that she had exhausted her Family and Medical Leave Act protected leave and that her absences would no longer be protected under the Act. Klosek Depo., Ex. 4; Klosek Depo. Tr. 259:3-14. Subsequently, Klosek's leave was extended through September 30, 2010. Mot. at 22; Opp. at 16.
On September 9, 2010, Walker sent Klosek a letter stating, in relevant part, "Due to business needs, we cannot continue to hold your position open for you. It is critical that we have adequate staffing and an active Registered Banker available to assist our customers. Accordingly, we will be posting a Registered Banker position on September 13, 2010 . . . If you plan on returning to work within the next few weeks, please let us know immediately." Klosek Depo., Ex. 5. The letter also stated that, if Wells Fargo filled her position, she could extend her leave for up to twenty-four months, and if she was cleared to return to work during that time, she would be placed on a ninety day job search leave, during which time Wells Fargo would assist her in searching for vacant positions at Wells Fargo for which she qualified.
In response, on September 13, 2010, Klosek sent Walker an email stating, "At this time, I anticipate that I will be back to work no later than on December 11, 2010 or before," as directed by her doctor, and alleging that Defendants were filling her position based on discrimination and retaliation and not because of a legitimate business need. Klosek Depo. Tr. 275:20-276:15, Ex. 6.
Klosek was not medically cleared to return to work until March 1, 2011.
When Klosek was able to return to work on March 1, 2011, she was given a job search leave for ninety days; Klosek understood that she had been terminated as of March 1 with privileges to search for an internal posting. Klosek Depo., Tr. 262:5-265:16, 283:25-285:4, Ex. 7. In early March 2011, Klosek spoke to a recruiter about issues she was having accessing the internal job search system. Klosek Decl. ¶ 40. That recruiter stated that she could not help Klosek look for a job and that it was Klosek's responsibility to get access to the system and look for a job.
Klosek alleges that she filed an additional DFEH complaint against Wells Fargo on March 30, 2011 and that DFEH issued her a right to sue letter on the same day. 2AC ¶ 128. However, Klosek has not presented any evidence, and Defendants have not admitted, that she did so.
Klosek asked Walker for a letter of recommendation during this internal hiring process. Klosek Depo. Tr. 301:7-302:7. Walker told Klosek that it was not her "practice to issue any type of recommendation letter for either current or former employees" and directed Klosek to the neutral reference policy that applied to external prospective employers outside of Wells Fargo.
During the first and second quarters in 2011, Alejo believed that there was a need for an additional Personal Banker Two in the Sonoma branch and informed Walker, his supervisor, of this need. Alejo Depo. Tr. 51:3-53:19. He does not recall the position being posted.
Sipes was moved back to the Sonoma branch in August 2011. Sipes Depo., Tr. 38:4-11.
III. The Instant Action
Plaintiffs initiated the instant case on August 6, 2010. Docket No. 1. They amended their pleadings on November 15, 2010 and on April 29, 2011. Docket Nos. 9, 26.
Guitron asserts five claims against Wells Fargo:
(1) retaliation under SOX; (2) discrimination based on her status as a single female and a single mother, in violation of Title VII and California's Fair Employment and Housing Act (FEHA); (3) retaliation in violation of Title VII and FEHA; (4) wrongful discharge in violation of public policy as expressed in Title VII, FEHA and SOX; and (5) failure to prevent discriminatory practices in violation of Title VII and FEHA. Guitron also asserts a claim under FEHA against Rubio for harassment based on her status as a single woman and single mother.
Klosek asserts six claims against Wells Fargo:
(1) retaliation under SOX; (2) discrimination based on her age and medical condition in violation of Title VII and FEHA; (3) retaliation in violation of Title VII and FEHA; (4) wrongful discharge in violation of public policy as expressed in Title VII, FEHA and SOX; (5) failure to prevent discriminatory practices in violation of Title VII and FEHA; and (6) denial of accommodation under FEHA. Klosek also asserts a claim under FEHA against Rubio for harassment based on her status as a woman over the age of forty.
Summary judgment is properly granted when no genuine and disputed issues of material fact remain, and when, viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Federal Rule of Civil Procedure 56;
The moving party bears the burden of showing that there is no material factual dispute. Therefore, the court must regard as true the opposing party's evidence, if supported by affidavits or other evidentiary material.
Material facts which would preclude entry of summary judgment are those which, under applicable substantive law, may affect the outcome of the case. The substantive law will identify which facts are material.
Where the moving party does not bear the burden of proof on an issue at trial, the moving party may discharge its burden of production by either of two methods:
If the moving party discharges its burden by showing an absence of evidence to support an essential element of a claim or defense, it is not required to produce evidence showing the absence of a material fact on such issues, or to support its motion with evidence negating the non-moving party's claim.
If the moving party discharges its burden by negating an essential element of the non-moving party's claim or defense, it must produce affirmative evidence of such negation.
If the moving party does not meet its initial burden of production by either method, the non-moving party is under no obligation to offer any evidence in support of its opposition.
Defendants move for summary judgment on all claims asserted by both Plaintiffs, and to sever their claims from one another.
I. Plaintiffs' claims for retaliation under SOX
"Section 1514A(a)(1) of Title 18 prohibits employers of publicly-traded companies from `discriminat[ing] against an employee in the terms and conditions of employment' for `provid[ing] information . . . regarding any conduct which the employee reasonably believes constitutes a violation of section 1341 [mail fraud], 1343 [wire fraud], 1344 [bank fraud], or 1348 [securities fraud], any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders.'"
A. The prima facie case under SOX
An employee seeking to establish a prima facie case of unlawful retaliation under § 1514A must prove four elements:
1. Protected activity
"To constitute protected activity under Sarbanes-Oxley, an employee's communications must definitively and specifically relate to one of the listed categories of fraud or securities violations under 18 U.S.C. § 1514A(a)(1)."
Defendants argue that Plaintiffs' complaints related to violations of internal company policies, not to bank fraud,
Plaintiffs have established a genuine dispute of material fact as to whether Guitron's reports related to bank fraud. Plaintiffs presented evidence that Guitron reported that her former colleagues were engaging in practices such as opening and closing accounts without customer permission or awareness or without proper identification, which would allow them to obtain otherwise unearned bonuses from Wells Fargo, thereby defrauding it.
Defendants' arguments to the contrary are unavailing. Defendants contend that Guitron failed to present evidence that Defendants had the necessary intent to participate in bank fraud.
Further, contrary to Defendants' argument, it is not necessarily fatal to Guitron's claim that she did not investigate whether or not her colleagues were actually engaged in fraud and that she based her complaints on reports from customers or her own suspicions about the transactions.
Finally, considered in the light most favorable to Guitron as the non-moving party, the evidence could support a finding that Guitron had a subjective belief that the activity she reported may have been unlawful, even though she was unsure.
Defendants, however, have established that there is no material factual dispute that Klosek did not engage in activity protected by SOX. Unlike Guitron, Klosek reported conduct akin to overly aggressive sales techniques, which may have been unethical or in violation of Wells Fargo's sales policies, but which could not objectively be considered bank fraud. Further, Klosek did not have a subjective belief that these practices amounted to bank fraud. Although she testified that she believed that her colleagues were engaged in "unlawful behaviors," she believed that they were unlawful because they violated "consumer rights"— which she described as the consumer's rights "to know what he or she is buying," to "full disclosure" and "not to be forced into something they're not asking for"—not because the practices were bank fraud. Klosek Depo., Tr. 419:2-421:19. Because Klosek cannot establish that she engaged in protected activity, she fails to establish a prima facie case for a SOX violation. Thus, Defendants' motion for summary judgment is GRANTED as to Klosek's claim for retaliation under SOX.
2. Knowledge of decision-maker
Plaintiffs have offered evidence, and Defendants do not dispute, that Defendants knew or suspected, actually or constructively, that Guitron had engaged in activity protected by SOX. Accordingly, Plaintiffs have established this element of Guitron's prima facie case for a SOX retaliation claim.
3. Unfavorable personnel action
Defendants contend that Plaintiffs have failed to offer evidence that Guitron suffered a "materially adverse" employment action. Mot. at 8 (quoting
The parties dispute the relevant standard for determining whether an employee has suffered an "unfavorable personnel action" under SOX. Defendants argue that the alleged action must be "materially adverse," meaning that "it well might have dissuaded a reasonable worker from making or supporting" the protected report.
Since those decisions, the ARB has issued two additional relevant opinions, which have materially undermined the reasoning underlying
More recently, in
Plaintiffs have offered substantial evidence, and Defendants do not dispute, that Guitron suffered unfavorable employment actions, including suspension and poor performance reviews. Thus, Plaintiffs have established this element of Guitron's prima facie case for a SOX retaliation claim.
4. Contributing factor
Plaintiffs argue that the fact that the purportedly retaliatory acts occurred during the same time period when Guitron was making complaints is sufficient to raise an inference that her protected activity was a contributing factor to the unfavorable employment actions. Viewing the circumstances as a whole, the Court agrees that Plaintiffs have introduced evidence sufficient to support such an inference.
B. Non-retaliatory reason
When a plaintiff establishes a prima facie case of unlawful retaliation under SOX, the burden then shifts to the defendant to demonstrate "by clear and convincing evidence that it would have taken the same adverse employment action in the absence of the plaintiff's protected activity."
The Court finds that the undisputed facts establish that Defendants have met this burden. The evidence demonstrates that, without Guitron's protected activity, Defendants would have issued her verbal and informal warnings, because she failed to meet her sales goals for each quarter in which she received a warning. Despite their assertions to the contrary, Plaintiffs have not introduced evidence that Defendants inconsistently implemented their personnel management policies, or that others who performed similarly were not given such warnings. Further, Defendants have established a non-retaliatory reason for placing Guitron on administrative leave: her insubordination in refusing to meet with her manager, Rubio. While Plaintiffs argue that this reason was pretextual because using administrative leave as a punitive measure was purportedly contrary to Wells Fargo's policy, Plaintiffs have not established the existence of any such policy. Defendants have also established a non-retaliatory reason for Guitron's termination: her refusal to return to work after Walker repeatedly informed her that she had only been placed on administrative leave and was not fired. Plaintiffs have not offered evidence that this reason for her termination was pretextual.
Accordingly, the Court GRANTS Defendants' motion for summary judgment on Guitron's claim for retaliation under SOX.
II. Discrimination in violation of Title VII and FEHA
Plaintiffs contend that Defendants discriminated against Guitron based on her status as a single woman
In disparate treatment cases, plaintiffs can prove intentional discrimination through direct or indirect evidence.
A. Direct evidence of discrimination
"Direct evidence is evidence which, if believed, proves the fact of discriminatory animus without inference or presumption."
Plaintiffs argue that they have direct evidence of discriminatory animus against both Guitron and Klosek. However, that "Guitron was pressured to shake her skirt, expose her cleavage and generally use sex to earn" daily sales credit, Opp. at 25, is not evidence of discriminatory animus toward single women without inference or presumption. Further, Plaintiffs offer no evidence that these actions were connected to any particular adverse job actions taken against Guitron. Similarly, that "Klosek was shunned, called a `Wal-Mart greeter,' questioned about her retirement, and even given a book to `help' her relate to the younger staff," Opp. at 25, is not evidence of discriminatory animus based on age or disability status without inference or presumption. Only Rubio's comment that Klosek was "too old for banking" is direct evidence of discrimination based on age. Further, Rubio made this comment shortly before giving Klosek her third quarter performance review, in which Rubio incorrectly asserted that Klosek had received a verbal warning for her performance.
Defendants contend that Klosek's negative performance ratings were not adverse employment actions, because they did not materially affect the terms and conditions of her employment. Klosek's regular compensation, position and title were not decreased by her negative performance reviews. Brandenburg Decl. ¶ 3. However, there is evidence in the record that employees could receive monetary bonuses, beyond their normal income, for achieving daily sales goals, if they also met certain other requirements.
Because Klosek has raised a material question of fact as to whether Defendants subjected her to discrimination based on her age, the Court DENIES Defendants' motion for summary judgment on her claim for age discrimination under FEHA.
B. Circumstantial evidence of discrimination
Because direct proof of intentional discrimination is rare, such claims may also be proved circumstantially.
A prima facie showing includes proof that (1) the plaintiff is a member of a protected class; (2) the plaintiff is qualified for the position in question or is performing her job satisfactorily; (3) the plaintiff suffered an adverse employment action; and (4) the plaintiff was treated differently than a similarly situated employee who did not belong to the same protected class.
Once a plaintiff has established a prima facie inference of discrimination, he or she will generally have raised a genuine issue of material fact regarding the legitimacy of the employer's articulated reason for the adverse employment action. Accordingly, a factual question will almost always exist, and summary judgment will not be appropriate.
In performing this analysis, the Ninth Circuit has cautioned that district courts should consider a plaintiff's "claim of discrimination with regard to each of these employment decisions separately, examining the specific rationale offered for each decision and determining whether that explanation supported the inference of pretext.'"
1. Guitron's claims under Title VII and FEHA for discrimination based on her status as a single woman
Defendants argue that Guitron has not established that she is a member of a protected class, because "marital status" cannot be the basis of such a class. Guitron responds that her status as a single woman is protected under a "sex plus" theory of discrimination. Under that theory, "Title VII not only forbids discrimination against women in general, but also discrimination against subclasses of women, such as women with pre-school-age children."
However, Guitron nonetheless fails to establish the elements of a prima facie case of discrimination based upon her status as a single woman. The undisputed evidence establishes that Guitron repeatedly failed to meet her sales goals, and that she was thus not performing her job satisfactorily.
Accordingly, the Court GRANTS Defendants' motion for summary judgment on Guitron's claims for discrimination under Title VII and FEHA.
2. Klosek's FEHA claim for discrimination based on disability status
In the 2AC, Klosek alleges that Defendants discriminated against her based on her disability status when her "position was taken from her while she was on medical leave of absence" and when she was terminated. 2AC ¶ 203.
Defendants argue that Klosek cannot establish a prima facie case because she cannot establish that either of these actions was taken "because of" her disability.
Nevertheless, the Court finds the evidence in the record establishes a prima facie case of discrimination based on disability. As previously described, while Klosek was on disability leave, on September 9, 2010, Walker sent her a letter stating that Wells Fargo would be posting her position in several days and expected to fill it shortly and asking that Klosek let her know if she planned to return to work soon thereafter. Walker's letter suggested that, if Klosek were able to return to work at that time, she would be able to retain her position. After Klosek informed Walker that she was unable to return because of her medical condition, her position was filled by Sipes. Further, because Wells Fargo filled her position, it also placed her on job search leave, as stated in Walker's letter. Because she was unable to find a new position during that leave, Wells Fargo terminated her. However, she would not have been placed on that leave, but for the fact that she could not return to her former position in September 2010 due to her disability. Thus, the evidence is sufficient to establish a causal nexus between Klosek's disability and Wells Fargo's decisions to fill her position while she was on leave and to terminate her.
Defendants aver that they filled Klosek's position because Wells Fargo had a business need for a Registered Personal Banker Two at the St. Helena branch and could not hold her position open indefinitely. Defendants also contend that they terminated Klosek because she was unable to find an open position during her ninety-day job search leave. Defendants further argue that Klosek cannot establish that these reasons were pretextual.
However, Klosek has produced evidence sufficient to create a genuine issue of material fact as to whether Defendants' proffered non-discriminatory reasons for these actions were "unworthy of credence."
Thus, the Court DENIES Defendants' motion for summary judgment on Klosek's claims for disability discrimination under the FEHA.
III. Failure to prevent discriminatory practices in violation of Title VII and FEHA
Defendants contend that summary judgment should be granted on Plaintiffs' claims for failure to prevent discriminatory practices in violation of Title VII and FEHA, because the underlying discrimination claims fail. Plaintiffs argue the converse.
Because Defendants' motion for summary judgment on Guitron's discrimination claims and Klosek's discrimination claim under Title VII is granted, the Court GRANTS Defendants' motion for summary judgment on Guitron's claims for failure to prevent discriminatory practices under Title VII and FEHA and Klosek's corresponding claim under Title VII. Because their motion for summary judgment is denied as to Klosek's claim for age and disability discrimination under FEHA, the Court DENIES Defendants' motion for summary judgment on Klosek's FEHA claim for failure to prevent discriminatory practices.
IV. Retaliation in violation of Title VII and FEHA
Claims for retaliation under Title VII and FEHA are analyzed under the
A. Guitron's claims for retaliation under Title VII and FEHA
In Plaintiffs' opposition, they contend that the relevant protected activity for Guitron's claims was her "refusal to conform to the constant pressure to use her sex appeal to elicit" daily sales credits. Opp. at 30. They also allege that "Rubio was well aware" that Guitron refused to do this and that "Rubio was the same person that denied Guitron referrals because she would not flirt with customers."
However, Plaintiffs' allegations are not supported by evidence in the record. The comments that Guitron points to were made by Isook Park and Chris Jensen, and Plaintiffs offered no evidence that Rubio knew about them or knew that Guitron refused to engage in these behaviors. Similarly, as discussed above, Guitron has offered no evidence that Rubio denied her referrals because Guitron did not flirt with customers.
Accordingly, the Court GRANTS Defendants' motion for summary judgment on Guitron's claims for retaliation under Title VII and FEHA.
B. Klosek's claims for retaliation under Title VII and FEHA
In the 2AC, Klosek alleges that she engaged in protected activity by making reports of improper, unlawful, discriminatory and harassing conduct of Rubio, Zavaleta and others, and that, as a result, she was retaliated against by being given negative performance evaluations and placed on unwarranted administrative leave. 2AC ¶¶ 174-76, 216-19.
Defendants argue that Klosek presents no evidence of a causal connection between any protected activity and the purportedly adverse employment actions.
In response, Klosek points to three exhibits supporting that she engaged in protected activity that was causally related to adverse employment actions.
Second, Klosek cites her complaints to Brandenburg in April 2009 about Alejo and her coworkers in the Sonoma branch. Many of her allegations in those complaints were based on her feeling that certain coworkers acted like they "owned" their customers and refused to work as a team, and that Alejo displayed favoritism to particular employees. These complaints also do not constitute protected activity under FEHA or Title VII. Similarly, although Klosek complained that Alejo treated her differently after she returned from a sick leave and that he became mad at her when she called about a "medical emergency,"
Klosek also offers no evidence that the performance review completed by Rubio or the administrative leave imposed by Walker were causally connected to any activity protected by Title VII and FEHA. As noted above, Klosek's claims of unethical behavior by others were not activity protected by Title VII and FEHA. Klosek has offered no evidence that she complained about Rubio's comment that she was "too old for banking," question about her plans for retirement or recommendation of the book, "Bridging the Age Generation Gap," before these actions were taken.
Accordingly, the Court GRANTS Defendants' motion for summary judgment as to Klosek's claims for retaliation under Title VII and FEHA.
V. Wrongful discharge in violation of public policy
Under California law, an employee may maintain a tort cause of action against his or her employer when the employer's discharge of the employee contravenes fundamental public policy.
A. Guitron's wrongful discharge claim
Defendants argue that Guitron cannot establish a
Guitron responds that she was fired on January 27, 2010 when Rubio told her to turn over her keys and leave for being insubordinate and then had her escorted off the premises. Opp. at 21-22, 32. Guitron relies on cases that have held, "No set words are necessary to constitute a discharge; words or conduct, which would logically lead an employee to believe his tenure had been terminated, are in themselves sufficient."
Because Guitron was terminated only when she voluntarily abandoned her job on February 11, 2010, after being warned by Walker that failure to appear for work would result in termination, she cannot maintain a claim for wrongful termination. Further, the Court has already concluded that Guitron has failed to establish a prima facie case of discrimination or retaliation that would violate the public policy expressed in SOX, Title VII or FEHA. Accordingly, Defendants' motion for summary judgment on her wrongful termination claim is GRANTED.
B. Klosek's wrongful discharge claim
Klosek contends that she was wrongfully terminated when Defendants filled her position while she was on medical leave and did not offer her an alternative position when she was able to return to work. In the 2AC, Klosek alleges that she was terminated because she complained about unethical and unlawful banking practices and because of her medical conditions. 2AC ¶ 150.
To the extent that Klosek bases this claim on her complaints about "unethical and unlawful banking practices," the Court has already concluded that there is no material dispute that Klosek did not engage in activity protected under SOX, and thus Klosek's claim for wrongful termination based on the public policy expressed in SOX also fails. Accordingly, Defendants' motion for summary judgment is GRANTED insofar as Klosek rests her claim on this activity.
However, the Court has concluded that Klosek established a prima facie case of discrimination under FEHA based on disability status and has raised a disputed issue of material fact as to whether Defendants' reasons for her termination were pretextual. Thus, Defendants' motion for summary judgment is DENIED on Klosek's wrongful termination claim to the extent it alleges termination in violation of the public policy of preventing disability discrimination as expressed in the FEHA.
VI. Harassment in violation of FEHA
In the 2AC, Guitron alleges that Rubio created a hostile work environment and harassed her based on her status as a single woman and mother. Klosek brings a similar claim against Rubio on the basis of her age. Both Plaintiffs bring their harassment claims against Rubio only.
A. Guitron's claim of harassment based on her status as a single woman and mother
"California courts have adopted the same standard [applied under Title VII] for hostile work environment sexual harassment claims under the FEHA."
Defendants characterize Guitron's claim as alleging that Rubio harassed her on the basis of her marital status. However, as noted above, Guitron's claim against Rubio is based, not on her marital status alone, but rather upon her "sex plus" her marital status.
Defendants also contend that Guitron misrepresents the contents of her exhibits and that she cannot establish sufficiently severe or pervasive sexual harassment attributable to Rubio based on the actual evidence in the record. While, in her opposition, Guitron points to what she characterizes as "ample evidence" of Rubio's conduct directed at her, much of the cited evidence relates to comments or actions made toward people other than Guitron, by people other than Rubio or before Guitron began working for Wells Fargo.
The single allegation for which Guitron provides evidentiary support is that Rubio once sent her a text message asking permission to open a package that Guitron had received from a customer, whom Rubio called "an admirer," and that Rubio asked who the package was from. Guitron Depo., Tr. 333:10-16. This is not sufficiently severe or pervasive to create an abusive work environment or to support a harassment claim.
Accordingly, Defendants' motion for summary judgment as to Guitron's harassment claim against Rubio is GRANTED.
B. Klosek's claim of harassment based on her age
Defendants argue that Klosek cannot establish that Rubio's alleged age-related comments to her constituted severe or pervasive harassment, because Klosek alleged that Rubio made only three such comments. Klosek responds that Defendants' count is incorrect. However, the evidence that Klosek cites in support of her argument is comprised of three comments made by Rubio. The other comments or actions cited are by people other than Rubio.
Defendants also contend that the other conduct of which Klosek complains amounts to personnel management activity, which as a matter of law cannot support a claim of harassment, and can only support a discrimination claim.
"Personnel management action must be analyzed in the context of discrimination as opposed to harassment."
Thus, viewed in the light most favorable to Klosek, the harrassment evidence consists of Rubio's three age-related comments to Klosek. First, in October or November 2009, Rubio, who was fifty-five years old, told Klosek, who was in her mid-sixties, "You're too old for banking," and that she had noticed her date of birth when she reviewed her file. Klosek Depo., Tr. 168:7-169:1; Rubio Decl. ¶ 3. Then, in November 2009, Rubio asked Klosek "if [she] was going to stay at the branch, did [she] have any plans of retiring" and "when." Klosek Depo., Tr. 237:22-238:8. Finally, in November or December 2009, Rubio told Klosek that she should read a book entitled "Bridging the Age Generation Gap."
"To prevail on an age-based hostile workplace/harassment claim, [a plaintiff] must show that she was subjected to verbal or physical conduct of an age-related nature, that the conduct was unwelcome, and that the conduct was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment."
None of the comments purportedly made by Rubio, nor the combination of them, rises to the level of egregious conduct that would "alter the conditions of employment" or "create an abusive work environment."
VII. Failure to provide reasonable accommodation or to engage in an interactive process in violation of FEHA
The FEHA provides a cause of action for failure to accommodate a disability or medical condition. Cal. Govt. Code § 12940(k).
"Under FEHA, an employer must engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability."
In the 2AC, Klosek asserts that Wells Fargo breached its duty to accommodate her disability by failing to keep her position open when she was on medical leave and refusing to return her to that position or to any other when she returned from that leave. Klosek also alleges that Wells Fargo failed to engage in good faith in a meaningful interactive process regarding these accommodations, by failing to help her find a different position within Wells Fargo.
Defendants contend that Wells Fargo provided Klosek with reasonable accommodations by giving her a ten month medical leave. Defendants argue that it was not obliged to keep her position open indefinitely after she acknowledged that there was no "definite timeline" for her recovery, because it had a business need to fill her position. However, the Court has already concluded that there is a genuine issue of material fact as to whether Wells Fargo in fact had such a business need. Further, while Klosek extended her leave, she did not seek to do so indefinitely, as Defendants suggest. There is a genuine question of material fact as to whether, at the time that Wells Fargo filled her position and did not offer her an alternative position, it appeared unlikely that Klosek would be able to return to her position at some point in the foreseeable future.
Defendants do not claim that Wells Fargo engaged in a good faith interactive process or offered Klosek reasonable accommodations when she was able to return to work, but rather maintain that, at that point, because Klosek was medically cleared to return to work without restrictions, she no longer needed accommodation to perform the essential functions of her job, and she no longer had a statutory entitlement either to a good faith interactive process or reasonable accommodation. Defendants' argument is essentially that Klosek did not need accommodation at the moment that she was well enough to return to work, and therefore Wells Fargo's obligation to help her return immediately ceased.
Holding a job open for Klosek or identifying a replacement position upon her return would have been a reasonable accommodation for her need for cancer treatment.
There is a genuine material dispute as to whether Defendants offered Klosek meaningful accommodations or engaged in a good faith interactive process. Klosek has offered evidence that Defendants did not attempt to find her an alternative position. As previously discussed, Klosek has offered evidence that the Sonoma branch had a need for a Personal Banker Two during the time period that Klosek was searching for a position and Defendants chose not to announce the opening.
Accordingly, Defendants' motion for summary judgment on this claim is DENIED.
For the reasons set forth above, Defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART (Docket No. 74).
Wells Fargo is granted summary judgment as to all claims brought by Guitron. Wells Fargo also is granted summary judgment as to Klosek's claims for retaliation in violation of SOX, Title VII and FEHA, wrongful discharge resulting from her complaints about unethical and unlawful banking practices, age discrimination under Title VII and failure to prevent discriminatory practices in violation of Title VII. Further, Rubio is granted summary judgment on all claims brought against her individually by both Plaintiffs.
The Court denies summary judgment on Klosek's claims for age and disability discrimination under FEHA, wrongful discharge based on disability, failure to prevent discriminatory practices in violation of FEHA and failure to accommodate and to engage in an interactive process in violation of FEHA.
Because the Court grants summary judgment as to all claims brought by Guitron, Defendants' motion to sever the claims of Guitron and Klosek is DENIED as moot (Docket No. 64). A case management conference will be held on Wednesday, August 8, 2012 at 2:00 p.m. Klosek and Wells Fargo shall file a joint case management conference statement one week before the conference.
The one exhibit they cite that contains a similar statement is a list of allegations that Klosek prepared in early February 2010 for a meeting with Susan Eagles-Williams.
For example, Plaintiffs allege that, in October 2009, Rubio set forth a new policy "that Hispanic customers should only be served by Hispanic bankers," so that "Klosek was not allowed to assist Hispanic customers who made up 95% of the walk-in traffic at the Branch." Opp. at 14 & n.35. However, the trial policy to which they cite states, "If customers do not speak any English they need to be serviced by someone who is bilingual (whoever is available). If customers do speak English they can go to any banker available." Pls.' Ex. 126. The policy does not state that Hispanic customers had to be served by someone of a particular race or ethnicity, and instead appears intended to ensure that customers who do not speak English are served by someone who can communicate with them. Further, there is no evidence in the record that Klosek does not speak Spanish, that she was the only non-Spanish speaker at the branch or that 95% of the customers who come in do not speak any English.
Plaintiffs also assert that Rubio did not allow Klosek to take walk-in traffic. Opp. at 14. However, the evidence to which they cite, Klosek's deposition testimony, instead states that she was allowed to take walk-in referrals, but that she believed that a particular banker—not Rubio—gave her too few referrals. Klosek Depo., Tr. 180:18-181:16. Further, other evidence establishes that Rubio changed the prior policy that employees at the Personal Banker Two level were not allowed to take walk-in traffic, in order to allow Klosek to do so. Rubio Depo. Tr. 238:19-25; Pls.' Ex. 126.
Plaintiffs also contend that Klosek was not allowed to take business clients, and that Rubio gave no reason for this. Opp. at 14. However, the only evidence that they cite in support of this is an unrelated performance review for Guitron.
Cook Depo., Tr. 45:2-22. This testimony does not establish that such use of administrative leave is contrary to Wells Fargo policy, but rather that Cook was unaware whether it was and that she had not had occasion to do so.