Trierweiler v. Wells Fargo Bank, No. 1:2009cv01001 - Document 40 (D.S.D. 2010)
Court Description: MEMORANDUM OPINION AND ORDER denying 32 Motion to Strike ; granting 20 Motion for Summary Judgment. This matter is dismissed with prejudice and without costs. Signed by Charles B. Kornmann on January 19, 2010. (DLC)
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UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA NORTHERN DIVISION FILED JAN f £ ;;;.1 '~'1 .. ~ ... #"::, .. ¢..................... ¢........... ¢..................... ¢............. ~; ¢ ClY 09·1001 ¢ KIMIJERLI TRIERWEILER. ¢ Plailltin: ¢ MEMORANDUM OPINION ¢ -VS.AND ORDER ¢ ¢ ¢ ¢ Ddendanl. ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ WELLS FARGO BANK, Plaintiff filed a complaint alleging discrimination under the Pregnancy Discrimination Act, 42 U.S.C § 2003(k). Defendant filed a motion for summary judgment. Defendanl also tiled a motion to strike nrtuchmcnlS to plaintiffs appendix in support afher responsive stalemcnt of fads. FACTS Plaintiff was hired by defendant as a teller at the Walertowll l South Dakota, Branch of Wells Fargo Bank on October 6, 2006. She received a copy of the personnel policy handbook setting forth the absenfceism policy. The rclev:mt portions of that policy are set forth below: Attendance lind Punctuality ... Regular and dependable atlend.mcc is an essential fundion of your job at Wells Fargo. Some of your absences may bc consid~red paid time under the I)TO program ... Check with your supervisor {o sce how much PTO you have available or how much you hav~ remaining for the year ... Unscheduled Absences ... even ifabsences are covered by PTO and you report them 10 your supcrvisor in a timely manner, they can be grounds for corrective action. Of course, occasionally you may be ill, injured, or unable to work because of an illness in your immediate family or other personal emergency. 'fyou're going to be late for work or absent, conta<:t your supervisor as soon as possible - no later than your normal starting lime that day. You must make cvery effort to reach your supervisor personally. Important: It's YOllr responsibility Lo make slire your supervisor and business l/nit arc not!fied promptly about your absence Or (a,.dine~·s. Ifyou don 'f personally noL~fy your sllpervisor ofyour ubsenc£' no or tardiness in a timely manner it can be grounds/or corrective action, which may include termination ofyour employment. Excessive Absences Each region or line of business may establish its own guidelines tor attendance and reasonable absences. If you don't know the guidelines tor your area, ask your supervisor. Importanf: Excessive absence.~ or tardiness - including rf?peafed incidents or a pattern of incidellts - is grounds/or correctil'e action, which may include termination o.fyour emp{oymel1l ... Time orr ... In this chapter, you'll find information about the different types of paid Dnd unpoid time off avoilable to you, .. Unscheduled Abs<:n<:<:s ... Regular and dependable attendance is an essential function of your job at Wells Fargo, and for this reason unscheduled absences may be grounds for corrective action ... Importan! · .. excessive absences or lardiness - including repeated absences or a pal/ern 0/ absences - are grounds/or corrf?ctive action, which may incfude termination 0/your employment. Paid Time orr (PTO) Wells Fargo provides you wilh Paid lime Off (abbreviated to "PTO") each calendar year to use for time away from work. You may use this time for any number of reasons, including, for example: -Vacation -Your illness (including ilny scheduled workdays missed during the waiting period for the Short Term Disability Plan) -A family Member's illness ¢ School activities or confcrcnces - VtlrlHble holidays - Religious obscrvanccs ¢ Personal business ¢ WeDlher problcms SchedUling You'll schedule your PTO in advance, with your supervisor's tlpprovul, The only exception 10 this requirement is an illness or oLher cmergcncy ... Performance Counseling & Corrective A<:tioD ... each of us is expected to meet standards of pcrfonnance, behavior, and Ilttendance . In most cases, if you have a pcrfonnance issue your supervisor will work with you to provide the appropriate perfonnance counseling and corrective action so that you have the opportunity to improve. However, the policy is not progreSSive. This means we reserve the right to escalate the process or use any part of it that we feel is appropriate lor the situation - and, if necessary, to terminate employment without implementing performance counscling and corrective action. This is consistent with our "cmployment at will" policy ... 2 Informal Counseling In most cases, if your ... attendanee doesn't meet specified requirements, your supervisor will meet with you to discuss the issue ... Formal Warning If .. , attendance shows no signs of improvement or keeps declining after infOimal eounseling ... your supervisor may doeumem the situation in a written ronnal warning ... "'inal Notice Some situations may require corrective action just short of tennination. In a situation like this, you may receive a fmal notice advising you that if the situation occurs again at any time during your Wells Fargo employment, your employment will be tenninated immediately. This notice is typically a written memo . Termination If you doo't achieve the improvement in attendance that was outlined in the infonnal counseling or fonnal warning, your employment may be tenninated. In addition to the foregoing, the handbook also contained a section on unpaid medical leave and paid short tenn disability leave, both of whieh were available for pregnaney related conditions. There was a five day waiting period from the onset of short term disability until payment was to bewn under the short tenn disability plan. Employees were required to use PTO during those days, if the employee had any PTO remaining. Otherwise, those days were unpaid. Plaintiff WDS eligible for 20 days (160 hours) paid lime off ("PTO") per year. Those days werc pro rated during 2006 aller a one month waiting period and plaintiff therefore only reeeived two days (16 hours) PTO. Pluintiffused all of her paid time and also had 4.5 days unpaid absences in 2006. The employee handbook set forth that, upon early termination, an employee would be required to pay back PTO used but not accrued. In December 2006, plaintiff infonned defendant that she was pregnant. She was not eligible for leave under the Family Medical Leave Act because she had not been employed with Wells Fargo ooe year. She was eligible instead for maternity leave under defendant's sbort tenn disability ("STD") plan. Plaintiff was advised that there is a fIve day wailing period until STD benefits begin and that she would have to use ?TO to be paid for those days. She was not lold that, jf she had no PTO left, shc could use unpaid time off. She never sought elarifieation from anyone about maternity leave or the STU plan. She advised her supervisors that she planned to reserve five of her 2007 ['TO days (40 hours) to cover her salary during the waiting period. J On April 17,2007, plaintilT's supervisors scheduled a visit with plaintiff about her attendance. During the first thee and one hal f months, plaintiff had incurred two days orun excused absences, rour days absence due 10 sickness. two days absence due to moving, three days absence due to weather, and one half day absence due to a doctor's appointment. Plaintiff also had scheduled two days at the end of April to move amI another absence to be at home for the cable to be hooked up. Plaintiff scheduled her doctor's appointments during her lunch hour and would come in early or work late so as not to use PTa for that time off. The April 17th discussion was "light," "quick," and not confrontational. As a result of the meeting, plaintiff understood that she was close to using up all her allotted PTa hours, taking into account that she wanted to have 40 hours available to cover her salary during the STD waiting period. Plainti ff was told at that meeting that she "needed to manage" her absences. The parties dispute how many PTa hours plaintiff had used (and had scheduled to use in the future) al the time of the April 17th meeting. Whether defendant actually knew the exact PTa hours plaintiff hatl remaining is irrelevant. TIle hours used each pay period are shown on plaintiff's bi-weekly pay slubs and she hersclfwould have known how many hours she had remaining. She do(;:s not dispule Ihat she was told a( the ApriIITH.'.<:ling that she hatl used up most of her PTa <.Ind, regardless or the exact number orhours remaining, she agreed that she had in fact used most of her PTa by the time of Ihat meeting. Defendant recorded that the meeting constituted a verbal warning. On May 9, 2007, plaintiff stayed home with her siek child, using eight hours PTO for this unsent:duled absence. Defendant's records show that on May 9, 2007, defendant intended to have plaintiffs supervisor visit with plaintiff and "tell her that if she has one more absence - formal warning." On May 11,2007, plaintiff had a mceting with one of her supervisors. She was handed a letter of recommendotion wm a satisfietl customer. Plaintiff lestiJied thal when she stood to leave, her supervisor said: Oh. and by the way, you can't miss one more tlay of work until December and she was smirking and smiling at me the whole time. And [said what arc you talking about. She said because you dun't have any PTa time left. So 1smtl I'm culling human resources anti she soid there is nobody!o talk 4 to beclluse this came from human resourct:5, 50 I went out and fmished my shill. Plaintiff elaims she was told "I'm done if I miss one more day of work," Plaintiff contt:nds that, before that meeting, she had been asked six times by two different managers about how long she intended to take for maternity leave. Defendant disputes plaintiffs rendition of that meeting. Defendant claims that, at the May 11 meeting, plaintiff's supervisor advised plaintiff that if she has one more absenee, plaintiff would receive a fonnal warning. Plaintitl called her supervisor on Monday, May 14, 2007, and left a message that her doctor told her to take off work through Thursday. Defendant returned the call on Tuesday morning and left a message that "she doesn't know how that's going Lo work out for me." During the days plaintifl was absent for a pregnancy relnted medical condition (May 14 19), her supervisor was in contaet wilh defendant's hurmm resources manager 10 rJeh.:nnine what, if any aelion, should or could be taken as a result of plaintiff's non-pregnancy related absences and the possibility that plaintiff may have adLlitional pregnancy related absences. A May 15 internal email retlecls, and plaintiff did not put forth any evidence to dispute, that She only hll5 4 days of PTO left at this point and its only May. Baby is due in July. The snow days and fog were not bad enough for her to be out all day .. , other team members easily made it in. She has a tendency to just eall in when she doesn't feel like coming in and makes little to no effort to come in later in the day ... we feel that she bas bcen abusing this ... she has a spouse that can assist when the child is sick (she has told Mandy this but doesn't do it). She St:ems to feel that ifshe uses up her PTO then sht:'11 take unpaid time off. She also made a comment to Mandy last week that shc wants to know what date she has to work until so that she won't havc to pay back her PTO ... Her absences and the need to save 5 days for her disability have all ht:en discussed with her ... The decision was made to have defend.mt's Work Ability consultants involved 10 review a possible Icmporary accommodation. On May 18,2007. the rJate plainlifftold defendant she would be returning to work. plaintiff drove up to the auto bank, handed her keys to a teller, and said "Please make sure that Mandy [supervisorJ gets these keys. I am done. I can't handle it." PlaintifTthen left a telephone message for her supervisor to put her personal eflects together to give to another teller to drop off 5 at plaintiffs house. That was accomplished that same day. Defendant did not fonnally tenninate plaintiffs employment or do anything to alter or affect a tenn, condition, or privilege of her employment. DECISION Defendant seeks to strike documents that were presented by defendant to the EEOC. Deposition exhibit 17 (Tab 12 of Doe. 31) is a Mareh 6, 2008, letter from defendant to the EEOC investigator setting forth defendant's elaim that plaintiff had used 122.75 hours of PTO Hnd seven hours of miseellaneous absence during 2007. Deposition exhibit 9 (Tab 13 of Doc. 31) is a Wells Fargo time off calendar for plaintiff for 2006 and 2007. Plaintiff suggests in her statement of material facts that defendant presented different calculations to the EEOC and therefore did not know, a.s of May 2007. how much PTO plaintiff had used. Defendant contends that this Court cannot consider documents presented to the EEOC, ciling 42 U.S.c. § 2000c-5{b) which provides, in relevant part: If the Commission detennines after such investigation that there is reasonable cause to believe that the cbarge is true, the Commission shall endeavor to eliminate any sueh alleged unlawful employment practice by infonnal methods of conference, conciliation, and persuasion. Nothing silid or done during and as a part of such infonnal endeavors may be made public by the Commission, its officers or employees, or used as evidence in lJ subsequent proceeding without the written consent of the persons concerned. Plaintiff did not submit anything said or done by the Commission. She submitted uocuments which were prepared by Wells Fargo documenting plaintitfs alleged PTO hours used and other absences (Wells Fargo con (ends thai these Were prepared at the time of the EEOC investigation, not at the time of employment). Plaintiff submitted these documents in support of her e1aim thai her alleged absences were a pretext for pregnancy discrimination, I find that such documents would have been discoverable and arc therefore admissible. The motion to strike should be denied. As will be detailed later in this opinion, those documents do not create ilny genuine issue of material fact. The summary judgment standard is well mown and has been set forth by this eourt in numerous opinions. See Hanson v. North Star Mutual Insurance Co.. 1999 DSD 34 ~ 8, 71 F.Supp.2d 1007, 1009-1010 (D.S.D. 1999), Gardner v. Trip Counly, 1998 DSD 38 ~ 8, 66 6 F.Supp.2d 1094, 1098 (D.S.D. 1998), Patterson Fann. Inc. v. City of Brinon, 1998 DSD 34 ~ 7, 22 F.Supp.2d 1085, 1088-89 (D.S.D. 1998), and Smith v. Horton Industries. 1998 DSD 26 112, 17 F.Supp.2d 1094, 1095 (D.S.D. 1998). Summary judgment is proper where lhere is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of IDW. Fed. R. Civ. P. 56(e); Donaho v. FMC Corp., 74 FJd 894, 898 (8th Cir. 1996). The Unitcd States Supreme Court has held thai: The plain language of Rule 56(c) mandates the entry of summary judgment ... against a party who fails tu make a showing sufficient to eSl.cblish the existence of an clement essential to thaI. party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential clement of the non-moving party's ease necessarily renders all other facts immaterial. Celole. Corp, v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). "A material fact dispute is genuine if the evjdence is sufficient to allow a reasonable jury to return a verdietlor the non-moving party." Landon v. Northwest Airlines. Inc., 72 FJd 620, 634 (8th Cir. 1995). In eonsidering the motion for summary judgment, this Court must view the faets in the light most fdvorable to plaintiff and give plaintiff the benefit of all reasonable inferences that can bc drawn from the facts. Donaho, 74 F.Jd at 897-98. Tille Vll oflhe Civil Rights of 1964, 42 U.S.C. § 20DOe elseq., prohibits discrimination in employment on the basis, imer alia, of an individual's sex. As amended by the Pregnancy Discrimination Act, the scx discrimination proscribed by Title Vll includes discrimination on (he basis of "pregnancy, childbirth, or related medical conditions; and women affected by pregnancy. childbirth. or rdated medical conditions shall be treated the same for all employment-related purposes. including receipt of benefilS under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work." Deneen v. Northwest Airlines, Inc., 132 F.3d 431, 435 (8th Cir. 1998); 42 U.S.C. § 2000e(k). The 1991 Pregnancy Discrimination Act amended Title VII to make it "an unlawful employment practice to diseharge an individual, .. 'because of ... pregnancy, childbirth, or related medical condilions.'" Rpberts v. Park Nicollet Health Serviees, 528 F.3d 1123, 1127 (8th Cir. 2008); 42 v.se § § 20ooe(k), 2000e-2(a)(I). 7 We analyze Title VII claims under the tmditional burden-shifting analysis of McDonnell Douglas Com. v. Green, 411 U.S. 792,93 S.Ct. 1817,36 L.Ed.2d 668 (1973). Under this framework, a Title VI] pJaintiffhas the initial burden of establishing a prima facie case of discrimination. If a prima facie case is established, a burden or produetion then shifts 10 the employer to articulate a legitimate, non-discriminatory relIson for [it.::; action]. If the employer makes such a showing, the plaintiff must then demonstrate by a preponderance of the evidence that the stated non-discriminatory rationale was a mere pretext for discrimination. Qamhiyah v. Iowa State University of Sejenee and Technology, 566 F.3d 733, 746 (8th Cir. 2009) (internal citations omitted). Under McDonnell Douglas, plaintiff may !Jatisfy her burden of establishing a prima facie case of pregnancy discrimination by showing: 1) that she was pregnant; 2) that she was qualified for her position or meeting her employer's legitimate job expectations; 3) that she was discharged or suffered some other adverse emplo)TTlent action; and 4) there is a nexus between her pregnancy and the adverse emplo)TTlent decision or evidence that someone who was not pregnant received more favorable treatment. See Bergstrom-Elk v. Best Oil Cn, 153 F.3d 851, 857 (8th Cir. 1998), Venturelli v. ARC Community Services, Inc., 350 F.3d 592, 602 (7th Cir. 2003), Tysinger v. Police Dept. of City of Zanesville, 463 F.3d 569, 573 (6th Cir. 2006), Spivey v. Beverly Entcrorises, Inc., 196 F.3d 1]09,1312(lllhCir.1999). "Because discrimination cases often depend on inferences rather than on direct evidence, summary judgment should not be granted unless the evidence could not support any reasonable inference for the norunovant:' Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1944); Bassett v. City nf Minneapolis, 211 F.3d 1097, 1099 (8th Cir. 2000). However, summary judgment is proper if the plaintiff fail!J to establish any clement of his or her prima facie case. Wilking v, Cnunty of Ramsey, 153 F.3d 869, 873 (8th Cir. 1998); Cravens v. Blue Cross and Blue Shield of Kansas Cily, 214 F.3d 1011, 1016 (81h Cir. 2000). A party opposing summary judgment must provide sufficient probative evidence which would pennil lhe Court to rule in her favor rather th<ln engaging in conjecture and specul<ltion. Kncibcrt v. Thomson Newspapers. Mich. Inc., 129 F.3d 444, 455 (8th Cir. 1997). PluintilT cannot cstahlish an essl:ntial clement of hl:r ease - that shc was dischargcd or sulTered soml: other advcrse employmcnt action - and, thercl·orc, summary judgment is appropriate hcrc. See Celole" Corp. v. CatTell, supra. Where, as here. deFcndant did not actually tcrminate plaintiffs employment, plaintiff is required to demonstratc that shc was constructivcly discharged. Bergslrom-Elk, 153 F.3d at 857. A constructive discharge occurs "when an employer deliberately renders the employee's working conditions intolerable," forcing [her] to quit [her] job. Thompson v. Hi-State Development Agency, 463 F.3d 82 L, 825 (8th Cir. 2006) (quoting Smith v. World Ins. Co., 38 F.3d 1456, 1560 (8th Cir. 1994». An objeetive standard applies to constructive discharge claims, i.e., a constructive dischargc takes place only when a rcasonable person would find working conditions intolerable. "Part of an employee's obligation 10 bc rcasonable is an obligation not to assume lhe worst and not to jump to conclusions too fast." Buboltz v. R<'Sidcntial Advantages, Inc., 523 F.3d 864, 869 (8th Cir. 2008) (citalions omitted). "An employce who quits without giving her employer a reasonable chance 10 work out a problem is not constructively discharged." West v. Marion Merrell Dow, Inc., 54 F.3d 493. 498 (8lh Cir. 1995). A constructive discharge claim "requires considcrably more proof than an unpleasant and unprofessional environment." Jones v. Fitzgerald, 285 F.3d 705, 716 (8th Cir. 2002). A working atmosphere may not be ideal, but '''a feeling or being unfairly criticized or [having to endure) difficult or unpleasant working conditions are not so intolerable as to eompel a reasonable person to resign. ,.. (internal marks omitted) (alteration ill original). Breeding v. Arthur J, Gallagher & Co., 164 F.3d 1151, 1160 (8th Cir. 1999). ( find that dcfendant's notice to plaintitTthul she had used ncarly all her PTO in thc first quarter of the year and had no additional days of paid Icave the rest of the year does not convert plaintill"s decision to quit into a constructive discharge. The undisputed facts show that defendant counseled plaintiff about the number of absences even before plainti ff took ally time orf for pregnancy relatcd matters. Despite being told thal she had very little paid time otT left if 9 she wanted to reserve tive days to cover her STD maternity leave waiting period, plaintilTtook three additional days oU (one of which was unscheduled). She was reminded again that she had only one day paid time off left. Again, at this time, none of plaintiff's paid absences were related to pregnancy. The evidenee is clear that at no time did defendant even imply that plaintiff would not be allowed to take paid maternity leave when her baby was born. A reasonable person who had taken nearly all of her yearly allotted leave by the middle of May, much of it for non-emergency reasons, would not find it intolerable to be reminded of the fact that she had little or no PTO left. Even if a reasonable employee could infer that her employer would not tolerate further unscheduled absences, plaintiff was required to return to work after her pregnancy related absence instead of quilting. ORDER Plaintiff has failed to show that a genuine issue of materia I fact exists as to whether defendant tenmnated her employment or caused plaintifT to suflcr some other adverse employment action. There are no genuine issues ()fmaterial fact. Plaintifrhas failed to make out a prima facie case and the motion for summary judgment should be granted. Now, therefore, IT IS ORDERED: l. Defendant's motion, Doc. 32, to strike is denied. 2. Defendant's motion, Doc. 20, is granted. 3. This matter is dismissed with prejudice and without costs. Dated this ~Of January, 2010. BY THE COURT: ~!3~ CHARLES B. KORNMANN United States District Judge 10
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