VIRGINIA EMERSON HOPKINS, District Judge.
This is a civil action filed on October 31, 2012, by the plaintiff, Debra Parrott, against the defendant, PNC Bank, National Association, the successor entity to the Royal Bank of Canada d/b/a, RBC Bank Services USA ("PNC"), her former employer. (Doc. 1, 14, 22).
(Doc. 22 at 6).
The case now comes before the court on PNC's motion for summary judgment. (Doc. 25). The case is also before the court on PNC's Motion to Strike certain evidence submitted by the plaintiff in opposition to the motion for summary judgment. (Doc. 38). For the reasons stated herein, the motions will be
It has long been the law in this circuit that, when deciding a motion for summary judgment, a district court may not consider evidence which could not be reduced to an admissible form at trial. See Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999). But, until 2010, Rule 56 lacked a formal procedure to challenge such inadmissible evidence. In 2010, the advisory committee added Rule 56(c)(2), which provides:
Fed.R.Civ.P. 56(c)(2). Although PNC has styled the motion as a motion to strike, the motion is, in substance, a challenge to the admissibility of the plaintiff's evidence. Therefore, the court will treat the motion as an objection under Rule 56(c)(2).
Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ("[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.") (internal quotation marks and citation omitted). The party requesting summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings in answering the movant. Id. at 324, 106 S.Ct. 2548. By its own affidavits — or by the depositions, answers to interrogatories, and admissions on file — it must designate specific facts showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir.2000). Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If the evidence presented by the non-movant to rebut the moving party's evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249, 106 S.Ct. 2505.
How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). If the movant bears the burden of proof on the given issue or issues at trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine issue of material fact — that is, facts that would entitle it to a directed verdict if not controverted at trial. Id. (citation omitted). Once the moving party makes such an affirmative showing, the burden shifts to the non-moving party to produce "significant, probative evidence demonstrating the existence of a triable issue of fact." Id. (citation omitted) (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16. First, the movant may simply show that there is an absence of evidence to support the non-movant's case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by
The defendant challenges the admissibility of some of the evidence the plaintiff has submitted in opposition to the motion for summary judgment. Of course, evidence submitted in support of, or in opposition to, a motion for summary judgment does not have to be admissible under the Federal Rules of Evidence, as long as it could be reduced to an admissible form at trial. McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir.1996) aff'd sub nom. McMillian v. Monroe Cnty., Ala., 520 U.S. 781, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997) ("We read this statement as simply allowing otherwise admissible evidence to be submitted in inadmissible form at the summary judgment stage, though at trial it must be submitted in admissible form."). Still, "an objection [under Rule 56(c)(2)] functions much as an objection at trial.... The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated." Fed.R.Civ.P. 56 advisory committee's note to 2010 amendments (emphasis added).
Keeping these rules in mind, the court will examine each piece of evidence that is challenged.
This declaration is just over two pages long and is offered for the purpose of authenticating two charts, or partial summaries, of the deposition of David Hedges. According to the declaration, Boackle is employed as a legal assistant to plaintiff's counsel, Andrew C. Allen. (Doc. 34-5 at 1). She states that "at Mr. Allen's direction, I read the deposition transcript of David Hedges and summarized those instances in which he indicated a failure of memory in relation to substantive events which relate to matters at issue in this case." (Doc. 34-5 at 3). The defendant argues that this declaration is not based upon the witness's personal knowledge, and attacks these summaries as conclusory opinions by a lay witness. (Doc. 38 at 4-5). The plaintiff responds that "Boackle's declaration simple [sic] serves to authenticate summary evidence already admitted before the Court and is expressly permitted pursuant to 1006 F.R.E. [sic]." (Doc. 41 at 2).
Rule 1006 of the Federal Rules of Evidence provides:
Fed.R.Evid. 1006. The plaintiff argues that
(Doc. 41 at 2-3).
The court does not find the plaintiff's argument persuasive. Summaries have been found admissible on summary judgment where "exhibits are voluminous and it would be inconvenient for the Court to take the time to review, compare, and analyze each document." Guijosa-Silva v. Wendell Roberson Farms, Inc., 7:10-CV-17 HL, 2012 WL 860394 at *3 (M.D.Ga. Mar. 13, 2012) (allowing summaries of comparisons of payroll summaries and I-9s because "[t]he payroll summaries consist of line after line of names and numbers that are difficult to understand[, and] [t]he I-9s, though easier to read, are numerous, and it would take time and effort to sort through them and pick out relevant dates and names."). The Hedges deposition is not the type of "voluminous" evidence for which a summary would be appropriate. The deposition can be "conveniently examined in court." The Boackle affidavit, and its attachments, will be
The defendant attacks the following portions of the declaration of Gary Wood:
(Doc. 34-2 at 5).
The defendant contends that it fired the plaintiff, a bank manager, for not following established written rules and regulations pertaining to endorsing insurance checks in an amount exceeding $10,000.00. An examination of the argument section of the plaintiff's summary judgment response brief shows that she relies upon Wood's opinion, in part, to establish that she had discretion to act outside the rules in certain circumstances, and exercised her discretion correctly. The defendant argues that Wood has no personal knowledge of the circumstances surrounding the plaintiff's termination, and that these paragraphs contain conclusory statements and inadmissible lay opinion testimony. (Doc. 38 at 6). In response, the plaintiff argues that his testimony is permissible lay opinion testimony under Rule 701 of the Federal Rules of Evidence. (Doc. 41 at 3-4). It is undisputed that Wood has not been qualified as an expert.
The plaintiff writes only that "[b]ecause the testimony offered by Wood in his declaration meet[s] [Rule 701's] criteria and are clearly helpful to the factfinder in determining a fact in issue (namely the proper application and interpretation of RBC's personnel policies) Wood's conclusions are properly admissible as evidence before this Court." (Doc. 41 at 4). This conclusory statement does not satisfy the plaintiff's burden. For this reason alone, the motion should be granted and the declaration stricken. However, even considering the merits of the argument, the declaration cannot survive.
Rule 56(c)(4) provides
Fed.R.Civ.P. 56(c)(4). Further, a lay witness may only offer an opinion if it is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Fed. R.Evid. 701.
KW Plastics v. U.S. Can Co., 131 F.Supp.2d 1265, 1273-74 (M.D.Ala.2001). A party's mere "belief" and/or speculation is not based on personal knowledge and is not competent summary judgment evidence. See General Longshore Workers v. Pate Stevedore Co., 1993 WL 603297, *8, 1993 U.S. Dist. LEXIS 18638, *26-27 (N.D.Fla.1993) (holding that a party's belief does not satisfy the personal knowledge requirement because "[b]elief, no matter how sincere, is not equivalent to knowledge") (citing Jameson v. Jameson, 176 F.2d 58, 60 (D.C.Cir.1949)). According to Fed.R.Evid. 602, "[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." For a matter to be considered within a witness's personal knowledge, it must be "derived from the exercise of his own senses, not from the reports of others — in other words, [it] must be founded on personal observation" U.S. v. Evans, 484 F.2d 1178, 1181 (2nd Cir.1973) (quoting 2 Wigmore, Evidence, 3d ed.1940, § 657).
In this case, most, if not all, of Wood's opinions are clearly based on technical, or other specialized knowledge within the scope of Rule 702. He states that his opinions are "[b]ased on [his] decades of knowledge and experience in branch banking operations," (doc. 34-2 at 7) and constitute his "professional opinion based upon [his] training and experience" (doc. 34-2 at 8). To the extent that his opinions are so based, they are inappropriate under Rule 701.
In paragraph 8, Wood states that he was a former Regional Manager for RBC, and that he is "familiar" with "the Banking Center Performance Standards employed by RBC." (Doc. 34-2 at 5). In the same
Wood also lacks personal knowledge of the circumstances behind the plaintiff's termination. Although he was a former Regional Manager for RBC, it is undisputed that he left the defendant no later than April 2011. Accordingly he was not employed by the defendant on October 19, 2011, when the plaintiff was terminated. (Doc. 22 at 5). While he may be "familiar" with the plaintiff's "performance as a Branch Manager," and "the Banking Center Performance Standards employed by RBC," he was not there when the events giving rise to her termination occurred. Indeed, everything he knows about the incident he learned from his review of exhibits to the Hedges deposition. (Doc. 34-2 at 5). Even then, he premises his opinion on an incorrect assumption, saying: "I understand that Ms. Parrott was terminated for having authorized on behalf of the Bank a deposit of approximately $12,500, on behalf of a long-time client, Ms. Hallie Riha." (Doc. 34-2 at 5). The dispute in this case centers upon whether the plaintiff violated RBC's policies regarding endorsing insurance checks. The defendant agrees that there are different policies relating to different types of checks. However, it is undisputed that there was a specific policy regarding insurance checks in an amount over $10,000. The foundation for Wood's opinion is not sufficient for him to opine that the plaintiff acted reasonably, or was disciplined properly. Without a proper foundation, his testimony is not "helpful," but instead is an opinion offered to "merely tell the jury what result to reach." United States v. Rea, 958 F.2d 1206, 1215 (2d Cir.1992) (quoting Fed. R.Evid. 701 Advisory Committee Note on 1972 Proposed Rule) (emphasis supplied); see also Lightfoot v. Union Carbide Corp., 110 F.3d 898, 912 (2d Cir.1997) (same); see also, Hamilton v. Coffee Health Grp., 949 F.Supp.2d 1119, 1128 (N.D.Ala.2013) (Smith, J.).
Paragraph 10 is merely an impermissible conclusory lay opinion as to what the documentary evidence in this case demonstrates.
Paragraph 11 is an opinion made "[b]ased on [Wood's] decades of knowledge and experience in branch banking operations." (Doc. 34-2 at 7). It is therefore based upon specialized knowledge and will not be considered as lay opinion. For the same reasons, paragraph 13 which states Wood's "professional opinion based upon [his] training and experience," (doc. 34-2 at 7, 8) is also due to be stricken.
The above quoted paragraphs of the Wood declaration will be
The plaintiff, Debra Parrott, was born on June 30, 1954. She was 59 years old when this motion was filed. Parrott began her banking career in 1996 as an Assistant Branch Manager for Birmingham's AmSouth Bank N.A. It is undisputed that she distinguished herself by opening a new branch located in Vestavia Hills, Alabama, while capturing 640 new households in the first six months of that branch's operations.
Parrott joined National Bank of Commerce ("NBC") on February 5 or 6, 2002. Beginning on January 1, 2003, Parrott served as Branch Manager of NBC's Hoover Crossings branch office in Hoover, Alabama. On or about April 1, 2005, NBC promoted Parrott to Vice President and later transferred her to the Pelham Banking Center, in Pelham, Alabama, as the Banking Center Manager. On January 16, 2007, NBC promoted Parrott to Area Sales Manager, where her responsibilities included, among other things, business growth and staff development for five Birmingham area branches, while collaborating with the Consumer Banking Manager and other department heads to assist in achieving the institution's strategic goals.
NBC eventually was renamed First American Bank ("First American"). On February 5, 2008, RBC acquired the Alabama National BanCorporation, a bank holding company that owned First American, and Parrott became an employee of RBC. Parrott retained the title of Vice President and continued in her role as Banking Center Manager in the Pelham, Alabama branch. Parrott's responsibilities as an RBC Branch Manager included, among other tasks, overseeing branch operations, supervising and managing branch employees, and sales production (i.e., growing the branch's loans and deposits). As Branch Manager, Parrott was required to know and follow RBC's policies and procedures in order to minimize risk to the Bank. During her employment, RBC trained Parrott on its policies and procedures, which were also available to her to reference online. Throughout her employment, Parrott's supervisors consistently rated her performance as "Outstanding" and "Achieving."
At the start of her employment with RBC, Parrott, along with fourteen other Branch Managers in the Birmingham Region, reported to Regional Manager Gary Wood. (Doc. 27-1 at 65). Wood reported to Regional President Scott Stafford. Throughout his employment, Wood always received performance ratings of "High Performing." Wood testified in his declaration that, "even according to the exacting standards of my Regional Manager,... Stafford, my periodic performance evaluations perennially demonstrated that I completed all of [my] tasks with at least a satisfactory if not better rating." (Doc. 34-2 at 4).
(Doc. 27-2 at 38). Stafford called this range "the middle bucket," saying "[i]t was not excellent. It wasn't outstanding. It was a high performance rating and it was middle of the road, I guess you would say. And there were opportunities clearly for them to do better." (Doc. 27-2 at 116).
In March or April 2011, Wood voluntarily tendered his resignation for purposes of pursuing other business opportunities with a competing bank.
On March 30, 2011, RBC Bank hired David Hedges, born in 1968, as Regional Manager to replace Wood, and directed Parrott and other Birmingham area Banking Service Managers to report to him. Hedges was a former District Manager at Wells Fargo. Hedges testified that he was brought in to improve production because: "My predecessor [Wood] had failed and failed miserably over a period of time which was proven by the results Birmingham [sic] having the most opportunity basically of any of these districts and yet was consistently at the bottom." (Doc. 27-3 at 206). He stated that, out of the seven districts "[a]fter I was there for — I want to say four months we were number two. After I was there six months we were in a battle for number one, and ranked number one or two the rest of the year." (Doc. 27-3 at 206).
(Doc. 27-3 at 93).
When asked in her deposition, "[i]sn't it true that the Birmingham market was one of the lower-performing markets in Mr. Stafford's geographical territory in the 2010/2011 time frame," the plaintiff stated, "That's what we were told, yes." (Doc. 27-1 at 20). Indeed, Stafford testified that he told Hedges that, when Hedges was over the region, "there were certain areas where the region was the worst performer or sub performance was within the region...." (Doc. 27-2 at 116). Stafford stated that he was referring to the areas of "consumer loan growth" and "[p]robably checking account production." (Doc. 27-2 at 116).
The plaintiff's performance was measured by the four-pillar metrics of "operational effectiveness," "productivity," "financial," and "client relationship. In 2009 and 2010, Wood assessed Parrott's performance as "Outstanding," even though her branch fell short of its performance goals.
In June 2011, Hedges dropped Parrott's performance rating from the "Outstanding" level she had attained in March 2011 under her previous supervisor to "Deficient."
On October 7, 2011, a customer named Hallie Riha came into the Pelham Banking Center holding an insurance check for $12,464.37, made payable to both herself and the bank.
(Doc. 27-1 at 194-195). The plaintiff testified that the customer had banked at the branch for "[t]wenty-plus years," that the plaintiff was friendly with her during work hours, and that the plaintiff knew her family. (Doc. 27-1 at 26, 27). She, and her former supervisor Wood, personally knew and were familiar with the character and integrity of Riha.
In an affidavit, the plaintiff states:
(Doc. 34-1 at 4-5) (emphasis in original).
RBC suffered no loss as a result of this incident.
The plaintiff testified that at the time she endorsed the check she was aware that RBC had a policy regarding insurance claims checks, and that she knew the policy applied to her. (Doc. 27-1 at 195-196).
Before endorsing an insurance settlement check, depending on the amount, employees were required to follow certain procedures and obtain documents from the customer under the Insurance Claim Check policy. For insurance settlement checks over $10,000, such as the one in the instant case, the Insurance Claim Check policy required an employee to obtain: 1) a customer affidavit from the borrower certifying that the repairs to the property have been or are in the process of being completed; and 2) a copy of the insurance adjustor's report. Per RBC's Insurance Claim Check policy, RBC's Retail Loan Operations in North Carolina, not the branch offices, were to handle settlement checks over $10,000. Branch employees, for insurance settlement checks over $10,000, were tasked with gathering and forwarding the following six items to RBC's Retail Loan Operations department:
(Doc. 27-1 at 261) (emphasis added). Per this bank policy, for settlement checks over $10,000, the branch employee was also required to advise the borrower, among other things, that: 1) Retail Loan Operations will issue a check to the borrower and the contractor once an inspection of the property has been ordered; and 2) after the repairs are made, the contractor and borrower will be required to complete and sign a Certification of Completion stating that all repairs are complete. (Doc. 27-1 at 261). RBC's Insurance Claim Checks policy also provided, "Failure to follow the below procedures may result in Disciplinary Action per the advice and guidance of the HR Service Center up to and including termination." (Doc. 27-1 at 259) (emphasis added).
Parrott acknowledges that she had dealt with RBC's Retail Loan Operations during her employment, and that she had access to Retail Loan Operations' phone number, which is also written on the policy. Parrott also acknowledges that Retail Loan Operations, and not the branch office, should handle insurance settlement checks over $10,000, like the one at issue in this case. This policy was available to Parrott online, the policy applied to her, and she admits that she should have followed the procedures. She also admits that she did not. (Doc. 33 at 34 (discussing the plaintiff's "admitted failure to follow the RBC Insurance Claims Checks policy")).
The following exchange took place in the plaintiff's deposition:
(Doc. 27-1 at 31-33).
Hedges was questioned in his deposition about a check cashing policy produced in discovery that states: "Ultimately, the Manager has the authority to make all
Shortly after RBC discovered that Parrott had endorsed the insurance settlement check without following the required procedures, a human resources representative advised Hedges to ask Parrott about the circumstances surrounding her endorsement. When Hedges questioned Parrott, Parrott told him that there were a lot of things that she was supposed to do before cashing the check, but she signed off on it because the person was a good customer and friend.
In the dismissal summary request, Hedges wrote that he recommended dismissal. (Doc. 27-3 at 246).
(Doc. 27-3 at 125-126). It is undisputed that, no matter who recommended it, that Stafford and the HR department agreed with the decision to terminate the plaintiff.
(Doc. 27-3 at 102-103).
On the Dismissal Summary Request signed by Hedges, he wrote as the reason for dismissal: "[Banking Center] Performance Standards Infraction # 10." (Doc. 27-3 at 245). This statement refers to another form, created by RBC, which contains a "non-exclusive list of specific job performance infractions banking center employees must avoid, as well as the recommended corrective action steps to be taken by RBC management in response." (Doc. 27-1 at 263). The form is clear that "[t]hese Standards do not create a progressive disciplinary system, and RBC reserves the right at all times to exercise its full discretion, subject to the needs of the business under the particular circumstances, when following or deviating from these Standards." (Doc. 27-1 at 263). Infraction ten reads:
(Doc. 27-1 at 264) (emphasis in original). The recommended corrective action taken includes a written warning for the first occurrence, probation for the second occurrence, and dismissal for the third occurrence. (Doc. 27-1 at 264). The recommendation of "dismissal" has an asterisk which leads the reader to a note which reads: "Dismissal: Each situation will include a review of the circumstances and the employee's prior corrective action and performance record." (Doc. 27-1 at 264.)
This incident constituted Parrott's first occurrence of a Performance Standard violation. It is undisputed that Hedges made no effort to assess the risk to the bank or to review "the circumstances and the employee's prior corrective action and [Parrott's] performance record."
On October 19, 2011, Hedges informed Parrott, age 57 at the time, that her employment was terminated. On November 22, 2011, a little over one month after Parrott was discharged by RBC, Iberia Bank hired Parrott as a Branch Manager.
Parrott has no knowledge of any other RBC employees who did not follow RBC's Insurance Claim Check policy, or who incurred a potential loss in any transaction of over $12,000, and were treated more favorably.
It is undisputed that, in Parrott's absence, RBC Bank hired a substantially younger and objectively less experienced employee, Amber Renda (born July 1980), to serve as Banking Center Manager at its Pelham Parkway branch until Renda was terminated on December 12, 2011. She was terminated by Hedges, at the age of 31, for a policy violation.
Parrott does not allege or have any evidence in support of her discrimination claim, that the decisionmakers, Stafford (age 41) and Hedges (age 44), made any comments about her age.
In her deposition, the plaintiff claims that Hedges favored younger Branch Managers based on his "body language" at meetings and her perception that he was more critical of her and the older Branch Managers that reported to him. The following exchange took place in her deposition:
(Doc. 27-1 at 100-101).
As a manager, Parrott was required to report internal incidents of discrimination.
In September 2011, after taking over the Birmingham Region, Hedges discharged Branch Managers Tommy McCain and Joey Pitts, ages thirty-two (32), and thirty-three (33), respectively, for their performance. (Doc. 27-6 at 3). Troy Ball, (who is in his late 20s or early 30s) replaced McCain. (Doc. 27-3 at 48-49). Also in September 2011, Branch Managers Teresa Wilson and Debbie Roberson resigned their employment at ages fifty-three (53) and fifty-six (56), respectively, after Hedges placed each of them on probation for their performance. On July 20, 2012, Hedges discharged Branch Manager Thelma Vanderburg at the age of sixty-eight (68) for making inappropriate comments during the recruitment process about an African-American job candidate.
None of the older Branch Managers, Roberson, Wilson, Vanderburg or Parrott, ever heard Hedges make any comments about their age.
Hedges hired "Managers in Waiting" (also called "hire-aheads") even though there were no open available Banking Center Manager vacancies to be filled. (Doc. 27-3 at 72-73). The following exchange took place in his deposition:
(Doc. 27-3 at 80-81).
The ADEA prohibits employers from discharging, or otherwise discriminating against, an employee who is at least 40 years of age because of that employee's age. 29 U.S.C. §§ 623(a)(1), 631(a). Early this year the Eleventh Circuit set out the following standard under which to review ADEA claims:
Sims v. MVM, Inc., 704 F.3d 1327, 1331-33 (11th Cir.2013).
Is has been recently noted that
Cobia v. Stryker Sales Corp., 2:13-CV-01802-RDP, 2013 WL 5935106 *3 (N.D.Ala. Nov. 5, 2013) (Proctor, J.). The plaintiff pleads both theories in the alternative.
In this case, the defendant does not argue that the plaintiff has failed to make out a prima facie case. Instead, the defendant "assumes" the prima facie case and proffers, with supporting evidence, the following reason for her termination: "RBC terminated Parrott's employment because she admittedly disregarded RBC's policy regarding the approving of insurance settlement checks by endorsing a settlement check for a friend in the amount of $12,464.37." (Doc. 26 at 20).
The burden now shifts to the plaintiff to show that the defendant's proffered reason is a mere pretext for discrimination. The court will examine each of the plaintiff's arguments in turn.
The plaintiff first argues that the defendant's reason is unworthy of credence because "[Banking Center] Performance Standards Infraction # 10," which Hedges cited as the reason for her dismissal (see doc. 27-3 at 245), contemplates that exceptions to normal procedure would occur. Accordingly, the argument goes, the plaintiff should not have been fired for failing to follow established procedures regarding the insurance check.
Infraction ten reads:
(Doc. 27-1 at 264) (emphasis in original). The plaintiff argues that this language
(Doc. 33 at 35). The plaintiff has cited no admissible
Further, the language of the infraction discusses no specific circumstances under which exceptions can be made, while at the same time making it clear that "Employee's [sic] must understand their authorities." The plaintiff admits that "[t]he Performance Standard does not define the authority a Banking Center Manager, employed at the level of a Vice President may exercise." (Doc. 33 at 35). However, it is clear that that authority was defined in RBC's Insurance Claims Check policy, which the plaintiff admits she should have, but failed to follow. That policy also provided: "Failure to follow the below procedures may result in Disciplinary Action per the advice and guidance of the HR Service Center up to and including termination." (Doc. 27-1 at 259) (emphasis added). RBC acted in accordance with this policy in terminating the plaintiff.
The language of the infraction does not demonstrate the proffered reason is untrue.
Parrott next argues that she properly endorsed the check because:
(Doc. 33 at 36-37). The plaintiff's argument is basically that she assessed the risk to the Bank, felt there was none, and endorsed the check.
Parrott's "understanding" of the Bank's policy and her authority, and what she did in furtherance of her erroneous understanding, does not demonstrate that
Similarly, whether there was any risk to the Bank, and whether the Bank suffered a loss, or even whether RBC was correct that she violated Bank policy, is not the question. The court does not
Baker, 372 Fed.Appx. at 920. Here, the plaintiff's subjective belief does not demonstrate that the defendant was actually motivated by discriminatory animus when it fired her for an admitted violation of policy.
The plaintiff next argues that the defendant's proffered reason is mere pretext for discrimination because the defendant did not consider the plaintiff's work history before she was terminated. As noted above, on the Dismissal Summary Request signed by Hedges, he wrote as the reason for dismissal: "[Banking Center] Performance Standards Infraction # 10." (Doc. 27-3 at 245). This statement refers to another form, created by RBC, which contains a "non-exclusive list of specific job performance infractions banking center employees must avoid, as well as the recommended corrective action steps to be taken by RBC management in response." (Doc. 27-1 at 263). The recommended corrective action taken includes a written warning for the first occurrence, probation for the second occurrence, and dismissal for the third occurrence. (Doc. 27-1 at 264). The recommendation of "dismissal" has an asterisk which leads the reader to a note which reads: "Dismissal: Each situation will include a review of the circumstances and the employee's prior corrective action and performance record." (Doc. 27-1 at 264.)
The plaintiff contends that, by the terms of the performance standards, before dismissing the plaintiff RBC was required to consider her past performance. (Doc. 33 at 37-40). However, the form is also very clear that "[t]hese Standards do not create a progressive disciplinary system,
In this case, the defendant clearly had discretion to deviate from its policy and did so. The deviation does not establish pretext.
Finally, the plaintiff attempts to point out inconsistencies to show pretext. She first writes that "Gary Wood concluded that the Dismissal Summary Request... was misleading for several reasons," (doc. 33 at 40) and then quotes verbatim from paragraph 10 of Wood's declaration where he states that it
(Doc. 34-2 at 6-7).
The court has determined that the above portion of Wood's declaration is due to be stricken. However, even if the court entertains the argument that Hedges has been inconsistent about who recommended termination, pretext has still not been shown.
First, Hedges actually stated in his deposition that he was unclear whose recommendation it was to terminate the plaintiff but that he, HR, and Stafford all agreed with the recommendation. (Doc. 27-3 at 125-126). So, in fact, there is not an inconsistency. Second, even if Hedges had been inconsistent, the inconsistency must relate to the proffered reason. This court evaluates only whether the plaintiff has shown "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence." Jackson v. State of Alabama State Tenure Comm'n, 405 F.3d 1276, 1289 (11th Cir.2005) (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir.1997) (internal quotations and citations omitted)) (emphasis added). Whether Hedges was correct about who recommended termination, demonstrates no inconsistency in the reason for the termination — the failure to abide by RBC regulations. That reason has always been consistent.
The plaintiff next cites to Wood's declaration statement that the Dismissal Summary
Even if the plaintiff were successful in any of these attempts at showing that the proffered reason was false, "`a reason cannot be proved to be a `pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason.'" Baker v. Russell Corp., 372 Fed.Appx. 917, 920 (11th Cir.2010) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407 (1993)) (emphasis in original). Yet, the plaintiff has provided no evidence that age was the real reason she was terminated.
In her argument, the plaintiff points to the "hire-ahead" system of Hedges where he hired "managers-in-waiting" who were substantially younger. (Doc. 33 at 41). That fact alone does not show that the plaintiff was the victim of age discrimination.
Based on the foregoing, the motions to strike, will be
(Doc. 33 at 28-29). The citations provided do not support this fact. Accordingly, it will not be considered by the court.
(Doc. 33 at 22-23). The court's scheduling order requires that "[a]ll statements of fact must be supported by specific reference to evidentiary submissions." (Doc. 3 at 16). The conclusory statement that Hedges was "forcing" resignations, by placing these employees on "performance improvement plans that were impossible to meet," is followed by citations to many deposition pages, covering several topics. Further, lumping all the employees together in one fact adds to the confusion. Such does not qualify as a "specific" reference. This "fact" will not be considered by the court.
(Doc. 22 at 6).
