United States District Court, D. Delaware
URSALA A. GARNETT, Plaintiff,
BANK OF AMERICA, Defendant.
A. Garnett, Newark, Delaware. Pro Se Plaintiff.
H. McMackin, III, Esquire, Allyson Britton DiRocco, Esquire,
and Elena D. Marcuss, Esquire. Morris James LLP, Wilmington,
Delaware. Counsel for Defendant.
ANDREWS, U.S. District Judge.
Ursala A. Garnett appears pro se and has been
granted leave to proceed in forma pauperis. She
commenced this employment discrimination action against
Defendant Bank of America on July 14, 2014. (D.I. 2). The
complaint alleges employment discrimination pursuant to Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§§ 2000e, et seq. The Court has
jurisdiction pursuant to 28 U.S.C. §1331. Defendant
moves for summary judgment. (D.I. 26). Plaintiff opposes and
asks the Court to find in her favor. (D.I. 29). Briefing on the
matter has been completed.
LEGAL AND FACTUAL BACKGROUND
alleges employment discrimination by reason of race in the
forms of harassment, failure to promote, and retaliation that
resulted in discipline and termination of her employment.
(D.I. 2). On December 10, 2007, Garnett was hired by Bank of
America as an Auditor II with its corporate audit team in
Wilmington, Delaware. (D.I. 27 at Ex. 1 at p.18). In July
2011, Garnett was promoted to Senior Auditor I. (Id.
at pp.23-24). When Garnett moved to a new area within
corporate audit in January 2012, she began reporting to
Catherine Kulp. (Id. at pp.24-25). Kulp reported to
Carol Apel. (Id. at p.26). Garnett testified that
the audit job was "really not what [she] want[ed] to do,
" and she told Kulp the job was "not really [her]
thing." (Id. at p.92). Garnett testified that
the position was not what she wanted because of the stress
involved and that she "actually hated the job."
(Id. at pp.92-93).
met with Garnett on August 2, 2012 for her mid-year
performance review. (Id. at Ex. 1 at p.30; Ex. 2 at
¶ 4). Kulp gave Garnett overall ratings of "meets
expectations" in the two categories of performance
ratings. (Id. at Ex. 1 at pp.69-74; Ex. 2 at ¶
4). Garnett had received the same ratings in her 2011
year-end performance review. (Id. at Ex. 2 at ¶
5). The review addressed areas that needed improvement and
concerns raised by Garnett's co-workers regarding
Garnett's distracting humming and singing out loud in the
office. (Id. at Ex. 1 at pp.30-31, 74-76; Ex. 2 at
¶¶ 4, 6). Garnett's previous manager, Susan
Young, had spoken to Garnett about the same thing.
(Id. at Ex. 1 at pp.31-32; Ex. 2 at ¶ 6).
Garnett told Kulp she thought a lot of the things that were
happening were based upon her race. (Id. at Ex. 1 at
p.33; Ex. 2 at ¶ 6).
about August 6, 2012, Garnett used the services of Bank of
America's Advice and Counsel, which was a group of human
resources professionals available to associates for
consultation. (D.I. 27 at Ex. 1 at pp.48-51, 57-58; Ex. 1 at
Dep. Ex. 1; D.I. 33 at Ex. 9). Garnett called Advice and
Counsel's phone center and stated that she believed
complaints about her singing were racially motivated. (D.I.
27 at Ex. 1 at p.49). Advice and Counsel asked for the bases
of Garnett's belief. She provided it with a "List of
Concerns, " which claimed she was denied a promotion
based upon accusations that her humming disrupted the work
environment; Garnett did not believe the humming had anything
to do with her overall performance. (D.I. 27 at Ex. 1 at
pp.48-51, 57-58; Ex. 1 at Dep. Ex. 1; D.I. 33 at Ex. 9). The
"List of Concerns" speaks to unfair treatment and
"being singled out, " but does not mention race.
(D.I. 27 at Ex. 1 at Dep. Ex. 1).
also believed race was a factor when (1) she was not included
on the list of individuals moving with her team to another
building, and (2) immediate action was not taken after she
complained of the theft of items from her desk. (Id.
at Ex. 1 at pp.49-50; Ex. 1 at Dep. Ex. 1 at ¶¶4,
5). Lisa DiStefano coordinated the move. (Id. at Ex.
1 at p.50). Garnett was approved to work from home and, at
the time, was working remotely. (Id. at Ex. 1 at pp.
40, 51). When Garnett discovered that her name was not on the
actual move list, she called DiStefano. (Id. at
p.51). DiStefano told Garnett that she did not realize that
Garnett was not on the list. (Id.). Garnett's
"List of Concerns" explains that DiStefano's
information was not accurate; when Garnett expressed her
concern, a "rush order" was placed to have her
assigned to an area. (D.I. 27 at Ex. 1 at Dep. Ex 1 at ¶
4). Garnett complained that she was placed in a space that
was not comparable to those assigned to her teammates.
testified that in preparation for the move to another
building, she packed up her things only to discover upon her
return from vacation that some items were stolen.
(Id. at Ex. 1 at pp. 33-34). Garnett complained to
DiStefano, but she took no action. (D.I. 27 at Ex. 1 at Dep.
Ex 1 at ¶ 5). Garnett's "List of Concerns"
explains that when another associate complained of stolen
items, "all of a sudden" DiStefano completed a
report and contacted security. (Id.). Garnett was
not reimbursed for her stolen items, and testified that a
white person "got their money back." (Id.
at Ex. 1 at pp. 36-38).
testified that she thought she deserved in mid-2012 to be
promoted to Senior Auditor II but, at the time of her
deposition, she was not fully aware of that position's
job requirements. (Id. at Ex. 1 at p.60). Garnett
did not know how the decision was made to promote an employee
from Senior Auditor I to Senior Auditor II, and assumed the
decision was made by the manager and the audit director.
(Id. at Ex. 1 at p.60). She believed that she should
have been promoted based upon the level of what she had
performed, the additional tasks she accepted, and her
coaching of other senior auditors. (Id. at Ex. 1 at
to Kulp, a Senior Auditor II is expected to perform excellent
individual audit work, work independently, and lead others
performing audit work. (Id. at Ex. 2 at ¶ 8).
Generally, Bank of America does not promote an associate from
Senior Auditor I to Senior Auditor II until the associate has
been rated "exceeds expectations" in both overall
performance categories on their year-end performance review
for at least a year, if not two. (Id.). As of
mid-2012, Kulp believed that Garnett's performance was
not at the level of a Senior Auditor II. (Id.).
January 23, 2013, Kulp met with Garnett for her 2012 year-end
performance review. (Id. at Ex. 2 at ¶ 9). Kulp
rated Garnett's job performance as "meets
expectations" in both categories overall, and identified
areas for Garnett to improve her performance. (Id.
at Ex. 1 at pp.96-98; Ex. 1 at Dep. Ex. 4; Ex. 2 at ¶
9). During the review, Kulp addressed additional complaints
that she had received about Garnett singing and humming in
the office and Garnett's interactions with her
co-workers. (Id. at Ex. 1 at pp.100-01; Ex. 2 at
¶ 10). According to Kulp, Garnett became upset, claimed
that what was reported were lies, and indicated that she did
not wish to discuss the issues any further. (Id. at
Ex. 1 at pp. 101-03; Ex. 2 at ¶ 10). Garnett told Kulp
that she believed there was a vendetta against her and a
racial issue in the group, but, according to Kulp, Garnett
did not provide her with information that indicated race had
anything to do with it. (Id. at Ex. 1 at p. 102; Ex.
2 at ¶ 10). Garnett told Kulp that she was
"done" with her management team and that she wanted
a mediator present during any further discussions between the
two. (Id. at Ex. 1 at pp. 103-06, 118; Ex. 2 at
January 31, 2013, Kulp verbally warned Garnett about her
workplace behavior, including her behavior towards fellow
employees and her behavior during her performance review.
(Id. at Ex. 1 at pp. 124-28; Ex. 2 at ¶ 11).
Audit director Cathy Rohrer participated in the meeting due
to Garnett's request that someone else be present for
further discussions on the issue. (Id.). On or about
February 6, 2013, Garnett complained to Advice and Counsel
about her 2012 year-end performance review and the fact that
she was not promoted. (Id. at Ex. 1 at pp.117-18,
130-31; Ex. 1 at Dep. Ex. 6).
the first quarter of 2013, Garnett worked on an audit.
(Id. at Ex. 1 at pp.145-49; Ex. 1 at Dep. Ex. 11;
Ex. 2 at¶ 12). After completion of the audit,
auditor-in-charge Cesar Perez evaluated Garnett's
performance on the audit and rated her as "does not meet
expectations" in the area of testing and workpaper
documentation. (Id. at Ex. 1 at ¶ 12). Kulp
first conferred with Advice and Counsel; then, on May 2,
2013, she verbally warned Garnett about her job performance
and the need to improve her execution of the technology audit
test programs and workpaper documentation. (Id. at
Ex. 2 at ¶¶ 13-14). Following the meeting, Kulp
continued to work with Garnett on an action plan for
improving her job performance with action items tied to the
audit she was then working on with auditor-in-charge Maureen
Flynn. (Id. at Ex. 1 at pp. 149-56; Ex. 1 at Dep.
Ex. 13; Ex. 2 at ¶ 14). Throughout that audit, Kulp
coached Garnett on audit processes during their weekly
one-on-one meetings. (Id. at Ex. 2 at ¶ 14).
to Kulp, Garnett's performance on the audit with Flynn
was not at an acceptable level as Garnett continued to
demonstrate a fundamental lack of understanding of basic
technology audit principles. (Id. at Ex. 2 at ¶
15). Garnett's performance on the audit was rated
"does not meet expectations" in both overall
performance categories. (Id. at Ex. 1 at pp.157-58;
Ex. 2 at ¶ 15; Ex. 2 at Ex. A). On July 12, 2013,
Garnett received a written warning from Kulp for
Garnett's continued failure to meet performance
expectations. (Id. at Ex. 1 at pp.159-60; Ex. 1 at
Dep. Ex. 15; Ex. 2 at ¶ 16). Kulp put together another
action plan at Garnett's request and gave it to Garnett
on July 17, 2013. (D.I. 33 at pp.36-37).
to Kulp, she continued to work closely with Garnett to try to
improve Garnett's performance though one-on-one meetings
and action plans, but Garnett's audit performance did not
improve and she was not meeting deadlines. (D.I. 27 at Ex. 2
at ¶ 17). On August 8, 2013, Kulp conducted
Garnett's mid-year performance review and rated
Garnett's performance as "does not meet
expectations" in both the goals and competencies
categories overall. (Id. at Ex. 1 at pp. 167-69; Ex.
1 at Dep. Ex. 18; Ex. 2 at ¶ 18). Garnett did not agree
that she was not performing well. (Id. at Ex. 2 at
¶ 18). On August 20, 2013, Kulp met with Garnett and
gave her a final written warning regarding her job
performance. (Id. at Ex. 1 at pp.170-72; Ex. 1 at
Dep. Ex. 19; Ex. 2 at ¶ 19). Audit director Rohrer was
present and audit director Apel participated via telephone.
August and September 2013, Garnett worked on a project under
senior audit manager Pamela Fischer. (Id. at Ex. 2
at ¶ 20). According to Kulp, Garnett's work
reflected the same lack of understanding of basic audit
responsibilities and skills and work product issues,
including grammatical and spelling errors that Kulp had been
addressing with Garnett. (Id.). Garnett's work
product did not reflect any effort or desire to improve;
after conferring with the Human Resources Manager, Audit
leadership, and Advice and Counsel, the decision was made to
terminate Garnett's employment. (Id. at Ex. 2 at
¶ 21). On October 4, 2013, Kulp terminated Garnett's
employment with Bank of America. (Id.).
testified that Kulp never said anything that indicated that
she harbored any racially discriminatory animus against
Garnett. (Id. at Ex. 1 at pp.119, 224). Garnett
described Kulp as verbally and emotionally abusive.
February 21, 2013, Garnett presented her discrimination
complaint to the Delaware Department of Labor
("DDOL") and, on March 5, 2013, a charge of
discrimination was filed with the Equal Employment
Opportunity Commission ("EEOC") alleging race
discrimination and retaliation because she was denied a
promotion to Senior Auditor II in January 2013, not included
in her team's move to a new location, and her reports of
theft were ignored. (Id. at Ex. 1 at p.136; Ex. 1 at
Dep. Ex. 7). Garnett was represented by counsel during at
least some portion of the administrative proceedings.
(Id. at Ex. 1 at Dep. Ex. 9, third page; D.I. 33,
testified that she is claiming that the failure to promote
her to Senior Auditor II was discriminatory, not retaliatory.
(D.I. 27 at Ex. 1 at pp.260-61). She claims that the verbal
warnings, written warnings, action plans, disciplinary
actions, and termination were in retaliation for filing the
first claim. (Id. at pp.260-62). Garnett presented a
second discrimination complaint to the DDOL on September 12,
2013, and a charge of discrimination was filed with the EEOC
on October 17, 2013 alleging retaliation when she was
harassed, disciplined, and discharged. (Id. at Ex. 1
at pp.180-82; Ex. 1 at Dep. Ex. 22). Garnett testified that
Bank of America had no knowledge of the second charge prior
to her termination. (Id. at Ex. 1 at p.181).
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). A "material fact" is one that
"could affect the outcome" of the proceeding.
See Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir.
2011). The moving party bears the burden of demonstrating the
absence of a genuine issue of material fact. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 n.10 (1986). The court will "draw all reasonable
inferences in favor of the nonmoving party, and it may not
make credibility determinations or weigh the evidence."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000).
moving party is able to demonstrate an absence of disputed
material facts, the nonmoving party then "must come
forward with 'specific facts showing that there is a
genuine issue for trial.'" Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). The mere
existence of some evidence in support of the nonmoving party,
however, will not be sufficient for denial of a motion for
summary judgment. Id. Rather, the nonmoving party
must present enough evidence to enable a jury to reasonably
find for it on that issue. Id. If the nonmoving
party fails to make a sufficient showing on an essential
element of its case with respect to which it has the burden
of proof, the moving party is entitled to judgment as a
matter of law. See Celotex Corp. v. Catrett, 477
U.S. 317, 322(1986).
respect to summary judgment in a discrimination case, the
Court's role is "to determine whether, upon
reviewing all the facts and inferences to be drawn therefrom
in the light most favorable to the plaintiff, there exists
sufficient evidence to create a genuine issue of material
fact as to whether the employer intentionally ...