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Garnett v. Bank of America

United States District Court, D. Delaware

March 21, 2017

URSALA A. GARNETT, Plaintiff,
v.
BANK OF AMERICA, Defendant.

          Ursala A. Garnett, Newark, Delaware. Pro Se Plaintiff.

          James H. McMackin, III, Esquire, Allyson Britton DiRocco, Esquire, and Elena D. Marcuss, Esquire. Morris James LLP, Wilmington, Delaware. Counsel for Defendant.

          MEMORANDUM OPINION

          ANDREWS, U.S. District Judge.

         Plaintiff 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.[1] (D.I. 29). Briefing on the matter has been completed.

         I. LEGAL AND FACTUAL BACKGROUND

         Garnett 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).

         Kulp 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).

         On or 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).

         Garnett 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. (Id.).

         Garnett 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).

         Garnett 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 p.61).

         According 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.).

         On 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 ¶ 10).

         On 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).

         During 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).

         According 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).

         According 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. (Id.).

         In 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.).

         Garnett 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. (Id.).

         On 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, Exh. 2)

         Garnett 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).

         II. LEGAL STANDARDS

         "The 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).

         If the 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).

         With 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 ...


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