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Robertson v. Wells Fargo Bank, N.A.

United States District Court, D. Connecticut

January 23, 2017

JOY ROBERTSON, Plaintiff,
v.
WELLS FARGO BANK, N.A., Defendant.

          MEMORANDUM OF DECISION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [DKT. 52]

          Hon. Vanessa L. Bryant United States District Judge.

         Before the Court are Joy Robertson's (“Robertson” or “Plaintiff”) claims for race and gender discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), for race and gender discrimination in violation of the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. § 46a-60 et seq. (“CFEPA”), and for retaliation in violation of CFEPA. Defendant Wells Fargo Bank, N.A. (“Wells Fargo”) filed a Motion for Summary Judgment as to the Second Amended Complaint on July 1, 2016. [Dkt. 52 (Def.'s Mot. Summ. J.)]. The motion is now fully briefed. For the following reasons, the Court GRANTS the Defendant's Motion for Summary Judgment.

         I. Facts

         a. The Parties

         Wells Fargo is a nationwide, diversified financial services company that provides banking, insurance, investments, mortgage, and consumer and commercial financial services. [Dkt. 54 (Def.'s Local Rule 56(a)(1) Statement), ¶ 1; Dkt. 66 (Pl.'s Amended Local Rule 56(a)(2) Statement), ¶ 1].

         Plaintiff Joy Robertson is a black woman who was born in Jamaica, grew up in Canada, and moved to the United States in or about 1990. [Dkt. 54, ¶ 34; Dkt. 66, ¶ 34]. In approximately July 2010 Robertson became a Service Manager in the Wells Fargo store located in Prospect, Connecticut. [Dkt. 54, ¶ 35; Dkt. 66, ¶ 35]. As a Service Manager, Robertson was in charge of the tellers at her store, which included the responsibility of ensuring tellers complied with Wells Fargo policies and procedures. [Dkt. 54, ¶¶ 42, 45; Dkt. 66, ¶¶ 42, 45]. Robertson spent more than 50% of her working hours “performing on the teller line.” [Dkt. 66-3, (Pl.'s Amended Local Rule 56(a)(2) Statement Ex. 3, Robertson Aff.), ¶ 12].

         From approximately September 2011 until her termination on December 6, 2013, Robertson reported directly to Prospect Store Manager Mamta Dhir (“Dhir”), who is an Asian American (Indian) woman. [Dkt. 54, ¶¶ 36-37; Dkt. 66, ¶¶ 36-37]. From approximately March 2013 until her termination, Robertson reported to District Manager Jeffrey Bruneau (“Bruneau”) indirectly. Bruneau is a white man. [Dkt. 54, ¶ 38; Dkt. 66, ¶ 38; Dkt. 54-5 (Ex. 5, Def.'s Obj. and Supp. Interrog.), at 5]. His predecessor was Cinda Bertsos (“Bertsos”), a white woman, who transferred to the Wells Fargo Quinnipiac Shoreline District at the end of 2012. [Dkt. 54, ¶¶ 39-40; Dkt. 66, ¶¶ 39-40; Dkt. 54-5, at 5].

         b. Policies and Procedures

         Wells Fargo maintains several policies and procedures in the January 2013 Wells Fargo Team Member Handbook (“2013 Handbook”), which includes the following: Diversity and Inclusion policy; Affirmative Action, EEO, & Diversity policy; Nonretaliation policy; various anti-harassment policies; and a Dispute Resolution policy. [See generally, Dkt. 54-2 (Ex. 2, Handbook, January 2013)]. The 2013 Handbook explicitly sets forth its policy on hiring employees: “Our policy is that we do not discriminate on the basis of race, color, gender, national origin, religion, age, sexual orientation, gender identity, genetic information, physical or mental disability, pregnancy, marital status, veteran status, or any other status protected by federal, state or local law.” [Id. at WF000029]. The 2013 Handbook directs employees to contact Human Resources when the employee “need[s] advice or help in solving an issue that [he or she] ha[s] on the job.” [Id. at WF000008]. Should the employee have a dispute, he or she is advised to first resolve the issue with the direct manager, or if the dispute cannot be resolved to then seek out and follow the Dispute Resolution Resources referenced in the 2013 Handbook. [Id. at WF 000046].

         Wells Fargo also maintains a Code of Ethics & Business Conduct (“Code”) that can be found within the 2013 Handbook. [Id. at WF000014]. The Code states, “Important: You're responsible for complying with the provisions of the Code and reporting any conflicts of interest or other violations of the Code to the appropriate person. Violations of the Code or refusal to complete the Team Member Acknowledgment are grounds for corrective action, which may include termination of your employment.” [Id. (emphasis added)]. The Code also requires employees to adhere to the following with respect to accurate records:

You are responsible for preparing and maintaining accurate records to the best of your knowledge and retaining business records in compliance with applicable regulations, law, and Wells Fargo's record retention policies. All business transactions, including team member expense reporting, must be properly and accurately recorded in a timely manner on Wells Fargo's books and records and in accordance with applicable accounting standards, legal requirements, and Wells Fargo's system of internal controls. Falsification of any company or personal information that you provide is prohibited. Falsification refers to knowingly misstating, altering, adding information to, or omitting or deleting information from a Wells Fargo record or system which results in something that is untrue, fraudulent, or misleading.

[Id. at WL000019 (emphasis added)]. “Gaming is defined as the manipulation, misrepresentation, or both or sales or sales reporting in an attempt to receive compensation or to meet sales goals.” [Id. at WF000020]. Gaming “to receive compensation, to meet sales goals, or for any other reasons is in direct violation of the company policy and this Code.” [Id.]. The Code expressly lists “sales referrals” as one situation where issues of gaming may arise. [See id.].

         The Code states that only valid sales referrals may be submitted to meet sales goals or receive credit under sales referral programs. [Id.]. It also specifies what constitutes a valid sales referral. “Valid referrals typically require team members to have spoken directly with the customer about a specific product or a referral to a different business unit and to have gained the customer's agreement for that product or referral.” [Id.]. The provision holds the employee responsible for knowing the terms of the sales incentive program applicable to that business unit. [Id.].

         A different document, the Wells Fargo Sales Quality Manual lists examples of appropriate and inappropriate conduct regarding the submission of referrals. Examples of appropriate conduct are:

• “A teller referring a customer to a personal banker after uncovering a need for a product or service and gaining agreement from the customer to meet with the personal banker to discuss the product or service further.”
• “A teller receiving referral credit when a product or service is sold to a customer based on the outcome of a Service Signal.”
• “A teller receiving referral credit when a product or service is sold after referring a customer to a personal banker for a ‘financial review' or ‘financial checkup.'”

[Dkt. 54-4 (Def.'s Local Rule 56(a)(1) Statement Ex. 4, Sales Quality Manual) at ¶ 000080]. The Sales Quality Manual also lists several examples of improper conduct, some of which include:

• “Submitting a referral after directing a customer who came into the store with the intent to purchase a product or service, even if other products or services are discussed before the customer is directed to the banker.”
• “Bankers supplying tellers with customer information to input as a referral when the teller did not have any contact with the customer.”
• “Resubmitting a referral without having an additional sales conversation and without regaining consent from the customer.”

[Id.]. District Manager Bruneau calls a situation “when a teller is given contribution credit for a referral that was not the result of him or her uncovering a customer's potential need for a financial product or service, such as when a sale is made and the referral credit is simply given to a teller who had no contact whatsoever with [the] customer, ” an “unearned referral.” [Dkt. 54-1 (Def.'s Local Rule 56(a)(1) Statement Ex. 1, Bruneau Aff.) ¶ 11].

         Robertson acknowledges that she was responsible for complying with Wells Fargo policies and procedures and that it was important that only valid sales referrals were submitted, because it “keeps everyone accountable and helps the store to run efficiently” and “because you don't want everyone to run off and do their own thing, so you abide by the guidelines given to you.” [Dkt. 54-3 (Def.'s Local Rule 56(a)(1) Statement Ex. 3, Robertson Dep.) at 37:25-38:12]. She admits to being responsible for ensuring Wells Fargo business records were accurate, knowing the terms of her business unit's sales and incentive programs, and ensuring that tellers completed prompt and efficient transactions. [Dkt. 54, ¶¶48-49; Dkt. 66, ¶¶ 48-49; see Dkt. 54-3, at 24:1-12]. Robertson believes it was important for a Service Manager to “exemplify the highest standards of ethical behavior” because, “in [her] opinion, that is important because you are dealing with the customers, and you want your customers to trust you in every way. So the higher the standard that you hold yourself to is, you know, better for you and for the business that you are working for.” [Dkt. 54-3, at 43:13-23]. She also stated that a “service manager is an example for the team” and further articulated, “I believe that the business must operate according to the ethical principles that you hold yourself to. In that sense the way in which you work is no more important than the ethics by which you operate.” [Id. at 44:3-23].

         As a Service Manager, it was her role to ensure sales credit was awarded to the team member who actually made the sale and to review referral sales to mitigate potential integrity violations. [Id. at 55:20-25, 70:15-21]. Robertson acknowledges it is inappropriate for a team member to enter a sale and assign it to another team member who did not make the sale. [Dkt. 54, ¶ 58; Dkt. 66, ¶ 58]. Robertson understands that manipulated or misrepresented referrals are a Wells Fargo sales integrity violation as is “gaming” the sales incentive program. [Dkt. 54-3, at 54:9-13; Dkt. 54 ¶ 60; Dkt. 66 ¶ 60]. Robertson states, however, that she was not aware that entering false sales or false referrals in the tracking system could result in her immediate termination, and she reasoned, “[S]ome of these that I am seeing were not in the original handbook I saw. I don't remember seeing this specific one that says entering false sales or referrals on a tracking system - .” [Dkt. 54-3, at 49:18-54:3; but see 51:15-23 (where Robertson acknowledged she knew her employment could be terminated if she was aware of her involvement in entering false sales or referrals into the tracking system)].

         Robertson also testified that managers routinely incentivized tellers in ways which did not comport with the written policy. [Dkt. 54-3, at 58:12-15]. Several former employees at Wells Fargo submitted affidavits declaring that it was a routine practice to share “unearned referrals.” For example, Michele Bonacassio, a Service Manager at Wells Fargo for 12 years, stated, “It was NOT an uncommon practice to give my tellers referrals from which I had earned by speaking to customers . . . . If I received referrals personally, then I would pass them onto my tellers equally, working together as a team.” [Dkt. 66-13 (Pl.'s Amended Local Rule 56(a)(2) Statement Ex. 12, Bonacassio Aff.)]. Several other former Wells Fargo employees submitted affidavits attesting to similar conduct. [See, e.g., Dkt. 66-5 (Pl.'s Amended Local Rule 56(a)(2) Statement Ex. 4, Soricelli Aff.) (“As a practice to show good team work any who made their sales goal for the month who wanted to give their referrals to another team member who had not made their goal was allowed to do so.”); Dkt. 66-6 (Pl.'s Amended Local Rule 56(a)(2) Statement Ex. 5, Fernandez Aff.) (“The teller should never send that referral unless the teller offers the product that is in the green box, but in many cases that is not what happens due to the pressure of sales.”); Dkt. 66-7 (Pl.'s Amended Local Rule 56(a)(2) Statement Ex. 6, Morassini Aff.) (“[I]t was a regular practice that after any associate had reached their personal sales goal, we were allowed to give our referrals to others that had not yet reached their sales goal.”)]. Waterbury Service Manager, Janet Smith, even noted that team members would talk about referrals at “morning huddle” meeting and “wrap-up” sessions, wherein they “discussed which team members had enough refers [sic], and which team members ...


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