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Schultz v. Wells Fargo Bank, NA

United States District Court, D. Oregon

September 5, 2013

DEBRA A. SCHULTZ, by and through her conservator, STEVE B. MORRIS, Plaintiff,

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For Plaintiff: Timothy C. Bennett, Timothy Bennett, PC, Lake Oswego, Oregon.

For Defendant: Leah C. Lively and Amanda A. Bolliger, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Portland, Oregon.


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Michael H. Simon, United States District Judge.

Debra A. Schultz (" Schultz" ) asserts claims against her former employer, Wells Fargo Bank, National Association (" Wells Fargo" ), under the Family and Medical Leave Act of 1993 (" FMLA" ) and Oregon's common law of wrongful discharge. Schultz asserts three separate FMLA claims: an interference claim under 29 U.S.C. § 2615(a)(1), a retaliation claim under 29 U.S.C. § 2615(a)(2), and a retaliation claim under 29 U.S.C. § 2615(b). Wells Fargo moves for summary judgment against all of Schultz's claims. Dkt. 39. For the reasons discussed below, Wells Fargo's motion is granted in part and denied in part: the motion is granted with respect to Schultz's claim under 29 U.S.C. § 2615(b) and denied with respect to all other claims.


A party is entitled to 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). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although " [c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment," the " mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient. . . . " Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). " Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quotations and citation omitted).


Schultz was employed by Wells Fargo from June 1978 until November 11, 2009.

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Declaration of Debra Schultz (" Schultz Decl." ) ¶ 1. Dkt. 47. Schultz's position at the time of her termination was Store Manager 4. When Schultz was promoted to Store Manager 4 in 2002, Debi Klinetobe, as District Manager, became Schultz's direct supervisor. Id . ¶ 12. In approximately 2005, Klinetobe was promoted and became responsible for hiring District Managers. Id . ¶ 14. Klinetobe encouraged Schultz to apply for a District Manager position, but Schultz declined. Id . In 2007, Mark Trupp, as District Manager, became Schultz's direct supervisor and Klinetobe remained Schultz's second-level supervisor.

During the first 30 years of her career at Wells Fargo, Schultz consistently received raises, promotions, increases in responsibility, and positive performance reviews. Id . ¶ 2. For the years 1995, 1998, 2000, 2001, 2002, 2004, and 2006 Schultz received a performance evaluation rating of " 4," meaning " consistently above all targets" or its equivalent from earlier forms, indicating that she exceeded all expectations. Schultz Decl. Ex. 1. Dkt. 47-1. For the years 1996 and 2003 Schultz received a performance evaluation rating of approximately " 3.5," indicating that she was between exceeding some and exceeding all expectations. In 1997, Schultz received a performance evaluation rating of " 3," indicating that she met expectations. Id . at 120. From 1995 through 2006,[1] for her year-end cumulative performance evaluation, in no individual category did Schultz receive a performance rating indicating that she needed improvement or missed a target.

In April 2007 Schultz requested and received approved FMLA medical leave to undergo surgery on her legs. Id . ¶ 18. She returned to work full time on July 9, 2007. Id . Schultz returned from leave to the same position with the same salary and benefits she had before taking the leave. Schultz Depo. 87:23-88:15.[2]

On March 1, 2008, Schultz took a second approved FMLA medical leave to have additional surgery on her legs, expecting stents to be placed in her legs. Schultz Decl. ¶ 19. Instead of receiving stents, Schultz awoke to discover that an above-the-knee amputation had been performed on her left leg. Id . Schultz was released by her doctor to work for four hours a day on June 16, 2008, and to work full time on June 30, 2008. Bennett Decl. Ex. 33 (Dkt. 48-33); Schultz Depo. 90:4-16. Schultz returned from leave to the same position with the same salary and benefits she had before taking the leave. Schultz Depo. 97:11-98:12.

On September 25, 2008, a Wells Fargo employee emailed Trupp, discussing concerns expressed by Debbie Lightner, a service manager in Schultz's branch, regarding Schultz's health and welfare and ability effectively to perform her duties. Bennett Decl. Ex. 27. Dkt. 48-27. Lightner reported that employees had reported observing Schultz napping, falling asleep at her desk, falling at work once, appearing

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to be in pain, hearing that she had fallen at home, and seeming to have difficulties with her prosthesis. Id . At the time of this email Trupp was on paid time off from work, and he forwarded the email to Teresa Kraljev, a Human Resources Consultant at Wells Fargo. Trupp stated he would inform Klinetobe of the issue and have Klinetobe speak with Schultz. Id . Kraljev wanted to speak with Klinetobe before she spoke with Schultz so Kraljev could provide " talking points" to Klinetobe. Id .

On September 26, 2008, Kraljev forwarded the email regarding Schultz to Klinetobe, along with talking points and instructions about what to say during the conversation with Schultz. Bennett Decl. Ex. 25. Dkt. 48-25. Kraljev requested that Klinetobe tell Schultz that: (1) she is a hard working manager with a good work ethic and the best of intentions; (2) she is a valuable contributor; (3) management had received information and has concerns regarding Schultz's safety and her interaction with team members and customers, and changes had to be made; (4) customers were not aware of Schultz's medical situation and did not know why she was falling asleep and that it is not acceptable for Schultz to fall asleep at work; (5) if her tiredness is caused by medication, Schultz needs to check with her doctor; (6) management has concerns about Schultz's pain and does not want her to work while in pain; (7) management has concerns about liability if Schultz hurts herself at work; (8) Schultz is putting her team members in a difficult position by making them wake her up after a nap or after falling asleep while working; (9) it is critical that Schultz file an injury report if she falls and injures herself at work; (10) Schultz should contact employee assistance for any needs; (11) Schultz has the option of (a) consulting with her physician regarding her problems to determine whether Schultz should remain at work, (b) contacting Wells Fargo's employee assistance department for a fitness for duty discussion and that department will then contact Schultz's physician to discuss the situation and decide next steps, or (c) pursuing additional leaves of absence, whether for personal leave or medical leave; and (12) if Schultz chooses not to pursue any of these options, management would address any continuing issues within Wells Fargo's " performance management guidelines." Id . Kraljev copied Trupp, among others, on this email. Id .

On September 30, 2008, Klinetobe approached Schultz at her desk and questioned Schultz about her health and welfare. Schultz Decl. ¶ 24. Klinetobe asked Schultz about her medications, who was taking care of her, whether her brother and sister-in-law were assisting her, and what was on Schultz's nose; Klinetobe also repeatedly noted that Schultz may wish to work only four hours a day and that Schultz's medication may be affecting her ability to work. Id .; Schultz Depo. 34:15-20, 36:19-37:6, 116:4-15. Schultz responded that she had been released to work full time by her doctor, that her doctor would not release her if she wasn't ready, that no one was taking care of her, that she was an adult, and that she could take care of herself. Schultz Depo. 36:19-37:8; Schultz Decl. ¶ 24. Klinetobe did not disclose the knowledge or involvement of Trupp or Kraljev relating to the issues identified in the conversation or in crafting the talking points for the conversation.

Also on September 30, 2008, Klinetobe emailed Kraljev and Trupp, among others, memorializing the conversation Klinetobe had with Schultz on that day. Bennett Decl. Ex. 26. Dkt. 48-26. Klinetobe noted that Schultz " kept on saying that she can't go part time because her team needs her" and that Klinetobe " kept saying that

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they need her long term and she first needs to take care of herself." Id . Klinetobe noted that she told Schultz that Wells Fargo wants to ensure that all allowances are made to Schultz while she is adjusting to walking on her new prosthesis and that Schultz admitted that while she is adjusting to her new prosthesis she is bound to fall in the future. Klinetobe asked Kraljev what the next steps should be to respond to Schultz's difficulties in adjusting to her prosthetic leg. Id . Klinetobe also reported that Schultz would discuss with her doctor whether she needs any special accommodation at work. Id .

On or about October 1, 2008, Schultz called Kraljev to complain about Klinetobe's comments and questions. Schultz informed Kraljev that she was not comfortable with Klinetobe's line of questioning and that it was inappropriate, and Schultz also indicated that she felt Klinetobe was discriminating against Schultz. Schultz Depo. 34:14-36:10; Schultz Decl. ¶ 25. Schultz further told Kraljev that she felt Klinetobe was taking negative action against Schultz because Klinetobe was pressuring Schultz to work only four hours a day. Schultz Depo. 36:15-37:8; Schultz Decl. ¶ 25. Kraljev quickly stopped the conversation, noting that she and Don Pearson, Wells Fargo's Regional President, already knew about Klinetobe's questioning. Schultz Depo. 34:15-35:5, 36:7-10; Schultz Decl. ¶ 25. Kraljev apologized to Schultz. Schultz Depo. 36:7-10; Schultz Decl. ¶ 25. Kraljev did not disclose her own involvement in crafting the talking points or the email Kraljev had received from Klinetobe describing the conversation. Kraljev Depo. 105:4-14.[3] Kraljev followed up orally with Klinetobe, informing her that the line of questioning of Schultz was inappropriate. Kraljev Depo. 108:5-7. Kraljev also orally reported Schultz's complaint against Klinetobe to Kraljev's supervisor, Cathy Cole. Kraljev Depo. 110:12-21.

On October 3, 2008, Schultz met with her doctor and explained her concerns with her prosthesis and her employer's concerns with Schultz's fitness for duty. Schultz Decl. ¶ 26. Because of her conversation with Klinetobe, Schultz felt pressure from her employer to take medical leave or work part time and felt that she needed to obtain another release from her doctor stating that Schultz could still work full time. Id .

On February 20, 2009, Trupp presented a Memo of Understanding: Performance Store Manager (" MOU" ) to Schultz, which states that it is documenting the sales performance agreements and expectations discussed between Trupp and Schultz on February 5, 2009. Bennett Decl. Ex. 14. The MOU also set forth the minimum standards Schultz's branch would need to meet for 2009 and identified fifteen activities for Schultz that " should be taken to ensure performance is improved to and sustained at an acceptable level." Id . Schultz refused to sign the MOU. Schultz felt it was unwarranted because she had been on medical leave for more than 25 percent of 2008 and there was construction around her branch that made access to it difficult; Schultz also believed the MOU was retaliatory, unfair, improper, and illegal. Schultz Depo. 157:5-10, 158:10-159:7; Schultz Decl. ¶ 31. This was the first time in her nearly 31 years at Wells Fargo that Schultz was written up for any performance issue. Schultz Decl. ¶ 4. On February 23, 2009, Trupp spoke with Kraljev

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regarding Schultz and the MOU. Bennett Decl. Ex. 9. Dkt. 48-9.

Schultz suffered from acute renal failure and was hospitalized suddenly in or around March 13, 2009. Schultz Decl. ¶ 32. Wells Fargo approved a third FMLA leave from March 13 through March 22, 2009. Id . Schultz returned from leave to the same position with the same salary and benefits she had before taking the leave. Schultz Depo. 108:20-109:17. Within one week, however, Schultz was transferred to a different location, demoted to a different position, and her bonus potential was reduced.

For all three of Schultz's FMLA leaves of absence, no one at Wells Fargo told Schultz that she should not take FMLA leave or discouraged her from taking any such leave. Schultz Depo. 85:15-86:6, 94:10-25, 102:17-103:3.

On March 23, 2009, the day that Schultz returned from her third FMLA leave, Trupp provided Schultz with her performance evaluation for the year 2008. For the first time in her career, she received a cumulative year-end rating in one specific performance category that she did not meet all of her key targets.[4] Schultz Decl. Ex. 1 at 75. Her overall rating for 2008 was a " 3," indicating that she met expectations. Id . Of the eleven performance evaluations for Schultz contained in the summary judgment record, 1997 and 2008 were Schultz's two lowest performance ratings, at a level of " 3." For the remaining years she was rated above a " 3," or its equivalent in earlier forms.

In approximately early March 2009, Trupp was informed that there was going to be branch realignment and he would no longer be supervising the Hollywood-Rose City branch, where Schultz was working. Trupp Depo. 177:18-25.[5] Immediately after Schultz returned from her third FMLA leave on March 23, 2009, Trupp discussed with Schultz that she should accept a transfer out of the Hollywood-Rose City branch. Trupp Depo. 179:8-20. Trupp indicated that if Schultz did not accept the transfer, she may lose her job. Schultz Decl. ¶ 33. Trupp promised that Schultz's salary would stay the same. Id . Schultz agreed to the transfer. Id . Trupp then informed Schultz that she would be transferred to the East Lake Grove branch. Id . This ensured that Schultz stayed under Trupp's supervision. Trupp Depo. 179:8-180:4.

Trupp testified that he was concerned based on the performance of the Hollywood-Rose City branch that if he did not transfer Schultz to stay under his supervision, Schultz may lose her job. Trupp Depo. 179:21-180:4. According to Wells Fargo's records, the performance of the Hollywood-Rose City branch for the first quarter in 2009, which is the time of Schultz's transfer, was as follows: 74.9 percent in profit, 70.3 percent in checking, 65.4 percent in solutions, and an overall 70.2 percent of plan. Bolliger Decl. Ex. 6 at 21. The final annual numbers for 2009 were 89.3 percent in profit, 91 percent in checking, 84.3 percent in solutions, and an overall 88.5 percent of plan. Trupp Depo. 181:2-6. The branch did not meet its 2009 plan targets. Id . The annual numbers were better than the first quarter numbers, indicating that the branch performed better after Schultz was transferred.

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After her transfer to the East Lake Grove branch, Schultz went from managing a location with six bankers and around 22 staff to a location with one banker and about 10 staff. Id . Schultz was also demoted from " Branch Manager 4" to " Branch Manager 1" and lost bonus pay potential. Id . Schultz's transfer and demotion were effective April 1, 2009. Bennett Decl. Ex. 15. Dkt. 48-15. Schultz also had to work Saturdays at the Lake Grove branch (different from the East Lake Grove branch), which did not have a wheelchair-accessible restroom. Schultz Decl. ¶ 36.

Sometime in October 2009, Schultz issued a written warning to Ashley Johnson, a service manager under Schultz's supervision, for not meeting sales goals. Id . ¶ 40. On October 27, 2009, Johnson emailed Kraljev, reporting that Schultz had sent $200 from her personal account to a motel for the benefit of " Jane Doe," a Wells Fargo customer. Bolliger Decl. Ex. 4. Dkt. 43-4. Johnson reported that she had taken a call from Jane Doe, who had called and asked for Schultz and left a message that Schultz was supposed to send money to the motel and needed to send it right away. Johnson reported that when she gave the message to Schultz, Johnson asked whether Schultz was going to send money from her own account, and that Schultz stated she would not because she could get fired for doing that. Id . Johnson also reported that she later noticed an envelope addressed to the motel and that she could see through the envelope and saw that it contained a money order from Schultz that was unsigned. Id . Johnson further reported that she returned the envelope to Schultz and told her that she needed to sign it; Schultz then responded, " You always catch me with everything." Id . Johnson reported that Schultz then resent the signed money order to the motel. Kraljev forwarded this email to Debi Wilkinson, an Investigator at Wells Fargo.

On November 4, 2009, Johnson sent another email to Kraljev, reporting that Jane Doe had called asking for Schultz and when Johnson told Jane Doe that Schultz was unavailable, Jane Doe told Johnson that Schultz had loaned money to Jane Doe and Jane Doe asked Johnson how did Johnson think Schultz would want the money paid back--check or money order. Bolliger Decl. Ex. 28. Dkt. 44-11. Kraljev forwarded this email to Trupp and Wilkinson.

Jane Doe was a special needs customer of the Hollywood-Rose City branch for more than eight years. Schultz Decl. ¶ 41. Schultz had frequently interacted with Jane Doe during this period and found her to require special attention and patience. Id . Jane Doe sought Schultz out when Jane Doe came to the bank, considered Schultz a friend, was dependent on Schultz, would visit Schultz at the bank for personal visits, and would send Schultz postcards and notes to Schultz's home address. Schultz Decl. ¶ 41; Schultz Depo. 80:23-82:5; Kraljev Depo 198:23-200:6. Schultz knew that Jane Doe had sometimes required urgent deposits from her mother or brother and that sometimes Jane Doe would take a " direct deposit advance" from her account. Schultz Decl. ¶ 42. Schultz also knew that Jane Doe's mother and brother had passed away in 2008 or early 2009 and that money left for Jane Doe was then deposited in a Wells Fargo account that did not permit direct deposit advances. Id . ¶ 43. In 2009, after Schultz was transferred to the East Lake Grove branch, she received an urgent phone call from Jane Doe needing emergency access to her funds. Id . ¶ 44. Schultz conferred with Trupp, and received permission to authorize a wire transfer to Jane Doe, even though Wells

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Fargo could not obtain Jane Doe's written authorization, which is a requirement for a wire transfer. Id . Approving such a transfer was unusual. Id .

In October 2009, Schultz received a call from Jane Doe requesting a direct deposit advance for housing. Id . ¶ 45. Schultz informed Jane Doe that her account did not offer direct deposit advances and that there was a 30-day waiting period to change the type of account to one that did permit such advances. Id . Jane Doe pleaded with Schultz to loan or give Jane Doe the funds, or else she would become homeless. Id . Jane Doe called back later and notified Schultz that she had received half of the funds through a public agency worker, but she still needed $200. Id . Schultz then agreed to send the money to the motel at which Jane Doe was staying. Schultz sent $200 from Schultz's personal account. Id . Schultz did not expect to get repaid and did not care if she was ever repaid. Id . ¶ 46. Schultz disputes Johnson's report of their interactions and discussions relating to the $200 sent to the motel. Id .; Schultz Depo. 126:2-128:14, 135:24-136:2.

Kraljev tasked Wilkinson to be the lead investigator on the alleged loan by Schultz. Wilkinson reviewed Johnson's email, Wells Fargo's Code of Ethics policy regarding loaning money to customers, the $200 money order, Schultz's personal bank account information, and Jane Doe's customer information. Bolliger Exs. 4-6; Wilkinson Depo. 53:7-23, 78:5-14, 153:4-8, 153:14-18, 158:17-23, 160:6-161:17, 163:14-21.[6] Kraljev and Wilkinson both worked on the investigation and jointly interviewed Schultz regarding the allegations. Wilkinson Depo. 95:2-14, 134:17-25; Kraljev Depo. 225:16-227:10. At some point in time Wilkinson also brought Trupp into the investigation. Wilkinson Depo. 95:2-24.

On November 5, 2009, Schultz was interviewed by Wilkinson and Kraljev. Trupp did not participate in the interview of Schultz. Trupp Depo. 238:10-12. Before the interview, however, Kraljev emailed Trupp asking to meet with him before the interview if Trupp was not going to participate to make sure that " we are on the same page." Bennett Decl. Ex. 12.

What was said during Schultz's interview is in dispute. Wilkinson's notes, taken at the time of the interview, indicate that Schultz admitted she " loaned money to a customer." Bennett Decl. Ex. 35 at 5. Dkt. 48-35. Schultz does not recall making such an admission. Schultz Decl. ¶ 46. Schultz disputes that she " loaned" money to Jane Doe. Schultz Depo. 118:13-14. Schultz admits only that she " gave" a customer $200 by mailing it to the motel. Schultz Depo. 118:13-16.

After the interview, Kraljev and Wilkinson called Trupp. Trupp Depo. 238:13-239:2; Kraljev Depo. 281:9-18. They told Trupp that they believed Schultz had violated the Code of Ethics and that there is a zero tolerance for such violations. Id . Schultz was placed on administrative leave. This decision resulted from a collaboration among Trupp, Kraljev, and Wilkinson. Trupp Depo. 238:13-241:21.

Who made the decision to terminate Schultz is in dispute. At oral argument, Wells Fargo represented that Trupp made the decision, and in his declaration Trupp states that he made the decision. Trupp Decl. ¶ 3. Deposition testimony, however, indicates that Trupp recommended termination, but that the final decision was

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made at supervisory levels above Trupp. See Kraljev Depo. 280:1-24, 289:24-290:18; 292:7-24; Cole Depo. 77:19-78:9.[7] Kraljev also represented to Schultz that the decision would be made by Trupp, Klinetobe, and Cole, with Cole having the option of bringing Pearson into the decision making process. Kraljev Depo. 178:1-12; 279:2-25. Kraljev informed Cole about the interview with Schultz and Trupp's recommendation of termination. Kraljev Depo. 280:12-18, 288:10-289:5, Cole Depo. 16:8-20, 78:1-9. Cole then discussed the issue of Schultz's termination with Pearson. Cole Depo. 78:6-9; Pearson Depo 29:19-30:14. Schultz was terminated on November 6, 2009, purportedly for violating Wells Fargo's Code of Ethics and Business Conduct by loaning money to a customer.

Part of Wells Fargo's Team Member Handbook[8] is the Code of Ethics and Business Conduct (" Code of Ethics" ). Bolliger Decl. Ex. 1. Dkt. 43-1. The Code of Ethics " sets forth Wells Fargo's policy and standards concerning ethical conduct for all team members." Id . at 38. Wells Fargo employees are trained annually on the Code of Ethics. Schultz was trained on the Code of Ethics in November 2008 and again in February 2009. Schultz Depo. 66:4-19.

As relevant here, the Code of Ethics provides:

You must not lend personal funds to, consign, endorse, guarantee, or otherwise assume responsibility for the borrowings of any customer or vendor of Wells Fargo unless the customer or vendor is a family member or other relative.

Bolliger Decl. Ex. 1 at 44.

The Code of Ethics also provides:

2. Giving Gifts -- Team members who wish to give gifts to vendors, customers or officials, or who are asked to authorize such gifts, must follow standard expense authorization procedures.
Gifts valued at more than $200 to a current or potential customer within any calendar year must be approved, in ...

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