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Lord v. U.S. Bank, N.A.

United States District Court, D. Oregon, Portland Division

February 28, 2017

JESSICA LORD, Plaintiff,
v.
U.S. BANK, NA, Defendant.

          OPINION AND ORDER

          HONORABLE PAUL PAPAK UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Jessica Lord brings this employment discrimination action against defendant U.S. Bank, asserting state law claims for retaliation and gender discrimination. Plaintiff claims that Defendant unfairly disciplined her and terminated her because she refused a dinner invitation from a supervisor.

         Defendant now moves for summary judgment, For the following reasons, I grant the motion for summary judgment.

         BACKGROUND

         In the summer of 2012, Defendant hired Plaintiff to work as a part-time teller at its branch in Argay Square, Portland. About a year later, Plaintiff transferred to Defendant's branch on Martin Luther King, Jr. Blvd. (the MLK Branch).

         In Defendant's January 2014 performance review of Plaintiff's work for the year 2013, which covered her time at both the Argay Park and MLK Branches, Plaintiff received an overall rating of "needs improvement, " which is the second lowest possible rating. Def. Mot., Ex. 5, ECF No, 20-5. As to specific duties, Plaintiff received the lowest possible rating, "not effective, " for referrals, i.e., referring bank customers to use other services. (All branch tellers "have the same quarterly and annual goals for referrals and their performance in respect to referrals is evaluated against a standard scale." Williams Decl. ¶ 5, ECF No. 21.) Plaintiff received the second lowest rating for balancing and for cash drawer differences. The manager's comment section[1] of the performance review states, "Overall [Plaintiff] had a great year in customer service, but needs to make some improvements in . . . referrals, balancing, attendance." Def. Mot., Ex. 5, at 5, ECF No. 20-5. At her deposition, Plaintiff testified that the performance review for 2013 was a "fair assessment." Def. Mot,, Ex, 1, at 52, ECF No. 20-1 (Lord Depo.). On March 1, 2014, Plaintiff received a merit pay raise.

         On June 1, 2014, Nicholas Domine began working at the MLK Branch as a sales and service manager, or SSM. Domine supervised Plaintiff.[2] Plaintiff testified at her deposition that around the first week of July 2014, she was talking to Domine

about what I was going to do that weekend, or whatever day it was coming up. I told him that I didn't have plans, that I was really bummed out because I was blown off for my birthday [June 10] and that these people I had plans with ended up bailing, but I hung out with my mom and that was kind of lame. And he had asked if I wanted to go out to dinner and grab a drink, to which I was kind of like, Oh, I don't know. And he came back maybe a couple of minutes later and said, Well, I don't have my wallet, so never mind. And I said, Well, I have a boyfriend, so never mind. That probably wouldn't have worked out.

Lord Depo. at 82. Plaintiff stated that she "relayed that message on to Desiree Vielmetti [apparently a service and sales manager], and she was like, Well, managers can't go out with their ~ other people that they are bosses over." Lord Depo. at 83. Plaintiff has not presented evidence that she told any supervisor other than Vielmetti about Domine's alleged dinner invitation.

         Plaintiff now states, "After Domine asked me out, his behavior toward me changed in that he stopped coming by my work station unless he had to discuss a work matter with me, whereas before he would look for excuses to come by and talk to me." Lord Decl. ¶ 7. Although the alleged dinner invitation occurred about a month after Domine starting work at the MLK Branch, Plaintiff testified that she had a good working relationship with Domine for the first "four to six months, roughly." Def. Reply, Ex. 1, at 32 (Lord Depo.), ECF No. 29-1.

         Plaintiff states that after Domine learned that she was dating a female security officer, he "began making sarcastic comments about my dating habits and how he wasn't my type." Lord Decl. ¶ 8. At her deposition, Plaintiff testified that she was not offended by Domine's comments, which were not "mean jokes." Def. Reply, Lord Depo. at 34. Plaintiff also testified that Domine made about one comment a week for a month, and the comments then "fizzled out on their own." Lord Depo. at 35. Plaintiff never complained about the comments to anyone.

         On September 16, 2014, Mandi Van Der Sluis began working as a sales and service manager at the MLK Branch, apparently replacing Vielmetti. On October 1, 2014, Althea Williams became the branch manager for the MLK Branch.

         On October 24, 2014, Van Der Sluis signed a 90-day Action Plan for Plaintiff because Plaintiff had two cash outages of $100 or more. Van Der Sluis "was in charge of operations and . . . pulled all the reports as far as balancing and that sort of thing." Def. Reply, Ex. 3, at 41, ECF No. 29-3 (Van Der Sluis Depo.). Although Domine generally supervised Plaintiff, Van Der Sluis testified that "when instances happened like this where there were multiple outages I took the initiative to contact HR and get an action plan in place. So I was the one communicating with Haley Crabtree in HR." Id. Domine would be notified about the Action Plan if he supervised the employee, but he would not necessarily have any input beforehand.

         The Action Plan here noted that on October 9, 2014, Plaintiff had an "unlocated cash difference" of-$100.00, and that on October 11, 2014, Plaintiff cashed a $267.34 check for a non-customer and processed the check as $627.34, for a loss of $360. The Action Plan instructed Plaintiff to take precautions including counting cash three times and completing "a trial balance before each break." Def. Mot., Ex. 5. While an employee is subject to an Action Plan, she is not eligible for transfer, promotion, or merit pay increases. The Action Plan here expired January 22, 2015. Plaintiff does not dispute that the Action Plan was justified.

         On January 26, 2015, branch manager Williams issued a performance review for Plaintiffs work during 2014. Def. Mot., Ex. 13. Plaintiff received an overall rating of "Solid Performance, " a better rating than she received in her performance review for 2013. Plaintiff was rated as "Needs Improvement" in referrals and cash balancing, Plaintiff testified that this was a fair review.

         Plaintiff alleges that Lakisha Patterson, a teller at the MLK Branch, was initially friendly but began criticizing Plaintiff "after a customer and friend of hers, Wally Trice Jr., began favoring [Plaintiffs] teller window over hers." Lord Decl. ¶ 14. On February 19, 2015, Patterson spoke to Plaintiff about wearing a miniskirt shorter than allowed by Defendant's dress code. Lord Decl., Ex. 4. Patterson had recently become a teller coordinator. Teller coordinators are not managerial employees, and have "no authority to hire, fire, discipline, promote, or authorize merit pay increases." Crabtree Suppl. Deci. ¶ 8 & Ex. 32, ECF Nos. 30, 30-4. The incident was noted on a "Significant Event Form" for Plaintiff, with an entry initialed by Van Der Sluis, stating, "Kisha spoke with [Plaintiff] today about dress code, specifically about not wearing short miniskirts to work." Lord Deck, Ex. 4, at 1. Plaintiff does not contend that her skirt was in compliance with the dress code. Defendant did not discipline her for this conduct.

         The Significant Event Form for Plaintiff in early 2015 includes other entries about her daily work performance, good or bad. The entries were mainly by Van Der Sluis, with a few entries by Domine. For example, the entry for January 13, 2015 states that Plaintiff left a $100 bill in a night drop bag; the entiy for January 15, 2015, states, "Kisha observed [Plaintiff] leaving her top and bottom drawers unlocked after leaving her work station, " and the entiy for February 21, 2015, states that Plaintiff gave account information to a bank customer who was not authorized to receive the information. Lord Decl., Ex. 4. Defendant characterizes such entries as "coaching notes" with no effect on the terms or conditions of employment. Def. Reply 6.

         On February 23, 2015, Plaintiff received a second Action Plan, again based on her failure to keep a daily balance. The Action Plan stated that on February 5, 2015, Plaintiff had an unlocated cash difference of-$479, 50, and on February 12, 2015, she had an uniocated cash difference of $197.00. Lord Decl, Ex. 3, ECF No. 27-3. Plaintiff does not dispute the factual basis for the Action Plan. She asserts that Domine ...


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