United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
HONORABLE PAUL PAPAK UNITED STATES MAGISTRATE JUDGE.
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.
now moves for summary judgment, For the following reasons, I
grant the motion for summary judgment.
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).
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 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
1, 2014, Nicholas Domine began working at the MLK Branch as a
sales and service manager, or SSM. Domine supervised
Plaintiff. 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.
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.
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.
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.
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.
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
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.
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.
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.
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