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Wilkins v. Brandman University

United States District Court, D. Oregon

August 5, 2019

DEMETRYE WILKINS, Plaintiff,
v.
BRANDMAN UNIVERSITY, Defendant.

          BETH ANN CREIGHTON LAURA KOISTINEN Creighton & Rose, PC Attorneys for Plaintiff

          J. MICHAEL PORTER MATTHEW A. TRIPP Miller Nash Graham & Dunn LLP Attorneys for Defendant

          OPINION AND ORDER

          ANNA J. BROWN UNITED STATES SENIOR DISTRICT JUDGE

         This matter comes before the Court on Defendant's Motion (#51) for Summary Judgment. The Court concludes the record is sufficiently developed to resolve this Motion without oral argument. For the reasons that follow, the Court GRANTS Defendant's Motion and DISMISSES this matter with prejudice.

         BACKGROUND

         The following facts are taken from the parties' Joint Statement of Agreed Facts (JSAF) and the parties' filings related to Defendant's Motion for Summary Judgment and are undisputed unless otherwise indicated.

         Defendant Brandman University hired Plaintiff Demetrye Wilkins as an enrollment coach on October 13, 2014. It is undisputed that Defendant has a 180-day probationary period during which enrollment coaches learn how to perform their jobs but are also expected to reach the goals set by Defendant.

         At the time he was hired Plaintiff's supervisor was Felicia Royce, Assistant Director of Enrollment Services. At some point in the summer of 2015 Enrollment Coach Laura Mumford was promoted to Assistant Director of Enrollment Services and became Plaintiff's direct supervisor.

         In early June 2015 Mumford and Dana Gelfand, Associate Vice Chancellor of Enrollment Operations, began working with Madiha Chughtai, Human Resources Manager, to draft a Disciplinary Counseling Memorandum regarding Plaintiff's job performance.

         During the time Mumford, Gelfand, and Chughtai were working on the Disciplinary Counseling Memorandum Gelfand received reports from several staff members that Plaintiff may have been manipulating “call data.” Gelfand brought the reports to Chughtai's attention. Chughtai recommended issuing the Disciplinary Counseling Memorandum to Plaintiff while Gelfand reviewed the relevant call data.

         On June 10, 2015, Mumford and Gelfand issued a Disciplinary Counseling Memorandum to Plaintiff regarding “unsatisfactory job performance, ” which constituted a “written notice of disciplinary action.” Decl. of Matthew Tripp, Ex. 15 at 1. Mumford and Gelfand set out a number of deficiencies in Plaintiff's performance that included giving inaccurate information to students that caused them to complain and that required other staff members to provide the students with correct information and guidance; failing “to be available for warm transfers”; being overdue on following up with a significant percentage of his “student pipeline”; failing to meet the team's average call metrics for wait time, warm transfers, call volume, and call time; failing to complete his weekly evaluation “scorecards”; and his unsatisfactory attendance. Mumford and Gelfand provided Plaintiff with a plan for corrective action that required him to “ensure accurate information is provided in every student interaction”; to use the sales framework established by the department and to “score a minimum of 2 on all of the skills evaluated”; to improve to “at least the team average for wait time, warm transfers, call volume, and call time”; and to adhere to his attendance requirements. Tripp Decl., Ex. 15 at 4.

         Mumford and Gelfand also advised Plaintiff that they had been “notified of concerns that some staff members have with your communication. Demetrye, you are expected to use professional language and display a professional and respectful demeanor at all times in the workplace. We also ask that you respect other coworkers who do not want to engage in discussions.” Id.

         Finally, Mumford and Gelfand advised Plaintiff that

[t]his written warning serves as notice that your pattern of unsatisfactory job performance must improve immediately. During the next 30 days, we'll be carefully monitoring your performance, and we'll take appropriate action during or following this period in accordance with the degree of progress you make. If you do not immediately improve your job performance and sustain it at an acceptable level, or if there are any other job performance problems, this may result in further disciplinary action, including termination. Failure to comply with the plan for corrective action or any future violations of Brandman's policies, job requirements and/or procedures may result in further disciplinary action including termination.

Tripp Decl., Ex. 15 at 5. Plaintiff did not include any comments in the employee comments section of the Memorandum. Plaintiff and Mumford signed the Memorandum on June 10, 2015.

         Gelfand investigated the issue of Plaintiff's alleged manipulation of call metrics and discovered evidence that, according to Gelfand, established Plaintiff was intentionally manipulating his call data to make his performance appear to be better. Specifically, Gelfand discovered Plaintiff had made 39 calls to a “nonviable number”; “failed to disconnect from some calls when they were over, which would increase [Plaintiff's] talk time”; and “dispositioned at least one call ‘successful,' which represents that he actually spoke to the student, when he had in fact only left a voicemail.” JSAF at ¶ 41.

         Mumford was on vacation from June 29, 2015, through July 10, 2015. Mumford instructed Plaintiff to send “daily recaps” to Gelfand while Mumford was gone, and Plaintiff, therefore, sent his daily recaps to Gelfand the week of June 29, 2015. Mumford, however, did not advise Plaintiff to send his daily recaps to another individual if Gelfand was not in the office. Thus, because Gelfand was out of the office the week of July 6, 2015, Plaintiff did not send his daily recaps to anyone that week.

         On July 21, 2015, Mumford and Gelfand sent a second Disciplinary Counseling Memorandum to Plaintiff in which they reiterated their concerns with Plaintiff's performance as set out in the June 10, 2015, Disciplinary Counseling Memorandum and also advised Plaintiff:

Upon further investigation, we have determined that you have not been accurately dispositioning your calls. Data that was pulled showed that you dispositioned calls as “successful”, when you actually left voicemails. In addition, there were approximately 39 calls made to one not viable number over a period or a few weeks which increased your call metrics. Furthermore, there were calls that you made where you did not disconnect and the call time recorded for that entire length of time, increasing your call time. Given this additional information, the nature of the Written Notice of disciplinary Action is being modified to a Final Written Notice.

Tripp Decl., Ex. 8 at 1. Mumford and Gelfand also noted Plaintiff's “job performance has not adequately improved [in] the areas identified” in the June 10, 2015, Memorandum. Id. at 2.

         Specifically, Plaintiff failed to meet his student-conversion target; failed to meet his “score target” for “quality student interactions/consultative sales”; and failed to meet the team average for wait time, warm transfers, call volume, and call time. Id. Finally, they noted “[o]n 6/25 you had to be reminded by your AD to send the daily recap as you had not submitted it 3 days in a row. On 7/13 you were notified that you neglected to submit it for a full week during the absence of your AD.” Id.

         The Disciplinary Counseling Memorandum included a plan for corrective action and noted:

This final written warning serves as notice that your pattern of unsatisfactory job performance must improve immediately. If you do not immediately improve your job performance and sustain it al an acceptable level, or if there are any other job performance problems, your employment with Brandman will be terminated. Failure to comply with the plan for corrective action or any future violations of Brand man's policies, job requirements and/or procedures will result In termination.

Id. at 3. After reviewing the Memorandum, Plaintiff disputed in the section reserved for employee comments that he dispositioned calls as successful when he actually merely left voicemails and that he made 39 calls to a “nonviable number.” Plaintiff also stated he would like to see the evidence supporting the allegations that he disputed. As to the allegations that he failed to submit his daily recaps for the week of July 13, 2015, Plaintiff pointed out that he had not been “assigned anyone to submit [his] recap” for that week. Tripp Decl., Ex. 8 at 3.

         Plaintiff and Mumford signed the Memorandum with Plaintiff's comments on July 21, 2015.

         Chughtai states in her Declaration that Plaintiff “made the same complaints” to her that Plaintiff set out in the employee comment section of the July 21, 2015, Memorandum, and she “conducted a thorough inquiry into [his] complaints.” Decl. of Madiha Chughtai at ¶ 8. Ultimately,

[a]lthough it was clear that [Plaintiff] had made 39 calls to a nonviable number, my investigation determined that the number was on a student record in the dialer system each time Wilkins called it.
I removed the reference to the 39 calls from the final counseling memorandum in order to give [Plaintiff] the benefit of the doubt that he did not know how to change the nonviable number in the system.

Chughtai Decl. at ¶¶ 9-10.

         On August 4, 2015, Mumford and Gelfand issued a revised final Disciplinary Counseling Memorandum to Plaintiff in which they reiterated the same points set out in the July 21, 2015, Memorandum regarding Plaintiff's performance except as to the 39 alleged calls. Specifically, Mumford and Gelfand now noted:

Upon further investigation, we have determined that you have not been accurately dispositloning your calls. Data that was pulled showed that you dispositioned calls as “successful”, when you actually left voicemalls. Furthermore, there were calls that you made where you did not disconnect and the call time recorded for that entire length of time, increasing your call time. Given this additional information, the nature of the Written Notice of disciplinary Action is being modified to a Final Written Notice.

Decl. of [Plaintiff's] Counsel, Ex. 16 at 1.

         In response to the August 4, 2015, Disciplinary Counseling Memorandum Plaintiff provided a Memorandum to the “Brandman Management Team” on August 6, 2015, in which he stated:

From my written notice, until my now final notice. I've experienced nothing but bias and a lack of ethics. Holly Williams and Julie Noyes two Caucasian employees were both put on written notices (I believe one was on her final) and taken off in a short manner of time. A fellow coworker, Chris Wilhite has missed 20 days of work, has 100 post due student in status for a few weeks and hasn't so much as been given a written notice. So, in this instance I feel like I'm being singled out and discriminated against.
I feel there is a double standard, which makes for a lack of ethics. As an Enrollment Coach at Brandman University, our job is to see if Brandman is a good fit for prospects and to help them on the path to becoming admitted and registered. As of 8/5/15 I have 25 students registered for the Fall I session. Five of my coworker are beneath that number of registers. I feel that my numbers speaks for itself. I understand the purpose of the call metric, which is to make sure we are working efficiently and effectively. I feel mentioning my call time in my final warning (especially with other [sic] not meeting their expectation) is looking for charges against me to dismiss me. As I just stated, my inquiry to registered numbers speak for itself. I'm getting the job done by connecting with student, [sic] hearing and meeting their needs and moving them forward.
My written notice has dates that go back to the time when I was still understanding my role and job description, a time when someone makes mistakes because they are learning their duties; since then I have improved. I was given a plan of corrective action and have met what was required of me. I've received more transfer call[s] from the EA's [sic]. I've kept my Past-Due status to a minimum. I've sought assistance in answering students concerns accurately.
On page l of my final written disciplinary, it states, “data that was pulled showed that you dispositioned calls "successful”, when you actually left voicemail. I haven't seen proof of that. How do I know if that's accurate information? The 30-39 calls I supposedly made was removed from the final written disciplinary because there was no proof. What's to say this isn't the same error?
On page 2 of the final written warning on the bottom it states, “On 7 /13 you were notified that you neglected to submit (daily recap) for a full week during the absence of your AD.” My AD did not tell me who to submit my daily recap to. This was clearly a lack of direction on my AD[‘s] part, which has been placed on the final warning. I have the actual email attached to this comment sheet to verify that.

[Plaintiff's] Counsel Decl., Ex. 16 at 4-5.

         Chughtai received and investigated Plaintiff's complaints of discrimination. She reviewed relevant documents and interviewed Plaintiff, Mumford, and Gelfand as well as Associate Vice Chancellor of Enrollment Operations Albert Salsa.

         On September 11, 2015, Chughtai sent Plaintiff a six-page memorandum detailing her “investigative outcomes.” Chughtai Decl., Ex. 2 at 2. In particular, Chughtai noted Plaintiff had expressed concerns that management had issued written warnings to him for infractions that he believed should have been first addressed by verbal counseling. Chughtai, however, explained Defendant's policy did not require management to issue verbal warnings before written warnings, and, in any event, Plaintiff received direct feedback every week during his “1:1” with his supervisors in addition to weekly scorecards that included feedback as far back as April 2015 that Plaintiff needed to improve his performance. As to Plaintiff's allegation that he was unfairly written up for things that occurred during his “introductory period, ” Chughtai noted management had provided him with coaching to improve his performance since October 2014, and “[w]hile some of those issues occurred during your introductory period, and while this period is a time for you to understand your role and job description, you are still held to performance expectations, and any unsatisfactory performance will still be addressed during an introductory period.” Chughtai Decl., Ex. 2 at 3. Chughtai noted her investigation established Plaintiff's performance had “improved in some metrics, but not others, ” and, therefore, Chughtai could not “substantiate that you are being held to unfair call time metrics.” Id. at 4. Chughtai noted the reference to the 39 calls “was removed from [Plaintiff's] final written notice . . . not because there was no evidence, but because leadership wanted to give [Plaintiff] the benefit of the doubt that [he] did not know to change the number in the student record.” Id. at 5. In any event, Gelfand and Mumford “spot checked a few records randomly on August 12, 2015, and quickly found three records where you had dispositioned a call as a voicemail when in fact you left no voicemail at all.” Id. In addition, Gelfand and Mumford found other “calls that had continued after the student hung up, thus extending call time . . . . [Plaintiff] indicated that the vast majority of other staff members engage in the same misconduct, but [Chughtai's] investigation was unable to find any such other examples.” Id. Chughtai found Plaintiff's complaint about failing to have someone to send his daily reports to for the week of July 13, 2015, was substantiated, but Chughtai noted Plaintiff also “did not submit the required daily recap for three days in June, and on 6/25 had to be reminded by your supervisor to send the daily recap.” Chughtai stated she could not “substantiate any legitimate reason to excuse your failure to send daily reports on those days.” Id. Chughtai also found other assertions by Plaintiff about being discriminated against were unsubstantiated. For example, according to Plaintiff two Caucasian employees were taken off written notices “in a short manner of time” and that another coworker was not put on written notice even though he had missed “20 days of work [and] has 100 past due student in status.” Chughtai noted she was not able to discuss disciplinary actions taken against other staff members, but she had fully investigated Plaintiff's concerns and did not find any violations or inconsistencies in the application of Defendant's policies to the employees at issue. Finally, Chughtai noted Plaintiff had “made improvements in several of the areas of [his] performance, including [his] registered students; however, [his] call quality and call time are still low and often below the team average, and [he] continue[s] to not implement the consultative sales framework.” Chughtai Decl., Ex. 2 at 7. Chughtai noted Defendant would revise Plaintiff's final written disciplinary memorandum to remove the references to Plaintiff's failure to provide daily recaps for the week of July 13, 2015, and to the 39 calls made to the “unviable” number. Nevertheless, Chughtai concluded “there was no evidence to support that any unlawful discrimination has occurred because of race or other reason protected by law or Brandman policy.” Id.

         In November 2015 Plaintiff reported to Christopher Larson, Director of Quality Assurance, that two coworkers had made race-based comments to Plaintiff. JSAF at ¶ 75. Specifically, Plaintiff reported to Larson that during a training meeting the enrollment coaches viewed a video clip of an African-American child comedian known as Kid President. Enrollment Coach Nathan Dunkin said, "Oh, look. Look at Demetrye.” Plaintiff asked Dunkin: “Why, because he's black?” Dunkin responded: “No because he's just a little -- cute little kid, just, you know, that's it. Just simple.” JSAF at ¶ 75. Plaintiff also reported to Larson that Plaintiff had been “walking through a door with a dark shirt on, ” and Enrollment Coach Anthony Potter said to him: “You can't hide behind the door. You're black. You can't hide behind this white wall.” JSAF at ¶ 75-76. Larson told Plaintiff that he would talk to Duncan and Potter, “take care of the situation, and follow up with [Plaintiff].” JSAF at ¶ 77.

         Larson met with Duncan and Potter and counseled them about making comments that Plaintiff found offensive. Duncan and Potter subsequently apologized to Plaintiff. JSAF at ¶ 80. Plaintiff was “satisfied with the response and felt that the issue had been resolved.” JSAF at ¶ 81. Plaintiff then sent Larson an email in which he stated: “Again, I want to thank you for listening and taking care of the issues I had with Nathan and Tony regarding the racial comments they've made. I appreciate you immediately delving into this issue, and rectify[ing] it.” JSAF at ¶ 82.

         On January 28, 2016, Plaintiff was talking to Enrollment Coach Scott Kobold. Senior Enrollment Analyst Stephan Farnsworth “leaned in and asked, ‘what are you guys talking about?'” JSAF at ¶ 86. Plaintiff “whispered to Farnsworth and Kobold, with a smile on his face: ‘I have a bomb.'” JSAF at ¶ 87. Plaintiff then said he was joking and that he “shouldn't have said that.” JSAF at ¶ 88. Plaintiff opened his bag and his desk drawers to show Farnsworth and Kobold that he did not have a bomb and was joking. Farnsworth summarized the conversation in an email recap provided to Larsen at 2:28 p.m. on January 28, 2016:

As I walked back into my office and away from [Plaintiff's] desk, [Plaintiff] quietly said to me “hey, Steve, come here”, I walked back over. He said to me, with a small grin on his face, “I'm going to bomb this place”. Immediately shocked by what I heard I said back to him “what?”, he said “I'm going to bomb this place . . . .” All in a quiet tone as if to not scare people. Again, I said to him “what? Are you kidding?” and he said back: “no, at 3pm”. I gave him a concerned glance while shaking my head, still with a half-smile since I was so caught off guard and we had just been joking. He then immediately sat back in his chair, shook his head from side to side and said “I'm serious man, I'm serious”. I think that when he said this, he intended to say he was joking, but accidentally said he was serious. Regardless of intent at that point I asked him if I needed to get HR involved, to which he said “no, no I'm kidding, see? Look” he opened his backpack, drawers at his desk, etc. to demonstrate he had nothing with him that should be treated as a threat. I asked him shortly after if I should get the building concierge, he again said “I'm kidding man”, but then he went on to say “don't worry Steve, I'll give you 5 minutes notice so you can get out”.

         Chughtai Decl., Ex. 3 at 1. Kobold described the conversation as follows in an email sent to Larson at 2:51 p.m. on January 28, 2016:

Sometime this afternoon around 12:30pm, I was engaged in a conversation that included myself, Steve Farnsworth and [Plaintiff]. The dialogue at this point was primarily between Steve and [Plaintiff] and was of a light nature; jokes and smiles were being exchanged. Out of the blue, [Plaintiff] made a comment saying something to the effect of, “I'm going to bomb this place at 3 o'clock”. Steve responded by saying, “Should I be calling HR?”. [Plaintiff] then said something like, “No, I'm just joking. You can check my bag and my desk. I don't have anything”.

         Chughtai Decl., Ex. 4 at 1. After the conversation concluded, Farnsworth went to the kitchen to get his lunch and returned to his office. Farnsworth testified at deposition that “the potential gravity [of the conversation] started to set in with [him]” after he returned to his desk. Tripp Decl., Ex. 11 at 4.

         At that point Larson came into Farnsworth's office and Farnsworth “realized [he] needed someone to talk to about it, ” so he told Larson about the conversation. Id.

         Larson and Farnsworth contacted their supervisor Albert Sals, . Salsa and Larson concluded Larson should contact Salsa's supervisor, Executive Vice Chancellor for Enrollment and Student Affairs Saskia Knight, as well as Defendant's Human Resources Department. Larson did so, and Knight contacted Associate Vice Chancellor of Human Resources Learning and Development Sam Bresler. Bresler recommended Larson and Farnsworth contact the building manager to determine the policy in this situation. They did so, and the building manager called 911. Farnsworth and Larson explained the situation to the 911 dispatcher, “including the fact that [Plaintiff] said his comment was a joke.” JSAF at ¶ 98.

A short time later, two police officers came to the coaching center, interviewed [Plaintiff], asking him “Did you make a joke about a bomb?” He responded that he was just kidding. And they said, “Well, sir, you know, because of 9-11, people need to take these things seriously.” Then [Plaintiff] consented to a search of his bag. The officers searched his bag and, according to [Plaintiff], said: “You know what, you seem to be an okay guy, so ...

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