Kennedy v. Bank of Am.
| Decision Date | 21 April 2011 |
| Docket Number | No. C 10-0868 CW,C 10-0868 CW |
| Parties | CLAUDIA KENNEDY, Plaintiff, v. BANK OF AMERICA, NATIONAL ASSOCIATION; BANK OF AMERICA CORPORATION; STEVE OWEN, and DOES through 25,Defendants. |
| Court | U.S. District Court — Northern District of California |
Defendants Bank of America, National Association1 (Bank of America) and Steve Owen move for summary judgment on all claims in Plaintiff Claudia Kennedy's First Amended Complaint (1AC): for interference with and retaliation for an exercise of rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq., and for wrongful discharge. Plaintiff opposes the motion. The matter was heard on March 31, 2011. Having considered oral argument on the motion and all the papers filed by the parties, the Court grants Defendants' motion for summary judgment on all claims.
On September 28, 1971, Plaintiff began employment with Bank of America as a teller in the Newark, California banking center. Plaintiff was promoted to various positions within Bank of America and, in 2004, she became the banking center manager at the Union City branch. As the banking center manager, Plaintiff acted as its chief executive officer. Pl. Dep., 79-80. Although Plaintiff did not directly supervise each employee at the banking center, ultimately all employees who worked there reported to her, including the Teller Operations Specialist (TOS), Assistant Manager, senior tellers, tellers, senior personal bankers, personal bankers and small business specialists. Pl. Dep., 76-80. Plaintiff's duties included coaching and developing her associates, trying to attain the branch goals, keeping an open line of communication with her associates, and managing the banking center always to do better. Pl. Dep., 48-50. Plaintiff was also responsible for being familiar with, and ensuring that her associates complied with, Bank of America's policies and procedures. Pl. Dep., 50-53.
Plaintiff reported to the Consumer Market Executive (CME) for the region. In December, 2006, Defendant Steve Owen became CME for the region and Plaintiff began reporting to him. Pl. Dep., 94-95. Frances Crump and Roselle Lau were Consumer Marketing Managers (CMM) who reported to Owen and helped manage the region. Pl. Dep., 108-09; 276-77; Crump Dec., ¶ 2.
In November, 2007, Plaintiff developed a serious medical condition: an abscess on the roof of her mouth. On November 29 and 30, 2007, Plaintiff went to her dentist, Dr. Gerald Au, fortreatment. Pl. Dep., 240. The abscess caused Plaintiff a great deal of pain and affected her ability to eat, speak and present well to the public. Pl. Dec. at 2. Because of the abscess, Plaintiff did not work from November 29 to December 10, 2007. Pl. Dep., 113-114; 110-112.2 Plaintiff was paid for the time she did not work. Crump Dec., ¶ 8, Ex. 4. The treatment for Plaintiff's abscess lasted through September, 2008. Pl. Dec. at 2.
To receive leave under the FMLA, the Bank of America associate handbook requires an employee to: (1) provide as much notice as possible for the leave, even if unforeseeable; (2) provide the reason for the leave to the employee's manager, so the manager can determine if the leave qualifies for job protection; (3) confirm the leave plans with the employee's manager, including the length of the leave; (4) initiate the leave by calling the personnel center; and (5) provide medical certification, indicating that a serious health condition exists, on the form provided by the employee's manager. Crump Dec., Exs. 1 (1996 Bank of America Associate Handbook) and 2 (2005 Bank of America Associate Handbook). Plaintiff received copies of the associate handbook. Pl. Dep., 132.
On November 29, 2007, Plaintiff called one of her subordinates at her banking center, the teller supervisor, to inform her that Plaintiff had a serious abscess in her mouth and would probably be out of work for about a week. Pl. Dep., 114-16. Plaintiff did not call Owen nor did she ask anyone to call him to tell him that shewould not be at work for a week. Pl. Dep., 116-17. During the time she was out, Plaintiff called the banking center every day. Pl. Dep., 115-16.
On December 6, 2007, Owen was informed by Plaintiff's banking center that Plaintiff had been absent from work all week because she was sick. As noted above, she had not called Owen to tell him she would be absent. Owen Dec., ¶ 5. That same day, Owen called Plaintiff at her home to determine the reasons for her absence from work. Pl. Dep., 117-18; Owen Dec. ¶ 5. According to Plaintiff, during this call Owen was angry at her and wanted to know what her medical problem was and how long she would be away from work. Pl. Dep., 118. When Plaintiff replied that she did not know how long she would be out sick, Owen stated, Pl. Dep., 119. Owen also told Plaintiff he wanted to see a doctor's note and he wanted her to get back to work as soon as possible. Pl. Dep., 126.
After the call from Owen, Plaintiff called another banking center to send help over to the Union City banking center while she was absent from work. Someone was sent to cover for her. Pl. Dep., 124. Plaintiff was upset after Owen's call because she felt he had raised his voice and screamed at her. Pl. Dep., 125. Plaintiff called Sylvia Jesuit, another banking center manager, to tell her about Owen's call. Pl. Dep., at 127. Jesuit said she would call Owen and ask him to apologize to Plaintiff. Pl. Dep., 127-28. Within ten minutes, Owen called back, apologized for not having treated the situation correctly and stated that he shouldhave shown more compassion. Pl. Dep., 128. Plaintiff also called Bank of America's Human Resources hotline, referred to as Advice and Counsel, and told the representative that Owen had been abusive and rude and that she did not like the tone of his voice. Pl. Dep., 132-35. The representative apologized for Owen's behavior, but stated that he had a right to ask for a doctor's note. Pl. Dep., 133-34. Owen never again asked Plaintiff about her health or medical condition. Pl. Dep., 252. Plaintiff never called Advice and Counsel again to complain about Owen or any other person at Bank of America treating her unfairly or rudely. Pl. Dep., 137-38; 426-27. Plaintiff states that, from the time she complained about Owen to Advice and Counsel, he treated everything she did as wrong and subjected her to unfair criticism, and that she was eventually fired for things she did not do. Pl. Dec., 8.
Plaintiff obtained a doctor's note at Owen's request, but she never gave the note to Owen or to anyone else at Bank of America. Pl. Dep., 129-30.
In August, 2008, approximately nine months after Plaintiff was absent from work because of the abscess, her banking center suffered a $67,500 loss due to traveler's checks that were improperly sold to a customer. Pl. Dep., 179; 183-84; 203-08; 21112; Holland Dec. ¶ 6; Owen Dec., ¶¶ 6-8. Bank of America's policy and practice of selling traveler's checks required the employee responsible for the transaction to verify that the customer had sufficient funds to cover the cost of the traveler's checks. Pl. Dep. 154; Owen Dec. ¶ 6. Checks from other banks were not acceptable for the purchase of traveler's checks. Pl. Dep., 17071; Owen Dec., ¶ 6.
On August 29, 2008, a customer presented two Citibank checks to the TOS at Plaintiff's banking center to purchase traveler's checks in the amount of $67,500. Pl. Dep., 161-62; 168-71. The TOS sold the traveler's checks to the customer and the customer's Citibank account had insufficient funds to cover their cost. Pl. Dep., 178-80; 182-84; 203-208. Plaintiff states that she was out of the banking center when the traveler's checks were sold. Pl. Dep., 161. Later, the TOS brought the Citibank checks to Plaintiff for her approval, and she initialed them. Pl. Dep., 171-72. When she initialed the checks, Plaintiff did not know they were for the purchase of traveler's checks; she thought they were for deposit. Pl. Dep., 171-72. The TOS did not tell Plaintiff why he wanted her to initial the checks, and she never asked him. Pl. Dep., 174-76; 203-08; 211-12. Plaintiff later learned that the customer had left the country. Pl. Dep., 182-83.
Other managers had been terminated for incurring losses as low as $3,000. Crump Dec., ¶ 4. Owen decided not to terminate Plaintiff's employment for the $67,500 loss because of her long tenure with Bank of America and her connections to the employees, clients and community. Owen Dec., ¶ 8. Instead, Owen issued Plaintiff a final written warning which indicated that: (1) Plaintiff had failed to meet performance expectations by approving a large transaction that resulted in a "returned item;" (2) Plaintiff was expected to meet all of the requirements for the manager position she held including using sound judgment and protecting the bank from losses; (3) Plaintiff was expected to comply with all Bank of America policies, procedures, guidelines and conditions of employment, including but not limited to thoseset forth in the Associate Handbook and Bank of America Code of Ethics; and (4) Plaintiff was expected to demonstrate immediate and sustained improvement in the areas set forth above. Defs.' Ex. D. The warning also indicated that if Plaintiff failed to meet these expectations, she would be subject to disciplinary action, up to and including termination. Id.
At the end of 2008, Owen and his assistants, Crump and Lau, were concerned that full-time banking center employees were not working a full shift on Saturdays, and expressed this concern to the banking center managers. Pl. Dep., 275-78; Owen Dec., ¶ 9; Crump Dec., ¶ 10. Owen, Crump and Lau requested that all banking center managers ensure that their full-time employees worked a full eight hours. Pl. Dep.,...
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