McQueen v. Wells Fargo Home Mortg.

• Decision Date: 28 June 2013
• Docket Number: Case No. 2:11–CV–1580–VEH.
• Citation: 955 F.Supp.2d 1256
• Parties: Jennie McQUEEN, Plaintiff, v. WELLS FARGO HOME MORTGAGE, et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

955 F.Supp.2d 1256

Jennie McQUEEN, Plaintiff,

v.WELLS FARGO HOME MORTGAGE, et al., Defendants.

Case No. 2:11–CV–1580–VEH.

United States District Court,

N.D. Alabama,

Southern Division.

June 28, 2013.

Courtney L. Calhoun, Roderick T. Cooks, Lee D. Winston, Winston Cooks LLC, Birmingham, AL, for Plaintiff.

Carole G. Miller, Matthew I. Penfield, Maynard Cooper & Gale PC, Birmingham, AL, for Defendants.

MEMORANDUM OPINION AND ORDER

VIRGINIA EMERSON HOPKINS, District Judge.

This is a race and age employment discrimination action brought by the plaintiff, Jennie McQueen, against the defendants, Wells Fargo Home Mortgage (“Wells Fargo”) and Aerotek. The complaint first alleges one count for race discrimination under both Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e, et seq., (“Title VII”), and 42 U.S.C. § 1981. (Doc. 25, pp. 3–5.) The complaint also alleges one count of age discrimination in violation of both the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (“ADEA”) and the Alabama Age Discrimination in Employment Act, Ala.Code § 25–1–22, et seq. (“AADEA”). (Doc. 25, pp. 5–6.) Finally, the complaint alleges retaliation in violation of 42 U.S.C. § 1981. (Doc. 25, p. 5.) All counts arise out of the plaintiff's employment.

The case comes before the court on the motions for summary judgment filed by the defendants. (Docs. 39 and 41.) For the reasons stated herein, the motions will be GRANTED.

I. STANDARD

Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”) (internal quotation marks and citation omitted). The party requesting summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings in answering the movant. Id. at 324, 106 S.Ct. 2548. By its own affidavits—or by the depositions, answers to interrogatories, and admissions on file—it must designate specific facts showing that there is a genuine issue for trial. Id.

The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. If the evidence presented by the non-movant to rebut the moving party's evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249, 106 S.Ct. 2505.

How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). If the movant bears the burden of proof on the given issue or issues at trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine issue of material fact—that is, facts that would entitle it to a directed verdict if not controverted at trial. Id. (citation omitted). Once the moving party makes such an affirmative showing, the burden shifts to the non-moving party to produce “significant, probative evidence demonstrating the existence of a triable issue of fact.” Id. (citation omitted) (emphasis added).

For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115–16. First, the movant may simply show that there is an absence of evidence to support the non-movant's case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116–17. When responding, the non-movant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.

II. FACTS¹A. The Plaintiff's Employment With Aerotek

Aerotek provides technical, professional, and industrial recruiting and staffing services. The company recruits, hires, and assigns temporary employees to work for various lengths of time on the premises of, and under the direction and supervision of, its clients. The business needs of Aerotek's clients determine the job duties and duration of the assignment for the employees assigned to work for that client. The plaintiff, Jennie McQueen, was experienced with such companies and their procedures. She worked for several different temporary employment agencies prior to Aerotek. Every assignment she was given through these agencies was a temporary placement ending at the client's discretion.

McQueen first contacted Aerotek in May 2009. On February 19, 2010, the plaintiff signed an employment agreement with Aerotek and acknowledged her receipt of Aerotek's Contract Employee Handbook, which contains Aerotek's written policies against discrimination and retaliation. For all work placements, the plaintiff submitted her work time to Aerotek and was paid by Aerotek. An Aerotek representative handled all employee questions and issues, and the plaintiff knew to contact Aerotek with any such questions.

B. The Plaintiff's Work With Wells Fargo

In March 2010, Aerotek offered, and the plaintiff accepted, a placement as a “Decisioner” in Wells Fargo's Loss Mitigation Department.² (Doc. 42–1, pp. 15 (59–60), 19(74), 44(173).) Aerotek recruiters Nathan Warner and Emily Ann Dean were responsible for the plaintiff's placement at Wells Fargo and handled employment-related complaints from her and any other Aerotek employee.

The plaintiff signed a separate employment agreement with regards to this assignment which states that “AEROTEK ... conditionally offers to employ Jennie McQueen in the capacity of Decisioner commencing on March 8, 2010 at its client, Wells Fargo ... for services with the latter for a temporary period.” (Doc. 42–1, p. 58). The agreement also states:

1. Ratification. You understand and acknowledge that this offer of temporary employment with AEROTEK is subject to final approval by the Client and that you shall not be entitled to any wages or employment unless actually hired by AEROTEK to work the specific assignment pursuant to this agreement.

(Doc. 42–1, p. 58.) The agreement states that Aerotek is dependent on the client to approve the number of hours worked before McQueen could be paid. It also states: “Consequently, you also understand that and agree that subject to applicable law, your pay check may not be released unless client approves and verified time records have reached Aerotek's offices.” (Doc. 42–1, p. 58.) The agreement also allowed Wells Fargo to end McQueen's employment, stating: “Termination. You understand that the length of the assignment is subject to the discretion and needs of the client.” (Doc. 42–1, p. 59.) In her deposition, the plaintiff acknowledged that the assignment was for a temporary period, but stated that Warner told her that the job should last at least two years. (Doc. 42–1, p. 18(70).)

The plaintiff was placed in the “Loss Mitigation Department” of Wells Fargo. That department was divided into 12 teams, with each team consisting of employees classified as “Decisioners,” “Communicators,” and “File Clerks.” Each team's job was to take Wells Fargo customers who had fallen behind on their mortgage payments and place them into one of Wells Fargo's payment programs.

The plaintiff's job as a Decisioner was to determine into which Wells Fargo's payment program, if any, the customer could be placed. Once a Decisioner made a recommendation, the customer's file was sent to second-level review where the Decisioner's recommendation was either approved or rejected. Pursuant to Wells Fargo policy, Decisioners are prohibited from placing a client in the program if their recommendation is denied by second-level review. If second-level review disagreed with a Decisioner's recommendation, the Decisioner had to make only the changes second-level review requests, and then either close the file or gather additional information and re-evaluate based on the new information.

The plaintiff was paid $22.00 per hour by Aerotek during her temporary assignment at Wells Fargo. The amount of files the...