Verby v. PayPal, Inc.
Decision Date | 29 April 2014 |
Docket Number | 8:13-CV-51 |
Parties | AUSTI M. VERBY, Plaintiff, v. PAYPAL, INC., et al., Defendants. |
Court | U.S. District Court — District of Nebraska |
The plaintiff, Austi Verby, has sued her former employer and several of its employees for allegedly discriminating against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; retaliating against her for activity protected by Title VII; violating the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.; and tortious interference with an employment relationship. The matter is before the Court on the defendants' motion for summary judgment (filing 45). The Court will grant the defendants' motion and dismiss the plaintiff's complaint.
The plaintiff was hired by PayPal, Inc., one of the defendants, in August 2005. Filing 46 at 3;1 filing 47-2 at 127. The other defendants workedwith the plaintiff: Jody Willey was the plaintiff's supervisor, Heather Johnson was Willey's manager, and Justin Sebeck was the co-worker who allegedly harassed the plaintiff. Filing 46 at 3-4; filing 47-2 at 20-21.
The plaintiff became a PayPal fraud appeals agent in 2006. Filing 46 at 3; filing 47-2 at 76. A fraud appeals agent is commonly responsible for handling situations such as unauthorized access to a customer's PayPal account, or accounts created using stolen financial information. Filing 47-2 at 78. Such an account is restricted and PayPal requests additional documentation from the customer; once that information is provided, or if the customer calls customer service, the fraud appeals agent is responsible for reviewing the account and deciding whether to restore unrestricted use or keep the restrictions in place. Filing 47-2 at 80-81.
In August 2011, the plaintiff began taking occasional leave because her maternal grandmother was ill. Filing 46 at 7. The plaintiff continued to take intermittent leave to help her grandmother, a few hours at a time, over the remainder of her employment with PayPal. Filing 46 at 7, 17-18; filing 47-3 at 5-25. At no point did PayPal deny any of the plaintiff's requested leave. Filing 46 at 7, 17.
In October 2011, the plaintiff was issued a "Conversation Memo" informing her that her job performance was not acceptable.2 Filing 46 at 7-8; filing 47-2 at 137. Specifically, the plaintiff was informed of her low quality control scores and told that her performance had been the lowest on her teamduring that quarter. Filing 47-2 at 137. It was also noted that she had been given detailed guidance on several occasions but continued to make the same errors. Filing 47-2 at 137. And she was warned that failure to improve her performance could result in further discipline, up to and including termination. Filing 47-2 at 137.
Sebeck and the plaintiff worked together, although not constantly—their shifts overlapped on Fridays, and when the plaintiff came in to make up hours or work overtime. Filing 47-2 at 26-27. The plaintiff first complained about Sebeck to Willey in late December 2011 or January 2012. Filing 47-2 at 98. She said that Sebeck was watching everything she did at work and trying to get her in trouble by reporting her activities, so she felt like she was "constantly on the defense" because she had to keep track of her cases and explain later what she had been doing. Filing 47-2 at 95. The plaintiff said people had told her that he was watching her breaks and telling her supervisors what she was doing. Filing 47-2 at 97. Sebeck also reportedly used instant messaging to report her work activities to others, forcing her to explain herself when he got her in trouble. Filing 52-18 at 3-5. The plaintiff's affidavit summarizes her accusations:
[Sebeck] repeatedly gave me visual or physic [sic] nonconsensual communication, verbal, written or implied threats or a combination causing a reasonable amount of making me uncomfortable in the work place. Justin Sebeck would watch every break I took, who came to my desk to talk to me. He was quick to keep a log of when I would walk away from my desk to help someone, go to break, or use the restroom and then report it to a supervisor in the department. [Sebeck] would randomly walk behind me while I was at my desk and stare at my computer as he walked by.
Filing 52-11 at 5. In other words, according to the plaintiff, Sebeck was a tattletale. But, the plaintiff admits, she never actually spoke to Sebeck about anything. Filing 47-2 at 26.
In response, Willey contacted Johnson and Sebeck's supervisor. Filing 47-2 at 98. The plaintiff's desk was moved away from Sebeck's. Filing 47-2 at 104-05. According to Willey, such a move may be undertaken regardless of the underlying complaint's validity, to make sure that employees know they are listened to and their concerns are taken seriously. Filing 52-20 at 5. But when switching desks didn't help, after extended discussions with Willey, the plaintiff contacted PayPal's human resources consultant, MyHR, on April 20,2012, and alleged that Sebeck was harassing her. Filing 46 at 9; filing 47-2 at 106, 152.
Filing 47-2 at 152. According to the case notes, the plaintiff described Sebeck's behavior to the MyHR investigator as Sebeck reporting things to a senior agent with whom Sebeck was friends outside of work, "making exaggerated reports, of me being late," and making comments such as "hostile work environment." Filing 47-2 at 152.
In a follow-up email to the MyHR investigator, the plaintiff explained her allegations in more detail. Filing 46 at 10; filing 47-2 at 152-54. The plaintiff reported that:
Filing 47-2 at 153-54. The plaintiff explained that Sebeck "is a busy body and in everyone's business" and that "any action taken may only be a temporary resolution before the behavior starts again." Filing 47-2 at 155.
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