Morrison v. Fifth Third Bank

F. RENEE MORRISON, Plaintiff, v. FIFTH THIRD BANK, Defendant.

Case No. 1:18-CV-374

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION

June 15, 2021

OPINION AND ORDER

This matter is before the Court on the motion for summary judgment and brief in support filed by Defendant Fifth Third Bank (ECF Nos. 32 and 33). Plaintiff F. Renee Morrison filed a response in opposition and supporting brief (ECF Nos. 36 and 40-1) and Fifth Third filed a reply (ECF No. 48). Morrison also filed a sur-response (ECF No. 52-1) and Fifth Third filed a sur-reply (ECF No. 57). Also pending is a motion to strike filed by Morrison (ECF No. 39), to which Fifth Third filed a response (ECF No. 45) but Morrison did not file a reply. Fifth Third also filed a motion to strike and brief in support (ECF No. 46 and 47), to which Morrison filed a response (ECF No. 54) and Fifth Third filed a reply (ECF No. 55). Briefing on all the motions was completed on April 29, 2021, and so they are ripe for resolution. For the reasons explained below, Plaintiff's Motion to Strike is DENIED; Defendant's Motion to Strike is GRANTED in part and DENIED in part; and Defendant's Motion for Summary Judgment is GRANTED.

BACKGROUND

The Plaintiff was employed by the Defendant as a Financial Center Manager ("FCM"), commonly known as a branch manager, in Fifth Third's banking center in downtown Fort Wayne, Indiana, beginning on June 28, 2010, until her termination on March 8, 2017. Morrison contends in her Complaint that "she was discriminated against and retaliated against by the Defendant on the basis of her race and color (black) in violation of her federally protected rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. . . . and 42 U.S.C. § 1981." Complaint (ECF No. 4), p. 1. Morrison alleges that "[i]n approximately 2015, Plaintiff, a branch manager level 1, applied for positions within the company at larger predominately white branches at Lima Road and Dupont Road. . . . Because the Lima and Dupont branches were bigger, if Plaintiff had been given one of the manager positions it would have been considered a promotion due to the higher salary and better benefits offered at the higher level. . . . Each time, Plaintiff was told that she 'didn't fit.' . . . When Plaintiff asked human resources for clarification as to why she 'didn't fit' and how her qualifications were lacking, she did not receive a substantive response." Id., p. 2. Morrison alleges that "[t]wo substantially younger Caucasian/white women with much less banking experience were hired for the Lima Road and Dupont Road positions." Id.¹ Morrison insists that she did not violate Fifth Third policy and that she "is aware of Caucasian/white employees who have allegedly violated policy in similar ways but were not terminated." Id. Morrison contends "that the proffered reason for her termination was false and pretextual[]" and that "[i]n reality, Plaintiff was discriminated against and retaliated against on the basis of her African American race and color[.]" Id. Morrison seeks to recover lost wages, compensatory and punitive damages. Id., p. 3. Prior to initiating this action, Morrison filed a Charge of Discrimination on June 28, 2017, alleging race discrimination andretaliation. Id., p. 6 (Exhibit A, Charge of Discrimination). The Fort Wayne Metropolitan Human Relations Commission issued a Dismissal of Complaint and Notice of Rights on August 16, 2018, (id., p. 8 (Exhibit B, Notice of Rights Letter)), and Morrison filed this lawsuit on October 17, 2018. Morrison initiated this lawsuit in state court and Fifth Third removed it to this Court pursuant to 28 U.S.C. §§ 1441 and 1446. Notice of Removal (ECF No. 1).

Morrison "was responsible for directing and administering the financial center, including managing sales, managing, training and coaching employees, and meeting operational goals." Defendant's Memorandum in Support of Motion for Summary Judgment (ECF No. 33), p. 4. Morrison reported to Regional Manager John Milner. Id. Fifth Third insists that it "terminated Morrison's employment on March 8, 2017, for violation of Fifth Third's policy against self-dealing." Id., p. 5. Fifth Third states that an internal investigation revealed that Morrison had violated bank policy by not following proper procedure in opening accounts for family members. Id., p. 4. Fifth Third argues that it is entitled to summary judgment because Morrison cannot establish a prima facie case of race discrimination or retaliation, and that she cannot establish that Fifth Third's proffered, nondiscriminatory explanation for her termination was pretextual.

STANDARD OF REVIEW

Federal Rule 56 states that a "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The Supreme Court has explained that "the burden on the moving party may be discharged by 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). "'If the moving party has properly supported his motion, the burden shiftsto the non-moving party to come forward with specific facts showing that there is a genuine issue for trial.'" Simpson v. Gen. Dynamics Ordnance & Tactical Sys.-Simunition Operations, Inc., 2019 WL 6912332, at *2 (N.D. Ind. Dec. 19, 2019) (quoting Spierer v. Rossman, 798 F.3d 502, 507 (7th Cir. 2015)). Within this context, the Court must construe all facts and reasonable inferences from those facts in the light most favorable to the nonmoving party. Id. (citing Frakes v. Peoria Sch. Dist. No. 150, 872 F.3d 545, 550 (7th Cir. 2017)). A court's role in deciding a motion for summary judgment "is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe. The court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Waldridge v. Am. Heochst Corp., 24 F.3d 918, 920 (7th Cir. 1994). Summary judgment is not a substitute for a trial on the merits nor is it a vehicle for resolving factual disputes. Id. Therefore, after drawing all reasonable inferences from the facts in favor of the non-movant, if genuine doubts remain and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. See Shields Enterprises, Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). If it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish his or her case, summary judgment is not only appropriate, but mandated. See Celotex, 477 U.S. at 322; Ziliak v. AstraZeneca LP, 324 F.3d 518, 520 (7th Cir. 2003).

"Summary judgment is a critical moment for a non-moving party. It must 'respond to the moving party's properly-supported motion by identifying specific, admissible evidence showing that there is a genuine dispute of material fact for trial.'" Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 893-94 (7th Cir. 2018) (quoting Grant v. Trs. of Ind. Univ., 870 F.3d 562,568 (7th Cir. 2017)). "Inferences supported only by speculation or conjecture will not suffice." Id. (citing Skiba v. Ill. Cent. R.R. Co., 884 F.3d 708, 721-22 (7th Cir. 2018)). "Neither will the mere scintilla of evidence." Id. (citing Grant, 870 F.3d at 571).

The Seventh Circuit in recent years has refined the summary judgment standard of review in employment discrimination cases, explaining as follows:

On top of the normal lattice of summary judgment demands, we must also apply the constructs of employment discrimination law. For years we have tangled with a "rat's nest of surplus tests" in employment discrimination cases-struggling to pigeon hole evidence into the direct or indirect method with various overlaying requirements of "convincing mosaics" and circumstantial or direct evidence. Ortiz v. Werner Enters., Inc., 834 F.3d 760, 764-66 (7th Cir. 2016). Our Circuit has now clarified the singular question that matters in a discrimination case:

"[W]hether the evidence would permit a reasonable factfinder to conclude that the plaintiff's race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action." Ortiz, 834 F.3d at 765. "Evidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself. . . . Relevant evidence must be considered and irrelevant evidence disregarded." Id.

Johnson, 892 F.3d at 893-94.

DISCUSSION

Before addressing the motion for summary judgment the Court must resolve the parties' motions to strike certain evidence. To the extent the motions are granted, the Court will not consider the challenged evidence when determining the issues presented on summary judgment.

I. Plaintiff's motion to strike (ECF No. 39).

Morrison argues in her motion to strike that "[a]fter reviewing Defendant's [evidentiary] submissions, Plaintiff respectfully moves to strike portions of several, because they contain inadmissible evidence[.]" Plaintiff's Motion to Strike (ECF No. 39), p. 1. Specifically, Morrisontakes issue with certain statements contained in affidavits by Sara Swiergosz, Angela Spry, and Jenean Ferree.² Morrison argues that all three affidavits contain inadmissible hearsay evidence.

A. Swiergosz declaration.

Morrison argues that Swiergosz's affidavit "contains a number of paragraphs in which she repeated statements that she alleges were made to her, prior to the Plaintiff's termination." Plaintiff's Motion to Strike, p. 1. Morrison asks the Court to strike paragraphs 14, 15 and 16 of the affidavit because they are "inherently unreliable hearsay." Id. In those paragraphs, Swiergosz recounted as follows:

14.

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