Wilkins v. Brandman Univ.

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

3:17-cv-01099-BR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

August 5, 2019

OPINION AND ORDER

BETH ANN CREIGHTON

LAURA KOISTINEN

Creighton & Rose, PC

Powers Building

65 S.W. Yamhill Street, Suite 300

Portland, OR 97204

(503) 221-1792

Attorneys for Plaintiff

J. MICHAEL PORTER

MATTHEW A. TRIPP

Miller Nash Graham & Dunn LLP

111 S.W. Fifth Avenue

Suite 3400

Portland, OR 97204

(503) 224-5858

Attorneys for Defendant

BROWN, Senior 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 MadihaChughtai, 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 dispositioningyour 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'spolicies, 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

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