Opinion
NO. 2015-CA-001602-MR
06-09-2017
JACQUELINE MOORE APPELLANT v. U.S. BANK NATIONAL ASSOCIATION, INC., AND RUPINDER KAUR APPELLEES
BRIEF FOR APPELLANT: Paul Stewart Abney Louisville, Kentucky BRIEF FOR APPELLEES: Robert B. Craig Covington, Kentucky Doreen Canton Cincinnati, Ohio
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A. C. MCKAY CHAUVIN, JUDGE
ACTION NO. 12-CI-002098 OPINION
AFFIRMING
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BEFORE: CLAYTON, COMBS, AND TAYLOR, JUDGES. COMBS, JUDGE: This is an employment law case based upon an allegation of unlawful retaliation. Jacqueline Moore appeals from an order of the Jefferson Circuit Court entered upon a jury's verdict in favor of her former employer, U.S. Bank, N.A. Moore also appeals from the trial court's decision to direct a verdict at the close of proof in favor of her former supervisor, Rupinder Kaur. After a thorough review of the trial, we affirm.
This case was tried under provisions of the Kentucky Civil Rights Act, KRS Chapter 344. The following summary of the trial testimony highlights those portions of the proceedings which are relevant to our resolution of the issues presented on appeal.
Kentucky Revised Statutes.
Moore, a white female, began working as a teller coordinator for U.S. Bank in June 2009. At that time, she worked at the Middletown Branch office in Louisville. On August 31, Moore received a verbal warning for failing to lock her teller drawer.
In September, following a negative ninety-day review, Moore was placed on an action plan for unsatisfactory performance that primarily related to controlling the cash levels in her teller drawer and task efficiency. Based upon the complaints of the tellers whom she supervised, Moore was also encouraged to build a stronger relationship with other employees and to be more courteous in speaking with them. Thereafter, Moore submitted a letter of resignation because she "just didn't feel like that there was going to be a positive work environment" at U.S. Bank. Ultimately, U.S. Bank offered Moore an opportunity to transfer to a downtown branch where she could work as a teller. She accepted the offer.
Moore left the Middletown Branch office in October 2009 and moved to the One Financial Square Branch located in downtown Louisville to work as a teller. In December 2009, Rupinder Kaur, a female of Indian descent, was hired to be branch manager at U.S. Bank's One Financial Square Branch.
In February 2010, Moore complained to human resources that she had been passed over for a promotion. She alleged that she had not been selected for the promotion as a result of age and gender discrimination.
In April 2010, Moore was responsible for a substantial ATM loss at her branch office. Pursuant to bank policy, a loss of this magnitude caused by a teller's failure to follow standard operating procedure is cause for termination. However, after a conversation with the human resources department, Kaur decided that Moore would not be terminated but that she would be given further training instead.
In June 2010, Moore called in two anonymous, internal "ethics" complaints against Kaur. She claimed that Kaur mistreated African-American customers and employees and that she treated tellers in a hostile manner.
As result of the ethics complaints, Rene Shepherd, an assistant vice-president and thirty-year employee of U.S. Bank and its predecessors, immediately undertook an investigation into the allegations made against Kaur. Shepherd, who is a human resources specialist based out of Nashville, testified that the ethics hotline calls are made to a third-party vendor who forwards the anonymous information to the human resources department at U.S. Bank for resolution. She testified that she did not know who had filed the ethics complaints until the civil rights action was filed by Moore against U.S. Bank.
As part of her investigation, Shepherd talked to branch office personnel, including its three tellers. Among the tellers whom Shepherd interviewed were Andrianne Richard and Moore. Moore told Shepherd that she worked for a great team at the downtown branch. However, after Shepherd explained the purpose of the interview, Moore divulged that there were issues with Kaur's behavior at the branch office. Moore indicated to Shepherd that Kaur favored "men over women," "hated working with women," and spoke to employees "in a very terrible manner." Shepherd promised Moore that the information that she had provided would be kept confidential and that there would be no reprisal from Kaur.
Kaur was also interviewed with respect to the ethics complaints. She was advised that other personnel would be interviewed, but she was never told who was being interviewed. At trial, Kaur testified that she was not concerned that these complaints would adversely affect her career at U.S. Bank because she knew that they were unfounded and would be properly addressed. Kaur testified that she was upset that she had been negatively perceived, however, and felt that she might have hurt someone's feelings. Kaur testified that she was never told who had called in the anonymous ethics complaints against her. She testified that she did not know who filed the ethics complaints until she was served with the complaint against her in this action.
Following her investigation, Shepherd concluded that there was no evidence to support the substance of the ethics complaints and that there was no evidence of discrimination. The ethics investigation was closed on June 25, 2010. Andrianne Richard resigned her position as teller on this date.
In July 2010, Kaur scolded Moore for an issue related to a number of ATM transactions that had not been processed. Moore reported this interaction to Shepherd on July 19, 2010. Moore testified that she told Shepherd that she believed Kaur was retaliating against her for having reported Kaur's conduct to Shepherd in June.
On July 30, 2010, Shepherd happened to be in Louisville on other business. Scott Borowick was a U.S. Bank district manager who had been made aware of the discord between Moore and Kaur. Shepherd and Borowick met with Moore and Kaur at the downtown branch office. Before all four individuals met together, Borowick and Shepherd met with Moore individually and with Kaur individually. Borowick testified that although he was aware that anonymous ethics complaints had been filed against Kaur in June 2010, he only became aware that those complaints had been filed by Moore after the civil action against the bank was filed in 2012.
Kaur testified that the group discussion involved the issue of whether tellers could remain sitting as they greeted customers; Moore's concern that her vacation requests were not being timely addressed; and the circumstances surrounding Kaur's reprimand of Moore for issues relating to ATM transactions. Kaur said that the participants discussed how she and Moore might communicate more effectively.
Moore testified that during her private meeting with Borowick and Shepherd, Moore explained that she (Moore) had been working with Kaur to secure a transfer to a U.S. Bank position in Vail, Colorado. Moore expressed concern that Kaur was no longer willing to support her effort to win a promotion to the sales and service coordinator position was seeking in Vail. Moore testified that following this meeting, Kaur no longer assisted her in her Vail job search or provided her with leads for other open teller positions.
Moore testified that there was another instance -- approximately a week after the July 30 meeting -- when Kaur spoke to Moore curtly at the teller line and even more severely behind closed doors. This incident occurred after Kaur discovered that Moore had left the branch for forty-five minutes leaving a single individual working the teller line in clear violation of bank policy aimed at employee safety and loss prevention. Moore reported this incident to Shepherd and again reiterated her concern that Kaur was retaliating against her. Moore testified that Kaur no longer offered to help with her resume or provided her with new job postings at U.S. Bank.
In August 2010, Moore gave Kaur's cell phone number to the U.S. Bank employee who had interviewed her for the position at the Vail Branch office. Moore testified that she was later informed that no offer would be forthcoming because Kaur relayed that Moore had been demoted from her previous position with the bank and that a written or verbal warning had been added to Moore's personnel file. Moore claimed that this information was false and recounted these events to Shepherd.
In her testimony, Kaur denied having made any negative comments about Moore and indicated that the Vail Branch officer manager would have had personal access to Moore's personnel file. Nonetheless, Moore reported to Shepherd that Kaur had sabotaged her effort to be promoted to the position in Vail.
Moore continued to work at the downtown branch office until October 2010 when she was transferred to the bank's Audubon Branch office. Borowick testified that he made the decision to move Moore to the Audubon Branch office after Kaur explained to him that Moore had made personal and highly inappropriate comments about her that had made a working relationship between them impossible. Moore's duties and compensation remained unchanged as a result of the transfer, and Moore indicated that she was happy to make the move. Borowick testified that Moore appeared to be excited about a fresh start at another branch.
Kaur resigned from U.S. Bank in November 2010 -- approximately one month after Moore had relocated to a new branch office.
Brandy Hawkins, assistant branch manager, testified that the first couple of months went smoothly with Moore at the Audubon Branch office. However, Moore received a verbal warning on December 21, 2010 for an ATM policy infraction; for failing to insure that her drawer was kept below the maximum cash balance allowed; and for failing to insure that her coin vault was closed. In her testimony, Moore denied that she had made a mistake concerning the ATM transactions, but she admitted that she had made a mistake concerning her cash drawer and that she had failed to close her coin vault.
On January 10, 2011, Moore filed a charge of discrimination against U.S. Bank with the Equal Employment Opportunity Commission (EEOC). She alleged that Kaur had harassed and discriminated against her while she worked at the downtown branch office. She also alleged that Kaur had denied her a promotion to work as assistant branch manager in February 2010.
On February 14, 2011, Moore received a negative performance review at her new branch office. Hawkins testified that she had a meeting with Moore in conjunction with the performance review and discussed with her both positive and negative aspects of her performance at the bank. Moore refused to sign the performance review. Instead, she noted on the bottom of the written review that it constituted further retaliation and discrimination against her. Hawkins testified that she was shocked by this comment. Hawkins testified that she felt that she and Moore had enjoyed a remarkably good working relationship and that she was unaware of any bad feeling between Moore and anyone at the branch office.
On March 9, 2011, Moore filed a second charge of discrimination with the EEOC alleging further retaliation.
On May 10, 2011, based upon the issues that were raised in her February performance review, U.S. Bank placed Moore on a "personal improvement plan." Hawkins testified that implementation of the plan had been delayed while Hawkins worked with human resources to figure out how to respond to Moore's refusal to sign the performance review. Moore refused to sign the personal improvement action plan.
In June 2011, the bank opened an investigation into the sales referrals that Moore had entered into U.S. Bank's system. "Sales referrals" consist of promotions of bank products or services by bank personnel to customers. If customers purchase the suggested products, bank employees are compensated by incentive pay.
Hawkins and Aron Robinson, the branch manager, conducted the investigation, which resulted from an inquiry from a deaf bank customer about a call to her home from someone at the bank. After auditing this customer's account, Hawkins discovered that Moore claimed that she had spoken with the customer over the phone and that the customer had requested the addition of a bill-payer feature to her account. Hawkins concluded that Moore's representations concerning the referral were false and that they had been made for the sole purpose of enhancing her compensation.
Hawkins then audited other accounts and investigated other referrals that Moore had claimed. Hawkins made notations with respect to each customer as she went. Ultimately, Hawkins concluded with certainty that each of the individuals listed in her notes had been wrongfully included in Moore's referrals and that the incentive pay had not been earned. Hawkins's notes were identified at trial and admitted into evidence as Defendant's Exhibit 27.
On June 14, 2011, Robinson and Hawkins questioned Moore about the referrals for which she had claimed credit. Moore was unable to provide details about the customers or the referrals. Hawkins testified that her short audit of Moore's referrals made her suspicious of Moore's previous claims for incentive pay as well, and she felt certain that Moore had placed the bank's interests at risk.
On June 17, 2011, Moore was terminated from her position with U.S. Bank. At the termination meeting, Borowick indicated to Moore that he had lost all confidence in her as a teller following the results of the branch managers' incentive pay investigation. Borowick testified that Moore's actions with respect to the referral fraud constituted a violation of the bank's code of conduct and fell into a "zero tolerance" area. Kaur was no longer an employee of U.S. Bank in 2011, and Moore concedes that Kaur played no role in her termination.
In August 2011, the EEOC dismissed Moore's charges.
On April 11, 2012, Moore filed an action against U.S. Bank and Kaur, individually, in Jefferson Circuit Court alleging violations of the Kentucky Civil Rights Act (KRS Chapter 344). Moore alleged that she had been subjected to adverse employment action as a result of having engaged in protected activity. At trial, she contended that Kaur's comments to another U.S. Bank employee had cost her a promotion to U.S. Bank's Vail Branch office and that Kaur had made the comments in retaliation for Moore's filing of ethics complaints against her in June 2010.
The matter went to trial on September 8, 2015. On September 10, 2015, at the close of the plaintiff's case, both U.S. Bank and Kaur made motions for directed verdict. The trial court denied both motions but expressed strong reservation about the character of the evidence offered to prove that Kaur knew that Moore had filed the ethics complaints against her. U.S. Bank and Kaur presented their defenses. At the close of all the proof, they renewed the motions for directed verdict.
Kaur argued that Moore failed to establish a prima facie case of retaliation against her. The trial court agreed that Moore could not demonstrate that Kaur retaliated against her because she (Moore) did not show that Kaur ever knew that Moore had filed the ethics complaints, the protected activity in which Moore allegedly engaged. The court granted Kaur's motion for directed verdict and dismissed the case against her.
On September 11, 2015, the parties' presented their closing arguments, and the trial court instructed the jury. Following a brief period of deliberation, the jury returned a verdict in favor of U.S. Bank. The court's final order was entered on September 18, 2015. This timely appeal followed.
Moore presents two arguments on appeal. First, she contends that the trial court erred by granting Kaur's motion for directed verdict because circumstantial evidence showed that Kaur retaliated against Moore. The alleged retaliation occurred after Moore provided information in June 2010 regarding her claim of Kaur's discriminatory conduct. Next, Moore contends that the trial court erred by allowing the admission into evidence of the documents prepared by Hawkins and Robins concerning their investigation of fraudulent sales referrals. We address these arguments in the order in which they were presented.
Upon a motion for directed verdict, the trial court "must draw all fair and reasonable inferences" from the evidence in favor of the party opposing the motion. Bierman v. Klapheke, 967 S.W.2d 16 (Ky.1998). A motion for directed verdict can be granted only if there is a complete absence of proof on a material issue or if no disputed issue of fact exists upon which reasonable people could differ. Taylor v. Kennedy, 700 S.W.2d 415 (Ky.App.1985). On appeal, a reviewing court cannot substitute its judgment for that of the trial court unless the trial court's evaluation of the proof is clearly erroneous. Davis v. Graviss, 672 S.W.2d 928 (Ky.1984).
The anti-retaliation provision of the Kentucky Civil Rights Act makes it unlawful for a person
[t]o retaliate or discriminate in any manner against a person because he has opposed a practice declared unlawful by this chapter, or because he has made a charge, filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this chapter . . . . KRS 344.280(1).In order to establish a prima facie case of retaliation, Moore had to establish that: (1) she engaged in protected activity; (2) her employer knew that she engaged in the protected activity; (3) her employer thereafter took an adverse employment action against her; and (4) there was a causal connection between the protected activity and the adverse employment action. See Brooks v. Lexington-Fayette Urban County. Housing Authority, 132 S.W.3d 790 (Ky.2004). "[O]ne necessary element of the prima facie case is that the official committing the adverse action have knowledge of the protected activities." Brown v. City of Franklin, 430 F. Appx. 382, 386 (6th Cir. 2011).
A plaintiff bears the burden to establish such knowledge beyond mere speculation. "Where the decisionmaker denies having knowledge of the alleged protected activity, the plaintiff must do more than 'offer[] only conspiratorial theories . . . or flights of fancy, speculations, hunches, intuitions, or rumors.'" Lewis-Smith v. W. Kentucky Univ., 85 F. Supp. 3d 885, 909 (W.D. Ky. 2015), aff'd, (Jan. 12, 2016) (quoting Proffitt v. Metro. Gov't of Nashville & Davidson Cnty., Tenn., 150 F. App'x 439, 442-43 (6th Cir. 2005)).
Moore contends that after she provided Shepherd with information regarding her allegation of Kaur's discriminatory behavior in June 2010, Kaur "began a campaign of severely hostile behavior directed toward [her]" that culminated with Kaur's providing false information to U.S. Bank personnel in Vail, Colorado. However, Moore concedes that there is no direct proof that Kaur was aware that Moore had engaged in any activity protected by statute or that this so-called knowledge motivated the allegedly hostile behavior.
Kaur testified unequivocally that while she was made aware of the existence of the ethics complaints filed against her, neither Borowick nor Shepherd told her the source of the complaints; i.e., that it was Moore who had made them. In fact, Kaur testified consistently that she did not know who was responsible for the ethics report until she was served with the complaint that commenced this civil action against her.
Borowick testified that he, too, was unaware of who had filed the ethics complaints against Kaur. Shepherd also confirmed in her testimony that the ethics complaints were anonymous and that she did not know their source.
Moore argues that the jury would not have been compelled to believe testimony indicating that Kaur was unaware of the source of the ethics complaints filed against her in June 2010. Upon that basis, Moore suggests that the jury could have surmised that Kaur did indeed know who had filed the ethics complaints. Moore further suggests that the jury could have inferred that Kaur knew who had filed the ethics complaint from her testimony that Kaur was hateful and unhelpful to her -- especially following the July 30, 2010, meeting with Borowick and Shepherd. She also suggests that Kaur's response to a deposition question indicated that she knew who had filed the ethics complaints after the July 30 meeting.
In granting a directed verdict against Moore following the close of the evidence, the trial court concluded that there was no adequate evidentiary basis for a jury to believe Moore's insistent contention that Kaur had knowledge early on that Moore was the complainant in the ethics charges filed against Kaur. Nonetheless, Moore strenuously argues that Kaur's deposition testimony as explained by Kaur at trial amounted to an admission that Kaur had been aware of Moore's identity. We quote the disputed portion of Kaur's deposition of February 21, 2014, as follows:
Q. Were you aware that Ms. Moore reported this August 4th incident and your handling of it to Rene Shepherd?
A. Am I aware now?
Q. Were you aware at the time?
A. I believe so.
Q. And -- and how did you become aware of that?
A. Rene had informed me of the incident and what happened, and I explained to her what happened...
Q. Okay. Do you -- so this is a -- second time Ms. Shepherd has contacted you about something regarding -- well, actually a third time -- regarding Jackie Moore, correct? In relation to the first, in relation to the ethics complaints, actually?
A. I was not told that was -
Q. Okay. So you weren't aware that that was Jackie if it was. Second time, the meeting with Mr. Borowick and Ms. Moore?
A. Which was the first time it was brought to my attention.
We agree with the trial court's assessment of this testimony; i.e., that it could not serve as a reliable basis to meet the prima facie threshold required to establish the element of knowledge of a protected activity as required by Brooks, supra. Moreover, we are persuaded -- as was the trial court -- that a reasonable inference of knowledge of Moore's ethics complaints did not arise from and was not established by Moore's claims that Kaur had become unpleasant and unhelpful to Moore following the ruling in July 2010. Not only does such an inference not arise but even if it could be construed to have arisen, it was soundly rebutted by consistent and credible affirmative evidence to the contrary presented by the defense.
Moore claims that the jury might have disbelieved Kaur's denial of the disputed fact that she knew that Moore had engaged in protected activity. However, her mere belief of the jury's possible inferences is insufficient to survive a motion for directed verdict. "[S]peculation and supposition are insufficient to justify a submission of a case to the jury . . . and the question should be taken from the jury when the evidence is so unsatisfactory as to require a resort to surmise and speculation." O'Bryan v. Cave, 202 S.W.3d 585 (Ky. 2006). Moore provided no direct evidence that Kaur knew who had filed the ethics complaints against her. She relied solely on conjecture and speculation. The trial court did not err by concluding that there was a complete lack of proof that Kaur had knowledge that Moore had engaged in any protected activity. Therefore, it was wholly appropriate for the trial court to grant Kaur's motion for directed verdict.
Next, Moore argues that the trial court erred by allowing the admission into evidence of the documents that Hawkins and Robinson prepared as part of their investigation into Moore's fraudulent sales referrals. Moore contends that the trial court erred by concluding that the statements included in the disputed documents were not hearsay. We disagree.
We review the admission of evidence for an abuse of discretion. Woodard v. Commonwealth, 147 S.W.3d 63 (Ky.2004). We evaluate "whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999)(internal citations omitted). Hearsay is not admissible in evidence. KRE 801(c) defines hearsay as an out-of-court statement offered in evidence to prove the truth of the matter asserted.
Kentucky Rules of Evidence. --------
The disputed exhibit consists of nine pages of interview summary notes that were prepared by U.S. Bank managers, Hawkins and Robinson, as they investigated Moore's potentially fraudulent conduct. At trial, Hawkins and Robinson each identified and authenticated Defendant's Exhibit 27. All of the persons listed on the exhibit are individuals whom Hawkins interviewed as part of her investigation and who reported that they had had no contact with Moore. While the notes reflect the substance of the customer interviews, the statements were not offered for the truth of the matters asserted. Instead, the information was presented to the jury to show the impression that it had upon Hawkins and Robinson; i.e., that regardless of their veracity, the statements caused Hawkins and Robinson to believe that Moore had falsified her claims for incentive pay and that she thus had violated clear company policy.
U.S. Bank was not required to show at trial that Moore had, in fact, engaged in incentive fraud. "As long as an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual by showing it was ultimately incorrect." Winchester v. City of Hopkinsville, 93 F. Supp.3d 752, 761 (W.D. Ky. 2015)(citation omitted). Moore's burden was to show that U.S. Bank's motive for her discharge was to retaliate against her for engaging in protected activity. In its defense, U.S. Bank offered evidence to show instead that its managers had become suspicious of Moore's referral claims; that they had undertaken an investigation; and that as a result, they had become convinced that Moore had engaged in fraud against the bank.
In this context, federal courts have consistently held that witness statements contained in an investigative report may be admitted to demonstrate the state of mind and motive of an employer's managers in terminating the plaintiff. See Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584 (6th Cir. 2007); Haughton v. Orchid Automation, 206 F. App'x 524 (6th Cir. 2006). The trial court did not err by concluding that the disputed exhibit did not contain hearsay; it did not err by admitting the documents into evidence.
We affirm the order of the Jefferson Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Paul Stewart Abney
Louisville, Kentucky BRIEF FOR APPELLEES: Robert B. Craig
Covington, Kentucky Doreen Canton
Cincinnati, Ohio