Opinion
Case No. 19-23122-Civ-COOKE/GOODMAN
2021-09-29
Ricardo T. SANZ, Plaintiff, v. WELLS FARGO BANK, N.A., Defendant.
Ria Nikki Chattergoon, RC Law Group, Hollywood, FL, for Plaintiff. Carmen Maria Rodriguez, Law Offices of Carmen Rodriguez, P.A., Derek H. Sparks, Zascha Blanco Abbott, Liebler, Gonzalez & Portuondo, Miami, FL, for Defendant.
Ria Nikki Chattergoon, RC Law Group, Hollywood, FL, for Plaintiff.
Carmen Maria Rodriguez, Law Offices of Carmen Rodriguez, P.A., Derek H. Sparks, Zascha Blanco Abbott, Liebler, Gonzalez & Portuondo, Miami, FL, for Defendant.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
MARCIA G. COOKE, United States District Judge
THIS MATTER is before the Court on Defendant's motion for summary judgment (ECF No. 64) and Plaintiff's cross–motion for summary judgment (ECF No. 69). For the reasons explained below, Defendant's motion for summary judgment is GRANTED and Plaintiff's motion for summary judgment is DENIED .
I. BACKGROUND
Plaintiff Richard Sanz ("Sanz"), who was born in 1958, was employed by Wells Fargo and its predecessors from 1987 until 2018. In 2009, after Wells Fargo acquired one of its predecessors, Sanz applied for the positions of regional private banking manager ("RPBM") and regional managing director ("RMD"). Sanz Dep. 29:16–31:1, ECF No. 75–1. Plaintiff was not hired for the RMD position. Id. He was, however, hired to fill the RPBM position, which he held until his termination in 2018. Id. Sanz was 50 years old when he was hired for the RPBM position. Jason Williams ("Williams"), who then became Sanz's direct supervisor until 2016, was hired to fill the RMD position. Id.
Sanz's base salary was approximately $205,094 for the RPBM position and he did not receive a pay raise for 9 years. See ECF No. 76–2. According to Wells Fargo, Sanz's salary was not increased because he was paid the highest salary possible for the RPBM position. Def.’s Mot. for Summ. J, Ex. 5. This assertion is disputed. According to Sanz, he was misinformed, because the maximum base salary an RPBM could earn between 2014–2018 was $210,000–$253,500. Pl.’s Statement ¶ 3.
Upon his assumption of the role of RPBM, Sanz reported to both Williams and Jayne Hill ("Hill"). Sanz Dep. 32:6–12, ECF No. 75–1. Williams was Sanz's immediate supervisor, and Hill was his dotted line supervisor. Id. ; Def.’s Statement ¶ 5; Pl.’s Statement ¶ 5. In 2016, Williams accepted a new position within Wells Fargo. Sanz, interested in applying for Williams’ now vacated position, discussed his potential application with Greg Bronstein ("Bronstein"), who encouraged him to apply for the RMD position. Sanz Dep. 46:16–47:8, ECF No. 75–1. Bronstein, the individual to whom the RMD position reported to, would make the final determination on who would fill the RMD position vacated by Williams. Id. Sanz applied but was not selected to advance to the final rounds of interviews. Although Bronstein could not recall why Sanz was not selected for the role, Sanz recalled Bronstein telling him that he, Sanz, "was sometimes not the first to jump on things." Sanz Dep. 57:5–14, ECF No. 75–1. Jeff Haines ("Haines") was eventually selected to fill this role. Haines consequently became Sanz's direct supervisor in October 2016. Pl.’s Statement ¶ 5.
After the 2009 acquisition, a "One Model on Model" ("OMOM") approach was implemented, in some fashion, to support Wells Fargo's private banking business. The general concept of the OMOM, although it may have been identified differently, has existed before 2016. Sanz Dep. 18:22–19:3, ECF No. 75–1. However, in 2016, Wells Fargo began to place more emphasis on making sure its leaders were being "more supportive of the model." Id. The idea behind the OMOM is creating tailored experiences for high–net–worth individuals, and whether an employee is properly executing the model depends on factors such as "sourced sales," "client fulfillment," "new client acquisition," "client discovery review," "strategic partnership," and "recruiting." Hill Dep. 27:7–28:18; 41:18–43:22, ECF No. 76–18.
In November 2016, Haines and Hill held a meeting with Sanz where the importance of being more aligned with the OMOM was discussed. There was another meeting in January 2017, where according to Sanz, he was given "more forceful commentary" about his implementation of the OMOM but was not provided with "specifics." Sanz Dep. 80:23–83:3, ECF No. 75–1. Sanz, although he understood the OMOM, did not understand why Haines and Hill felt his performance was lacking. Id. In May 2017, Sanz received his 2016 performance review, which contained comments from Haines. The review is divided into six sections: Top Line Metrics, Leadership, Client Experience, Partnerships and Collaboration, Team Member Experience, and Risk Management. See ECF No. 75–9. Sanz notes, in his review, that his team was at 98% plan for sourced sales; at 113% plan for total revenue; at 95% plan for client fulfillment; and at 86% plan for credit sales. Id. in response to Sanz's assessment of his team's performance, Haines wrote: "Richard highlighted the key financials above. We did not meet plan in 2016 at the office level. Specifically as it relates to credit, we were at 86% for new credit sales. Richard needs to focus on overall office sales, not just private banker sales results." Id. at 4.
The following are some of the other notes that were included in Sanz's review: "Richard appears to be going through the motions that were required by senior leadership and not embracing the model and tactical sales process"; "Richard did get more involved and engaged around CDR in 2016 from a review standpoint"; "Richard was involved in all partnerships as noted above. Richard should not be involved in RAM meetings going forward as discussed"; "no regretted attrition of PB team members in 2016. One PB, Greg Viejo, was promoted to WA Role." ECF No. 75–9 at 4–7.
Overall, Sanz was rated as "performing." See ECF No. 75–9 at 9. As stated in the "manager overall view of performance" section of the review, if the decision was solely up to Haines, Sanz would have been rated "improvement needed." However, Hill and Bronstein thought a rate of "performing" was more appropriate, and since Haines had been Sanz's manager for only the last quarter of 2016, he "agreed" to the "performing" rating. Upon receipt of his 2016 performance review, on or about May 1, 2017, Sanz objected in writing to its contents. See ECF No. 76–8. Haines acknowledged that he received Sanz's objections to his 2016 performance review on May 1, 2017. See id.
Shortly after Sanz's receipt of and objection to the 2016 review, Haines contacted human resources about placing Sanz on an informal performance improvement plan ("PIP"). After consulting with Nilma Patel, the representative from human resources who would assist Haines throughout the PIP process, Haines, with Hill's input, prepared an informal PIP for Sanz. The informal PIP was provided to Sanz on June 22, 2017 and was to be effective through September 1, 2017. See ECF No. 75-10. The PIP outlines ways in which Sanz's manager, Haines, concluded Sanz was not meeting expectations. The PIP also outlines what are described as action plans for each of the identified problem areas. See id.
After Sanz received the informal PIP, he contacted human resources to express his belief that he was being targeted because of his age. ECF No. 76–7 at 21. In the memorandum Sanz sent to human resources, he expressed his belief that his performance did not warrant the PIP or level of criticism he received. See id. Karen Lucherck ("Lucherck"), the human resources representative assigned to handle Sanz's complaint, contacted Sanz to discuss his complaint. Sanz Dep. 140:24–141:4, ECF No. 75–1. According to Lucherck, she asked Sanz why he felt he was being targeted because of his age, and he was unable to provide her with specifics she found satisfactory. Lucherck Dep. 33:14–19, ECF No. 76–7. Sanz told Lucherck that he had heard "comments from senior leaders in managers meetings regarding historians [who] do not accept change." Id. at 29:14–20, ECF No. 76–7. According to Sanz, Lucherck told him there was not much else she could do besides speak to his superiors about his complaints. Sanz Dep. 128:23–129:14 146:22–148:7, ECF No. 75–1. Sanz decided that he did not need Lucherck to do that since he could speak to Haines and Hill himself. Id. Sanz also testified that he had lost faith in the human resources process given Lucherck's response to his complaint. Id. Lucherck contacted Sanz again after his complaint. When she did not receive a response from Sanz, Lucherck closed Sanz's complaint on September 5, 2017. Sanz's complaint was not escalated to the team responsible for investigating such complaints because Lucherck did not believe Sanz had provided her with "sufficient detail to support his allegation." Lucherck Dep. 33:14–19, ECF No. 76–7.
Meanwhile, after the informal PIP had been issued and Sanz had spoken with Lucherck about his belief that he was being unlawfully discriminated against, Haines and Hill contacted Patel to discuss moving on to a formal PIP for Sanz. Patel Dep. 41:4–42:17, ECF No. 76–23. Patel, as part of her process when such requests are made, checked the system to see if there was an open case that could affect moving on to a formal PIP. Id. Patel saw that Sanz's had an active case in the system, and that it was assigned to Lucherck. Id. 43:14–44:16. Patel contacted Lucherck to discuss the open case and determine what bearing, if any, it could have on her work preparing a formal PIP with Haines and Hill. Id. Patel did not recall if Lucherck told her that Sanz's had made an allegation of age discrimination. Id. 44:22–45:8. According to Patel, however, an open case by an employee who is also the subject of a proposed disciplinary action would often be reason to caution against moving ahead with the disciplinary action. Id. 45:9–46:20. Patel testified that she would have told Haines and Hill to wait on moving forward with the formal PIP until the open case was closed. When asked, Lucherck denied speaking to Haines or Hill about Sanz's complaint. She testified that she did not speak to them because Sanz had told her he was not comfortable with her sharing his complaints with either of them; so, he did not grant her permission to speak with Haines or Hill. Lucherck Dep. 42:6–11; 50:4–15, ECF No. 76–7.
After Sanz's complaint was closed, Haines and Hill were able to move on with the formal PIP, which was issued to Sanz on October 31, 2017. The formal PIP notes that Sanz had not met expectations in two key areas since the informal PIP, and that further disciplinary action, including termination, would be taken if Sanz's performance continued to be found wanting. ECF No. 75–12. Sanz objected to the formal PIP. At some point in time, Sanz was presented with the option of moving to a private banker position, which he declined. The position offered to Sanz was one he supervised. In February 2018, after the time to comply with the formal PIP had lapsed, Sanz's employment was terminated. Sanz was replaced by Greg Rolle, who is nine years younger than Sanz.
On these events, Sanz brought this action against Wells Fargo in state court which was subsequently removed to this Court. Plaintiff's two-count Complaint alleges age discrimination and retaliation in violation of the Florida Civil Rights Act, Chapter 760 ("FCRA"). Both Parties now move this Court for summary judgment on Sanz's claims.
This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332. See ECF No. 1.
II. LEGAL STANDARD
Summary judgment is proper "when the pleadings, depositions, answers to interrogatories, and admission 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 judgment as a matter of law." Josendis v. Wall to Wall Residence Repairs, Inc. , 662 F.3d 1292, 1314 (11th Cir. 2011) ; see Fed. R. Civ. P. 56(a), (c). Thus, the existence of some factual disputes between the litigants will not defeat an otherwise properly supported summary judgment motion. A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could find for the non–moving party. In determining whether a genuine dispute of material fact exists, the court must view the evidence and all factual inferences drawn therefrom in the light most favorable to the non–moving party and must resolve any reasonable doubts in the non–movant's favor. The non–moving party, however, "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non–movant must go beyond the pleadings and "identify affirmative evidence" that creates a genuine dispute of material fact." Crawford–El v. Britton , 523 U.S. 574, 600, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). "[M]ere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion." Ellis v. England , 432 F.3d 1321, 1326 (11th Cir. 2005) (citing Bald Mountain Park, Ltd. v. Oliver , 863 F.2d 1560, 1563 (11th Cir. 1989) ).
III. DISCUSSION
Defendant argues that Sanz has failed to establish a prima facie case of age discrimination under the FCRA, and that even if Sanz has established a prima facie case, it remains entitled to judgment as a matter of law because Sanz was terminated for a non-discriminatory reason and he has failed to show that Wells Fargo's proffered reasons are pretextual. Sanz contends that he has established a prima facie case of age discrimination, and that he is in fact entitled to judgment as a matter of law on his claims. Wells Fargo also raises the same general arguments regarding Plaintiff's retaliation claim.
A. Plaintiff's Age Discrimination Claim
The FCRA prohibits an employer from discharging any individual because of that individual's age. Fla. Stat. § 760.10(1)(a). Because the FCRA is patterned after the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. , federal law interpreting the ADEA is instructive in cases brought under the FRCA. Ayala v. Lambert , 594 F. App'x 602, 603 (11th Cir. 2015). "A plaintiff may establish a claim of illegal age discrimination through either direct evidence or circumstantial evidence." Van Voorhis v. Hillsborough Cty. Bd. of Cty. Comm'rs , 512 F.3d 1296, 1300 (11th Cir. 2008) (citing Carter v. City of Miami , 870 F.2d 578, 581 (11th Cir. 1989) ). Direct evidence of discrimination is evidence which, if believed, proves the existence of a fact without inference or presumption. Carter , 870 F.2d at 581–82.
Where, as here, Plaintiff relies on circumstantial evidence to make his claim, the Court applies the burden-shifting framework established in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Lewis v. City of Union City, Ga. , 918 F.3d 1213, 1217 (11th Cir. 2019) (en banc). Under that framework, plaintiff bears the initial burden of establishing a prima facie case of discrimination. Id. Establishing a prima facie case of age discrimination under the McDonnell Douglas framework requires Plaintiff to show: (1) that he is a member of a protected class; (2) that he was qualified for the position he held; (3) that he was discharged from that position; and (4) that in terminating his employment, the employer treated him less favorably than a similarly situated individual outside of his protected class. See Smith v. Lockheed–Martin Corp. , 644 F.3d 1321, 1325 (11th Cir. 2011) ; See also Shell v. AT&T Corp. , 2021 U.S. App. LEXIS 26544, *19 (11th Cir. 2021); Stimson v. Stryker Sales Corp. , 835 F. App'x 993, 997 (11th Cir. 2020). Although Plaintiff raises the issue of comparators in the portion of the brief explaining why Defendant cannot show a legitimate, non–discriminatory reason, pursuant to Lewis , "[a] meaningful comparator analysis must be conducted at the prima facie stage of the McDonnell Douglas ’s burden-shifting framework and should not be moved to the pretext stage." Lewis , 918 F.3d at 1218. Accordingly, the Court discusses the comparator analysis as part of Plaintiff's prima facie case. See Stimson , 835 F. App'x at 997 (quoting Lewis , 918 F.3d at 1217 ).
Some cases state that establishing a prima facie case of age discrimination requires Plaintiff to show that: (1) he was a member of a protected group; (2) he was subject to an adverse employment action; (3) a substantially younger person filled the position from which he was discharged; and (4) he was qualified to do the job from which he was discharged. See Reed v. Forney Indus. , 800 F. App'x 782, 785 (11th Cir. 2020). These are the elements both parties tackle on Plaintiff's prima facie case. The Court, however, notes that even if Sanz has established a prima facie case under this framework, Wells Fargo remains entitled to summary judgment because Plaintiff has not shown that the proffered legitimate, non-discriminatory reasons were pretextual.
I. Sanz has not met his burden of establishing a prima facie case of age discrimination.
There is no dispute that Sanz is a member of a protected class, or that he was discharged from the RPBM position. Wells Fargo does, however, contest that Sanz has not, and cannot, establish that he was qualified to do the job from which he was discharged. Wells Fargo also argues that Plaintiff's proffered comparators are not similarly situated. Def.’s Opp. to Pl.’s Mot. for Summ. J 15. As to his qualifications for the RPBM position, Plaintiff mainly argues that his ability to perform the job of RPBM can and should be inferred from his holding the position for 9 years before he was terminated. Indeed, "where a plaintiff has held a position for a significant period of time, qualification for that position sufficient to satisfy the test of a prima facie case can be inferred." Damon v. Fleming Supermarkets of Fla., Inc. , 196 F.3d 1354, 1360 (11th Cir. 1999) ("[P]laintiffs, who have been discharged from a previously held position [ ] do not need to satisfy the McDonnell Douglas prong requiring proof of qualification."). Wells Fargo argues that such an inference is inappropriate here because the required qualifications for Sanz's position changed two years before his termination. In support of this assertion, Wells Fargo contends that in 2016 Wells Fargo began to require all its offices to follow the OMOM and Sanz's performance once the OMOM was being more rigorously enforced fell short of what was required. This argument is simply another way of insisting that Sanz was underperforming. However, "allegations of poor performance against plaintiffs discharged from long-held positions may be properly considered, only after a prima facie case has been established, when a court evaluates the pretextual nature of an employer's proffered nondiscriminatory reasons for termination." Damon , 196 F.3d at 1360. Accordingly, the Court finds that Sanz's qualification can be inferred because he had held the RPBM position for at least 9 years before he was discharged.
In any case, Sanz has not established a prima facie case of age discrimination because he has not shown that he was treated less favorably than a similarly situated individual outside of his protected class. See Lewis , 918 F.3d at 1217. "[A] plaintiff proceeding under McDonnell Douglas must show that she and her comparators are similarly situated in all material respects." Lewis , 918 F.3d at 1226. "[A] valid comparison will turn not on formal labels, but rather on substantive likenesses." Id. at 1228. "Ordinarily, a similarly situated comparator will have engaged in the same basic misconduct as the plaintiff, been under the same supervisor, shared the plaintiff's disciplinary and employment history, and been subject to the same employment policy." Stimson , 835 F. App'x at 997. In short, "a plaintiff and her comparators must be sufficiently similar, in an objective sense, that they cannot reasonably be distinguished." Id. (citations omitted).
Here, Sanz argues that "two of the youngest RPBMs," John Whitner ("Whitner") and Todd Barfield ("Barfield"), were not disciplined like Sanz was despite having "significantly lower metrics" than Sanz. This is insufficient to render Whitner and Barfield similarly situated comparators. Although Sanz and Whitner shared the same dotted line supervisor, Jayne Hill, they had different direct managers. Crucial to Sanz's disciplinary history was his direct manager's dissatisfaction with his performance. In addition, Hill testified that she also spoke to Whitner about his 2016 performance, and on his own accord, he developed and proposed a plan to address the identified areas of concern. There is also no cited record evidence that Whitner failed to successfully address his shortcomings.
As to Barfield, Plaintiff argues that in addition to having low 2016 numbers, he was not only not reprimanded, but was also promoted to a larger market. According to Hill, however, Barfield's performance before 2015 would not have warranted disciplinary action, and as for 2016, Barfield was reviewed with the understanding that he did not have a full year in both the positions he occupied before and after his promotion. These are also reflected in Barfield's 2016 performance reviews. See ECF No. 76–21. Also, of note, Barfield's direct manager, whose notes in Barfield's 2016 performance reviews were effusive, was someone other than Haines who believed Barfield's performance to be adequate. In short, Sanz has not shown that he and his comparators are similarly situated in all material respects, such that they cannot be cannot reasonably be distinguished. Consequently, Sanz has not met his burden of establishing a prima facie case of age discrimination.
Even if Plaintiff had met his burden to establish a prima facie case, Wells Fargo has met its burden of articulating a legitimate, non-discriminatory reason for discharging Sanz.
II. Wells-Fargo has articulated a legitimate, non–discriminatory reason for discharging Sanz.
If plaintiff establishes a prima facie case, "the burden of production shifts to the employer to articulate a legitimate, non–discriminatory reason for the challenged employment action." Mazzeo v. Color Resolutions Int'l, LLC , 746 F.3d 1264, 1270 (11th Cir. 2014). A legitimate, non-discriminatory reason is one that might motivate a reasonable employer. Chapman v. AI Transp. , 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).
According to Wells Fargo, Sanz was terminated because his "sales to goal and credit sales performance and overall performance was declining in the years leading up to his termination." Def.’s Mot. for Summ. J 9–10. As set forth in the 2016 review, Wells Fargo further notes, Sanz's "new credit sales were under plan at 86% and he needed to focus on credit sales across all lines of business and indicated he was not consistently executing the Model or embracing the tactical sales process." Id. at 10. See also ECF No. 75–9. By mid-2017, the credit sales were at 55%, which Sanz's supervisors considered unacceptable. Def.’s Mot. for Summ. J 11. Wells Fargo also states that there were "concerns" about "Plaintiff's leadership style in that he applied a one size fits all approach and did not change how he led his team based on differing situations." Def.’s Mot. for Summ. J 10. These are the reasons, Wells Fargo argues, why Sanz was placed on performance improvement plans and then eventually discharged. Haines, Hill, and Bronstein, all three individuals involved in the 2016 review and the performance improvement plans in some fashion, provided deposition testimony consistent with the proffered reasons. See Bronstein Dep. 22:4–28:5; Hill Dep. 60:17–71:1, 95:2–25,125:19–128:14, 136:6–138:23; 189:2–193:1; Haines Dep. 126:4–133:22; 145:4–151:6. An employer's belief that an employee is underperforming is a legitimate, non–discriminatory reason for discharge. Consequently, the burden of production returns to Plaintiff to show that the provided reasons are pretextual.
III. Sanz has failed to show that Wells-Fargo's proffered legitimate, non–discriminatory were pretextual.
Once plaintiff successfully establishes a prima facie case of age discrimination, and the defendant articulates a "legitimate, nondiscriminatory reason for the challenged employment action," the plaintiff must then establish pretext by proffering evidence "sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision." Chapman , 229 F.3d at 1024 (internal quotation marks omitted). The inquiry into pretext centers on the employer's beliefs, not the employee's beliefs or "reality as it exists outside of the decision maker's head." Alvarez v. Royal Atl. Developers, Inc. , 610 F.3d 1253, 1266 (11th Cir. 2010).
To show pretext, a plaintiff must show both that an employer's reasons are false " and that discrimination was the real reason." Tsavaris v. Savannah Law Sch., LLC , 847 F. App'x 634, 642 (11th Cir. 2021). "The heart of the pretext inquiry is not whether the employee agrees with the reasons that the employer gives for the discharge, but whether the employer really was motivated by those reasons." Lewis v. Blue Bird Corp. , 835 F. App'x 526, 530 (11th Cir. 2020). If the employer proffers more than one legitimate, non–discriminatory reason, the plaintiff must rebut each of the reasons to survive a motion for summary judgment. Chapman , 229 F.3d at 1037. One may demonstrate pretext by revealing "such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions" in the employer's proffered reasons for its actions that a reasonable factfinder could find them "unworthy of credence." Springer v. Convergys Customer Mgmt. Grp., Inc. , 509 F.3d 1344, 1348 (11th Cir. 2007) (quoting Cooper v. S. Co. , 390 F.3d 695, 725 (11th Cir. 2004) ). "An employer may terminate an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason." Herron-Williams v. Ala. State Univ. , 805 F. App'x 622, 631 (11th Cir. 2020) (quoting Flowers v. Troup Cty., Ga., Sch. Dist. , 803 F.3d 1327, 1338 (11th Cir. 2015) ).
Here, Sanz argues that he can establish pretext by showing that Wells Fargo's proffered reasons are false. Pl.’s Opp. to Def.’s Mot. for Summ. J 6. The reasons are false, Sanz argues, because: Sanz was never rated below "meets expectation" or "performing" between 2009 and 2016; Sanz outperformed most of the other RPBMs in his region in 2016; Haines "created a plan to manage Sanz out and memorialized" this plan; Sanz, the oldest RPBM in his region at that time, was falsely told that he had "maxed out the cap on his salary." Id.
While it may be true that Sanz was outperforming, or on par with, the other RPMBs in his region, or that he believed he was effectively executing the model, "the inquiry into pretext centers on the employer's beliefs, not the employee's beliefs or reality as it exists outside of the decision maker's head." Alvarez , 610 F.3d at 1266. Here, Haines and Hill testified that, although Sanz had his strengths, they believed his performance was on the decline over a period of time in areas they considered important, and these were noted in the 2016 review and both performance improvement plans. "The question to be resolved is not the wisdom or accuracy of [the] conclusion that [Sanz's] performance was unsatisfactory, or whether the decision to fire [him] was prudent or fair. Instead, [the] sole concern is whether unlawful discriminatory animus motivated the decision." Id. Here, Sanz has cited no evidence to support an inference that unlawful discriminatory animus motivated the decision to discharge him.
Plaintiff raises some arguments seemingly in support of the conclusion that discriminatory animus motivated the decision to discharge him. In a footnote, Plaintiff states that the only other RPBM who was demoted is an individual named Larry Katz. According to Plaintiff, Katz was the second oldest RPBM in the "Southeast Region." Pl.’s Opp. to Def.’s Mot. for Summ. J 13. There is, however, no evidence to suggest that Katz's position change may have been motivated by age. Moreover, Hill testified that Larry Katz did not have any similar relevant performance issues. Hill Dep. 211:12–212:3, ECF No. 76–18. According to Hill, there were management issues with Katz, and Katz decided that he no longer wanted to hold a management role and was consequently offered the role private bank advisor. Hill Dep. 211:12–212:3, ECF No. 76–18. Sanz has cited no evidence from which one could reasonably infer that this explanation is false, or that Katz's age played a role in the change in his titles and responsibilities.
Sanz also argues that he was paid a static salary for his job as RPBM the entire time he held this position, and that he was incorrectly told he had reached his career position limit. P.’s Mot. for Summ. J 4; Pl.’s Opp. to Def.’s Mot. for Summ. J 14. Although Defendant insists that Sanz was indeed at his salary cap at all relevant times, there is record evidence that, at some point in time, the salary cap was indeed higher than what Sanz was paid. A representative from Wells Fargo provided deposition testimony confirming that the maximum salary for the RPBM position was higher in some instances than what Sanz was paid at least from 2014 to 2018. There is no support for the inference or conclusion that Sanz was not receiving the maximum salary possible before 2014. There is also no support for the inference or conclusion that Sanz was indeed making the highest base salary possible before 2014. Plaintiff appears to be suggesting that an inference can be drawn that the lack of a pay raise, assuming one was possible, was due to age discrimination. But Plaintiff has not provided a connection between the lack of a pay rise and Sanz's age. For example, Plaintiff does not argue or cite record evidence that suggests that younger RPBMs were being paid more than Wells Fargo represented to Sanz as the maximum salary range. Although it is unclear why Sanz did not receive a pay raise for 9 years, "it is not objectively reasonable to presume that, simply because an employee has been subjected to seemingly inexplicable negative treatment, the true reason for the treatment must be unlawful discrimination." Herron-Williams , 805 F. App'x at 632.
Plaintiff's Motion and opposition to Defendant's Motion also discuss the contents of a memorandum that was created in December 2016. In an email entitled "notes from my coach" sent from Haines to Hill on December 20, 2016, someone's view of Sanz's performance is notated. The memorandum purports to be notes from a coaching session Haines had with his business coach, Gregory Rodgers. Although Rodgers had a meeting scheduled on his calendar for December 2016, he could not recall if this meeting took place because his clients often canceled at the last minute. In any event, the memorandum acknowledges that Sanz was "meeting or exceeding his most critical objectives," but notes that there were "quantitative and qualitative measures" he was not meeting. ECF No. 76–8 at 97. The memorandum also describes Sanz as being a "cancer and toxic to leadership team and greater team performance." Id. There is also a note in the memorandum about Hill's ultimate responsibility to "manage Sanz out or up." Id.
Not unlike the famous epic, Beowulf , no one knows who prepared this December 2016 memorandum. Haines, who sent the notes to Hill, denies preparing the document, but believes Rodgers prepared or would have prepared it. Haines Dep. 153:9–154:22, ECF No. 76–8. Rodgers, on the other hand, claims to have no recollection of preparing the notes; although he testified that he often memorialized his meetings with clients and would send them to the clients if requested. Rodgers Dep. 11:17–12:15; 33:3–4, ECF No. 76–17. Rodgers also insisted that he would not have discussed "managing" an employee because that would undoubtedly exceed the scope of his engagement. Rodgers Dep. 34:12–36:5; 39:12–40:20, ECF No. 76–17. Even if Haines mentioned this topic to him, Rodgers further testified, he would have ended the conversation. Rodgers Dep. 39:12–40:20, ECF No. 76–17. Plaintiff argues that this memorandum was the inception of the concocted plan to terminate Sanz. Setting aside the issue of the author of the memorandum and what may or may not have been discussed at the coaching session that may or may not have taken place, even if the Court accepted the representation that this is proof of a concocted plan to fire Sanz, there is simply no evidence that suggests that his age was a factor at all in any concocted termination plan. The use of the phrase "manage out" does not, by itself, suggest that age was a contributing factor in firing Sanz. Moreover, the memorandum acknowledges Sanz's strengths and includes the option of managing him "up", not just "out." In short, Plaintiff has not drawn a meaningful connection between Sanz's age and the alleged plan to discharge Sanz.
The evidence here, viewed in the light most favorable to Sanz, indicates, at most, that Sanz may have been treated unfairly. The Court is, however, "not in the business of judging whether employment decisions are prudent or fair – rather, the court's sole concern is whether unlawful discriminatory animus motivates a challenged employment decision." Rojas v. Florida , 285 F.3d 1339, 1342 (11th Cir. 2002). And here, Sanz has provided neither direct evidence of discrimination nor "a convincing mosaic of circumstantial evidence that warrants an inference of intentional discrimination." Tsavaris , 847 F. App'x at 637. Accordingly, summary judgment in Wells Fargo's favor is appropriate as to the age discrimination claim.
B. Plaintiff's Retaliation Claim
Both parties contend that they are entitled to summary judgment on Sanz's retaliation claim. Wells Fargo, on the grounds that Sanz has not set out a prima facie case of retaliation, and that to the extent he has, he cannot rebut the proffered non-discriminatory reasons for his termination. Sanz, on the grounds that he has set forth his prima facie case and Wells Fargo cannot articulate a non-discriminatory reason for firing him. Plaintiff's retaliation claims are also subject to the McDonell burden shifting standard. See Herron-Williams , 805 F. App'x at 631.
To establish a prima facie case of retaliation, Sanz needs to show that he (1) "was engaged in statutorily protected activity;" (2) "suffered an adverse employment action;" and (3) "a causal link exists between the protected activity and the adverse employment action." Furcron v. Mail Ctrs. Plus, LLC , 843 F.3d 1295, 1310 (11th Cir. 2016). There is no dispute that Sanz suffered an adverse employment action. The Parties, however, dispute whether he has established the other two elements. "For a complaint to be considered a protected activity [ ], a plaintiff–employee must show that she had a good faith, reasonable belief that the employer was engaged in unlawful employment practices." Herron-Williams , 805 F. App'x at 631 (internal citation omitted). "This includes both a subjective prong—that the plaintiff in good faith believed the employer was engaged in an unlawful employment practice—and an objective prong—that her belief was objectively reasonable." Id.
There is a genuine issue of material fact regarding whether Sanz had a good faith belief that he was being discriminated against based on his age. Lucherck testified that Sanz told her that he had heard "comments from senior leaders in managers meetings regarding historians [who] do not accept change." Lucherck Dep. 29:14–20, ECF No. 76–7. If Sanz did in fact hear such comments, a reasonable trier of fact could conclude that he could have reasonably believed that he was considered one of the historians who could not accept change. However, even if Sanz believed in good faith that he was being discriminated against on the basis of age, such a belief was not objectively reasonable. As reflected in the memorandum, Sanz believed that he was being unlawfully discriminated against because he felt his performance did not warrant the level of disciplinary actions he was being subjected to. Also, the only mention of age discrimination in his memorandum was his note that he was "writing the memo to escalate what [he] believe[d] to be blatant case of age discrimination against [him]." ECF No. 76–7.
Even if Sanz's belief was objectively and subjectively reasonable, his retaliation claim fails because he is unable to show that Wells Fargo's reasons for firing him were pretextual.
As to the third element, a plaintiff can establish a causal connection by showing that the employer knew of his statutorily protected activity and there was a close temporal proximity between this awareness and the adverse employment action. See Higdon v. Jackson , 393 F.3d 1211, 1220 (11th Cir. 2004). Although Hill and Haines aver that they were not aware that Sanz had made complaints of discrimination, see ECF Nos. 75-15 & 75-14, Patel testified that she would have mentioned the existence of an open complaint to Haines and Hill because they would not have been able to move forward with the formal PIP until that complaint was resolved. There is therefore, at the very least, a triable of issue of fact as to whether Haines and Hill knew that Sanz had made complaints of age discrimination.
Plaintiff also moved to strike the declarations that were submitted with Defendant's reply in support of its motion for summary judgment (ECF No. 93). This motion is denied. See Polite v. Dougherty Cnty. Sch. Syst. , 314 F. App'x 180, 184 n.7 (11th Cir. 2008).
In any event, even though there is a genuine issue of material fact as to whether Sanz has established one of the elements of his retaliation claim, Wells Fargo remains entitled to summary judgment on the retaliation claim because, as discussed above, Sanz has not shown that the proffered reasons for his discharge were pretextual. See Furcron , 843 F.3d at 1310.
C. Plaintiff's Motion for Summary Judgment on Affirmative Defenses
Plaintiff also moved for summary judgment on the affirmative defenses asserted by Defendant. Since the Court has already found in favour of Defendant on the claims asserted, Defendant's affirmative defenses are now moot. IV. CONCLUSION
For the reasons explained above, it is ORDERED , and ADJUDGED that Defendant's Motion for Summary Judgment (ECF No. 64) is GRANTED , and Plaintiff's Motion for Summary Judgment (ECF No. 69) is DENIED . A final Judgment will be entered separately.
DONE and ORDERED in Chambers, in Miami, Florida, this 29th day of September 2021.