Jones v. Wells Fargo

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

KIM N. JONES CIVIL ACTION

v. NO. 17-8712

WELLS FARGO BANK, N.A. SECTION "F"

ORDER AND REASONS

Before the Court is Wells Fargo Bank, N.A.’s motion for

summary judgment. For the reasons that follow, the motion is

GRANTED.

Background

This Title VII employment discrimination and state law

whistleblower lawsuit arises from a 58-year-old African American

woman’s claim that Wells Fargo wrongfully terminated her after 16

months as a home mortgage consultant. Kim Jones alleges that Wells

Fargo discriminated against her because of her age (58), her race

(African American), and her sex (female) in violation of state and

federal antidiscrimination law. In addition to asserting wrongful

termination, Jones alleges that she was mistreated because of these

protected categories of age, race, and sex. She also alleges state

law claims in which she seeks to recover for wrongful termination

as a whistleblower, to recover unpaid commissions, and for

negligence.

1

From August 14, 2015 until her termination on December 10,

2016, Kim Jones worked for Wells Fargo as a mortgage loan officer.

During her employment, she failed to meet the minimum production

standards Wells Fargo required of mortgage loan officers. In

September 2016, Wells Fargo placed Jones on a performance

improvement plan, which set forth specific requirements she had to

meet to remain employed. She failed to meet them. In December

2016, her employment was terminated.

Kim Jones was hired on August 13, 2015 to work as a home

mortgage consultant for Wells Fargo Bank at its Metairie, Louisiana

location. At that time, Maurice Williams, an African-American

male who is about five years older than Jones, managed Wells

Fargo’s Metairie branch. Williams was responsible for managing

the day to day operations of the Metairie branch; hiring and

training home mortgage consultants; and ensuring that the branch

met Wells Fargo’s market-based production goals. Williams

interviewed, hired, and supervised Jones. And, he eventually

participated in the collective decision to fire her. Williams

reported to Area Manager Stephen Cook and Regional Manager Jamie

Klinnert; collectively, the three generally made hiring and firing

decisions regarding home mortgage consultants like Jones.

2

As a loan officer or “home mortgage consultant,” Jones was

responsible for originating residential mortgage loans for Wells

Fargo. All mortgage consultants must meet minimum production

requirements. Jones signed the Minimum Production Threshold

Acknowledgment, which provided that her employment could be

terminated if she did not meet the minimum requirements. Jones

also signed the Minimum Production Volume Standards Application

and Funded agreements, which set forth the production requirements

for home mortgage consultants, requiring that they fund at least

$5.4 million in loan volume after being in the role for 12 months.

During her first three months working as a home mortgage

consultant, Jones was paid an hourly rate. After that interim

period, Jones received an hourly draw as an advance on her

commissions or incentive payments, which were determined based on

the loans she closed. If she did not earn enough commission to

cover her hourly draw, she would carry a deficit, also known as

being “in the hole.”1

1 Home mortgage consultants are paid an hourly draw against their

commissions. If a home mortgage consultant’s commission earnings

in a month fail to exceed their hourly pay, then their hourly pay

deficit is carried over to the next month. Carrying a deficit is

sometimes referred to as being “in the hole.” The deficit will

carry over until the home mortgage consultant earns sufficient

commissions to eliminate the deficit. A home mortgage consultant

who has a deficit when her employment terminates, however, is not

required to repay the hourly earnings deficit amount.

3

Jones now says that she disagreed with or took issue with

some Wells Fargo processes. For example, as part of the loan

origination process, Jones alleges that when a loan application

was delayed, Williams on behalf of Wells Fargo ordered her to

contact her clients and have them pay a rate lock fee to preserve

their original, lower interest rate. Jones says that the delays

were not her customers fault, but Williams nevertheless threatened

to call customers if she refused. Within the first three months

of her employment, as part of a federal audit, Jones alleges that

she took issue with her manager again; she says she reported that

Williams regularly followed and enforced practices that conflicted

with the Equal Credit Opportunity Act. Williams, Jones alleges,

supported withholding less desirable loan applications from review

and encouraged review by loan officers who were not trained to

qualify applicants in order to increase the number of approved

applications -- a figure Jones suggests is directly tied to

Williams’ bonus and compensation. She contends that Williams

reprimanded her for “throwing him under the bus.”

Jones struggled to meet the home mortgage consultants’

minimum production requirements. She first became aware that she

was “in the hole” in April 2016. By the end of August 2016, Jones

had failed to fund the requisite $5.4 million in loan volume (or

36 purchase units) in the previous 12 months, nor had she funded

4

$1.35 million in the previous three months; she also had a negative

carryover commission balance of $5,129.37. As a result, in

September 2016, Williams issued Jones a performance improvement

plan (PIP), effective until November 30, 2016. The plan mandated

that Jones fund $450,000 in loans each month between September and

November 2016.2 Jones failed to do so.

On December 6, 2016, Williams emailed Human Resources to

request a meeting to discuss terminating Jones’s employment

because she had not met the production requirements of the

performance improvement plan. The next day, Williams and Cook

spoke with Human Resources Consultant Melissa Pritchard. During

the call, Williams stated that Jones had loans in her pipeline,

but that she was not timely closing the loans. Williams stated

that Jones was resistant to his coaching and failed to follow his

instructions for structuring and submitting loans. Cook stated

that the pipeline was meaningless if the loans did not close, and

2 Supervisors had access to more leads than non-supervisors.

Williams distributed leads for potential customers to home

mortgage consultants including Jones. Williams provided Jones

with leads weekly; upon request, he gave Jones more leads. In

September 2016, Williams gave Jones access to the leads to which

Williams had access. And in October 2016, Jones learned how to

use the lead tracker system, which allowed Jones to find her own

leads. Jones increased her originations and felt that she had a

sufficient number of leads by October 2016.

5

that Jones was not adhering to Wells Fargo’s application standards

and should not have accepted some of the loan applications.

Jones was out of the office on Friday, December 9, 2016.3

Williams emailed her and told her that she must report to the

office to attend a meeting that afternoon at 4:00 p.m. Wondering

why she had to report to the office to attend a meeting on her day

off, Jones contacted Human Resources; Senior Employee Relations

Consultant Glenda Longren took the call. Jones told Longren that

Williams had told her to report to the office and that she (Jones)

believed Williams had done something “fraudulent” with a loan.4

Jones also said she realized that her vacation days had been

cancelled in the system. Jones acknowledged that she was on a

3 Jones testified that her “day off was Friday” but that she was

working from home, working on leads.

4 Jones testified that, in the days leading up to her termination,

there appeared to be some irregularities with a loan she was

handling: the signatures on the loan contract were “scribbled,”

which led the underwriter to request a new contract (but upper

management ended up approving the loan because the underwriter was

on vacation), and Williams had told her that the person who signed

the contract was actually the son of the seller. Jones testified

that she did not know the details. She had also received an

automatic alert that the loan she entered might be a “flip”

transaction. Jones believed the transaction violated Wells Fargo’s

lending guidelines because a “flip” transaction might not be worth

the value of its sale price. (Nevertheless, Jones also testified

that it was not illegal for Wells Fargo to mortgage flipped

property). Jones says she had notified Williams of the flip

transaction alert, and Williams had led her to believe that the

loan would be denied, but then the loan was actually cleared to

close the next day (a day or two before she was fired).

6

performance improvement plan and that her sales were down, and she

feared that she would be fired once she reported to the office.

That afternoon, Williams notified Jones that her employment

was being terminated because she was “in the hole.” At that time,

Jones had a negative carryover commission balance of more than

$5,000. Jones recalled that Williams told her that she was being

terminated because she was either “$9,000” or “$5,000” “in the

hole” but Jones believed that she was only $2,300 in the hole; she

did not know how many loans she had closed in the last three months

before her termination. Jones asked Williams to call Cook, who

told Jones that she (Jones) was eligible for rehire and she could

always come back. When asked about commissions for loans that had

yet to close, Jones alleges she was told that -- consistent with

company policy, if the loans closed within 30 days of her

termination -- she would receive payment.

Jones submitted a Dispute Resolution Request form on January

3, 2017 and reported that she was unfairly fired after she informed

her manager of concerns regarding a purchase agreement related to

the borrower’s signature and suspicions that it was a “flip”

transaction.5 Notably, Wells Fargo investigated Jones’s claims

5 In completing the form, Jones wrote: “Unfair termination –

incorrect compensation – retaliation from mgr. –

7

regarding the irregularities of the loan transaction, as well as

Jones’s termination from employment. Ultimately, Wells Fargo

determined that neither of Jones’s complaints had merit.

Milton Dejesus investigated Jones’s claims regarding the loan

transaction she reported to Longren on December 9. Jones had

reported that there may have been a “flip” transaction and that a

contract was altered.6 A “flip” purchase is one in which the buyer

buys a home with the intention of selling the home shortly after

buying it. Dejesus interviewed Williams, the loan processor, as

well as the underwriter who worked on the transaction. Dejesus

determined that Wells Fargo’s escalation process was properly

followed. Dejesus concluded that the purchase in question was not

a “flip” transaction and that the contract had not been not

altered. Dejesus wrote these additional findings:

The consistent feedback and evidence points to a culture

conflict between Kim [Jones] and Wells Fargo, in that

she had her own unique perspective of how things should

operate... There seems to be a consistent theme between

her files as far as how she failed to follow [Wells

Fargo] process or overrule established policy.

miscalculation/misrepresentation of sales practices – favoritism

and unprofessional work environment.”

6 At that time, she did not report any concerns regarding a rate

lock extension fee such as that described in her amended complaint

in this case.

8

Wells Fargo’s Human Resources department investigated Jones’s

allegations regarding her termination. Amy Blair, Employee

Relations Consultant, interviewed Williams. Williams told Blair

that Jones was getting, but not closing, loans; and that she was

not following Wells Fargo’s processes. Williams told Blair that

customers were upset because they believed their loans were being

processed, but Jones had not yet entered them into the system.

Williams also explained that after he spoke with Human Resources

and Cook on December 7, 2016, he reviewed the loans in Jones’s

pipeline and determined that most would not close by the end of

the month because too many steps were still incomplete.7

Ultimately, Wells Fargo’s Human Resources department independently

reviewed Jones’s pending loans and determined that Jones was not

owed any additional commission, and that there were no unnecessary

closing delays.8

7 Jones stated that she had not been paid for each loan she had

closed. But Jones has not identified any loans that closed within

30 days of her termination for which she failed to receive payment.

8 Wells Fargo’s compensation plan provided that terminated

employees like Jones were entitled to receive commission on loans

originated by the outgoing employee that closed within 30 days of

the employee’s termination. Wells Fargo’s Human Resources

department requested an independent review of Jones’s pending

loans and determined that Jones had been paid on all loans she had

originated and that had closed within 30 days of her termination.

9

In mid-May 2017, Jones filed with the Equal Employment

Opportunity Commission a charge of discrimination against Wells

Fargo. On the form, she indicated (by checking boxes) that she

was discriminated against on December 9, 20169 based on “race” and

“sex;” in addition to checking the boxes indicating “race” and

“sex” discrimination, Jones checked boxes for “retaliation” and

“other: Equal Pay.” As to the factual “particulars” of the alleged

discrimination, Jones wrote:

I began my employment with Wells Fargo on August 17,

2015 most recently as Home Mortgage Consultant earning

$12.00 per hour. On December 7, 2016, I had a meeting

with Branch Manager, Maurice Williams, to discuss the

goals for 2017. There was no mention of poor performance

plus I was ranked as #2 salesperson. On December 9,

2016, I was terminated by Branch manager, Maurice

Williams; Area Manager, Steven Cook; and District

Manager, Jamie Kleinart. The company employs over than

[sic] 15 persons.

According to the company, I was discharged for not

meeting minimum production standard sales.

I believe I have been discriminated against because of

my sex, Female; race, Black; and retaliated against in

violation of Title VII of the Civil Rights Act of 1964,

as amended; and my wages in violation of the Equal Pay

Act.

9 Jones indicated that December 9 was both the “earliest” and

“latest” “date(s) [on which] discrimination took place.” Jones

did not check the box indicating “continuing action.”

10

Other than this allegation in this EEOC Charge, Wells Fargo did

not receive an amended charge or any other documents describing or

explaining the factual basis for Jones’s claim.

On September 6, 2017, Ms. Jones, pro se, sued Wells Fargo,

Stephen Cook, Jamie Klinnert (improperly named as Jaime

Kleinhart), and Maurice Williams, alleging that she was fired

because of her whistleblowing, refusing to participate in illegal

activity, engaging in protected activity, and because of race,

sex, and age discrimination. After retaining counsel, Ms. Jones

amended her complaint alleging that she was discriminated against

based on her age, sex, and race; that Wells Fargo retaliated

against her because she reported and refused to participate in

mortgage fraud; and that Wells Fargo failed to pay her timely

earnings and commissions. Specifically, Jones alleges causes of

action in violation of various federal laws including: (1) The Age

Discrimination in Employment Act, 29 U.S.C. § 621;10 (2) Title VII

disparate treatment based on gender;11 and (3) Title VII disparate

10 Jones alleges she was discriminated against on the basis of age

and that younger similarly situated employees with similar

production numbers were not terminated.

11 Jones alleges Williams treated her differently than the rest of

the team by not inviting her to team lunches, not celebrating

Jones’s birthday, and yelling and berating Jones in front of other

employees.

11

treatment based on race.12 Jones also alleges the same conduct she

experienced while employed at Wells Fargo violates various

Louisiana state laws including: (a) the Louisiana Employment

Discrimination Law, La.R.S. 23:301, intentional discrimination on

the basis of age, gender, and race; (b) retaliation against a

whistleblower under La.R.S. 23:967;13 (c) failure to timely pay

commissions under La.R.S. 23:631 and La.R.S. 51:443; and (d)

negligent hiring, retention, and supervision under La. C.C. art.

2315.14 The plaintiff’s claims against Maurice Williams, Stephen

Cook, and Jamie Klinnert were dismissed without prejudice for

failure to prosecute. Wells Fargo now moves for summary relief.

I.

Federal Rule of Civil Procedure 56 instructs that summary

judgment is proper if the record discloses no genuine dispute as

to any material fact such that the moving party is entitled to

12 Jones contends she suffered many instances of her loans being

unduly delayed, miscalculated, and cancelled along with refusal to

refer business to her and customer complaints spurred by the

intentional mishandling of Jones’s files by loan processors. Jones

alleges that the racial discrimination was reported to the branch

manager, Williams, but he shrugged off the complaints. Wells Fargo

allegedly created new positions for three Caucasian loan officers,

who had poor production performance, instead of terminating them.

13 Jones alleges that Wells Fargo terminated her in retaliation

when she reported and refused to participate in mortgage fraud and

the Rate Lock Extension Fee Scheme.

14 Jones submits that Wells Fargo failed to fire or discipline

Williams or other supervisors after it knew of the discrimination

and retaliation.

12

judgment as a matter of law. No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of

fact to find for the non-moving party. See Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine

dispute of fact exists only “if the evidence is such that a

reasonable jury could return a verdict for the non-moving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The mere argued existence of a factual dispute does not defeat

an otherwise properly supported motion. See id. In this regard,

the non-moving party must do more than simply deny the allegations

raised by the moving party. See Donaghey v. Ocean Drilling &

Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he

must come forward with competent evidence, such as affidavits or

depositions, to buttress his claims. Id. Hearsay evidence and

unsworn documents that cannot be presented in a form that would be

admissible in evidence at trial do not qualify as competent

opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819

F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2). “[T]he

nonmoving party cannot defeat summary judgment with conclusory

allegations, unsubstantiated assertions, or only a scintilla of

evidence.” Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir.

2007)(internal quotation marks and citation omitted). Ultimately,

“[i]f the evidence is merely colorable ... or is not significantly

13

probative,” summary judgment is appropriate. Id. at 249 (citations

omitted); King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994)

(“Unauthenticated documents are improper as summary judgment

evidence.”).

Summary judgment is also proper if the party opposing the

motion fails to establish an essential element of her case. See

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also

McClendon v. United States, 892 F.3d 775, 781 (5th Cir. 2018)(“When

the nonmovant bears the burden of proof at trial, the movant may

merely point to an absence of evidence, thus shifting to the non-

movant the burden of demonstrating by competent summary judgment

proof that there is an issue of material fact warranting trial.”)

In deciding whether a fact issue exists, courts must view the facts

and draw reasonable inferences in the light most favorable to the

non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007).

Although the Court must “resolve factual controversies in favor of

the nonmoving party,” it must do so “only where there is an actual

controversy, that is, when both parties have submitted evidence of

contradictory facts.” Antoine v. First Student, Inc., 713 F.3d

824, 830 (5th Cir. 2013)(internal quotation marks and citation

omitted).

14

In resolving a motion for summary judgment, the Court "may

only consider admissible evidence." Coleman v. Jason

Pharmaceuticals, 540 Fed. Appx. 302, 306 (5th Cir. 2013)(citing

Fed. R. Civ. P. 56(c)(2) and Mersch v. City of Dallas, 207 F.3d

732, 734-35 (5th Cir. 2000)). Federal Rule of Evidence 56(c)(2)

provides that “[a] party may object that the material cited to

support or dispute a fact cannot be presented in a form that would

be admissible in evidence.” Affidavits and declarations used to

support a motion must only “be made on personal knowledge, set out

facts that would be admissible in evidence, and show that the

affiant or declarant is competent to testify on the matters

stated.” Fed. R. Civ. P. 56(c)(4).

II.

A.

Title VII of the Civil Rights Act of 1964 was enacted “to

assure equality of employment opportunities and to eliminate those

discriminatory practices and devices which have fostered racially

stratified job environments to the disadvantage of minority

citizens.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800

(1973). Employers are prohibited from discriminating “against any

individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s race,

15

color, religion, sex, or national origin.” 42 U.S.C. § 2000e-

2(a)(1). Moreover, “an employer may not discriminate against an

employee because the employee has ‘opposed any practice made an

unlawful employment practice ... or because he has made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing’ under Title VII.” See

LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 388 (5th

Cir. 2007)(omission in original)(quoting 42 U.S.C. § 2000e-3).

Although a plaintiff may prove her claim of intentional

discrimination by direct or circumstantial evidence, there is

nothing in the record to indicate that Jones has direct evidence;

accordingly, absent direct evidence of disparate treatment or

retaliation, Jones must prove her case through circumstantial

evidence. See McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th

Cir. 2007).

Claims of discrimination based on circumstantial evidence are

analyzed in accordance with the familiar McDonnell Douglas burden-

shifting regime. See Caldwell v. KHOU-TV, 850 F.3d 237, 241 (5th

Cir. 2017)(citing McDonnell Douglas, 411 U.S. at 800). This three-

part framework first requires the plaintiff to make a prima facie

case of discrimination. Morris v. Town of Independence, 827 F.3d

396, 400 (5th Cir. 2016). If the plaintiff makes this showing, a

16

presumption of discrimination arises and the burden of production

shifts to the defendant employer to articulate a legitimate non-

discriminatory or non-retaliatory reason for the adverse

employment action. Id. If the defendant satisfies that burden of

production, then the inference of discrimination disappears, and

the burden shifts back to the plaintiff, who must prove by a

preponderance of the evidence that the proffered reason was merely

a pretext for race (or sex or age) discrimination. Rogers v.

Pearland Ind. Sch. Dist., 827 F.3d 403, 408 (5th Cir. 2016).15 “A

plaintiff may establish pretext either through evidence of

disparate treatment or by showing that the employer’s proffered

explanation is false or ‘unworthy of credence.’” Thomas v.

Johnson, 788 F.3d 177, 179 (5th Cir. 2015). Notably, the Court

does not assess the credibility of the employer’s explanation.

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142

(2000)(explaining that the defendant’s burden is one of

production, not persuasion). To prove pretext, the plaintiff must

demonstrate “both that the reason was false, and that

15 Instead of pretext, a plaintiff may seek to establish that the

plaintiff’s protected characteristic or the employer’s

discriminatory animus was a motivating factor for the adverse

employment decision. But the plaintiff here has not advanced this

mixed motive argument, ostensibly opting to pursue a singular

theory of pretext.

17

discrimination was the real reason.” St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 515 (2007)(emphasis in original).16

To establish a prima facie case of employment discrimination,

a plaintiff must establish that she (1) is a member of a protected

class; (2) was qualified for the position; (3) was subject to an

adverse employment action; and (4) was treated less favorably than

a similarly situated employee outside of her protected group under

nearly identical circumstances. Lee v. Kansas City S. Ry. Co.,

574 F.3d 253, 259 (5th Cir. 2009); Bryan v. McKinsey & Co., Inc.,

375 F.3d 358, 360 (5th Cir. 2004).17

16 The Age Discrimination in Employment Act prohibits an employer

from firing an employee “because of such individual’s age”. 29

U.S.C. § 623(a)(1). To establish an ADEA claim, a plaintiff must

“prove by a preponderance of the evidence (which may be direct or

circumstantial), that age was the ‘but-for’ cause of the challenged

employer decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,

177-78 (2009). Although the Supreme Court “has not definitely

decided whether the evidentiary framework of [McDonnell Douglass],

utilized in Title VII cases is appropriate in the ADEA context,”

Gross, 557 U.S. at 175-76 n.2, the Fifth Circuit has applied it

since Gross. See, e.g., Holliday v. Commonwealth Brands, Inc.,

483 Fed. Appx. 917, 921 (5th Cir. 2012); Manaway v. Med. Ctr. of

Southeast Tex., 430 Fed. Appx. 317, 321 (5th Cir. 2011); Moss v.

BMC Software, Inc., 610 F.3d 917, 922-23 (5th Cir. 2010); Jackson

v. Western Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010)

(“[W]e are bound by our circuit precedent applying McDonnell

Douglas to age discrimination cases.”).

17 Similarly, applying McDonnell Douglas to age discrimination

claims, the plaintiff’s prima facie case must show: (1) she was

discharged; (2) she was qualified for the position; (3) she was

within the protected class at the time of the discharge; and (4)

she was either i) replaced by someone outside the protected class,

18

Only ultimate employment decisions such as hiring, granting

leave, discharging, promoting, and compensating constitute adverse

employment actions in the context of Title VII disparate treatment

claims. Thompson v. City of Waco, 764 F.3d 500, 503-05 (5th Cir.

2014); see also Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 62 (2006)(explaining that the language of Title VII’s

antidiscrimination provision “explicitly limit[s] the scope of

that provision to actions that affect employment or alter the

conditions of the workplace”).

B.

A plaintiff must exhaust her administrative remedies before

pursuing employment discrimination claims in federal court.

Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir.

2002); Melgar v. T.B. Butler Publishing Company, Inc., 931 F.3d

375, 378-79 (5th Cir. 2019)(citations omitted). This exhaustion

ii) replaced by someone younger, or iii) otherwise discharged

because of her age. Holliday, 483 Fed.Appx. at 921 (citation

omitted). And, then, the familiar burden-shifting framework

continues: After the employee establishes a prima facie case, the

burden of production shifts to the employer to articulate a

“legitimate, nondiscriminatory reason for terminating the

plaintiff.” Id. If the employer articulates a legitimate, non-

discriminatory reason for terminating the employee, the plaintiff

must then rebut the employer’s purported explanation by showing

that the employer’s reason is pretextual. Moss, 610 F.3d at 922.

19

occurs when the complainant files a charge with the Equal

Employment Opportunity Commission, § 2000e-5(e)(1), (f)(1); 29

U.S.C. § 626(d), and then “receives a statutory notice of right to

sue.” Taylor, 296 F.3d at 379. This charge-filing prerequisite to

suit is a non-jurisdictional claim-processing rule that

“promote[s] the orderly progress of litigation by requiring that

the parties take certain procedural steps at certain specified

times.” Fort Bend Cnty., Texas v. Davis, 139 S. Ct. 1843, 1849

(2019).

To determine whether a Title VII plaintiff exhausted her

administrative remedies, the Court broadly construes the scope of

an EEOC complaint to advance Title VII’s primary purpose, which

“is to trigger the investigatory and conciliatory procedures of

the EEOC, in an attempt to achieve non-judicial resolution of

employment discrimination claims.” Pacheco v. Mineta, 448 F.3d

783, 788-89 (5th Cir. 2006)(citations omitted). “[W]hat is

properly embraced in a review of a Title VII claim,” the Fifth

Circuit has thus instructed, is not confined to the administrative

charge itself, but is informed by “the scope of the EEOC

investigation which can reasonably be expected to grow out of the

charge of discrimination.” Id. at 789; Fellows v. Universal

Restaurants, Inc., 701 F.2d 447, 451-52 (5th 1983)(“a cause of

action for...employment discrimination may be based, not only upon

20

the specific complaints made by the employee’s initial EEOC charge,

but also upon any kind of discrimination like or related to the

charge’s allegations, limited only by the scope of the EEOC

investigation that could reasonably be expected to grow out of the

initial charges of discrimination.”); Sanchez v. Standard Brands,

Inc., 431 F.2d 455, 465-467 (5th Cir. 1970)(“[T]he specific words

of the charge of discrimination need not presage with literary

exactitude the judicial pleadings which may follow.”). The factual

statement contained in the charge is “the crucial element.” Price

v. Southwestern Bell Telephone Co., 687 F.2d 74, 78 (5th Cir.

1982)(citation omitted).

C.

Wells Fargo submits that Jones failed to exhaust any claim

she seeks to advance for wrongful termination based on her age and

that she also failed to exhaust any claims for general

mistreatment. The Court agrees.

Could Jones’s charge be expected to trigger an age

discrimination investigation? The Court looks beyond Jones’s

mere failure to check the “age” box as a mere technical omission

(see Sanchez, 431 F.2d at 462) and considers the factual statement

Jones wrote to support her EEOC charge. Unlike the plaintiff in

Sanchez, nowhere in Jones’s charge did she allege any facts that

21

would give rise to an age discrimination claim. Jones mentions sex

and race discrimination as well as unequal pay, but she fails to

state any facts regarding age. She fails to suggest how her charge

might have put Wells Fargo on notice of any age discrimination

claim.

This same reasoning precludes her “discriminatory

mistreatment” claims which are untethered to her wrongful

termination claims. Again, the Court scrutinizes the charge to

determine what sort of investigation would be triggered by its

factual narrative. Jones checked both the “sex” and “race” boxes

in her charge and stated in the “facts” portion of the charge that

she believed that Wells Fargo discriminated against her based on

her race and sex. The factual narrative and the lone date (the

“date(s) discrimination took place”) she invokes in her charge

refer solely to her termination and to the date of termination.

Jones testified in her deposition that she was excluded from

lunches, her coworkers and supervisors failed to celebrate her

birthday, and she was called “baby” and by the wrong name.

However, she fails to suggest how these alleged slights fall within

the scope of her EEOC charge. How an investigation into these

examples of alleged mistreatment could be expected to grow from

the limited narrative presented in her charge is unclear. Because

the factual summary in her charge failed to contain allegations

22

giving rise to any sort of cumulative mistreatment facts or hostile

work environment claims, any such claims must be dismissed for

failure to exhaust administrative remedies.

Regardless of her failure to exhaust claims relating to age

discrimination and general “mistreatment,” Wells Fargo

nevertheless has demonstrated entitlement to judgment as a matter

of law dismissing these claims.18 As to the general “mistreatment”

claims, if they had been exhausted, they nevertheless fail as a

matter of law. Unlike her claim that she was wrongfully terminated

based on protected characteristics of race and sex, Jones’s claims

of mistreatment fail to implicate Title VII, fail to constitute

adverse employment actions,19 and otherwise fail to satisfy the

severe or pervasive conduct test applicable to hostile work

environment claims. See Lauderdale v. Texas Dept. of Criminal

Justice, 512 F.3d 157, 163 (5th Cir. 2007)(to show that harassment

or mistreatment affects a term of condition of employment, it must

be “sufficiently severe or pervasive ‘to alter the conditions of

[the victim’s] employment and create an abusive working

18 Jones’s age discrimination is addressed on the merits below

along with her claims that her employment was terminated based on

other protected characteristics.

19 Adverse employment actions are limited to ultimate employment

decisions such as hiring, granting leave, discharging, promoting,

or compensating. McCoy v. City of Shreveport, 492 F.3d 551, 556

(5th Cir. 2007); Anthony v. Donahoe, 460 Fed.Appx. 399, 403 (5th

Cir. 2012).

23

environment.’”). To be sure, Title VII “is not a ‘general civility

code[.]’” Id. (citation omitted). That Jones initially lacked

access to sales leads, was called “Teresa” or “Baby” on two or

three occasions, was not included in discussions about sports, was

not invited to lunches, and that her birthday was not celebrated,20

at most, constitute mere “petty slights, minor annoyances, and

simple lack of good manners.” See Aryain v. Wal-Mart Stores Tex.

LP, 534 F.3d 473, 485 (5th Cir. 2008)(quoting Burlington Northern

and Santa Fe Railway Co. v. White, 548 U.S. 53, 60, 67 (2006)).

Any Title VII claims based on anecdotal “mistreatment,” divorced

from her termination claim, fail as a matter of law.

III.

Jones alleges violations of the ADEA for age discrimination,

violations of Title VII of the Civil Rights Act of 1964 including

gender and race discrimination, violations of the LEDL for age,

20 Jones testified that Williams’ wife was named Teresa, that he

called her “baby” a couple times, which offended her “but I hear

other people say baby a lot in New Orleans,” and that Williams

told Jones regarding her relationship with two loan processers,

“you black females have to get along. You guys have to cut that

out.” Jones suggests in conclusory fashion that this is “direct

evidence of discrimination” and that she was insulted that he

suggested she “didn’t get along” with certain people. Jones

complained in an email to Williams on August 5, 2016 about a loan

processor Jones called Shenea; Jones suggested in the email that

they do not get along and she was being treated unprofessionally

by Shenea.

24

gender, and race discrimination, a violation of La. R.S. 23:967

for a whistleblower claim, a violation of La. R.S. 23:631 and

51:443 for untimely payment of commissions, and negligent hiring

retention, and supervision in relation to Wells Fargo’s employees.

Wells Fargo seeks summary judgment in its favor on each claim.

A.

The Court first takes up whether Wells Fargo is entitled to

summary judgment dismissing Jones’s wrongful termination claims

based on discrimination. The record shows that it is.

Even assuming Jones makes out a prima facie case of age, race,

or sex discrimination, it is undisputed that Wells Fargo

articulated a legitimate nondiscriminatory reason for terminating

her employment: Jones failed to meet minimum production

requirements. Having satisfied its burden of production in

articulating this reason for termination, the burden shifts back

to Jones, who must show by a preponderance of the evidence that

this proffered reason was merely a pretext for discrimination.

Jones fails to identify a genuine dispute as to any material fact

concerning pretext. She fails to identify evidence in the record

indicating that Wells Fargo’s proffered non-discriminatory

explanation is false. (Indeed, she does not dispute that she

failed to meet minimum production requirements). She likewise

25

fails to identify evidence indicating that discrimination was the

real reason her employment was terminated.

The plaintiff argues that Wells Fargo’s reason for

termination -- that she failed to meet performance standards --

was merely a pretext and that the plaintiff was actually

“discriminated against...and excluded from the same opportunities

as others making it impossible for her to meet her performance

standards and keep her job.” But she fails to point to any

evidence in the summary judgment record that supports a finding

of, or creates a factual dispute concerning, pretext. She fails

to invoke similarly situated individuals who were younger than

her, male, or non-African American who failed to meet production

standards and yet were treated more favorably.

Jones’s argument that Wells Fargo’s nondiscriminatory reason

for her termination was a mere pretext is based on unsubstantiated

assertions and conjecture. Jones has not produced evidence that

any nearly identically situated home mortgage consultant was

treated more favorably than she was. At any given time in her

various submissions, she purports to identify 10 or more possible

comparators (and has continued to request additional discovery so

that she can seek “potentially more” comparators even beyond the

Metairie branch and beyond those supervised by Williams). But

26

none of the proffered comparators create a genuine dispute about

any material fact concerning pretext; rather, each supports Wells

Fargo’s submission that it merely enforced its home mortgage

consultant performance standards objectively across-the-board.

Consider these alleged comparators:

•

Carl Osborne, a younger male home mortgage consultant, was

terminated by Williams for failure to meet minimum production

requirements on July 18, 2016.

•

Jonathan Lily’s employment ended almost exactly on his 12-

month employment anniversary; Wells Fargo did not have the

opportunity to issue Lily a performance improvement plan or

address his future performance.

•

After Russell Flowers had worked at the Metairie branch for

six months, Williams was replaced as branch manager and no

longer managed Flowers. Jones does not contend that Flowers’

production after 12 months was comparable or lower than her

12-month production level.

•

Scarlett Alaniz was a non-African American home mortgage

consultant whom Jones submits was terminated for failing to

meet minimum production requirements. Jones does not explain

how Alaniz’s situation is relevant, material, or how it

supports her claims in the case. Nor does she cite to

evidence relating to Alaniz’s production levels.

•

Erica Poole, a home mortgage consultant, was younger than

Jones and non-African American. Poole was also placed on a

PIP by Williams for failure to meet minimum production

requirements. The PIP was issued to Poole on December 21,

2016 and was scheduled to be in effect through February 28,

2017, but Poole resigned from Wells Fargo before the PIP

ended.

•

Debbie Hebert was a home mortgage consultant like Jones. She

was not placed on a PIP or terminated. However, Jones has

failed to show that she was nearly identical as a comparator

because, according to the undisputed portion of the summary

judgment record, Hebert met the minimum production

requirements for home mortgage consultants.

•

Rebecca McGilvray was placed on a PIP in March 2016 for

failure to meet minimum production requirements. The summary

27

judgment record shows that, unlike Jones, McGilvray’s

production increased and she met the PIP requirements.

•

Elizabeth Poole began working for Wells Fargo as a home

mortgage consultant on February 10, 2016, but she was fired

on July 19, 2016 for failure to meet minimum production

requirements.

•

Marilyn “Ann” Sheffield voluntarily resigned from her

employment with Wells Fargo in November 2015.

•

Joe Bellows, who was 38 years old and a non-African American,

was a retail sales supervisor before he was demoted to a home

mortgage consultant position. Williams issued Bellows a PIP

because he failed to meet minimum production requirements in

May 2016. Bellows’ production improved, and he met the terms

of the May 2016 PIP. In the latter part of 2016, his

production decreased, and Bellows was issued another PIP in

January 2017.

Jones’s kitchen-sink, scattershot approach to identifying

potential comparators undermines, rather than supports, her

discrimination claim or attempt to prove pretext. Jones claims

that some comparators did not meet minimum performance

requirements but were not fired. But there is no dispute that

that these individuals’ tenures as home mortgage consultants was

short-lived and in the other capacities in which they worked, they

were not required to abide by the same performance standards:

•

Brock Ryder worked as a home mortgage consultant for a few

months, but then he worked in a different position (as a home

mortgage assistant until December 2016) and, therefore, was

not required to meet the minimum performance requirements of

a home mortgage consultant. Ryder became a junior home

mortgage consultant in December 2016 and resigned one month

later.

•

Mike Grout was a home mortgage consultant for the first three

months of his employment until October 2015, when he became

a junior home mortgage consultant until February 2016, when

he resigned. For the majority of his employment with Wells

28

Fargo, Grout was not a home mortgage consultant, and he was

therefore not required to meet the same requirements as Jones.

Regarding the state of the record concerning Ryder and Grout,

Jones takes issue with one of the defendant’s affiants, Amy Blair.

Blair, Wells Fargo’s Employee Relations Manager, stated (and Jones

does not dispute) that Brock Ryder was a home mortgage associate

(not consultant) during most of Jones’s employment. Jones notes,

however, that Blair fails to state in her sworn declaration that

Brock Ryder was a home mortgage consultant for a few months before

he became a home mortgage associate. Jones also takes issue with

Blair’s statement that Mike Grout was a home mortgage associate

when, in fact, he was a home mortgage consultant before he became

a junior home mortgage consultant in October 2015 and then he

eventually resigned in February 2016. Wells Fargo moves to

withdraw the single incorrect statement in Blair’s declaration

(the first sentence of paragraph 10); the request is granted.21

Regardless, Jones fails to offer any contested material facts and

she fails to suggest how either Grout or Ryder were treated more

21 Jones also takes issue with Blair’s sworn declaration insofar as

Blair “fails to mention Scarlett Alaniz.” Blair’s declaration,

Wells Fargo explains, addressed those 10 employees Jones

identified in her deposition as those treated more favorably under

similar circumstances. Jones did not identify Alaniz in her

deposition. And for good reason: as discussed, Alaniz was not

treated more favorably -- Alaniz’s employment was terminated for

failing to meet minimum production requirements. Just like Jones.

29

favorably as nearly identical comparators. Both worked briefly as

home mortgage consultants before being demoted to home mortgage

associate and junior home mortgage consultant. The summary

judgment record shows that, during the brief time that either may

have been similarly situated as Jones, neither were treated more

favorably, having been demoted after being in the home mortgage

consultant position for just a few months.22 A position Jones

occupied for 16 months despite the record reflecting that she

failed to meet production requirements.

In short, Jones identifies no factual controversy in the

record to raise a material issue as to whether her termination was

based on any of the three protected characteristics she invokes.

The summary judgment record shows that home mortgage consultants

22 Insofar as Jones now seeks to present yet another theory of

disparate treatment, a failure to demote theory (i.e., that she

should have been demoted to home mortgage assistant before being

fired), any such claim is barred. Jones fails to point to any

record evidence to indicate that she told Wells Fargo that she

wanted to be demoted to work as an administrative assistant (home

mortgage assistant) or a junior home mortgage consultant. Nor did

she mention or include any facts regarding a failure to demote

claim to the EEOC. Having failed to show how a failure to demote

claim could reasonably be expected to grow out of her charge of

discrimination, the Court declines to consider this theory on the

merits. Jones also (now) appears to challenge, as a discriminatory

practice, her placement on a performance improvement plan. But she

does not dispute that the decision to do so was based on her

failure to meet objective production requirements applied to all

home mortgage consultants. Jones admitted in her deposition

testimony that she did not meet her 12-month loan volume

requirement.

30

were treated consistently regardless of their race or other

demographic characteristics; that objective performance criteria

drove Wells Fargo’s decision to terminate (and issue PIPs to)

underperforming home mortgage consultants. Given that the

plaintiff has failed to point to record evidence in support of her

suggestion that she was treated differently than nearly

identically situated employees who were younger or male or of a

different race than her, the Court declines to indulge the

plaintiff’s argumentative tangential distortions by addressing

each and every “potential” comparator or by permitting a fishing

expedition into other home mortgage consultants supervised by

different managers in other Wells Fargo offices.

Jones has failed to identify any evidence indicating that

she was replaced by someone outside of her race, gender, or age.

And she fails to identify any similarly situated comparator who

was treated more favorably. In fact, the summary judgment record

is replete with examples of Wells Fargo employees of varying ages,

genders, and races, being disciplined or terminated for failing to

meet the company-wide production requirements. Jones’s

“[u]nsubstantiated assertions, improbable inferences, and

unsupported speculation are not sufficient to defeat a motion for

summary judgment.” See Brown v. City of Houston, 337 F.3d 539,

541 (5th Cir. 2003). Because Jones has failed to demonstrate that

31

Wells Fargo’s reason for terminating her was false and she fails

to demonstrate that her termination had any connection to her race,

sex, or age, Wells Fargo is entitled to summary relief dismissing

her Title VII (and identical state discrimination law) claims.

In addition to failing to identify any similarly situated

comparators who were younger and non-African American and treated

more favorably, thereby failing to prove or create a fact issue on

pretext, Jones fails to rebut the same actor inference. The record

also shows that Jones was hired and, 16 months later, fired by

Williams, an African American who is five years older than Jones.23

On this record, Wells Fargo urges the Court to apply the “same

actor inference,” which is “a presumption that animus was not

present where the same actor responsible for the adverse employment

action either hired or promoted the employee at issue.” Spears v.

Patterson UTI Drilling Co., 337 Fed.Appx. 416, 421-22 (5th Cir.

2009); Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir.

1996)(approving application of same actor inference in age

discrimination case), abrogated on other grounds by Reeves v.

23 Jones does not dispute that Williams interviewed Jones and hired

her as a home mortgage consultant. It is likewise undisputed that

the decision to terminate Jones’s employment was unanimous; that

decision was made collectively by Williams, Jamie Klinnert, and

Steve Cook. Williams testified that he participated in the

decision to terminate Jones, the decision was unanimous, and that

“[e]motionally, I didn’t [want to fire Jones,] but with all the

facts and the numbers, we had to.”

32

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 134 (2000); Corley

v. Louisiana ex rel. Div. of Admin., Office of Risk Mgmt., 816 F.

Supp. 2d 297, 318 (M.D. La. 2011), aff’d, 498 Fed.Appx. 448 (5th

Cir. 2012)(holding that plaintiff could not establish prima facie

case that race was a motivating factor in her termination where

the same supervisor who hired her was also involved in the decision

to terminate her employment). “While evidence of [same actor]

circumstances is relevant in determining whether discrimination

occurred,” the Fifth Circuit has “decline[d] to establish a rule

that no inference of discrimination could arise under such

circumstances.” Haun v. Ideal Indust., Inc., 81 F.3d 541, 546

(5th Cir. 1996). In other words, the same actor inference is

neither mandatory nor irrebuttable. Nevertheless, where, as here,

the non-moving party has otherwise failed to raise a genuine

dispute as to a material fact, the same actor inference simply

reinforces the defendant’s submission with respect to Jones’s age

and race discrimination claims.24

24 Courts have recognized that the inference is stronger when (1)

there is close temporal proximity between the favorable employment

action and the adverse action, and (2) the decision maker is in

the same protected category as the plaintiff. See Proud v. Stone,

945 F.2d 796, 797 (4th Cir. 1991)(When termination “occurs within

a relatively short time span following the hiring, a strong

inference exists that discrimination was not a determining factor

for the adverse action taken by the employer.”); Skinner v. Brown,

951 F. Supp. 1307, 1320 (S.D. Tex. 1996), aff’d 134 F.3d 368 (5th

Cir. 1997)(where the decision maker was in the same protected

33

The record shows that Wells Fargo is entitled to summary

judgment on Jones’s claim of wrongful termination based on age,

sex, and race. Even if she makes out a prima facie case, she

failed to identify a fact issue as to pretext concerning Wells

Fargo’s legitimate, non-discriminatory reason for termination.

Notably, she does not dispute nor is there any dispute in the

record that she failed to meet minimum production requirements.

Thus, she has failed to show that Wells Fargo’s proffered reason

for termination was false. Likewise, she fails to show that

discrimination based on her age, sex, or race was the real reason

she was fired: there is no evidence in the record supporting her

allegation of disparate treatment based on her age, sex, or race.

The summary judgment record shows that Jones was fired because she

never met the objective performance measures required of all

mortgage loan consultants at Wells Fargo. Summary judgment

category as the plaintiff, the court noted “[t]hese facts enhance

the inference that no discriminatory motive existed.”); Chapman v.

Dallas Morning News, L.P., No. 06-2211, 2008 WL 2185389, at *9

(N.D. Tex. May 27, 2008)(noting that the plaintiff and the

decisionmaker are in the same protected category, and that the

plaintiff’s purported comparator “evidence appears to even

undermine her claims”). Both of these factors are present here.

34

dismissing all of Jones’s employment discrimination claims is

warranted.25

The Court now turns to consider her state law claims, taking

up first her claim in which she alleges that she was fired for

whistleblowing.

B.

Wells Fargo next contends that Jones’s vague and

unsubstantiated allegations are insufficient to oppose its motion

for summary judgment dismissing her whistleblower claim under

La.R.S. 23:967. Jones’s whistleblower claim is predicated on her

belief that Wells Fargo terminated Jones when she refused to

participate in “mortgage fraud” and a “rate lock extension fee

scheme” or because she reported such conduct. Wells Fargo submits

that her whistleblower claim fails as a matter of law. The Court

agrees.

Louisiana’s Whistleblower Statute provides, in part:

A. An employer shall not take reprisal against an employee

who in good faith, and after advising the employer of the

violation of the law:

25 Jones failed to exhaust her age discrimination and

“mistreatment” claims and she likewise fails to demonstrate how

her age, sex, or race played a part in Wells Fargo’s decision to

terminate her as a home mortgage consultant. Jones’s claims under

the Louisiana Employment Discrimination Law fail for the same

reasons as her federal claims.

35

(1) Discloses or threatens to disclose a workplace act or

practice that is in violation of state law.

(2) Provides information to or testifies before any public

body conducting investigation, hearing, or inquiry

into any violation of law.

(3) Objects to or refuses to participate in an employment

act or practice that is in violation of law.

La. R.S. 23:967. To prevail, Jones must establish that (1) Wells

Fargo violated the law through a prohibited workplace act or

practice; (2) she advised Wells Fargo of the violation; (3) she

then refused to participate in the prohibited practice or

threatened to disclose the practice; and (4) she was fired as a

result of her refusal to participate in the unlawful practice or

threat to disclose the practice. See Hale v. Touro Infirmary, 886

So. 2d 1210, 1216 (La. App. 4 Cir. 11/3/04). Notably, to prevail,

then, Jones must show, among other things, “that [Wells Fargo]

engaged in workplace conduct constituting an actual violation of

state law,” and that she notified Wells Fargo of the state law

violation and threatened to disclose it. See Williams v. Hosp.

Servs. Dist. Of W. Feliciana Parish, Louisiana, 250 F. Supp. 3d

90, 94-95 (M.D. La. 2017)(quoting Encalarde v. New Orleans Ctr.

for Creative Arts/Riverfront, 158 So. 3d 826 (La. 2015)). Failure

to put forth evidence to satisfy any of these elements must result

in a summary judgment in favor of Wells Fargo.

36

Summary judgment in Wells Fargo’s favor is patently

warranted. Jones testified that she has no personal knowledge of

any violation of state law by Wells Fargo; she never complained

about an actual violation, nor did she refuse to engage in illegal

conduct. Although she invokes the talisman of “fraud” in

connection with what she mused could be irregularities in

processes, including the “scribbled” flip transaction contract and

the rate lock extension fees, she admitted that none of the

transactions that she personally encountered actually violated

state law. In argument, she suggests that she “put...in writing”

her complaint to Williams, and also that she “told him face to

face” “about her issues” with the rate lock scheme, which she

testified she believed “violated something.” The emails Jones

invokes, however, mention no violation of state law and appear to

only address Jones’s dispute with another employee named Shenea,

who said aloud (allegedly about Jones) “some people can’t read” or

“some people are really [dumb or stupid].”26 Although in her

26 In an email on August 5, 2016, Jones wrote to Williams requesting

a new processing assignment because Shenea “chastise[d] me” and

was unprofessional. Jones also suggested that “the customer should

not have to pay extension fees we could avoid and it hurts my

loyalty scores.” Jones stated that she “didn’t like” that her

customers might have to pay “more than what [I] promised” and that

they “should not have to pay an extension fee due to the previous

[processor]” failing timely to complete a processing task. Jones

has not identified any customer who was forced to pay a rate lock

extension fee, or any Louisiana law that would be violated if such

37

complaint she alleges in conclusory fashion that she “had a

reasonable belief” that Wells Fargo violated state and federal

laws, nowhere does she identify actual violations of state law,

nor does she point to record evidence indicating that she advised

Wells Fargo of those violations. Jones testified in her deposition

that she was concerned that her customers would give her poor

reviews or not refer business to her if they incurred extension

fees, not that she believed charging such fees violated state law.

Absent any evidence on these threshold elements of her state

whistleblower claim (that state law was violated and that she

advised Wells Fargo of the violation), her claim fails as a matter

of law. Jones’s claim for retaliation as a whistleblower under

La. R.S. 23:967 must be dismissed.

C.

Wells Fargo next moves for summary judgment dismissing her

unpaid commissions claim. Jones has failed to identify any loans

she originated that closed within 30 days of her termination for

a fee had been charged. Her whistleblower claim fails. See Wilson

v. Tregre, 787 F.3d 322, 327 (5th Cir. 2015)(citations omitted,

emphasis added)(“To qualify for protection under the Louisiana

Whistleblower Statute, a plaintiff must prove that [her] employer

committed an actual violation of state law.”).

38

which she was not paid.27 Therefore, summary judgment dismissing

this “claim” is warranted.

D.

Jones alleges that Wells Fargo is liable in tort for negligent

hiring, retention, and supervision under Louisiana Civil Code

article 2315. But a plaintiff cannot recover for negligence based

upon the same conduct underlying an employment discrimination

claim. Jones v. Children’s Hosp., 58 F. Supp. 3d 656, 669-70 (E.D.

La. 2014). Indeed, as another Section of this Court observed:

Louisiana’s worker’s compensation statute bars any

negligence cause of action that plaintiff might

otherwise have against her former employer [and]

violations of anti-discrimination laws do not of

themselves give rise to general tort liability, although

they might meet the definition of ‘fault’ under Civil

Code article 2315. To hold otherwise would abrogate the

legislative remedial scheme for redressing employment

discrimination.

Weathers v. Marshalls of MA, Inc., No. 02-717, 2002 WL 1770927, at

*3 (E.D. La. July 31, 2002)(Engelhardt, J.)(citations omitted).

27 Jones argues that she believes that “Wells [Fargo] deliberately

held her loans so that commissions would not have to be paid.”

But she offers no evidence in support of this assertion. Although

she generally disputes whether she should have been paid on some

unidentified loans, she fails to identify a genuine dispute as to

any material fact on this issue. It is undisputed that Wells Fargo

researched each loan transaction originated by Jones before her

termination and produced the findings from that investigation.

Jones fails to identify how much compensation she is owed and for

which loans.

39

The plaintiff’s negligence claims based on the same conduct forming

her employment discrimination claims must be dismissed. ?®

Accordingly, for the foregoing reasons, IT IS ORDERED that

the defendant’s motion for summary judgment is GRANTED. ?? The

plaintiff’s claims are hereby dismissed with prejudice.

New Orleans, Louisiana, September 23rd 2019

MARTIN . Cc. ELDMAN

UNITED STATHS DISTRICT JUDGE

2 Jones appears to take issue with this principle of law and

attempts to circumvent it by concluding that her negligence claims

are beyond the scope of her employment discrimination claims. But

when she attempts to explain how this is so, she simply argues

that her supervisor admitted to using cocaine. (As if the Court

may on summary judgment invoke a formula: supervisor’s cocaine

usage plus alleged wrongful termination of employee equals

negligence under Louisiana law). Jones suggests that Williams

shared this information concerning his cocaine use with other

employees and perhaps Wells Fargo was aware of this and did not

correct it. (Her “argument” such as it is in support of any

negligence claim that could arise from this “fact” stops there).

Plaintiff’s counsel’s unsupported and extraneous cherry-picking is

the sort of confounding and frivolous “argument” (or personal

attack) that 28 U.S.C. § 1927 is intended to dissuade.

29 Her request to reopen discovery to continue searching for

potential comparators is denied as moot.

40