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Shrivastava v. RBS Citizens Bank, N.A.

United States District Court, E.D. Michigan, Southern Division

January 5, 2017



          MARK A. GOLDSMITH United States District Judge

         This is an age discrimination case. Plaintiff is Purnima Shrivastava, now a 64-year-old woman, who alleges that she was subjected to “derogatory” remarks at work and that her employment was ultimately terminated by her branch manager, Alaina Keen, because of her age. Shrivastava claims that this conduct violated the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., and Michigan's Elliot-Larsen Civil Rights Act (“ELCRA”), Mich. Comp. Laws § 37.2201 et seq. Because Shrivastava fails to show a genuine issue of material fact whether Defendants' proffered legitimate, non-discriminatory reasons for their decision were pretexts for discrimination, the Court grants Defendants' motion for summary judgment (Dkt. 30).[1]

         I. BACKGROUND

         Defendant RBS Citizens is a bank that operates retail locations (“branches”) in Michigan. See Compl. ¶ 6 (Dkt. 1). Defendant Citizens Financial Group is a holding company, and RBS is its wholly owned subsidiary. Id. ¶ 7. Shrivastava began her employment with Defendants in 2002. Id. ¶ 5.

         Shrivastava worked as a teller at various branches in Michigan from 2002 until she was involuntarily transferred to the Sterling Heights branch on March 13, 2013. See Defs. Statement of Material Facts (“SMF”) ¶ 3; Pl. Resp. at 1-2. It is undisputed that, as a senior teller at the Sterling Heights branch, Shrivastava was expected to provide “quality customer service, ” including “timely” and “accurate processing of customer transactions”; “maintain[ ] a high level of attention to detail”; and consistently adhere to bank policies and procedures, including those concerning bank fraud and cash handling. See SMF ¶ 6.

         Tellers such as Shrivastava also were expected to complete sales referrals, id., which occur when a teller informs a customer about a bank product or service (e.g., a checking account), the teller refers that customer to a personal banker, and the banker sells that product or service to the customer, id. ¶ 8.[2] Bankers also had sales goals, but they were of a different character. See Pl. Resp. at 2 (citing Keen Dep. 91:12-15 (Dkt. 39-4)); see also note 7, infra. Referrals were a “high priority” for the bank, and tellers were expected to achieve 100% of their quarterly referral goals. Id. ¶ 7.

         On June 18, 2013, Keen documented her first customer complaint about Shrivastava's “lack of customer service.” Id. ¶ 17. According to that complaint, Shrivastava had completed the customer's transaction with minimal interaction and failed to respond to the customer's questions after the transaction was completed, and that customer went to another branch to have her questions answered. See Ex. 1-2 to Keen Decl., Ex. J to Defs. Mot. at 9, 11 (cm/ecf pages) (Dkt. 30-21).[3]

         Defendants determined that Shrivastava did not meet her quarterly referral goal for Quarter 2 of 2013 (i.e., April, May, and June of 2013). See SMF ¶ 18. They also determined that she did not meet her quarterly referral goal for Quarter 3 of 2013 (i.e., July, August, and September of 2013). See id. ¶ 20.[4]

         In September 2013, the Sterling Heights branch implemented two new sets of operating procedures - the Universal Banker Model (“UBM”) and the BIC Teller System (“BIC”) - which, respectively, required (i) a transition from multiple tellers handling customer transactions to just one primary teller at a given time; and (ii) a new computer system for processing customer transactions. See SMF ¶ 13. The transition to UBM and BIC required tellers to take on new responsibilities, such as vault and cash management. Id. ¶ 14; Pl. Resp. at 2; Pl. Dep. At 50:18-51:15.[5]

         On October 18, 2013, after UBM and BIC were adopted, a customer complained that Shrivastava was taking too long to process the transaction and requested a different teller. See SMF ¶ 21. Around the same time, in October 2013, according to Shrivastava, Keen asked Shrivastava when she planned to retire. See Pl. Dep. at 79:17-81:1. Keen asked Shrivastava a similar question a second time, and Shrivastava believes that this also occurred in 2013. Id.

         On December 10, 2013, Shrivastava was placed on a Performance Improvement Plan (“PIP”) for failing to achieve 100% of her quarterly referral goals in Quarters 2 and 3 of 2013, and for not being on pace to achieve 100% of her Quarter 4 referral goal. See SMF ¶ 23.[6]According to Sarah Rudisill, who worked in Defendants' ER division, a PIP is the first written warning in Defendants' progressive discipline scheme. See Rudisill Dep. at 8:16-9:10 (Dkt. 39-7). The PIP explains that “[o]ver the next 30 days, if you do not demonstrate immediate and sustained improvement or if other deficiencies arise, management will continue the Performance Management Improvement Process, which may result in further corrective action up to and including termination.” PIP, Ex. 18 to Pl. Resp. (Dkt. 39-18). Following a PIP, the next step is a Final Written Warning, followed, typically, by termination. See Rudisill Dep. at 8:16-9:10.

         On December 20, 2013, a customer complained that Shrivastava had tried to credit her $290 deposit as only $265, and that Shrivastava had taken too long to complete the transaction. SMF ¶ 24.

         Shrivastava failed to meet 100% of her referral goal for Quarter 4 of 2013. Id. ¶ 25. Although Keen stated that Shrivastava only achieved 25% of her goal in Quarter 4 of 2013, see Keen Dep. at 134:23-25, another document in the record states that she achieved 57% of her goal in that quarter, see Teller Balance Scorecard, Ex. 20 to Pl. Resp. (Dkt. 39-20).

         On January 10, 2014, Shrivastava was given a Final Written Warning (“FWW”). Id. ¶ 26. The purported reason for the FWW was Shrivastava's alleged failure to meet her referral goals in Quarter 4 of 2013 and not being on pace to achieve 100% of her referral goal for Quarter 1 of 2014. Id.; see also Pl. Resp. at 4; FWW, Ex. 31 to Pl. Resp. (Dkt. 39-31). An FWW explains that “[i]f this deficiency continues, or other deficiencies arise at any time during this [FWW], you may be immediately discharged or receive additional discipline.” FWW, Ex. 31 to Pl. Resp.

         On either January 2 or January 20, 2014, another customer complained about Shrivastava's “poor customer service, ” citing mistakes Shrivastava made in handling the transaction and requesting that Defendants “get better tellers.” See SMF ¶ 27 (citing Ex. 5 to Keen Decl., at 17 (cm/ecf page)); Pl. Resp. at 4. On January 21, 2014 and January 24, 2014, two customers complained that Shrivastava deposited their money into the wrong accounts. See SMF ¶ 28 (citing Exs. 6-7 to Keen Decl., Ex. J to Defs. Mot. at 19, 21 (cm/ecf pages)).

         On January 28, 2014, Shrivastava was placed on Final Written Warning Extension status (“FWWE”). See SMF ¶ 30; see also FWWE, Ex. 15 to Pl. Resp. (Dkt. 39-15). As discussed fully infra, an FWWE supplements an existing FWW without subjecting the employee to further discipline under Defendants' progressive discipline scheme or otherwise increasing the employee's risk of termination. The FWWE noted Shrivastava's referral-goal shortfalls, as well as customers' complaints regarding her processing errors. See id. (citing Ex. 15 to Keen Decl., Ex. J to Defs. Mot. at 38-39 (cm/ecf pages)).

         On February 7, 2014, while Shrivastava was on FWWE status, two customers complained that Shrivastava had failed to process a total of three night deposits made on January 10, 2014 and January 30, 2014. See SMF ¶ 32 (three customers complained about three deposits); Pl. Resp. at 5 (clarifying that two, not three, customers had complained about three deposits). In each case, the deposits were found unprocessed in Shrivastava's “work batch.” See SMF ¶ 32.

         On February 10, 2014, a customer complained that Shrivastava had not completed her $500 deposit, which later caused an overdraft fee. See id. ¶ 33; Ex. 11 to Keen Decl., Ex. J to Defs. Mot. at 29 (cm/ecf page). Shrivastava had deposited the money into the wrong customer account. See SMF ¶ 33 (citing Keen Decl. ¶ 9).

         On February 11, 2014, Defendants' regional operations manager informed Keen that Shrivastava had been issued a Policy Not Followed (“PNF”) for cashing a counterfeit check that resulted in a $1, 683.71 loss to the bank. See SMF ¶ 34; PNF, Ex. H7 to Defs. Mot (Dkt. 30-14).

         On February 18, 2014, a customer complained that Shrivastava incorrectly credited her account with $392, despite having given Shrivastava $400 for deposit. See SMF ¶ 35. The customer communicated that Shrivastava frequently makes such errors, requested that Shrivastava not process her transactions in the future, and noted that she was considering closing her accounts with Defendants as a result. Id.; Ex. 12 to Keen Decl., Ex. J to Defs. Mot. at 31 (cm/ecf page).

         On February 25, 2014, a customer complained that he never received credit for a night deposit left in the drop box on February 8, 2014. See SMF ¶ 36. The deposit was found unprocessed in Shrivastava's “work batch.” Id.; Ex. 13 to Keen Decl., Ex. J to Defs. Mot. at 33 (cm/ecf page).

         Shrivastava alleges that, beginning in roughly late June or early July of 2013, and lasting until January 2014, Keen called her “slow” because Shrivastava's queue of customers got too long, with a frequency of about three times per week. See Pl. Dep. at 75:17-78:25. Shrivastava further claims that, contrary to the dictates of UBM, Keen compounded the problem by discouraging Shrivastava's coworkers from helping her with the long queue. Id. at 76:3-24. Shrivastava admits that she did not hear Keen discourage the other employees from helping her; rather, it was relayed to her by those employees. Id.

         Although the parties obviously dispute the impetus behind Shrivastava's termination, it is undisputed that Keen recommended Shrivastava for termination on February 19, 2014, see SMF ¶ 41; Pl. Resp. at 6, and Shrivastava was terminated on March 18, 2014. See SMF ¶ 38; Pl. Resp. at 5. Two days after Keen initiated termination, Keen informed the ER department that Shrivastava was on pace to meet her quarterly referral goal for Quarter 1 of 2014. See Rudisill Dep at 98:5-10; see also Termination Case Note, Ex. 23 to Pl. Resp. (Dkt. 39-23).

         Shrivastava admits that the only other teller under Keen's management who was ever terminated for failing to meet her quarterly referral goal for three consecutive quarters was 21 years old. See Pl. Resp. at 6; SMF ¶ 46.


         On a motion for summary judgment, “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine' dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).


         As an initial matter, “ELCRA claims are analyzed under the same standards as federal ADEA claims.” Geiger v. Tower Auto., 579 F.3d 614, 626 (6th Cir. 2009). Accordingly, although the analysis to follow focuses on federal authority applicable to the ADEA, the conclusions reached apply to Shrivastava's claims under either statute.

         A. Direct Evidence of Discrimination

         A plaintiff can create a genuine issue of material fact as to age discrimination using either direct or circumstantial evidence of discrimination. Lefevers v. GAF Fiberglass Corp., 667 F.3d 721, 723 (6th Cir. 2012). Direct evidence is evidence that is probative of the existence of a fact without requiring any further inferences. See Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004). It is “that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions.” Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999) (emphasis added). When examining statements allegedly showing employer bias on the basis of age, courts consider whether the comments were made by a decision-maker; whether they were related to the decision-making process; whether they were more than merely vague, ambiguous, or isolated remarks; and whether they were proximate in time to the challenged action. Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1330 (6th Cir. 1994); see also Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1025 (6th Cir. 1993) (“isolated and ambiguous comments are too abstract, in addition to being irrelevant and prejudicial, to support a finding of age discrimination”).

         Defendants address Keen's alleged tendency to comment on Shrivastava's (i) expected retirement date and (ii) slow pace when processing customers' transactions. See Defs. Mot. at 16. They claim that these statements are “at best ‘stray remarks' that do not qualify as direct evidence of discrimination.” Id. (citing Phelps, 986 F.2d at 1025). Shrivastava does not respond to Defendants' direct-evidence argument, instead cabining her discussion to the McDonnell-Douglass burden-shifting framework, discussed infra.

         Defendants are correct; Shrivastava's claims cannot survive summary judgment on a direct-evidence theory. Several courts, including this one, have addressed decision-makers' comments about a plaintiff's retirement plans, in particular. General questions about retirement directed toward various employees do not compel a conclusion that Shrivastava was terminated because of her age. See Neff v. Petoskey Pub. Sch., No. 236287, 2003 WL 1698215, at *1 (Mich. Ct. App. Mar. 27, 2003) (per curiam) (“Merely asking a candidate's age or retirement plans, without more, does not compel the conclusion that age discrimination occurred, ” particularly when candidate brought up retirement in interview); see also Howley v. Fed. Express Corp., No. 14-cv-11874, 2016 WL 1223356, at *5 (E.D. Mich. Mar. 29, 2016); Stedman v. Cox, Hodgman & Giarmarco, P.C., No. 216008, 2002 WL 234874, at *2 (Mich. Ct. App. Feb. 15, 2002) (“Questions about an employee's retirement plans are not enough to raise an inference of age discrimination.”) (citing Woytral v. Text-Tenn Corp., 112 F.3d 243, 247 (6th Cir. 1997)).

         The comments regarding the slow speed at which Shrivastava performed her duties also do not rise to the level of direct evidence. Connecting those comments to a conclusion that Shrivastava was terminated due to her age requires a string of inferences, but no inferences between the evidence and the conclusion of age-related animus are permitted in the direct evidence context. See Suits v. The Heil Co., 192 F. App'x 399, 403-404 (6th Cir. 2006); Rowan, 360 F.3d at 548. First, one must draw the inference that slow customer service is caused by advanced age. One also must draw a second inference, i.e., that Shrivastava was terminated due to this animus. See Suits, 192 F. App'x at 403 (“To prevail based on direct evidence, plaintiff must show that the defendant employer acted on its discriminatory animus, not just that it possessed one.”). No such inferences are permitted; direct evidence is that which “requires” the conclusion that discrimination was a motivating factor in the decision to terminate. Jacklyn, 176 F.3d at 926; Suits, 192 F. App'x at 403-404 (“Additional inferences are necessary, which compels the conclusion a direct evidence claim has not been established.”). In contrast, Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 571-572 (6th Cir. 2003) (en banc), presents an example of when direct evidence is sufficient to survive summary judgment. In that case, the employee's managers were found to be making remarks about his protected age status in connection with his eligibility for ongoing employment in the same capacity. Id. Here, the comments regarding Shrivastava's slow customer service were not made in a context showing their relationship to Defendants' decision to terminate. Rather, the cause for Shrivastava's termination, insofar as it was based on her slow speed and customer service failings, derived from customers' complaints, not Keen.

         At bottom, Shrivastava does not argue that she has produced direct evidence of discrimination. Accordingly, Shrivastava can only survive summary judgment if she can show a genuine issue of ...

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