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Pearson v. U.S. Bank National Association

United States District Court, D. Minnesota

August 21, 2014


Joshua R. Williams, Law Office of Joshua R. Williams, PLLC, Counsel for Plaintiff.

David A. Schooler, Michael C. Wilhelm, and Ellen A. Brinkman, Briggs & Morgan, PA, Counsel for Defendant.


MICHAEL J. DAVIS, Chief District Judge.


This matter is before the Court on Defendant U.S. Bank National Association's Motion for Summary Judgment [Docket No. 20]. The Court heard oral argument on May 23, 2014. Finding no genuine dispute of material fact, the Court grants Defendant's motion.


A. Factual Background

Plaintiff Jessica Pearson began working for U.S. Bank National Association ("U.S. Bank") on December 23, 2009. (Schooler Aff., Docket No. 26, Ex. 1, Pearson Dep. 117.) She was hired as a "Sales Manager 2, Grade 14, " based on her previous experience working at Norwest Bank/Wells Fargo and Chase Bank from 1999 to 2009. (Pearson Dep. 76-77, 129.) Plaintiff's job duties included selling prepaid debit cards to businesses that they could use to pay their employees. (Pearson Dep. 134-37.)

1. Plaintiff's Ninety-Day Performance Review

Rick Pileggi was Plaintiff's first supervisor at U.S. Bank. (Pearson Dep. 134.) Pileggi gave Plaintiff a 90-day performance review on March 15, 2010. (Osmond Aff., Docket No. 23, Ex. 1.) In that review, Pileggi stated that Plaintiff "needs improvement" under categories of "teamwork and cooperation, " "resourcefulness, " and "commitment." ( Id. at D00113-14.) Pileggi also gave Plaintiff an "overall employee rating" of "needs improvement." ( Id. at D00114.) The comments in Pileggi's "resolution plan" were as follows:

Jessica is very energentic [sic] and motivated. I currently have challenges with her dedication and professionalism. She needs to focus on her job and make a committment [sic] to being part of the team and improving her internal relationships. We have spoken about this and she understands and my hope is that she will improve things and be a member of the Prepaid team for years to come.


2. June 2011 Performance Improvement Plan

In February 2011, Plaintiff's supervisor changed from Rick Pileggi to Tom Ayers. (Pearson Dep. 139-41.) This was the result of an organizational change. ( Id. at 140.) Plaintiff's job duties, however, remained unchanged. ( Id. at 140-41.)

On June 10, 2011, Ayers placed Plaintiff on a Performance Improvement Plan ("PIP"). (Osmond Aff., Ex. 2.) The PIP was signed by both Plaintiff and Ayers. ( Id. at D00118.) The plan explained to Plaintiff that "it is critical that you demonstrate significant improvement in achieving your work objectives." ( Id. at D00115.) The PIP then listed "Specific Performance Issues and Examples, " which included the following:

• "Overall Business Knowledge (literacy)": "[W]e've discussed your fundamental lack of understanding business case methodology, basic financial accounting, and the background product expertise required to effectively sell prepaid products;"
• "Business Acumen": "On several occasions I've witnessed your lack of utilizing good judgment and/or putting the group in a situation which is not reflective of our professionalism or paints us in the best possible light;"
• "Unprofessionalism, " including "talking to co-workers about frustrations with managers which is then shared with others in the department;" and
• "General H/R Management": "Also per our discussions about your performance is the reoccurring problem with your on-time reporting, completeness and thoroughness with reporting, and routine lateness."

(Id. at D00115-16.)

The PIP also listed examples in which Plaintiff was late for meetings, client calls, and submitting reports. (Id.) The PIP provided a list of expectations for Plaintiff to meet during the subsequent 60-day period. ( Id. at D00116-17.)

Plaintiff testified that, while she did not agree with the June 2011 PIP, she did not believe it was discriminatory. (Pearson Dep. 190, 218.) Plaintiff stated that it was legitimate for U.S. Bank to be concerned about her timeliness, and the criticisms in the PIP about her timeliness were valid. ( Id. at 207-08, 229.)

By the end of the 60-day period, U.S. Bank determined that Plaintiff's performance had sufficiently improved, so she was taken off of the PIP. ( Id. at 210.) Plaintiff understood that she would need to continue meeting expectations going forward, however, and she understood that a failure to meet expectations could result in additional discipline. ( Id. at 210-11.)

3. February 2012 Performance Review

In January of 2012, Plaintiff asked Ayers how he would rate her performance for 2011. (Pearson Dep. 218-21.) Ayers responded that he would give her a rating of either "4" ("performance does not consistently meet expectations") or "5" ("even with additional coaching and supervision, does not meet expected levels"). (Id.) Ayers explained to Plaintiff that either of these ratings would make Plaintiff ineligible for a bonus for 2011. (Osmond Aff., Ex. 3.)

On February 29, 2012, Plaintiff received her 2011 performance review from Ayers. (Osmond Aff., Ex. 4.) She was rated as a "4, " meaning her "[p]erformance does not consistently meet expectations." ( Id. at D00094.) Plaintiff understood that her rating meant that she had serious performance deficiencies. (Pearson Dep. 223.) Ayers noted that Plaintiff had only closed 12 deals in 2011 when her goal was 25. (Pearson Dep. 242-43.) Plaintiff disputes that she only closed 12 deals, claiming that she actually closed 14 deals. (Pearson Dep. 245-46.)

Ayers noted the following additional performance concerns in the February 2012 performance review:

• "I feel that Jessica lacks the core competencies to effectively negotiate agreements with prospective clients. In fact, I would not allow Jessica to negotiate or change any agreement without my express permission and after careful review."
• "[S]he doesn't have an understanding of business case methodology or the financial repercussions of the decisions she was making."
• "I have spent an extraordinary amount of time coaching, providing feedback, and alerting Jessica to perceptions (real and perceived) this year. We routinely would discuss her inability to own' the issues confronting her performance."

(Osmond Aff., Ex. 4, at D00095-96.)

The performance review also indicated the concern about Plaintiff's timeliness:

This is definitely not one of Jessica's strongest attributes. Work is routinely turned in late, with grammatical errors, spelling mistakes, differing fonts, and not of the caliber expected for the position she holds. I feel this may be the result of a general lack of understanding basic business writing, and secondly, an inability to manage ones [sic] time effectively. Aside from Jessica's comments that this was resolved when brought to her attention, there are documented cases of lateness and unprofessional management reports as recently as December 2011.

(Id. at D00097.) Plaintiff agreed that the criticisms about her timeliness were valid, and she stated in her deposition that "timeliness is something that I'm constantly working on." (Pearson Dep. 228-29.) Plaintiff also stated that Ayers did not treat her unfairly in any way. ( Id. at 252.)

4. Plaintiff Is Transferred to Campus Banking

As a result of a request made by Plaintiff, she was transferred to U.S. Bank's Campus Banking group in February of 2012. (Pearson Dep. 141, 255.) The Campus Banking group focuses on colleges and universities as its primary customers. (Pearson Dep. 142.) In that group, Plaintiff was responsible for selling not only AccelaPay payroll cards, but also other campus banking cards and campus ID cards. (Pearson Dep. 143-44.)

When Plaintiff joined the Campus Banking group, her supervisor changed from Tom Ayers to Ben Osmond. (Pearson Dep. 141.) Because of Plaintiff's past performance problems, Osmond met with Plaintiff and provided to her a list of "expectations and commitments." (Osmond Aff. ¶ 6, Ex. 5.) Osmond asked Plaintiff to prepare the list herself and then he added his own input regarding his expectations for Plaintiff. (Pearson Dep. 262-63.) The result was a document entitled "2012 Expectations and Commitments - Jessica Pearson, " which listed expectations under the headings of "Professionalism, " "H/R Management, " "Communication, " "Professionalism/Communication, " and "Sales Expectations." (Osmond Aff., Ex. 5.) Some of the goals listed were: (1) "continue to demonstrate professionalism, " (2) "I will submit all deliverables on time, " (3) "I will be in the office by no later than 9am everyday, " and (4) "Expectation that Jessica will be on time for all meetings and calls." (Id.)

The document also set forth Plaintiff's 2012 sales goals:

• "Close a total of 8 prepaid deals (AccelaPay, Rewards, Per Diem, etc.) on college campuses that meet minimum thresholds for active cards, and profitability. TBD on deal to deal basis;" and
• "Close 1 campus card ID program in upper Midwest territory. (minimum of 2, 000 students)."

(Id. at D00170.)

While Osmond supervised Plaintiff, he kept contemporaneous notes regarding their meetings. (Osmond Aff. ¶ 7, Ex. 6 ("Jessica Pearson Event Timeline").) The parties dispute whether the notes were made contemporaneously with her meetings with Osmond. Defendant maintains that Osmond created this document in February 2012 and updated it as time went on. (See Williams Decl., Docket No. 30, Ex. F, Def.'s Answers to Pl.'s Second Set of Interrogs., Interrog. No. 6.) Through discovery, Defendant stated that there were multiple versions of the Jessica Pearson Event Timeline, but maintained that they were created contemporaneously with the events described within them. (Id.; see also Williams Decl., Exs. G, H.) Defendant states that Osmond edited the Jessica Pearson Event Timeline to correct spelling and grammatical errors, and he revised the document in order to streamline it for other readers in the Human Resources ("HR") Department later on. (Id.)

Plaintiff disputes whether the Jessica Pearson Event Timeline was created in February 2012; she argues that it was created after she later submitted a complaint regarding Osmond's treatment of her, in December 2012. (See Pl.'s Opp'n 9-10.)

Regardless of this dispute, Defendant cites Osmond's notes in describing some of the interactions between Osmond and Plaintiff. Osmond indicated that Plaintiff was 15 minutes late to her second meeting with him on February 10, 2012. (Jessica Pearson Event Timeline, at D00159.) At that meeting, Plaintiff's "BDR spreadsheet"-a spreadsheet that she used to keep track of customers and prospective customers-was not accurately updated, and this was noted by Osmond. (Id.; Pearson Dep. 257.)

5. June 2012 Verbal Counseling Warning

On May 31, 2013, Osmond provided Plaintiff with "verbal counseling" (i.e., a verbal written warning) regarding her performance related to a potential deal with a customer named Bon Ton; this was later documented by Osmond on a "Verbal Counseling" form document. (Osmond Aff., Ex. 7.) The counseling was given because three U.S. Bank employees who worked on the Bon Ton project-Rick Pileggi, Tom Ayers, and Pat Disanto-complained to Osmond about Plaintiff's performance on the project. (Osmond Aff. ¶ 8; Jessica Pearson Event Timeline, at D00160.) These co-workers specifically complained that Plaintiff waited until the project deadline to complete a final document review. (Osmond Aff. ¶ 8.) Plaintiff admits that this happened. (Pearson Dep. 287-88.) Because Plaintiff waited until the due date, she and Pat Disanto had to stay at work until 7:00 p.m. to complete the Bon Ton project. ( Id. at 290.)

On the Verbal Counseling form, Osmond stated that he advised Plaintiff that "[i]t is unacceptable to have a due date of the 25th and to have final review of a document take place on the same day, while you are scheduled to be on vacation." (Osmond Aff., Ex. 7.) He further stated that U.S. Bank's expectation is that "[a]ll deliverables will be completed not only on time, but with adequate time for all interested parties to review and approve." (Id.) Osmond then warned that ...

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