United States District Court, D. Minnesota
ORDER ON DEFENDANT'S MOTION FOR SUMMARY
E. BRASEL UNITED STATES DISTRICT JUDGE
Julie McKey brought this action for age discrimination and
retaliation against her former employer, defendant U.S. Bank
National Association (“U.S. Bank”). U.S. Bank
moves for summary judgment on both claims. For the reasons
that follow, U.S. Bank's motion is granted.
McKey's Employment with U.S. Bank
Bank is a national bank with its offices in Minneapolis,
Minnesota. [See ECF No. 1 “Compl.”
¶ 3.] McKey started working for U.S. Bank in 1975. [ECF
No. 77 “Rochel Decl.” ¶ 4 (“McKey
Dep.”) 24:7-8.] In 2006, McKey transferred into the Global
Corporate Actions department as a Securities Specialist, the
position she held until her termination in September 2016.
(McKey Dep. 26:9-19, 28:4-18; 40:4-8.) McKey's job
duties, which she was typically expected to complete in a
40-hour workweek, included managing clients' financial
portfolios, processing trades and transactions, meeting
deadlines, and working with multiple computer systems. (McKey
Dep. 34:11-36:12, 38:8-10; Mehsikomer Dep. 20:9-25.)
McKey's team consisted of six to eight members who worked
together to process transactions such as “stock
options, dividends, stock splits, [and] different sorts of
events that foreign companies could invest in.”
(Mehsikomer Dep. 22:13-23:15; see also Caswell Dep.
2011, McKey began reporting to Yvonne Mehsikomer. (Mehsikomer
Dep. 13:6- 9.) Mehsikomer reported to Senior Trust Technology
and Support Services Manager Keith Frohlicher, who reported
to U.S. Bank Operations Manager Alice Owens, who reported to
Senior Vice President of Global Services Scott Joers.
(Mehsikomer Dep. 16:22- 17:19; Rochel Decl. Ex. B.)
McKey's Performance Reviews
McKey was a solid employee. (Mehsikomer Dep. 34:11-25.)
McKey's performance was generally unremarkable until
2015, and her annual performance reviews contain both
positive comments and constructive feedback. (McKey Dep.
105:6- 14; Mehsikomer Dep. 174:10-20; Owens Dep. 12:8-13:3.)
Bank uses a 1-out-of-5 rating system in its employee
performance reviews: 1 is the best
(“exceptional”), and 5 is the worst (“not
effective”). [See ECF No. 52 “Emmons
Decl.” Exs. 11-13, 15.] McKey's 2011 performance
review, completed by Mehsikomer, shows an overall 3-out-of-5
performance rating. It states, “Julie needs to learn
how to work along side [sic] her peers.” (Emmons Decl.
Ex. 11 at 2; McKey Dep. 45:15-49:8.) McKey's 2012
performance review again shows an overall 3-out-of-5
performance rating and notes, “Julie needs to work on
managing her time better.” (Emmons Decl. Ex. 12 at 2;
McKey Dep. 54:8-57:22.) Her 2014 review contains the same
rating, this time noting that “Julie was having a hard
time processing her events within an 8 hour day and was
working a lot of overtime and needing to ask coworkers for
help, ” and that “Julie needs to continue to work
on processing all her events in an 8-hour work day, and also
without help.” (Emmons Decl. Ex. 13 at 2; McKey Dep.
80:10-82:21.) Similarly, McKey's 2015 performance review
shows an overall “solid performance” rating, but
Mehsikomer continued to note the same issues and gave McKey a
“needs improvement” rating on the
“Establish Trust” category of her review. (Emmons
Decl. Ex. 15 at 4.) McKey's 2015 performance review also
notes that McKey needs “to continue working on staying
on top of her desk and completing tasks assigned to her in an
8-hour day. She also needs to work on reporting issues, not
assigned to her, to her manager right away rather than do
them herself and get behind on her own desk.”
(Id. at 5.)
2015 review also states that McKey caused on error on an
event “by not properly researching her events on XSP,
or asking her manager for assistance.” (Id. at
3.) The 2015 review concludes, “Julie had a year of
challenges and struggles … Julie needs to learn to
utilize her time more efficiently and ensure her own desk is
complete before helping others. My challenge for Julie is to
work on being able to complete her desk in an 8-hour
day.” (Id. at 6.) All in all, McKey's
reviews consistently show that she struggled to get her work
done on time and correctly. (See Emmons Decl. Exs.
McKey's employment with U.S. Bank, the bank used the XSP
computer program to make client elections. (McKey Dep.
35:23-36:7, 49:12-50:5; Mehsikomer Dep. 25:22-23.)
McKey's job duties included using XSP. (McKey Dep.
35:23-36:7, 49:12-50:5; see also Mehsikomer Dep.
25:22-23.) In 2015, U.S. Bank introduced an advancement to
XSP called SWIFT. (Mehsikomer Dep. 24:7-25:22, 38:18-39:17;
Owens Dep. 45:1-9.) SWIFT was new to the entire team.
(Mehsikomer Dep. 37:21-38:4.) Employees attended various
trainings on SWIFT, both in group settings and individually
via one-on-one training. (Mehsikomer Dep. 37:21-38:12; McKey
Dep. 65:5-22.) McKey wanted additional training beyond what
was offered to everyone else in the department, and she
wanted someone to sit with her at her desk every day to help
her do her job. (McKey Dep. 70:6-71:9, 72:12- 74:9.) U.S.
Bank provided additional training to McKey when she requested
it. (Mehsikomer Dep. 73:25-74:1.)
McKey's Work Performance, Allegations of Discrimination,
and the “Iberdrola Error”
evident from the performance reviews, McKey's
“performance started to go down in the fall of
2015.” (Mehsikomer Dep. 174:19-20.) Mehsikomer
described McKey as “start[ing] to show that she was
losing the ability to process her desk.” (Id.
at 174:13- 20.) McKey continued to make errors when using the
SWIFT program. (McKey Dep. 59:6- 60:20.) In July 2015,
Mehsikomer started a “significant event form” to
reflect McKey's performance issues. (Mehsikomer Dep.
168:3-169:2; Emmons Decl. Ex. 14.) The significant event form
describes instances of McKey failing to complete her assigned
duties or needing extra time to complete her work. (McKey
Dep. 50:6-51:9, 84:2-86:20; Mehsikomer Dep. 44:17-45:9;
Emmons Decl. Exs. 11-13.) McKey also made mistakes posting
client elections. (Emmons Decl. Ex. 14.) Mehsikomer and her
manager, Frohlicher, met with McKey at various times during
the fall of 2015 to address these issues. (Emmons Decl. Ex.
14; Mehsikomer Dep. 44:17-45:9; Frohlicher Dep. 11:5-11,
April 22, 2016, Mehsikomer met with McKey to deliver a 60-day
Action Plan, also known as a performance improvement plan
(“PIP”). (Emmons Decl. Ex. 16.) The Action Plan
detailed McKey's performance issues and stated that McKey
had 60 days to improve her performance with U.S. Bank.
(Id.) Under the Action Plan, U.S. Bank reserved the
right to take additional action with respect to her
employment, including termination, prior to or at any time
after the completion of the plan. (Id.) In the
meeting with Mehsikomer, McKey stated that she believed
several of the assertions in the Action Plan were inaccurate,
and expressed her intent to contact human resources.
(Mehsikomer Dep. 56:21-57:10; McKey Dep. 150:16-151:6.) After
meeting with McKey, Mehsikomer emailed Senior Human Resources
Business Partner Kerri Guse (“Guse”), explaining
that McKey would be contacting her to report concerns.
(Rochel Decl. Ex. G.)
was true to her intent, emailing Guse soon after: “I am
concerned that my manager [Mehsikomer] is attempting to have
me fired due to my age. I am planning to retire at 65 years
of age. I am 64 now. I would like a chance to discuss this
with you please as soon as possible.” (Emmons Decl. Ex.
17.) Guse called McKey to address her concerns. (McKey Dep.
186:1-188:6; Guse Dep. 32:8-35:23; Emmons Decl. Ex. 18.)
McKey continued to make errors while on the Action Plan.
(McKey Dep. 195:17-199:25.) For example, on May 11, 2016, an
employee discovered that McKey had not followed procedure for
making a client election. (Emmons Decl. Ex. 14.) On May 19,
2016, another employee notified Mehsikomer that McKey asked
her team members questions several times a day about how to
complete her job duties. (Id.; see also
Emmons Decl. Ex. 19.) On May 23, 2016, McKey failed to
properly make an election for a customer. (Emmons Decl. Ex.
20; McKey 195:13-23.) Around this same time, she also made
another mistake when posting a different client election, and
her co-worker had to correct the error. (Emmons Decl. Ex. 21;
McKey Dep. 196:21-10.) Despite these errors, McKey was issued
a “completion notice” for the Action Plan on July
8, 2016. (Emmons Decl. Ex. 22.) It stated: “If
consistent performance is not demonstrated, further action,
up to and including termination may result without additional
warnings.” (Emmons Decl. Ex. 22.) McKey understood that
she could be terminated for further performance issues;
however, Mehsikomer told McKey not to worry about
termination. (McKey Dep. 201:1- 203:25.)
early August 2016, McKey was responsible for handling a
corporate action notice about a customer asset called
“Iberdrola.” (McKey Dep. 205:8-206:2; 212:17-15;
Mehsikomer Dep. 101:5-102:22.) After being alerted by the
customer that an error had been made in the election, McKey
immediately reported it to Mehsikomer and they had a meeting
with Frolicher, who told McKey that as the senior employee in
the department, she should not be making such
mistakes. (McKey Dep. 95:3-96:12, Frohlicher Dep.
64:10- 19.) Mehsikomer asked McKey to check if other accounts
were affected by the same issue. (McKey Dep. 213:16-218:23,
221:7-225:12; Mehsikomer Dep. 102:13-105:9; Emmons Decl. Ex.
14.) Ultimately, the department discovered that the Iberdrola
asset election was processed incorrectly due to an issue with
XSP. (McKey Dep. 206:6-209:11; see also Emmons Decl.
Ex. 27.) But after Mehsikomer directed McKey to look at the
same issue in other accounts, McKey gave Mehsikomer incorrect
calculations and failed to produce information for two other
accounts that were affected by the same error. (McKey Dep.
214:25-216:23; Mehsikomer Dep. 102:13-105:9; Emmons Decl.
Exs. 14, 25.) And throughout the first half of August, errors
continued. For example, on August 15, 2016, Mehsikomer
emailed McKey asking her to correct an error she had made
processing a notification. (Emmons Decl. Ex. 23; McKey Dep.
227:5-228:15.) On August 17, 2016, McKey made another error
posting an event. (Emmons Decl. Exs. 14, 24; McKey Dep.
on August 18, 2016, Mehsikomer recommended terminating McKey
to Frohlicher and Owens. (Emmons Decl. Ex. 25; Mehsikomer
Dep. 98:3-20; Frohlicher Dep. 11:5-16; Owens Dep.
9:25-10:15.) Mehsikomer detailed the reasons for her
recommendation, including: the 60-day Action Plan, failure to
perform due diligence after Iberdrola, and additional errors
using XSP. (Emmons Decl. Ex. 25.) Owens responded that she
was informing her manager, Joers, and said she wanted to
consult with Guse as well. (Owens Dep. 17:11-18:25; Joers
Dep. 12:2-8; Ex. 26.) Upon discovering that the Iberdrola
error was an XSP issue rather than a McKey error, Mehsikomer
emailed Guse on August 30, 2016:
[n]ew information came to light regarding an error we thought
[McKey] created which caused a large loss. Someone from XSP,
which is our Corp Action system, informed us of a more
accurate way to execute this process. Due to this new info,
she may have done it the way she was told to. Since it's
impossible to tell, we cannot hold her accountable for it,
however, there are other errors. I am not sure if they
warrant termination, but at this point I am not clear how to
proceed. I hold firm to the fact that Julie cannot keep up
with the demands of her desk so something needs to be done.
(Emmons Decl. Ex. 27.)
on August 19, 2016, Guse emailed Alice Owens, Keith
Frohlicher, and Mehsikomer, suggesting that instead of
immediately terminating McKey, U.S. Bank give her 30 days to
find a new role at U.S. Bank or externally. (Emmons Decl. Ex.
27.) On September 13, 2016, McKey met with
Mehsikomer, Guse, and Frohlicher. (McKey Dep. 230:5-233:24.)
They told McKey that due to her additional errors, she had 30
days to secure a job, and that if she ...