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McKey v. U.S. Bank Nat'l Assoc.

United States District Court, D. Minnesota

July 12, 2019

JULIE MCKEY, Plaintiff,
U.S. BANK NAT'L ASSOC., Defendant.



         Plaintiff 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.


         I. McKey's Employment with U.S. Bank

         U.S. 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.][1] 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. 11:2-9, 20-12:10.)

         In 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.)

         II. McKey's Performance Reviews

         Generally, 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.)

         U.S. 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.)[2] 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.)

         The 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. 11-13, 15.)

         III. XSP/SWIFT System

         During 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.)

         IV. McKey's Work Performance, Allegations of Discrimination, and the “Iberdrola Error”

         As is 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, 13:20-23.)

         On 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.)

         McKey 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.)

         Meanwhile, 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.)

         In 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.[3] (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. 228:17-229:5.)

         V. McKey's Termination

         Finally, 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.)

         Previously, 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 ...

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