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Rowberry v. Wells Fargo Bank NA

United States District Court, D. Arizona

November 17, 2015

Kimberly Rowberry, Plaintiff,
Wells Fargo Bank NA, et al., Defendants.


Douglas L. Rayes United States District Judge

Before the Court is Defendant Wells Fargo Bank, N.A.’s (“Wells Fargo”) Motion for Summary Judgment. (Doc. 37.) The motion is fully briefed. For the following reasons, Wells Fargo’s motion is granted.


This case arises from the termination of Plaintiff Kimberly Rowberry’s employment with Wells Fargo. Rowberry alleges that Wells Fargo wrongfully terminated her for: (1) refusing to join in her supervisor’s scheme of falsifying bank records; (2) requesting/taking leave under the Family and Medical Leave Act (“FMLA”); (3) seeking Arizona workers’ compensation; and (4) her disabling back issues and anxiety. (See Doc. 1-1.) She also alleges that Wells Fargo or certain of its employees made defamatory statements about her termination. (Id.)

I. Rowberry’s Employment with Wells Fargo

Wells Fargo hired Rowberry as a teller in 2004 and promoted her several times, including most recently to Service Manager Level 2-second in command behind Branch Manager Teresa Pena.[1] (Doc. 38, ¶¶ 7-11.) During this time, Rowberry requested and received accommodations for back issues. Wells Fargo granted Rowberry FMLA leave in 2006 and 2010. (Id., ¶¶ 13, 17.) Rowberry exhausted her FMLA leave during both absences and, each time, Wells Fargo extended her leave. (Id., ¶¶ 14, 17.) Rowberry returned to her same position at the branch and received fair performance evaluations following each of these absences. (Id., ¶¶ 15-16, 18-19.) To accommodate Rowberry’s back issues, Wells Fargo allowed her to reduce her work schedule and provided her with an ergonomic chair. (Id., ¶ 18.)

II. Wells Fargo’s Internal Investigation

Wells Fargo uses a third party vendor to conduct customer satisfaction surveys. (Id., ¶ 21.) The vendor contacts customers to ask about their experiences at the branch using the phone numbers listed in Wells Fargo’s records. (Id.) Wells Fargo calls these surveys “WOW Shops” and expects its employees to receive positive reviews. (Id., ¶¶ 21-22.)

In April 2013, a customer had a negative experience with a teller at Rowberry’s branch. (Id., ¶ 23.) The customer asked the teller for her business card and stated that she planned to complain to her private banker about the incident. (Id., ¶ 24.) The customer left a message for her private banker to call her about the incident, but her private banker was unable to reach her using the number in Wells Fargo’s records. (Id., ¶ 25.) When the customer eventually reached her private banker, the two discovered that the customer’s phone number had been changed to an incorrect number in Wells Fargo’s system. (Id.)

Wells Fargo assigned an investigator, Von Faler, to look into the incident. (Id., ¶ 26.) Based on his investigation, Faler concluded that personal banker Alexis Segura had improperly changed the customer’s phone number. (Id., ¶ 27.) In May 2013, Wells Fargo terminated Segura’s employment for falsification of records. (Id., ¶ 28.)

Segura appealed his termination, contending that Pena instructed him to change the customer’s phone number to avoid a negative WOW Shop score. (Id., ¶ 31.) Employee Relations Consultant Michelle Wilkie investigated Segura’s complaint but could not substantiate his claims. (Id., ¶¶ 33-34.) However, Segura’s claim that he changed the customer’s phone number to avoid a negative WOW Shop score prompted Wilkie to audit the entire branch.[2] (Id., ¶¶ 35-36.)

Wilkie contacted Wells Fargo’s Sales Quality Department and requested a list of all questionable phone number changes at the branch between January 1, 2013, and April 30, 2013. (Id., ¶ 36.) Sales Quality produced 18 phone number changes that appeared questionable. (Id.) Wilkie asked Sales Quality to gather similar information from a comparable branch to determine if the number of questionable phone number changes at Rowberry’s branch was normal. (Id.) Sales Quality produced only five questionable phone number changes at the comparison branch. (Id.) Based on this information, Wilkie asked Faler and Investigator Larenn Griffus to investigate the phone number changes at Rowberry’s branch. (Id., ¶ 37.)

Wells Fargo identified five employees, including Rowberry, who had questionably changed customer phone numbers. (Id., ¶ 36.) Griffus and Faler interviewed these employees and concluded that the phone numbers changed by all except Rowberry were legitimate or adequately explained. (Id., ¶¶ 38-43.)

Griffus and Faler determined that Rowberry had changed the home and cell phone numbers of a customer in February 2013.[3] (Id., ¶ 48.) They also discovered that other Wells Fargo employees corrected the customer’s numbers in March and April, indicating that Rowberry’s changes were not valid. (Id., ¶ 49) Griffus and Faler reviewed security footage for the date the phone numbers were altered and found that Rowberry spent almost an hour with a visibly angry customer. (Id.) The investigation revealed that the customer’s phone numbers were changed the same day as this visit by someone using Rowberry’s user identification number. (Id., ¶ 51.)

Griffus and Faler interviewed Rowberry about the phone number changes on June 20, 2013. (Id., ¶ 52.) Rowberry stated that she did not recall changing this customer’s phone numbers, but that she often changed customer phone numbers. (Id.) Based on this information, Wells Fargo placed Rowberry on paid administrative leave pending the outcome of the investigation. (Id., ¶ 53.) Rowberry contends that Faler informed her during this meeting that her employment was going to be terminated.[4] (Id., ¶ 54.)

The following day, Wells Fargo District Manager Justin Martz contacted the customer to ask about his experience at the branch. (Id., ¶ 55.) He confirmed that he had a negative experience and that he had not requested any phone number changes. (Id.)

III. Rowberry’s Termination

On June 24, 2013, Wells Fargo decided to terminate Rowberry’s employment for falsifying customer phone numbers. (Id., ¶ 56.) The following day, Pena left a message for Rowberry to come into the branch at 4:00 P.M. (Id., ¶ 57.) Wells Fargo intended to terminate her at this meeting, but Rowberry did not appear.[5] (Id.) Instead, she submitted an application for FMLA leave and a workers’ compensation claim stating that she had suffered a workplace injury on May 15 and 28, 2013. (Id., ¶¶ 58-59.). Wells Fargo notified Rowberry by letter that her employment was terminated effective July 3, 2013, for falsification of records. (Id., ¶ 60.)

Wells Fargo’s third party leave administrator initially approved Rowberry’s June 25, 2013 request for FMLA leave because it was unaware that Wells Fargo had terminated her employment. (Id., ¶ 61.) After learning of Rowberry’s termination, the leave administrator contacted Rowberry, notified her of the error, and explained that her medical leave ended when her employment was terminated. (Id., ΒΆ 62.) ...

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