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Sherrills v. Wells Fargo Home Mortgage

United States District Court, N.D. Ohio, Eastern Division

August 30, 2017




         On August 27, 2015, Plaintiff Denise Sherrills (“Plaintiff”) filed a Pro Se Complaint against her former employer, Defendant Wells Fargo Home Mortgage (“Defendant”), alleging racial discrimination, retaliation, and gender discrimination. Currently pending before the court is Defendant's Motion to Dismiss (ECF No. 44) Plaintiff's Second Amended Complaint. Also pending before the court is Plaintiff's Unsigned Objection, which the court construes as a motion for relief under Federal Rule of Civil Procedure 60(b) (“Motion for Relief”) (ECF No. 43). For the reasons stated herein, the court hereby denies Defendant's Motion to Dismiss (ECF No. 44), and it denies Plaintiff's Motion for Relief (ECF No. 43).

         Plaintiff may renew her request for the appointment of counsel, if she wishes to do so, by September 14, 2017. In her motion, Plaintiff should explain why she believes that she is indigent as well as whether she has made any attempts to secure an attorney since her last motion. Defendant shall respond to Plaintiff's motion by September 21, 2017. Plaintiff shall file her reply, if any, by September 28, 2017.

         I. BACKGROUND

         Plaintiff, an African-American female, was employed by Defendant's Independence, Ohio location from January 2013, until December 2013, where she worked as a Consumer Underwriter III reviewing and underwriting mortgage loans for potential borrowers. (Second Am. Compl. ¶¶ 2, 8, ECF No. 37.) Prior to her employment, Plaintiff attained a college degree, attained a Direct Endorsement Underwriter Certification, and amassed 20 years of banking experience. (Id. at ¶ 8.)

         Plaintiff was required to take seven “test cases, ” along with every newly hired underwriter, in order to gain the “authority” to underwrite loans for Defendant's customers. (Id. at ¶¶ 9-14.) Defendant requires that authority candidates obtain passing scores on six out of seven of those test cases in order to gain their authority. (Id. at ¶ 14.) Defendant's Standard Operating Procedures Manual gives supervisors discretion to assign test cases to authority candidates, provides analysts with criteria with which they must score the tests, and gives lending officers the ability to override an authority candidate's failing score if they disagree with the analyst's decision. (Id. at ¶¶ 40-41; Suppl. Ex. 4, ECF No. 38-4.) No guidelines specify the number of tests an authority candidate must pass if she fails two or more of the seven initial tests. (Second Am. Compl. ¶ 14.)

         Plaintiff alleges that Anmarie Stewart (“Stewart”), her lending officer, along with her team leader, the Vice President of LAS, and two analysts, conspired against her to prevent her from gaining her authority. (Id. at ¶ 22.) Plaintiff received “no pass” scores on at least two of her first seven test cases. (Id. at ¶¶ 12-13.) One additional test case was taken away from Plaintiff without explanation and was not included among her first seven tests. (Id.) Defendant provided additional test cases to her, but she received failing scores on an unspecified number of these tests as well. (Id. at ¶¶ 12-19.) Plaintiff alleges that several things prevented her from obtaining the necessary number of passing test scores: one test was taken away from her and was not scored without explanation; Stewart provided her with incorrect information on one or more of the tests; Stewart “redid” one of her loans without her knowledge; one analyst manipulated information in the underwriting software; and one analyst gave her a failing score for “made up” reasons. (Id. at ¶¶ 13-24.) She appealed, or “escalated, ” each of her failing scores in order to get them overturned because she believed that she had performed well enough to receive passing scores. (Id. at ¶ 13.)

         On March 8, 2013, Plaintiff met with her Site Manager, her Lending Officer, and her Team Supervisor. (Id.) During the meeting, Plaintiff explained that she believed she had passed the necessary number of tests, and she argued that one of her test cases should not have been taken away from her without being scored. (Id.) Further, she tried to persuade Stewart to override her failing scores. (Id.) Both the Site Manager and Stewart agreed that one of her tests should not have been taken away from her without being scored, but Stewart nevertheless stated that Plaintiff “was going to have to take the fall for this loan.” (Id.) Plaintiff alleges that she “could feel and hear the racial tones of my mental being inferior.” (Id.) In addition to her grievances, Plaintiff expressed her desire to “move into management” at some point in the near future. (Id.) Following the meeting, Stewart and Plaintiff's team supervisor gave Plaintiff unsettling looks and told Plaintiff in “harsh tones” that she was “not getting things.” (Id.)

         Plaintiff again met with the Site Manager, Stewart, and the Team Supervisor on March 28, 2013. (Id.) There, Plaintiff's supervisors informed her that her appeals were unsuccessful and that she was going to receive failing test scores for each of the escalated test cases. (Id.) Plaintiff alleges that these meetings were “unreasonable.” (Id. at ¶¶ 46, 59.)

         Also on March 28, 2013, the Site Manager told her that she should apply for a position as the Regional Processing Manager and that her failing test scores would not be a “deal breaker.” (Id. at ¶¶ 13, 45.) Plaintiff alleges that she was denied this position and that she was not given an equal opportunity to advance her career. (Second Am. Compl. ¶¶ 43, 45.)

         Furthermore, Plaintiff alleges that she was “subjected to racial stereotypical and derogatory comments, ” that she was “treated in a demeaning manner, ” and that Defendant's LAS team “disrespect[ed] [her] qualifications.” (Id. at ¶¶ 46, 53.) She alleges that Defendant gave authority to less qualified Caucasian Consumer Underwriters I, II, and III, and she lists several of those employees by name. (Id. at ¶¶ 27, 29, 30, 50.) She also alleges that females received unequal pay and that Dan Mountcastle, a Caucasian male who was less experienced than her, was given a larger salary upon being hired as a Consumer Underwriter III. (Id. at ¶¶ 36, 50.) In addition, Plaintiff alleges that her mentor “made jokes about her body frame.” (Id. at ¶ 12.)

         On April 9, 2013, Plaintiff contacted Defendant's human resources department. (Id. at ¶ 26.) She stated that she was being “discriminated against and treated unfairly.” (Id.) Plaintiff alleges that Defendant retaliated against her for communicating her grievances to the human resources department. (Id. at ¶ 57.) She alleges that her work conditions became “intolerable” and that she “was threatened with termination for voicing [her] opinion, ” and she again alleges that she was subjected to “racial stereotypical and derogatory comments.” (Id. at ¶¶ 56, 57.)

         On April 24, 2013, Plaintiff took medical leave for depression, anxiety, and headaches. (Id. at ¶¶ 26, 27, 36(e).) In or around May 2013, Plaintiff contacted the Equal Employment Opportunity Commission (“EEOC”) and filed a discrimination charge. (Id. at ¶¶ 7, 26, 83.) From July 3, 2013, through September 18, 2013, Plaintiff was out of the workplace on short-term disability. (Id. at ¶¶ 27, 37(e).)

         Upon her return to work, on September 18, 2013, Plaintiff worked a part-time schedule. (Id. at ¶ 36(f).) At that time, a number of employees at Defendant's Independence office had already been laid off. (Id. at ¶¶ 36(f), (g).) Eventually, Plaintiff returned to a full-time schedule. (Id. at ¶ 36(f).) She was instructed that, in order to gain her authority, she was required to correctly calculate ten loans, but she was not given any further test cases or any other work. (Id.)

         On October 16, 2013, a group of employees at Defendant's Independence office, including Plaintiff, were informed that they would be laid off as part of a reduction in force. (Id.) Defendant presented its employees with severance and release agreements, which provided that employees would receive severance pay but could not sue Defendant for their termination. (Id. at ¶ 36(g).) Plaintiff alleges that she has not received this severance pay. (Id.) She also alleges that she would not have been laid off if she had obtained her authority and attained the status of a Consumer Underwriter IV. (Id. at ¶¶ 38-39, 63.)

         In 2013, Plaintiff filed suit against Defendant based on many of the same underlying facts as the present case (Plaintiff's “2013 Case”). Am. Compl., No. 1:13-CV-1809, ECF No. 1-1 Ex. A (N.D. Ohio 2013). She proceeded pro se and sought relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”), alleging that Defendant intentionally discriminated against her on the basis of race and retaliated against her. Id. at ¶¶ 21-22. Defendant moved to dismiss Plaintiff's claims under Federal Rule of Civil Procedure 12(b)(6), arguing that she: (1) failed to exhaust her administrative remedies by not obtaining a right-to-sue letter from the EEOC; and (2) failed to state plausible claims for relief. Mot. to Dismiss, No. 1:13-CV-1809, ECF No. 10 (N.D. Ohio 2013). This court granted Defendant's Motion to Dismiss on both grounds. Order, No. 1:13-CV-1809, ECF No. 12 (N.D. Ohio 2014).

         In June 2015, Plaintiff obtained her right-to-sue letter from the EEOC. (First Am. Compl. ¶ 6, ECF No. 25.) On August 27, 2015, she filed the within action against Defendant. (Compl., ECF No. 1.) She again proceeded pro se and pled several claims for relief. (See Compl.) Plaintiff has twice amended her Complaint. (See First Am. Compl., ECF No. 25, Second Am. Compl., ECF No. 37.) Although Plaintiff's First Amended Complaint was not timely filed, the court gave Plaintiff latitude and treated the amendment as an amendment as of right. (See Order at 3, ECF No. 28). On January 11, 2016, Defendant filed a Motion to Dismiss Plaintiff's First Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). (Mot. Dismiss First Am. Compl., ECF No. 30.) Defendant argued that Plaintiff's discrimination claims were barred by the doctrine of res judicata and that they were not sufficiently pled. (Id.) On February 10, 2016, Plaintiff moved the court for leave to plead a Second Amended Complaint, which included additional factual allegation to support her discrimination claims as well as several additional claims for “mental and emotional distress, ” “intolerable work place, ” defamation, harassment, slander, and civil conspiracy. (Mot. Leave Plead Second Am. Compl., ECF No. 36.) That same day, Plaintiff filed a Supplement to her Motion for Leave to Plead her Second Amended Complaint, which included four exhibits. (Suppl. Exs. 1-4, ECF No. 38.)

         On September 28, 2016, the court granted Plaintiff's Motion for Leave to Plead her Second Amended Complaint with respect to her discrimination claims. (Order, ECF No. 42.) The court explained that leave to amend was what “justice so require[d]” and that the amendments were not, as Defendant contended, futile, unduly delayed, or prejudicial. (Id. at 5-11.) Specifically, the court explained that Plaintiff's claims are not barred by the doctrine of res judicata and that the Second Amended Complaint's additional facts could aid Plaintiff's claims. (Id. at 7-10.) However, the court denied Plaintiff's Motion with respect to her additional claims, and it denied Defendant's Motion to Dismiss Plaintiff's First Amended Complaint as moot. (Id. at 10-12.)

         Plaintiff's Second Amended Complaint alleges, in relevant part, that Defendant: (1) violated Title VII by discriminating against Plaintiff on the basis of her race; (2) violated Title VII by retaliating against Plaintiff after she reported Defendant's alleged discrimination to both Defendant's human resources department and the EEOC; and (3) violated Ohio Revised Code § 4112.02 by discriminating against her on the basis of her gender. (Second Am. Compl. ¶¶ 65-84.)

         On October 7, 2016, Plaintiff filed her Motion for Relief, which was styled as an “Unsigned Objection.” (Obj., ECF No. 43.) In her Motion, Plaintiff requests that the court reconsider its September 28, 2016 Order, and argues that the court should have given her leave to plead her Second Amended Complaint in its entirety, including her additional claims. (Obj., ECF No. 43.)

         On October 14, 2016, Defendant filed its Motion to Dismiss Plaintiff's Second Amended Complaint under Rule 12(b)(6), arguing that Plaintiff does not state plausible claims for relief. (Mot. Dismiss, ECF No. 44.) In addition, Defendant footnotes that it “incorporates its previous arguments presented in this case on res judicata and claim preclusion, and expressly reserves those issues for appeal.”[1] (Id. at 3 n.1.) Plaintiff filed an Opposition to Defendant's Motion on October 28, 2016, in which she pointed to a number of exhibits to support her claims, some of which were included in her Supplement to her Second Amended Complaint and some of which are included elsewhere in the record. (Opp'n, ECF No. 45.) In its Reply, which was filed on November 3, 2016, Defendant argues that the court should not consider these exhibits in support of Plaintiff's claims because Plaintiff has not properly incorporated them. (Reply 1-4, ECF No. 46.) On November 7, 2016, without moving the court for leave to file a sur-reply, Plaintiff filed a Brief in Support of her Opposition. (Br. Supp. Opp'n, ECF No 47.)


         The court examines the legal sufficiency of the plaintiff's claim under Federal Rule of Civil Procedure 12(b)(6). See Mayer v. Mulod, 988 F.2d 635, 638 (6th Cir. 1993). The Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) and in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) clarified the ...

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