United States District Court, D. Utah
District Judge Dee Benson
REPORT AND RECOMMENDATION
B PEAD UNITED STATES MAGISTRATE JUDGE
matter was referred to the court pursuant to 28 U.S.C. §
636(b)(1)(B). (See ECF No. 12.) On January 27, 2014,
Mr. Nielson (“Plaintiff”) filed, pro se, a
complaint against his former employer, Wells Fargo Bank, NA
(“Wells Fargo”) and former supervisors, in
relevant part, Phillip Meeks (“Mr. Meeks”) and
Brent Scherzinger (“Mr. Scherzinger”)
(collectively referred to as “Defendants”). Mr.
Nielson then amended his complaint on January 28, 2014 and
again on February 24. 2015. (See ECF Nos. 2, 23.)
The second amended complaint alleges three causes of action:
(1) violation of the federal Age Discrimination in Employment
Act, 29 U.S.C. §§612- 634; (2) violation of the
Utah Antidiscrimination Act, Utah Code Ann. § 34A-5-101
through -108; and (3) intentional infliction of emotional
distress. (See Second Amended Complaint (“Am.
Compl.”), ECF No. 23.)
August of 2016, the Court dismissed Plaintiff's
intentional infliction of emotional distress claim as to
defendants Wells Fargo and another supervisor but not as to
Mr. Meeks and Mr. Scherzinger. (See ECF No. 45.)
Currently, Defendants' seek to dispose of all three
causes of action. The motions pending before the court are
Defendants' Motion for Summary Judgment (ECF No. 74),
Defendants' Motion to Strike (ECF No. 83), and
Plaintiff's Motion to Compel (ECF No. 93).
court has carefully reviewed the moving papers submitted by
the parties. Pursuant to civil rule 7-1(f) of the Rules of
Practice for the United States District Court for the
District of Utah, the court concludes that oral argument is
not necessary and will determine the motions on the basis of
the written papers. See DUCivR 7-1(f). For the
reasons set forth below, the Court
RECOMMENDS the District Court grant
Defendants' Motion for Summary Judgment thereby mooting
the remaining matters.
of Undisputed Facts
October of 2011, Defendants hired Plaintiff to serve as
Senior Business Relationship Manager reporting to Gary Havens
(“Mr. Havens”). (See Am. Compl. at 3;
Amended Answer to Second Amended Complaint
(“Answer”), EFC No. 53 at 4; see also,
Offer of Employment Letter, ECF No. 74-1 at 16.) After a
little over a year of employment, Plaintiff received a
promotion. (See Am. Compl. at 3; Answer at 4.) Near
the end of 2012, Plaintiff's immediate manager Mr. Havens
transitioned to another position and his ten team members
were equally reassigned between Mr. Meeks' and another
manager. (See ECF No. 74-1 at 87.)
time, Plaintiff and another individual (out of those who
transitioned to Mr. Meeks' team) were the only two
bankers over the age of 40. (See Am. Compl. at 4;
Answer at 4; see also ECF No. 74-1 at 87-8.) In
January of 2013, Plaintiff received a satisfactory
performance review and a salary increase. (See Am.
Compl. at 4; Answer at 4.) Despite this, it was known to Mr.
Meeks that Plaintiff's performance “ranked near the
bottom” of the five team members who transitioned his
team. (ECF No. 74-1 at 88.) Purportedly, this information was
gleaned because each team member's outstanding loan and
deposit balances were considered at the time of transition.
(Id. at 87.)
in time with the reassignment of Plaintiff to Mr. Meeks'
team, there were two openings for two Business Banking
Managers, one of whom would oversee Mr. Meek's team.
(See ECF No. 74-1 at 87-8.) In approximately
February of 2013, Mr. Scherzinger was selected to fill the
position reporting to Mr. Meeks, meaning he would also serve
as Plaintiff's direct supervisor. (See Am.
Compl. at 4; Answer at 4.)
February, 2013, Mr. Scherzinger received a call from a
private banker regarding Plaintiff's poor performance.
(See ECF No. 74-1 at 88.) On March 5, 2013, Mr.
Meeks and Mr. Scherzinger met with Plaintiff to discuss his
poor performance. (Id.) Mr. Meeks and Mr.
Scherzinger considered Plaintiff to have been placed on
informal warning at this time due to his poor customer
service and lack of follow through with job duties.
(Id.; see also ECF No. 74-1 at 13.) At the
time, this level of corrective action appeared appropriate.
Plaintiff received the informal warning, Mr. Scherzinger
continued to receive complaints about Plaintiff's
deficient performance. (See ECF No. 74-1 at 89.) In
response, Mr. Scherzinger issued a written formal warning to
Plaintiff. (See ECF No. 74-1 at 66.) By way of the
formal warning, Plaintiff was notified that he had until
April 30, 2013 to meet the performance standards required of
his job. (Id. at 67.) He was further notified that
if he failed to “show immediate and sustained
improvement in all performance standards and work
expectations” then he could face termination.
(Id. at 68.)
ensure he was meeting the objectives set forth in the formal
warning, Plaintiff and Mr. Scherzinger met almost each week
to discuss his performance. (See ECF No. 74-1 at
89.) Mr. Scherzinger followed-up each meeting with emails to
Plaintiff regarding his performance and completion of tasks.
(See e.g. ECF No. 74-1- at 56-60.) According to Mr.
Scherzinger's emails, Plaintiff continued to miss
deadlines and struggle with customer service. (Id.)
Consequently, Defendants terminated Plaintiff's
employment on May 17, 2013. (See ECF No.74-1 at 55.)
After seeking administrative relief by filing a complaint
with the Equal Employment Opportunity Commission alleging, in
relevant part, age discrimination, Plaintiff commenced this
action in federal court. (See ECF Nos. 1, 74-1 at
87.) On November 30, 2017, Plaintiff served discovery
requests on Defendants. (See ECF No. 74 ...