United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT U.S.
BANK'S MOTION FOR SUMMARY JUDGMENT
Stewart United States District Judge.
matter is before the Court on Defendant U.S. Bank's
Motion for Summary Judgment. For the reasons discussed below,
the Court will grant the Motion.
Seastrand (“Plaintiff”) was employed by U.S.
Bank, N.A. (“U.S. Bank” or
“Defendant”) from 2002 to 2016. Most recently, he
served as the Market Manager for Salt Lake
City. In that role, Mr. Seastrand was
responsible for running the commercial real estate group. His
duties included growing revenue, communicating with clients,
and leading a team of several direct reports. As described in
greater detail below, Mr. Seastrand was terminated in 2016
after a large loan he was involved with went into default.
U.S. Bank claims that Mr. Seastrand was terminated because he
demonstrated poor judgment in connection with this loan.
Plaintiff brings a claim of age discrimination against U.S.
Bank under the Age Discrimination in Employment Act
2015, U.S. Bank agreed to lend Miller Development Company and
an associated LLC, Miller Minnick Associates (collectively,
“the Millers”), a construction loan of $46, 850,
000.According to U.S. Bank, the entire amount
of a loan is not typically dispersed immediately. Rather,
disbursements are made on a rolling basis as the project
progresses. At or around the time of closing in July
2015, the Millers requested an initial advance of $6, 800,
Approximately $4, 300, 000 of these funds were for the
purpose of purchasing building materials that would be stored
until their use in the project. According to U.S. Bank, such a
large draw was “abnormal, ”and “went
outside of any norm that U.S. Bank would normally
approve.” U.S. Bank alleges that Plaintiff approved
the $6, 800, 000 advance without elevating the issue to his
Bank later became concerned about the project due to lack of
construction progress and rumors that the Millers were
experiencing cash flow issues. On April 5, 2016, U.S. Bank
ordered a site inspection, which led to the discovery that
the Millers had only $761, 000 worth of stored materials for
the project-despite the large disbursement of funds to
purchase materials and the fact that construction had yet to
begin. U.S. Bank sent a notice of default on
April 15, 2016.John Seastrand was terminated on April
29, 2016. On June 30, 2016, U.S. Bank filed a
lawsuit in state court to recover the funds lent to the
SUMMARY JUDGMENT STANDARD
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of
law.” In considering whether a genuine dispute
of material fact exists, the Court determines whether a
reasonable jury could return a verdict for the nonmoving
party in the face of all the evidence
presented. The Court is required to construe all
facts and reasonable inferences in the light most favorable
to the nonmoving party.
brings a claim under the ADEA. Because Plaintiff “did
not present direct evidence of age discrimination, his ADEA
claim is analyzed under the method of proof outlined in
McDonnell Douglas Corp. v.
Green.” Under that framework, Plaintiff must
first establish a prima facie case of
discrimination. If a plaintiff establishes a prima facie
case of discrimination, the burden then shifts to the
defendant to articulate a legitimate, non-discriminatory
reason for the adverse employment action. Once the
defendant articulates a legitimate, non-discriminatory reason
for its action, the burden shifts back to the plaintiff to
prove, by a preponderance of the evidence, that the
defendant's reasons are pretextual.
purposes of this motion, the Court can assume that Plaintiff
has presented a prima facie case and that Defendant has
articulated legitimate nondiscriminatory reasons for
termination. Therefore, the Court will focus on whether a
reasonable jury could find U.S. Bank's articulated
reasons for terminating Mr. Seastrand pretextual.
the McDonnell Douglas framework, in order to survive
a motion for summary judgment, the plaintiff “must
present evidence to establish there is a genuine issue of
material fact as to whether the defendant's articulated
reason for the adverse employment action was
pretextual.” “A showing of pretext does not
require a plaintiff to offer any direct evidence of actual
discrimination.” “A plaintiff may show pretext
by demonstrating the ‘proffered reason is factually
false,' or that ‘discrimination was a primary
factor in the employer's
decision.'” Summary judgment should not be
granted where the employer's reasons are “so
incoherent, weak, inconsistent, or contradictory that a
rational factfinder could conclude the reasons were unworthy
Court must consider whether the employer honestly believed
the reasons given for termination, and whether the employer
acted in good faith. However, the Court “may not second
guess the business judgment of the employer,
” or consider whether its reasons were
“wise, fair, or correct.”
contends that U.S. Bank's reason for firing him is false
and that age was a primary factor in U.S. Bank's decision
to terminate him. The discussion below considers each
argument in turn. Before proceeding to that discussion, the
Court notes that Plaintiff has presented the Court with
starkly conflicting facts in responding to Defendants'
Motions for Summary Judgment.
Complaint, in addition to the age discrimination claim,
Plaintiff also alleged conspiracy, fraud, negligence, and
intentional interference with economic relations. These
claims were brought against defendants Jacklyn W. Miller,
Gary S. Miller, Jay M. Minnick, Miller Development Company,
Inc., Miller Minnick Associates I, LLC, and Millwood
Companies, LC (collectively, “the Miller
Defendants”). Essentially, Plaintiff alleged that the
Miller Defendants misled him and caused him to support the
stored materials draw-which led to his
claims were dismissed on January 8, 2019, per a stipulated
motion from the parties.Previous to that, the Miller
Defendants filed a motion for summary judgment on October 16,
2018,  and Plaintiff filed a memorandum in
opposition on November 27, 2018. The Court struck
Plaintiff's memorandum from the record because it was
filed out of time.
discussed below, in opposing U.S. Bank's Motion for
Summary Judgment, Plaintiff minimizes his role in approving
the stored materials draw. Plaintiff claims that he did not
have the authority to approve it,  that his personal
judgment was inconsequential because many other people were
involved in the approval process,  and that U.S. Bank was
not exposed to financial risk as a result of the stored
made contrary representations in opposing the Millers'
motion for summary judgment. He argued that, but for the
Millers' misrepresentations to him, the stored materials
draw would not have been granted,  that he exercised his
judgment and chose to support the stored materials draw
because he believed what the Millers told him,  and, that the
financial risks to U.S. Bank were so obvious that the Millers
should have foreseen Plaintiff's termination as a result
of their alleged fraud.
attempts to reconcile these positions by arguing that, by
defrauding him, the Millers supplied U.S. Bank with the
pretext to fire him. However, this argument fails to explain
how Plaintiff could not have approved the stored materials
draw, but was the but for cause of the draw being granted. Or
how his personal judgment was inconsequential, but the
decision to grant the draw was critically influenced by the
misinformation given to him by the Millers. Or how there was
no financial risk to U.S. Bank, but the Millers should have
foreseen that the obvious financial risk to U.S. Bank would
result in Plaintiff's termination. The Court cannot
countenance such reckless play with the facts.
Plaintiff's contention that the proffered reasons for his
termination are false.
offers several reasons why he could not have been fired for
his role in approving the stored materials draw, including
that he did not solely authorize the stored materials draw
and did not have the authority to do so, he acted within bank
policy, there was no financial risk to the bank, U.S. Bank
did not perform an adequate investigation before terminating
him, the decision to terminate him was disproportionately
influenced by a single individual, U.S. Bank gave
inconsistent reasons for his termination, and U.S. Bank's
witnesses lack credibility. As discussed below,
individually and collectively, these arguments fail to show
that U.S. Bank's stated reason for Plaintiff's
termination is “so incoherent, weak, inconsistent, or
contradictory that a rational factfinder could conclude the
reasons were unworthy of belief.”
Approval of the stored materials draw
Seastrand contends that senior bank leadership approved the
stored materials draw because they were involved in approving
the underlying loan and an initial draw for stored materials
was contemplated in U.S. Bank's internal loan approval
documents. However, the size of the draw was not
specified. U.S. Bank argues that, under the
circumstances, an initial draw of $6, 800, 000 was abnormal
and outside of the bank's norms. Mr. Seastrand's
testimony appears to support the assertion that such a large
amount was not anticipated. In his deposition, he recognized
this was not a draw the bank would grant in the ordinary
course of business, but was an “accommodation”
that he felt should be considered for a long-time
also alleges that the draw was approved by senior leadership
because, months after the draw was dispersed, several senior
officials, including Ralph Pace, Karl Keiffer, and Kurt
Huppert, signed off on an internal document
(“SCD”), which stated that the outstanding loan
amount was $7, 830, 356, that the project was only 2 percent
complete, and that 20 percent of hard costs had been
distributed. Plaintiff argues that “[h]ad the
stored materials draws equating to 20% of hard costs not been
authorized for a project that was only 2 percent completed,
seasoned bank employees like Huppert and Pace would have said
something before signing the SCD.” However,
there is no evidence to support this argument. The Court
declines to second-guess the business judgment of bank
officials, or to speculate about what they were thinking when
they signed this document.
also argues that he could not have authorized the stored
materials draw because he lacked the authority. However, his
testimony suggests that he played an integral role in
approving the draw. He testified that the loan administrator
who received the stored materials request called Mr.
Seastrand for his guidance about how to
proceed. Mr. Seastrand instructed the loan
administrator that the two of them would look at bank policy
and submit the draw to the U.S. Bank's Credit Department
for approval unless it was proscribed by
policy. U.S. Bank claims that Mr. Seastrand
never elevated the issue to the Credit Department or his
direct supervisor. Plaintiff has not offered any evidence
to the contrary. Moreover, as stated, Mr. Seastrand asserted
in his response to the Miller Defendants' motion for
summary judgment that he was the cause of the draw being
Bank's financial risk
Seastrand argues that U.S. Bank was not exposed to any
financial risk; given the significant wealth of the Miller
companies, in addition to the personal wealth of Mr. and Mrs.
Miller, “there was no chance that U.S. Bank would not
be repaid, and everyone knew it.”However, it is
reasonable to assume that U.S. Bank could have genuinely
believed that it incurred at least some financial risk as a
result of a $46, 000, 000 loan going into default. The record
supports this assumption. U.S. Bank's efforts to recover
the loan resulted in a “discounted payoff” where
the bank accepted a loss of over $375, 000. And, again,
argued in response to the Miller Defendants' motion for
summary judgment that the risk to the bank was obvious.
Seastrand's argues that the proffered reason for his
termination can be disbelieved because U.S. Bank did not
perform an adequate investigation. Plaintiff cites
Smothers v. Solvay Chemicals, Inc. for the
proposition that “[f]ailure to conduct what appeared to
be a fair investigation of the violation that purportedly
prompted adverse action may support an inference of
pretext.” However, the facts of that case differ
materially from the case at hand. In Smothers, the
employer fired an employee without ever hearing the
employee's side of the story. In this case, both
parties acknowledge that Mr. Seastrand spoke with Mr. Pace
privately over the phone about the stored materials draw, and
that it was discussed on a conference call that both Mr. Pace
and Mr. Seastrand participated in. Therefore,
Smothers does not apply. Plaintiff has not
presented any evidence to show that the procedures followed
were irregular for U.S. Bank or that they indicate that
decision makers did not honestly believe Mr. Seastrand
exercised poor judgment.
Discriminatory animus of a subordinate
Seastrand also argues that Defendant's reason is pretext
because a single person with discriminatory animus drove the
decision to terminate him. Mr. Seastrand relies on EEOC
v. BCI Coca-Cola Bottling Co. of Los
Angeles. In that case, the Tenth Circuit
considered what standard to apply in evaluating claims that a
biased subordinate caused a decision maker to take an adverse
employment action. In this case, there is no evidence that
a biased subordinate influenced the decision to terminate Mr.
Seastrand. Because this “cat's paw” doctrine
does not apply to the case before the Court, this argument
does not create a genuine issue of material fact.
Inconsistency of reasons for termination
also argues that Defendant's reasons for terminating him
were inconsistent. As the Tenth Circuit held in Mathews
v. Euronet Worldwide, inconsistent reasons can be
evidence of pretext.
[A] a post-hoc justification given at the time of trial,
which differs from the reasons given at the time of
termination and is unsupported by the evidence, could lead a
reasonable jury to infer that the reason asserted at trial is
pretextual. On the other hand, there is no support for a
finding of pretext if the employer does not give inconsistent
reasons, but instead merely elaborates on the initial
justification for termination.
primary complaint in this regard is that Ralph Pace's
explanation for his termination contradicts the reason U.S.
Bank gave in its EEOC filing. Ralph Pace's explanation to
Plaintiff was that he was being terminated because he had
lost “credibility due to the Miller
situation.” In its EEOC filing, U.S. Bank alleged
that Plaintiff was terminated “[a]s a result of poor
judgment in this matter [the Miller loan], coupled with
previous instances of exercising poor
judgment.” U.S. Bank elaborated on Mr.
Seastrand's previous performance issues, including that
he proposed that a client hire him, and, when the client
refused, he became hostile and refused to assist the
client. U.S. Bank also referenced a 2013
performance review noting that Plaintiff had created risk to
the Bank through lack of attention to detail in account and
asserted deficiencies do not contradict the broader
justification for Mr. Seastrand's termination-that he
exercised poor judgment. Because “the employer [did]
not give inconsistent reasons, but instead merely elaborated
on the initial justification for termination,
” there is no support for a finding of
contends that U.S. Bank's reason for his termination is
inconsistent because he received positive performance reviews
in the past. This argument is not responsive to the
U.S. Bank's stated reason for Plaintiff's
termination-exercising poor judgment with regard to the
stored materials draw. Because U.S. Bank's explanation
is that Plaintiff was fired for a specific instance of bad
judgment, Plaintiff's past performance on unrelated
matters does not create a genuine dispute of material fact.
also argues that U.S. Bank's witnesses lack credibility
because their accounts of events conflict. Plaintiff
contends that the three U.S. Bank officials who made the
decision to terminate him gave different accounts of who led
that discussion. The three decision makers were Ralph Pace,
Regional Manager, Brian Bebel, Director of Human Resources,
and Rex Rudy, Head of Commercial Real Estate.
also argues that these individual decision makers may have
given different weight to an incident in 2011 involving Mr.
Seastrand. As discussed above, according to U.S. Bank, Mr.
Seastrand exhibited poor judgment on a prior occasion when he
solicited an employment opportunity from its client
Morinda. Decision makers took this incident into
account when considering whether to terminate Mr.
of who led the discussion to terminate plaintiff, and
whatever weight decision makers gave to a prior instance of
poor judgment, Plaintiff does not present any evidence that a
decision was not reached to terminate Mr. Seastrand, or that
it was not unanimous, or that the decision was not based on
the stored materials draw.
also asserts that Rex Rudy's testimony conflicts with
Ralph Pace and Kurt Huppert's (Senior Credit Officer),
because Mr. Rudy identified a number of factors in favor of
the stored materials draw, which the others opposed.
According to Plaintiff, these factors included the
“relationship with the Millers, their net worth, and
their building practices.” Plaintiff references Mr.
Rudy's deposition but does not provide a pincite.
“Judges are not like pigs, hunting for truffles buried
in briefs.” In the passages the Court has been able
to identify, Mr. Rudy's support of these points appears
Q.· Okay.· Would the financial strength of the
guarantor and the relationship with the bank have been a
factor that you think would have been considered by the bank
in deciding whether or not to make a large disbursement based
on stored materials?
A.· I guess it could.· It really shouldn't,
but -- long history, strong financials, maybe.
contrast, Mr. Rudy's testimony clearly shows that he
thought the stored materials draw was irregular, supported
Plaintiff's termination, and felt that the decision was
reached “as a collective” based on “lost
confidence” in Plaintiff's judgment.
also claims that Brian Bebel made representations to the
other decision makers about Mr. Seastrand's interactions
with Morinda in 2011 that were not based on personal
knowledge and may not have been accurate. It is unclear what
conflict this testimony presents. Plaintiff appears to
protest that the decision to terminate Plaintiff was not
based on adequately credible information. However, the Court
cannot second guess U.S. Bank's business judgment. The
Court's inquiry is only whether the employer honestly
believed the reasons given for termination, and whether the
employer acted in good faith. For the reasons discussed, the
Court concludes that the bank did.
also argues that Defendant's witnesses are not credible
because they testified that Plaintiff had the ability to
approve the stored materials draw and that approval of the
stored materials draw created financial risk or loss to the
bank. Plaintiff submits that these allegations
are “absurd” and defeat the witness'
credibility. Whether Plaintiff approved the stored
materials draw is an important issue in this case and is not
resolved by name calling. U.S. Bank's assessment of the
financial risk associated with the stored materials draw is a
matter of business judgment.
Plaintiff's contention that age was a primary factor in
U.S. Bank's decision to terminate him.
argues that age was a primary factor in his termination as
evidenced by the fact that his direct supervisor, Ralph Pace,
had a history of discriminating against older employees.
Plaintiff presents three affidavits from former employees who
reported to Ralph Pace: Sandy Sauer, Karen Klerman, and Marc
these affiants testied that they had a record of strong
performance in their roles at U.S. Bank,  but were
targeted by Ralph Pace because of their age. All three
affiants testied that Ralph Pace had a reputation for
favoring and promoting younger, less experienced employees,
at the expense of older employees.
Sauer and Karen Klerman reported to Ralph Pace when he
managed U.S. Bank's Denver office. Sandra Sauer was
terminated in 2012. In 2013, Karen Klerman “decided to
find a new job at another bank before [she] could be forced
out/fired by Ralph Pace.” Marc Wright reported to
Ralph Pace when Mr. Pace managed U.S. Bank's Seattle
office. Marc Wright left U.S.
2015. He testified that he accepted an early retirement out
of fear that Ralph Pace was going to fire him.
circumstantial evidence does not create a genuine dispute of
material fact. The Tenth Circuit has “cautioned that
anecdotal evidence of discrimination should only be admitted
if the prior incidences of alleged discrimination can somehow
be tied to the employment actions disputed in the case at
hand.” In this case, there is no clear
connection between these alleged instances of discrimination
and the case at hand. The three affiants do not offer any
specific instances or details of how Mr. Pace discriminated
against them on the basis of age. Rather, each merely
believes that was the case. The alleged prior instances lack
temporal and geographic proximity to the case at hand- having
taken place in Denver and Seattle, between one and four years
before Mr. Seastrand was terminated. The primary connection
is that, in all cases, Ralph Pace was the direct supervisor.
However, in the case before the Court, Ralph Pace was not the
sole decision maker in U.S. Bank's determination to
terminate Plaintiff. Brian Bebel, Director of Human
Resources, and Rex Rudy, Head of Commercial Real Estate, were
also involved in the decision. Plaintiff himself argues that
one of the other ...