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COATES v. NUVELL FINANCIAL SERVICES CORPORATION

December 16, 2005.

ROBERT D. COATES, Plaintiff,
v.
NUVELL FINANCIAL SERVICES CORPORATION, Defendant.



The opinion of the court was delivered by: SUSAN WRIGHT, District Judge

MEMORANDUM AND ORDER

This is a case of alleged employment discrimination on the basis of race (black) as well as retaliation for filing previous Charges of Discrimination with the Equal Employment Opportunity Commission ("EEOC") (and otherwise complaining of discrimination) and is brought pursuant to 42 U.S.C. §§ 2000e et seq., and 42 U.S.C. § 1981. Before the Court is a motion of the defendant, Nuvell Financial Services Corporation ("Nuvell"), for summary judgment [doc.#19]. The plaintiff, Robert D. Coates ("Coates"), has responded in opposition to Nuvell's motion, Nuvell has filed a reply to Coates' response, and Coates has filed a surreply to Nuvell's reply. For the reasons that follow, the Court finds that Nuvell's motion for summary judgment should be and hereby is granted.

I.

  Nuvell provides financial credit services for certain automobile dealerships by, among other things, conducting credit checks on prospective automobile purchasers and recommending the length of time for the loan.*fn1 There are three distinct positions at Nuvell with the essential job function of making credit decisions based on loan applications. These positions are Credit Analyst Trainee, Credit Analyst, and Senior Credit Analyst.

  Coates was hired by Nuvell on March 4, 1997, for the position of Purchaser, which entailed investigating loan files, calling customers, insurance interviews, and putting together the loan documentation that was provided by the dealerships. Coates remains employed at Nuvell.

  On August 14, 2000, Coates filed a Charge of Discrimination with the EEOC alleging he was denied promotion due to race discrimination and due to retaliation based on an EEOC Charge filed by his mother in 1998. On November 4, 2000, Coates was promoted into the position of Credit Analyst Trainee. This promotion was the result of a mediated EEOC settlement between Coates and Nuvell in October 2000.

  Coates participated in one-on-one training for approximately the first ninety days that he held the position of Credit Analyst Trainee. On January 12, 2001, Coates received a Credit Analyst Trainee Evaluation in which he was rated unsatisfactory in several categories, met the standard in others, and exceeded the standard in one. Coates refused to sign this evaluation, claiming racial discrimination, retaliation, and harassment by Human Resources and management. As a result of Coates' complaints, a meeting was held following which Coates' evaluation was revised in part and Coates signed and accepted the revised version.

  The amount of time that an employee remains in the position of Credit Analyst Trainee is dependent on the employee's level of experience, as well as his or her performance in the position. On April 7, 2001, some five or six months after being promoted to Credit Analyst Trainee, Coates was promoted to the position of Credit Analyst.

  Nuvell has an audit process by which the Auditing Department audits on a daily basis those funded credit decisions made by the Credit Analyst Trainee, Credit Analyst, or Senior Credit Analyst based on Nuvell's written credit policy, or those decisions in which the dealer received a payment, the day following funding. Auditors are assigned particular employees to audit each month and auditor assignments are rotated every thirty days to prevent the same auditor from auditing the same employee or same area on a regular basis. Each credit decision that is audited is given one of four categories: (1) "okay"; (2) "lower program"; (3) "excessive risk"; and (4) "unacceptable." All audits that are conducted are sent to the Credit Department management for review, but only those decisions that are deemed "unacceptable" require action by management. Regarding "unacceptable" decisions, management can override the decision of the auditor, or in the alternative, issue appropriate disciplinary action with regard to the Credit Analyst Trainee, Credit Analyst, or Senior Credit Analyst responsible for the decision. In addition to those audits conducted by the Auditing Department, managers in the Credit Department randomly perform audits on their employees, subject to the same limitations as those audits conducted by the Auditing Department.

  Pursuant to Nuvell's Employee Manual, there exists a progressive discipline scheme. First, a "Performance Development Plan" ("PDP") serves as documentation of an official coaching session between a supervisor and subordinate employee. A PDP does not in any way result in a tangible change in the terms of employment or working conditions of an employee; it simply serves as written documentation of areas for improvement. If the employee has been issued a PDP, i.e., previously counseled regarding an issue, but there is no correction of the problem, a "Performance Improvement Plan" ("PIP") is issued to that employee. PIPs impact an employee's compensation and an employee who has received a PIP receives a lesser increase in their annual merit increase and, if the employee is eligible for incentive pay, he or she is deemed ineligible for such pay during the time in which the PIP is active. Typically, a PDP precedes a PIP. Management does, however, have discretion as to which level of discipline is appropriate based on past performance and past positions held by an employee. In this respect, an employee may be issued a PIP without first receiving a PDP if the infraction warrants.

  In addition, Nuvell generally applies its progressive discipline policy to each infraction of an individual employee, as opposed to combining all infractions of a single employee. If, for example, an employee violated the attendance policy, the employee would generally be issued a PDP. Following this action, if that same employee failed to show improvement with regard to attendance, he or she would generally be issued a PIP to document the uncorrected conduct. In those cases in which an employee engages in more than one policy infraction within the same or a short period of time, each infraction is typically dealt with separately in terms of progressive discipline. For example, if an employee was currently on a PDP for an attendance infraction, and subsequently made credit decisions that were in violation of Nuvell's credit policy, that employee, unless circumstances warranted otherwise, would typically receive a second PDP addressing inappropriate credit decisions and would not automatically receive a PIP for inappropriate credit decisions simply because he or she had a current PDP for attendance issues. In this respect, each infraction generally stands alone with regard to the discipline process. Nuvell's progressive discipline policy has the purpose of allowing employees to correct their performance. If an employee makes necessary corrections, but later exhibits additional performance deficiencies, they will once again receive disciplinary action at the appropriate step based on management discretion.*fn2

  As previously noted, on April 7, 2001, some five or six months after being promoted to Credit Analyst Trainee, Coates was promoted to the position of Credit Analyst. Of the current Credit Analysts and Senior Credit Analysts in the Credit Department, all white employees placed in the position of Credit Analyst Trainee, with the exception of one, remained in that position for a period longer than five months.

  One year after being promoted to the position of Credit Analyst, Coates, on April 7, 2002, received his annual Performance Development Appraisal. Coates felt there were discrepancies in this review regarding the objectives listed for his position and discussed the information he thought was inaccurate with the appropriate managers. As a result, Nuvell management made corrections and issued Coates an adjusted review. Each rating on Coates' April 7, 2002 performance appraisal, which Coates acknowledged was not discriminatory or retaliatory, fell in the category of meeting or exceeding standards, and his overall score for this appraisal fell in the category of "met the standard." Coates received a merit increase as a result of this appraisal that adjusted his bi-weekly salary upward.

  One year later, on April 7, 2003 (two years after being promoted to the position of Credit Analyst), Coates received a second annual Performance Development Appraisal, each rating of which fell in the category of either meeting or exceeding standards. Coates' overall score for this appraisal was "met the standard" and, as a result, Coates received a merit increase that adjusted his bi-weekly salary upward. Coates was given the opportunity to make comments with regard to this appraisal but he wrote "No Comments" in the space provided.

  On October 15, 2003, Coates received a PDP that addressed his violations of Nuvell Credit Policy on two specific deals. Coates' manager was Stephen Stanley, a Credit Manager whose responsibilities included overseeing and reviewing credit decisions that are made by Credit Analyst Trainees, Credit Analysts, and Senior Credit Analysts.*fn3 The duration of this PDP was 90 days. Nuvell states that Coates violated Nuvell's credit policy on minimum monthly income for the type of loan sought, cosigners, delinquent accounts, and use of qualifying credit. Nuvell states that its credit policy outlines situations in which cosigners are required for an application and, further, under what circumstances cosigners may sign onto a contract. Despite Nuvell's clearly stated credit policy, Coates admits he approved a contract in which there were two applicants, neither of which had sufficient income to qualify on their own, and that the co-applicant lacked qualifying credit and made below the minimum monthly income requirement pursuant to Nuvell's credit policy. Coates, however, stating that he in the past has consistently been told to do whatever is necessary to get the deal funded, maintains that he had asked for assistance on this issue and was told to proceed, and states that the credit policies of Nuvell are often vague and, depending on the manager, the policy is applied differently.

  Regarding the second unacceptable decision addressed in his October 15, 2003 PDP, Nuvell states that Coates violated Nuvell credit policy when he pulled credit reports from all three of the credit bureaus without justification, despite Nuvell's credit policy prohibiting such pulling of credit reports, and, in addition, this decision was unacceptable because the applicant did not have sufficient income for the program approved, did not have auto credit, and had been thirty days delinquent on his or her mortgage three different times in the previous twelve month period.*fn4 Coates, however, states that he had previously been instructed in his January 12, 2001 evaluation that he needed to work on being very flexible with the dealers and looking for any way to put a deal together and take care of any problem they may have. With respect to credit reports, Coates, while claiming at one point there was no policy at the time prohibiting the pulling of credit reports from all three bureaus, states that another Black employee, Wonda London, was told by her manager, Kevin Cheatham, in February 2004 that she must make sure to review the entire credit bureau on each and every deal so as not to overlook derogatory credit, and that she must pull a second credit bureau on all deals when she finds an account included in bankruptcy, even if no bankruptcy is listed in the public records section.*fn5 In any case, Coates refused to sign this PDP because, according to the "Employee comments" section of the PDP, "Not enough time to list comments due to mgmt needs today. Per Greg Johnson/Stephen Stanley."

  On December 1, 2003, and again on January 30, 2004, Coates received a PIP. Each of these PIPs was issued for 60 days. Nuvell states that Coates' December 1, 2003 PIP, which referenced two decisions, was issued to him because, despite the PDP he received on October 15, 2003, he made two credit decisions that were in violation of Nuvell's credit policy that addresses treatment of judgments and qualifying credit. Coates' manager at this time remained Stephen Stanley. The first decision that was addressed on Coates' December 1, 2003 PIP was the approval of an applicant who had made a previous application four months earlier and had been declined. Since the applicant's earlier application, a large collection had been documented on his or her credit file. Despite the previous denial and the decline of credit since that denial, Coates approved the application with no notes to justify his reversal of the earlier decision.

  The second decision addressed on Coates' December 1, 2003 PIP was the approval of an application despite very little positive credit, namely, the applicant indicated he/she was self-employed and the credit file included only two accounts, one of which was a loss and the other a $6,000 high credit account that didn't report adequately in the bureau. In addition, Coates made no mention to the dealer of Nuvell's need for tax returns of the applicant to verify income.

  Coates does not specifically dispute the factual basis for the December 1, 2003 PIP but states that he was previously instructed to do whatever it takes to make the deal work, that it was issued in retaliation for his having complained about prior acts of discrimination, and that white analysts who committed similar infractions were only issued PDPs. He also states that Nuvell's credit policy addressing treatment of judgments and qualifying credit is ...


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