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Freitag v. Capital One Services, LLC

United States District Court, W.D. Wisconsin

June 23, 2017



          BARBARA B. CRABB District Judge.

         Plaintiff Herbert Freitag brought this action against his former employer, defendant Capital One Services, LLC, alleging that defendant fired him because of his age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634. Plaintiff contends that he was subjected to ageist hostility from his direct supervisor, Steven Cambra, and that this discrimination was the impetus for his termination. Defendant says that plaintiff was fired because of poor performance, including unprofessional and disrespectful behavior toward colleagues and subordinates.

         Defendant has filed a motion for summary judgment, dkt. #24, which I am granting because the undisputed facts demonstrate that defendant fired plaintiff because senior decision makers concluded from several employee complaints and inquiries by the human resources department that his performance and behavior warranted dismissal. The undisputed record would not permit a rational factfinder to conclude that plaintiff's age was the reason or the “but-for” cause of his termination. Accordingly, defendant is entitled to judgment as a matter of law.

         From the parties' proposed findings of fact and the record, I find that the following facts are not subject to genuine dispute, except where expressly indicated otherwise.


         A. Plaintiff's Employment History with Defendant

         Plaintiff Herbert Freitag began his employment with defendant Capital One Services, LLC, on May 1, 2012, when Capital One acquired a credit card partnership business unit from HSBC, where plaintiff had been employed as a vice president of sales and client development since 2005. Starting in May 2012, when plaintiff was 62 years old, his job title at Capital One was senior manager in client development. Of the roughly two dozen senior managers in Capital One's credit card division, plaintiff was the oldest and the others were mostly in their 30s and 40s. Plaintiff's boss and direct supervisor at Capital One was director of client development Steven Cambra, who had been supervising plaintiff at HSBC since 2007. Cambra was in his 40s during the time he was managing plaintiff.

         At Capital One, plaintiff continued working on the Menards client account, providing credit card relationship services to Menards home improvement stores. His primary office space was located at the Menards store in Eau Claire, Wisconsin. One of plaintiff's assignments at Capital One was to manage a team of approximately 8 to 10 regional sales associates for the Menards account, who all reported to him. Some of these associates, including Linda Alexander and Scott Milsteadt, found plaintiff to be an excellent manager and a fair boss who acted professionally at all times that they personally worked together. Others, as discussed below, complained of problems they experienced while working under him. Plaintiff also submitted evidence that he had received positive peer reviews from several other colleagues, and that he had received generally positive performance evaluations from Cambra from 2009 to 2012.

         At times, Cambra has inquired, joked or made derogatory comments about plaintiff's older age. (Plaintiff alleges that this occurred frequently, both before and after May 2012, including at monthly meetings with the Menards management team and around other HSBC and Capital One staff. Plaintiff says, for example, that at various times Cambra called him “grandpa, ” “gray hair, ” “silver hair, ” “old man” and asked him “did you have your Geritol today?” Defendant denies that Cambra made these comments.) Cambra admitted asking plaintiff on at least one occasion how old he was, when he planned on retiring and also if he was “having a senior moment.” Dft.'s Response to Plt.'s PFOF, Dkt. #39, ¶¶ 55-71.

         In January 2013, plaintiff and Cambra decided to create two mid-management positions beneath plaintiff and to promote two regional sales associates to fill them. They selected and promoted Terence Able (who was then 62 years old) and Beth Johnson (who was in her mid-40s) to fill the positions, in which they would each manage half of the other regional sales associates.

         B. Dyck Incident and Plaintiff's Performance Improvement Plan

         Beginning early in 2013, problems arose with a sales associate on plaintiff's team, Ryan Dyck, who was caught by plaintiff allegedly using his company credit card for unauthorized personal purchases. When these purchases continued after Dyck was reprimanded, plaintiff reported it to his superiors, and Dyck was placed on medical leave. Dyck also reportedly brought firearms, alleged illegal drug paraphernalia and other dangerous or inappropriate items to his Capital One office in the Menards facility. A corporate security officer was assigned to investigate the situation and a consultant from the human resources team, Julie Traff, was also assigned to provide plaintiff assistance and recommendations for handling Dyck's employment situation going forward. Ultimately, after Traff consulted with corporate security, Cambra and her superiors in HR, Dyck was recommended for termination.

         While Dyck was on medical leave, he contacted the human resources department to complain about the way plaintiff had treated him. Dyck was a military veteran who had told plaintiff and others at Capital One that he was suffering from post-traumatic stress disorder and related health and family problems. Among other things, Dyck complained that plaintiff had been rude and insensitive to him, had used profanity and had questioned him about his medical condition and treatment. Dyck also alleged that plaintiff had told him that he could go out and hire someone else “who doesn't have a fucked-up mind.” A separate human resources consultant, Sandi Frey, was assigned to investigate Dyck's complaints regarding plaintiff's allegedly inappropriate behavior. During this investigation, Traff contacted Frey to inform her that during Traff's review of Dyck's alleged misconduct, plaintiff was uncooperative and difficult to work with, had behaved unprofessionally and had difficulty managing his reactions and emotions. On March 25, 2013, Frey “coached” plaintiff with respect to these problems, emphasizing the important of professionalism and reiterating the company's expectations of him.

         Frey reported the results of her investigation to her managers, including senior human resources director Sarah Mankowski, who reviewed the information alongside plaintiff's 2012 performance review. Plaintiff's 2012 performance review assigned him a rating of “very strong” on “results, ” but his overall rating was only “strong, ” because of an “inconsistent” grade on his communications and teamwork competencies. (The performance evaluation graded employees on individual competencies and overall ratings on a grading scale from “inconsistent, ” to “strong, ” to “very strong, ” to “exceptional.”) Relying on the feedback from Frey's investigation, including the input from Traff, and the issues previously identified in plaintiff's 2012 performance review, Mankowski recommended placing plaintiff on a performance improvement plan. (A performance improvement plan is a written documentation of a performance issue that outlines a problem, the company's expectations for addressing it and sets a formal process and timeline to give the employee an opportunity to improve.)

         Cambra agreed with Mankowski's recommendation and issued a performance improvement plan for plaintiff on May 3, 2013. In the written plan, Cambra notified plaintiff that “his performance does not meet expectations, ” and that he would have 60 days to demonstrate improvement, or his employment could be terminated. The “plan due date” was recorded as July 12, 2013. On May 6, 2013, Cambra sent plaintiff an email about his performance improvement plan. Cambra wrote: “You haven't had many issues with competencies in the past therefore I don't expect you to not get through a 60 day period. So yes, I think it's a blip and something you can overcome with a little effort on approach.”

         C. Keaton Complaint

         Sometime between May 6 and May 8, 2013, Mankowski learned of a complaint by an employee regarding Cambra's behavior and use of profanity. Mankowski assigned RoseAnn Golden to investigate this complaint and concerns about the work environment under Cambra. Golden spoke with three female employees including Tiffany Keaton, a member of the marketing team, who relayed several complaints about unprofessional and disrespectful behavior. First, Keaton alleged that Cambra approached her and other marketing team members who were watching a video at a Capital One event and asked whether they were “making another adult video.” Second, Keaton alleged that Cambra had inappropriately ordered a round of shots called “used condoms” for colleagues at a bar in Eau Claire, although this took place in April 2012 before the business unit was sold from HSBC to Capital One. Third, Keaton alleged that on one occasion plaintiff had stroked her knee inappropriately, and that she had reported this to Cambra, but Cambra simply responded, “You can't teach a dog new tricks.” After reviewing Golden's report from her investigation, Mankowski recommended that Cambra undergo “coaching” but did not recommend an official performance improvement plan because Cambra had no preexisting record of similar problems, either on his 2012 performance review or otherwise. Mankowski met with Cambra on May 16, 2013, to coach him regarding his use of profane language and the importance of setting a professional tone and maintaining an appropriate team work environment. No action was taken with respect to plaintiff and the inappropriate touching Keaton had alleged.

         D. Olson and ...

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