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August 10, 2004.

PHALICE TATE, Plaintiff,

The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge


From August 2001 until her termination the following June, Plaintiff Phalice Tate worked as a "call agent," handling calls from agents and customers of Defendant Washington Mutual's mortgage loan business. In this lawsuit, Tate, an African-American woman, alleges that her discharge was a product of race discrimination and retaliation. Defendant now moves for summary judgment, arguing that the undisputed facts establish that the reason for Ms. Tate's discharge was her refusal to follow one of the company's important call handling policies, not her race. Washington Mutual also contends that she has waived her retaliation claim. For the reasons set forth below, the motion is granted.


  The facts set forth here are compiled from the parties' statements, submitted pursuant to this court's Local Rule 56.1, and supporting materials. After responding to an online employment ad, Tate was hired on August 27, 2001 as an entry level call agent in Washington Mutual's Customer Service Center (CSC). (Tate Dep. at 21-22; Exhibit A to Defendant's Statement of Material Facts in Support of its Motion for Summary Judgment (hereinafter, "Def.'s 56.1 Stmt.") ¶ 25.) The CSC provides customer service support to Washington Mutual loan agents, as well as the company's external customers. (Id. ¶ 3.) According to David Mahmud, Director of the CSC, (Def.'s 56.1 Stmt.), as an entry level call agent, Plaintiff was expected to field customer calls, help callers resolve problems with the company's internet-based computer database system, and, if necessary, refer callers to a higher-level support service for more difficult problems. (Id. ¶ 6 citing Mahmud Decl., Ex. G to Def.'s 56.1 Stmt.)

  The CSC frequently receives calls from customers who have called the wrong support service. (Def.'s 56.1 Stmt. ¶ 12.) Under Washington Mutual policy, when this type of call occurs, the call agent who receives the call is expected to transfer the call to the appropriate support service using the "warm" method of call transfer. (Id.) According to Washington Mutual, a proper "warm transfer" requires the call agent to: dial the appropriate person or help desk; wait with the customer on the line for the call to be answered; introduce the customer to the new call agent; briefly explain the customer's problem; and then terminate her participation in the call. (Id.)

  During Tate's tenure with Washington Mutual, her direct supervisor, also referred to as a "team lead," was Robert Jones. (Id. ¶ 5.) Initially, Jones' supervisor was the Service Execution Manager, Mary Kuppe, who reported to the Director of the CSC. (Id.) In November 2001, Steven Durrbeck replaced Kuppe as Service Execution Manager, and in March 2002, Daud Mahmud became Director of the CSC. (Id.)

  Prior to starting her duties as a call agent, Tate attended a three-day training course on mortgage banking in Illinois, followed by a week-long training session in Seattle that was intended to help her learn how to answer help desk calls and to familiarize her with the computer applications used to track customer calls. (Tate Dep. at 43; Def.'s 56.1 Stmt. ¶¶ 26-27.) In addition to the formal training sessions, Tate also received on-the-job training from her team leads. (Def.'s 56.1 Stmt. ¶ 27.)

  Tate's Performance at Washington Mutual

  During her 10-month tenure with the company, Tate received a series of written notices about her performance. The first, a written "Notice of Concern" submitted by Mary Kuppe, stated that Kuppe met with Tate on October 5, 2001 to discuss issues with her attendance as well as the fact that cell phone use is prohibited while on duty. (Performance Improvement Notice Oct. 5, 2001, Ex. 4 to Tate Dep.) Washington Mutual also claims Kuppe gave Tate a verbal warning for leaving work early on October 5, 2001. (Def.'s 56.1 Stmt. ¶ 29.) Tate admits to having left work early that day to pick up her daughter from day care. (Plaintiff's Answers to Defendant's Statement of Material Facts in Opposition to Defendant's Motion for Summary Judgment (hereinafter, "Pltf.'s Ans. to Def.'s 56.1 Stmt."), ¶ 29.) She also admits to having a discussion with Kuppe about the alleged unauthorized early departure, but denies receiving any warning from Kuppe about it. (Id.) Tate claims that she had obtained permission to leave early from a different supervisor. (Tate Dep. at 50.)

  The next written notice regarding issues with Tate's performance was a "write-up" for incorrectly logging calls on December 6, 2001. (Memo Dec. 6, 2001, Ex. 5 to Tate Dep.) This notice also contained a handwritten comment noting a problem with the amount of time Tate spent on the phone on personal calls. (Id.) (The record does not identify the author of this handwritten notation.) Tate admits that team lead Rob Jones spoke with her about logging calls and admits to having signed this document. (Pltf.'s Ans. to Def.'s 56.1 Stmt. ¶ 31.) She denies that they discussed the amount of time she spent on personal calls, however, and asserts that the handwritten comment about that matter did not appear on the document when she signed it. (Tate Dep. at 62.)

  Rob Jones issued a "Notice of Concern" regarding Tate's performance on January 22, 2002, in which he commented about excessive numbers of outgoing phone calls and about the amount of time that Tate spent in "AUX" and "After Call" modes.*fn1 (Performance Improvement Notice Jan. 22, 2002, Ex. G to Tate Dep.) Tate admits to having received and signed the January 22 notice, in which Jones noted that she had been given written feedback on the issue of excessive outgoing calls just eleven days earlier, on January 11. (Pltf.'s Ans. to Def.'s 56.1 Stmt. ¶ 34.) Tate also admits to having received a copy of the CSC Departmental Guidelines on February 5, 2002. (Pltf.'s Ans. to Def.'s 56.1 Stmt. ¶ 28.) This document included a description of the company's "Warm Transfer" policy, (Washington Mutual CSC Departmental Policy at WM000094, Ex. 3 to Tate Dep.), as well as the policy prohibiting call agents at Tate's level from using personal laptops computers while on duty. (Id. at WM000093.) Nevertheless, on February 7, 2002, Jones and Alexandro Ho, another team lead, issued a written warning to Tate for bringing her personal laptop computer to work in violation of the company policy. (Performance Improvement Notice Feb. 7, 2002 Ex. 7 to Tate Dep.) Tate claims that she brought the computer to work so that a co-worker could fix it for her. She wrote a comment on the written warning expressing her disagreement with her supervisors' complaints and claiming that she was being "picked on" because she "speaks her mind." (Id.)

  In late March or early April 2002, Tate submitted a written complaint to Marsha McMahon, the company's Employee Relations consultant, regarding behavior of her fellow employees on the Seattle training trip they had taken in September 2001. (Tate Dep. at 85.) Tate claimed that several co-workers had taken her to a gay bar for drinks and that while there, the co-workers discussed how to get the drug "Ecstasy." (Pltf.'s Ans. to Def.'s 56.1 Stmt. ¶¶ 38-39.) Tate also complained that one of her co-workers came to a training session smelling of vomit and alcohol. (McMahon Decl. ¶ 5, Ex. I to Def.'s 56.1 Stmt.) Tate testified that she had informed her supervisor, Kuppe, about this incident back in October 2001 and that, after that time, her managers had started mistreating her in retaliation for reporting the incident. (Tate Dep., at 76.) When asked to describe how Rob Jones mistreated her, Tate stated that "every little thing he was just on me about whereas he was not with everyone else." (Id., at 77.) Tate's only specific example of this mistreatment was Jones's monthly conversations with her about spending too much time in the bathroom. (Id.) Tate also alleges that she was denied attendance at a week-long training session in April 2002 to take place in Irvine, California on the company's computer systems. (Tate Dep., at 114.)

  McMahon met with Tate to review her complaint and promised to get back to her after conducting an investigation. (McMahon Decl. ¶ 6.) McMahon claims that she spoke with all the employees who were present at the bar when the alleged incident occurred and that "all of them denied that the discussion about Ecstacy had taken place as Tate described it," although her statement did not elaborate as to how the other employees described the conversation. (Id.) McMahon also claims that Alex Ho told her that the co-worker Tate complained about was ill while at training, not drunk. (Id.)

  Washington Mutual asserts that Tate was cited for inappropriate use of language in May. (Performance Improvement Notice May 22, 2002, Ex. 9 to Tate Dep.) A written "Notice of Concern" dated May 22, 2002 was issued by Tate's manager, but Tate denies receiving it and no copy of the document signed by Tate appears in the record. (Id.) Washington Mutual alleges that one of Tate's co-workers, Debbie Caldwell, had complained to Durrbeck that Tate had threatened members of her work group, warning them that if she found out who had reported her bad language, she would take action against them. (Durrbeck Decl. ¶ 5, Ex. H to Def.'s 56.1 Stmt.) As a result, on May 24, 2002, Rob Jones issued a written warning citing Tate for continued use of inappropriate language and threats made to her ...

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