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Derosena v. General Board of Pensions & Health Benefits of the United Methodist Church

May 30, 2008


The opinion of the court was delivered by: Judge Virginia M. Kendall


Plaintiff Magdaline Derosena ("Derosena" or "Plaintiff") filed suit against defendants General Board of Pensions & Health Benefits of the United Methodist Church, Inc. ("the Board"), Debbie Reid, Paula Evans, and Gertrude Livernois (collectively, "Defendants") under Title VII of the Civil Rights of 1964 ("Title VII") and 42 U.S.C. § 1981. Derosena asserts the following four claims: (1) gender discrimination against the Board in violation of Title VII; (2) national origin discrimination against the Board in violation of Title VII; (3) national origin discrimination*fn1 and retaliation against Defendants in violation of 42 U.S.C. § 1981; and (4) retaliation against the Board in violation of Title VII. Defendants now move for summary judgment on all claims. For the reasons set forth below, Defendants' Motion for Summary Judgment is granted.


Derosena is a Haitian female who worked as a member of the Board's Pension Administration Team (the "PAST team") from February 2001 through December 18, 2006, when she was terminated.*fn2 (Pl. 56.1 Resp. ¶¶ 1, 15, 42.) The Board administers pension and retirement funds of The United Methodist Church, Incorporated. (Pl. 56.1 Resp. ¶2.) As a PAST team member, Derosena helped administer the records of various retirement accounts administered by the Board.(Pl. 56.1 Resp. ¶ 16.) From February 1, 2001 through May 2005, PAST Team Leader Paula Evans ("Evans") served as Derosena's immediate supervisor. (Pl. 56.1 Resp. ¶ 5.) Evans is a non-Haitian female. (Id..)

In June 2002, Evans completed a performance evaluation of Derosena. (Pl. 56.1 Resp. ¶ 18.) In the evaluation, Evans rated Derosena as marginally meeting the requirements of her job and noted, among other things, that Derosena: (1) performed below her abilities; (2) showed minimal initiative about her work; (3) did not make sufficient effort to analyze complex problems; (4) exhibited carelessness; and (5) did not consistently plan and prioritize her work to ensure that goals were met. (Id.; Def. Ex. C, Derosena Dep. Ex. 5 at 1.) Subsequently, in a December 2002 performance evaluation, Evans once again rated Derosena as marginally meeting her job requirements and noted that: (1) on numerous occasions, work items had to be returned to Derosena for corrections of careless errors; (2) Derosena needed to develop her analytical skills; (3) Derosena needed to focus on ensuring that her communications were clear and concise; and (4) in the future, Evans expected Derosena to plan and prioritize her work. (Pl. 56.1 Resp. ¶ 20.)

Approximately three months later, on May 2, 2003, Evans issued Derosena a Corrective Action Form for negligent work practices and placed Derosena on a "30-day corrective action period." (Pl. 56.1 Resp. ¶ 21; Def.. 56.1 Resp. ¶¶ 79, 81.) The purpose of a Corrective Action Form is to show that the employee receiving the corrective action has reviewed and discussed the issues at hand with the supervisor. (Def. 56.1 Resp. ¶ 81.) In this case, the form served as a written warning and documented discussions between Derosena and Evans in April regarding negligent work practices. (Pl. 56.1 Resp. ¶ 21; Def.. 56.1 Resp. ¶ 79; Def. Ex. A, Evans Dep. Ex. 9, Corrective Action Form.) As noted in the form, Evans' reasons for placing Derosena on a corrective action period were two-fold: (1) Derosena failed to request certain refund checks and mail them to employers after Evans assigned this task to her*fn3 and (2) Derosena failed to mail a refund check to a participant in a Personal Investment Plan. (Pl. 56.1 Resp. ¶ 21; Pl. Ex. 5, Derosena Dep. at 31-32, 196-97.)

With respect to the former reason, Derosena admitted that the checks she failed to print and mail were on hold for a longer than acceptable period of time.*fn4 (Pl. 56.1 Resp. ¶ 62; Pl. Ex. 5, Derosena Dep. at 40-41.) It was not an uncommon occurrence for someone in Derosena's position to have on hold a check that would later be released and mailed out to the appropriate party. (Def. 56.1 Resp. ¶ 75; Pl. Ex. 14, Evans Dep. at 32-33.) Similarly, Derosena was not the only PAST team member that had, at some point, failed to notify someone from the check generating team that a check was on hold. (Def. 56.1 Resp. ¶ 76.) According to Derosena, Evans did not write up co-workers James Yelton ("Yelton") (Black, male), Gregory Jackson ("Jackson") (Black, male), Heather Kuchari ("Kuchari") (non-Haitian, female), and Matthew Gallardo ("Gallardo") (Hispanic, male), despite the fact that they had, at some point, left checks on hold for an unacceptable period of time. (Pl. 56.1 Resp. ¶ 62.) Generally, whether a PAST team member was disciplined for having checks on hold was dependant upon a number of factors, including how many times the employee had left checks on hold for an impermissible amount of time. (Pl. 56.1 Resp. ¶ 61; Def. Ex. A, Evans Dep. at 36.)

Derosena's thirty-day corrective action period ended on June 17, 2003. (Pl. 56.1 Resp. ¶ 22.) At that time, Evans noted that Derosena's work during had improved during the period and cautioned Derosena that future incidents in work performance would result in disciplinary action, including termination. (Id.; Def. Ex. C, Derosena Dep. Ex. 7, Corrective Action Follow-up Meeting Form.) Despite this warning, the negative assessments continued in the latter half of 2003. On Derosena's July 28, 2003 mid-year review, Evans noted that Derosena: (1) seemed to struggle with her work flow and (2) had difficulty with complex work. Additionally, Evans observed that Derosena earned low scores on certain billing and account assessments that were administered to PAST team members on July 16, 2003 and instructed Derosena to retake the assessments no later than September 30, 2003. (Pl. 56.1 Resp. ¶ 23.)

Subsequently, at Derosena's December 2003 year-end performance review, Evans noted many of the same concerns. For instance, Evans observed that Derosena: (1) submitted a greater than acceptable amount of work that contained errors; (2) did not always appear to show a genuine desire to go beyond the minimum requirements; (3) did not indicate that she would have liked to take on more work, even though over 99% of her work was completed on time; (4) processed a lower quantity of work as compared to others; (5) had not successfully passed all her September 2003 assessments; and (6) needed to show consistency in her improvements. (Pl. 56.1 Resp. ¶ 24; Def. Ex. C, Derosena Dep. Ex. 9, 2003 Performance Effectiveness Form.)

Three months later, on March 17, 2004, Evans issued Derosena a second Corrective Action Form for exceeding the Board's four-hour restriction on personal telephone use. (Pl. 56.1 Resp. ¶¶ 25-26; Def. 56.1 Resp. ¶ 80.) According to the Corrective Action Form, which served as a written warning to Derosena, Derosena used nearly six and one-half hours of personal phone time in January 2004 and over four and one-half hours of phone time in February 2004. (Pl. 56.1 Resp. ¶¶ 26, 36; Def. 56.1 Resp. ¶¶ 80, 81.) In the warning, Evans cautioned Derosena that future excessive personal telephone use could result in disciplinary action, including termination. (Pl. 56.1 Resp. ¶ 26.) Evans also disciplined other PAST teams members for exceeding the four-hour limitation. (Id.)

In November 2004, the Board altered their policy regarding personal phone usage. (Pl. 56.1 Resp. ¶ 25.) Under the new policy, employees were discouraged from making personal calls during working hours, except in emergency situation. (Id.; Def. Ex. C, Derosena Dep. Ex. 11, Customer Service Department Performance Standards at 3.) While the new policy did not contain a four hour restriction on personal telephone calls, Board employees were warned that an abuse of personal calls would result in disciplinary action. (Pl. 56.1 Resp. ¶ 25; Def. Ex. C, Derosena Dep. Ex. 11, Customer Service Department Performance Standards at 3.)

In December 2004, Evans completed Derosena's year-end performance review. (Pl. 56.1 Resp. ¶ 26; Def. Ex. C, Derosena Dep. Ex. 12, 2004 Personal Effectiveness Form.) In the review, Evans noted that Derosena had not met all her performance goals. (Pl. 56.1 Resp. ¶¶ 27-28.) With respect to the assessments, Evans observed that Derosena: (1) failed to achieve the required test score of 90% on two of the five assessments, despite her four attempts to do so between 2003 and 2004 and (2) had yet to pass three of the six mini-assessments, despite her two prior attempts. (Pl. 56.1 Resp. ¶ 27.) Evans also concluded that Derosena needed to manage her workload and priorities and improve her communication skills. (Id.)

In addition to this negative performance review, on December 9, 2004, Evans placed Derosena on a sixty-day probation (the "December 2004 probation") and issued Derosena a final written warning, which informed her that she had to improve her job performance. (Pl. 56.1 Resp. ¶ 29.) Evans' decision to place Derosena on probation stemmed from the following observations:

(1) Derosena continued to make errors at work, despite her receipt of a written warning on May 2, 2003 for negligent work practices; (2) Derosena continued to use excessive amounts of time for personal telephone calls, despite receipt of a written warning on March 17, 2004 for excessive personal telephone use; (3) Derosena failed to pass all of the required assessments; and (4) Derosena failed to meet her 2004 performance goal of improving her communications skills by preparing letters that did not require extensive editing. (Id.) Defendants had previously provided Derosena with written notice regarding the conduct identified in the warning. (Def. 56.1 Resp. ¶ 71.)

Derosena testified that she believes she was put on probation because she did not complete a performance improvement goal related to writing business letters and did not finish her work in a timely fashion. (Pl. 56.1 Resp. ¶ 69.) According to Derosena, Evans failed to place co-worker Matt Gallardo on probation, despite the fact that he had failed to start working on a similar project related to the business letter writing goal. (Id.; Pl. Ex. 5, Derosena Dep. at 107.) At the time of Derosena's probation, Gallardo, who had several years less experience as a PAST team member than Derosena, had passed more plan assessments than Derosena and had not received any warnings for negligent work practices or excessive personal telephone use. (Pl. 56.1 Resp. ¶¶ 63-64.) Derosena did not submit a rebuttal to the Board regarding the December 9, 2004 incident. (Def. 56.1 Resp. ¶ 102.) Instead, on January 13, 2005, Derosena filed her first charge of discrimination (the "January 2005 charge") with the Equal Employment Opportunity Commission ("EEOC"), alleging that Derosena's team leader discriminated against her on account of her sex and national origin. (Id.; Pl. 56.1 Resp. ¶ 8.)

Generally, an employee placed on probation received a final warning regarding his performance as well as an explanation of what he needed to do to correct the problem. (Pl. 56.1 Resp. ¶ 30.) When the employee successfully completed his probation, he returned to "business as usual." (Def. 56.1 Resp. ¶ 90; Pl. Ex. 18, Brothers Dep. at 45-46.) If, however, the employee's job performance did not improve within the allotted time period, the failure could lead to dismissal. (Pl. 56.1 Resp. ¶ 30.)

On February 9, 2005, Evans released Derosena from probation. (Pl. 56.1 Resp. ¶ 31.) At that time, Derosena had yet to achieve the required score of 90% or higher on one of her assessments. (Id.) Shortly after the release, Evans completed an evaluation of Evan's work performance during the probationary period. (Def. 56.1 Resp. ¶ 83.) In the evaluation, Evans noted that Derosena: (1) limited her monthly personal phone use to well under the one-hour time limit established for the probationary period; (2) came prepared to each meeting with her work items report and did a "great job" ensuring that she was current with her work items; (3) made a considerable effort to ensure she met the expectations of her position; and (4) consistently turn in her daily timelines. (Id.)

Shortly thereafter, Evans again evaluated Derosena's work performance during the mid-2005 performance evaluation. (Pl 56.1 Resp. ¶ 32; Def. Ex. C, Derosena Dep. Ex. 15, 2005 Performance Evaluation.) At that time, Evans noted, among other things, that Derosena: (1) needed to analyze information and make decisions before requesting the assistance of others and (2) still appeared to struggle with managing time and prioritizing work.*fn5 (Pl. 56.1 Resp. ¶ 32.)

In May 2005, Darcel Brothers ("Brothers"), a non-Haitian female, assumed the role of Derosena's immediate supervisor. (Pl. 56.1 Resp. ¶ 6.) Derosena admits that Brothers did not treat Derosena worse than she treated other employees on account of Derosena's national origin or gender. (Pl. 56.1 Resp. ¶ 34; Def. Ex. B, Derosena Dep. at 242, 247.)

Subsequently, in February 2006, Brothers gave Derosena her 2005 year-end performance evaluation. (Pl. 56.1 Resp. ¶ 35; Def. 56.1 Resp. ¶ 85.) At that time, Brothers also identified several issues with respect to Derosena's work performance, including that Derosena: (1) had not fully met all of her year-end goals; (2) had not fulfilled her "past due work" action item; (3) needed to take account for the work and due dates and prioritize her daily workload; (4) did not quality check or take a team member's transactions off hold on several occasions as a result of her negligence; (5) needed to focus on her decision-making skills; and (6) became careless when logging out work. (Pl. 56.1 Resp. ¶ 35; Def. 56.1 Resp. ¶ 85.) Derosena did not submit any comments to the Board regarding this evaluation. (Pl. 56.1 Resp. ¶ 35.)

On June 9, 2006, the EEOC issued Derosena a Notice of Right to Sue letter regarding the January 2005 charge. (Def. 56.1 Resp. ¶ 8; Pl. 56.1 Resp. ¶ 86; Pl. Ex. 8, Dismissal and Notice of Rights, 1/9/05.)

Derosena continued to make errors in 2006. (Pl. 56.1 Resp. ¶ 37.) Specifically, Derosena took a number of incorrect actions that resulted in account transaction and processing errors in January, February, May, and June 2006.*fn6 (Id.) On July 31, 2006, as a result of these recurring errors, Brothers issued Derosena a "final written warning" regarding her performance and placed Derosena on a 45-day probation with a work improvement plan ("July 2006 probation"). (Id.; Def. 56.1 Resp. ¶ 89.) The Corrective Action Form that memorialized the written warning and July 2006 probation does not refer to any other Corrective Action Forms. (Def. 56.1 Resp. ¶ 87. ) The form does, however, list and describe the January, February, May, and June 2006 incidents that resulted in Brothers' issuance of the probation as well as certain alleged communications sent to and had with Derosena regarding the same. (Pl. 56.1 Resp. ¶ 37; Def. Ex. C, Derosena Dep. Ex. 16, Corrective Action Form.) Although Derosena testified that, prior to the July 2006 probation, she did not receive any complaints from Brothers or others regarding her work performance in 2006, she also admits that she received communications in February 2006 informing her of a processing error. (Def. 56.1 Resp. ¶ 87; Pl. Ex. 5, Derosena Dep. at 264-65.) In addition, Derosena could not recall whether she had received communications regarding the May 2006 incident. (Def. 56.1 Resp. ¶ 87; Pl. Ex. 5, Derosena Dep. at 265-66.)

When placed on probation in July, Brothers cautioned Derosena that she had to improve her job performance immediately, could not make any additional similar errors, and had to perform her job in compliance with certain action plans and all other policies, procedures, and rules. (Pl. 56.1 Resp. ¶ 37.) Brothers also warned Derosena that further unsatisfactory work performance during the probationary period could result in disciplinary action, including termination. (Id..) Finally, Brothers informed Derosena that her performance would be evaluated at the end of the probationary period, at which time a decision would be made regarding Derosena's continued employment. (Id.) When issued, the July 31, 2006 Corrective Action Form was intended to be Derosena's final warning regarding her poor job performance. (Def. 56.1 Resp. ¶ 89.)

The next month, Brothers conducted Derosena's mid-2006 performance evaluation. (Pl. 56.1 Resp. ¶ 38.) In the evaluation, Brothers observed that Derosena: (1) had processing accuracy statistics were below the overall standard; (2) made many mistakes that could have been prevented; (3) was not effectively managing her daily work; and (4) had too many past due work items. (Pl. 56.1 Resp. ¶ 38.) In addition, Brothers noted that Derosena needed to: (1) work on her ability to proof her own work before giving it to a peer reviewer; (2) work on getting all of her assigned work processed on or before the duty date; and (3) improve her accuracy statistics by concentrating on what she was doing. (Id..) Finally, Brothers stated that Derosena would not be able to work on any extra assignments until she became up to date on her daily assignments. (Pl. 56.1 Resp. ¶ 38.)

On September 11, 2006, Derosena initiated the current action by filing a complaint against the Board, Reid, Evans, and Gertrude Livernois ("Livernois") alleging employment discrimination. (Def. 56.1 Resp. ¶ 96; Pl. Ex. 24, Complaint, 9/11/06.)

According to the July 2006 Corrective Action Form, unless otherwise notified, Derosena's 45-day probationary period would elapse on September 14, 2006. (Def. 56.1 Resp. ¶ 92.) Although Derosena had been given a probation release form at the end of her February 2005 probationary period, Brothers never gave Derosena a release for her July 2006 probation. (Def. 56.1 Resp. ¶¶ 88, 92.)

Unbeknownst to Derosena, in October 2006, Brothers concluded that Derosena should be discharged because her job performance had not improved. (Pl. 56.1 Resp. ¶ 39; Def. Ex. D, Brothers Dep. at 19.) In accordance with the Board's procedures, Brothers discussed his conclusion regarding discharging Derosena with Senior Human Resources Generalist, Patricia Trotter ("Trotter") and Managing Director of Customer Services, Debbie Reid ("Reid"). (Pl. 56.1 Resp. ¶¶ 3, 7, 39.) Trotter and Reid did not agree with Brothers' conclusion; instead, they recommended that Brothers extend Derosena's probation for an additional 45 days. (Pl. 56.1 Resp. ¶ 39.) According to Brothers, the purpose of the extended probation was to allow Derosena to demonstrate an improvement in her job performance. (Def. 56.1 Resp. ¶ 89; Pl. Ex. 18, Brothers Dep. at 69-70.) Subsequent to this discussion, Trotter and Reid informed Brothers that they also recommended an extended probation rather than termination because of the extenuating circumstances between Derosena and Evans with regard to the discrimination charge.*fn7 (Def. 56.1 Resp. ¶ 91; Pl. Ex. 18, Brothers Dep. at 24-29.)

Brothers followed this recommendation and, on October 27, 2006, extended Derosena's probation for an additional 45 days, until December 11, 2006 ("October 2006 probation"). (Pl. 56.1 Resp. ¶ 39; Def. 56.1 Resp. ¶¶ 88, 92.) Derosena did not tell anyone at the Board that she believed Brothers extended her probation in retaliation for filing a discrimination charge. (Pl. 56.1 Resp. ¶ 40.)She did, however, file a second charge of discrimination with EEOC on November 2, 2006, ...

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