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Markley v. U.S. Bank National Ass’n.

No. 21-1240. 2/8/2023. D.Colo. Judge McHugh. Age Discrimination in Employment Act—Reasonable Accommodations—Interactive Process.

February 8, 2023

Markley worked for U.S. Bank National Association (U.S. Bank) managing a team of wealth managers and private bankers, including Provencher and Crittendon. Allegations arose that Markley violated U.S. Bank policy by providing Provencher a personal loan and giving him commission credits for sales on which he did not participate and had not met the client, and that Markley improperly prevented Crittendon from “sandbagging” an investment. U.S. Bank assigned Plazola to investigate the allegations, and a review committee subsequently concluded that the allegations were substantiated. A separate misconduct disciplinary committee unanimously voted to terminate Markley’s employment, and he was fired for improperly giving Provencher commission credits. Markley did not suggest at any time that the allegations were due to his age. Over a year later, Markley sued U.S. Bank under the Age Discrimination in Employment Act (ADEA) and for wrongful discharge under Colorado law. U.S. Bank moved for summary judgment. The district court concluded that Markley did not sustain his burden of producing evidence capable of establishing that U.S. Bank’s reason for terminating his employment was a pretext for age discrimination.

On appeal, Markley argued that the district court failed to construe the facts in the light most favorable to him when analyzing Plazola’s investigation. Markley maintained that flaws in Plazola’s investigation established pretext. However, while an imperfect investigation may help support an inference of pretext, another indicator of protected-class-based discrimination must exist for investigatory flaws to establish pretext. Otherwise, a jury would be forced to speculate about the cause of the investigatory flaws. Accordingly, Markley’s criticisms of U.S. Bank’s investigation, standing alone, do not create a genuine dispute of material fact as to whether U.S. Bank’s proffered justification for discharging him was pretextual. Here, the district court identified Plazola’s investigatory steps, which included interviews of numerous members of  Markley’s team who alleged that he listed Provencher as receiving commissions for sales in which he was not involved. In addition, Markley was given multiple opportunities to provide his perspective on the relevant conduct but failed to do so. While Markley identified some additional investigatory steps Plazola could have taken, he failed to provide any evidentiary basis to believe these additional steps would have produced evidence supporting the conclusion that he had not improperly included Provencher on certain sales. Further, even if deficiencies in an investigation alone could support a finding of pretext, Markley’s criticisms of the investigation were unpersuasive and insufficient to permit a reasonable jury to find U.S. Bank’s reasons for termination pretextual.

Markley also argued that U.S. Bank’s termination decision was not independent because the disciplinary committee acted as a rubber stamp and ratified the termination recommendation without any independent analysis. He contended that Ott tainted the investigation by telling Plazola early in the investigation that Ott intended to terminate Markley, so Ott’s age-based bias can be imparted on to U.S. Bank’s termination decision. However, given the absence of any age-based bias by Ott, Markley’s theory fails.

Markley further contended that he attempted to switch Provencher to an all salary, no commission compensation plan, and this raises questions about U.S. Bank’s conclusion that he was trying to funnel commissions to Provencher. While Markley sought to move Provencher to a salary-only compensation plan, the record shows that he did not do so until after the alleged wrongdoing, after Crittendon raised his concerns, and after the investigation started. Accordingly, Markley’s argument did not contradict other record evidence that during the relevant time frame, he improperly listed Provencher for sales credit. Therefore, a reasonable jury would be unable to draw any nonspeculative inference from Markley’s attempt to change Provencher’s compensation structure, and the argument fails to establish that U.S. Bank’s reason for terminating Markley was pretextual.

Markley also argued that U.S. Bank failed to follow its written policy by not investigating his claim that Crittendon and others raised allegations against him in retaliation for stopping a sandbagging effort. However, U.S. Bank looked into the allegation and concluded no sandbagging occurred, so the district court discounted this contention. Further, even if U.S. Bank technically acted contrary to its written policies, U.S. Bank had more than ample evidence to conclude that Markley had improperly listed Provencher on certain sales even without the statements of Crittendon and others. In addition, there is no record evidence tying an alleged deficiency in the investigation to Markley’s age. Therefore, any procedural irregularity did not directly disadvantage Markley.

The grant of summary judgment was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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