Charlene Eggers v. Wells Fargo Bank, N.A. , 899 F.3d 629 ( 2018 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 16-4376
    ___________________________
    Charlene Eggers, Estate of Richard Eggers
    lllllllllllllllllllll Plaintiff - Appellant
    Richard Eggers, individually and on behalf of a putative class of similarly situated
    individuals, Deceased
    lllllllllllllllllllll Plaintiff
    v.
    Wells Fargo Bank, N.A.
    lllllllllllllllllllll Defendant - Appellee
    ____________
    Appeal from United States District Court
    for the Southern District of Iowa - Des Moines
    ____________
    Submitted: October 16, 2017
    Filed: August 13, 2018
    ____________
    Before SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.*
    ____________
    SMITH, Chief Judge.
    *
    Chief Judge Smith and Judge Colloton file this opinion pursuant to 8th Cir.
    Rule 47E.
    Richard Eggers (“Richard”) sued Wells Fargo Bank, N.A., alleging the bank
    violated the Age Discrimination in Employment Act (ADEA) in terminating his
    employment. The district court1 granted Wells Fargo’s motion for summary judgment.
    We affirm.
    I. Background
    In 2005, Richard, then age 61, applied to work at Wells Fargo. On the job
    application, Wells Fargo required applicants to answer whether they had ever been
    convicted of any crime involving dishonesty or breach of trust. He answered “No,”
    and a name-based background check revealed no prior conviction. Wells Fargo
    subsequently hired Richard for its Home Mortgage division.
    In 2010, Wells Fargo switched to a more sophisticated FBI fingerprint-based
    background check. The bank then ordered Richard’s division to undergo rescreening
    with the new system. Richard authorized the rescreen, and again he indicated that he
    had no prior convictions for crimes involving dishonesty or breach of trust. However,
    the new background check showed that Richard had a fraud conviction under Iowa
    law in 1963 and served two days in jail.
    Under federal law, Richard’s prior conviction bars him from working for Wells
    Fargo. Referred to as “Section 19,” 12 U.S.C. § 1829(a)(1)(A) prohibits, inter alia,
    “any person who has been convicted of any criminal offense involving dishonesty or
    a breach of trust” from becoming or continuing as an employee of any institution
    insured by the Federal Deposit Insurance Corporation (FDIC). The statute provides
    stiff penalties for employer violators, including daily fines of up to $1,000,000 per
    day and/or five years’ imprisonment. 
    Id. § 1829(b).
    Individuals with prior
    disqualifying convictions under Section 19 may apply for employment waivers with
    1
    The Honorable Charles R. Wolle, United States District Judge for the Southern
    District of Iowa.
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    the FDIC. In addition, banking institutions wishing to hire—or to continue to
    employ—Section 19-disqualified individuals also may sponsor waiver applications.
    Disqualified individuals may not begin or continue employment with the FDIC-
    insured institutions prior to obtaining waivers. Section 19 expressly precludes the
    FDIC from granting a waiver to individuals disqualified due to certain enumerated
    offenses for at least ten years. All offenses older than ten years are treated the same
    as each other. See 
    id. § 1829(a)(2)(A).
    In other words, Section 19 mandates that a 40-
    year-old conviction for a crime involving dishonesty or breach of trust disqualifies
    a person from FDIC-institution employment the same as does an 11-year-old
    conviction.
    Upon learning of Richard’s disqualification under Section 19, Wells Fargo
    acted to comply with the statute. The bank first offered him leave time to obtain a
    waiver, but he refused. Wells Fargo then terminated his employment. Richard then
    applied to the FDIC for a Section 19 waiver, which was granted. Wells Fargo offered
    to reinstate Richard to his prior position in the Home Mortgage division. He refused
    the reinstatement offer and opted to sue the bank, alleging employment discrimination
    in violation of the ADEA. He alleged Wells Fargo violated the ADEA by (1) refusing
    to sponsor Section 19 waivers and by (2) failing to provide job applicants and
    employees with pre-screening notice of the opportunity to obtain waivers.
    Specifically, Richard contended that these two practices created a disparate impact
    against older workers.
    After two years of litigation, Wells Fargo moved in the district court for
    summary judgment. By then, Richard had died, and his widow, Charlene Eggers, had
    been substituted as the party plaintiff. The district court conducted a hearing on the
    summary judgment motion after briefing by the parties. It then issued a ruling in favor
    of Wells Fargo. The court, “[n]ow finally fully informed, . . . conclude[d] [that]
    plaintiff[] ha[s] no viable theories for recovery, nor [has she] disclosed or discovered
    facts supporting [the] pleaded claims of age . . . discrimination.” Eggers v. Wells
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    Fargo Bank, N.A., No. 4:14-cv-00394-CRW-SBJ, slip op. at 3 (S.D. Iowa Oct. 27,
    2016), ECF No. 173. The court noted that Eggers “cited [no] legal authorities nor
    discovered evidence supporting [the] age discrimination claims, whether
    characterized as intentional discrimination or disparate impact results.” 
    Id. at 5.
    Further, the court observed that “any bank or other financial institution wisely would
    prefer for its customers to be served by employees who were not pre[v]iously persons
    convicted of crimes of dishonesty. When [Wells Fargo] learned of the conviction[],
    its sound business decision was to terminate . . . .” 
    Id. at 4.
    The district court then
    granted Wells Fargo’s summary judgment motion and dismissed Eggers’s lawsuit.
    II. Discussion
    Eggers alleges that the district court, in granting summary judgment to Wells
    Fargo: (1) ignored Eggers’s identified discriminatory employment practices; (2)
    conflated disparate treatment and disparate impact law in holding that Eggers failed
    to make out a prima facie case of disparate impact under the ADEA; and (3)
    incorrectly concluded that Wells Fargo’s blanket refusal to sponsor waivers and to
    provide notice of opportunity for Section 19 waivers was a reasonable factor other
    than age. We disagree and address each argument in turn.
    We review the district court’s grant of summary judgment de novo. Torgerson
    v. City of Rochester, 
    643 F.3d 1031
    , 1042 (8th Cir. 2011) (en banc). “Summary
    judgment is not designed to weed out dubious claims, but to eliminate those claims
    with no basis in material fact.” Wilson v. Myers, 
    823 F.2d 253
    , 256 (8th Cir. 1987)
    (citation omitted). “Summary judgment is proper ‘if the pleadings, the discovery and
    disclosure materials on file, and any affidavits show that there is no genuine issue as
    to any material fact and that the movant is entitled to judgment as a matter of law.’”
    
    Torgerson, 643 F.3d at 1042
    (quoting Fed. R. Civ. P. 56(c)(2)). “Facts must be
    viewed in the light most favorable to the nonmoving party only if there is a genuine
    dispute as to those facts.” 
    Id. (quoting Ricci
    v. DeStefano, 
    557 U.S. 557
    , 586 (2009)).
    “‘Mere allegations, unsupported by specific facts or evidence beyond the nonmoving
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    party’s own conclusions, are insufficient to withstand a motion for summary
    judgment.’ We may affirm a district court’s grant of summary judgment on any basis
    supported by the record.” Menz v. New Holland N. Am., Inc., 
    507 F.3d 1107
    , 1110
    (8th Cir. 2007) (first quoting Thomas v. Corwin, 
    483 F.3d 516
    , 527 (8th Cir. 2007),
    then citing Tenge v. Phillips Modern Ag. Co., 
    446 F.3d 903
    , 906 (8th Cir. 2006)).
    Under the disparate impact theory of employment discrimination, an
    employer’s practice may be “fair in form but discriminatory in practice.” Wards Cove
    Packing Co. v. Atonio, 
    490 U.S. 642
    , 645 (1989) (citation omitted). “The ADEA
    makes it ‘unlawful for an employer to . . . discriminate against any individual with
    respect to his compensation, terms, conditions, or privileges of employment, because
    of such individual’s age.’” Onyiah v. St. Cloud State Univ., 
    684 F.3d 711
    , 719 (8th
    Cir. 2012) (quoting 29 U.S.C. § 623(a)(1)) (ellipsis in original). “[T]he scope of
    disparate-impact liability under ADEA is narrower than under Title VII.” Smith v.
    City of Jackson, 
    544 U.S. 228
    , 240 (2005). To establish a disparate impact claim
    under the ADEA,
    [a] plaintiff . . . must first establish a prima facie case . . . by identifying
    a specific employment practice and then presenting statistical evidence
    of a kind and degree sufficient to show that the practice in question
    caused the plaintiff to suffer adverse employment action because of his
    or her membership in a protected group [(employees age 40 or older)].
    Evers v. Alliant Techsystems, Inc., 
    241 F.3d 948
    , 953 (8th Cir. 2001) (citing Watson
    v. Fort Worth Bank & Trust, 
    487 U.S. 977
    , 994 (1988)). “[T]he burden then shifts to
    the employer to produce evidence demonstrating a legitimate business reason for the
    challenged practice.” 
    Id. (citing Watson,
    487 U.S. at 997–98).
    A legitimate business reason under the ADEA is any “reasonable factor[] other
    than age” (RFOA). 29 U.S.C. § 623(f)(1). “Congress took account of the distinctive
    nature of age discrimination, and the need to preserve a fair degree of leeway for
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    employment decisions with effects that correlate with age, when it put the RFOA
    clause into the ADEA, ‘significantly narrow[ing] its coverage.’” Meacham v. Knolls
    Atomic Power Lab., 
    554 U.S. 84
    , 102 (2008) (alteration in original) (quoting City of
    
    Jackson, 544 U.S. at 233
    ). The RFOA exemption is an affirmative defense. 
    Id. at 97.
    “[I]n cases involving disparate-impact claims[,] . . . the RFOA provision plays its
    principal role by precluding liability if the adverse impact was attributable to a
    nonage factor that was ‘reasonable.’” City of 
    Jackson, 544 U.S. at 239
    . The focus of
    the RFOA defense
    is that the factor relied upon was a “reasonable” one for the employer to
    be using. Reasonableness is a justification categorically distinct from the
    factual condition “because of age” and not necessarily correlated with
    it in any particular way: a reasonable factor may lean more heavily on
    older workers, as against younger ones, and an unreasonable factor
    might do just the opposite.
    
    Meacham, 554 U.S. at 96
    .
    1. Employment Practices at Issue
    Eggers alleges that the district court misidentified the Wells Fargo employment
    policies that she challenges. She argues that the misidentification of the policies
    constituted reversible errors. Eggers challenges two policies: “(1) Wells Fargo’s
    practice of refusing to sponsor team members’ and new hires’ Section 19 waiver
    applications and (2) Wells Fargo’s practice of refusing to provide its team members
    and applicants with pre-screening notice of the opportunity to obtain Section 19
    waivers.” Appellant Br. at 21.
    In its summary judgment order, the district court stated:
    To circumvent [Wells Fargo’s] choice to terminate or not further
    employ persons convicted of crimes of dishonesty, the plaintiff[] ha[s]
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    added several theories: (1) [Wells Fargo] should have given notice or
    helped the plaintiff[] seek and obtain exemptions from the FDIC; (2)
    [Wells Fargo] should not have required [Eggers] to be fingerprinted and
    rescreened; (3) and [Wells Fargo] should itself have applied to the
    FDIC to obtain exemptions from the Section 19 collateral consequence
    of the employees’ convictions.
    Eggers, slip op. at 4 (emphases added). The court then concluded that Eggers “ha[s]
    neither cited legal authorities nor discovered evidence supporting [the] age
    discrimination claims, whether characterized as intentional discrimination or
    disparate impact results.” 
    Id. at 5.
    Eggers’s argument fails. The district court identified exactly the two policies
    Eggers challenged. Her contention on this issue is without merit, and we find no
    error.
    2. Prima Facie Case
    Eggers next faults the district court for concluding that she failed to establish
    a prima facie case of disparate impact discrimination under the ADEA. The district
    court found that Richard was disqualified for the job he held due to federal law. See
    
    id. at 3
    (“[A]ll of the plaintiffs have been convicted of disqualifying crimes of
    dishonesty and therefore were lawfully not hired, or were terminated when [Wells
    Fargo] learned of each disqualification.”). Eggers argues that the district court’s
    reliance on EEOC v. Con-Way Freight, Inc., 
    622 F.3d 933
    (8th Cir. 2010), was
    misplaced. Eggers contends that the court should have relied on Green v. Mo. Pac.
    R.R. Co., 
    523 F.2d 1290
    (8th Cir. 1975), for guidance. We disagree.
    In Green, the plaintiff alleged employment discrimination based on the
    employer’s policy of disqualifying all job applicants with a conviction for any crime
    other than a minor traffic 
    offense. 523 F.2d at 1292
    . We held that the company’s
    “sweeping disqualification” violated Title VII because it could not meet the business
    -7-
    necessity test, the second prong of the McDonnell Douglas2 framework. 
    Id. at 1296–98.
    Green’s holding flowed directly from our decision in Carter v. Gallagher,
    
    452 F.2d 315
    , 326 (8th Cir.), cert. denied, 
    406 U.S. 950
    (1972), where the en banc
    court struck down a similar rule that an employer may not on its own institute a policy
    of “treat[ing] [a] conviction as an absolute bar to employment.” 
    Id. at 1297
    (quoting
    
    Carter, 452 F.3d at 326
    ). In Con-Way Freight, a Title VII disparate treatment case,
    we held that a plaintiff could not establish a prima facie case of discrimination
    because her “theft-related conviction render[ed] [her] unqualified for any position
    with the [employer],” pursuant to company 
    policy. 622 F.3d at 938
    . Unlike the
    company in Green, Con-Way only barred persons with theft-related convictions from
    employment with the company. See 
    id. at 935.
    Green and Con-Way Freight can be read together to say that in cases where an
    employer’s policy is not a “sweeping disqualification,” such policies may preclude
    a plaintiff from establishing a prima facie case of disparate treatment against her
    employer. In contrast, in a disparate impact case where a company-initiated
    disqualification policy is sweeping and overbroad, the policy not only does not bar
    a plaintiff’s prima facie case; it also fails the business necessity test. But neither
    Green nor Con-Way Freight addressed a statutorily mandated employment
    disqualification. Thus, neither is directly on point. Here, federal law—not company
    policy—triggers disqualification from employment.
    Eggers insists that establishing job qualification is never a requirement in an
    ADEA disparate impact case. However, even assuming that the Section 19
    disqualification does not bar Eggers’s claim, Eggers failed to present statistical
    evidence of any kind that the two challenged policies created a disparate impact
    among Wells Fargo employees older than 40. See Mems v. City of St. Paul, Dept. or
    Fire and Safety Servs., 
    224 F.3d 735
    , 740 (8th Cir. 2000) (“When statistical evidence
    2
    McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    (1973).
    -8-
    is offered to show causation, the evidence must be ‘of a kind and degree sufficient to
    show that the practice in question has caused the exclusion of applicants for jobs or
    promotions because of their membership in a protected group.’” (quoting 
    Watson, 487 U.S. at 994
    )), abrogated on other grounds by 
    Torgerson, 643 F.3d at 1059
    . Eggers
    argues that she did not have the burden to produce statistical evidence in the district
    court because Wells Fargo did not raise the issue in its opening brief in support of the
    motion for summary judgment. But, to avoid summary judgment, Eggers was required
    “to make a showing sufficient to establish the existence of an element essential to
    [her] case” because “a complete failure of proof concerning an essential element of
    [her] case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett,
    
    477 U.S. 317
    , 322–23 (1986). Eggers failed to present sufficient evidence to support
    an essential element.
    Because Eggers failed to present any statistical evidence of a disparate impact,
    and because we may affirm on any ground supported by the record, summary
    judgment for Wells Fargo is appropriate for lack of a prima facie case.
    III. Conclusion
    Accordingly, we affirm the district court’s grant of summary judgment to Wells
    Fargo.
    ______________________________
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