Ricardo T. Sanz v. Wells Fargo Bank, N.A.

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13868
Non-Argument Calendar
____________________
RICARDO T. SANZ,
Plaintiff-Appellant,
versus
WELLS FARGO BANK, N.A.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-23122-MGC
____________________
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2 Opinion of the Court 21-13868
Before WILSON, BRASHER, and ANDERSON, Circuit Judges.
PER CURIAM:
Ricardo Sanz appeals the district court’s grant of summary
judgment to his former employer, Wells Fargo, on Sanz’s claims of
age discrimination and retaliation under the Florida Civil Rights
Act, Fla. Stat. § 760.10. Sanz argues that the district court erred be-
cause (1) Sanz established a prima facie case of age discrimination
and retaliation; (2) Sanz presented a mosaic of circumstantial evi-
dence of discrimination and showed Wells Fargo’s proffered rea-
sons for firing him were pretext for discrimination and retaliation;
and (3) the district court acknowledged the existence of triable is-
sues of fact. After careful review, we affirm. Because we conclude
there is no material issue of fact that Sanz did not establish pretext
or a mosaic of circumstantial evidence, we need not address
whether he made out a prima facie case of discrimination or retali-
ation under the FRCA.
I.
Sanz was employed by Wells Fargo and its predecessor com-
panies from 1987 until his termination in 2018. In 2009, when Sanz
was 50 years old, he was promoted to the role of Regional Private
Banking Manager (“RPBM”) for Wells Fargo’s Southeast Florida
Region—one of six banking regions within the Southeast Region.
Sanz, who was the oldest RPBM in the Southeast Region, held this
position for nine years until his 2018 termination.
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21-13868 Opinion of the Court 3
As RPBM, Sanz initially reported to Jason Williams, his di-
rect supervisor, and Jayne Hill, his “dotted line” supervisor. In mid-
2018, Jeff Haines became Sanz’s new direct supervisor, a role he
retained until Sanz’s termination. Sanz’s base salary as RPBM was
approximately $205,000. He did not receive a pay raise during his
nine years as an RPBM because, according to Wells Fargo, his sal-
ary was the maximum allowed for the position. According to Sanz,
however, the maximum base salary for his position between 2014
and 2018 across all regions of the same “tier” as Sanz’s was, in fact,
between $210,000 and $253,500. But Sanz did not present any evi-
dence that any of the RPBMs receiving a higher salary were
younger than him.
Wells Fargo evaluates a banking employee’s performance
by reference to that employee’s alignment with the company’s
team-based business model, the One Model on Model (“OMOM”).
Whether an employee is properly executing the OMOM depends
upon certain metrics, such as “revenue, sourced sales, client fulfill-
ment, new client acquisition, client discovery review and planning
and penetration, strategic partnership, and recruiting.” Although
the OMOM has existed in some form since 2009, Wells Fargo be-
gan to place greater emphasis on its enforcement in 2016.
Upon becoming Sanz’s direct supervisor, Haines quickly
grew concerned that Sanz was not properly following the OMOM,
noting several occasions on which Sanz assembled teams of bank-
ers with inadequate skills for clients’ specific needs and criticizing
Sanz’s unwillingness to “accept change.”
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4 Opinion of the Court 21-13868
Haines and Hill held two meetings with Sanz in late 2016
and early 2017, during which they informed Sanz that his imple-
mentation of the OMOM was inadequate, without providing him
any specifics as to why this was. In December, Haines sent an email
to Hill titled “notes from my coach,” opining on Sanz’s job perfor-
mance. The record does not disclose the author of this “coaching
memo,” and neither Haines nor his business coach recall drafting
it. The coaching memo highlights several favorable aspects of
Sanz’s performance, including that he was “meeting or exceeding
his most critical performance objectives.” But it also states that
there were other important “quantitative and qualitative
measures” Sanz was not meeting, including his OMOM execution.
The memo also refers to Sanz as “cancer or toxic to both leadership
team and greater performance” and directs Haines to “manage him
out or up” and begin searching for a potential replacement.
The evidence shows that, although Sanz’s market had high
rankings and percentage numbers in many respects during his ten-
ure as RPBM, his performance began to decline in other key areas
beginning in 2014. For instance, Sanz’s annual performance re-
views indicated that his credit sales were “below plan” in both his
2015 and 2016. His reviews also identified concerns with leader-
ship, team performance, revenue, sourced sales, recruiting, com-
munication, and OMOM execution.
In June 2017, Wells Fargo provided Sanz an Informal Perfor-
mance Improvement Plan (“PIP”) reiterating these performance
deficiencies and warning Sanz that Wells Fargo could terminate his
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21-13868 Opinion of the Court 5
employment if Sanz’s conduct did not improve by September. The
Informal PIP established performance expectations of 100 percent,
even though no other banking leaders in the Southeast Florida Re-
gion met this goal, and none received a PIP.
Sanz responded to the Informal PIP by filing an internal
complaint of age discrimination and age-based retaliation. When
Karen Lucherk, the Human Resources representative assigned to
Sanz’s complaint, asked Sanz for additional information supporting
his claim, Sanz responded that he had heard “comments from sen-
ior leaders in managers meetings regarding historians [who] do not
accept change.” Lucherk found this evidence insufficient to initiate
an investigation, in part because Wells Fargo employed actual his-
torians, who could be the subjects of those comments.
After Lucherk closed Sanz’s complaint, Haines and Hill is-
sued Sanz a Formal PIP on October 31, 2017. The Formal PIP ex-
plained that Sanz’s performance continued to fall below expecta-
tions in several key areas. On February 5, 2018, after the time to
comply with the Formal PIP had lapsed, Wells Fargo fired Sanz.
He was 59 years old at the time. Wells Fargo replaced Sanz with
Greg Rolle, who was then 51 years old. Hill and Haines never is-
sued Rolle a PIP, even though his 2018 performance review identi-
fied credit sales of 49 percent, which fell far below Sanz’s 86 percent
in 2016. But Rolle was ranked first in the nation the following year,
and his credit sales were over goal by 2020.
Sanz sued Wells Fargo in Florida state court, claiming his
termination constituted unlawful age discrimination and
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6 Opinion of the Court 21-13868
retaliation in violation of the FCRA. Wells Fargo removed the mat-
ter to federal court, and the district court entered summary judg-
ment in Wells Fargo’s favor. The court held that Sanz failed to es-
tablish a prima facie case of age discrimination or retaliation and
that, even if he had, he failed to show that Wells Fargo’s proffered
reason for discharging him—underperformance—was pretext for
discrimination or retaliation.
II.
We review an appeal from summary judgment de novo.
Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1310 (11th Cir. 2013).
Summary judgment is proper if, viewing the evidence in the light
most favorable to the nonmoving party, “the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Id. (quoting Fed. R. Civ.
P. 56(a)).
The FRCA prohibits employers from firing employees who
are forty years or older because of their age. See Fla. Stat. §§
760.10(1)(a), (7). Age discrimination and retaliation claims under
the FRCA are governed by the same legal framework as those un-
der the federal Age Discrimination in Employment Act, 29 U.S.C.
§ 623(a). Zaben v. Air Prods. & Chems., Inc., 129 F.3d 1453, 1455
n.2 (11th Cir. 1997).
Where, as here, a plaintiff claims discrimination or retalia-
tion based on circumstantial evidence, we usually apply the bur-
den-shifting framework established in McDonnell-Douglas Corp.
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21-13868 Opinion of the Court 7
v. Green, 411 U.S. 792 (1973). See Liebman v. Metro. Life Ins. Co.,
808 F.3d 1294, 1298 (11th Cir. 2015). Under that framework, the
plaintiff bears the initial burden of establishing a prima facie case of
discrimination or retaliation. See id. (citing Kragor v. Takeda
Pharms. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012)). If the
plaintiff satisfies this burden, the burden of production then shifts
to his employer to articulate a legitimate, non-discriminatory rea-
son for its actions. Id. If the employer proffers even one such rea-
son, the burden then shifts back to the plaintiff, who then must
show that the employer’s reason is a pretext. Id. To establish pre-
text and avoid summary judgment, the plaintiff “must present ‘sig-
nificant probative’ evidence,” Mayfield v. Patterson Pump Co., 101
F.3d 1371, 1376 (11th Cir. 1996) (citing Isenbergh v. Knight–Ridder
Newspaper Sales, Inc., 97 F.3d 436, 443–44 (11th Cir.1996)), “suffi-
cient to permit a reasonable fact finder to conclude that the dis-
criminatory animus was the ‘but-for’ cause of the adverse employ-
ment action,” Sims v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir.
2013) (citing Gross v. FBL Fin Servs., Inc., 557 U.S. 167, 176 (2009)).
An employer’s proffered reason is not pretextual unless the plaintiff
shows “both that the reason was false, and that discrimination was
the real reason.” Springer v. Convergys Customer Mgmt. Grp. Inc.,
509 F.3d 1344, 1349 (11th Cir. 2007) (quoting Brooks v. Cnty.
Comm'n of Jefferson Cnty., 446 F.3d 1160, 1163 (11th Cir. 2006)).
We have made clear that “employers are free to fire their employ-
ees for ‘a good reason, a bad reason, a reason based on erroneous
facts, or for no reason at all, as long as its action is not for a discrim-
inatory reason.’” Flowers v. Troup Cnty. Sch. Dist., 803 F.3d 1327,
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8 Opinion of the Court 21-13868
1338 (11th Cir. 2015) (quoting Nix v. WLCY Radio/Rahall
Commc’ns, 738 F.2d 1181, 1187 (11th Cir.1984)).
Even if a plaintiff fails to satisfy his burden under the
McDonnell-Douglas framework, he may still defeat summary judg-
ment by presenting “a convincing mosaic” of circumstantial evi-
dence that “raises a reasonable inference that the employer dis-
criminated” against him. Smith v. Lockheed-Martin Corp., 644
F.3d 1321, 1328 (11th Cir. 2011). “A ‘convincing mosaic’ may be
shown by evidence that demonstrates, among other things, (1)
‘suspicious timing, ambiguous statements . . ., and other bits and
pieces from which an inference of discriminatory intent might be
drawn,’ (2) systematically better treatment of similarly situated em-
ployees, and (3) that the employer’s justification is pretextual.”
Lewis v. City of Union City, 934 F.3d 1169 (11th Cir. 2019) (quota-
tions omitted).
Sanz never argued before the district court that he presented
“a convincing mosaic” of circumstantial evidence under our Smith
test. And although the district court purported to apply only the
McDonnell-Douglas framework to Sanz’s claims, the court con-
cluded its discussion of Sanz’s discrimination claim by stating that
“Sanz has provided neither direct evidence of discrimination nor ‘a
convincing mosaic of circumstantial evidence that warrants an in-
ference of intentional discrimination.’”
On appeal, Sanz relies upon the same pieces of evidence to
support both that he established pretext under McDonnell-Douglas
and a convincing mosaic under Smith. Specifically, Sanz points to
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21-13868 Opinion of the Court 9
statements from the “coaching memo” that “Sanz exceeded all crit-
ical performance metrics” but Haines should nevertheless look for
a replacement; Haines’s comment regarding Sanz’s resistance to
change; references by senior employees to “historians” in the com-
pany; Wells Fargo’s “objective performance metrics” showing the
adequacy of Sanz’s performance; the 100 percent PIP requirement
“that only he was required to meet”; and Wells Fargo’s “demon-
strably false” explanation for not giving Sanz a raise for nine years.
This incomplete description of the evidence fails to create a con-
vincing mosaic of evidence or to show pretext.
First, in describing his job performance, Sanz fails to men-
tion his deficient credit sales and recruiting beginning as far back as
2014. His description of the “coaching memo” similarly omits the
statement that Sanz was underperforming on several key “qualita-
tive and quantitative measures” and the reference to him as “cancer
or toxic to both leadership team and greater performance.” This
undisputed evidence of Sanz’s underperformance over a span of
years rebuts any suggestion that Wells Fargo’s proffered reason for
firing him, underperformance, was false. See Springer, 509 F.3d at
1349 (quoting Brooks, 446 F.3d at 1163).
Nor does the evidence on which Sanz relies exhibit discrim-
inatory animus. For instance, Sanz does not suggest the comments
from senior leaders regarding “historians” who “do not accept
change” pertained to older employees generally or him specifically,
or that Haines or Hill made these comments or knew of them. And
it would be unreasonable to infer that Haines’s criticism of Sanz’s
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10 Opinion of the Court 21-13868
resistance to change was age-related, particularly in light of the
company’s newfound emphasis on the OMOM—something that
demanded change from all banking employees. All the precedents
Sanz cites to support his argument that these comments consti-
tuted circumstantial evidence of discrimination involved explicit
references to age, sex, or race—evidence wholly absent here. See
Mora v. Jackson Mem’l Found., Inc., 597 F.3d 1201, 1203 (11th Cir.
2010) (comment that plaintiff “is too old to be working here”); Ro-
jas v. Florida, 285 F.3d 1339, 1342–43 (11th Cir. 2002) (comment
that an employee “did not deserve her job” because she “was a
woman”); Evans v. McClain of Ga., Inc., 131 F.3d 957, 962 (11th
Cir. 1997) (comments referring to plaintiff as “very large, very
strong, very muscular black man” who intimidated white employ-
ees with his “strut”).
Similarly, the fact that Sanz did not receive a pay raise for
nine years does not suggest discriminatory motive absent evidence
that, for example, Wells Fargo provided raises or higher salaries to
younger RPBMs during this period. And to the extent Wells Fargo
held Sanz to higher expectations than other RPBMs in the South-
east Region, none of them also reported to Haines, and all of them
were over forty and thus within the class of persons protected by
the FRCA. Finally, Sanz, in comparing his performance to that of
Rolle, his younger replacement, relied only on his 2018 perfor-
mance statistics. But Rolle did not replace Sanz until the middle of
that year, and his numbers for the following years surpassed Sanz’s
previous figures.
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21-13868 Opinion of the Court 11
Upon examination, Sanz’s arguments amount to mere
“[c]onclusory allegations of discrimination,” which, “without
more,” cannot save his discrimination and retaliation claims from
summary judgment. Fulcron v. Mail Ctrs. Plus, LLC, 843 F.3d
1295, 1313 (11th Cir. 2016).
III.
Sanz also argues that summary judgment was improper be-
cause the district court acknowledged that issues of material fact
existed regarding Sanz’s retaliation claim. But these disputed fac-
tual issues pertained only “to whether Sanz has established one of
the elements of his [prima facie case of] retaliation.” And the district
court held that, even if Sanz established a prima facie case, his claim
nevertheless fails because “Sanz has not shown that the proffered
reasons for his discharge were pretextual.” We agree.
“Only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry
of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Here, factual disputes regarding Sanz’s prima facie
case will not affect the outcome of the suit, because even if such
disputes exist, his claims still fail for want of pretext under McDon-
nell Douglas or a convincing mosaic of circumstantial evidence un-
der Smith.
IV.
For the foregoing reasons, the district court is AFFIRMED.