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Pea v. Elavon, Inc.

United States District Court, D. Colorado

September 6, 2017

CHARLES E. PEA, Plaintiff,
v.
ELAVON, INC. and U.S. BANK NATIONAL ASSOCIATION d/b/a U.S. BANK, Defendants.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          WILEY Y. DANIEL, SENIOR UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Plaintiff Charles Pea (“Pea”) asserts two employment related claims in this matter: (1) a Title VII and 42 U.S.C. § 1981 race discrimination claim and (2) an age discrimination claim under the Age Discrimination in Employment Act (“ADEA”). Pea claims that Defendants Elavon and U.S. Bank (“Elavon”) discriminated against him in connection with the termination of his employment.

         Shortly before a jury trial was set to commence, the parties filed a Joint Statement of Withdrawal of Jury Demand (ECF No. 71). Thus, a trial to the Court was held on August 21-24, 2017. As the finder of fact, I have thoroughly and carefully weighed the evidence presented at trial, assessed the credibility of the witnesses, and considered the parties' arguments, and for reasons stated on the record on August 24, 2017 and set forth below, I enter the following findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52.

         II. FINDINGS OF FACT

         1. U.S. Bank is a diversified financial services company that offers banking and financial solutions to its customers. Elavon is a subsidiary of U.S. Bank and part of U.S. Bank Payment services. It provides a credit card processing network and payment processing solutions for merchants including many healthcare providers.

         2. U.S. Bank and Elavon maintain a Code of Ethics and Business Conduct which sets forth the Company's discrimination policy. The policy states that “[w]e do not tolerate harassment or discrimination based on race, religion, color, creed, age, sex, national origin or ancestry, sexual orientation (including gender expression or identity), genetic information, disability, veteran status, citizenship status, marital status or other factors that are protected by law.” (Ex. 22). One of the Company's core values is diversity. “At U.S. Bank, diversity and inclusion means intentionally engaging and respecting the talents, perspectives and uniqueness in all of U.S. to drive business success.” (Ex. 22).

         3. Elavon operates a call center in Englewood, Colorado. Between 2012 and 2016, approximately 20% of the call center employees were African American individuals. At that same time frame, approximately 50% of the call center employees were over 40 years of age.

         4. In July, 2012, Pea applied for an employment position with Elavon after attending a job fair at Arapahoe Works, where he met Elavon employees, Tyrone Velasquez and Susan Wills. After attending the job fair, Pea filled out an online job application.

         5. Pea's date of birth is March 25, 1961 and he is African American.

         6. Pea then interviewed for the job with Elavon employees, Tyrone Velasquez and Velasquez's supervisor, Terese Brozovich.

         7. Velasquez testified that he met approximately 35 people at the job fair, but he was impressed with Pea's energy and excitement about working at Elavon, so Velasquez recommended to human resources that Pea be hired. Pea was offered a position as Operations Manager 3. This was an at-will position.

         8. When Velasquez hired Pea, he knew Pea was African American and he believed Plaintiff to be close in age to himself. Velasquez was 51 years old at the time and also African American.

         9. On August 20, 2012, Pea began his employment with Elavon.

         10. Velasquez worked as Elavon's Director of Premier Customer Service and supervised Pea during Pea's entire employment with Elavon.

         11. As an Operations Manager, Pea's responsibilities included managing the call center's achievement of targets and goals, developing and supervising a team of representatives and leads, increasing quality customer service, strategic planning, scheduling and driving the team to meet goals and objectives, creating a culture that supports the mission of the company, ensuring compliance with all policies and procedures, and recruiting, developing, and retaining the best people.

         12. Pea was also responsible for understanding the products for which he and his team provided assistance, including credit card terminals and the Company's health care product, holding weekly conference calls with a third-party vendor and Company employees that work with the Healthcare customers, and handling emergency technical issues when he was the manager on call.

         13. After approximately four months on the job, Velasquez gave Pea his first performance review. The review period covered the start of Pea's employment on August 20, 2012 through December 31, 2012.

         14. The performance reviews are based on a 1-5 scale with 1 being “Exceptional, ” and 5 being “Not Effective.” A numeric rating of 2 is “Highly Effective, ” 3 is “Solid Performance, ” and 4 is “Needs Improvement.” Pea rated himself a 4 (Needs Improvement) in three significant categories. His overall rating based on his self-evaluation was a 3.5. Pea indicated that he needed improvement in the areas of managing the call center, proper use of available tools and resources, and drive results orientation. (Ex. 3).

         15. Velasquez testified that he wanted to be fair to Pea, given that he was new to a job with a rather steep learning curve. Thus, Velasquez rated Pea higher than Pea rated himself, giving Pea an overall rating of 3.22, which is between Solid Performance and Needs Improvement. Velasquez specifically noted that Pea needed to focus on managing his scheduled hours and attendance to ensure proper coverage during the morning hours; ensure that his staff is being appropriately recognized and awarded for their work performance and achievements; improve his relationships and take more initiative in regards to his staff and the products they support; collaborate more with his peers on process improvements; and challenging and growing his team. Velasquez also wanted Pea to provide a more positive influence within the department, provide timely Weekly/Monthly reporting and improvements, and manage timely outage notifications.

         16. Significantly, Velasquez testified that following this initial performance review, Pea's job performance worsened.

         17. For example, Pea was required to provide Velasquez weekly and monthly reports that Velasquez would then use to put together his own reports for his supervisor. Pea himself admitted that he failed to timely submit these reports to Velasquez on numerous occasions. On January 23, 2013, Velasquez sent Pea an email, informing Pea that his weekly report was late. Pea responded by stating that he had prepared the reports but forgot to send them and that he needed to start double checking himself. However, on March 10, 2013, Velasquez emailed Pea about another late monthly report. Pea responded stating that “I cannot give you a good reason for missing your deadline.” (Ex. A7).

         18. Velasquez testified credibly as to the importance of the weekly and monthly reports being submitted on time. The weekly reports are submitted to Velasquez by all of his managers, and then Velasquez uses that information to compile his own report to be sent to upper management. I find that this was one of Pea's important job duties, and his failure to submit these reports on time placed Elavon at a disadvantage.

         19. In March, 2013, Velasquez asked Pea to draft an announcement regarding one of Pea's new employees. Pea missed the deadline, and Velasquez had to send Plaintiff a reminder email asking for the announcement again. This is another example where Pea failed to fulfill one of his job duties.

         20. Velasquez testified that Pea's job performance continued to decline. From June, 2013 through August, 2013, Velasquez had regular one-on-one meetings with Pea where Velasquez communicated with Pea about various performance issues and concerns. Velasquez also tasked Pea with several managerial assignments, including setting up a time line for another employee, Linda Cordova, to be trained to take healthcare calls and to work to reduce the defect list. Pea never completed these tasks. I find that these one-on-one meetings should have informed Pea that his work was still deficient, but that Velasquez was continuing to work with Pea in an effort to help him succeed.

         21. Between March and August, 2013, Pea arrived to work late or left the premises during the course of the day, sometimes during company outages. Pea continued to miss a variety of deadlines set for him by Velasquez, turned in inadequate work product, and failed to communicate adequately with Velasquez regarding ...


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