United States District Court, E.D. Virginia, Alexandria Division
For Carole Diquollo, Plaintiff: Wayne Marcus Scriven, LEAD ATTORNEY, Scriven Law Offices, Virginia Beach, VA.
For Prosperity Mortgage Corporation, Defendant: Dana Lewis Rust, LEAD ATTORNEY, McGuireWoods LLP, Richmond, VA; Edward McCoy Eakin, III, LEAD ATTORNEY, McGuireWoods LLP (Richmond), Richmond, VA.
Leonie M. Brinkema, United States District Judge.
Before the Court is defendant Prosperity Mortgage Corporation's Motion for Summary Judgment. For the reasons that follow, defendant's motion will be granted.
Defendant Prosperity Mortgage Company (" Prosperity" or " Defendant" ) has moved for summary judgment as to both counts of the First Amended Complaint (" FAC" ), which alleges in Count I sex discrimination in violation of Title VII, 42 U.S.C. § 2000e, et seq., and in Count II age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.
Except where indicated, the following facts are uncontested. See Prosperity's Statement of Undisputed Facts; Joint Written Stipulation of Uncontested Facts; DiQuollo's Statement of Genuine Issues of Material Facts. Plaintiff Carole DiQuollo (" DiQuollo" or " Plaintiff" ) was 67 years old when she left Prosperity's employment. In 2000, DiQuollo began working for Prosperity as a home mortgage loan officer in Northern Virginia. DiQuollo was 57 years old when she was hired and admittedly did not encounter any age or sex discrimination in the hiring process.
Prosperity is a joint venture between Long & Foster Companies and Wells Fargo Bank. Under its business plan, Prosperity places loan officers in Long & Foster real estate offices where they have access to Long & Foster realtors. Prosperity's loan officers attempt to establish relationships with Long & Foster realtors to secure their lending business for residential real estate mortgages on the homes sold by the realtors. Mortgages secured by Prosperity's loan officers are then referred to Wells Fargo for underwriting. Although Long & Foster realtors are not required to refer clients to Prosperity's loan officers, loan officers assigned to a Long & Foster office have exclusive access to the realtors in that office. The officers are also encouraged to generate loans from outside sources.
As a Prosperity loan officer, DiQuollo met with potential borrowers, qualified them for loans, ran credit checks, gathered information from borrowers required by Wells Fargo for loan applications, and attended closings. DiQuollo also prospected for business with the Long & Foster realtors in the office and other potential referral sources, including realtors in other firms. A Prosperity loan processor located in Prosperity's headquarters in Chantilly, Virginia helped support plaintiff's work. Plaintiff handled other administrative tasks herself. DiQuollo worked at Long & Foster real estate offices in Vienna, Great Falls, and McLean, with her last office being the Elm Street office in McLean, Virginia (the " McLean Office" ). All of DiQuollo's office transfers were voluntary and requested by her in an effort to increase her opportunity for additional loan business.
Prosperity measures its loan officers' success at capturing mortgage business from the Long & Foster realtors by measuring the officers' " market share." For example, if 100 homes were purchased through a particular Long & Foster office in a year and the Prosperity loan officer assigned to that office handled mortgages for 25 of those home purchases, the loan officer's market share for that year would be 25%.
In 2006, market share became a priority for Prosperity and each year Prosperity would set market share targets for its loan officers. These targets were applied to all Prosperity loan officers and the market share targets were well known to all loan officers, who received reports tracking their monthly and year-to-date market share. DiQuollo's first-level manager, Brian Pawsat (" Pawsat" ), discussed market share in weekly conference calls with his team, and Pawsat's manager, Gene Allue (" Allue" ), reviewed market share with his larger team in monthly meetings. Both Prosperity and Long & Foster provided financial incentives to reward those employees who achieved their market share goals.
In July 2007, DiQuollo was disciplined for altering loan records to make it appear that she was responsible for loans with which she actually had no involvement. DiQuollo admits that she committed the offense, that it was wrong, and that she could have been terminated for what she did. She qualifies her admission by explaining that other employees engaged in the same activity " because of the unreasonable market share requirement of defendant."
It is undisputed that in 2008 plaintiff continued to have problems meeting her market share. As a result, Pawsat gave DiQuollo a written performance evaluation for that year, rating her overall performance a " 2" out of a possible " 5," meaning that DiQuollo needed " improvement." Pawsat also gave DiQuollo an individual rating of " 2" for her market share and indicated that DiQuollo " struggled with market share over the past year." DiQuollo's market share had declined from 14.7% in 2007 to 11.0% in 2008 while the overall Northern Virginia market share grew from 15.6% in 2007 to 19.4% in 2008. In 2008, the Long & Foster office where DiQuollo worked as a loan officer was ranked eighteenth out of twenty Northern Virginia offices.
In 2010, DiQuollo received another " 2" rating, this time for her performance in 2009; however, her individual market share rating was downgraded to a " 1" (" unsatisfactory" ) even though her market share had increased from 11.0% in 2008 to 12.3% in 2009. DiQuollo's market share was still well below her 2007 market share, and well below the overall Northern Virginia market share, which had grown to 20.6%. In 2009, the Long & Foster office where DiQuollo worked was ranked seventeenth
out of twenty Northern Virginia offices.
In late 2009, Allue, plaintiff's second-level supervisor, decided that plaintiff had to be removed from the McLean office because of her inability to make market share. She was replaced in March 2010 by Allison Olweiler, a woman in her thirties. DiQuollo was not fired; instead, Allue made her an independent loan officer. Under that arrangement, DiQuollo was not assigned to a Long & Foster office, but was expected to work out of her home, in which she had a desk, a Prosperity-owned laptop, a cell phone, and a printer. There is no dispute that DiQuollo had worked from home at least periodically, on nights and weekends, while working for Prosperity. Under this new arrangement, Prosperity continued to provide DiQuollo with the exact same technology support as she had when she worked in the McLean office and she was allowed to use the printer at the McLean office (at least on weekends). Moreover, it is undisputed that DiQuollo retained access to the contacts she had developed in the McLean office, and if DiQuollo had 26% of an agent's business in the last year, she could continue working with that agent. DiQuollo's successor, Olweiler, handled all the other business in the office.
DiQuollo objected to being removed from the Long & Foster office because she strongly believed that she needed a traditional work environment to be successful. See Defendant's Memorandum in Support of its Motion for Summary Judgment (" Def.'s Mem." ), Ex. 1 (Deposition of Carole DiQuollo) at 220.
In June 2010, less than three months after she left the McLean office, DiQuollo resigned from Prosperity and immediately began working for SunTrust Bank in a position comparable to that of an independent loan officer. Although DiQuollo had office space at SunTrust, she did not have exclusive access to realtors in a particular real estate office, as she had in the McLean office. After her resignation, DiQuollo was eligible for rehire by Prosperity but never applied. During oral argument, DiQuollo estimated that her income at SunTrust was about half of what she earned at Prosperity.
DiQuollo filed charges of employment discrimination based on sex and age with the Equal Employment Opportunity Commission (" EEOC" ) in November 2010. The EEOC issued a Notice of Right to Sue on January 29, 2013. Plaintiff timely filed this action on April 25, 2013.
A. Standard of Review