United States District Court, E.D. Virginia, Alexandria Division
Liam O'Grady M United Slates District Judge
This matter comes before the Court on Defendant Bank of America's Motion for Summary Judgment. For the reasons outlined below, the Motion is GRANTED.
On January 23, 2012, Duong began working for the Bank of America at a branch in San Diego, California as a small business banker ("SBB"). In San Diego, she reported to Karen Harrison. In November of 2012, Duong applied for a small business banker position at a branch in Annandale, Virginia. She was looking to transfer to Virginia to get married. Zachary Hauser interviewed and hired her for the position. Duong began working in the Annandale branch on February 2, 2013. Duong made a one year commitment to work at the Annandale office. She worked at that branch until she was terminated on August 28, 2013.
A. Duong's Transfer Requests
Shortly after she transferred to Annandale, in February or March of 2013, Duong asked to transfer to a position in Alexandria. Duong made this request because the individual holding the Alexandria position had recently resigned and she was living in Arlington, which is closer to Alexandria than to Annandale. She also believed that Alexandria was a more affluent neighborhood. Hauser denied Duong's transfer request. Defendant asserts that before the end of 2012, Hauser, and other small business banking managers, had decided to move Armond Alford, an African-American male working at a branch in Washington, D.C., into the Alexandria position. Accordingly, the Alexandria position was never open or advertised as open. Defendant also asserts that Duong was ineligible for the Alexandria position as she had just transferred to the Annandale branch. Duong maintains that she was "racially steered" to work in the Annandale and Springfield locations. Duong alleges that Hauser told her that because she was Asian, she "would be better able to connect with the Korean community from the Annandale, Springfield locations."
In May of 2013, Duong contacted Karen Harrison in San Diego and informed her that she was not getting along with Hauser. In June of 2013, Duong contacted Keesha Alexander, a recruiter at Bank of America, to request to be transferred back to California because her father, who lived in California, had recently fallen ill. From June 27, 2013, to July 13, 2013, Duong vacationed in California and interviewed for several positions with Bank of America while she was there. Duong did not tell Hauser that she was interviewing for these positions. Duong was told by Adele Green that she could take a position in Laguna Niguel, California, if her transfer was approved by Hauser. Green then contacted Hauser, who denied the transfer request because Duong was only six months into her one year commitment to the Virginia office.
B. Events Leading Up to Duong's Termination
On July 31, 2013, Duong told one of her co-workers, Sunny Kim, that she was traveling to California for a few days. Duong had not told Hauser about this trip and Duong asked Kim not to tell Hauser. Kim did not heed this request and told Hauser about Duong's absence. Duong traveled to California on August 1, 2013. Duong alleges that her husband, a former U.S. Marine who was experiencing mental health problems, including bipolar and manic behavior, bought the tickets to California without informing her. Duong maintains that she traveled to California because she was fearful for her husband's mental and physical health. Duong also asserts that she was working remotely and in contact with her clients while she was in California.
After Hauser found out about Duong's California trip, Hauser called Duong on August 5, 2013. Duong admits that she told Hauser she was in Virginia during this call and that this was a lie. Duong says she lied because she was embarrassed about her husband's mental health problems and her failing marriage. During the call, Duong told Hauser that she was not feeling well but that she was heading to a banking center in Virginia to meet with a fellow employee. Hauser then contacted the banking centers that Duong supported. Duong had not been seen at one of the banking centers in two weeks and had not been seen at the other in four weeks. Hauser also contacted the co-worker whom Duong said she was going to meet with. The coworker told Hauser that Duong did not meet with him and that he had not seen her in two weeks.
Following these events, Hauser spoke with a human resources advisor at Bank of America about Duong's dishonesty and discussed terminating Duong's employment. Shortly thereafter, Hauser and Sue Lonergan, the small business banking executive, decided to terminate Duong's employment, but agreed to give Duong an opportunity to explain her actions. This decision was approved by an Advisor in the Bank's Advice and Counsel office. While speaking with this Advisor, Hauser received an email from Aetna notifying him that Duong had submitted a request for leave under the Family Medical Leave Act ("FMLA") to care for her father. The Advisor told Hauser that no disciplinary action should be taken until after Duong returned from FMLA leave.
Duong was given FMLA leave from August 6, 2013, until August 21, 2013. On August 19, 2013, Duong flew with her husband from California to Florida where they remained until August 23, 2013. Again, Duong maintains that her husband suddenly and without notice bought these plane tickets. Duong further asserts that she went with her husband to Florida to protect her marriage and her husband's health. On August 20, 2013, Duong emailed Aetna to request an extension in her FMLA leave until August 27, 2013. Duong did not inform either Aetna or Bank of America that she was no longer with her father but simply requested more time to care for her family. Duong returned to northern Virginia on August 23, 2013. Duong did not return to work until August 28, 2013. Duong asserts that during this time she was taking care of her husband who was experiencing violent mood swings and threatening to injure himself and others.
Hauser met with Duong on the morning of August 28, 2013. During this meeting, Duong failed to provide a reasonable explanation for why she did not tell him about her trip to California on August 1, 2013. After conferring again with the Advice and Counsel Advisor, Hauser terminated Duong. Hauser maintains that he terminated Duong for her dishonesty.
C. Procedural Posture
On October 21, 2013, Duong filed a charge with the Equal Employment Opportunity Commission ("EEOC"), alleging race, sex, national origin, and religious discrimination and retaliation. A copy was also filed with the Fairfax County Human Rights Commission. Duong filed the Complaint in this case on June 19, 2015. Duong brings six causes of action: (1) race discrimination in violation of § 1981; (II) race, sex, and national origin discrimination under Title VII; (III) interference under the FMLA; (IV) retaliation under the FMLA; (V) violation of the Fair Labor Standards Act; and (VI) breach of contract. A final pretrial conference was ...