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Brown v. First Community Bank

United States District Court, W.D. Virginia, Roanoke Division

October 23, 2019



          Hon. Glen E. Conrad Senior United States District Judge

         Carolyn Blake Brown filed her Complaint against First Community Bank (“First Community”) on August 17, 2018. Brown brings six claims in total. Counts I-IV allege racial discrimination in two failures to hire under Title VII of the Civil Rights Act of 1967, 42 U.S.C. § 2000e, et seq. (“Title VII”) and the Civil Rights Act of 1991, 42 U.S.C. § 1981 (“Section 1981”). Counts V-VI allege age discrimination in the same failures to hire under the Age Discrimination in Employment Act, 29 U.S.C. § 621 (the “ADEA”). First Community moved for summary judgment on Brown's claims, (ECF No. 33), and moved to exclude a supplemental report by Brown's statistical expert, Dr. Pamela Schlosser, as untimely, (ECF No. 40). First Community has since filed a motion to exclude Dr. Schlosser's opinions on substantive grounds. ECF No. 48. For the reasons stated, the court grants First Community's motion for summary judgment. ECF No. 33. In addition, the court denies First Community's original motion in limine, (ECF No. 40), on the merits, and denies the second motion in limine, (ECF No. 48), as moot.


         First Community is a bank with branches located in several states, including several across Virginia. Compl. ¶ 5; Answer ¶ 5. Brown is an African American woman who was born in 1955. Compl. ¶ 6; Answer ¶ 6. Brown alleges that race and age discrimination infected First Community's adverse employment decisions on two occasions: first, when First Community acquired the Radford branch where she worked (the “Swap”) and second, when she later applied for the Branch Leader position at First Community's Radford branch. Compl. ¶¶ 15-16, 19-20.

         The Swap

         In March 2016, First Community entered into two separate agreements (the “Swap Agreements”) with another bank, First Bank. ECF No. 34-1 (“Hopkins Declaration”), Ex. 1 at 8- 161. Under the Swap Agreements, the banks agreed to “swap” certain physical branches, which included First Bank's branch in Radford, Virginia. Id. The banks also exchanged “Records”-a defined term under the Swap Agreements-which did “not include . . . the personnel files and records relating to Branch Employees[.]” Id. at 98. The Swap closed on July 15, 2016. Id. at 105.

         The Swap Agreements allowed the banks to choose which employees they would retain in the swapped bank branches. Id. at 144. The bank acquiring a given branch was to inform the selling bank which employees of that branch it intended to retain 30 days before the Swap Agreements closed. Id. The selling bank was responsible for managing, reassigning, relocating, or firing branch employees who the acquiring bank did not retain. Id. at 145.

         Relevant Individuals

         Brown began her career in banking in 1976. In 2003, she joined a bank later acquired by First Bank. ECF No. 38-1 (“Brown Deposition”) at 17:17-18:11. Brown eventually became the Branch Manager and Assistant Vice President of the bank's Dublin branch, and retained that title when First Bank acquired the branch in 2006. Id. at 21:5-20. In December 2014, First Bank closed its Dublin branch, and transferred Brown to its Radford branch. Id. at 30:11-19, 34:7-8. Brown did not retain her Branch Manager title when she transferred. Id. at 34:9-10. Brown unsuccessfully applied for a Branch Manager position in First Bank's Wytheville branch in early 2015. Id. at 53:2-56:22. However, she became the Branch Manager and Vice President of First Bank's Radford branch in April 2015, and held that title until the Swap in July 2016. Id. at 62:6- 13. First Community chose not to retain Brown as an employee after the Swap. Hopkins Decl. ¶ 9.

         Jim Grubbs worked at First Bank's Radford branch until December 2015. ECF No. 38-2 (“Grubbs Deposition”) at 8:14-17. During this time, Grubbs was an Executive Vice President and Brown's “direct supervisor” while she worked in First Bank's Dublin branch. Id. at 11:9-12:12. As her supervisor, Grubbs interviewed Brown when she applied for the Wytheville Branch Manager position in 2015. During that interview, Grubbs asked Brown for her age and when she planned to retire. Brown Deposition at 74:2-76:8. At the time of the Swap, Grubbs worked for First Community as a commercial lender, having moved there in December 2015. Grubbs Deposition at 8:3-13. Grubbs no longer works at First Community. Id. at 8:14-17.

         Several First Community employees factor into the case as well. William Hopkins is a Regional President for First Community. Hopkins Decl. ¶ 2. Hopkins and Grubbs worked together to decide which First Bank employees to retain after the Swap, although Hopkins was the formal decisionmaker. Id. ¶¶ 4-10. Jessica Miller is a former First Bank employee retained by First Community after the Swap. ECF No. 34-5 (“Miller Declaration”), ¶¶ 2-3. Miller supervised Brown during part of the time they were both First Bank employees. Id. ¶ 8. After the Swap, Miller's duties included overseeing the Radford branch, and filling the Radford Branch Leader position after it was vacated in the Swap.[1] Id. ¶ 12. ReBecca Miles was a First Bank employee retained by First Community. ECF No. 38-5 (“Hopkins Deposition”) at 38:16-19. Miles had previously worked for First Bank at its Radford and Christiansburg branches. Miller Decl. ¶¶ 6, 9. After the Swap, Miles served as acting Branch Leader in Radford until First Community formally hired her for the position. Id. ¶ 10. Miles was 43 years old at the time. Hopkins Decl. Ex. 2. She served as Branch Leader until her death. Miller Decl. ¶ 16.

         The Hiring Decision at the Swap

         First Bank's employees before the Swap did not have to apply for First Community to consider retaining them. Grubbs Deposition at 23:6-16. First Community did not interview any First Bank employees when deciding whom to retain. Hopkins Deposition at 24:21-24.

         First Community had limited information about the First Bank employees. Namely, First Community did not have access to any employee records, which were not exchanged under the Swap Agreements. Hopkins Decl. ¶¶ 5-6. As a result, First Community decided which First Bank employees to retain based on the information it had, which consisted primarily of statements from Grubbs. Grubbs' opinions carried some weight. He was a former First Bank employee then working for First Community, and he had personal knowledge of many First Bank employees, including Brown. Id. ¶ 5. Indeed, Hopkins asked for and relied on Grubbs' opinions when deciding which First Bank employees to retain. Id. ¶¶ 5-9; Grubbs Deposition at 72:22-73:7.

         Hopkins decided not to retain Brown based on what Grubbs told him-Grubbs advised Hopkins that Brown had performance issues in loan production, profitability, and customer development. Hopkins Decl. ¶¶ 5-9. According to Grubbs, First Bank's Dublin branch failed to perform under Brown's management. Grubbs Deposition at 51:19-52:19. Specifically, the branch failed to generate loans under Brown. Id. at 53:1-12. Indeed, Grubbs had told Brown the branch needed to improve its numbers, particularly with respect to loans. Brown Deposition at 69:8-70:7. First Bank ultimately closed its Dublin branch “over the lack of income that it did not make.” Grubbs Deposition at 52:12-16. Grubbs blamed the branch's failure on Brown. Hopkins Deposition at 19:3-20:14; Hopkins Decl. ¶ 8. Grubbs told Hopkins all this when they decided which First Bank employees to retain. Hopkins Decl. ¶¶ 5-9. Grubbs also told Hopkins that the Radford branch began to sustain losses after Brown was transferred there, which Grubbs also blamed on Brown. Id. In order to increase the ...

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