United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Senior United States District Judge
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.
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.
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.
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.
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.
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
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. 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.
Hiring Decision at the Swap
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.
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
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 ...