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Verby v. Paypal, Inc.

United States District Court, D. Nebraska

April 29, 2014

AUSTI M. VERBY, Plaintiff,
PAYPAL, INC., et al., Defendants.


JOHN M. GERRARD, District Judge.

The plaintiff, Austi Verby, has sued her former employer and several of its employees for allegedly discriminating against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; retaliating against her for activity protected by Title VII; violating the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.; and tortious interference with an employment relationship. The matter is before the Court on the defendants' motion for summary judgment (filing 45). The Court will grant the defendants' motion and dismiss the plaintiff's complaint.


The plaintiff was hired by PayPal, Inc., one of the defendants, in August 2005. Filing 46 at 3;[1] filing 47-2 at 127. The other defendants worked with the plaintiff: Jody Willey was the plaintiff's supervisor, Heather Johnson was Willey's manager, and Justin Sebeck was the co-worker who allegedly harassed the plaintiff. Filing 46 at 3-4; filing 47-2 at 20-21.

The plaintiff became a PayPal fraud appeals agent in 2006. Filing 46 at 3; filing 47-2 at 76. A fraud appeals agent is commonly responsible for handling situations such as unauthorized access to a customer's PayPal account, or accounts created using stolen financial information. Filing 47-2 at 78. Such an account is restricted and PayPal requests additional documentation from the customer; once that information is provided, or if the customer calls customer service, the fraud appeals agent is responsible for reviewing the account and deciding whether to restore unrestricted use or keep the restrictions in place. Filing 47-2 at 80-81.

In August 2011, the plaintiff began taking occasional leave because her maternal grandmother was ill. Filing 46 at 7. The plaintiff continued to take intermittent leave to help her grandmother, a few hours at a time, over the remainder of her employment with PayPal. Filing 46 at 7, 17-18; filing 47-3 at 5-25. At no point did PayPal deny any of the plaintiff's requested leave. Filing 46 at 7, 17.

In October 2011, the plaintiff was issued a "Conversation Memo" informing her that her job performance was not acceptable.[2] Filing 46 at 7-8; filing 47-2 at 137. Specifically, the plaintiff was informed of her low quality control scores and told that her performance had been the lowest on her team during that quarter. Filing 47-2 at 137. It was also noted that she had been given detailed guidance on several occasions but continued to make the same errors. Filing 47-2 at 137. And she was warned that failure to improve her performance could result in further discipline, up to and including termination. Filing 47-2 at 137.

Sebeck and the plaintiff worked together, although not constantly- their shifts overlapped on Fridays, and when the plaintiff came in to make up hours or work overtime. Filing 47-2 at 26-27. The plaintiff first complained about Sebeck to Willey in late December 2011 or January 2012. Filing 47-2 at 98. She said that Sebeck was watching everything she did at work and trying to get her in trouble by reporting her activities, so she felt like she was "constantly on the defense" because she had to keep track of her cases and explain later what she had been doing. Filing 47-2 at 95. The plaintiff said people had told her that he was watching her breaks and telling her supervisors what she was doing. Filing 47-2 at 97. Sebeck also reportedly used instant messaging to report her work activities to others, forcing her to explain herself when he got her in trouble. Filing 52-18 at 3-5. The plaintiff's affidavit summarizes her accusations:

[Sebeck] repeatedly gave me visual or physic [sic] nonconsensual communication, verbal, written or implied threats or a combination causing a reasonable amount of making me uncomfortable in the work place. Justin Sebeck would watch every break I took, who came to my desk to talk to me. He was quick to keep a log of when I would walk away from my desk to help someone, go to break, or use the restroom and then report it to a supervisor in the department. [Sebeck] would randomly walk behind me while I was at my desk and stare at my computer as he walked by.

Filing 52-11 at 5. In other words, according to the plaintiff, Sebeck was a tattletale. But, the plaintiff admits, she never actually spoke to Sebeck about anything. Filing 47-2 at 26.

In response, Willey contacted Johnson and Sebeck's supervisor. Filing 47-2 at 98. The plaintiff's desk was moved away from Sebeck's. Filing 47-2 at 104-05. According to Willey, such a move may be undertaken regardless of the underlying complaint's validity, to make sure that employees know they are listened to and their concerns are taken seriously. Filing 52-20 at 5. But when switching desks didn't help, after extended discussions with Willey, the plaintiff contacted PayPal's human resources consultant, MyHR, on April 20, 2012, and alleged that Sebeck was harassing her. Filing 46 at 9; filing 47-2 at 106, 152.

Specifically, on the complaint form, the plaintiff said she
would like someone to contact me regarding filing a report on a [sic] employee by the name of Justin Sebeck in regards to actions that have lead [sic] up to an unconfortable [sic] work environment. I have reported these actions to my Supervisor Jody Willey and she has directed me to you.

Filing 47-2 at 152. According to the case notes, the plaintiff described Sebeck's behavior to the MyHR investigator as Sebeck reporting things to a senior agent with whom Sebeck was friends outside of work, "making exaggerated reports, of me being late, " and making comments such as "hostile work environment." Filing 47-2 at 152.

In a follow-up email to the MyHR investigator, the plaintiff explained her allegations in more detail. Filing 46 at 10; filing 47-2 at 152-54. The plaintiff reported that:

I first noticed the issues with Justin Sebeck towards the end of August beginning of September 2011. This was the [sic] around the time I noticed that he would watch when I took my breaks, who was coming to my desk or if I would assist someone at their desk.
During [the end of October-early November 2011] is when it was brought to my supervisors [sic] attention (Jody Willey) that I was having multiple people come to my desk for 45 plus minutes at a time.
Between this occurrence and the next one I noticed that [Sebeck] was paying close attention to every time I left me [sic] desk, etc. As I explained to you he makes it very obvious by looking directly at you, getting up and walking in the vicinity of where I am, or staring me down as he walks past. It was also brought to my attention by other agents that he was watching me. This behavior continued through the months of November, December, January, February and March.
Then next time I was approached by a supervisor... who told myself and another agent to stop talking. I was having a completely work related conversation with this agent assisting them regarding appeals process. While I was assisting this agent I could see [Sebeck] staring at myself and this other agent. He waited until I was done helping this agent and walked over to [the supervisor's] area spoke to [the supervisor] and a few of the agents in her area. Once [Sebeck] sat down [the supervisor] came over to speak with me. I reported this to Jody Willey first thing in the morning. ([Willey] advised me that she had no report of this from [the supervisor.])
After this occurrence and speaking with [Willey] in depth about [Sebeck]'s behavior and finding out that he was doing this to other agents (who wish not to come forward), [Willey] advised me that this situation was considered to be a hostile work environment and that it was time for us to escalate the situations. [Willey] contacted [Sebeck's supervisor] and Heather Johnson regarding the next steps to take. [Willey] later advised me that [Sebeck's supervisor] spoke with [Sebeck] regarding this behavior and she provided a [sic] email follow up to both [Willey] and [Johnson].
Once the conversation took place [Sebeck]'s behavior did change temporarily. [But after Sebeck's supervisor changed, ] [Sebeck] started to go back to the same activity. On March 23rd I was sitting in my desk which at the time was located one row over from [Sebeck]. He was standing up and talking to one of his teammates when he said very loud and obnoxiously: "You better watch out or it may be considered a hostile work environment". Immediately the agent he was speaking to responded with: "Did you talk to [your supervisor] about that?" At the time [Sebeck's supervisor] immediately stepped in and said yes and to stop it. At this time I emailed [Willey] advising her that I needed to talk to her, which was the email I forward to you yesterday. Once [Willey] and I discussed this last situation she advised me that she would contact [Sebeck's supervisor] on what they felt was the best action to take going forward. At this time I was advised that my next course of action would be to contact HR.

Filing 47-2 at 153-54. The plaintiff explained that Sebeck "is a busy body and in everyone's business" and that "any action taken may only be a temporary resolution before the behavior starts again." Filing 47-2 at 155.

The MyHR investigator interviewed the plaintiff, Willey, Sebeck, and Sebeck's supervisor. Filing 46 at 10; filing 47-3 at 1-2. Willey reported that there was a "history" between the plaintiff and Sebeck; that they "did not like each other" and "were friends in and outside of work with people who did not like each other." Filing 47-3 at 1. Sebeck indicated that he had not mistreated the plaintiff, but "felt that she was not good at her job." Filing 47-3 at 1. According to the MyHR investigator, the plaintiff reported that

she and [Sebeck] overlapped one day a week (Friday) at work and that she felt he was trying to get her in trouble; watching her, timing her breaks etc. [The plaintiff] [i]ndicated that she and [Sebeck] have never spoken. [The plaintiff] was concerned about a supervisor/lead... who was a "friend" of [Sebeck's] and that made [the plaintiff] uncomfortable because she felt [Sebeck] could get her in trouble by making complaints to [his friend].

Filing 46 at 10; filing 47-3 at 2. The investigator resolved the plaintiff's complaint as follows:

After speaking with [the plaintiff], [Sebeck] and their respective supervisors' [sic] multiple times I was unable to substantiate any rule, policy or procedure being violated. It was explained to [Sebeck] that there was a perception of him from [the plaintiff] that he needed to change. He agreed to keep his distance from her but denied any intentional hostility. There was a sideline issue that took place during this investigation; it was reported by their respective supervisors that both [the plaintiff] and [Sebeck] continued to talk to their friends/co-workers about this issue and that there was an "investigation." They were each cautioned to keep matters confidential but the complaints continued to come forward. I considered anyone who would be considered a witness tainted and because there was not a specific allegation of a particular incident the case was closed. This was communicated to [the plaintiff] with the urging that if there were any further issues with [Sebeck] or anyone else she should bring them forward immediately. She seemed satisfied with this outcome when communicated to her on 5/25/2012. [Willey] and [Sebeck's supervisor] agreed to closely monitor the situation going forward in addition.

Filing 46 at 10-11; filing 47-3 at 2. After the investigation was closed on June 5, 2012, the plaintiff had no further problems with Sebeck. Filing 46 at 11-12.

Meanwhile, the plaintiff had continued to receive warnings about her job performance. Filing 46 at 12. On June 24, 2012, she was issued a "Corrective Counseling" memo on quality and decisionmaking. Filing 46 at 12-13; filing 47-2 at 143. This time, she was told that "immediate improvement" was required, "specifically in the area of Quality." Filing 46 at 13; filing 47-2 at 143. The memo highlighted two instances in which customer appeals had been denied when, in fact, the hold on each account should have been lifted. Filing 46 at 12; filing 47-2 at 143. The memo also re-emphasized the seriousness of incorrectly denying customers the use of their PayPal accounts. Filing 46 at 13; filing 47-2 at 143. Sanctions were imposed: the plaintiff was told she was ineligible to post for open positions or for tuition reimbursement for 90 days, and that her performance rating and bonus might be affected. Filing 47-2 at 144. And she was warned that should anything similar happen again, she would be subject to further discipline, "up to and including termination... without further counseling." Filing 46 at 13; filing 47-2 at 144.

When Willey and the plaintiff met to discuss the mistakes described in the June 24, 2012 corrective counseling memo, the plaintiff defended some of her decisions. Filing 46 at 13; filing 47-3 at 53, 55. Willey decided to take a closer look at the plaintiff's performance. Filing 46 at 13; filing 47-3 at 53-55. While looking for other cases in which appeals had been denied, Willey discovered a number of cases that the plaintiff had "dumped" after they had been assigned to her. Filing 46 at 14; filing 47-2 at 145. In each case, although the plaintiff had not worked on the customer's account, she marked it as "already worked, " meaning that the case was not delivered to anyone else right away. Filing 46 at 14; filing 47-2 at 145. Although other employees had done the same thing, Willey found that the plaintiff had done so at a rate significantly higher than her co-workers. Filing 46 at 14; filing 47-3 at 28-49. Willey also found that the plaintiff had repeatedly failed to follow procedures for logging into and out of her phone at the beginning and end of each shift. Filing 46 at 14-15; filing 47-2 at 146-47.

The plaintiff was fired on June 29, 2012.[3] Filing 46 at 15; filing 47-2 at 149. She was informed that the reasons for her termination were her violations of phone login procedure, the poor work performance documented in the conversation memo and corrective counseling memo described above, and dumping cases without working on them. Filing 47-2 at 149. The plaintiff filed an Equal Employment Opportunity Commission charge, and after receiving her ...

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