Case Style: Margarita Wagner v. People Bank d/b/a Peoples State Bank
Case Number: CJ-2013-3437
Judge: Rebecca B. Nightingale
Court: District Court, Tulsa County, Oklahoma
Plaintiff's Attorney: Dave Davis
Defendant's Attorney: Mike King
Description: Tulsa, OK - Margarita Wagner sued People Bank d/b/a Peoples State Bank on an employment discrimination theory claiming:
1. Plaintiff is an individual with her only residence being in Tulsa County, State of Oklahoma.
2. Peoples Bank, is a domestic bank, with a place of business in Tulsa County, State of Oklahoma.
PLAINTIFF'S CAUSE OF ACTION AND JURISDICTION
3. This Petition arises due to the following causes of action: (1) Defendant's violation of the Age Discrimination in Employment Act (ADEA) of 1967 against Plaintiff for, employment discrimination based on her age, (2) Defendant's Breach of Employment Contract
(3) Defamation by Slander, and (4) Vicarious Liability through Employee and Empfoyer
relationship IRespondeat Superior.
4. The Court has jurisdiction over the subject matter and the parties to this action, and venue properly lies in the Tulsa County District Court pursuant to 12 0. S. §§133, 134, 142 and 143, because Defendant's principle place of business is in Tulsa County, Oklahoma; Defendant conducts business in Tulsa County, Oklahoma; and Plaintiff was employed by Peoples Bank in Tulsa County, Oklahoma.
5. The amount in controversy exceeds $10,000.00, exclusive of costs and interest, for Plaintiff.
ALLEGATIONS OF FACTS
6. Plaintiff was hired on or about July 2005 by Defendant as a New Accounts Representative. Her duties were primarily the interviewing of customers, setting up customer accounts and public relations with the bank.
7. Plaintiff was experienced in her field and performed her job in a satisfactory manner.
8. Ms. Wagner was selected to be a spokesperson for the bank and posed for and appeared in bank advertisements to the public and given very high reviews each year for her performance.
9. In addition to her yearly salary, Ms. Wagner was provided incentives on the new accounts which she opened and on loans made.
10. On or about August 2012, a manager who had previously praised Ms. Wagner's work and performance took over the duties of Bank Manager.
11. Subsequent to July 31, 2012, Ms. Wagner submitted her statement for new accounts which she opened during the months of May, June and July and anticipated receiving theincentives of approximately $9,500.00 which she was owed per her employment agreement with the Bank.
12. Subsequent to receiving the new accounts opened report from Ms. Wagner, the Bank Manager, once in September and once in October, criticized the performance of Ms. Wagner. The Bank manager alleged that Ms. Wagner did not know how to open accounts and threatening to fire her if she made one more mistake. Ms. Wagner was never instructed or informed what in particular she was doing incorrectly. Even though Ms. Wagner was not informed of this alleged reason for her termination at her termination meeting with the Bank, this allegation is false and a ruse in an attempt to justify her termination.
13. Ms. Wagner denies that she was incorrectly opening accounts and, in fact, had received high praise and above average reviews for her work in opening accounts the previous 7 years she had worked at the bank.
14. In addition, Ms. Wagner was criticized for taking long lunch hours or not clocking in on time. Only Ms. Wagner was singled out for such actions when the same actions were being taken by other employees, including younger bank employees without rebuke or termination.
15. Ms. Wagner, and other employees, had been informed that they were not allowed to have overtime without prior application for overtime and approval from management. Ms. Wagner often had to work overtime due to the nature of her job. To complete the paper work necessary for overtime approval and to obtain such approval was not practical because the customers were present at the bank at the time and needed assistance. Therefore, Ms. Wagner was instructed, along with other employees, to take longer lunch hours or adjust their clock-in routines in order that their time cards would not show overtime without prior approval, even if they had to work overtime. The employees were regularly warned on several occasions that their time cards must not show overtime without prior approval to taking the overtime.
16. Ms. Wagner was provided direction to train a young and inexperienced person, with no previous significant job experience, on the process of opening new accounts.
17. Ms. Wagner was fired on or about October 5, 2012, at the age of 48. The alleged reason she was given was that she was taking too long of lunch breaks and no other reason was provided. Ms. Wagner was also informed that the Bank would not pay her the incentives which she had earned for opening of the accounts for May, June and July, 2012. The reason of taking too long for lunch breaks is a ruse by the Bank for her termination.
18. At her termination, the Bank informed Ms. Wagner she would not receive her incentive pay for the accounts she opened in May, June and July, 2012.
19. Ms. Wagner was asked to train a younger new Bank employee, who was about 25 years of age, on the art of opening new accounts. Upon Ms. Wagner's termination, this employee took over Ms. Wagner's position and duties. Ms Wagner's replacement was not as qualified as Ms. Wagner to perform the duties held by Ms. Wagner.
20. Subsequent to Ms. Wagner's termination, the Bank alleged to the public that Ms.
Wagner was doing illegal activities and that was the reason for her termination.
21. The allegations the Bank directed to another customer and those customers who were around her, was a malicious effort to destroy the reputation of Ms. Wagner with Bank Customers.
22. On or about the first of 2013, a third party customer of the bank attempted to make a deposit into her account. The Bank negligently deposited it into another customer's account. The customer of the Bank appeared the next banking day to advise the Bank of the Bank's error.
When she arrived at the bank and explained the matter, the female employee, who had supervisory capacity, made false and slanderous and highly offensive statements regarding Ms. Wagner to the customer. The customer knew Ms. Wagner and had worked with Ms. Wagner to set up her account. The Bank supervisor then returned the money deposited back to the customer. When the customer asked for her Debit Card back which the manger had used to access her account, the Bank supervisor refused to return it and informed the customer that her account was closed and she could no longer do business at the Bank.
23. The Bank's false and negligent slanderous statement about Ms. Wagner were maliciously designed to harm Ms. Wagner's reputation and was humiliating and emotionally distressing to Ms. Wagner and has damaged her reputation.
24. The Bank's slanderous statements, accusing Ms. Wagner of criminal activity, adversely effects Ms. Wagner's profession, reputation and represents slander per se.
25. The Bank employee who made the slanderous statement was in a supervisory capacity and the slanderous statements were made in the scope of her employment and, in an effort to serve the Bank's objectives, her statements were the statements of her employer because they represented her employer's business about former employees of the business.
26. At least one other older experienced and long time employee at the bank also began to receive harassment from the Bank and was eventually forced to resign due to the emotional distress she had to endure. discrimination.
Such actions by the Bank represent a pattern or practice of discrimination.
27. Plaintiff has complied with all procedural requirements. Plaintiff received her
Notice-of-Suit Rights from the Equal Employment Opportunity Commission dated April 26, 2013 on or about April 29, 2013.
28. Subsequent to receipt of Plaintiff s Right-To-Sue letter, the Bank threatened Ms.
Wagner with the possibility that the Bank may seek to punish her if she chose to exercise her Right To Sue afforded her under the Age Discrimination in Employment Act, which threat demonstrates a continuing malice and an attempt to interfere with her civil rights afforded by the federal government.
29. Subsequent to obtaining her EEOC Right-To-Sue, the Bank offered to provide Ms.
Wagner a list of new customers and advice of how their accounts were allegedly set up incorrectly. Upon review of the accounts Ms. Wagner denies that these accounts were incorrectly set up and that all the electronic data was entered properly.
CLAIM I: DEFENDANT'S VIOLATION OF AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, 29 U.S.C. § 621, et seq., FOR AGE DISCRIMINATION
30. The preceding paragraphs numbered 1 through 29 are incorporated herein by reference.
31. Defendant's discriminatory actions towards Plaintiff based on her age and failure to act to prevent Plaintiff from being discriminated against based on her age are in violation of 29 U.S.C. §621, et seq., and other applicable statutes.
32. As a result of Defendant allowing Plaintiff to be subjected to age based discrimination, Defendant has violated the Age Discrimination In Employment Act of 1967 and, as a result, Plaintiff has suffered a loss of wages, earnings and benefits, future wages, earnings and benefits, loss of incentive pay and commissions, other injuries and damages, and continues to suffer loss of wages, earnings and future earnings, and other damages in an amount in excess of ten thousand dollars ($10,000.00) in favor of Plaintiff.
33. Defendant's actions, and failure to act when it should have, were done in bad faith and with intent to injure and were oppressive, malicious and a gross and willful disregard of the known rights of Plaintiff, justifying the imposition of an award of liquidated and statutory and exemplary and special damages in an amount in excess of ten thousand dollars ($10,000.00) in favor of Plaintiff.
CLAIM II: DEFENDANT'S BREACH OF EMPLOYMENT CONTRACT
34. The preceding paragraphs numbered 1 through 33 are incorporated herein by reference.
35. Defendant's failure to pay Plaintiff for the incentives due to her on new accounts and on loans was in violation of her employment contract with the Bank.
36. As a result of Defendant breach of its employment contract with Plaintiff, Plaintiff has suffered a loss of earnings and loss of interest thereon, emotional distress, and other injuries and damages, in an amount in excess of ten thousand dollars ($10,000.00).
37. Defendant's actions, and failure to act when it should have, were done in bad faith and with intent to injure and were oppressive, malicious and a gross and willful disregard of the known rights of Plaintiff, justifying the imposition of an award of exemplary, punitive and special damages in an amount in excess of ten thousand dollars ($10,000.00) in favor of Plaintiff.
CLAIM III: DEFENDANT'S DEFAMATION OF PLAINTIFF
38. The preceding paragraphs numbered 1 through 37 are incorporated herein by reference.
39. Defendant's nature of the defamatory acts against Plaintiff violate Oklahoma statutory and common law and represent slander per se.
40. As a result of Defendant allowing Plaintiff to be slandered to the public, Plaintiff has suffered emotional distress, humiliation and loss of reputation and self-esteem, and other damages in an amount in excess of ten thousand dollars ($10,000.00) in favor of Plaintiff.
41. Defendant's actions, and failure to act when it should have, were done in bad faith and with intent to injure and were oppressive, malicious and a gross and willful disregard of the known rights of Plaintiff, justifying the imposition of an award of punitive, statutory and exemplary and special damages in an amount in excess of ten thousand dollars ($10,000.00) in favor of Plaintiff.
CLAIM IV: VICARIOUS LIABILITY AND RESPONDEAT SUPERIOR;
ACT OF THE EMPLOYEE AS ACT OF THE EMPLOYER
42. The preceding paragraphs numbered 1 through 41 are incorporated herein by reference.
43. Defendant's defamatory statement about Plaintiff was done in furtherance of the Bank's business by managers or supervisors of the Bank.
44. As a result of Defendant's employee slandering Plaintiff, Defendant is vicariously liable for damages to the Plaintiff for the defamatory remark as respondeat superior.
WHEREFORE, Plaintiff prays for judgment against Defendant for:
45. Damages to compensate Plaintiff for economic, compensatory, legal, equitable, tangible and intangible injuries and all other damages resulting from Defendant's violations of the Age Discrimination In Employment Act of 1967 for age discrimination against her in an amount in excess of ten thousand dollars ($10,000.00), according to proof and to the extent not duplicative of the recovery in this and in another paragraph; and,
46. In regard to Defendant's violation of the Age Discrimination in Employment Act of 1967 against Plaintiff, appropriate liquidated, special and statutory damages in an amount exceeding ten thousand dollars ($10,000.00), according to proof and to the extent not duplicative of the recovery in another paragraph; and,
47. Damages to compensate Plaintiff for economic, compensatory, legal, equitable, tangible and intangible damages, and all other damages allowed for breach of contract under Oklahoma law, resulting from Defendant's breach of employment contract in an amount in excess of ten thousand dollars ($10,000.00), according to proof and to the extent not duplicative of the recovery in this and in another paragraph; and,
48. In regard to Defendant's breach of contract appropriate punitive or special and statutory damages, including pre-judgment and post judgment interest in excess of one-thousand dollars ($1,000.00), according to proof and to the extent not duplicative; and,
49. In regard to Defendant's defamation, damages to compensate Plaintiff for emotional distress, humiliation, loss of reputation and self-esteem and other legal, equitable, tangible and intangible injuries, and all other damages, in an amount in excess of ten thousand dollars ($10,000.00), according to proof and to the extent not duplicative of the recovery in this and in another paragraph; and,
50. In regard to Defendant's defamation of the Plaintiff, appropriate punitive, excess, special and statutory damages in an amount exceeding ten thousand dollars ($10,000.00), according to proof and to the extent not duplicative.
51. The equitable remedy of purging Plaintiff s personnel file of any taint that has accumulated in the files of Plaintiff; and
52. Other equitable relief as is appropriate and helpful in purging Plaintiff of the effects of Defendant's actions in violation of her rights asserted above; and
53. The costs of the lawsuit herein, including appropriate pre-judgment interest and any applicable attorney's fees; and
54. Jury trial demanded; and
55. Statutory and common law attorney liens claimed; and
56. Such other and further relief as is just and proper.
Defendant offered to confess judgment in the amount of $12,500.
Outcome: Plaintiff accepted the offer. Settled for $12,500.00.