Submitted: October 16, 2017
from United States District Court for the Southern District
of Iowa - Des Moines
SMITH, Chief Judge, MURPHY and COLLOTON, Circuit
Eggers ("Richard") sued Wells Fargo Bank, N.A.,
alleging the bank violated the Age Discrimination in
Employment Act (ADEA) in terminating his employment. The
district court granted Wells Fargo's motion for
summary judgment. We affirm.
2005, Richard, then age 61, applied to work at Wells Fargo.
On the job application, Wells Fargo required applicants to
answer whether they had ever been convicted of any crime
involving dishonesty or breach of trust. He answered
"No," and a name-based background check revealed no
prior conviction. Wells Fargo subsequently hired Richard for
its Home Mortgage division.
2010, Wells Fargo switched to a more sophisticated FBI
fingerprint-based background check. The bank then ordered
Richard's division to undergo rescreening with the new
system. Richard authorized the rescreen, and again he
indicated that he had no prior convictions for crimes
involving dishonesty or breach of trust. However, the new
background check showed that Richard had a fraud conviction
under Iowa law in 1963 and served two days in jail.
federal law, Richard's prior conviction bars him from
working for Wells Fargo. Referred to as "Section
19," 12 U.S.C. § 1829(a)(1)(A) prohibits, inter
alia, "any person who has been convicted of any
criminal offense involving dishonesty or a breach of
trust" from becoming or continuing as an employee of any
institution insured by the Federal Deposit Insurance
Corporation (FDIC). The statute provides stiff penalties for
employer violators, including daily fines of up to $1, 000,
000 per day and/or five years' imprisonment. Id.
§ 1829(b). Individuals with prior disqualifying
convictions under Section 19 may apply for employment waivers
with the FDIC. In addition, banking institutions wishing to
hire-or to continue to employ-Section 19-disqualified
individuals also may sponsor waiver applications.
Disqualified individuals may not begin or continue employment
with the FDIC-insured institutions prior to obtaining
waivers. Section 19 expressly precludes the FDIC from
granting a waiver to individuals disqualified due to certain
enumerated offenses for at least ten years. All offenses
older than ten years are treated the same as each other.
See id. § 1829(a)(2)(A). In other words,
Section 19 mandates that a 40-year-old conviction for a crime
involving dishonesty or breach of trust disqualifies a person
from FDIC-institution employment the same as does an
learning of Richard's disqualification under Section 19,
Wells Fargo acted to comply with the statute. The bank first
offered him leave time to obtain a waiver, but he refused.
Wells Fargo then terminated his employment. Richard then
applied to the FDIC for a Section 19 waiver, which was
granted. Wells Fargo offered to reinstate Richard to his
prior position in the Home Mortgage division. He refused the
reinstatement offer and opted to sue the bank, alleging
employment discrimination in violation of the ADEA. He
alleged Wells Fargo violated the ADEA by (1) refusing to
sponsor Section 19 waivers and by (2) failing to provide job
applicants and employees with pre-screening notice of the
opportunity to obtain waivers. Specifically, Richard
contended that these two practices created a disparate impact
against older workers.
two years of litigation, Wells Fargo moved in the district
court for summary judgment. By then, Richard had died, and
his widow, Charlene Eggers, had been substituted as the party
plaintiff. The district court conducted a hearing on the
summary judgment motion after briefing by the parties. It
then issued a ruling in favor of Wells Fargo. The court,
"[n]ow finally fully informed, . . . conclude[d] [that]
plaintiff ha[s] no viable theories for recovery, nor [has
she] disclosed or discovered facts supporting [the] pleaded
claims of age . . . discrimination." Eggers v. Wells
Fargo Bank, N.A., No. 4:14-cv-00394-CRW-SBJ, slip op. at
3 (S.D. Iowa Oct. 27, 2016), ECF No. 173. The court noted
that Eggers "cited [no] legal authorities nor discovered
evidence supporting [the] age discrimination claims, whether
characterized as intentional discrimination or disparate
impact results." Id. at 5. Further, the court
observed that "any bank or other financial institution
wisely would prefer for its customers to be served by
employees who were not pre[v]iously persons convicted of
crimes of dishonesty. When [Wells Fargo] learned of the
conviction, its sound business decision was to terminate .
. . ." Id. at 4. The district court then
granted Wells Fargo's summary judgment motion and
dismissed Eggers's lawsuit.
alleges that the district court, in granting summary judgment
to Wells Fargo: (1) ignored Eggers's identified
discriminatory employment practices; (2) conflated disparate
treatment and disparate impact law in holding that Eggers
failed to make out a prima facie case of disparate impact
under the ADEA; and (3) incorrectly concluded that Wells
Fargo's blanket refusal to sponsor waivers and to provide
notice of opportunity for Section 19 waivers was a reasonable
factor other than age. We disagree and address each argument
review the district court's grant of summary judgment de
novo. Torgerson v. City of Rochester, 643 F.3d 1031,
1042 (8th Cir. 2011) (en banc). "Summary judgment is not
designed to weed out dubious claims, but to eliminate those
claims with no basis in material fact." Wilson v.
Myers, 823 F.2d 253, 256 (8th Cir. 1987) (citation
omitted). "Summary judgment is proper 'if the
pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment
as a matter of law.'" Torgerson, 643 F.3d
at 1042 (quoting Fed.R.Civ.P. 56(c)(2)). "Facts must be
viewed in the light most favorable to the nonmoving party
only if there is a genuine dispute as to those facts."
Id. (quoting Ricci v. DeStefano, 557 U.S.
557, 586 (2009)). "'Mere allegations, unsupported by
specific facts or evidence beyond the nonmoving party's
own conclusions, are insufficient to withstand a motion for
summary judgment.' We may affirm a district court's
grant of summary judgment on any basis ...