Attorneys at Law




Can I Write You a Check?


Another employer-friendly case came down from the Eighth Circuit Court of Appeals last week.  In Leslie Luster v. Wells Fargo Bank, N.A., a terminated Wells Fargo employee brought a racial discrimination claim against it under the Minnesota Human Rights Act.

Luster was fired after an internal investigation in December 2009 concluded that she had engaged in check kiting; making her unbondable and unemployable at Wells Fargo.  As defined in the case, check kiting is “where an individual writes a check with insufficient funds to cover the check, and then deposits funds from another account to cover the check before it overdraws the account.”  I know what you’re thinking, but when you work in the banking industry, that is apparently a no no.

Luster was terminated by Wells Fargo in January 2010 after a telephone conference with her supervisor and the internal investigator.  She brought her racial discrimination claim in August.  Luster alleged that Wells Fargo engaged in racial discrimination in determining whether to terminate her.  However, she had no first or second-hand knowledge of her supervisors making any race-based comments about her, and conceded that she had no direct evidence of racial discrimination.

In order to prevail without direct evidence of discrimination, Luster must make a prima facie demonstration that:  (1) she is member of a protected class (she is); (2) she was meeting her employer’s legitimate job expectations (she was); (3) she suffered an adverse employment action (she did); and (4) the circumstances give rise to an inference of discrimination (i.e. that similarly situated employees outside the protected class were treated differently).

If she is successful, Wells Fargo must provide a legitimate non-discriminatory reason for her termination.  Thereafter, Luster must show that Wells Fargo’s non-discriminatory reason is simply a pretext for discrimination.

The parties agreed that Luster satisfied the first three elements above.  However, Luster also agreed that “the results of Wells Fargo’s investigation, if true, would supply a legitimate reason for termination…”  Ultimately, she was unable to provide any evidence whatsoever that Wells Fargo’s termination decision was a pretext for racial discrimination, or that any similarly situated employees were treated any differently.  As such, the court of appeals affirmed the lower court’s dismissal of her claim.

Despite the seemingly harsh result, the court actually made short work of Luster’s arguments.  Unless an employee in Minnesota has direct evidence of discrimination, racial or otherwise, they will typically have a tough road to hoe in proving claims for discrimination.