Attorney: Bluffton Wells Fargo manager destroyed evidence

tbarton@beaufortgazette.comAugust 26, 2013 

The Bluffton branch of Wells Fargo bank, 11 Arley Way.

STAFF PHOTO

A Hilton Head Island attorney has asked a judge to throw out a Wells Fargo defense against a wrongful-termination suit, alleging a branch manager intentionally destroyed evidence crucial to the case.

John Bowen, who is representing seven former employees suing the bank, submitted a motion Monday in the Beaufort County Court of Common Pleas that says Wells Fargo branch manager Wendy Baxley willfully destroyed text messages despite being told on multiple occasions not to do so.

"This was not an inadvertent destruction of evidence," Bowen wrote. "... Rather, this was willful, deliberate and contemptuous conduct."

Baxley remains with Wells Fargo at the bank's Okatie branch. She declined to comment when reached by phone Saturday.

Attempts Saturday and Monday to reach Bowen for comment were unsuccessful.

Bowen states Baxley admitted to deleting the text messages in an Aug. 14 deposition, a transcript of which was not included with his motion but which he said would be provided to the court once available.

According to the suit, trouble at the Bluffton branch at 11 Arley Way began in April 2012 during the Heritage Presented by Boeing golf tournament. Baxley showed Mark Stroud, the branch manager, and other employees a text message from district manager Scott Zardenetta that was forwarded to her. In the message, Zardenetta suggested that he and Baxley's boyfriend, Brian Natale, a Wells Fargo employee in the bank's Sea Pines branch, have sex with her, according to the suit.

"(Zardenetta) was in a hotel room in Hilton Head, had been using drugs, was in possession of an 'eight ball' of cocaine and ... was proposing that he and (Baxley's boyfriend) both have intercourse with her," the suit states.

A former Wells Fargo employee who worked at the branch in Spring 2012 says Baxley read him and other employees the text message from her phone during a going-away party and dinner, according to a signed affidavit filed with the court.

The seven employees were among nine fired in July 2012 after Zardenetta accused them of violating company ethics rules. The employees counter that they were fired to cover up his cocaine use and sexual harassment.

Stroud also was fired and is suing the bank, Zardenetta and bank investigator Chuck Owens in a separate case in U.S. District Court that is set for trial in May.

The bank has denied the allegations and said it did nothing illegal by terminating the nine employees. Attempts Saturday and Monday to reach an attorney for Wells Fargo and Owens were unsuccessful.

Plaintiffs are former Bluffton branch employees Deborah Govan, Erin Caldwell, LaTeshia Barnwell, Zylthia Atkins, Gregory Cherewko, Linda Gillet and Maria Olivia Dulaney.

They were fired for receiving "credits" for opening new accounts that Zardenetta claimed they didn't earn, according to the suit. The employees contend Zardenetta and Owens devised an excuse to fire them after Zardenetta's alleged misconduct was reported to the human resources department by Stroud.

Bowen twice subpoenaed Baxley to turn over her cellphone records and text messages, and sent a letter instructing her to preserve the records. Similar letters were also sent to Natale, Zardenetta and Owens, according to court documents.

Bowen subpoenaed Natale's and Zardenetta's cellphone records, as well. Neither has complied, and Wells Fargo has asked a judge to dismiss Bowen's subpoena for records and text messages related to Natale's Wells Fargo cellphone, according to court filings. A ruling has yet to be issued on the matter.

Bowen alleges Baxley initially denied having such records, but later admitted in her deposition to destroying the text messages the day before.

Attorneys for Wells Fargo were present at Baxley's deposition but said they did not represent her and had no responsibility for her compliance to hand over the records, according to Bowen's motion.

Bowen disagrees.

"Wells Fargo had a duty to make sure that one of its managers ... did not destroy evidence relevant to this litigation," he wrote. "It failed to do so and now evidence critical to the plaintiff's case has been destroyed. Wells Fargo should not get the benefit of its defense while depriving the plaintiffs of the opportunity to prove their case."

Bowen has the asked a judge to rule on his clients' behalf, set a hearing on their request for damages and order Wells Fargo to pay their legal costs.

Follow reporter Tom Barton at twitter.com/IPBG_Tom.

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