Judges allow Wells Fargo defense in wrongful-termination suit to proceed

tbarton@islandpacket.comNovember 27, 2013 

Judges have rejected a request by an attorney representing fired employees at Wells Fargo's Bluffton branch to sanction the bank because of allegations that a bank manager intentionally destroyed evidence.

Hilton Head attorney John Bowen, who is representing the fired employees, had asked state and federal judges to strike Wells Fargo's defense arguments in the case.

U.S. District Judge Sol Blatt Jr. denied the request on Nov. 19, saying it was premature until a state court ruled on motions to compel Wells Fargo to provide the missing evidence through other means. Bowen will be allowed to make the request again if efforts in a state court to have the bank turn over the evidence fail.

Bowen alleged in a court filing that Bluffton branch manager Wendy Baxley deleted text messages on her cellphone despite being told by him on several occasions not to do so.

Wells Fargo's attorney says the deleted messages are irrelevant to the case, and the bank had no control over personal messages on a personal cellphone used by an employee it does not represent.

Baxley, who is not named in the suit, has hired her own attorney.

Bowen's motion "is not based on sound legal principles and appears to be a calculated attempt to discredit Wells Fargo and its counsel in the eyes of this court," wrote Charleston attorney Jennifer Dunlap, who represents Wells Fargo and bank investigator Chuck Owens.

Attempts Tuesday and Wednesday to reach Dunlap and Baxley were unsuccessful.

Bowen filed his motion in federal court, where he is representing fired branch manager Mark Stroud. Stroud is suing the bank, Wells Fargo district manager Scott Zardenetta and Owens. Bowen filed a similar motion in the Beaufort County Court of Common Pleas, where he is representing former Wells Fargo tellers Deborah Govan, Maria Olivia Dulaney, LaTeshia Barnwell, Zylthia Atkins, Gregory Cherewko, Linda Gillet and Erin Caldwell.

Bowen's motion was also denied by a Beaufort County judge, who agreed with Blatt's ruling, Bowen said.

Stroud and the tellers were fired in July 2012 after Zardenetta accused them of violating company ethics rules for receiving "credits" for opening new accounts he said they didn't earn. The employees countered that they were fired to cover up Zardenetta's alleged cocaine use and sexual harassment.

One of the tellers -- Caldwell -- has since dropped her claims. She asked to be dismissed from the suit this month.

The bank has denied the allegations and said it did nothing illegal by firing the employees. It also asserts Stroud was fired for "documented performance and customer-service failures."

According to the suit, trouble at the Bluffton branch began in April 2012. Baxley showed Stroud and other employees a text message from Zardenetta sent to her by then-boyfriend Brian Natale, a Wells Fargo employee in the Sea Pines branch. In the message, Zardenetta referenced drug use and suggested he and Natale have sex with Baxley, the suit says.

Baxley admitted to deleting text messages in an Aug. 14 deposition, after being subpoenaed twice to turn over all electronic communications between her, Zardenetta and Natale. Baxley said she deleted messages from Natale in 2013, but said the messages pertained to Natale's continued affection for her and were unrelated to the suit, according her deposition.

None of the deleted messages were from 2012, she said. Messages from that time were on a different phone that "locked up" and that her service provider was unable to fix, Baxley said in her deposition.

She has provided Bowen's office with 1,200 pages of T-Mobile billing records, according to court documents.

However, the records do not show the content of text messages, only that messages occurred, according to court filings. Those records also show Baxley exchanged and deleted 407 text messages from Natale from Aug. 12 to 13, the day before her deposition, despite subpoenas and a letter instructing her to preserve the records, Bowen argues.

Wells Fargo has objected to Bowen's requests for cellphone records and text messages for Zardenetta, Natale and Baxley. The bank contends the request is overly broad and seeks information that is irrelevant, personal or part of work records.

The bank says Bowen is using the April 2012 text message as a "red herring to divert focus from the unequivocal policy violations" that led to the firing of Stroud and the other former employees. Wells Fargo said it was unable to corroborate Stroud's allegations following "a thorough investigation."

The federal suit is set for trial in May, should parties fail to mediate a settlement.

A hearing regarding Bowen's motions in the state case for Natale and Zardenetta's cellphone records is scheduled for Jan. 15, Bowen said.

"We completely understand the judge's ruling ... but have no confidence whatsoever we'll be able to get the text messages through other means, but will work diligently to comply" with the ruling, he said.

Follow reporter Tom Barton at twitter.com/IPBG_Tom.

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