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Adams v. Wells Fargo Advisors, LLC

United States District Court, D. Maryland

May 21, 2014




Stephanie Adams, plaintiff, sued her former employer, Wells Fargo Advisors, LLC ("WFA"), defendant, asserting thirteen counts arising out of her employment at WFA and her subsequent termination. See Second Amended Complaint ("SAC"), ECF 29.[1] In particular, she alleges the following counts: (I) breach of contract; (II) gender discrimination, in violation of Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. §§ 2000e et seq; (III) gender discrimination, in violation of the Maryland Fair Employment Practices Act ("MFEPA"), Md. Code (2009 Repl. Vol., 2013 Supp.), § 20-606 of the State Government Article ("S.G."); (IV) disability discrimination, in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12111 et seq.; (V) disability discrimination, in violation of the MFEPA, S.G. § 20-606; (VI) unlawful retaliation under Title VII; (VII) unlawful retaliation under the MFEPA, S.G. § 20-606; (VIII) "Employment-Libel or Slander on Form U-5"; (IX) "Libel"; (X) unlawful withholding of wages earned under a WFA employee incentive program called the "4Front Program, " in violation of the Maryland Wage Payment and Collection Law ("MWPCL"), Md. Code (2006 Repl. Vol., 2013 Supp.), § 3-505 of the Labor and Employment Article ("L.E."); (XI) unlawful withholding of wages earned as commission income, in violation of L.E. § 3-505; (XII) fraud in the inducement; and (XIII) intentional infliction of emotional distress.

After discovery, WFA filed a motion for summary judgment ("Motion, " ECF 55), supported by a memorandum of law ("Memo, " ECF 55-1), and voluminous exhibits. Plaintiff filed a response in opposition ("Opp., " ECF 57), also supported by exhibits, to which WFA replied ("Reply, " ECF 58). No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I will deny the Motion as to Count I but grant it as to Counts II-XIII.

Factual Summary[2]

Adams is a former financial advisor ("FA") at WFA, which is a non-bank affiliate and subsidiary of the bank Wells Fargo & Co. See Affidavit of Joshua P. Ritz ("Ritz Aff., " ECF 55-7) ¶ 4.[3] Joshua P. Ritz, the Regional Brokerage Manager for the Greater Maryland Region for WFA, Ritz Aff. ¶ 3, was Adams's supervisor from January 1, 2011, until her employment was terminated on March 28, 2011. Id. ¶ 9.

WFA "provides a wide range of investing advice, investment products, and portfolio management services" to its clients. Id. It employs over 15, 000 financial advisors, who work in one of two "sales channels." Id. The sales channel with the "more traditional and familiar brokerage environment" is called the "Private Client Group." Id . ¶ 5. The other channel, in which plaintiff worked, is known as "Wealth Brokerage Services" ("WBS"). Id. Financial advisors in WBS "seek[] to better leverage [their] bank affiliation" by providing brokerage services to customers at Wells Fargo & Co.'s bank branches. Id. ¶¶ 5-6. Thus, although the financial advisor working in a particular bank branch is not an employee of the bank branch, she "is to be seen as part of the team in that bank branch" and relies on internal referrals for part of her book of business. Deposition of Joshua P. Ritz ("Ritz Dep., " Motion Ex. 2, ECF 55-4) at 40; see also Deposition of Stephanie Adams ("Adams Dep., " Motion Ex. 1).[4]

FAs are paid on a draw/commission basis. Ritz Aff. ¶ 8. Commissions are calculated as a percentage of the revenue produced by the FA, and the percentage applied (known as the "grid rate") is typically determined by the advisor's level of production. Id. Although FAs are assured of a "minimum salary draw, " any FA whose earned commission does not exceed the minimum salary draw carries the deficit into the next month. Id. FAs generate revenue either by collecting transaction fees on sales of financial products to clients or by charging clients an annual fee tied to the value of the client's account. See Deposition of Henry John Rose, a senior vice-president at Wells Fargo Advisors ("Rose Dep., " ECF 55-5) at 6, 9-10. According to Ritz, an FA with more than two years of experience is expected to produce at least $20, 000 of revenue for WFA each month. See Ritz Dep. at 48-49; see also Motion Ex. 10, ECF 55-12.

Adams worked as an FA in WFA's Baltimore region. Until approximately October 2008, she worked primarily out of the Perry Hall and Martin Plaza bank branches. See Adams Dep. at 26-27. Adams did not have a dedicated office space at Perry Hall, but she did have one at Martin Plaza. Id. at 30-31.[5] Around October 2008, Adams contacted her supervisor, Robert Carpenter, and asked to be transferred from the Martin Plaza branch because of a series of disagreements she had with the Martin Plaza store manager. See Adams Dep. at 37; see Deposition of Robert Carpenter ("Carpenter Dep., " ECF 55-6) at 49-50. Carpenter was a regional manager at WFA, and was Adams's direct supervisor for a portion of the time relevant to this case. See Carpenter Dep. at 7. Adams was reassigned from Martin Plaza to the Overlea bank branch. Id. at 33.

Despite receiving the requested transfer, Adams was unhappy with the Overlea branch, which she claims was in a "very low end area" with "very low potential... for any prosperous business." Adams Dep. at 39. Initially, Adams complained because, unlike at Martin Plaza, she did not have a dedicated office space at the Overlea branch. Id. at 49-50.[6] However, she was later provided with office space on the second floor of the building. Id. at 49. Adams testified that the office space was "old" and a "disaster" but that, after a few months, "they agreed to put a chair and a desk, [a] nice one, fresh carpet, fresh paint, and fresh blinds in there." Id. at 50. Carpenter estimated that the cost of the renovation of a "separate suite" for Adams was between $20, 000 and $25, 000. Carpenter Dep. at 51. The office was completed by late 2008, and Adams had this private office until her termination on March 11, 2011. Adams Dep. at 34-35.

Issues with Adams's job performance began to surface in late 2009. On October 12, 2009, Adams received a written warning from Carpenter, which stated, ECF 55-17 (all spelling and grammatical errors in original):

According to the facts, I received several calls over the past few months from Sean Dunphy District Manager and Cristy Kemp Branch Manager of the Perry Hall branch concerning your performance and lack of participation inside the branch this year. As you know, expections for your position requires you to be working with the Perry Hall Store on a daily basis. The lack of participation in call nights, referrals and being readily available for appointments have hampered the branchs performance this year. The branch has called you on many occassions with no resonse for days and is concerned that you are not focused on the job. You have been given initail warnings verbally about these matters with no improvement. This memo serves as a written warning and needs to be adhereded to or you could face disciplianary action up to termination of your employemnet with the company.

Around the same time, Adams informed Carpenter that she has bipolar disorder and attention deficit disorder. See Adams Dep. at 54-56. Adams also spoke with Carpenter multiple times over the next several months about her performance issues. Adams Dep. at 74, 76. But, the performance issues continued: Adams failed to meet the minimum revenue standard of $20, 000 in February, March, and April 2010. Motion Ex. 10, ECF 55-12.

On June 4, 2010, Adams filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Motion Ex. 19, ECF 55-21 ("EEOC Charge"). Although Adams checked boxes indicating that she suffered discrimination on the basis of sex, age, disability, and national origin, her description of the alleged discrimination focused only on sex discrimination. In particular, Adams alleged that, when she was transferred from Martin Plaza to Overlea, "Carpenter mandated that [she] turn over ½ of [her] investor customers to that young male advisor who replaced [her]. However, the male advisor that [she] replaced at [Overlea] was not required by Carpenter to leave ½ of his book of investor clients to [her]." EEOC Charge at 1. Further, she alleged that Carpenter "never allocated or assigned any accounts to [her] to manage, " but that Carpenter "consistently assigns... customer accounts to male financial advisors, many with less experience and seniority." Id. The EEOC charge eventually resulted in a mediated settlement between Adams and WFA, described infra.

On June 16, 2010, Carpenter issued a "Formal Warning for Unsatisfactory Performance" to Adams and placed her on a Performance Improvement Plan ("PIP"). Motion Ex. 10, ECF 55-12. In the warning, Carpenter noted Adams's repeated failure to meet the minimum revenue standard of $20, 000 per month and observed that Adams is "not regularly in the office and [has] failed to follow the activities [she] developed in [her] business plan or with [her] store partners." Id. Carpenter advised that he "need[ed] to see immediate and ongoing improvement" in Adams's revenue production, time spent in the bank branches, efforts to generate business, and fostering of relationships. Id. He also wrote, id.:

This letter serves as notice of a 90 day performance improvement plan. Your average trailing 3 months of production must exceed the minimum production level for three consecutive months. Failure to meet this performance expectation... may result in continuance of the corrective action process up to and including termination.
I will review your results and your business plan with you every 30 days and continue work with you to help you meet your production minimum. Although you and I meet to review your plan and production, you are ultimately the one responsible for meeting your production minimum.

Adams produced $11, 927 in revenue in June, $19, 413 in July, and $32, 955 in August. Because Adams failed to meet the minimum production requirement in two of the three months of the PIP, Carpenter issued a new formal warning on September 28, 2010, which was similar in substance to the previous warning. Motion Ex. 11, ECF 55-13.

In November 2010, Carpenter resigned from WFA. Carpenter Dep. at 8. He was temporarily replaced by Rose, who testified that he often fills in for departed managers until a permanent replacement is hired. Rose Dep. at 6. At her deposition, Adams testified that Rose is "a really good man" who was "positively oriented" with her in discussions about her work performance. Adams Dep. at 220. After a meeting with Rose, Adams emailed B.J. Renner, a Vice President at WFA, writing that Rose "was a real pleasure to meet with." Motion Ex. 17, ECF 55-19. However, she also wrote that she was facing financial struggles in her personal life and that she has "no incentive now to call customers and perform" because she was "continually paying back on a [$17, 000] penalty." Id. The penalty to which she referred resulted from a complaint filed against Adams by a former client. See Motion Ex. 13, ECF 55-15.

Also in November 2010, Adams engaged in e-mail discussions with WFA Employee Relations Consultant Katherine Lindholm to determine what, if any, reasonable accommodations were available for Adams's alleged disabilities. See Motion Ex. 18, ECF 55-20. Among other things, Adams requested a transfer to a bank branch in Abingdon with "a permanent FA office" and that she be permitted to work from home on Mondays. See id. at 2. Adams explained in her deposition testimony that she required her own private office space "[b]ecause when you have bipolar, you really do need to focus on your job, " and the noise and lack of privacy of working as a "floater" was too much of a distraction. Adams Dep. at 56; see SAC ¶ 14 ("Because of her disability, Adams could not stay focused while working or meeting with clients in the wide open atmosphere...."). On November 19, 2010, Lindholm advised Adams, id. at 1:

Your accommodation request to work from home one day a week has been reviewed by Compliance and is not feasible; however Accommodations Management will be in contact with you to continue the dialog [sic] on your request and to discuss other options for an accommodation.
As for the branch assignments, you are still assigned to the Perry Hall branch and should continue to work with your partners to meet with clients on their investment needs. As I discussed with you in August, September and our conversation earlier this week, there is no real estate space for you to have a full time office in Perry Hall. The Overlea branch is where you will continue to have your desk and file space. As to your request to move to the Abingdon branch, there is no additional need for another Financial Advisor.
I have spoken with your management on the concerns you indicated in your email regarding the current deficit.... Management has agreed to work with Finance to remove the additional deficit of $4, 700, so that you will have a "clean slate" in that regard.

On December 22, 2010, Adams and WFA reached a mediated settlement agreement on Adams's EEOC charge. The agreement is embodied in a Confidential Settlement and General Release Agreement, which Adams signed on January 7, 2010. See Motion Ex. 13, ECF 55-15 ("Settlement Agreement"). Adams, who was represented by her current counsel in connection with the settlement, agreed to release all claims relating to her employment at WFA up to the date of the Settlement Agreement. Id. at 3. In exchange, WFA agreed, inter alia, to pay Adams $75, 000; to extinguish Adams's commission deficit for the year 2010, in excess of $6, 000; and to amend a Form U-4 on which WFA had noted a prior customer complaint against Adams. Id. at 1; see Motion Ex. 21, ECF 55-23. WFA did not admit to any wrongdoing, however. Settlement Agreement at 3.

The Settlement Agreement contains a paragraph entitled "Payment of Commissions, " which is at the heart of the dispute regarding Count I of plaintiff's SAC. The paragraph provides, id. at 1-2:

The Firm will compensate Adams at a monthly grid of 33% starting with the January 1, 2011 commission month through and including the March 2011 commission month, at which point the Firm will compensate Adams at the monthly grid rate determined by her annualized revenue pursuant to the FA Compensation Plan and/or policies.

Other provisions in the Settlement Agreement are also pertinent. The Settlement

Agreement states that "[n]o branch reassignments are being made as a result of or in connection with this settlement agreement"; that WFA would request that the Perry Hall bank branch provide her with office space but that WFA "does not control whether [Perry Hall] will provide such an arrangement"; and that, "[t]o the extent that Adams believes that she is disabled and needs reasonable accommodations, Adams will pursue such accommodations through the Firm's Accommodations Management office." Id. at 2. It continues, id.: "Such requests for accommodations, however, shall not include those accommodations already denied by the Firm, which included a request to work from home and a change of branches."

Ritz became Adams's new manager on January 1, 2011. Ritz Aff. ¶ 9. During his time as manager, Ritz asked his "entire FA team to begin thinking about their business planning for 2011, and what they would like to accomplish." Id. He also "also established bi-weekly conference calls with [his] entire FA team." Id. However, according to Ritz, "Adams did not take advantage of [his] suggestions on business planning, and she did not regularly attend the team conference calls." Id. Ritz sent several other e-mails to his team of FAs suggesting that they attend conference calls and notifying them of training opportunities, but according to Ritz, Adams did not take advantage of these opportunities. See id. ¶¶ 10-13; Motion Ex. 28, ECF 55-30 ("You have been invited to my [bi-weekly] team conf calls; from my role [sic] call on record you have not attended.").

Between January and March 2011, Adams corresponded with Jan Coddington Frame, an Accommodations Management Specialist at Wells Fargo & Co., about Adams's request for an exclusive office or private cubicle space at Perry Hall. See Affidavit of Jan Coddington Frame ("Frame Aff., " ECF 55-10) ¶ 4. However, Frame advised Adams that "there were no longer offices in the Perry Hall branch and that no dedicated cubicle space was available at the crowded branch." Id. ¶ 5.

On February 22, 2011, Ritz sent an e-mail detailing his team's monthly revenue production. Motion Ex. 29, ECF 55-31. Adams's month-to-date production was $6, 107.04, which ranked her 20th among the 23 FAs listed. Id. In response, Adams wrote, id.: "I need to get in gearI GOTTA!!!!!! I have had so many issues with Caroline my eldest...I will talk with you about it all some time...but I do have some good leads in the hopper...Thank you for your patience...I am also working with accommodations..." In response, Ritz asked Adams what she meant by "accommodations" and requested that Adams send him "some basic info" about her lead opportunities. Motion Ex. 31, ECF 55-33. Adams replied that she did not know whether she was "at liberty to discuss this with [Ritz] due to confidentiality issues, " but that her doctor was working with the "accommodations unit." Motion Ex. 32, ECF 55-34. Further, she advised that she had "set up a dinner" with the bankers at Perry Hall and Overlea, scheduled a meeting with a client, and had "about 300k in the pipeline so far this month." Id. She also requested "some planning assistance" from Ritz and stated that she would like to "get to know [him] better." Id.

Ritz visited the bank branches at Perry Hall and Overlea on March 10, 2011. Ritz Aff. ¶ 13. Adams was not present at either location. Id. Kristy Kemp, the Store Manager at Perry Hall, told Ritz "that she had not seen Adams at all during 2011" and that "over the past year calls to Adams were not returned for days, and that Adams was generally unavailable to assist the branch as an FA." Id .; see also Affidavit of Kristy Kemp, Motion Ex. 6, ECF 55-8 (confirming that Adams was not present during 2011, and she had only seen Adams four or five times in the prior year). Similarly, Carol Burleigh, the Store Manager at Overlea, told Ritz that "she did not see Adams frequently, and that she also did not see Adams at all during 2011." Ritz Aff. ¶ 13; see Affidavit of Carol Burleigh, Motion Ex. 9, ECF 55-11 (confirming that Adams was frequently absent). According to Ritz, "it seemed evident... that Adams was not working." Ritz Aff. ¶ 13.

Later that day, Ritz wrote an e-mail to Adams. He asked Adams to send him data about her pipeline, inquired whether Adams had planned any activities other than the dinner she previously referenced, and asked whether Adams had worked on her 2011 business plan. Motion Ex. 45, ECF 55-47. Adams replied the following day. Id. She explained that she was out of the office the previous day because she was "battling with a bad kidney stone, " described her plans for her book of business going forward, and expressed optimism about the future. Id. Ritz responded the next day, stating: "Good to hear the news and activities that you see coming in the future with your book and your store partners." Id.

On March 18, 2011, Ritz sent an e-mail to his FAs about their March production status. Motion Ex. 46, ECF 55-48. As of that date, Adams had produced $3, 736.22 in revenue for the month and $19, 740.10 for the year; her monthly revenue ranked her 20th out of the 21 FAs listed, and her yearly revenue was the lowest of the 21 FAs. Id. After sending the e-mail, Ritz contacted Human Resources and learned that "Adams had been subject to performance improvement plans since October 2009" and that "[s]he repeatedly had been warned about producing a minimum of $20, 000 a month and about the need to be present in her assigned stores during regular business hours." Ritz Aff. ¶ 15. Ritz concluded that Adams's "production had not improved since October 2009, and she had made no reasonable effort to improve." Id. "Approximately ten days later, [Ritz] terminated Adams for failing to meet job performance expectations.'" Id.

In conjunction with the termination, WFA completed a Form U-5 (Uniform Termination for Securities Industry Registration), as required by the Financial Industry Regulatory Authority ("FINRA").[7] Motion Ex. 48, ECF 55-50. WFA reported that Adams was discharged because she "failed to meet job performance expectations." Id.

Count X of the SAC relates to WFA's bonus program, "4Front Client Service and Loyalty Program, " which was launched in 2009. See Motion Exs. 51-54, ECF 55-53-56. The 4Front program encouraged FAs, through financial incentives, to create long-term financial plans for their clients. The stated purpose of the 4Front Program was to increase client satisfaction and loyalty. See 4Front Client Service and Program Business Rules, ECF 55-54.

To earn a bonus under the 4Front Program, FAs were required to develop and present a financial plan to at least 25 clients (or households), each of whom had to have $250, 000 or more invested with WFA. See ECF 55-54; Adams Dep. at 186; Rose Dep. at 11, 33-34. FAs used software called "Envision" to create these financial plans. Rose Dep. at 11-13. Once an FA created and presented a plan to the required 25 households, accepted by WFA, she was required to continue monitoring the financial plans she had created. For example, the FA was required to review and update the plan annually, to present the plan to the client on an annual basis, to generate annual progress reports, to maintain the number of qualifying households, and to have "six proactive conversations with the client." See ECF 55-54; Adams Dep. at 189-91. The 4Front bonus required FAs to maintain a long-term standard of care and ongoing responsibilities for nine years. See, e.g., Adams Dep. at 189-97; see Rose Dep. at 16.

Employees who met the criteria of the 4Front Program were eligible to receive a cash bonus award from WFA, "payable in 108 equal monthly installments, " beginning with the September 2010 revenue month and continuing through August 2019, i.e., a nine-year period. See 4Front Agreement, Motion Ex. 51, ECF 55-53 at 2. The 4Front Agreement explains that receipt of monthly award payments "is conditioned upon [the FA] meeting all the criteria under the program and [his/her] continued active employment in good standing with [WFA] and holding the functional title of Financial Advisor." Id. Alternatively, qualifying employees were permitted to receive a lump sum award as an advance, secured by a promissory note. See "Loan Option at a Glance, " Motion Ex. 54, ECF 55-56. Employees who opted for the lump sum would still receive monthly bonus payments, but were expected to use the monthly bonus payments to pay off the principal and interest on the note. Id.

The last date for an FA to submit financial plans created for the 4Front Program was June 30, 2010. Rose Dep. at 34. For the quarter ending June 30, 2010, Adams submitted 50 households on the Envision software for the 4Front Program. Motion Ex. 55, ECF 55-57. However, at some point after Adams made her entries, Carpenter entered a notation into the Envision system that he was "skeptical on these plans. It looks like that at least 40% were fabricated or not complete." Opp. Ex. 4, ECF 57-6. He also wrote that "in most cases we found that the plan was never presented to the client. [Adams] had called and asked questions but never presented the findings of the plan or went through the financial planning process." Id. And, Carpenter "declined" approximately half of the entries before approving the remainder of the report. Id.

The report was initially approved at the next level of review, but the report later "caught the attention" of WFA staff because of the volume of activity in the month of June. Id. Specifically, Adams's entries reflected that she had presented 43 of the plans to clients in the month of June alone. As Rose put it: "When brokers had a year and a half to do plans and when you do 43 of them in the last month, it raises a flag." Rose Dep. at 32. Moreover, according to Adams's entries into the Envision software, Adams had presented 18 plans to clients on a single day, June 11, 2010. This raised suspicions because the client presentations, done properly, normally took "at least an hour." Id. at 25.

On February 2, 2011, Michael Ward, who was responsible for processing the reports submitted by FAs for the 4Front Program, e-mailed Rose about Adams's entries, stating that "we are going to have to dig deeper to get these plans approved because of the comments [Carpenter] entered into the system." Motion Ex. 56, ECF 55-58. Rose testified that a compliance officer then reached out to ten clients for whom Adams claimed to have created a plan; "half of the clients said they were not involved in the process." Rose Dep. at 17. Rose himself called three clients; "two received the plans and one didn't." Id. at 17, 37. But, Rose testified that the plans "were reasonable plans" for Adams's "long-term clients, " and that Adams was knowledgeable about her clients. Id. at 17.

On February 7, 2011, Rose e-mailed Adams to advise her that her 4Front plans were under further review. Motion Ex. 58, ECF 55-60. Rose explained that her plans raised suspicions "because 21 plans were created during the last 3 days of June." Id. He asked Adams to send him and Ritz "an email of the process [she] used in gathering the information" and "how and when [she] delivered and discussed the plans with the clients." Id. He also asked Adams for any notes or calendars that she had to document her discussion with the clients. Id. Rose repeated the same request on February 14, 2011, see id., and Adams replied on February 23, 2011. Motion Ex. 59, ECF 55-61. She explained that the fifty entries were for customers she has "worked with for many years, " that the reviews "were mostly conducted over the phone, " and that she was facing a series of personal challenges at the time that the entries were made. Id.

Further investigation ensued and, according to Ward, approximately 20 entries were eventually declined. Opp. Ex. 4. However, before the report was finally approved with the remaining 30 entries, Adams's employment was terminated. She was never paid any bonus under the 4Front program.

Additional facts are included in the Discussion.

Standard of Review

Summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. It provides, in part: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact, and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

"A party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of [its] pleadings, ' but rather must set forth specific facts'" showing that there is a triable issue. Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed.R.Civ.P. 56(e)), cert. denied, 541 U.S. 1042 (2004); see also Celotex Corp., 477 U.S. at 322-24. Accordingly, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 248. In other words, "[f]actual disputes that are irrelevant... will not be counted." Id.

In resolving a motion for summary judgment, a district court must view all of the facts, including reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Greater Baltimore Ctr. For Pregnancy Concerns, Inc. v. Mayor and City Council of Balt., 721 F.3d 264, 283 (4th Cir. 2013); FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013). Moreover, in resolving a summary judgment motion, the district court's "function" is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249.

Fed. R. Civ. P. 56 "is a mechanism to obviate trial...." Boyer-Liberto v. Fontainbleau Corp., ____ F.3d ____, No. 13-1473, slip op. at 9 (4th Cir. May 13, 2014). As the Fourth Circuit recently observed, "the very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine issue for trial.'" Id., slip op. at 8-9 (quoting Advisory Committee's Notes to Fed.R.Civ.P. 56) (emphasis added in Boyer-Liberto ). In supporting or opposing summary judgment, a party must rely on facts that would be admissible at trial. Id. at 9. If "the evidence is such that a reasonable jury could return a verdict for the nonmoving party, " then a dispute of material fact precludes summary judgment. Anderson, 477 U.S. at 248. In contrast, a court must award summary judgment if the evidence "is so one-sided that one party must prevail as a matter of law." Id. at 252. And, "the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there ...

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