Attorney: Bluffton Wells Fargo manager destroyed evidence

August 27, 2013 

gavel

— A branch manager at the center of a wrongful-termination lawsuit against Wells Fargo intentionally destroyed evidence crucial to the case, according to a court filing Monday by a Hilton Head Island attorney representing seven of the bank’s former employees.

John Bowen’s motion before the Beaufort County Court of Common Pleas accuses Wendy Baxley of destroying text messages that he had subpoenaed, despite several warnings not to do so.

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

Bowen has asked that the court sanction Baxley and that she be made to pay attorneys’ fees and other costs for seeking enforcement of subpoenas.

Baxley remains with Wells Fargo at the bank’s Okatie branch. She would not comment when reached by telephone Saturday.

Attempts Saturday and Monday to reach Bowen for comment were unsuccessful. In court documents, Bowen states Baxley admitted deleting the text messages in a 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 Hilton Head Island’s annual PGA Tour event, the Heritage Presented by Boeing. 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.

Their lawsuit claims they were fired for receiving “credits” for opening new accounts that Zardenetta claimed they didn’t earn. 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 has sought subpoenas on three occasions that would force Baxley to turn over her cellphone records and text messages. He also sent her a letter instructing her to preserve the records. Similar subpoenas and letters were also sent to Natale and Zardenetta, according to court documents. Bowen’s motion contends neither has complied.

Wells Fargo asked a judge to dismiss Bowen’s subpoena for records and text messages related to Natale’s Wells Fargo cellphone. The bank argues that portions of the subpoena seek “highly confidential, proprietary and potentially privileged information” not relevant to the case, according to its motion. However, Wells Fargo said it would provide printed copies of any personal text messages or records of personal calls Natale made on his bank-issued Blackberry.

Beaufort County Master in Equity Marvin Dukes III ordered Wells Fargo to determine the cost, time limitations and ability of its wireless carrier to produce the requested records. It had two weeks from Aug. 14 to do so.

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

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.

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