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Out of the uproar over Wells Fargo’s admission that it opened up to 2.1 million accountswithout customers’ knowledge or consent, the bank vowed to right its ways and hold executives accountable.

The bank’s board commissioned a report that found, in part, in-house lawyers failed to grasp the gravity of the looming scandal as alarm bells sounded. Earlier this year, it slashed compensation for top executives to “reinforce accountability.”

Meanwhile, Wells Fargo has been fighting the wrongful-termination claims of a former branch manager in California who alleged she was fired after blowing the whistle on bankers opening new accounts without proper authorization.

Wells Fargo formally objected earlier this month to a U.S. Labor Department decision ordering the bank to reinstate the fired branch manager, Claudia Ponce de Leon, and provide her with more than $577,500 in back pay, damages and legal fees. 

The bank’s appeal notice, filed Aug. 8 with the Labor Department’s chief in-house judge, said Wells Fargo maintains that Ponce de Leon “was terminated based upon a pattern of significant misconduct unrelated to any alleged whistleblowing and that, accordingly, [she] is not entitled to any relief.”

The bank is being represented in the appeal by Karl Nelson, a Gibson, Dunn & Crutcher labor and employment partner in the firm’s Dallas office. In his letter to the Labor Department, Nelson said the bank would “more fully” present its objections and evidence supporting Ponce de Leon’s firing in proceedings before an administrative law judge.

Nelson’s letter came a month after the Labor Department’s Occupational Safety and Health Administration ordered Wells Fargo to reinstate Ponce de Leon—a step the bank has refused to take, said the fired branch manager’s lawyer, Yosef Peretz of San Francisco’s Peretz & Associates.

Nelson was not reached for comment Thursday.

A spokesman for the bank said in a statement: “We take seriously the concerns of current and former team members. This decision is a preliminary order and to date there has been no hearing on the merits in this case. We disagree strongly with the findings and have requested a hearing in which we look forward to presenting all the facts before an administrative judge.”

OSHA’s findings, outlined in a letter to Seyfarth & Shaw partner Eric Steinert, representing Wells Fargo, noted that Ponce de Leon had voiced concerns in the summer of 2011 about employees opening accounts without customers’ knowledge or consent. Around the same time, Ponce de Leon called a human-resources hotline to report mistreatment by subordinate employees in response to her raising those concerns.

Ponce de Leon was called into work on a day off in late September and told she was fired, according to the Labor Department’s letter.

“Complaints were filed shortly after [Ponce de Leon] disciplined her subordinate employees for improper conduct and thus the complaints appear to have been made in bad faith,” wrote Barbara Yee Goto, OSHA’s regional administrator in San Francisco.

Wells Fargo claimed it fired Ponce de Leon following a “climate review” that was initiated in response to complaints lodged by subordinate employees and her “long well-documented history of unprofessional conduct towards co-workers.”

Goto told Wells Fargo’s lawyers, in a letter, the evidence does not support the bank’s claim that Ponce de Leon had a track record of unprofessional conduct. An earlier review, in 2007, “actually found that there was an overall positive opinion of management, including [Ponce de Leon], at the branch where [she] worked at the time.”

Goto noted that Ponce de Leon had been promoted several times to higher-volume stores during her tenure at Wells Fargo and had received multiple “performance recognition” certificates.

Goto’s letter sheds further light on defenses Well Fargo raised in the buildup to last month’s decision ordering Ponce de Leon’s reinstatement.

According to her letter, Wells Fargo claimed it had also flagged Ponce de Leon in 2010 for drinking excessively while at a lunch with a subordinate employee and a prospective client. Ponce de Leon said that, before the lunch meeting, she had issued “written counseling” to the subordinate employee.

But, according to Goto’s letter, Wells Fargo did not verify the incident with the client until it received a letter from OSHA in December 2016 informing the bank that there was “reasonable cause” to believe that Ponce de Leon’s whistleblower rights had been violated. Goto wrote there was no evidence Ponce de Leon was issued a disciplinary action before or after the July 2010 lunch meeting up until her firing a year later.

“If the incident was as severe as asserted by [Wells Fargo], the evidence suggests [the bank] was willing to tolerate this type of behaviour,” Goto wrote.

In September 2016, Wells Fargo agreed to pay $185 million to federal regulators and the Los Angeles City Attorney’s Office to settle allegations stemming from the bank’s sham accounts scandal. Wells Fargo paid the Consumer Financial Protection Bureau a fine of $100 million—the largest civil penalty assessed in the agency’s six-year history.

Wells Fargo has since disclosed that the scale of the phony accounts scandal could be larger than initially believed—and that it may have a significant whistleblower problem on its hands. In a regulatory filing earlier this month, Wells Fargo said an expanded review of its sales practices “may lead to a significant increase in the identified number of potentially unauthorized accounts.”

In the same quarterly report, the bank said it is facing “multiple single plaintiff Sarbanes-Oxley Act complaints and state law whistleblower actions filed with the Department of Labor or in various state courts alleging adverse employment actions for raising sales practice misconduct issues.”

C. Ryan Barber, based in Washington, covers government affairs and regulatory compliance. Contact him at cbarber@alm.com. On Twitter: @cryanbarber

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