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Gosa v. Wal-Mart Stores East, LP

United States District Court, S.D. Alabama, Northern Division

February 2, 2017

PHYLLIS D. GOSA, Plaintiff,



         This matter is before the Court on Defendant Wal-Mart Stores East, LP's (“Wal-Mart”) motion for summary judgment (Doc. 12), Plaintiff Phyllis D. Gosa's (“Gosa”) response (Doc. 21), and Wal-Mart's reply (Doc. 25). Having considered the vast evidentiary record, with no hearing being necessary, the Court deems it proper to GRANT Wal-Mart's motion. The Court also considers Wal-Mart's motion to strike (Doc. 27) Gosa's Affidavit (Doc. 21-4) in whole or in part, and Plaintiff's response in opposition (Doc. 28) and finds the motion to be MOOT for the reasons stated below.

         I. Background

         Gosa, formerly a pharmacist employed by defendant, originally filed her five-count suit alleging race and gender discrimination and related causes of action in the Circuit Court of Dallas County, Alabama. (Doc. 1). Wal-Mart properly removed the case to this Court, and after discovery moved this Court for summary judgment as to all five claims. (Docs. 1, 12).

         A. Wal-Mart's Pharmacy Operations

         Many of Wal-Mart's shopping centers offer pharmaceutical services to its customers. Wal-Mart employs licensed pharmacists in its stores, including the Pharmacy Manager and Staff Pharmacists. When a permanent manager is not available in a store, a Staff Pharmacist is elevated to a Pharmacist in Charge (PiC) temporarily to fill the role. This temporary elevation comes with a one dollar per hour raise, which reverts to a Staff Pharmacist's original salary at the end of the PiC role. (Doc. 14-12, ¶ 11). Pharmacy Managers oversee the pharmacy operation in a particular store, including managing the prescription stock, completing evaluations for pharmacy staff, and being held accountable to the Alabama State Board of Pharmacy for maintenance and security. (Doc. 14-4, p. 4). Staff Pharmacists “fill[ ] prescriptions and consult[] [with] customers” while also supervising the general pharmacy operations and overseeing hourly pharmacy staff. (Doc. 14-12, ¶ 3). In addition to pharmacists, Wal-Mart employs over-the-counter (OTC) clerks, pharmacy technicians, and cashiers. Id. Generally, pharmacists working on a shift are tasked with “training [Pharmacy Technicians] to the proper standard.” Id. Wal-Mart pharmacies operate out of individual stores and, thus, are subject to a dual chain of command. (Doc. 14-11, ¶ 4). Pharmacy personnel report to the individual store's management as well as to the Health and Wellness Division. Id. Mr. Rusty Harris and Ms. Krystal Powe serve as Market Health and Wellness Directors in Alabama, and both have supervised Gosa. (See Id. at ¶ 7; Doc. 14-12, ¶ 2). Mr. Chad Souers is the Regional Health and Wellness Director for most of Alabama and the panhandle of Florida. (Doc. 21-10, p. 4).

         When hiring pharmacists, Wal-Mart considers a variety of factors, including lateral hires' prior experience and prior salary, the size of graduating pharmacy classes for new hires, and relocation incentives or other convenience factors. (See Docs. 14-11, ¶ 8; 14-12, ¶¶ 11-12). Mr. Harris personally attends recruiting events at Alabama's two pharmacy schools, but the Regional Talent Specialist also recruits at two historically black universities in the southeast-Xavier University in Louisiana and Florida A&M. (Doc. 14-1, p. 12).

         B. Gosa's Employment at Wal-Mart

         Gosa first began working at Wal-Mart Store number 700 in Selma, Alabama in September 2003. (Doc. 14-1, p. 3). She remained in her Staff Pharmacist role for the vast majority of her career, with the exception of her year as a PiC from 2006 through June 2007. Id.; see also Doc. 14-3, p. 20. She resigned from her position as PiC and voluntarily returned to her role as a Staff Pharmacist. (Doc. 14-3, p. 20). In the spring of 2015, before her resignation, Gosa was transitioning back into the PiC role. (Doc. 14-12, ¶ 9). Gosa did not have an employment contract with Wal-Mart and worked as an employee at-will. (Doc. 14-1, pp. 8-9).

         During her time at Wal-Mart Store 700, Gosa worked with varied pharmacists: Pharmacy Managers included Louie Hubert (Caucasian male), Lennie Allen Ezelle (Caucasian male), Greg Crane (Caucasian male), and Angie Lovingood (Caucasian female); Jean Spence (Caucasian female) worked as a PiC and a Staff Pharmacist; other Staff Pharmacists included Vincent Azzarello (Hispanic male) and Philip Lyman (African-American male). (See Doc. 14-4, p. 15; Doc. 13, pp. 4-5).

         Gosa also worked with different Pharmacy Technicians, OTC staff, and cashiers. These included Christy Baynes-Calhoun, Tamika Ragland, Terrika Frison, Shondra Jackson, Nancy DeWitt, and Tiffany Lewis. All of these Wal-Mart associates are female, and all, except Ms. DeWitt, are African-American. (Doc. 14-4, p. 15). As a Staff Pharmacist, Gosa was responsible for supervising these employees, especially when she was the only pharmacist on duty. Gosa had written up pharmacy associates on different occasions for violating Wal-Mart policy. (See Doc. 14-3, pp. 8-9, 11, 23-25).

         C. Gosa's Coaching Reports

         Wal-Mart issues a written “coaching” when an employee has violated its policy as a method of holding its employees accountable. (Doc. 21-1, p. 7). The first coaching “does not require the associate being coached to acknowledge it” in the computer system. Id. at 11. If an associate receives a second or third coaching, he or she must acknowledge it. Id. If an associate commits another policy violation after the third coaching, the associate is automatically terminated. Id. These coachings generally expires a year after they are issued.

         Gosa received three coachings between August 2014 and February 2015. Gosa garnered her first coaching in August 2014 for asking an African-American pharmacy technician, Ms. Jackson, to leave the pharmacy to obtain documentation of the approval of her ADA accommodation for a stool. (See Doc. 14-3, pp. 26-27). Using a stool in the pharmacy without an accommodation violates Wal-Mart policy, and Gosa was unaware of any request for or approval of Ms. Jackson's stool. (See Doc. 14-4, p. 7; Doc. 14-3, p. 27). According to Mr. Harris, Gosa questioned Ms. Jackson's accommodation and “made some derogatory comments to Ms. Jackson about the accommodation itself.” (Doc. 14-4, p. 13). Gosa vehemently denies making any such comments, but the investigation by Wal-Mart, which included interviews of the staff working in the pharmacy at the time in question, determined she had made inappropriate remarks. Id. As a result, Gosa received a coaching for violating Wal-Mart's policy to respect the individual. (Doc. 14-3, p. 26).

         The second coaching, given in November 2014, concerned Gosa's breach of Wal-Mart's policy relating to the removal of personal health information (PHI) of patients from the pharmacy at the end of her shifts. Gosa admits she recorded PHI in a notebook to note incoming phone prescriptions and other intake methods. She further admits that she took her notebook home with her. (See Doc. 14-2, p. 8). Wal-Mart policy prohibits the removal of PHI from the pharmacy for any reason, as the removal presents a possible HIPPA breach. (Doc. 14-4, pp. 8-9). During the investigation of Gosa's breach of the PHI policy, she accused two other pharmacists, Mr.

         Ezelle and Mr. Hubert (both Caucasian males) of committing the same policy violation. Wal-Mart investigated her claims and determined Mr. Ezelle breached the policy because he, like Gosa, removed his notebook from the pharmacy at the end of his shifts. Id. Mr. Hubert, however, did not remove the PHI from the pharmacy and properly destroyed the notebooks. Id. As such, Mr. Ezelle received a coaching, but Mr. Hubert did not. Id.; see also Doc. 14-7, pp. 4-5.

         Gosa received her final coaching in February 2015 for leaving the pharmacy unsecured while she reprimanded an associate in the Health and Beauty department, a section of the store adjacent to the pharmacy. (See Doc. 13-4, p. 35). According to Mr. Harris, Wal-Mart's pharmacy operation manual (POM) 902 provides Wal-Mart's policy regarding pharmacy area security. (See Doc. 14-4, p. 4). Mr. Harris explained the policy:

Pharmacists should-if there's only one pharmacist on duty, they should only leave the pharmacy unsecured if they are going out to the over-the-counter area to help a patient or customer with an over-the-counter question. [. . .] If it's the health and beauty aids and helping a customer with an item, that's fine, but there are no other business reasons that are considered acceptable.

Id. (emphasis added). If the pharmacist must leave the area for any other reason, even for “business reasons other than helping a customer, ” the pharmacy must be secured. Id.; see also Doc. 14-12, ¶ 4. To be secure, all other personnel must exit the pharmacy, the gate must be brought down and locked, and the door must be locked. Id. Gosa does not contest she left the pharmacy unsecured while she went to an aisle in the health and beauty section to speak with an “insubordinate associate.” (Doc. 14-2, pp. 12-13). Because she left the pharmacy for a reason other than assisting a customer, Gosa received a coaching. Gosa, however, was not the only associate who received a coaching for violating POM 902. Vincent Azzarello, a Caucasian/Hispanic male, received two coachings for violations of POM 902, one of which occurred while he was working in Store 700. (Doc. 14-4, p. 6; 14-9, pp. 3-4). Mr. Harris also stated Kim Kurcz, [1] a Caucasian female in his district, also received coaching for violating POM 902. (Doc. 14-4, p. 6). He further testified he was unaware of any other situation in which a pharmacist had left the pharmacy unsecured and had not received a coaching.[2] Id.

         D. Gosa's Performance Evaluations

         Gosa received annual and mid-year performance reviews during her tenure at Wal-Mart. The record contains evaluations from Fiscal Year (FY) 2011 through FY 2015. (Doc. 21-7). In her FY11 Annual Management Performance Evaluation, Gosa received an overall rating of “Exceeds Expectations.” (Doc. 21-7, p. 3). Her then-manager Mr. Hubert gave glowing commendations of her ethical standards and thought she might have an opportunity in the future in a management position. Id. In her FY12 MidYear Performance Evaluation, Mr. Hubert again rated her highly at “Exceeds Expectations.” Id. at 10. In her FY12 Annual evaluation, [3] however, Mr. Hubert lowered her overall rating to “Solid Performer.” Id. at 13. She received the same rating in FY13 Annual Performance Evaluation. Id. at 20.

         Mr. Crane became the Pharmacy Manger in 2014, and he oversaw Gosa's FY14 Annual Performance Evaluation. In FY14, Gosa received a rating of “Development Needed, ” the second lowest rating. Id. at 24. In his comments, Mr. Crane noted Gosa “adheres to assigned schedules” and demonstrated concern for “patient welfare.” Id. He further noted, however, Gosa did not exhibit a team effort or take advantage of opportunities available to her. Mr. Crane stated,

During my time at this store, I have felt continually undermined by [Gosa] in my attempt to build a cohesive functional department. This began with her refusal to ever attend any scheduled departmental meetings as well as her only being willing to hold certain associates accountable for policy violations. She has complained about communication within the department but really has desired for communication to be only one direction, not a two way street. These issues have led directly or indirectly to poor job satisfaction among our staff members[, ] and this split has contributed to the loss of a number of long term associates. Her refusal to become a certified immunizer crippled the ability of our store to provide this much needed service to our customers. Refusal to acknowledge her shortcomings in these areas and to rise above self interest and bridge the gaps with other staff members, though asked to do so directly, has led to the store not being as functional as necessary . . . . Rather than helping build a cohesive team, she has chosen to foster cliques and divide the staff at every opportunity. All of this has been done in spite of direct communication with field management to do otherwise. When confronted with these issues, and others, she chooses to play the victim or being unaware of policy violations.

Id. at 22-23. In FY15, Mr. Crane again provided comments to Gosa's Annual Performance Evaluation, but Ms. Powe assigned the ratings. (See Doc. 14-6, p. 9). That year, Gosa received a “Solid Performer” rating, although the notes reflect she had yet to become a certified immunizer and needed to “become a uniter” in the team. (Doc. 21-7, p. 29). Despite these downward-trending reviews, Gosa was in the process of transitioning into the PiC role when she resigned. (See Doc. 14-12, ¶ 9).

         E. Gosa's Resignation

         On April 26, 2015, Gosa and Pharmacy Technician Tiffany Lewis were involved in an incident. Ms. Lewis, a relatively new technician, worked a weekend shift with Gosa and requested some assistance in calculating dosages and other guidelines for working in the pharmacy. (See Doc. 14-12, p. 13). According to Ms. Lewis's incident report, Gosa became hostile, “questioned [her] intellect, ” and-in Lewis's view-refused to assist or train her. During the confrontation, Gosa shut down Ms. Lewis's work station. Id. at 15. Ms. Powe learned of this incident and “requested store management to obtain a written statement from Ms. Gosa, so we could more fully understand the facts and circumstances of what had occurred.” Id. at ¶ 8.

         Gosa indicates she became alarmed at Ms. Lewis's lack of training because she felt Ms. Lewis was unprepared to work as a Pharmacy Technician. (See Doc. 14-1, pp. 11-12). Gosa claims she had completed a write-up of the incident with Ms. Lewis when an assistant store manager approached her at approximately 7:00 P.M. on April 29th asking her to fill out more paperwork. Id. at 22. Around 7:50 P.M., Gosa called Ms. Powe to resign her position, stating she was “resigning effective immediately slash right now” because she was “tired of this.” Id. When asked to explain what she meant, Gosa stated, “[h]aving people show up in front of everyone and asking me to do reports about situations that I had not been effectively talked to about it. So I was just tired.” Id. Gosa further indicated she was frustrated because she had been unable to obtain any feedback or information from Ms. Powe or store management on how the situation with Ms. Lewis would be handled. (Doc. 26-1, pp. 3-4). Ms. Powe accepted her resignation, which became effective that same day. (Doc. 14-12, ¶ 8).

         After Gosa's resignation, Wal-Mart transferred Ms. Sharonda Martin, an African-American female, to Store 700 from a Wal-Mart store in Marietta, Georgia. (Doc. 14-12, ¶ 10). Because Ms. Martin transferred from a metropolitan area to a more rural area, Wal-Mart offered her a “larger salary increase and [paid] relocation costs.” Id. at ¶ 12.

         F. Gosa's Complaint to the Alabama State Board of Pharmacy

         Shortly after her resignation, Gosa wrote a formal complaint to the Alabama Board of Pharmacy. She indicated her concern that Wal-Mart employed technicians without enough experience and stated, “I resigned as a staff pharmacist at the store because of my concern for the safety and wellness of the public.” (Doc. 14-2, p. 26). On May 27, 2015, the Board acknowledged Gosa's complaint and initiated an investigation into Wal-Mart store 700. (Doc. 14-3, p. 2). In its final letter, on September 18, 2015, the Board informed Gosa, “[a]n investigation (Case 15-0078) resulted in no viable evidence to support a hearing by the Alabama State Board of Pharmacy.” Id. at 3.

         II. Summary Judgment Standard

         Federal Rule of Civil Procedure 56(a) instructs, “[t]he 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.” The trial court's mission is to “determine whether there is a genuine issue for trial” and not to “weigh the evidence.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

         The burden is on the moving party to show that there is no genuine dispute as to any material fact. Id. at 256. In conducting its summary judgment analysis, the Court must construe all evidence “in the light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

         After the movant meets its burden, the burden shifts to the nonmoving party “to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the nonmoving party fails to do so, the “complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 323. Further, Rule 56 “requires the nonmoving party to go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). There is no genuine issue for trial “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         III. Wal-Mart's Motion to Strike

          Before addressing the substantive portions of this Order, the Court turns to Wal-Mart's motion to strike (Doc. 27) Gosa's Affidavit (Doc. 21-4) in whole or in part. With the December 1, 2010 rules change to Rule 56 of the Federal Rules of Civil Procedure, motions to strike submitted on summary judgment are no longer appropriate. Revised Rule 56(c)(2) provides, “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” The Advisory Committee Notes specify as follows:

Subdivision (c)(2) provides that a party may object that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. The objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. There is no need to make a separate motion to strike. If the case goes to trial, failure to challenge admissibility at the summary-judgment stage does not forfeit the right to challenge admissibility at trial.

Fed. R. Civ. P. 56, Adv. Comm. Notes, “Subdivision(c)” (2010 Amendments). As such, the Court construes the Defendants' motions as Objections, to be overruled or sustained, ...

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