United States District Court, S.D. Alabama, Northern Division
PHYLLIS D. GOSA, Plaintiff,
WAL-MART STORES EAST, LP, Defendant.
MEMORANDUM AND ORDER
V. S. Granade, SENIOR UNITED STATES DISTRICT JUDGE
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.
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).
Wal-Mart's Pharmacy Operations
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.
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).
Gosa's Employment at Wal-Mart
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).
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).
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).
Gosa's Coaching Reports
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.
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,
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
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.
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,  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. Id.
Gosa's Performance Evaluations
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,  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.
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).
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.
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).
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
Gosa's Complaint to the Alabama State Board of
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.
Summary Judgment Standard
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).
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).
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).
Wal-Mart's Motion to Strike
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, ...