United States District Court, N.D. Alabama, Southern Division
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
employment action, plaintiff Robert Collier, Jr. contends
that his former employer, Harland Clarke Corp., terminated
his employment and retaliated against him because of his age
and disability in violation of the Age Discrimination in
Employment Act, 29 U.S.C.§ 621 et seq.; the
Alabama Age Discrimination in Employment Act, Ala. Code
§ 25-1-20; and the Americans With Disabilities Act, 42
U.S.C. § 12102. (Doc. 1, pp. 1, 8-13, ¶¶
33-58). Mr. Collier also asserts a state law claim for
invasion of privacy. (Doc. 1, pp. 15-19, ¶¶
67-70). Pursuant to Rule 56 of the Federal Rules
of Civil Procedure, Harland Clarke argues that Mr. Collier
has identified no genuine issue of material fact and that the
company is entitled to judgment as a matter of law as to all
of Mr. Collier's claims. (Doc. 47). Also before the Court
is Mr. Collier's motion to compel or, in the alternative,
for in camera review of documents that Harland
Clarke declined to produce in discovery based on the
company's assertion of attorney-client privilege and/or
the attorney work-product doctrine. (See Doc. 37;
Doc. 38). Harland Clarke has filed a motion to quash with
respect to subpoenas that Mr. Collier issued to Wells Fargo,
SunTrust Bank, Berkshire Bank, and David Newton. (Doc. 39).
The Court addresses all of these motions in this opinion.
Summary Judgment Standard
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). To demonstrate that there is a genuine
dispute as to a material fact that precludes summary
judgment, a party opposing a motion for summary judgment must
cite “to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
Fed.R.Civ.P. 56(c)(1)(A). “‘Genuine disputes [of
material fact] are those in which the evidence is such that a
reasonable jury could return a verdict for the non-movant.
For factual issues to be considered genuine, they must have a
real basis in the record.'” Evans v.
Books-A-Million, 762 F.3d 1288, 1294 (11th Cir. 2014)
(quoting Mize v. Jefferson City Bd. of Educ., 93
F.3d 739, 742 (11th Cir. 1996)).
litigant's self-serving statements based on personal
knowledge or observation can defeat summary judgment.”
United States v. Stein, 881 F.3d 853, 857 (11th Cir.
2018); see also Feliciano v. City of Miami Beach,
707 F.3d 1244, 1253 (11th Cir. 2013) (“To be sure,
Feliciano's sworn statements are self-serving, but that
alone does not permit us to disregard them at the summary
judgment stage.”). Even if a court doubts the veracity
of the evidence, a court cannot make credibility
determinations; that is the work of jurors.
Feliciano, 707 F.3d at 1252 (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). When
considering a motion for summary judgment, a district court
must view the evidence in the record in the light most
favorable to the non-moving party and draw reasonable
inferences in favor of the non-moving party. White v.
Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1191
(11th Cir. 2015). Accordingly, the Court presents the summary
judgment evidence in the light most favorable to Mr. Collier
and draws all inferences in his favor.
Clarke provides products and services to financial
institutions. The company has gone through a number of
changes in ownership over the years. In 1982, Interchecks, a
predecessor company of Harland Clarke, hired Mr. Collier.
(Doc. 46-1, p. 6, tpp. 17-18). Clarke American acquired
Interchecks and later merged with Harland Clarke. (Doc. 46-1,
pp. 6, 8, tpp. 17-18, 26). Mr. Collier remained with the
company through these transitions. In 2003, Mr. Collier left
Harland Clarke to work for a competitor. (Doc. 46-1, p. 6,
of 2004, Harland Clarke rehired Mr. Collier as the Director
of Partnership Development II-MICR (magnetic ink character
recognition) Express, in Harland Clarke's Forms Division.
(Doc. 46-1, pp. 8, 10, tpp. 26-28, 33). “Forms”
refers to paper products such as checks, ledgers, bank
receipts, and other types of forms used by banks and other
businesses. (Doc. 46-1, p. 10, tpp. 33-34; Doc. 46-11, p. 13,
tpp. 47-48). As Harland Clarke's Forms Director (his job
function; not his title (Doc. 46-8, p. 32)), Mr. Collier
coordinated and directed all sales activities for his
assigned sales region. (Doc. 46-1, p. 10, tp. 36).
the end of Mr. Collier's career with Harland Clarke, the
Forms Division began selling commercial print. (Doc. 46-1, p.
6, tp. 18). Commercial print includes high-gloss posters,
banners, 3D prints, tri-fold documents, and custom cut paper
products with artwork and text supplied by an advertising
agency or created by Harland Clarke's Graphic Design
Department. (Doc. 46-11, p. 53, tpp. 205-06). Mr. Collier was
part of the team that developed Harland Clarke's
commercial print product line called Print Solutions. (Doc.
46-11, p. 53, tpp. 207- 08). Six months before Mr.
Collier's termination, the Forms Division started
offering commercial print products. (Doc. 46-1, p. 6, tpp.
years, Mr. Collier worked without incident as Harland
Clarke's Forms Director. In 2014, Mr. Collier began
reporting to Steve Moyer, Senior Vice President of the
Community Markets Division. (Doc. 46-1, p. 12, tp. 43; Doc.
46-11, p. 3, tp. 7; Doc. 46-11, p. 12, tp. 42; Doc. 46-11, p.
45, tp. 175; Doc. 46-21, p. 3, ¶ 4). Mr. Moyer reported
to Rick Ebrey, President of Payments Division. (Doc. 46-11,
p. 3, tp. 7; Doc. 46-11, p. 7, tp. 21). Mr. Moyer spearheaded
a restructuring of the Forms Division.
Mr. Moyer's direction, in April of 2014, Harland Clarke
formed a new sales group called the Key Markets Group. The
group's target clients were large community banks and
credit unions. (Doc. 46-11, pp. 15-16, tpp. 56-58). Harland
Clarke created two director positions for the Key Markets
Group. (Doc. 46-11, p. 17, tp. 62). Harland Clarke hired
Brent Cox and Skip Thompson, directors from another Harland
Clarke division, to serve as the directors for the Key
Markets Group. (Doc. 46-11, pp. 16-17, tpp. 57-62). Mr.
Collier did not apply for either director
Moyer testified that his business strategy for growing
commercial print is captured in a PowerPoint. (Doc. 46-11, p.
57, tpp. 223-24; Doc. 46-11, p. 58, tpp. 228). The PowerPoint
is not in the record. Mr. Collier worked with Mr. Moyer and
Greg Gould to create the PowerPoint that described Print
Solutions, the name given to Harland Clarke's venture
into commercial print. (Doc. 46-11, p. 53, tp. 208). As Mr.
[The PowerPoint] would have been in collaboration with
Marketing, myself, Bob was in -- involved for sure. We had
some experience with commercial print as we looked at an
acquisition a few years prior. We used industry data research
through marketing, and of course Greg Gould would have been a
part of that.
(Doc. 46-11, p. 53, tp. 208). David Newton, an outside print
broker, assisted in “understanding how to bridge the
gap between the market and getting print to a vendor.”
(Doc. 46-11, p. 54, tpp. 209-10). Other participants included
a man from American Litho and possibly Deborah Corwin from
Harland Clarke's Marketing Department. (Doc. 46-11, p.
73, tp. 287).
Mr. Cox nor Mr. Thompson who Harland Clarke hired to lead the
Key Markets Group was part of the Print Solutions team. The
record does not indicate whether either director had prior
experience with commercial print products.
Markets Group rolled out Print Solutions as a new product for
Harland Clarke in May or June of 2014. (Doc. 46-11, p. 29,
tpp. 110-11). The Forms Division also began selling
commercial print that year. (Doc. 46-1, p. 6, tpp. 33-34).
Mr. Collier, as part of the Print Solutions team, had no
objection to offering commercial print products to customers
from the Forms Division. But Mr. Collier did raise questions
about his team's ability to use marketing credits when
selling commercial print. (Doc. 46-12, pp.
16-17). Mr. Collier developed a two-year plan
which incorporated commercial print into the overall goals
for the Forms Division.
Print Solutions team had a meeting in Birmingham in the fall
of 2014. (Doc. 46-11, p. 73, tp. 286). The meeting was
designed to provide “more education on commercial
print” for the members of the Print Solution team.
(Doc. 46-11, p. 73, tp. 286). Mr. Moyer recalled that during
this meeting Mr. Collier was using a “customized . . .
wooden cane[.]” (Doc. 46-11, p. 72, tp. 283).
Moyer decided to eliminate Mr. Collier's position after
the Print Solutions team meeting in Birmingham. (Doc. 46-11,
p. 73, tpp. 285-86); (Doc. 46-11, p. 54, tp. 211). Mr. Moyer
discussed the decision with Mr. Ebrey. (Doc. 46-11, pp.
65-66, tpp. 256-57); (Doc. 46-11, p. 7, tp. 21). In November
of 2014, with assistance from Sonia Ellison from Harland
Clarke's Human Resources Department, Mr. Moyer completed
a RIF Analysis Worksheet concerning Mr. Collier. (Doc. 46-11,
pp. 54-55, tpp. 212-13); (Doc. 46-8, p. 32). Mr. Moyer stated
that he provided most of the information on the worksheet.
(Doc. 46-11, pp. 54-55, tpp. 212-13). Mr. Moyer believed that
Ms. Ellison handled the typing. (Doc. 46-11, pp. 54-55, tpp.
to the worksheet, Mr. Collier had no EEOC claims and ten
years of service as the Forms Director/Director Sales
II-MICR. (Doc. 46-8, p. 32). In the “Special
Circumstances” section, Mr. Moyer identified three
factors supporting the RIF: Mr. Collier's “skill
and expertise is in the area of Forms and not Commercial
Print;” (Doc. 46-11; p. 54; tp. 212); (Doc. 46-8, p.
32); Mr. Collier “is the only person in the Director
Sales II and Director II-MICR position;” (Doc. 46-11,
pp. 54-55, tpp. 212-13); (Doc. 46-8, p. 32); and Mr. Collier
“[d]oes not have direct business relationships with
large community bank accounts/clients.” (Doc. 46-11, p.
55, tpp. 213); (Doc. 46-8, p. 32). Mr. Moyer offered the
following ostensible business justification for the
Harland Clarke's MICR Form business has been on a
continuous decline. Unfortunately, it is unlikely MICR Forms
will transform in to [sic] a revenue generating line of
business in the future for us. As a result of the decline in
FORMS' revenue, we have developed a business plan to
create a new growth division called Print Solutions. Print
Solutions will focus on commercial print which has [a] high
probability of creating new business growth and driving
revenue for Harland Clarke.
(Doc. 46-8, p. 32).
Clarke does not have a reduction in force policy. (Doc.
46-13, p. 27, tpp. 103-04). Harland Clarke labelled Mr.
Collier's termination as a “reduction in force,
” but it was a RIF of only one person. (Doc. 46-11, p.
18, tpp. 66-67; Doc. 46-11, p. 43, tp. 166).
Collier attributes the RIF to an event in the fall of 2014 at
which Mr. Moyer saw Mr. Collier using a cane. Mr. Collier
first used a cane in 2012 after he underwent back surgery.
(Doc. 46-1, p. 34, tpp. 129-130; Doc. 46-1, p. 33, tp. 133;
Doc. 46-1, p. 36, tp. 139). After the 2012 surgery, Mr.
Collier used the cane for a few months from “about
August of 12 until December of 12.” (Doc. 46-1,
p. 36, tp. 139). After a second surgery in March of 2014, he
began using the cane regularly. (Doc. 46-1, p. 36, tpp.
139-40). Mr. Collier also took three months of short-term
disability leave under Harland Clarke's disability plan.
(Doc. 46-1, p. 24, tp. 92).
weeks preceding the “reduction in force, ” Mr.
Moyer and several co-workers made remarks concerning Mr.
Collier's health. For example, •Mr. Moyer
occasionally asked Mr. Collier how he was feeling and/or how
his back was doing. (Doc. 46-1, p. 40, tpp. 156-57).
• In late 2014, Debra Corwin, Vice President of
Marketing who participated in the development of Print
Solutions, told Maria Robinson, an Account Executive, that
Harland Clarke needed to “get rid” of Mr.
Collier. (Doc. 46-1, p. 29, tpp. 110- 11). Mr. Collier
testified that Tom Jones told him about Ms. Corwin's
comments. (Doc. 46-1, p. 51, tp. 197). Mr. Jones denies that
he heard Ms. Corwin make this comment but states that he
learned of Ms. Corwin's comment from two sales team
members, Mandy Bennett and Tracy Harley, who overheard the
statement. (Doc. 46-19, p. 17, tp. 63).
• At a December 2014 conference in Puerto Rico, Mr.
Ebrey asked Mr. Collier how he was doing and told Mr. Collier
that “it looked like he was struggling to get
around.” (Doc. 46-1, p. 41, tp. 157).
• At the December 2014 conference, Dan Singleton,
Harland Clarke's President, said to Mr. Collier:
“Don't get up. I know you had back surgery.”
(Doc. 46-1, p. 41, tp. 158).
• At the December 2014 conference, Ms. Corwin told Mr.
Collier “I can barely hear you” and “it
looks like you're struggling to get around.” (Doc.
46-1, pp. 29, 41, tpp. 110, 159).
• At the December 2014 conference, Sonia Ellison, Senior
Human Resources Generalist, asked Mr. Collier: “Do you
wish you had taken the extra 30 days off?” (Doc. 46-1,
p. 41, tp. 160).
• At various times, other coworkers, clients, or third
parties asked Mr. Collier how he was feeling or how his back
was doing. (See Doc. 46-1, pp. 42-43, tpp. 161-166).
Moyer testified that he made the decision to eliminate Mr.
Collier's position because sales in the Forms Division
were declining. (Doc. 46-11, p. 13, tp. 47; Doc. 46-11, p.
26, tp. 98; Doc. 46-11, p. 44-45, tpp. 170-73; Doc. 46-11, p.
56, tpp. 219-22). Mr. Moyer attributed the decline to the
banking industry's shift from paper products (such as
cash tickets, general ledger tickets, deposit slips, and
teller receipts) to digital transactions. (Doc. 46-11, p. 26,
tpp. 99-100; Doc. 46-1, p. 10, tp. 33). There is data in the
record that suggests that the financial outlook for forms was
not as dire as Mr. Moyer contends. (Doc. 46-11, p.45, tpp.
173-74); (Doc. 49-23, p. 2 - filed under seal); see
also (Doc. 49-22, p.11 and Doc. 49-22, p. 15 - filed
under seal) (indicating that between 2013 and 2014, total
revenue within the Forms Division increased by 37% from $35,
433, 520 to $57, 501, 786); (Doc. 49-22, p. 15 - filed under
Moyer originally planned to discuss the RIF with Mr. Collier
on December 19, 2014; Mr. Moyer anticipated that Mr.
Collier's termination would be effective on December 31,
2014. (Doc. 46-11, p. 75, tp. 296). The termination date was
delayed ostensibly because of the holidays but mostly because
in December 2014, Harland Clarke suddenly had to terminate
one of the two directors in the Key Markets Group, and Mr.
Moyer was planning to move the employees who reported to Mr.
Moyer to the Key Markets Group. (Doc. 46-11, p. 18, tpp.
65-68; Doc. 46-11, pp. 75-78).
a conference call on January 9, 2015, Mr. Moyer and Ms.
Ellison told Mr. Collier that his position was being
eliminated, effective January 30, 2015. (Doc. 46-1, p. 23,
tpp. 85-86). It was the same day that Mr. Collier and
two other employees with the Forms Division landed a
five-year forms contract with SunTrust Bank. (Doc. 46-12, pp.
19-20). At the time, Mr. Collier was 61 years old.
(See Doc. 1-1, p. 3). Mr. Collier asked Mr. Moyer if
he could “drop into a sales position and keep selling
forms and commercial print[.]” (Doc. 46-1, p. 23, tp.
88). Mr. Moyer told Mr. Collier that “there wasn't
a position available.” (Doc. 46-1, p. 23, tp. 88). Ms.
Ellison told Mr. Collier that he would be considered for any
open position for which he applied. (Doc. 46-1, p. 23, tpp.
the January 9, 2015 call, neither Mr. Moyer nor Ms. Ellison
told Mr. Collier that one of the director positions in the
Key Markets Group was available. Mr. Moyer testified at one
point that Harland Clarke posted the vacancy before he
notified Mr. Collier of the reduction in force. (Doc. 46-11,
p. 18, tpp. 67-68). Mr. Moyer also testified that when he and
Ms. Ellison had their conversation with Mr. Collier, Harland
Clarke had not advertised the vacant director position. (Doc.
46-11, p. 70, tp. 273-74).
Moyer testified that at some point in early January 2015, he
approved the job posting for the Key Markets Group director
vacancy, and Harland Clarke advertised the vacancy. (Doc.
46-11, p. 70, tp. 274; Doc. 46-11, p. 18, tp. 47). Gregory
Gould testified that Harland Clarke posted the open position
internally and externally in December 2014. (Doc. 46-23, p.
2, ¶¶ 2, 4). Mr. Gould interviewed the three
candidates who applied and recommended to Mr. Moyer that
Harland Clarke hire Larry Feinberg. (Doc. 46-23, p. 3, ¶
5). Mr. Feinberg filled the vacancy, but his hire date does
not appear in the record. (Doc. 46-11, p. 21, tp. 80; Doc.
46-11, p. 24, tp. 90; Doc. 46-13, p. 58, tp. 227).
of when Harland Clarke hired Mr. Feinberg, the company had a
vacant director position available in the Key Markets Group
when Mr. Moyer notified Mr. Collier of the reduction in
force. (Doc. 46-11, p. 18, tpp. 67-68). Mr. Moyer testified
that he “had no reason not to tell  or tell”
Mr. Collier about the vacant director position because
“[w]e use the posting system as the communication
channel for those positions.” (Doc. 46-11, p. 70, tp.
275). Although Harland Clarke contends that it posted the
director vacancy, the company has not been able to provide
evidence of the posting or the starting date for Mr.
Feinberg. (Doc. 54, pp. 9-10, ¶ 13). Harland Clarke also
has not identified a witness who did the posting. Witnesses
who testified about the posting have indicated that someone
else was responsible or that they do not know if the posting
occurred. (See Doc. 46-11, p. 18, tp. 68; Doc.
46-13, p. 58, tpp. 226-27; Doc. 46-7, pp. 35-36, tpp.
receiving notice of his termination, Mr. Collier contacted
Unum, Harland Clarke's disability plan administrator, to
pursue a claim for short-term disability benefits.
(See Doc. 46-10, p. 5). Mr. Collier asked Ms.
Ellison whether he qualified for short or long term
disability through Harland Clarke's disability plan.
(Doc. 46-1, pp. 24-25, tpp. 91-93). Initially, Ms. Ellison
told Mr. Collier that he would not be eligible for disability
benefits because his position was being eliminated, and he
would not have a job to return to following disability leave.
(Doc. 46-1, p. 25, tp. 94). Ms. Ellison testified that she
later discussed the issue with Ms. Flanders and learned that
Mr. Collier was in fact eligible to apply for disability
benefits. Ms. Ellison relayed this information to Mr. Collier
in a January 30, 2015 email. (Doc. 46-7, pp. 40, 66, tpp.
153-55, 259; Doc. 46-4, pp. 79-80).
Ellison also mailed a Benefits Summary Sheet to Mr. Collier.
(Doc. 46-8, p. 45; Doc. 46-1, p. 24, tp. 89). Ms. Ellison
generated the sheet on January 10, 2015. (Doc. 46-8, p. 45).
Ms. Ellison understood that the severance calculation on the
summary sheet came from a spreadsheet generated by the Human
Resources Department. (Doc. 46-7, p. 53, tp. 207). Part of
the sheet states:
will receive the following compensation and benefits on your
final paycheck regardless of whether you sign the
Company's standard separation agreement:
• You will receive 26 weeks of your
severance pay ($60, 823.18) less governmental withholdings
and authorized deductions will be paid on the Company's
next regular pay date after you ...