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Collier v. Harland Clarke Corp.

United States District Court, N.D. Alabama, Southern Division

March 31, 2019

ROBERT COLLIER, JR., Plaintiff
v.
HARLAND CLARKE CORP., Defendants.

          MEMORANDUM OPINION

          MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE

         In this 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).[1] 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.

         I. Summary Judgment Standard

         “The 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)).

         “A 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.

         II. Factual Background

         Harland 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, tp. 19).

         In July 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).

         Toward 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. 33-34).

         For ten 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.

         Under 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 position.[2]

         Mr. 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. Moyer testified:

[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).

         Neither 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.

         The Key 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).[3] Mr. Collier developed a two-year plan which incorporated commercial print into the overall goals for the Forms Division.

         The 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).

         Mr. 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. 212-13).

         According 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 reduction:

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).

         Harland 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).

         Mr. 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 [20]12 until December of [20]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).

         In the 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).

         Mr. 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 seal).[4]

         Mr. 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).

         During 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).[5] 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. 87-88).

         During 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).

         Mr. 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).

         Regardless 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. 136-37).

         After 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).

         Ms. 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:

         You 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 ...

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