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Gibbons v. CVS Health Corp.

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

August 26, 2019

L. DON GIBBONS, Plaintiff,
CVS HEALTH CORPORATION, et al., Defendants.



         Before the court is Defendants' Motion for Summary Judgment. Doc. 68. Defendants CVS Health Corporation; Alabama CVS Pharmacy, LLC[1]; and Mike Dramer seek dismissal of Plaintiff L. Don Gibbons' claims arising from his alleged discriminatory termination. Doc. 69. This matter has been fully briefed, oral argument has been heard, and the court has considered the evidence and arguments set forth by all parties. The parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c).


         Summary judgment is appropriate “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). “The purpose of summary judgement is to separate real, genuine issues from those which are formal or pretended.” Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is genuine only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         The moving party “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine [dispute] of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). In responding to a properly supported motion for summary judgment, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material fact.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Indeed, the nonmovant must “go beyond the pleadings” and submit admissible evidence demonstrating “specific facts showing that there is a genuine [dispute] for trial.” Celotex, 477 U.S. at 324 (internal quotation marks omitted). If the evidence is “merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249 (citations omitted).

         When a district court considers a motion for summary judgment, it “must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party, and must resolve all reasonable doubts about the facts in favor of the nonmovant.” Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008) (citation and internal quotation marks omitted). The court's role is not to “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. “If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, then the court should not grant summary judgment.” Allen v. Bd. of Pub. Ed. for Bibb Cnty., 495 F.3d 1306, 1315 (11th Cir. 2007) (citation omitted). Importantly, if the nonmovant “fails to adduce evidence which would be sufficient . . . to support a jury finding for [the nonmovant], summary judgment may be granted.” Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1370 (11th Cir. 1997) (citation omitted).


         Resolving all factual inferences in favor of Gibbons, the nonmovant, the facts are as follows.

         Gibbons was more than 40 years old when his employment with CVS ended on October 22, 2015. Docs. 1-1 at 2 & 67-4 at 6. Starting in 1990, he had worked as an assistant manager at Big B Drugs, which then merged with CVS. Doc. 67-1 at 6. Gibbons remained with CVS until 2005, when he left briefly for other employment, but he returned to the drugstore chain in 2007 as a store manager. Doc. 67-4 at 9. In 2013, Gibbons asked for a transfer to a store in northern Alabama. Doc. 67-1 at 9. In 2014, CVS transferred Gibbons to a store in Warrior, Alabama, which is located within CVS's District 6. Docs. 67-1 at 9 & 67-4 at 9. Defendant Mike Dramer is the district manager for District 6. Docs. 67-3 at 5 & 67-6 at 21.

         While Gibbons managed the store in Warrior, Dramer reported that Gibbons “took a struggling [store] and brought it around to a great store.” Doc. 67-4 at 3. Gibbons knew that CVS would be opening a new store in Cullman, Alabama, also located within Dramer's district, and asked to be considered for the position of store manager in Cullman. Doc. 67-1 at 9. CVS hired him as the manager and gave him responsibility for hiring and training new staff at the Cullman store. Doc. 67-1 at 15.

         Stacy Nunnelley worked for CVS as a cashier off and on from December 2003 through March 2005. Doc. 67-6 at 12-13. She later returned to CVS and began to train as a store manager. Doc. 67-6 at 23. Nunnelley was promoted to assistant store manager for the Cullman store in 2014. Doc. 67-7 at 2. During the time relevant to this action, Nunnelley was in her 20s.

         Both Nunnelley and Gibbons were scheduled to work 45 hours per week at the Cullman CVS store. Doc. 67-11 at 6. Dramer sent an internal memo on October 7, 2015, telling managers that “leaving early or coming in late on occasion” was acceptable, but that doing so regularly was not. Doc. 67-11 at 6. “Regularly” was defined as more than once per week. Doc. 67-11. The memo further stated that failing to work the “45-hour base” would “place unnecessary strain” on other employees and the store. Doc. 67-11.

         As an hourly employee, Nunnelley was required to clock in and clock out. Doc. 67-1 at 23. CVS did not require store managers, like Gibbons, to clock in and clock out. Doc. 67-1 at 23. Instead, as salaried employees, store managers only had to let the district manager know if they were coming in late or leaving early. Doc. 67-11 at 6. Gibbons testified that “[t]here was no set time that I worked, ” and at times he worked 60 to 80 hours per week. Doc. 67-1 at 32.

         In September 2015, Nunnelley had emergency gallbladder surgery and took medical leave for three weeks. Doc. 67-1 at 32; Doc. 67-6 at 33 & 82. She returned to work on September 28, 2015. Doc. 67-6 at 33. On the day Nunnelley returned to work, Gibbons saw her talking on her cellular phone while checking out customers at the register. Doc. 67-1 at 34. Gibbons had received complaints about Nunnelley's excessive cell phone usage from other CVS associates, so Gibbons counseled Nunnelley about her use of the cell phone while at work. Docs. 67-1 at 34 & 67-6 at 59. During the meeting, Nunnelly became upset. Doc. 67-6 at 83. She pulled out a piece of paper from the printer, wrote a letter of resignation, [2] and then left Gibbons' office. Doc. 67-6 at 87. Gibbons watched on the store's video cameras as Nunnelley walked to the front of the store, placed her keys on the counter, and walked out.[3]Doc. 67-1 at 42.

         Gibbons and Dramer exchanged text messages about this encounter, and Dramer told Gibbons that he would not accept Nunnelley's resignation until he had a chance to address it. Doc. 67-1 at 47. Gibbons said he had not accepted the resignation letter either. Doc. 67-5 at 54. Dramer told Nunnelley to return to the store the next day to work her shift. Doc. 67-5 at 5. Nunnelley continued to work at the Cullman store. Doc. 67-1 at 47.

         About the same time, Nunnelly told Dramer that she had received complaints that Gibbons had not been working his posted shifts and had been leaving inexperienced colleagues alone in the store in violation of CVS policy. Doc. 67-6 at 65-67. In connection with those complaints, Dramer conducted interviews of some of the store's employees, including Gibbons. Doc. 67-1 at 50. Dramer also exchanged text messages with Nunnelly, asking when Gibbons got to the store and what time he left on certain days. Doc. 67-5 at 8-21. On October 21, 2015, Dramer called Gibbons and told him to come to the regional office the next day for a meeting. Doc. 67-1 at 53. On October 22, Gibbons drove to CVS's office in Bessemer, where he met with Dramer and Jeff Hardage, [4] a human resources officer. Doc. 67-1 at 54. Dramer asked Gibbons to tell them when he had worked at the store on specific days, and he reminded Gibbons not to lie. Doc. 67-1 at 54. Gibbons could not recall the times that he arrived or left the store on the days in question. Doc. 67-1 at 54. The conversation became heated, and Dramer told Gibbons to leave his office. Doc. 67-1 at 55. At that point, Gibbons “got up” and “laid [his] keys on the table.” Doc. 67- 1 at 55. Dramer asked him, “What is this?” Gibbons replied, “You asked me to leave . . . your office, and what does it look like?” Doc. 67-1 at 55.

         Gibbons then left the regional office. Doc. 67-1 at 55. He planned to drive back to the Cullman store to look up phone numbers and email addresses in order to take his concerns “up the chain of command” at CVS. Doc. 67-1 at 58. While driving, Gibbons got a text from Mike Moss, the manager of the Fultondale, Alabama CVS store, that said, “Sorry to hear it?” Doc. 67-1 at 60. Gibbons texted back, “What do you mean?” Doc. 67-1 at 60. In a phone call shortly after the texts, Moss told Gibbons that Dramer held a conference call that afternoon and told all of the store managers in District 6 that Gibbons had “left the company.” Doc. 67-1 at 60. Gibbons told Moss that he had not resigned.[5] Doc. 67-1 at 60. After the call with Moss, he returned home instead of going to the Cullman store. Doc. 67-1 at 60. Based on this information from Moss, Gibbons believed that he had been “told [he] wasn't working for the company anymore.” Doc. 67-1 at 60.

         On October 23, the day after the meeting, Gibbons called the CVS human resources department to inquire about his status, and he was told that he was still employed with CVS. Doc. 67-1 at 60. He then tried to call Hardage, but Hardage was out of town. Doc. 67-1 at 61. Gibbons sent Hardage an email, and Hardage replied on the following Monday by referring Gibbons to another human resources employee.[6] Doc. 67-1 at 120. Gibbons contacted the human resources department again that Monday and now was told that he had been terminated as of October 23. Doc. 67-1 at 61. CVS personnel records state that Gibbons was “terminated.” Doc. 67-1 at 61. Nunnelley replaced him as the manager of the Cullman store. Doc. 67-3 at 8.

         Beginning on October 23, 2015, Gibbons made 15 complaints to a company “ethics line.” Doc. 67-1 at 124-50. Gibbons' first complaint, on October 23, was about the meeting with Dramer. Doc. 67-1 at 124. He described Dramer's behavior as “disrespectful and rude, ” and elaborated that it “[s]eems like Mike is seeking revenge for something. Unprofessional and not to CVS standards of leadership.” Doc. 67-1 at 124. The second complaint, on October 24, reported that Nunnelley and another employee had engaged in “coupon fraud” and other misconduct. Doc. 67-1 at 128. On October 28, Gibbons complained about a disparity between his pay and Nunnelley's pay. Doc. 67-1 at 130.

         On December 6, 2016, Gibbons filed the complaint that commenced this action. Doc. 1. He asserts the following claims: (1) age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (“ADEA”), and the Alabama Age Discrimination in Employment Act, Alabama Code § 25-1-20, et seq. (“AADEA”); (2) retaliation in violation of the ADEA; and state-law claims of (3) libel and slander; (4) defamation; (5) negligent and wanton hiring, training, supervision, and retention; (6) tortious interference with contractual or business relations; (7) invasion of privacy; and (8) intentional infliction of emotional distress. Essentially, Gibbons asserts that CVS treated him unfairly by firing him and replacing him with Nunnelley, a younger employee, and that CVS treated him differently than Nunnelley when she indicated her desire to resign. Defendants assert that Gibbons' complaints of unfair treatment on the basis of age are not supported by the evidence and that his retaliation claim is not viable because he did not engage in any protected activity. As to the state-law claims, Gibbons concedes that summary judgment is due to be granted as to the claims of slander, defamation, tortious interference, and invasion of privacy, but contests summary judgment as to the state-law claims of negligent or wanton hiring, training, supervision, or retention and intentional infliction of emotional distress. Doc. 79 at 34.


         A. Age Discrimination

         Gibbons bases his first claim on the federal prohibition against age discrimination in employment (the ADEA) and the Alabama analogue (the AADEA).[7] These statutes prohibit an employer from discharging or discriminating against an employee because of his age and apply to any employee who is at least 40 years old. 29 U.S.C. § 623(a)(1). Under either statute, Gibbons bears the burden of proving that his age was the “but-for” cause of any adverse employment action. Gross, 557 U.S. at 178.

         To survive a motion for summary judgment, Gibbons first must establish a prima facie case by showing that he was (1) a member of the protected age group, (2) subjected to an adverse employment action, (3) replaced by a substantially younger person, and (4) qualified to do the job from which he was discharged. Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012). An employee who establishes a prima facie case creates a “presumption of unlawful discrimination.” Liebman v. Metro. Life Ins. Co., 808 F.3d 1294, 1298 (11th Cir. 2016).

         When an ADEA claim is based on circumstantial evidence, as in this case, the court applies the burden-shifting framework established in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). See Liebman, 808 F.3d at 1298. Therefore, once the plaintiff has established a prima facie case of discrimination, “the burden shifts to the employer to rebut the presumption of discrimination with evidence of a legitimate, nondiscriminatory reason for the adverse employment action.” Kragor, 702 F.3d at 1308. If the employer rebuts the presumption, the plaintiff then has the burden of demonstrating that the reason given by the employer is a pretext for discrimination by showing “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” that a reasonable juror could find the reason to be “unworthy of credence.” Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997).

         1. Prima ...

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