United States District Court, N.D. Alabama, Southern Division
L. DON GIBBONS, Plaintiff,
CVS HEALTH CORPORATION, et al., Defendants.
MEMORANDUM OPINION AND ORDER
M. BORDEN UNITED STATES MAGISTRATE JUDGE
the court is Defendants' Motion for Summary Judgment.
Doc. 68. Defendants CVS Health Corporation; Alabama CVS
Pharmacy, LLC; 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).
STANDARD OF REVIEW
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
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
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).
all factual inferences in favor of Gibbons, the nonmovant,
the facts are as follows.
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.
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.
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.
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.
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.
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,  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.Doc. 67-1 at 42.
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
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,  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.
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. 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.
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. 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
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.
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.
bases his first claim on the federal prohibition against age
discrimination in employment (the ADEA) and the Alabama
analogue (the AADEA). 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.
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).
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).