Adamson v. Walgreens Co. , 750 F.3d 73 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1511
ROBERT ADAMSON,
Plaintiff, Appellant,
v.
WALGREENS CO.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Howard, Stahl, and Lipez,
Circuit Judges.
Paul J. Caruso, with whom John Martin and Mann Martin LLP were
on brief, for appellant.
Gregory A. Manousos, with whom Laura E. Ogden and Morgan,
Brown & Joy, LLP were on brief, for appellee.
April 29, 2014
STAHL, Circuit Judge. Plaintiff-Appellant Robert Adamson
was terminated from his position as an assistant manager for
Defendant-Appellee the Walgreen Co. ("Walgreens") after two
instances of failing to provide what Walgreens considered adequate
customer service. Adamson appeals from the district court's grant
of summary judgment to Walgreens on his state and federal age
discrimination claims. We affirm.
I. Facts & Background
Because this appeal is from the entry of summary judgment
in favor of Walgreens, we recite the facts in the light most
favorable to Adamson and draw all reasonably supported inferences
in his favor. Faiola v. APCO Graphics, Inc., 629 F.3d 43, 45 (1st
Cir. 2010). However, "evidence from the moving party as to
specific facts can be accepted by the court where no contrary
evidence is tendered by the party opposing summary judgment."
Statchen v. Palmer, 623 F.3d 15, 18 (1st Cir. 2010) (emphasis
omitted).
Adamson began his tenure with Walgreens in September
2007, when he was hired to work as an assistant manager in one of
its Florida stores. Among other duties, assistant managers are
responsible for the "protection of store assets" and providing
"proper service to all customers." Adamson was fifty-five years
old when hired. Just over a year later, he requested and received
a transfer to Massachusetts, working first in Chicopee and later in
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Worcester. In October 2010, he was transferred to the Walgreens
store in Ware, Massachusetts, where his supervisor was Stephen
Benoit. Adamson was fifty-eight years old at that time.
On October 21, 2010, a customer entered the Ware store
and attempted to make a return. The cashier called for managerial
assistance via intercom, but Adamson, who was the manager on duty,
did not respond. At that time, he was taking in a delivery in the
stockroom at the back of the store. The cashier sought Adamson out
in the stockroom and asked for his assistance with the return.
Adamson asked the cashier to tell the customer that he would take
the return later.1 By the time Adamson left the stockroom to
process the return, the customer had already left the store.
Benoit testified during deposition that this incident prompted a
complaint from the customer, which the cashier subsequently relayed
to Benoit.
Before determining whether or how to discipline Adamson
for this incident, Benoit contacted Peter Serafin. Serafin is a
Walgreens Loss Prevention Supervisor, and Benoit sought his input
due to his knowledge of disciplinary issues involving other
Walgreens employees in the region. After consulting with Serafin,
Benoit issued Adamson a "Final Written Warning," listing as the
basis for the discipline "Poor Customer Service/refused customer
1
There is a dispute as to exactly what Adamson instructed the
cashier, but all parties agree that he asked that the customer be
told that he could not process the return immediately.
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return." When given the option to offer a written response,
Adamson acknowledged that he had made a bad judgment call and
stated that he would "continue to maintain [his] high standards of
customer service throughout while exercising better judgement
[sic]."
On February 5, 2011, Adamson opened the Ware store alone
because the other employee scheduled that morning had not arrived.
When he could not find the employee's telephone number at the front
of the store, he went to the back office to look for the employee
telephone list. He did not locate the list, and, still in the back
office, made two telephone calls to other colleagues in an attempt
to determine the missing employee's number. He eventually obtained
the number and called the clerk from a cosmetics counter in the
front of the store. Adamson admits that he was in the back office
with the door closed for approximately two to three minutes.
That same day, a customer called a Walgreens customer
hotline to complain that she had been in the Ware store that
morning and was unable to make a purchase because the register was
unattended. A written record of the call indicates that she
reported that she called out for an employee but nobody came and
that she waited at the register for fifteen minutes. However, a
surveillance video shows that she was actually in the store for
just over two minutes and waited at the register for approximately
twenty seconds. The video shows the customer placing items at the
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register, looking up and down the aisles, and then leaving without
making a purchase. Adamson does not appear in the video -- which
covers the front of the store -- for a stretch of approximately
twelve minutes, eventually appearing about thirty seconds after the
customer left. Adamson admits that the video does not show him for
a twelve-minute period, but states that, aside from the two to
three minutes he was in the back office, he was working in aisles
in the back part of the store. He states that he was in the
aisles, and not in the back office, at the time that the video
shows the complainant in the store, but says he never saw the
complainant or heard anyone calling out for an employee.
The written record of the complaint was passed along to
Benoit for investigation. A Walgreens policy required him to
follow up with the complainant within two days. Benoit's attempts
to contact her in that time frame were unsuccessful, so he
submitted information to Walgreens indicating that he had not
contacted her. In his deposition, Benoit testified that he was
later able to reach the complainant, that they discussed the
February 5 incident, and that she indicated that she was not
seeking a monetary settlement and simply wanted to advise the
company of what had happened. He also testified that he contacted
Serafin and Paul Holstein (then forty-six), the district manager,
for "fairness and consistency" purposes and to discuss their
interpretation of Walgreens' policies, procedures, and guidelines.
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Benoit also viewed the video footage from that morning, although
the parties dispute when he did so.
On February 10, Walgreens terminated Adamson's
employment. The termination notice states in part: "In reviewing
the video, [c]onfirmed that the main [cashier] was not present and
you were not present as well." It lists "Poor Customer Service" as
the basis of the discipline, noting that Adamson "[s]hould have
managed the store from the front entrance [until] support
arrived. . . . Mr. Adamson fail[ed] to do so and left the front
store[,] opening it up to possible theft and poor customer
service."
After Adamson was terminated, an existing employee, then
fifty years old, was transferred into his position. A few weeks
later, this employee suffered an on-the-job injury and began a
leave of absence, and another existing employee, then thirty-seven
years old, was transferred into the position.
Adamson filed suit in federal court, alleging that he was
terminated because of his age in violation of both the Age
Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621–634,
and Massachusetts General Laws chapter 151B, § 4(1B). The district
court granted summary judgment in favor of Walgreens. Adamson
appeals.
-6-
II. Analysis
We review a grant of summary judgment de novo, reversing
the district court "only if, after reviewing the facts and making
all inferences in favor of the non-moving party . . . , the
evidence on record is sufficiently open-ended to permit a rational
factfinder to resolve the issue in favor of either side." Prescott
v. Higgins, 538 F.3d 32, 39–40 (1st Cir. 2008) (internal quotation
marks omitted). We draw all reasonable inferences in Adamson's
favor, but we are "not obliged to accept as true or to deem as a
disputed material fact, each and every unsupported, subjective,
conclusory, or imaginative statement made to the [c]ourt by a
party." Torrech-Hernández v. Gen. Electric Co., 519 F.3d 41, 47
(1st Cir. 2008).
The ADEA makes it unlawful for an employer to discharge
an employee because of that employee's age. 29 U.S.C. § 623(a)(1).
The employee bears the burden of proving that age was the but-for
cause of his termination. Gross v. FBL Fin. Servs., Inc., 557 U.S.
167, 176 (2009). "Where, as here, the employee lacks direct
evidence, we utilize the burden-shifting framework developed by the
Supreme Court to facilitate the process of proving discrimination."
Bonefont-Igaravidez v. Int'l Shipping Corp., 659 F.3d 120, 123 (1st
Cir. 2011) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802–05 (1973)).
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The first step of this framework requires the employee to
establish his prima facie case by producing evidence that shows:
"(1) that he was at least forty years old when he was fired; (2)
that his job performance met the employer's legitimate
expectations; (3) that he suffered an adverse employment action
such as a firing; and (4) that the employer filled the position,
thereby showing a continuing need for the services that he had been
rendering." Meléndez v. Autogermana, Inc., 622 F.3d 46, 50 (1st
Cir. 2010). Doing so gives rise to a rebuttable presumption of
discrimination and shifts the burden of production -- but not
persuasion -- "to the employer to articulate a legitimate,
non-discriminatory reason for its decisions." Vélez v. Thermo King
de P.R., Inc., 585 F.3d 441, 447 (1st Cir. 2009) (internal
quotation marks omitted). If the employer meets this burden, "the
focus shifts back to the plaintiff, who must then show, by a
preponderance of the evidence, that the employer's articulated
reason for the adverse employment action is pretextual and that the
true reason for the adverse action is discriminatory." Gómez-
González v. Rural Opportunities, Inc., 626 F.3d 654, 662 (1st Cir.
2010) (internal quotation mark omitted). At the summary judgment
stage, the plaintiff need not prove his case, but must proffer
sufficient evidence to raise a genuine issue of material fact as to
whether he was fired because of his age. See Domínguez-Cruz
v. Suttle Caribe, Inc., 202 F.3d 424, 433 (1st Cir. 2000).
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After noting that the parties agreed that Adamson had
made out the first, third, and fourth factors of his prima facie
case, the district court assumed that Adamson had made out the
second, and we follow suit. See Gómez-González, 626 F.3d at 662
(finding it "expeditious and appropriate" to assume prima facie
case was made where primary focus of dispute was whether proffered
reasons for termination were pretextual). We also agree with the
district court that Walgreens articulated a legitimate, non-
discriminatory reason for terminating Adamson; namely, the two
incidents of what it perceived as inadequate customer service. The
parties do not appear to dispute either of these points on appeal.
Instead, the parties focus on the final stage of the
burden-shifting analysis: whether Adamson presented sufficient
evidence to create a genuine issue of material fact as to whether
the proffered reason for his termination was pretextual and that
the "the pretextual reason[] [was] 'intended to cover up the
employer's real motive: age discrimination.'" Acevedo-Parrilla v.
Novartis Ex-Lax, Inc., 696 F.3d 128, 143 (1st Cir. 2012) (quoting
Mesnick v. Gen. Electric Co., 950 F.2d 816, 824 (1st Cir. 1991)).
"Pretext can be shown by such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer's
proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them unworthy of credence and
hence infer that the employer did not act for the asserted
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non-discriminatory reasons." Gómez-González, 626 F.3d at 662–63
(internal quotation marks omitted).
Before the district court, Adamson advanced four claims
in attempting to meet his burden of showing both pretext and
discriminatory intent: (1) the reason proffered for his termination
was false; (2) Walgreens violated company policies to facilitate
his termination; (3) younger peers were treated better than he was
in terms of scheduling and responsibilities; and (4) younger peers
were disciplined less harshly for more severe behavior. The
district court held that these claims, to the extent they found any
evidentiary support in the record, were insufficient to create a
genuine issue of material fact. Adamson argues that, in reaching
this conclusion, the district court impermissibly resolved disputed
facts, a task properly left to the fact-finder.
Adamson first argues that the district court
impermissibly resolved disputed issues as to Benoit's credibility
when rejecting Adamson's claim that the reason proffered for his
termination was false. In essence, Adamson suggests that there is
a genuine issue as to whether Benoit himself believed that the
reason given for his termination was actually true. "In assessing
pretext, a court's 'focus must be on the perception of the
decisionmaker,' that is, whether the employer believed its stated
reason to be credible." Mesnick, 950 F.2d at 824 (quoting Gray v.
New Eng. Tel. & Tel. Co., 792 F.2d 251, 256 (1st Cir. 1986)).
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Adamson's argument centers on discrepancies regarding how
long the February 5 complainant waited at the register. The
written record of the complaint states that the complainant
reported having waited fifteen minutes at the counter, while the
video shows that she was in the store for just over two minutes and
waited at the register for approximately twenty seconds. In his
deposition, Benoit stated that his investigation showed that the
complainant was in the store for fifteen minutes but that he could
not remember how long she was at the register.2 After conferring
with counsel, he later said that he did not know how long she was
in the store, and that it may have been only five minutes.
As the district court noted, it would not be surprising
if Benoit misremembered events that had happened more than two
years earlier and recited the timing reported by the complainant
rather than the correct timing as shown by the video. Regardless,
the district court did not determine whether Benoit was credible
regarding the duration of the complainant's wait; it simply (and
correctly) noted that the undisputed facts showed that Adamson left
the register unattended long enough for a customer to be unable to
make a purchase. There is no evidence to suggest that the length
of time she waited played any role in the decision to terminate
2
He first stated that her report that she was at the register
for fifteen minutes was "[a]ccurate." However, in response to the
next question ("She was at the register for 15 minutes?"), he
clarified that she was in the store for fifteen minutes.
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him. Adamson states that Benoit "reported to his superiors that he
reviewed [the] video and [the] customer was at the counter for
fifteen minutes." He points to no evidentiary support for this
claim, and we have found none. And, contrary to Adamson's
assertion on appeal, the termination notice does not even mention
the duration of the complainant's wait, let alone indicate that the
duration was relevant to Walgreens' ultimate decision.3 Because
nothing in the record suggests that the length of the complainant's
wait was material, the district court did not have occasion to, and
did not, render any determination as to Benoit's credibility on
this issue.4 See Bonefont-Igaravidez, 659 F.3d at 124–25 ("Even
3
The notice states, in part, that the "[c]ustomer informed
the company that the front store had no employees working. Due to
this, she was unable to make a purchase."
4
Adamson also asserts that Benoit "admitted to lying . . .
about the Adamson incident in order to facilitate the firing of Mr.
Adamson" and "admitted to . . . falsifying documents." As
Walgreens has pointed out both before the district court and here,
these assertions misconstrue Benoit's deposition testimony. As
stated on the internal "Issue Communication Form," Benoit was
required to resolve the complaint within two business days. He
testified that his attempts to contact the complainant within that
time period were unsuccessful, so he made a notation on the form
that the "contact attempt failed." When asked why he had made that
notation, he repeated the two-day requirement and stated that he
"didn't want to lie and say that I contacted the customer when I
really didn't at that time." He stated that he was eventually able
to reach the complainant, but did not go back and update the form.
Benoit testified that his notation was truthful at the time made,
and Adamson presents no argument or evidence that Benoit was
required to subsequently update the form after the two-day window
had passed. We do not understand how this testimony could lend
credence to Adamson's assertion that Benoit admitted that he had
lied or falsified documents.
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assuming, arguendo, that the inconsistencies identified by [the
plaintiff] find support in the record, they are still insufficient
to demonstrate pretext absent some cognizable nexus to [the
defendant's] offered basis for termination. To impugn the veracity
of a tangential aspect of [the defendant's] story is not enough.")
(footnote omitted). Adamson has not raised any genuine issue as to
whether Walgreens believed the truth of its stated reason for
terminating him.
Adamson next claims that the district court improperly
resolved disputed issues as to Walgreens' violations of its
disciplinary policy.5 It is true that "pretext can be demonstrated
through a showing that an employer has deviated inexplicably from
one of its standard business practices," Acevedo-Parrilla, 696 F.3d
at 142 (internal quotation marks omitted), but Adamson has not made
that showing here. He recites some unexceptional passages from
5
In fact, the district court did not resolve any factual
disputes as to whether Walgreens followed its policies, finding the
entire subject to fall within the coverage of the business judgment
rule. See Adamson v. Walgreens Co., No. 12-30068-RGS, 2013 WL
1456315, at *5 (D. Mass. Apr. 10, 2013). Some of Adamson's
arguments are requests that "the court . . . second-guess
Walgreens' decision to fire [him] for two instances of poor
customer service," id., an endeavor, as the district court properly
noted, that is not the province of the court, see Mesnick, 950 F.2d
at 825 ("Courts may not sit as super personnel departments,
assessing the merits -- or even the rationality -- of employers'
nondiscriminatory business decisions."). However, we do not
believe that all of his arguments can be so characterized. The rule
that deviations from policy can be evidence of pretext would be
meaningless if such deviations were automatically deemed to be
business judgments immune from the court's scrutiny.
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Walgreens' constructive discipline policy -- rules should be
clearly communicated to employees; employees cannot be expected to
comply with rules that have not been communicated to them; rules
must be enforced in a fair and consistent way -- but relies on a
distorted version of the facts in an attempt to show that these
policies were not followed.
He first says that the rule communicated to him in the
final written warning was that he was required to take customer
returns in a timely fashion, and thus he could be subject to
enhanced discipline only if he again failed to do exactly that.
But the warning communicated more than that. It listed as the
basis of discipline "Poor Customer Service/refused customer
return," and, when explaining the reason for the discipline,
stated, "[c]ustomer service is a great part of our job, not being
helpful to any customer, no matter what the issue[,] is just poor
customer service." Thus, the evidence shows that he was given
clear notice that failure to help a customer was not acceptable,
regardless of whether the customer was trying to return
merchandise, purchase merchandise, or something else altogether.
Adamson also argues that no clear rule was ever
communicated to him regarding how he should handle opening the
store when alone, but this is irrelevant. He was clearly informed
of his responsibility to attend to customers "no matter what the
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issue"; Walgreens did not need to provide him with an additional
rule saying "even when you open the store alone."
In arguing that Walgreens violated its policy to
uniformly enforce its rules, Adamson presents several examples of
younger managerial employees who engaged in misconduct that he
characterizes as more severe than his own but who were subject only
to final written warnings, while he was subject to termination.
"An employer's disparate treatment of employees in response to
behavior that legitimately offends the employer can provide
evidence of discriminatory animus." Vélez, 585 F.3d at 451 (citing
McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 (1976)).
However, the evidence Adamson offers does not suggest
discrimination and actually shows that Walgreens treated them all
alike. Adamson and every supposed comparator received the same
discipline for their first offense -- a final written warning. It
was only when he had a second customer service incident, not even
four months later, that he received the more severe discipline of
termination.6 He has not provided any example of a younger
6
Adamson also states that Benoit admitted that no other
employee was disciplined for customer service issues "despite the
fact that customers had complained about other employees." The
record does not support this claim. Benoit did not say that
customers complained about other employees; he stated that he
"get[s] various complaints on [sic] various different reasons."
Nothing in the record establishes that those complaints were about
employees as opposed to, for example, product availability or
prices. Moreover, Benoit averred in a declaration that, "[b]esides
those involving [Adamson], I did not receive any verbal or written
customer complaints about any customer service issues involving a
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employee who had a second incident of misconduct after having
already received a final written warning. Because his second
infraction renders him materially different from these other
employees, his attempt to show disparate treatment necessarily
fails. See id. ("[I]n order to be probative of discriminatory
animus, a claim of disparate treatment 'must rest on proof that the
proposed analogue is similarly situated in material respects.'"
(quoting Perkins v. Brigham & Women's Hosp., 78 F.3d 747, 752 (1st
Cir. 1996))). Adamson argues that the district court erred in
considering the second incident in determining that these other
employees were not similarly situated to him, but this is
nonsensical. While he admits that the second incident occurred, he
wants it to be ignored, arguing that he was treated differently
than other employees who only received Final Written Warnings after
one incident. This argument fails because Adamson was fired after
two incidents, and there is no basis for the court to ignore that
distinction.
Finally, Adamson contends that Walgreens violated its own
policies in failing to give him a chance to explain himself and to
conduct further investigation once Adamson said that the customer
complaint was untrue. However, the policy that he points to is the
policy for "Counseling (Verbal Warning)," the first, lowest level
of the constructive discipline policy. While it may be good
managerial employee in 2010 or 2011.
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practice to allow employees to justify their conduct before
discipline is imposed, nothing in Walgreens' policies required
Benoit to do so when issuing his termination notice. See Rivera-
Aponte v. Restaurant Metropol #3, Inc., 338 F.3d 9, 11 (1st Cir.
2003) (rejecting argument that failure to give plaintiff an
opportunity to explain his side showed pretext because "[w]hether
a termination decision was wise or done in haste is irrelevant, so
long as the decision was not made with discriminatory animus"
(citing Gray, 792 F.2d at 255)).
In sum, Adamson has failed to provide any evidence that
would raise a triable issue with respect to whether Walgreens
violated its own policies and practices -- much less whether such
violations establish pretext.
Finally, Adamson argues that the district court erred in
resolving disputes regarding alleged preferential treatment given
to two younger managerial employees. He states that Benoit gave
favorable schedules to younger employees and provided training and
promotional opportunities to a younger employee, Julie Martineau,
that were denied to him.7
As to the first claim, Adamson testified in his
deposition that he was required to work six to nine consecutive
days, while the younger employees only had to work three to five
7
Adamson also reprises his claim that he was disciplined more
severely than similarly situated younger employees. We need not
re-address it here.
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consecutive days, before getting a day off. The district court
rightly determined that the record evidence was to the contrary.
Walgreens provided a chart comparing the three employees' schedules
that shows that they each sometimes worked eight, nine, or, in the
case of one of the younger employees, even ten straight days before
having a day off. Although he stated that he "question[ed] the
validity or the accuracy" of this information, he has not produced
any evidence to call it into question.8
As to the second claim, Walgreens admits that Martineau
was identified by multiple people as having promotion potential
and, beginning in November or December of 2010, was provided
additional mentorship as part of Walgreens' promotion process.
Martineau began working at the Ware store several months before
Adamson did. Benoit testified that she did a good job, she knew
the store, and that, having worked with her for some time, he was
comfortable with and trusted her. Walgreens' decision to prepare
Martineau, but not Adamson, for promotion, without more, does not
support an inference of age discrimination, especially in light of
the fact that Adamson was disciplined for an admitted customer
service incident within weeks of transferring to the Ware store.
8
He also states that he usually only got one day off at a
time while the other two employees often got two consecutive days
off. He has cited no record evidence for this assertion, and the
schedule provided by Walgreens shows that he was scheduled to have
a single day off slightly less frequently than the other employees.
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In sum, being mindful "that courts should exercise
particular caution before granting summary judgment for employers
on such issues as pretext, motive, and intent," Santiago-Ramos v.
Centennial P.R. Wireless Corp., 217 F.3d 46, 54 (1st Cir. 2000)
(citing Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 167 (1st Cir.
1998)), and "viewing the 'aggregate package of proof offered by
[Adamson]' and taking all inferences in [his] favor," Domínguez-
Cruz, 202 F.3d at 431 (quoting Mesnick, 950 F.2d at 824–25), we
conclude that the record is devoid of evidence from which a jury
could infer that Walgreens' proffered reason for terminating
Adamson was pretext designed to disguise age discrimination. We
therefore affirm the district court's grant of summary judgment on
Adamson's ADEA claim.
Because the ADEA and ch. 151B, § 4(1B), analyses are
"substantially similar" in all relevant respects,9 see Bennett v.
Saint-Gobain Corp., 507 F.3d 23, 30 (1st Cir. 2007), this
conclusion is also fatal to his claim under Massachusetts
discrimination law.
9
Massachusetts law deviates from federal law in at least one
respect -- the availability of a "mixed motive" theory, see Diaz
v. Jiten Hotel Mgmt., Inc., 671 F.3d 78, 82–84 (1st Cir. 2012) --
that is not material here. Adamson relies solely on the federal
framework in this appeal.
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III. Conclusion
For the foregoing reasons, we affirm the district court's
order granting summary judgment in favor of Walgreens. Costs are
awarded to appellees.
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