Adamson v. Walgreens Co.

• Decision Date: 29 April 2014
• Docket Number: No. 13–1511.,13–1511.
• Citation: 750 F.3d 73
• Parties: Robert ADAMSON, Plaintiff, Appellant, v. WALGREENS CO., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

750 F.3d 73

Robert ADAMSON, Plaintiff, Appellant,

v.WALGREENS CO., Defendant, Appellee.

No. 13–1511.

United States Court of Appeals,First Circuit.

April 29, 2014.

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.

Before HOWARD, STAHL, and LIPEZ, Circuit Judges.

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 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 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 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. 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.

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, 129 S.Ct. 2343, 174 L.Ed.2d 119 (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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)).

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...