Collier v. Harland Clarke Corp.

Decision Date31 March 2019
Docket NumberCase No.: 2:15-cv-01006-MHH
Parties Robert COLLIER, Jr., Plaintiff v. HARLAND CLARKE CORP., Defendants.
CourtU.S. District Court — Northern District of Alabama

Alicia Kay Haynes, Charles E. Guerrier Haynes & Haynes PC, Birmingham, AL, for Plaintiff.

Amy J. Wilkes, Henry Carlton Hilson, J. Trent Scofield, Michael L. Lucas, Burr & Forman LLP, Birmingham, AL, for 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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. (...

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