King v. CVS Caremark Corp.

• Decision Date: 05 March 2014
• Docket Number: Case No. 1:12–CV–1715–VEH.
• Citation: 2 F.Supp.3d 1252
• Parties: James R. KING, Plaintiff, v. CVS CAREMARK CORPORATION, a/k/a CVS Pharmacy, and Cody Berguson, Defendants.
• Court: U.S. District Court — Northern District of Alabama

2 F.Supp.3d 1252

James R. KING, Plaintiff,

v.CVS CAREMARK CORPORATION, a/k/a CVS Pharmacy, and Cody Berguson, Defendants.

Case No. 1:12–CV–1715–VEH.

United States District Court,

N.D. Alabama,

Eastern Division.

Signed March 5, 2014.

Alicia K. Haynes, Charles E. Guerrier, Haynes & Haynes P.C., Birmingham, AL, for Plaintiff.

Christopher W. Deering, Samantha K. Smith, Ogletree Deakins Nash Smoak & Stewart P.C., Birmingham, AL, for Defendants.

MEMORANDUM OPINION AND ORDER

VIRGINIA EMERSON HOPKINS, District Judge.

I. INTRODUCTIONA. Summary of Mr. King's Claims

Plaintiff James R. King (“Mr. King”) initiated this job discrimination lawsuit against Defendants CVS Caremark Corporation (“CVS”) and Cody Berguson (“Mr. Berguson”) arising under federal and Alabama law on April 27, 2012. (Doc. 1). On December 12, 2012, Mr. King filed an amended complaint containing ten separate counts. (Doc. 19 at 17–26 ¶¶ 92–130). Count One contends that CVS violated the federal Age Discrimination in Employment Act (“ADEA”) and the Alabama Age Discrimination in Employment Act (“AADEA”) by discriminating against, harassing, and creating a hostile work environment for Mr. King because of his age. (Doc. 19 at 17–19 ¶¶ 92–100).

Count Two asserts retaliation against CVS under the ADEA and the AADEA. (Doc. 19 at 19–20 ¶¶ 101–04). Count Three maintains that CVS discriminated against Mr. King on the basis of his gender in violation of Title VII. ( Id. at 20–21 ¶¶ 104–09). Count Four alleges that CVS violated the Equal Pay Act. (Doc. 19 at 21–22 ¶¶ 110–13).

The remaining six counts all arise under Alabama law. Count Five is for libel and slander and is brought against both CVS and Mr. Berguson. (Doc. 19 at 22–23 ¶¶ 114–18). Count Six, which is also asserted against CVS and Mr. Berguson, is for defamation. ( Id. at 23–24 ¶¶ 119–123). Count Seven is for negligent and wanton hiring, training, supervision, and retention, and is alleged against CVS only. ( Id. at 24–26 ¶¶ 124–130).

Count Eight, brought jointly against CVS and Mr. Berguson, is for interference with contractual or business relations. (Doc. 19 at 26–27 ¶¶ 131–36). Count Nine is for invasion of privacy by both CVS and Mr. Berguson. ( Id. at 28–29 ¶¶ 137–140). Finally, Count Ten, asserted against CVS and Mr. Berguson collectively, is for intentional infliction of emotional distress. ( Id. at 29–30 ¶¶ 141–48). The court's foregoing summary of the claims contained in Mr. King's amended complaint is consistent with the parties' briefing on summary judgment.

B. Summary of Pending Motions

1. Rule 56 Motions

Pending before the court are CVS's Motion for Summary Judgment (Doc. 45) (“CVS's Motion”) and Mr. Berguson's Motion for Summary Judgment (Doc. 46) (“Mr. Berguson's Motion”), both of which were filed on August 21, 2013. CVS and Mr. Berguson jointly filed all their supporting materials on this same date. (Docs. 47, 48) ¹. Mr. King opposed these motions on November 27, 2013. (Docs. 56, 57).² On January 22, 2014, Defendants followed with their combined reply. (Doc. 60).³

2. Evidentiary Motions

Also pending before the court are three evidentiary motions. On December 3, 2013, Mr. King filed a Motion for Protective Order Pursuant to Fed.R.Civ.P. 37 to Exclude Any Testimony or Reference to the Testimony of Jeffrey A. Hardage (Doc. 58) (the “Hardage Strike Motion”). Defendants filed their opposition (Doc. 61) to the Hardage Strike Motion on January 22, 2014, and Mr. King replied (Doc. 65) on February 3, 2014.

Defendants then objected to the admissibility of certain areas of testimony relied upon by Mr. King in two separate motions filed on January 22, 2014: (1) Objection to Admissibility of Portions of Affidavit and Supplemental Affidavit of Plaintiff James R. King and Motion to Strike (Doc. 62) (the “King Strike Motion”); and (2) Objection to Admissibility of Witness Statements and Motion to Strike (Doc. 63) (the “Non–Party Strike Motion”). Mr. King, on February 5, 2014, opposed these motions, respectively. (Docs. 66, 67). Defendants followed with their reply briefs on February 18, 2014. (Docs. 70, 69).

Accordingly, CVS's Rule 56 Motion, Mr. Berguson's Rule 56 Motion, the Hardage Strike Motion, the King Strike Motion, and the Non–Party Strike Motion are now all under submission. For the reasons explained below, CVS's Rule 56 Motion is GRANTED IN PART and DENIED IN PART, Mr. Berguson's Rule 56 Motion is GRANTED IN PART and DENIED IN PART, the Hardage Strike Motion is TERMED as MOOT, and the King Strike Motion and the Non–Party Strike Motion are DENIED IN PART and TERMED as MOOT IN PART.

II. FACTUAL BACKGROUND⁴

Mr. King is a former CVS pharmacist who worked at CVS's retail store located in Pell City, Alabama. CVS hired Mr. King on or about February 16, 2004, and ended his employment on or about October 11, 2011.

Beginning in 2006, Mr. Berguson became Mr. King's pharmacy supervisor. As a pharmacy supervisor, Mr. Berguson was responsible for overseeing approximately 60–80 pharmacists in his district comprising 23 pharmacies. Starting in late 2010, Mr. Berguson began to ask Mr. King questions such as “When are you going to retire?” or “Why don't you buy an annuity and retire?” (Doc. 57–1 at 3 ¶ 13).⁵ Accordingto Mr. King, “[t]he comments were numerous and were never precipitated by [him] in any conversation about [him] wanting to retire or work less hours.” Id. Mr. King further maintains that “[i]t got to the point that every time [he] saw Berguson, he made some age biased remark.” Id.

Mr. Berguson was the supervisor who decided, or, at a minimum, was involved in the decision to suspend and subsequently terminate Mr. King's employment with CVS over a prescription refilling incident that occurred in September 2011. ⁶

III. STANDARDSA. Summary Judgment Generally

Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to ‘come forward with specific facts showing that there is a genuine issue for trial.’ ” International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir.2006) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

Finally “[i]f the movant bears the burden of proof on an issue, because, as a defendant, it is asserting an affirmative defense, it must establish that there is no genuine issue of material fact as to any element of that defense.” International Stamp, 456 F.3d at 1274 (citing Martin v. Alamo Community College Dist., 353 F.3d 409, 412 (5th Cir.2003)).

B. Employment Discrimination Generally

A plaintiff in an employment discrimination case maintains the ultimate burden of proving that the adverse employment decision was made because of intentional discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000) (“Although intermediate evidentiary burdens shift back and forth under this framework, ‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’ ” (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981))); Nix v. WLCY Radio/Rahall Comms., 738 F.2d 1181, 1184 (11th Cir.1984) (“A Title VII disparate treatment plaintiff must prove that the defendant acted with discriminatory purpose.” (citing Clark v. Huntsville City Board of Education, 717 F.2d 525, 529 (11th Cir.1983))).

Although the Supreme Court has established the basic allocation of burdens and order of proof in a disparate treatment case, see, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Burdine, supra; Desert Palace v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003), that framework applies only in cases in which there is no direct evidence of discrimination. See Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir.1987) (“The McDonnell Douglas–Burdine patterns of proof were designed to ease the evidentiary burdens on employment discrimin[a]tion plaintiffs, who rarely are fortunate enough to have access to direct evidence of intentional discrimination.” (citing Thornbrough v. Columbus and Greenville R.R., 760 F.2d 633, 638 (5th Cir.1985), abrogated on other grounds by St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993))) ⁷.

Under the McDonnell Douglas/Burdine scheme, a plaintiff first has the burden of proving by a preponderance of evidence a prima facie case of discrimination. Second, once the plaintiff proves a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its employment decision. Finally, if the defendant carries its burden, the plaintiff must either prove by a preponderance of the evidence that the legitimate reasons offered by the defendant are merely a pretext for discrimination or present sufficient evidence, of any type, for a reasonable jury to conclude that discrimination was a “motivating factor” for the employment action, even though the defendant's legitimate reason may also be true or have played some role in the decision. McDonnell Douglas, 411 U.S. at 802–05, 93 S.Ct. at 1824–26; Burdine, 450 U.S. at 252–54, 101 S.Ct. at 1093–94; Desert Palace, 539 U.S. at 101–02, 123 S.Ct. at 2155.

C. Age Discrimination

1. A...