Noreen v. PharMerica Corp.

• Decision Date: 19 August 2016
• Docket Number: No. 15–2917,15–2917
• Citation: 833 F.3d 988
• Parties: Loren Noreen, Plaintiff–Appellant, v. PharMerica Corporation, Defendant–Appellee. AARP, Amicus on Behalf of Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

833 F.3d 988

Loren Noreen, Plaintiff–Appellant,

v. PharMerica Corporation, Defendant–Appellee.AARP, Amicus on Behalf of Appellant.

No. 15–2917

United States Court of Appeals, Eighth Circuit.

Submitted: May 17, 2016

Filed: August 19, 2016

Rehearing Denied September 26, 2016

Counsel who presented argument on behalf of the appellant was Brent C. Snyder, of Minneapolis, MN. The following attorney(s) appeared on the appellant brief; Stephen J. Snyder, of Minneapolis, MN.

Counsel who presented argument on behalf of the appellee was Heather Muzumdar, of Cincinnati, OH. The following attorney(s) appeared on the appellee brief; Michael C. McCarthy, of Minneapolis, MN.

The following attorney(s) appeared on the amicus brief filed by AARP; Daniel Benjamin Kohrman, of Washington, DC, Laurie A. McCann, of Washington, DC, Dara S. Smith, of Washington, DC.

Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.

COLLOTON, Circuit Judge.

Loren Noreen sued his former employer, PharMerica Corporation, alleging that the company terminated his position and then refused to rehire him because of his age, in violation of federal and Minnesota law. The district court¹ granted summary judgment for PharMerica. We agree that there is no genuine issue of material fact for trial, and we therefore affirm.

I.

PharMerica is a national pharmaceutical company that employs more than 4,500 people and provides pharmacy services to nursing homes and hospitals. From 1975 through December 30, 2013, PharMerica employed Noreen as a pharmacist. During the time relevant here, Noreen worked at PharMerica's office in Fridley, Minnesota. His responsibilities included evaluating medication orders, making recommendations to physicians and staff for changes in therapy, and working with pharmacy technicians in monitoring inventory.

In 2012, one of PharMerica's clients terminated its corporate contract with PharMerica. Due to the loss of business, PharMerica implemented a reduction in force (“RIF”) at the Fridley location in September 2012.

PharMerica has guidelines that set forth a process for selecting which employees are terminated in a RIF. The guidelines state presciently that “[t]o protect the Company, it is imperative that this process be followed consistently,” and that “[e]ach step must be documented.” RIF decisions are to be “made in a nondiscriminatory manner.” Because of federal regulations, however, the decisions are reviewed by the company “for adverse impact on protected classes.”

The guidelines describe a multi-step approach for carrying out a RIF. First, the company identifies affected locations and the positions to be eliminated in each job category at those locations. Next, a reviewer fills out a “RIF Decision Matrix form,” a multi-tabbed spreadsheet that “rank[s] employees within the affected job categories based on their current documented Annual Performance Evaluation rating.” Each employee receives a letter grade (O, E, M, NI, U) in a column on the matrix form according to his or her last performance evaluation rating. These letters translate to Outstanding, Exceeds Expectations, Meets Expectations, Needs Improvement, and Unacceptable. If an employee has not been with PharMerica long enough to receive an annual performance evaluation rating, the reviewer should assign a rating based on two checkups, a ninety-day evaluation, and input from supervisors and coworkers.

At the third step of the guidelines, the reviewer should “[s]ub-rank ALL employees within the Performance Evaluation rating from highest to lowest.” In other words, according to Noreen, the reviewer should sub-rank all employees who received an “NI” grade in one group, all employees who received an “M” rating in a second, all employees rated at “E” in a third, and so forth. The matrix form provides multiple columns, wherein a reviewer can score various work-related factors, including an employee's productivity, versatility, communication, self-management, and reliability. Those factors are averaged, and a reviewer relies on them when calculating a sub-ranking.

Once completed, the matrix form is sent to a human resources generalist along with any appropriate documentation. The generalist then reviews the matrix form and analyzes it for adverse impact on “protected classes per Federal guidelines” before submitting the form for final review and approval.

The guidelines provide that if the rankings are upheld after review, then “persons will be selected for RIF based on being the lowest ranking.” The most natural reading of this instruction is that employees in a lower performance evaluation rating group—say “Needs Improvement”—would be terminated first, starting with the lowest ranked in the group. If more terminations are required, then the reviewer would proceed to the next highest rating group, say “Meets Expectations,” and proceed according to rankings within that group.

Corey Rife, the regional pharmacy director, filled out the matrix form for the September 2012 RIF at the Fridley office. Rife sub-ranked all thirteen pharmacists as a single group. Eleven pharmacists had a last performance rating of “Meets Expectations.” Two recently hired pharmacists did not have an annual performance evaluation rating; Rife neglected to follow the guidance to give them a letter grade based on other data, but he included them in the sub-rankings. The company terminated the pharmacist with the lowest sub-ranking. She was a recent hire, the youngest of the group, with no performance rating.

Another RIF occurred at the Fridley office in December 2012. This time, the location's new pharmacy director, Daniel Teich, completed the matrix form. Again, all the pharmacists were sub-ranked together. And, again, one of the pharmacists was a recent hire for whom no performance evaluation rating was listed. The company terminated the two pharmacists with the lowest sub-rankings; one was the recent hire.

PharMerica anticipated additional business losses near the end of 2013, so another RIF occurred in October 2013. Teich filled out the matrix form for the Fridley office. On this occasion, the staff pharmacists showed a variety of performance evaluation ratings: NI, M, and E. Nonetheless, Teich sub-ranked all of the pharmacists as a single group. The pharmacist with the lowest sub-ranking was terminated.

The last RIF at the Fridley office took place in December 2013, because a contract with the company's primary client expired at the end of the year. PharMerica acquired operations from another pharmacy around the same time, but it was uncertain whether new business would offset the loss of the primary client, so Rife and Teich proceeded with the RIF.

Teich again prepared the matrix form. Four pharmacists, including Noreen, showed a last performance rating of M; one was graded E, and two were graded NI. Teich again sub-ranked all of the staff pharmacists together in a single group. Noreen (rated “M”) and another pharmacist (rated “NI”) had the lowest sub-rankings and were selected for termination. One pharmacist with a rating of “NI” was retained, because Teich sub-ranked him higher than Noreen.

On December 30, 2013, Rife and Teich informed Noreen that his position was terminated because of PharMerica's loss of business. Rife told Noreen that he could reapply for open positions. During the course of the meeting, Noreen became upset and told Rife and Teich that his termination was a “Pearl Harbor screw job.” Rife worried that a physical confrontation might occur, so he asked Teich to leave the meeting. Although Rife had conducted many RIFs with the company, he had “not once had a reduction in force that took this tone,” and he viewed Noreen's behavior as “very unprofessional.”

In early 2014, anticipating new business from the corporate acquisition, PharMerica posted job openings for several pharmacists at the Fridley location, and Noreen applied. Because the anticipated increase in business did not materialize, however, the posted positions were never filled.

In March 2014, a staff pharmacist at the Fridley location resigned. Teich considered hiring Noreen, but ultimately rejected that idea because of the threatening manner in which Noreen departed from the company. Teich hired a person with whom he had worked at another company.

In April 2014, Noreen filed a charge of discrimination with the Equal Employment Opportunity Commission and the Minnesota Department of Human Rights. After the EEOC issued a right-to-sue letter, Noreen filed this action, alleging age discrimination in violation of federal and state civil rights laws. The district court granted PharMerica's motion for summary judgment, reasoning that Noreen had failed to establish a submissible case that PharMerica discriminated against him because of his age. Noreen appeals.

Summary judgment is appropriate when “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). We review the district court's grant of summary judgment de novo , viewing the evidence in the light most favorable to Noreen. Otto v. City of Victoria , 685 F.3d 755, 758–59 (8th Cir. 2012). We may affirm on any ground supported by the record. See Johnson v. Securitas Sec. Servs. USA, Inc. , 769 F.3d 605, 611 (8th Cir. 2014) (en banc).

II.

Federal law forbids an employer from refusing to hire or discharging an individual “because of such individual's age.” 29 U.S.C. § 623(a)(1). It is also an unfair employment practice under Minnesota law to discharge an employee or to refuse to hire a person “because of ... age.” Minn. Stat. § 363A.08, subd. 2(1), (2) ; see Minn. Stat. § 181.81, subd. 1. Noreen brought claims under these three statutes and sought damages. The company responded that the specific reason for Noreen's termination was his ranking in one of the two lowest positions on the matrix form for the December 2013 RIF. The record was fully developed in the district court on PharMerica's motion for summary judgment, so we...