On April 29, 2014, the United States Court of Appeals for the First Circuit affirmed the entry of summary judgment by the U.S. District Court for the District of Massachusetts dismissing claims of age discrimination against Walgreen Co. (“Walgreens”). Walgreens was represented by Gregory A. Manousos and Laura E. Ogden of Morgan, Brown & Joy LLP.
Plaintiff Robert Adamson, a former Assistant Manager at a Walgreens store in Ware, Massachusetts, claimed that Walgreens discriminated against him on the basis of his age (58) when it terminated his employment. Walgreens discharged Mr. Adamson for engaging in two serious customer service incidents in a four month period. Mr. Adamson failed to promptly attend to a customer who was attempting to make a return, an offense for which he received a Final Written Warning. His employment was terminated after he left the front of the store unattended for span of several minutes, during which a customer unsuccessfully attempted to make a purchase. The customer called the Walgreens hotline to complain that no one was working at the front of the store to assist her. Walgreens discharged the Plaintiff due to the severity and close temporal proximity of the two customer service issues.
The First Circuit rejected several arguments raised by the Plaintiff claiming that Walgreens’s proffered reason for discharging him was a pretext for age bias in violation of the Age Discrimination in Employment Act and G.L. c. 151B. First, the Court disagreed with Plaintiff’s argument that Walgreens did not believe the truth of its stated reason for terminating Plaintiff. The First Circuit ruled that the District Court did not make an improper credibility determination about the testimony of the Store Manager regarding the incident leading to the Plaintiff’s termination. The Plaintiff claimed that the Store Manager incorrectly reported to his superiors that the customer waited for fifteen minutes to make her purchase before leaving the store, when surveillance video shows that she waited a much shorter period of time. The Court ruled that because the precise amount of time the customer waited was not material to the termination decision, the District Court did not render an improper determination as to the Store Manager’s credibility on that issue.
Next, the First Circuit rejected the Plaintiff’s argument that the District Court improperly resolved issues as to Walgreens’ violation of its disciplinary policies. The Court held that the Plaintiff “relie[d] on a distorted version of the facts in an attempt to show that [Walgreens’] policies were not followed.” The First Circuit ruled that the written warning for the first customer service incident gave clear notice of the unacceptable conduct. The Court applied a common sense approach in rejecting Plaintiff’s argument that Walgreens should have provided a specific rule about how to handle customer service when opening the store alone.
Additionally, the Court determined that the data regarding other employees who received final written warnings demonstrated that the retailed treated employees alike regardless of their age. The Court determined that Plaintiff failed to demonstrate that younger workers were treated more favorably in any way.
The decision highlights the importance of proper documentation of employee counseling. Walgreens’ clear and instructive language on the final written warning and the termination notice dispelled Plaintiff’s argument that Walgreens’ reason for the termination was untrue.
The decision also demonstrates that the courts take a practical approach toward examining discipline policies. Employers are not expected to provide written rules for how employees must act in every imaginable situation; rather, the opinion suggests that employees must apply common sense in extrapolating general expectations. Also, “while it may be good practice” to permit an employee to explain his side before terminating him, the Court found that nothing in Walgreens’ policies required the company to provide him with this opportunity.
The ruling reinforces the principle that the promotion of one employee outside a plaintiff’s protected class, without more, does not alone demonstrate pretext. Here, the Court concluded that Walgreens’ promotion of another Assistant Manager instead of the Plaintiff did not demonstrate pretext for discriminatory animus, especially where the Plaintiff was disciplined for the first customer service incident within weeks of starting work at the store.
The decision, Adamson v. Walgreens Co. (No. 13-1511), was written by Judge Norman H. Stahl, and was joined by Judges Jeffrey R. Howard and Kermit V. Lipez. The decision has been reported in the Bloomberg BNA Daily Labor Report.
Laura E. Ogden, Esq., is an attorney with Morgan, Brown & Joy, LLP. Laura may be reached at (617) 523-6666 or at firstname.lastname@example.org. Morgan, Brown & Joy, LLP focuses exclusively on representing employers in employment and labor matters.
This alert was published on May 1, 2014.
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