Garren v. CVS Health Corporation

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

at KNOXVILLE

TOMMY D. GARREN, )

)

Plaintiff, ) Case No. 3:17-cv-149

)

v. ) Judge Collier

)

CVS RX SERVICES, INC., et al., ) Magistrate Judge Poplin

)

Defendants. )

M E M O R A N D U M

Before the Court is a motion for summary judgment filed by Defendants, CVS Rx Services,

Inc., CVS Pharmacy, Inc., and Tennessee CVS Pharmacy, LLC, on the claims of Plaintiff, Tommy

D. Garren, in this employment discrimination case. (Doc. 80.) Plaintiff responded in opposition

(Doc. 84), and Defendant replied (Doc. 85). Also before the Court is Plaintiff’s objection to two

of the exhibits to Defendant’s reply brief. (Doc. 88.) Defendant has responded in opposition.

(Doc. 89.)

The Court will OVERRULE Plaintiff’s objection (Doc. 88) AS MOOT. The Court will

GRANT Defendants’ motion for summary judgment (Doc. 80) IN PART as to all of Plaintiff’s

claims against CVS Pharmacy, Inc., and Tennessee CVS Pharmacy, LLC, and GRANT IN PART

AND DENY IN PART the motion as to Plaintiff’s claims against CVS Rx Services, Inc.

I. BACKGROUND

At the beginning of 2015, CVS Rx Services, Inc. (“CVS”) employed Plaintiff as one of

two staff pharmacists at CVS store number 7685, in Tellico Plains, Tennessee (“Tellico”). Plaintiff

had worked for CVS as a pharmacist for decades, receiving positive reviews, no documentation of

performance issues, and no customer complaints. He was approximately sixty-two years old.

The other staff pharmacist at the Tellico store, Bryan Wooldridge, was approximately fifty-

three years old. Wooldridge was the Tellico pharmacy manager and Plaintiff’s direct supervisor.1

Wooldridge’s supervisor was Pharmacy Manager Linda Mitchell, age fifty-nine. Mitchell in turn

reported to District Manager Jeffrey Broyles, age forty-four. Broyles also supervised Shawn

Plemons, age forty-four, who managed the store in which the Tellico pharmacy was located.

During Plaintiff’s annual review in 2013 or 2014, Broyles asked Plaintiff when he planned

to retire.2 Plaintiff said he had not thought about retiring, but he intended to work as long as he

could and consider retirement when he was old enough. During Plaintiff’s next, and final, annual

review, Mitchell asked Plaintiff the same question. Again, Plaintiff said he intended to work as

long as he was able.

A. Plaintiff’s Chronic Venous Insufficiency

Plaintiff has chronic venous insufficiency, which causes swelling in his legs and limits how

long he can stand. In 2010, Plaintiff asked Wooldridge if Wooldridge would mind taking more

hours so Plaintiff could move from a forty-hour-week to a thirty-hour week because of Plaintiff’s

leg swelling. Wooldridge, who was not yet Plaintiff’s supervisor, agreed. Also in 2010, Plaintiff

told Mitchell he was having trouble with his ankles and showed his swollen ankles to Mitchell.

In May or June 2015, Mitchell told Plaintiff he needed to go back to a forty-hour schedule.

On June 7, 2015, Plaintiff’s base hours were increased to thirty-nine hours.

1 Plaintiff began working at the Tellico store in 2004. From then until 2014, Wooldridge’s

title was pharmacist-in-charge, and both he and Plaintiff reported to a pharmacy manager.

2 Plaintiff testified that this took place during his second-to-last annual review. Plaintiff

was terminated in November 2015. The Court infers that his second-to-last annual review took

place in 2013 or 2014.

B. Plaintiff’s Transfer to a Floater Pharmacist Position

In October 2014, Angela Lane (later Angela Householder) received an offer from CVS for

a pharmacist position after her expected graduation from pharmacy school in May 2015. Lane had

been an intern in the Tellico pharmacy and was a friend of Plemons’s. In or before May 2015,

Mitchell and Broyles discussed placing Lane in Plaintiff’s position as a staff pharmacist at Tellico,

changing Plaintiff to a floater pharmacist who moved from store to store as needed. On May 21,

2015, Mitchell sent an email to Broyles stating “Angela [Lane] has her dates set . . . June 1st MJPE

and Naplex on June 5th. I am not sure I really need to change Tommy’s hours since this was not

going to be done until June 7th. Any ideas on how to handle Tommy??” (Doc. 83-2 at 211 [Pl.’s

Ex. 11].) Lane was approximately twenty-seven years old in 2015.

Two months later, on July 28, 2015, Broyles phoned Plaintiff at work and told him he

would be made a floater pharmacist effective the next week. Plaintiff asked Broyles for a meeting.

Broyles and Mitchell met with Plaintiff the next day.

Plaintiff secretly recorded his July 29, 2015, meeting with Broyles and Mitchell. During

the meeting, Broyles and Mitchell told Plaintiff CVS had a policy that new pharmacy graduates

could not be floater pharmacists. They also said they wanted to place Lane at Tellico because it

would be a good first store for her. Plaintiff questioned the wisdom of removing him from Tellico

and replacing him with an inexperienced graduate.3 He also expressed dissatisfaction with matters

at Tellico, particularly with Plemons as store manager, and said he was not entirely against floating

for that reason. Plaintiff said he would like to float and asked what his schedule would be like.

He also asked several times what would happen if he refused to become a floater. Mitchell

answered that he appreciated that Plaintiff was not refusing, because Mitchell needed Plaintiff to

3 Specific quotations from the meeting are included below in Section III(C)(2).

become a floater. When Plaintiff asked directly whether he would be fired if he refused, Mitchell

said no, adding again that he needed Plaintiff to float.

On July 30, 2015, Plaintiff received his first schedule as a floater, to begin August 2, 2015.

Plaintiff did not like his schedule and believed it was being manipulated to make him want to quit

or retire. Plaintiff was also displeased that he was not paid for his time driving, even though CVS

typically paid floaters for driving time. On August 5, 2015, Plaintiff complained to Broyles’s

supervisor, Regional Manager David Sanford, of age discrimination. Sanford forwarded the

complaint to Regional Human Resources Business Partner Randall (Randy) Hatfield, with a

request that Hatfield contact Plaintiff “and let him know you will look into this.” (Doc. 80-3 at

37.) Hatfield admitted during his deposition that he had no documents reflecting an investigation

of Plaintiff’s claims of age discrimination, other than emails with Plaintiff and a summary sent to

Sanford of Hatfield’s phone conversation with Plaintiff. Broyles, Mitchell, Plemons, Wooldridge,

and other CVS employees testified in their depositions that they had not heard about Plaintiff’s

age discrimination complaints or any investigation of such complaints.

Hatfield spoke with Plaintiff about Plaintiff’s complaint by phone on August 14, 2015.4

Hatfield asked Plaintiff if he wanted to go back to Tellico with his previous hours, and Plaintiff

said he did not. On August 18, 2015, however, after receiving another floater schedule he did not

like, Plaintiff emailed Hatfield and asked to be placed back at Tellico with his previous hours,

along with compensation for his driving time as a floater.

On September 13, 2015, after six weeks of working as a floater, Plaintiff was transferred

back to his former position as a staff pharmacist at Tellico. Lane was moved elsewhere.

4 Plaintiff secretly recorded this conversation, as well.

C. Plaintiff’s Suspension and Level III Warning

A little over a week after Plaintiff was transferred back to Tellico, on September 22, 2015,

Store Manager Plemons emailed Mitchell and Broyles about Plaintiff. She said she had worked at

Tellico only one day since Plaintiff’s return, and Plaintiff had not been in the store that day.

However, she complained about statements she had been told Plaintiff had made about her, CVS,

and upper management since his return. She criticized Plaintiff’s effect on morale and customer

service. She asked that human resources “come and interview each of the employees at my store,”

stating “I feel this is a hostile workplace due to his comments towards me.” (Doc. 80-11 at 15.)

She specified that she was not complaining about the job Plaintiff was doing as a pharmacist. (Id.)

Hatfield visited Tellico and spoke with three employees in what CVS describes as a morale

survey. The employees said Plaintiff had made Plemons cry, did personal business on work time,

showed inappropriate pictures to staff, and acted disrespectfully. One employee also reported

hearing Plaintiff say he felt Plemons and Lane were trying to get rid of him, that he was hiring an

attorney, and that he resented that a new pharmacy graduate had been hired to replace him.

Responses to the morale survey also complained about Plaintiff’s not making pharmacy

phone calls. CVS required pharmacy staff to make what were known as New Script Pickup calls

and Prescriber Follow-up calls. New Script Pickup calls were reminders to customers to pick up

prescriptions after customers failed to respond to multiple automated notices that their

prescriptions were ready. Prescriber Follow-up calls were requests to prescribers regarding

prescriptions that were out of refills. CVS had an automated queue listing such phone calls to be

made, and items in the queue would turn red if not addressed by a certain time. Responses to the

morale survey mentioned Plaintiff’s not making these phone calls, his saying the calls were

unethical, and his saying he did not care about being “in the red.” Plaintiff testified in his

deposition that he objected to making Prescriber Follow-up calls only where the prescriber

originally wrote a prescription to have no refills and the customer had not requested a refill, on the

grounds that filling such a prescription would automatically create a bill to the customer’s

insurance company without the customer’s knowledge.

Hatfield did not speak with Wooldridge, who was Plaintiff’s supervisor and the pharmacy

manager, as part of the morale survey. Nor did Hatfield speak with Wooldridge about the

comments touching on pharmacy operations. Wooldridge was unaware of the morale survey at

the time. Hatfield also did not send Plemons a response to her complaint.

On October 2, 2015, Hatfield sent an email to Broyles and Mitchell discussing the

statements he had obtained from the three Tellico employees and asking to discuss “next steps”

regarding Plaintiff. (Doc. 83-2 at 199 [Pl.’s Ex. 8].) He suggested a meeting when Plaintiff did

not expect them to come. He said they “should have detailed reports showing a drop in Rx

performance upon his return,” with a bullet point saying: “Do a before and after to paint the

picture.” (Id.) Plemons was asked to prepare these reports, which she conceded were for the

purpose of showing Plaintiff was not doing a good job as a pharmacist. (Doc. 83-7 at 13–14, 19

[Plemons Dep. at 260–51, 355–56].)

On October 19, 2015, Hatfield and Broyles met with Plaintiff to tell him he was being

suspended pending an investigation. Plaintiff was not paid for his suspension at the time of the

suspension.5 On October 19 and 20, Plaintiff sent multiple short emails to Hatfield, including

complaints against Plemons and Broyles for various types of alleged work-related misconduct and

5 An October 27, 2015, email from Mitchell to Broyles forwards an “e-ticket” regarding

Plaintiff’s pay during the suspension. (Doc. 83-4 at 107 [Pl. Ex. 46].) The e-ticket request says

Plaintiff “was suspended from work on Monday, Oct 19th . . . and . . . should not be paid HUB for

the week of 10/18–10/24 . . . he should be paid 3 reg hrs for this week only. (Id. (last ellipsis in

original).) The subject line of the email states in full: “Tommy’s pay . . . We can make sure that

he wasn’t paid . . . but from what this says they did only pay him 3 hours??? Now what [illegible]

I do?? I sent e-ticket prior to Randy deciding not too [sic] . . . .” (Id. (ellipses in original).)

a complaint that Plaintiff was being retaliated against. [Doc. 83-2 at 220–31 [Pl. Ex. 17].) One of

Plaintiff’s emails asked if Plemons and Broyles would be suspended pending an investigation,

since Plaintiff was making formal complaints against them. (Id.) Hatfield asked Broyles to get

information on some of Plaintiff’s complaints. Hatfield did not, however, discuss Plaintiff’s

allegations with Plemons as the store manager or Wooldridge as the pharmacy manager.

On October 21, 2015, Hatfield exchanged emails with Employee Relations Manager Bernie

Smith reporting on the meeting two days earlier and discussing next steps, including the possibility

of termination:

In summary, the conversation with Tommy was as expected. He became

very defensive in the end and he started sending mulitiple [sic] emails with claims

that we’ve been unable to substantiate at this time. I do feel he damages our brand,

does not help people on a path to better health, and will not be able to adapt or

change to CVS processes.

 We can move to a termination, or

 We can move to another location but his behaviors will not change in

another location – he is very open that he will use professional judgment,

meaning that he knows when to make a doctor call, etc.

(Doc. 83-2 at 139–143 [Pl. Ex. 1 at Bates No. 1006–10]; id. at 39 [Hatfield Dep. 246–47].)

Plaintiff was allowed to return to work eight days later, on October 27, 2015. On that day,

Broyles and Wooldridge issued Plaintiff a Level III final warning and an Improvement Action

Plan. The Level III warning bypassed earlier stages in CVS’s progressive discipline policy.

Broyles had Wooldridge type the previously prepared writeup into CVS’s computer system, even

though Woodridge had not participated in developing its content.

On October 28, 2015, Plaintiff complained again to Hatfield by email, saying he believed

the suspension and warning were part of a setup to terminate him.

D. Plaintiff’s Termination

In 2015, CVS customer receipts included a phone number for customers to call and

complete a survey on store and pharmacy services.

Plaintiff testified that it had been a long-time practice at Tellico for Plemons and Broyles

to encourage employees to call in customers’ surveys to give the store good marks. Plaintiff

submitted a declaration from a former Tellico pharmacy employee, JoAnn Hamrick, stating that

once a month, Plemons and a shift supervisor would make “bogus survey calls using discarded

sales receipts in order to manipulate the store’s metric scores.” (Doc. 83-12 at 3–4 [Hamrick Decl.

¶ 10].) Hamrick testified that Plemons and the supervisor would ask to borrow Hamrick’s cell

phone to make the calls.

Plaintiff testified that after his transfer back to Tellico from floating, he noticed that survey

marks on the pharmacy were going down. He believed Plemons was manipulating surveys to

make the pharmacy look bad. Accordingly, he deliberately kept two receipts customers did not

want and, in view of the security cameras, called in survey results on those two receipts. On both

surveys, he gave the pharmacy the highest marks and the front store the lowest marks. Plaintiff

testified that he did this to try to trigger an investigation into employee completion of the surveys.

In late October 2015, Plemons reviewed the Tellico survey results and noticed the two

negative scores for the front store. She reviewed store surveillance footage and saw that Plaintiff

had kept one, and probably both, receipts. On October 30, 2015, she sent a fax regarding the

surveys and video footage to Steve Burd, the Regional Loss Prevention Manager. Burd conducted

an additional investigation.

On November 5, 2015, Broyles told Plaintiff he wanted to meet with him again. Plaintiff

emailed Hatfield that afternoon, saying:

Jeff called me about meeting tomorrow to follow up on the write up and action plan.

I have not heard from you about my AGE complaint that I filed in August nor the

following complaint I sent you last week. Did you discuss with Jeff my complaints?

I am not going to be forced to quit or retire and I can tell Jeff is trying to fire me

after 31 years for made up reasons. I need you to stop the harassment. Please let

me hear from you before the meeting.

(Doc. 83-11 at 40 [Pl. Ex. 119] (emphasis in original).)

On November 6, 2015, Burd and Broyles met with Plaintiff regarding the surveys. Plaintiff

admitted he had called in the two surveys, said he had done it to trigger an investigation into how

he was being sabotaged, said the practice was widespread, and asked Burd to investigate Broyles

and others regarding the handling of surveys. Plaintiff also claimed he was being discriminated

against based on his age. Later that day, Broyles fired Plaintiff. Broyles, Mitchell, Hartfield, and

Sanford had all participated in the decision.

CVS replaced Plaintiff with floater pharmacists and with two new pharmacy graduates in

turn. The current incumbent in the position is twenty-seven years old.

E. Litigation

Plaintiff filed suit against Defendants6 on April 20, 2017, asserting causes of action under

the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq., (the “ADEA”), and

the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq., (the “ADA”). (Doc. 1 at

13–18.) On January 22, 2019, the Court held a jury trial on the sole question of whether Plaintiff

and Defendants had entered into an agreement to arbitrate their dispute. (Docs. 52, 54.) The jury

ruled for Plaintiff, finding there was no such agreement. (Doc. 55.) Defendants now move for

summary judgment on all of Plaintiff’s claims against them. (Doc. 80.)

6 The initial complaint named CVS Health Corporation, Inc. as a defendant. (Doc. 1.) The

amended complaint substituted CVS Rx Services, Inc. (Doc. 8.)

II. STANDARD OF REVIEW

Summary judgment is proper when “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). The moving party bears the burden of demonstrating no genuine issue of material fact

exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349 F.3d 888, 897

(6th Cir. 2003). The Court should view the evidence, including all reasonable inferences, in the

light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th

Cir. 2001).

To survive a motion for summary judgment, “the non-moving party must go beyond the

pleadings and come forward with specific facts to demonstrate that there is a genuine issue for

trial.” Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002). Indeed, a “[plaintiff] is

not entitled to a trial on the basis of mere allegations.” Smith v. City of Chattanooga, No. 1:08-

cv-63, 2009 WL 3762961, at *2–3 (E.D. Tenn. Nov. 4, 2009) (explaining the court must determine

whether “the record contains sufficient facts and admissible evidence from which a rational jury

could reasonably find in favor of [the] plaintiff”). In addition, should the non-moving party fail to

provide evidence to support an essential element of its case, the movant can meet its burden of

demonstrating no genuine issue of material fact exists by pointing out such failure to the court.

Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).

At summary judgment, the Court’s role is limited to determining whether the case contains

sufficient evidence from which a jury could reasonably find for the non-movant. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). The Court may not make credibility

determinations or weigh the evidence in addressing a motion for summary judgment. Id. at 255.

If the Court concludes a fair-minded jury could not return a verdict in favor of the non-movant

based on the record, the Court should grant summary judgment. Id. at 251–52; Lansing Dairy,

Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).

III. DISCUSSION

The Court will first consider Plaintiff’s objection to two of Defendants’ exhibits. The Court

will then address Defendants’ attacks on Plaintiff’s various claims in turn.

A. Objection to Exhibits

Plaintiff objects to two exhibits (Docs. 85-3, 85-4) attached to Defendants’ reply in support

of the motion for summary judgment. (Doc. 88.) Plaintiff argues these exhibits are based on the

testimony of Cory Long, whom Defendants did not identify in their disclosures under Rule 26 of

the Federal Rules of Civil Procedure. Defendants respond that they timely disclosed all of the data

and documents included in the two exhibits, and Mr. Long qualifies as the “representative and/or

keeper of records” referred to in Defendants’ second supplemental initial disclosures. (Doc. 89.)

The disputed exhibits consist of reports of various metrics for Plaintiff, Wooldridge, and

Lane. Consideration of these metrics would have no effect on the Court’s resolution of

Defendants’ motion for summary judgment. Accordingly, the Court will OVERRULE Plaintiff’s

objection (Doc. 88) as moot.7

B. Claims Against CVS Pharmacy, Inc. and Tennessee CVS Pharmacy, LLC

Defendants move for summary judgment on all claims against CVS Pharmacy, Inc. and

Tennessee CVS Pharmacy, LLC, arguing neither entity employed Plaintiff. (Doc. 81 at 1 n.1.)

7 Plaintiff’s objection extends to the use of the disputed exhibits at trial. “A request for a

court order must be made by motion.” Fed. R. Civ. P. 7(b)(1). The Court will therefore not

consider Plaintiff’s request for a determination on the use of disputed exhibits at trial at this time.

Plaintiff’s responds that these two entities were his “joint employers” with CVS Rx Services, but

he provides no evidence to support this assertion. (Doc. 84 at 1.) Because Plaintiff has failed to

provide evidence to support an essential element of his case against CVS Pharmacy, Inc. and

Tennessee CVS Pharmacy, LLC, these two Defendants are entitled to judgment on Plaintiff’s

claims against them. See Street, 886 F.2d at 1479 (movant may meet burden of demonstrating no

genuine issue of material fact exists by pointing out non-movant’s failure to provide evidence to

support an essential element of case). The Court will GRANT summary judgment in favor of

CVS Pharmacy, Inc. and Tennessee CVS Pharmacy, LLC on all claims.

C. ADEA Discrimination

Where a plaintiff bases an ADEA claim on circumstantial evidence, a court considering a

motion for summary judgment follows the familiar burden-shifting approach established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and refined by Texas Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248 (1981). Under the McDonnell Douglas framework, the plaintiff

carries the initial burden of establishing a prima facie case of discrimination. Vaughn v. Watkins

Motor Lines, Inc., 291 F.3d 900, 906 (6th Cir. 2002). Once the plaintiff establishes a prima facie

case, the burden shifts to the defendant to articulate some legitimate, non-discriminatory

explanation for its actions. Seay v. Tenn. Valley Auth., 339 F.3d 454, 463 (6th Cir. 2003) (citing

Burdine, 450 U.S. at 253). If the employer articulates an appropriate explanation, the burden shifts

back to the plaintiff to demonstrate the employer’s explanation is a pretext for discrimination.

McDonnell Douglas, 411 U.S. at 802–04, 807. Pretext can be proven by showing the reason the

employer gave for its actions “had no basis in fact, did not actually motivate the defendant’s

challenged conduct, or was insufficient to motivate the defendant’s challenged conduct.” Lefevers

v. GAF Fiberglass Corp., 667 F.3d 721, 725 (6th Cir. 2012) (quoting Schoonmaker v. Spartan

Graphics Leasing, LLC¸ 595 F.3d 261, 268 (6th Cir. 2010)). A defendant bears only the burden

of production and not the burden of persuasion. Anthony v. BTR Auto. Sealing Sys., Inc., 339 F.3d

506, 515 (6th Cir. 2003).

Throughout this burden shifting, “[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.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Burdine,

450 U.S. at 253); see also DiCarlo v. Potter, 358 F.3d 408, 414–415 (6th Cir. 2004). The plaintiff

cannot rely purely on “mere personal belief, conjecture and speculation” because they are

insufficient to support an inference of discrimination. Woythal v. Tex-Tenn Corp., 112 F.3d 243,

247 (6th Cir. 1997) (internal alteration omitted).

The Court must apply the McDonnell Douglas burden-shifting framework to each action

Defendant alleges was discriminatory: his transfer to a floater position, the suspension and Level

III warning he received, and his termination. First, however, the Court must identify the elements

of a prima facie case of discrimination under the ADEA.

1. Elements of Prima Facie Case

The parties agree on three of the four elements of a prima facie case of discrimination under

the ADEA: (1) the plaintiff must be at least forty years old; (2) the plaintiff was qualified for the

job in question; and (3) the plaintiff suffered an adverse employment action. (See Doc. 81 at 12,

Doc. 84 at 15–16.)

They disagree on the fourth element. Defendant characterizes the fourth element as

requiring a plaintiff to show “he was either replaced by a younger worker or treated differently

than similarly situated individuals.” (Doc. 81 at 12 (citing Mickey v. Zeidler Tool & Die Co., 516

F.3d 516, 521 (6th Cir. 2008)).) Without commenting on Defendant’s rendering of the prima facie

case, Plaintiff presents as the fourth element “circumstances that support an inference of

discrimination.” (Doc. 84 at 16 (quoting Camp v. BI-LO, LLC, 662 F. App’x 357, 365 (6th Cir.

2016)).) Defendant’s reply, in turn, does not address the discrepancy between its characterization

of the elements and Plaintiff’s, other than to say Plaintiff has failed to respond to its specific

arguments on a lack of evidence CVS treated similarly situated individuals differently than it

treated Plaintiff.

The United States Court of Appeals for the Sixth Circuit recently addressed the fourth

element in a prima facie case of age discrimination under the ADEA. Willard v. Huntington Ford,

Inc., 952 F.3d 795, 808 (6th Cir. 2020). The fourth element is the existence of “circumstances that

support an inference of discrimination.” Id. at 808 (quoting Blizzard v. Marion Tech. Coll., 698

F.3d 275, 283 (6th Cir. 2012)). “[S]uch circumstances include when the employer replaced the

plaintiff with a younger employee and when the employer ‘treated similarly situated, non-protected

employees more favorably.’” Id. (emphasis added) (quoting Mickey, 516 F.3d at 521–22); see also

Blizzard, 698 F.3d at 283 (fourth element is “circumstances that support an inference of

discrimination,” and “[a]n allegation that the plaintiff was replaced by a younger individual

supports an inference of discrimination only if the difference in age is significant”) (quoting

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002)).

Having identified the elements of a prima facie case, the Court will consider in turn each

of the three allegedly discriminatory actions of which Plaintiff complains.

2. Transfer to Floater Position

Plaintiff claims his transfer to a floater position constituted age discrimination under the

ADEA. CVS’s motion for summary judgment attacks the adverse-employment-action element of

Plaintiff’s prima facie case regarding the transfer, then argues in the alternative that it had a

legitimate, non-discriminatory reason for the transfer as to which Plaintiff cannot demonstrate

pretext.

a. Whether Plaintiff Consented to the Transfer

First, CVS argues Plaintiff’s transfer to a floater position was not an adverse employment

action because Plaintiff consented to it. (Doc. 81 at 12–13.) Plaintiff responds that he did not

consent to the transfer, but only “reluctantly acceded” to it. (Doc. 84 at 16; see also id. at 4–5.)

Plaintiff also argues he could not have consented to the transfer because CVS made the decision

to transfer him two months before informing him of it. (Id. at 16.) Neither party cites any legal

authority regarding the significance of consent in establishing the existence of an adverse

employment action.

CVS argues Plaintiff’s own statements during his recorded meeting with Broyles and

Mitchell on July 29, 2015, show he consented to become a floater pharmacist. (Doc. 81 at 13

(citing Doc. 80-10); see also id. at 4–5 (quoting Doc. 80-10).) The statements CVS cites appear

in bold type below, with context in regular type:

 “And there is a lot of things you all don’t know. But that’s why I cannot

understand why you would want to put a new girl, inexperienced, in a

pressure place like that. . . . You’re making a bad move, but don’t get me –

let me tell you something else. I am not crazy about working at Tellico. It

ain’t – I am not – they only – I didn’t come up here to tell you that I don’t

want to get out of there and I don’t want to float. I’m not here to tell

you that, because that is not the best place to work.” (Doc. 80-10 at 27–

28 [July 2015 Tr. at 17:11–18:5].)

 “You are going to have problems, but that is your prerogative. That store

has got good numbers in the pharmacy. We have been doing great. We

have been making plenty of money, and if you want to risk it, that is your

prerogative. I have seen the same plan play out in some of these other

stores. It has went (sic) to pot, that was doing great . . . . And you are going

to add this one to the list, but as far as, I don’t want you all to think that

I think so much of the store, that I just want to stay, and I am up against

this floating deal, you know, because I am not. Because you are going to

– you are fixing to put that young lady into something, but she will be in

there with a friend. And you know, that makes a difference to some people.”

(Id. at 44–45 [July 2015 Tr. at 34:10–35:3] (error notation in original).)

 “I just want to share a few things with you, and I am not the bad guy that

you all have been lead [sic] to think that I am. Me, not being a team player,

a lot of times when you give the team constructive criticism and they don’t

want it – you don’t know why I’ve been labeled, not a team player, but you

know, I just want to stop and share a few things with you and I’d like

to be floating. I would like to know more about a schedule; you know

what I’m saying?” (Id. at 46–47 [July 2015 Tr. at 36:22–37:8].)

 Plaintiff: “[W]ell, let me ask you this. Just – and just this is just a theoretical

question. What would happen if I didn’t want to float?” Broyles: “Like I

say, I would have to ask you to float, and I appreciate you not saying that.”

Plaintiff: “Yes, but what if I said no, I don’t want to float? I have been with

this company 31 years and I’m happy where I’m at. My customers are

happy. I don’t feel like I need to float.” (Id. at 51–52 [July 2015 Tr. at

41:21–42:7].)

 “But now, don’t get me wrong, I am not totally against floating. . . . I

am about ready to get out of that place, up there.” (Id. at 58 [July 2015

Tr. at 48:8–12].)

 Plaintiff: “[B]ut back to my question, again. If I told you, no, I am not

interested in floating; I just want to stay right there in Tellico; what would

–” Broyles: “Like I said, I’m appreciative that you didn’t, because –”

Plaintiff: “Well, I understand that. What would you say?” Broyles: “That

I need you to float.” Plaintiff: “Would you say, you are fired?” Broyles:

“No, I need you to float. You’ve got value. And I don’t want to discount

that.” (Id. at 61–62 [July 2015 Tr. at 51:23–52:13].)

The language on which CVS relies is not from a contract that must be interpreted. It is

from a conversation between an employee and representatives of his employer, consisting of

statements, questions, and answers which sometimes pull in various directions. Even the short

portions CVS cites could be interpreted either as consent to the transfer or as an attempt by Plaintiff

to appear cooperative in a difficult situation at work and to communicate about problems in his

then-current placement. The context in which Plaintiff’s statements were made add to the

ambiguity, including Plaintiff’s references to the transfer being CVS’s “move” and “prerogative,”

and Broyles’s repeated deflection of Plaintiff’s questions about what would happen if he said “no”

into a discussion of how important it was that he not say no. In all, there is a genuine issue of fact

as to whether Plaintiff consented to becoming a floater pharmacist or merely acquiesced in CVS’s

decision. CVS is not entitled to summary judgment on the grounds of consent.

b. Whether the Transfer Constituted an Adverse Employment

Action as a Matter of Law

Second, CVS argues Plaintiff’s transfer from staff pharmacist to floater pharmacist does

not qualify as an adverse employment action because it did not involve a “significant change in

responsibilities, a loss in pay or benefits[,] or any other negative change in his employment status.”

(Doc. 81 at 13.) In response, Plaintiff identifies various ways in which he believes the transfer

qualified as an adverse employment action, in that Plaintiff:

(1) could not obtain enough work hours; (2) had to travel literally hundreds of miles

to work just a few hours; (3) had his vacation time unilaterally usurped; (4) was not

paid for travel time or mileage; and (5) was scheduled for twelve hours [sic] shifts

along with late night shifts, all a stark contrast from his job at Tellico. Moreover,

[(6)] Plaintiff’s title was changed and . . . [(7)] a current CVS manager . . . testified

that the transfer was . . . a demotion.

(Doc. 84 at 16; id. at 5 (citations omitted).) In its reply, CVS offers evidence contesting some of

Plaintiff’s factual claims. (Doc. 85 at 7–9 (citations omitted).)

An employment action is adverse if it “constitutes a significant change in employment

status, such as hiring, firing, failing to promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in benefits.” Laster v. City of

Kalamazoo, 746 F.3d 714, 727 (6th Cir. 2014) (quoting Burlington Indus. v. Ellerth, 524 U.S. 742,

761 (1998)). A reassignment or a transfer to a different position can be an adverse employment

action, even without a change in salary, where it is paired with a change in work hours, “a less

distinguished title, a material loss of benefits, . . . or other indices that might be unique to a

particular situation.” Spees v. James Marine, Inc., 617 F.3d 380, 391 (6th Cir. 2010) (quoting

Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 886 (6th Cir. 1996)). In addition, “[a]n

‘inconvenience resulting from a less favorable schedule can render an employment action

“adverse” even if the employee’s responsibilities and wages are left unchanged.’” Id. at 392

(quoting Ginger v. Dist. of Columbia, 527 F.3d 1340, 1344 (D.C. Cir. 2008)).

There is a genuine issue of fact as to whether Plaintiff’s transfer from staff pharmacist to

floater pharmacist was an adverse employment action. On the one hand, his salary and benefits

stayed the same, the positions required the same skill and professional credentials, and the

positions had similar responsibilities. On the other hand, a current CVS manager testified during

her deposition (and then allegedly retracted after a break) that a transfer to a floater position would

have been upsetting to Plaintiff because it was a demotion. (Doc. 83-5 at 5 [Dotson Dep. 69:4–

18].) Plaintiff’s title changed, which may play into the analysis. Finally, the parties have presented

conflicting evidence as to whether the transfer had a negative effect on Plaintiff’s work hours and

schedule, his travel time and mileage, and his use of vacation time. (Compare Doc. 84 at 5 and

materials cited therein with Doc. 85 at 7–9 and materials cited therein.)8 Because there is a genuine

issue of fact as to whether Plaintiff’s transfer to a floater position was an adverse employment

action, CVS is not entitled to summary judgment on the grounds that Plaintiff has failed to state a

prima facie case of discrimination.

c. Whether the Floater Policy Was a Pretext for Discrimination

Third, CVS argues that even if Plaintiff makes out a prima facie case of discrimination as

to his transfer to a floater position, CVS had a non-pretextual reason to make the transfer anyway:

its policy of not allowing newly hired graduates from pharmacy school to work as floater

pharmacists. (Doc. 81 at 14.)

8 Some of Plaintiff’s evidence consists of his own testimony and some of CVS’s evidence

consists of documents. At the summary judgment stage, the Court must view the evidence in the

light most favorable to the nonmoving party and may not make credibility determinations or weigh

the evidence. Anderson, 477 U.S. at 249, 255. The Court is therefore not able to decide which

side’s position deserves credence in these factual disputes.

If an employer articulates an appropriate explanation for an action as to which the plaintiff

has made out a prima facie case of discrimination, the plaintiff must demonstrate the employer’s

explanation is a pretext for discrimination. McDonnell Douglas, 411 U.S. at 802–04, 807. Pretext

can be proven by showing the reason the employer gave for its actions “had no basis in fact, did

not actually motivate the defendant’s challenged conduct, or was insufficient to motivate the

defendant’s challenged conduct.” Lefevers, 667 F.3d at 725.

Plaintiff argues CVS’s assertions about a policy restricting floaters to experienced

pharmacists is a pretext for discriminating against Plaintiff because of his age. (Doc. 84 at 17.)

He asserts none of CVS’s witnesses could identify any writing substantiating such a policy, and

he points to evidence that various new pharmacy graduates in fact “worked shifts in other CVS

stores as needed, or desired, just as floaters do.” (Id.; see also id. at 4 (citing Doc. 83-10 at 5

[Gibson Dep. at 110:7–18] (“[Lane] picked up the four hours that morning at that store. Even if

they’re not a floater, if they’re a staff pharmacist, they can pick up a shift if I’ve got all the floaters

scheduled.”) Plaintiff thus invokes the first method of demonstrating pretext, that a presented

reason for an allegedly discriminatory action “had no basis in fact.” See Lefevers, 667 F.3d at 725.

CVS’s reply does not respond to Plaintiff’s arguments on pretext.

Combining this evidence with the apparently unwritten nature of CVS’s floater policy and

the fact that new pharmacists could work in various stores in the same manner as floaters, a fair-

minded jury could return a verdict in favor of Plaintiff on this record. Summary judgment for CVS

on Plaintiff’s discrimination claim based on his transfer to the floater position is therefore

inappropriate. See Anderson, 477 U.S. at 251–52.

Because Plaintiff has established a prima facie case of ADEA discrimination as to

Plaintiff’s transfer to a floater pharmacist position, and because Plaintiff has adequately met his

burden of showing CVS’s explanation for the transfer was a pretext for discrimination, the Court

will DENY CVS’s motion for summary judgment on this claim.

3. Suspension and Warning

Plaintiff claims his suspension and subsequent Level III warning were factually inseparable

from each other and constituted age discrimination under the ADEA. (Doc. 84 at 18.)

CVS first attacks the adverse-employment-action element of Plaintiff’s prima facie case

on this claim because neither warnings nor paid suspensions normally constitute adverse

employment actions. (Doc. 81 at 14–15.) Plaintiff responds that the suspension was unpaid at

least at the time, and therefore constitutes an adverse employment action even if CVS paid him for

the time later. (Doc. 84 at 18–19.)

“[A] suspension with pay and full benefits pending a timely investigation into suspected

wrongdoing is not an adverse employment action.” Peltier v. United States, 388 F.3d 984, 988

(6th Cir. 2004) (emphasis in original) (quoting White v. Burlington N. & Santa Fe Ry. Co., 364

F.3d 789, 803 (6th Cir. 2004)). Conversely, a suspension without pay may constitute an adverse

employment action, even where back pay is later granted. White, 388 F.3d at 800–02. This is so

in part because an employee’s loss of the use of his or her wages even for a time can be a harm,

and because it may require more than simple back pay to make a plaintiff whole from the injuries

caused by an unlawful act of employment discrimination. See id. at 802 (citing Lovejoy-Wilson v.

NOCO Motor Fuel, Inc., 263 F.3d 208, 223–24 (2d Cir. 2001)).

Plaintiff has presented evidence that his October 19, 2015, suspension was unpaid at the

time it occurred. (Doc. 83-2 at 35 [Hatfield Dep. at 228]; Doc. 83-2 at 232 [Pl.’s Ex. 18].)

Specifically, for the pay period ending October 10, 2015, Plaintiff’s gross pay was $3,887.49 and

his net pay was $2,676.88. (Doc. 83-2 at 232 [Pl.’s Ex. 18].) For the pay period ending October

24, 2015, Plaintiff’s gross pay was $194.37 and his net pay was $1.12. (Id.) Plaintiff has also

presented evidence that not paying him for his suspension was a deliberate, and therefore

potentially punitive, choice by CVS. (See Doc. 83-4 at 107 [Pl.’s Ex. 46] (October 27, 2015, email

from Mitchell indicating she had asked that Plaintiff only be paid for three hours for the week of

his suspension).) The court must view all reasonable inferences in the light most favorable to

Plaintiff. See Matsushita Elec., 475 U.S. at 587. CVS concedes in its reply that “there was a brief

two-week delay in Garren’s receipt of the pay,” but argues that because “Mitchell was already

looking into the issue as of October 28” and because Plaintiff later received full pay, “the situation

presented here is certainly not an adverse action as contemplated in the case law.” (Doc. 85 at 14–

15.) CVS does not, however, explain how this situation is distinguishable from adverse

employment actions “contemplated in the case law.” (See id.)

The “burden to establish a prima facie case is light, one ‘easily met’ and ‘not onerous.’”

Willard, 952 F.3d at 808 (quoting Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 813 (6th Cir.

2011)). The purpose of the prima facie analysis is merely to eliminate the most common non-

discriminatory reasons for an employer’s treatment of the plaintiff, thereby raising a rebuttable

presumption of discrimination. Id. (quoting Cline v. Catholic Diocese of Toledo, 206 F.3d 651,

660 (6th Cir. 2000)). Plaintiff’s showing of a delay in his pay during his suspension is sufficient

to show an adverse employment action at the prima facie stage. CVS’s argument that it is entitled

to judgment as a matter of law on the grounds that Plaintiff’s suspension was not an adverse

employment action for purposes of Plaintiff’s prima facie case therefore fails.

Defendants’ next argument is under the fourth element of Plaintiff’s prima facie case: that

Plaintiff has made no showing of similarly situated individuals being treated more favorably than

Plaintiff with respect to the conduct that led to his suspension and Level III warning. (Doc. 81 at

15.)

Plaintiff does not respond to this specific argument. However, as the Court has explained

above, the fourth element of Plaintiff’s case is not limited to whether similarly situated individuals

were treated more favorably than Plaintiff. (See supra § III(C)(1).) Rather, it requires a showing

of “circumstances that support an inference of discrimination,” which may include, but do not

require, evidence of more favorable treatment of a similarly situated, non-protected employee.

Willard, 952 F.3d at 808. Plaintiff’s response argues at some length that he has presented evidence

from which a juror could conclude the suspension and Level III warning were a pretext for age

discrimination. (Doc. 84 at 19–22.) Plaintiff’s arguments and evidence on pretext, which the

Court discusses specifically below, are enough to first meet the light burden of showing

circumstances that support an inference of discrimination as to the suspension and Level III

warning for purposes of establishing his prima facie case. See Willard, 952 F.3d at 808 (plaintiff’s

burden to establish prima facie case is light and easily met).

CVS argues next that it had a legitimate, non-discriminatory reason for the suspension and

warning as to which Plaintiff cannot demonstrate pretext. CVS points to Hatfield’s morale survey,

which “established that Garren had engaged in significant personal business during work hours;

acted in an insulting manner towards leadership and staff; and showed pharmacy and front store

staff inappropriate pictures.” (Doc. 81 at 15.) CVS also relies on the argument that Plaintiff did

not make phone calls he was supposed to make as a pharmacist. (Id.)

Plaintiff responds that he has presented evidence from which a juror could conclude the

suspension and Level III warning were a pretext for age discrimination. (Doc. 84 at 19–22.) He

begins by arguing Plemons’s complaint itself was manufactured, in that Plemons had not

complained about Plaintiff in the ten previous years they had worked together, and she had only

worked at Tellico one day since Plaintiff’s return. Next, he argues that Hatfield, Broyles, and

Mitchell used Plemons’s complaint as an excuse to develop reasons to get rid of Plaintiff, going

beyond the scope of the non-pharmacy-related complaint to explore his conduct as a pharmacist,

without speaking with Wooldridge as Plaintiff’s supervisor. Hatfield’s emails at the time included

statements Plaintiff characterizes as age-biased, such as Plaintiff’s alleged inability to adapt or

change to meet CVS’s requirements. In addition, Plaintiff contrasts the scantiness of Hatfield’s

investigation of Plaintiff’s multiple complaints of age discrimination with the effort Hatfield put

into developing a written record against Plaintiff. Finally, Plaintiff argues that the Level III

warning was an attempt to create a reason to fire Plaintiff: it required Plaintiff to make prescriber

phone calls Plaintiff had objected to on ethical grounds, and it included the logistically impossible

requirement that Plaintiff meet regularly with Wooldridge, even though they were the only two

pharmacists at Tellico and could not both be away from filling prescriptions at the same time.

Plaintiff has borne his burden of showing Plemons’s complaint and the survey results were

insufficient to or did not actually motivate Plaintiff’s suspension and warning. See Lefevers, 667

F.3d at 725. The Court considers the lack of any previous complaints about Plaintiff; the short

time between Plaintiff’s return to the store and Plemons’s complaint against him; that Plemons’s

complaint was based only on second-hand information; the difference between Hatfield’s

investigation of Plaintiff’s age-discrimination complaints and his investigation of Plemons’s

complaint; the completion of a morale survey of only three employees; Hatfield’s failure to

communicate with Wooldridge as Plaintiff’s supervisor and the pharmacy manager about matters

relating to pharmacy operations; Hatfield’s failure to respond to Plemons regarding her complaint;

and CVS’s skipping over earlier stages of its progressive discipline policy against a long-term

employee.9 The context in which these events took place is also relevant. Within the months

9 The Court also notes that CVS’s characterization of Plaintiff’s suspension as a

leading up to this disciplinary action, Plaintiff had been moved to a floater position to make room

for a much younger replacement, and he had then been moved back to his original position,

displacing the younger replacement and disrupting CVS’s plans for the store.

In its reply, CVS argues Plaintiff “fails to even contend that he did not engage in the

behavior attributed to him in the morale survey.” (Doc. 85 at 14.) Showing an employer’s

professed reason for its actions “had no basis in fact” is only one of three ways in which a plaintiff

may prove pretext. Lefevers, 667 F.3d 725. Showing the professed reason “did not actually

motivate the defendant’s challenged conduct, or was insufficient to motivate the defendant’s

challenged conduct” are also permissible ways to show pretext, see id., as Plaintiff has done here.

Plaintiff therefore does not have to show he did not engage in the conduct attributed to him in the

morale survey.

Because Plaintiff has established a prima facie case of ADEA discrimination as to

Plaintiff’s suspension and warning, and because Plaintiff has adequately met his burden of

showing CVS’s explanation for the suspension and warning was a pretext for discrimination, the

Court will DENY CVS’s motion for summary judgment on this claim.

4. Termination

Plaintiff claims his termination constituted age discrimination under the ADEA. CVS’s

motion for summary judgment attacks this claim on two grounds.

First, CVS argues Plaintiff has failed to satisfy the fourth element of his prima facie case

because he has not shown CVS treated him differently than other employees, in that it fired other

“suspension pending investigation” seems inapt. CVS investigated for almost a month between

Plemons’s complaint and Plaintiff’s suspension. It then suspended Plaintiff for approximately

eight days, during which it does not identify any investigatory actions. (See Doc. 81 at 6–7.)

Despite CVS’s label for the suspension, there are circumstances from which a reasonable juror

could conclude that it was meant as a punishment or a step toward termination.

employees CVS found to have falsified customer surveys. As discussed above, CVS’s argument

fails to recognize the breadth of the fourth element of the prima facie case. (See supra §§ III(C)(1),

III(C)(3).) The fourth element requires a showing of “circumstances that support an inference of

discrimination,” which may include “when the employer replaced the plaintiff with a younger

employee.” Willard, 952 F.3d at 808.

Plaintiff has presented evidence that after CVS terminated him, it replaced him with

floaters and with two new pharmacy graduates in turn. (Doc. 84 at 15, 23; Doc. 83-11 at 4–5

[Wooldridge Dep. at 23–27].) The first permanent replacement stayed about six months. (See id.)

Plaintiff has not provided evidence about her age, but it is reasonable to infer from the fact that

she was a new pharmacy graduate that she was substantially younger than Plaintiff. See Matsushita

Elec., 475 U.S. at 587 (court should view all reasonable inferences in the light most favorable to

the nonmoving party). The current incumbent in the position is twenty-seven years old. (Doc. 84

at 15, 23; Doc. 83-11 at 4–5 [Wooldridge Dep. at 23–27].) CVS does not dispute that it replaced

Plaintiff with substantially younger individuals after his termination. See Doc. 85 [Defs.’ Reply

Br.].) The Court concludes Plaintiff’s evidence is sufficient to satisfy the fourth element of his

prima facie case. See Willard, 952 F.3d at 808 (burden to establish prima facie case is light;

purpose is to eliminate common non-discriminatory reasons for action).

CVS argues in the alternative that it had a legitimate, non-discriminatory reason for

terminating Plaintiff: Plaintiff admitted to fraudulently completing customer surveys. (Doc. 81 at

15–16.) CVS further argues Plaintiff cannot demonstrate pretext, because CVS investigated and

terminated other employees for doing the same thing. (Id.)

Plaintiff responds that “[e]veryone at Tellico made the same calls Plaintiff made at the

direction of the Store and District Managers,” and those people were not fired. (Doc. 84 at 13,

22.) In addition, Plaintiff offers evidence that at the meeting to discuss his completion of the two

surveys, he told Broyles and Burd that he made the calls in view of the security cameras on purpose

to trigger the investigation, and that he said Broyles had encouraged front-store employees to

complete surveys fraudulently. (Doc. 84 at 14.) Burd testified that he had no memory of a

complaint against Broyles and did not investigate such a complaint. There is accordingly a genuine

issue of fact as to whether there were other, younger, employees who were not fired for engaging

in the same conduct as Plaintiff, making CVS’s reliance on the surveys a possible pretext for

discrimination.

Because Plaintiff has established a prima facie case of ADEA discrimination as to

Plaintiff’s termination, and because Plaintiff has adequately met his burden of showing CVS’s

explanation for the termination was a pretext for discrimination, the Court will DENY CVS’s

motion for summary judgment on this claim.

D. ADEA Harassment

CVS argues Plaintiff has not pointed to evidence sufficient to establish that he was

subjected to an actionable hostile work environment based on his age. (Doc. 81 at 16.) Plaintiff

does not respond to this argument. (See Doc. 84.) A plaintiff who fails to address a claim in

response to a motion for summary judgment is deemed to have abandoned that claim. Brown v.

VHS of Mich., Inc., 545 F. App’x 368, 371–72 (6th Cir. 2013). The Court accordingly will not

address the merits of the motion for summary judgment on Plaintiff’s ADEA harassment claim.

See Hicks v. Concorde Career Coll., 449 F. App’x 484, 487 (6th Cir. 2011) (district court correctly

declined to consider merits of claim plaintiff did not address in response to summary judgment

motion). The Court will GRANT CVS’s motion for summary judgment as to Plaintiff’s ADEA

harassment claim.

E. ADEA Retaliation

The McDonnell Douglas burden-shifting framework described above as to discrimination

(see supra § III(C)) also applies to Defendant’s motion for summary judgment on Plaintiff’s

retaliation claims. See, e.g., Imwalle v. Reliance Med. Prods., 515 F.3d 531, 544 (6th Cir. 2008).

To establish a prima facie case of retaliation under the ADEA and satisfy the first step of

the burden-shifting framework for summary judgment purposes, a plaintiff must show: (1) the

plaintiff engaged in protected activity; (2) the employer was aware of the protected activity; (3) the

employer took an adverse employment action against the plaintiff; and (4) a causal connection

between the protected activity and the adverse employment action. Fox v. Eagle Distr. Co., 510

F.3d 587, 591 (6th Cir. 2007) (citing Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 381 (6th

Cir. 2002)).

Plaintiff claims CVS retaliated against him for his age-related complaints by suspending

him and putting him on a warning, and then by terminating him. CVS concedes Plaintiff engaged

in protected activity under the ADEA. (Doc. 81 at 17.) CVS argues Plaintiff’s prima facie case

of retaliation fails as to the suspension and warning for lack of an adverse employment action,

however, and as to both claims for lack of a causal connection between Plaintiff’s protected activity

and those actions.

1. Suspension and Warning

Plaintiff claims his suspension and Level III warning violated the ADEA as acts of

retaliation against him for complaining about age discrimination.

CVS first attacks Plaintiff’s prima facie case of ADEA retaliation as to the suspension and

warning on the grounds that they were not adverse employment actions. (Doc. 81 at 17.) CVS

relies on the same reasons it advanced as to Plaintiff’s discrimination claim. (Id.) The Court

rejects those arguments here for the same reasons it rejected them above. (See supra § III(C)(3).)

Plaintiff has made a sufficient showing of an adverse employment action to satisfy his prima facie

case of retaliation as to the suspension and warning.

CVS next argues Plaintiff’s prima facie case of retaliation fails as to the suspension and

warning under the fourth element, a causal connection between the actions and Plaintiff’s protected

activity. (Doc. 81 at 17.) CVS argues Plaintiff only has evidence of temporal proximity to

establish a causal connection, and mere temporal proximity is legally insufficient. (Id. (quoting

Killen v. Walgreen Co., No. 2:17-cv-145, 2019 WL 3064593, at *17 (E.D. Tenn. July 11, 2019)).)

Plaintiff responds that temporal proximity can be enough to establish causation where the lapse in

time is short, and argues Plaintiff’s is such a case. (Doc. 84 at 23–24 (citing Seeger v. Cincinnati

Bell Tel. Co., 681 F.3d 274, 283–84 (6th Cir. 2012)).) Plaintiff also points to evidence that Hatfield

was trying to build a case against Plaintiff as additional evidence of causation. (Id. at 24; see also

id. at 7–10.)

CVS’s focus on a bright-line rule against using temporal proximity to show causation is

misplaced. CVS’s motion accurately cites a recent district-court opinion which said there was

such a rule, but which found pretext based on the combination of temporal proximity and other

evidence. See Killen, 2019 WL 3064593, at *17. But CVS overlooks more thorough and nuanced

discussions of the question in other opinions, including by the Court of Appeals itself. For

example, CVS overlooks a seminal discussion of the question in one of the cases CVS itself cites

elsewhere, in which the Court of Appeals analyzed the two lines of case law on temporal proximity

and causation, concluding as follows:

Although we acknowledge . . . some “confusion in the case law [exists] on this

issue,” . . . the two lines of cases are fully reconcilable. Where an adverse

employment action occurs very close in time after an employer learns of a protected

activity, such temporal proximity between the events is significant enough to

constitute evidence of a causal connection for the purposes of satisfying a prima

facie case of retaliation. But where some time elapses between when the employer

learns of a protected activity and the subsequent adverse employment action, the

employee must couple temporal proximity with other evidence of retaliatory

conduct to establish causality.

Mickey, 516 F.3d at 525 (second alteration in original; internal citation omitted).

While a bright-line rule about what amount of time is or is not sufficient to show causation

would be convenient to apply, the Court and the parties are required to perform a more complex

analysis based on the circumstances as a whole. In order to show a causal connection between

protected activity and an adverse employment action, “a plaintiff must proffer evidence sufficient

to raise the inference that her protected activity was the likely reason for the adverse action.”

Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 596 (6th Cir. 2007) (under Title VII). “The

burden of establishing a prima facie case in a retaliation action is not onerous, but one easily met.”

Mickey, 516 F.3d at 523 (quoting Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000)).

As set out in Mickey, 516 F3d at 525, temporal proximity is one of the factors the Court may

consider, and temporal proximity may be sufficient alone when it is very close.

Plaintiff complained to CVS of age discrimination on August 5, 2015. Hatfield began an

investigation against Plaintiff on or soon after September 22, 2015, when Plemons emailed her

own complaint about Plaintiff to Broyles and Mitchell. Hatfield’s investigation went into

Plaintiff’s performance as a pharmacist without seeking information from Wooldridge as

pharmacy manager. The investigation also included Hatfield’s request for detailed reports

showing a drop in pharmacy performance since Plaintiff’s recent September 13, 2015, return.

Plaintiff was suspended on October 19, 2015, about two and a half months after his initial

complaint of age discrimination. He was given a Level III warning on October 27, less than three

months after his complaint. The Court finds the temporal proximity between Plaintiff’s protected

activity and his suspension and warning, combined with the circumstances of the aggressive

investigation into Plaintiff’s performance, sufficient to satisfy the low bar of raising an inference

that Plaintiff’s protected activity was the likely reason for the suspension for purposes of Plaintiff’s

prima facie case. See, e.g., Hamilton v. Gen. Elec. Co., 556 F.3d 428, 435–36 (6th Cir. 2009)

(temporal proximity of three months combined with management’s heightened scrutiny of

plaintiff’s behavior during that time sufficient to establish causal nexus).

Because Plaintiff has established a prima facie case of ADEA retaliation as to his

suspension and warning, the Court will DENY CVS’s motion for summary judgment on this

claim.10

2. Termination

Plaintiff claims his termination violated the ADEA as an act of retaliation against him for

complaining to CVS about age discrimination.

CVS argues there is no causal connection between Plaintiff’s age complaints and his

termination, and there is no pretext as to CVS’s reason for the termination, because the termination

was based on an independent event: Plaintiff’s admitted completion of two customer surveys.

(Doc. 81 at 17–18.) Plaintiff responds that the close proximity in time between his complaints and

his termination allows an inference of retaliation. (Doc. 84 at 24–25.) Plaintiff further submits

Hatfield knew about all of Plaintiff’s protected activity and was involved in his termination. (Id.

at 25.) As to pretext, Plaintiff refers to his earlier arguments that CVS’s alleged reasons for its

adverse actions against Plaintiff do not make sense. (Id.)

CVS offers no authority for its proposition that an intervening event defeats the causation

element of a prima facie case of retaliation. Such an argument is more appropriately considered

10 Defendant does not argue in its motion or reply that it should be granted summary

judgment on this portion of Plaintiff’s retaliation claim on the basis of a legitimate, non-

discriminatory reason for the suspension and warning

at the pretext stage of the burden-shifting analysis. See, e.g., Williams v. AT&T Mobility Servs.

LLC, 847 F.3d 384, 396 (6th Cir. 2017) (where defendant’s grounds for contesting causation

element was the existence of a non-discriminatory reason for termination, court assumed plaintiff

established prima facie case and proceeded to consider pretext).

To show a causal connection between his age-discrimination complaints and his

termination, Plaintiff “must proffer evidence sufficient to raise the inference that [his] protected

activity was the likely reason for the adverse action.” See Michael, 496 F.3d at 596. Plaintiff

complained to CVS of age discrimination on August 5, October 20, October 28, November 5, and

November 6, 2015. He was terminated on November 6, 2015, a few hours after his last complaint.

The temporal proximity between Plaintiff’s final two complaints and his termination is very close.

In addition, in Hatfield’s October 21, 2015, email to Smith, Hatfield suggested terminating

Plaintiff after complaining of Plaintiff’s “mul[]tiple emails with claims we’ve been unable to

substantiate at this time.” (Doc. 83-2 at 139–143 [Pl.’s Ex. 1 at Bates No. 1006–10]; id. at 39

[Hatfield Dep. 246–47].) One of those “multiple complaints” of which Hatfield was critical was

Plaintiff’s complaint of age discrimination on October 20, 2020. Mindful that Plaintiff’s burden

to establish his prima facie case is light and easily met, see Willard, 952 F.3d at 808, the Court

finds Plaintiff has proffered evidence sufficient to raise the inference that his age discrimination

complaints were the likely reason for his termination.

CVS points to Plaintiff’s completion of the surveys as its legitimate, nondiscriminatory

reason for terminating Plaintiff. (Doc. 81 at 17–18.) Plaintiff argues this is a pretext, in that

“CVS’s reasons for its actions make no sense, and a reasonable juror could certainly conclude that

the real reasons were retaliatory for age-based protected activity.” (Doc. 84 at 25.)

Pretext can be proven by showing the reason the employer gave for its actions “had no

basis in fact, did not actually motivate the defendant’s challenged conduct, or was insufficient to

motivate the defendant’s challenged conduct.” Lefevers, 667 F.3d at 725. CVS’s allegation that

Plaintiff completed customer surveys has a basis in fact, as Plaintiff has admitted. Nor does

Plaintiff argue this conduct was insufficient to motivate his termination; on the contrary, other

employees were terminated for the same type of conduct.11 That leaves the question of whether

Plaintiff has shown his completion of the surveys did not actually motivate his termination.

Throughout the burden-shifting analysis, “[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.” Reeves, 530 U.S. at 143. As the movant in the motion for summary judgment, however,

CVS bears the burden of showing there is no genuine dispute as to any material fact and it is

entitled to judgment as a matter of law, Fed. R. Civ. P. 56(a), viewing the evidence and all

reasonable inferences in the light most favorable to Plaintiff, Matsushita, 475 U.S. at 587.

Viewed through these lenses, the Court sees the following. CVS asked Plaintiff, who was

over sixty years old, about his retirement plans. Plaintiff said he did not plan to retire in the

foreseeable future. CVS then hired a young pharmacy graduate to fill a non-existent vacancy at

the Tellico pharmacy anyway, telling Plaintiff he would have to become a floater pharmacist

because the new hire could not be one. After Plaintiff complained of age discrimination and asked

to be moved back to Tellico, CVS complied. However, within a week of Plaintiff’s return, Hatfield

took the opportunity of Plemons’s second-hand complaint about Plaintiff’s attitude and comments

to investigate Plaintiff, including his performance as a pharmacist, without speaking with

11 Plaintiff has not presented the Court with evidence of the frequency of the other

employees’ conduct as compared to the two occasions to which Plaintiff has admitted.

Plaintiff’s supervisor. CVS suspended Plaintiff for a week, initially without pay. Plaintiff

complained again about age discrimination, and Hatfield suggested terminating Plaintiff in an

email with a negative tone about Plaintiff’s complaints. Instead of terminating Plaintiff, however,

CVS gave him a Level III warning and performance plan, the first discipline of his career,

explicitly warning him of a possible termination. Again, Plaintiff complained of discrimination.

Within days of arriving at this fraught moment, CVS learned that Plaintiff had completed

two surveys from customer receipts. Plaintiff complained of age discrimination before and during

his final meeting with CVS personnel. During the meeting, Plaintiff explained he disagreed with

the practice of completing customer surveys, but said he did it deliberately to get attention and

trigger an investigation. CVS fired him the same day.

Was Plaintiff’s explanation for his conduct with the surveys truthful? If so, was his conduct

excusable? And, ultimately, were the surveys CVS’s true reason for the termination, or was

Plaintiff’s conduct a convenient opportunity to do what CVS had been wanting to do for some

time? Based on the factual showing made by Plaintiff described above as to the possibility of

pretext,12 and considering the burden on CVS to show it is entitled to judgment as a matter of law

in order to prevail on its motion for summary judgment, the Court cannot conclude CVS is entitled

to judgment as a matter of law as to pretext. These questions must be answered instead by the trier

of fact. The Court will DENY CVS’s motion for summary judgment on Plaintiff’s retaliation

claim.

12 CVS does not even acknowledge the existence of Plaintiff’s explanation for his conduct

in either of its briefs on summary judgment. According to Plaintiff, he offered that explanation

not just in this litigation, but in the meeting immediately before his termination. CVS’s continued

failure to acknowledge Plaintiff’s explanation—even for the purpose of dismissing it—adds

weight to Plaintiff’s showing that his completion of the surveys was not actually the motivation

for his termination.

F. ADA Claims

For the ADA to apply, a person must have a “disability” as defined in the Act, meaning he

or she either (1) has “a physical or mental impairment that substantially limits one or more major

life activities,” (2) has “a record of such an impairment,” or (3) is “regarded as having such an

impairment.” 42 U.S.C. § 12102(1); see also Booth v. No. Am., Inc., 927 F.3d 387, 393 (6th Cir.

2019). Courts are to apply a broad construction in favor of expansive coverage in determining

whether a person is disabled and whether an impairment “substantially limits” a major life activity.

Morrissey v. Laurel Health Care Co., 946 F.3d 292, 299 (6th Cir. 2019) (citing 42 U.S.C.

§ 12102(4)(A), (B).)

CVS argues at some length that there is no evidence Plaintiff has a disability under any of

the three definitions set out in the ADA. (Doc. 81 at 18–20.) Plaintiff asserts in response that he

“has chronic venous insufficiency, which limits the amount of time Plaintiff can work on his feet.”

(Doc. 84 at 25.) Plaintiff therefore appears to rely on the first part of the ADA’s definition to

establish his disability: “a physical . . . impairment that substantially limits one or more major life

activities.” See 42 U.S.C. § 12102(1)(A). “Standing” and “working” both qualify as major life

activities. See id. § 12102(2)(A).

“To determine whether a disability substantially limits major life activities, the regulations

direct courts to compare the person claiming a disability to ‘most people in the general

population.’” Morrissey, 946 F.3d at 299 (quoting Hostettler v. Coll. of Wooster, 895 F.3d 844,

853–54 (6th Cir. 2018)). This is not a demanding standard, and it generally does not require a

plaintiff to submit scientific, medical, or statistical evidence. Id. (citing 29 C.F.R. § 1630 (App’x),

id. § 1630.2(j)(v)).

CVS’s motion asserts “[t]here is no evidence that Garren’s condition substantially limited

any major life activity during his employment with CVS.” (Doc. 81 at 18.) In response, Plaintiff

offers his own deposition testimony that his medically diagnosed chronic venous insufficiency

limits his ability to stand and his ability to work while standing, and that he had swelling in his

lower legs that made it difficult to get his pants over his leg. (See Doc. 84 at 2–3 (citing Doc. 83-

1 at 3–4 [Garren Dep. at 23, 26, 28]).) But that is all. Plaintiff offers no information as to how

long he could comfortably stand, what happened if he stood too long, how often his work required

him to stand, or any other facts the Court could use to compare him to “most people in the general

population.” See Morrissey, 946 F.3d at 299. The Court therefore lacks evidence from which it

could find Plaintiff is substantially limited in standing or working. Without such evidence, the

Court cannot determine that Plaintiff qualifies as a person with a disability under the ADA.

Moreover, Plaintiff’s single paragraph of argument as to all of his ADA claims together

does not explain or apply the definition of a disability or any of the relevant standards. “It is not

sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to

. . . put flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (alteration

in original; citation omitted).

The Court thus lacks both evidence from which to determine that Plaintiff has a disability

and argument by Plaintiff explaining how he satisfies even the lenient standard of having a

disability under the ADA. The Court will therefore GRANT CVS’s motion for summary

judgment as to Plaintiff’s claims under the ADA.

IV. CONCLUSION

The Court will GRANT IN PART AND DENY IN PART Defendants’ motion for

summary judgment (Doc. 80). The Court will GRANT summary judgment in favor of CVS

Pharmacy, Inc. and Tennessee CVS Pharmacy, LLC on all claims. The Court will GRANT CVS

Rx Services, Inc.’s motion for summary judgment as to Plaintiff’s ADEA harassment claim and

his ADA claims. The Court will DENY CVS Rx Services, Inc.’s motion for summary judgment

on Plaintiff’s claims of ADEA discrimination and ADEA retaliation. The Court will

OVERRULE Plaintiff’s objection (Doc. 88) AS MOOT.

An appropriate order will enter.

/s/____________________________

CURTIS L. COLLIER

UNITED STATES DISTRICT JUDGE