James King v. CVS Caremark Corporation

Filing

Opinion issued by court as to Appellant CVS. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. Motion to strike filed by Appellee James R. King is DISMISSED as MOOT. [8060718-2]. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-11183

Date Filed: 11/22/2017

Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11183
________________________
D.C. Docket No. 1:12-cv-01715-VEH
JAMES R. KING,
Plaintiff-Appellee,
versus
CVS HEALTH CORPORATION,
a.k.a. CVS Pharmacy,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(November 22, 2017)
Before WILSON and NEWSOM, Circuit Judges, and WOOD, * District Judge.
PER CURIAM:

*

Honorable Lisa Godbey Wood, United States District Judge for the Southern District of
Georgia, sitting by designation.

Case: 16-11183

Date Filed: 11/22/2017

Page: 2 of 3

CVS appeals the district court’s denial of its motion for judgment as a matter
of law. On appeal, CVS argues that the jury’s finding that it willfully violated the
Age Discrimination in Employment Act (ADEA) was against the great weight of
the evidence. As such, CVS argues that the district court improperly denied its
motion for judgment as a matter of law. CVS raises a host of additional issues, too:
It argues that the district court erred by refusing to admit certain evidence and by
failing to exclude other evidence, that the district court abused its discretion by
granting the equitable remedies of reinstatement and back pay, that the district
court erred in its choice of jury instructions, and finally, that cumulative error in
the case merits a new trial. After careful review of the record and the parties’
briefs, and with the benefit of oral argument,1 we find no reversible error in the
district court’s rulings.
It is worth noting that the parties’ briefs and oral arguments revealed some
disagreement between the standards used in this Circuit to gauge the admissibility
of comparators in ADEA cases. In this Circuit, in order to make a comparison of
the plaintiff’s treatment to another employee outside the protected class, the

1

Before this Court heard oral argument on the appeal, King filed a motion to strike arguments
related to CVS’s proffered reason for terminating King—that CVS had a reasonable, if mistaken,
belief that King violated CVS policy and state law. King alleged that it would be improper for
this Court to consider that reason in determining the appeal. This Court ordered that King’s
motion to strike would be carried with the case. Having reviewed the material in question, we
have determined that the material in no way alters our opinion. Resolution of that motion is not
necessary to the disposition of the appeal. King’s motion is therefore dismissed as moot.
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Case: 16-11183

Date Filed: 11/22/2017

Page: 3 of 3

plaintiff must show that the two employees are “similarly situated in all relevant
respects.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). Yet this Circuit
has employed two seemingly distinct standards to delineate how similarly situated
those employees’ conduct must be: whether that conduct need only be “same or
similar,” or whether it must instead be “nearly identical.” Compare Maniccia v.
Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) (“We require that the quantity and
quality of the comparator’s misconduct be nearly identical to prevent courts from
second-guessing employers’ reasonable decisions and confusing apples with
oranges”), with Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (“To make
a comparison . . . the plaintiff must show that he and the employees are similarly
situated in all relevant respects”). Any resolution of that matter is a question for
another case. In applying either standard, the Court is convinced that King
presented evidence of an adequate comparator and that the district court did not
abuse its discretion by admitting that evidence.
The Court remains persuaded that sufficient evidence exists, as a legal
matter, from which a reasonable jury could find that CVS Corporation terminated
James King on the basis of his age. We therefore AFFIRM on all issues.

3