Paul Hughey v. CVS Caremark Corporation
Filing
OPINION filed: We AFFIRM the judgment of the district court, decision not for publication. John M. Rogers, Circuit Judge; Bernice Bouie Donald (authoring), Circuit Judge and Thomas M. Rose, U.S. District Judge (Southern District of Ohio, sitting by designation).
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0700n.06
FILED
Case No. 15-5114
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PAUL HUGHEY,
Plaintiff-Appellant,
v.
CVS CAREMARK CORPORATION,
Defendant-Appellee.
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Oct 16, 2015
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF
TENNESSEE
BEFORE: ROGERS and DONALD, Circuit Judges; ROSE, District Judge.1
BERNICE BOUIE DONALD, Circuit Judge.
Paul Hughey (“Hughey”) appeals the
grant of summary judgment to CVS Caremark Corporation (“CVS”) in his employment
discrimination claim pursuant to the Age Discrimination in Employment Act (“ADEA”).
The
United States District Court for the Middle District of Tennessee found that Hughey failed to
make a prima facie showing of age discrimination and that, even if Hughey established a prima
facie case, he failed to show that CVS’s reason for terminating him was a pretext for age
discrimination.
For the reasons set forth below, we AFFIRM the judgment of the district court.
1
The Honorable Thomas M. Rose, United States District Judge for the Southern District of Ohio, sitting by
designation.
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Case No. 15-5114, Paul Hughey v. CVS Caremark Corporation
I.
CVS hired Hughey as a Pharmacist in Charge on August 12, 1998, about one month
before his 40th birthday. As a Pharmacist in Charge, Hughey was responsible for all aspects of
pharmacy operations within his store. Id. Until the events that led to this litigation occurred,
CVS had never reprimanded Hughey for any rule violation. In fact, he received an “Exceeds
Expectations” grade on his annual performance reviews from 2009 until 2011. Id. He was also
named Pharmacist of the Year in his district in 2005 and 2007.
CVS maintained a Pharmacy Operations Manual that provided the policies with which it
expected its pharmacists to comply. Three of the policies are relevant in this case. Id. First,
CVS’s pharmacists were not to accept payment from a customer who received anything less than
the full quantity of his or her prescription. Id. Second, CVS prohibited its pharmacies from
exchanging medicine with non-CVS pharmacies. Id. If a CVS pharmacist was unable to fill a
customer’s prescription due to lack of inventory, the Pharmacy Operations Manual instructed a
pharmacist to transfer the prescription to a competitor. Id. Third, CVS pharmacists must take
several steps upon the discovery of a dispensing error, including, but not limited to, completing
an incident report. Id.
Hughey violated all three of these policies. In December 2011, Hughey partially filled a
prescription for a customer, who was a TennCare beneficiary. In violation of the Pharmacy
Operations Manual, Hughey billed TennCare as if he had completely filled the prescription. Id.
On another occasion, Hughey traded Nexium B-12 with a competitor. Id. Lastly, Hughey
neglected to complete incident reports for two dispensing errors. Id.
CVS’s Regional Loss Prevention Manager, Todd Crowell, and Pharmacy Supervisor,
Gene Allen, met with Hughey about his infractions. At the meeting, they provided Hughey with
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a set of questions and asked him to submit written responses. In his responses, Hughey admitted
to improperly charging TennCare for the partially filled prescription and improperly trading
medication with a competitor. Although the presence of his initials on the prescriptions proved
that he was responsible for the two dispensing errors, he denied having any recollection of them.
However, he did say that he should have submitted an incident report in both instances. Id.
On August 9, 2012, Hughey reported to CVS’s district office, where he met with two
CVS representatives. During this meeting, the representatives informed him that CVS was
terminating his employment for his violations of CVS policies.
Hughey filed a complaint in the United States District Court for the Middle District of
Tennessee on September 20, 2013, asserting an ADEA claim. On November 7, 2014, CVS filed
a motion for summary judgment, arguing that Hughey could not establish a prima facie ADEA
case, and even if he could, Hughey could not demonstrate that CVS’s reason for terminating his
employment was a pretext for age discrimination. The district court agreed and granted CVS
summary judgment. This timely appeal followed.
II.
On appeal, we review de novo the district court’s grant of summary judgment. Borman,
LLC v. 18718 Borman, LLC, 777 F.3d 816, 821 (6th Cir. 2015). Construing all reasonable
inferences in favor of the non-moving party, we will affirm the grant of summary judgment if
there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Id. (quoting Fed. R. Civ. P. 56(a)). “[A] mere ‘scintilla’ of evidence in support
of the non-moving party’s position is insufficient to defeat summary judgment; rather, the nonmoving party must present evidence upon which a reasonable jury could find in her favor.”
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Tingle v. Arbors at Hilliard, 692 F.3d 523, 529 (6th Cir. 2012) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251 (1986)).
III.
A.
The ADEA makes it unlawful for an employer “to discharge any individual or otherwise
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a). An employee
can establish a claim under the ADEA by offering either direct or circumstantial evidence of age
discrimination. Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003).
Direct evidence of discrimination is “evidence which, if believed, requires the conclusion that
unlawful discrimination was at least a motivating factor in the employer's actions.”
Id.
Circumstantial evidence is proof that does not on its face establish discriminatory animus, but
does allow a factfinder to draw a reasonable inference that discrimination occurred. Id. This
case does not involve any direct evidence of age discrimination; therefore, in order to prove his
claims Hughey seeks to rely on circumstantial evidence. (Appellant Br. at 16.)
In order to establish a prima facie ADEA case using circumstantial evidence, a plaintiff must
show that: (1) he is a member of the protected class — i.e. he is at least forty years of age; (2) he
was subjected to an adverse employment action; (3) he was qualified for the position; and (4) he
was treated differently from similarly situated employees outside the protected class. Mitchell v.
Vanderbilt Univ., 389 F.3d 177, 181 (6th Cir. 2004).
A plaintiff has the initial burden of presenting evidence sufficient to establish a prima
facie case of age discrimination. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 350
(6th Cir. 1998). Once a plaintiff establishes a prima facie case, the burden of production shifts to
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the employer, who must articulate a legitimate nondiscriminatory reason for the adverse
employment action. Id. If the employer meets this burden, the burden of production shifts back
to the plaintiff. Id.
The plaintiff then must show that the employer's nondiscriminatory
explanation is a mere pretext for intentional age discrimination. Id. The district court granted
summary judgment because there was no evidence showing that Hughey was treated differently
than any similarly situated CVS employee and because Hughey had not shown that CVS’s
reason for discharging him was a pretext.
B.
On appeal, Hughey argues that he has demonstrated that he was treated differently than a
similarly situated CVS employee not within his protected class. Specifically, he points to
another CVS pharmacist, Joseph Gariboldi (“Gariboldi”), who he alleges was not terminated
after he committed the following acts:
“chronic tardiness, leaving the pharmacy counter
unattended, being report[ed] for sexual harassment against his coworkers multiple times,
decreasing the performance metrics of his store, and potentially coming to work impaired.”
(Appellant Br. at 19.)
As an initial matter, Hughey neglected to provide a citation pointing to evidence
supporting these allegations in his Appellant Brief and his Reply Brief to CVS’s motion for
Summary Judgment.
respectively.
This omission violates Fed. R. App. P. 28 and Fed. R. Civ. P. 56,
“[W]here the movant brings forward and supports his motion for summary
judgment, his opponent may not rest merely upon his pleadings but rather must come forward to
show genuine issues of fact. Mere conclusory and unsupported allegations, rooted in speculation,
do not meet that burden.” Bryant v. Com. of Ky., 490 F.2d 1273, 1275 (6th Cir. 1974).
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However, even if Hughey’s allegations were supported, they still would do nothing to
advance his claim. To satisfy the similarly-situated requirement, a plaintiff must demonstrate
that the comparable employee is similar “in all of the relevant aspects.” Martin v. Toledo
Cardiology Consultants, Inc., 548 F.3d 405, 412 (6th Cir. 2008); Ercegovich, 154 F.3d at 352.
To be deemed “similarly-situated,” the individual with whom the plaintiff seeks to compare his
treatment must have dealt with the same supervisor, have been subject to the same standards, and
have engaged in the same conduct without such differentiating or mitigating circumstances that
would distinguish their conduct or the employer's treatment of them for it. Mitchell v. Toledo
Hosp., 964 F.2d 577, 583 (6th Cir. 1992).
Hughey’s argument that he is similarly situated to Gariboldi fails because none of
Gariboldi’s alleged conduct resembles the infractions that caused CVS to discharge Hughey.
CVS discharged Hughey because he violated three CVS policies that governed his duties as a
pharmacist. In contrast, Hughey does not accuse Gariboldi of violating such a policy. Instead,
he throws out a host of unsupported allegations about Gariboldi, many of which have nothing to
do with how he carried out his duties as a pharmacist. The allegations that do loosely pertain to
Gariboldi’s pharmacist duties are unrelated to Hughey’s CVS policy violations.
Because
Gariboldi is not a similarly situated employee outside Hughey’s protected class, who was treated
differently than he was, we agree with the district court’s determination that Hughey failed to
establish a prima facie ADEA claim.
Hughey also argues that CVS’s proffered nondiscriminatory reason for terminating his
employment was a pretext to conceal age discrimination. In attempting to show that CVS’s
termination decision was a pretext, Hughey relies on his prior argument that CVS treated him
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differently than other employees and also argues that his unblemished record should have
provided him with some leeway to make “a few technical errors.” (Appellant Br. at 21.)
Hughey’s arguments are unpersuasive. His reliance on his allegation that he was treated
differently than other employees is misplaced.
When considering whether an employer’s
termination decision constituted a pretext we are solely concerned with whether the employer
had an honest belief in a nondiscriminatory reason for taking the adverse action. See Michael v.
Caterpillar Fin. Servs. Corp., 496 F.3d 584, 598 (6th Cir. 2007). “The key inquiry in assessing
whether an employer holds such an honest belief is ‘whether the employer made a reasonably
informed and considered decision before taking the complained-of action.’” Id. (quoting Smith
v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir.1998). CVS’s termination decision was based on a
nondiscriminatory reason, Hughey’s policy violations. As to whether CVS was reasonably
informed about Hughey’s policy violations, the record clearly indicates that it was. CVS’s
decision was not based on hearsay or speculation.
On the contrary, it was supported by
Hughey’s own admissions, which negated the need for an extensive fact finding investigation.
Hughey cannot argue, nor does he, that CVS was not reasonably informed before discharging
him when its termination decision was made after he confessed to his transgressions.
Hughey also argues that his stellar employment record should have prevented him from
being discharged for a few technical errors. However, a showing of a good employment record
is not relevant in determining whether an adverse employment decision was a pretext for age
discrimination. See Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 286 (6th Cir. 2012).
Accordingly, the district court properly determined that Hughey failed to show that CVS’s
discharge decision was a pretext for age discrimination.
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IV.
For these reasons, we AFFIRM the judgment of the district court.
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