Hughes v. Wal-Mart Stores East, LP (JOINT ASSIGN)(MAG+)

Filing 100

MEMORANDUM OPINION AND ORDER GRANTING 76 MOTION for Summary Judgment, as further set out in order; a final judgment will be entered by separate order. Signed by Honorable Judge Andrew L. Brasher on 11/14/19. (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
TIFFANY HUGHES,
Plaintiff,
v.
WAL-MART STORES EAST, LP, and
MICHAEL R. HARRIS,
Defendants.

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CASE NO. 2:17-cv-225-ALB
[WO]

MEMORANDUM OPINION AND ORDER
This is an employment discrimination lawsuit pursuant to the Americans with
Disabilities Act of 1990 (“ADA”), codified at 42 U.S.C. § 12101, et seq., as
amended, between Tiffany Hughes (“Plaintiff”), her former employer Wal-Mart
Stores East, LP (“Wal-Mart”), and former co-worker Michael R. “Rusty” Harris
(collectively, “Defendants”). This matter comes before the court on Defendants’
Motion for Summary Judgment (Doc. 77). The motion has been fully briefed and is
ripe for decision.
I.

JURISDICTION AND VENUE
Subject matter jurisdiction is conferred by 28 U.S.C. § 1343 as to Plaintiff’s

federal causes of action, and the Court may exercise supplemental jurisdiction over
Plaintiff’s state law claims pursuant to 28 U.S.C. § 1367. The parties do not contest

personal jurisdiction or venue, and there are adequate allegations to support both.
See 28 U.S.C. § 1391.
II.

STANDARD OF REVIEW
Summary judgment is appropriate 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 Court views the evidence, and all reasonable
inferences drawn therefrom, in the light most favorable to the nonmoving party.
Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).
The party moving for summary judgment “always bears the initial
responsibility of informing the district court of the basis for the motion.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). This responsibility includes identifying
the portions of the record illustrating the absence of a genuine dispute of material
fact. Id. Alternatively, a movant who does not have a trial burden of production can
assert, without citing the record, that the nonmoving party “cannot produce
admissible evidence to support” a material fact. Fed. R. Civ. P. 56(c)(1)(B); see also
Fed. R. Civ. P. 56 advisory committee's note (“Subdivision (c)(1)(B) recognizes that
a party need not always point to specific record materials.... [A] party who does not
have the trial burden of production may rely on a showing that a party who does
have the trial burden cannot produce admissible evidence to carry its burden as to
the fact.”).
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If the movant meets its burden, the burden shifts to the nonmoving party to
establish - with evidence beyond the pleadings - that a genuine dispute material to
each of its claims for relief exists. Celotex Corp., 477 U.S. at 324. A genuine dispute
of material fact exists when the nonmoving party produces evidence allowing a
reasonable fact finder to return a verdict in its favor. Waddell v. Valley Forge Dental
Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001).
III.

BACKGROUND

Plaintiff is a pharmacist who was employed by Wal-Mart primarily at its
Prattville, Alabama location. Defendant Harris was employed as Wal-Mart’s Market
Health and Wellness Director for a group of stores including the Prattville location.
Plaintiff acknowledges that Harris was in her “chain of command as a member of
the ‘Market Leadership Team.’” (Doc. 30 at 15).

In 2015, Plaintiff sought

accommodations for various medical conditions, specifically, that she be allowed to
use a stool during her shifts and that she be excused from giving injections. WalMart approved both of those accommodations on November 5, 2015. On January 7,
2016, Plaintiff filed her first charge with the Equal Employment Opportunity
Commission (“EEOC”) alleging retaliatory activity prohibited by the ADA,
specifically, that she had not yet been provided with an OSHA-approved stool to
accommodate her disability. Plaintiff’s stool arrived at the pharmacy in February
2016.
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On April 5, 2016, Wal-Mart’s Health and Wellness Compliance Department
sent an email to Plaintiff requesting that she complete a Conflict of Interest survey
(“COI”). Although Plaintiff had previously submitted COIs as required, she delayed
submitting her COI in 2016, claiming that she was afraid any mistakes on the form
would be used as a basis to terminate her employment. There is no dispute that a
COI is required of all pharmacists employed by Wal-Mart.
On July 6, 2016, Harris visited the pharmacy while Plaintiff was at work.
Harris attempted to discuss the COI and Wal-Mart’s dress code with Plaintiff.
Although there are disputes as to particular statements made that day, it is beyond
dispute that Harris and Plaintiff engaged in a verbal confrontation which included
raised voices in the presence of customers and employees. Plaintiff refused to
complete her COI that day. Harris relieved Plaintiff of her duties for the remainder
of her shift and informed her that she was suspended with pay. When Plaintiff began
to make phone calls to various Wal-Mart corporate numbers instead of leaving,
Harris informed Plaintiff that she was suspended without pay. At some point during
this interaction, Plaintiff alleges that Harris said she was “unfit” while directing her
to leave the pharmacy. Plaintiff eventually left the pharmacy.
Defendants sent Plaintiff a letter giving her until July 31, 2016, to submit her
COI or her employment would be terminated. Defendants received Plaintiff’s
completed COI on July 29, 2016. By a letter dated August 9, 2016, Wal-Mart
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informed Plaintiff that she would be placed back on the schedule as of August 17,
2016, but required that she “communicate with your leadership team, including
engaging in discussions with [Harris]” before resuming her duties. (Doc. 78-10 at
102). The letter further stated that “If you choose not to confer with the leadership
team, please let me know, and we will respond accordingly and place you on a 30
day personal leave of absence so you can find another available position for which
you are qualified.” Id. Plaintiff responded to Harris that she wished to be placed back
on the schedule but refused to meet with him or the leadership team. Wal-Mart
placed Plaintiff on leave until September 16, 2016, and terminated her employment
on September 27, 2016.
On October 1, 2017, Plaintiff’s husband presented a prescription for Plaintiff
at Wal-Mart’s pharmacy in Millbrook, Alabama. The prescription triggered a “red
flag” in the computer system because of another prescription that Plaintiff was
already taking. Pursuant to store policy, the pharmacist called another Wal-Mart
pharmacist for a professional opinion and called Plaintiff’s prescribing physician for
clarification. The treating physician withdrew the prescription, and Wal-Mart did
not fill the prescription.
On August 22, 2016, Plaintiff filed a second charge with the EEOC, again
alleging retaliatory activity prohibited by the ADA. On January 13, 2017, the EEOC
issue Plaintiff a Notice of Right to Sue. Plaintiff filed her Complaint in this Court on
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April 17, 2017, and an Amended Complaint on February 1, 2018, which is the
operative pleading for this case. Plaintiff averred the following counts:
Count I & II – Retaliation under ADA.
Count III – Defamation.
Count IV – Invasion of Privacy.
Count V – Various Tort Claims.
Count VI – Conspiracy.
The Court dismissed Plaintiff’s claims for invasion of privacy based on
publicity, tortious conduct, and conspiracy. (Doc. 50). Defendants filed a motion
seeking summary judgment as to Plaintiff’s remaining claims.
IV.

DISCUSSION

A. Invasion of Privacy – Intrusion Upon Seclusion
Plaintiff’s Invasion of Privacy claim is before the Court only on the theory of
Intrusion on Seclusion. (Doc. 50 ¶ 2). Both parties cite Busby v. Truswal Systems
Corp., 551 So. 2d 322, 324 (Ala. 1989)(“The question, then, is whether there was an
offensive or objectionable prying or intrusion into the plaintiffs' private affairs or
concerns.”). “[T]here must be something in the nature of prying or intrusion” and
“the intrusion must be something which would be offensive or objectionable to a
reasonable person. The thing into which there is intrusion or prying must be, and be
entitled to be, private.” Hogin v. Cottingham, 533 So. 2d 525, 531 (Ala. 1988),
quoting W. Prosser & W. Keeton, The Law of Torts, p. 851 (5th ed. 1984).

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The magistrate’s Recommendation on the motion to dismiss, which the Court
adopted, noted that Plaintiff’s claim was based on two incidents: “(1) Defendants
discussing Plaintiff’s alleged unfitness with her coworker and in front of Wal-Mart
customers (2) Defendants discussing information regarding Plaintiff’s health,
including the status of her prescriptions for pain medication, with her co-workers.”
(Doc. 47 at 10-11). Plaintiff argues that “[n]othing about [Plaintiff’s] claims of
invasion of privacy have changed” and that “the evidence is now in place to support
this claim.” (Doc. 81 at 57). However, Plaintiff fails to cite any evidence in the
record to support either scenario. In her affidavit submitted in opposition to summary
judgment, Plaintiff stated that “with numerous customers standing at or near the
pharmacy counter, Rusty [Harris] declared that I was unfit to continue my duties as
a pharmacist, and he was sending me home.” (Doc. 85-15 ¶ 107). Plaintiff testified
that
He told me he was sending me home for the rest of the shift. I asked
him why he was doing this and I asked him repeatedly what the
terminology unfit meant. And I asked him what credentials do you have
to deem me unfit and what criteria are you using to determine me to be
unfit and Rusty said, “I don't even know what that means.”
(Doc. 78-10 at 37). Plaintiff testified that Harris said, “I deem you to be unfit, and
you are to leave work.” There is nothing in that statement which intrudes or pries
into a private aspect of Plaintiff’s life. That Plaintiff or a reasonable person could
find the statement offensive is not sufficient. The statement, even construed in the
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light most favorable to Plaintiff, is not an intrusion or prying into an actual private
matter.
As to Plaintiff’s claim that Defendants intruded upon her seclusion by
discussing information about her healthcare with coworkers, again, Plaintiff fails to
cite to any authority or evidence in the record to support this claim aside from what
she presented at the motion-to-dismiss stage of litigation. It is axiomatic that “[a]
party opposing summary judgment may not rest upon the mere allegations or denials
in its pleadings. Rather, its responses, either by affidavits or otherwise as provided
by the rule, must set forth specific facts showing that there is a genuine issue for
trial.” Walker v. Darby, 911 F.2d 1573, 1576–77 (11th Cir. 1990). As to her claim
of intrusion on seclusion, that is exactly what Plaintiff has failed to do. The evidence
in the record is clear that the only communication that occurred between Plaintiff’s
coworkers was professional consultation regarding prescriptions that she chose to
present to Wal-Mart pharmacies, which Plaintiff admitted was accordingly to policy.
(Doc. 78-10 at 56). In fact, Plaintiff admitted that every action taken by the
pharmacist was according to policies she herself had followed as a pharmacist and
that her chief complaint about this incident was that the pharmacist did not call her
“to get the background.” Id. Plaintiff points to no law, fact, or policy that would
entitle her to relief based on the handling of this prescription. Specifically, Plaintiff

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failed to demonstrate that any Defendant intruded or pried into her private matters
or shared private information with parties not subject to professional confidentiality.
B. Retaliation
In order to prove an ADA retaliation claim, a plaintiff must show that: (1) she
“engaged in conduct protected by the ADA”; (2) she “was subjected to an adverse
employment action at the time, or after the protected conduct took place”; and (3)
the defendant “took an adverse employment action against [her] because of [her]
protected conduct.” 3C Fed. Jury Prac. & Instr. § 172.24 (5th ed.) (essential elements
for an ADA retaliation claim). See also Collado v. United Parcel Serv., Co., 419
F.3d 1143, 1158 (11th Cir. 2005). Defendants argue as to Plaintiff’s retaliation
claims (Counts I & II) that Plaintiff was subject to “the normal application of
workplace standards not covered by her accommodation,” that the “managers’
decisions [were] not retaliatory,” and that Plaintiff engaged in “flagrant
insubordination in response to reasonable requests from her manager.” (Doc. 77 at
25). In her Amended Complaint, Plaintiff alleges that “On July 6, 2016, Harris
targeted and harassed Mrs. Hughes in retaliation for filing the first charge, singling
her out for having previously worn open toed shoes when other female pharmacy
employees regularly wore open toed shoes (and upon information and belief,
continue to wear open toed shoes), and also demanding immediate completion of the
conflict of interest form even though no prior deadline to complete the form had
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been communicated to her.” The “first charge” refers to EEOC Charge number 4202016-00752, which Plaintiff filed on January 7, 2016. (Doc. 78-10 at 105).
Plaintiff’s narrative statement in the First Charge deals exclusively with the issue of
a stool as a form of accommodation. Plaintiff never requested that Wal-Mart grant
an accommodation for open-toed shoes, and she did not lodge an allegation with the
EEOC regarding open-toed shoes until she filed her Second Charge, number 4202016-03224, on August 22, 2016. (Doc. 1-1). Plaintiff never complained in her
EEOC Charges that she experienced any discrimination for requesting and receiving
an excuse from administering immunizations, which was granted in the same letter
as her request for a stool in November 2015. (Doc. 78-10 at 99).
Plaintiff argues in response to the motion for summary judgment that the
initial denial of her request for an accommodation to use a stool in 2015
demonstrates pretext.1 However, her Amended Complaint states that the First
Charge was the protected activity against which the Defendants retaliated, not the

1

Plaintiff concedes that the protected actions of which she complains did not occur “within
presumptively close temporal proximity” of her First Charge, and that her allegation of
retaliation “goes to the ‘pretext’ element under the McDonnell-Douglas framework…” (Doc. 81
at 31). In this case, Wal-Mart’s knowledge of the protected activity and the adverse employment
action well exceed the three to four month range. See Higdon v. Jackson, 393 F.3d 1211, 1220
(11th Cir. 2004).
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initial request.2 Moreover, Plaintiff’s initial request is even more temporally
removed from the adverse employment action by nearly a year.
Plaintiff concedes that she “received a message from Wal-Mart corporate
Health & Wellness Compliance on May 17, 2016, notifying her that she was
delinquent in completing the Conflict of Interest form in accordance with Wal-mart
policy located at POM 1723.” (Doc. 81 at 42). Plaintiff does not dispute that the COI
was legitimately required by Wal-Mart or that any other pharmacists were not
subject to or excused from complying with the policy. Plaintiff’s explanation that
she was afraid that a misstatement on her COI would be grounds for termination
does not obviate the need for her to complete it. Rather, Plaintiff alleges that
Defendants used her non-compliance with company policy to retaliate against her
for filing her First Charge. By Plaintiff’s own admission, the “pretext” which she
alleges for her termination was not her refusal to submit her COI disclosure, which
she eventually did. Rather, Plaintiff acknowledges that she refused to comply with
what she terms the “ridiculous and unnecessary requirement to meet … one-on-one”
with Harris, Wal-Mart’s Market Health and Wellness Director for the pharmacy

2

The record indicates that Defendants never denied Plaintiff’s request for a stool as an
accommodation. Rather, Defendants required Plaintiff to use the official corporate procedures for
such a request rather than the determination being made in the specific location where she was
currently assigned.
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where she was employed and who was in her “chain of command as a member of
the ‘Market Leadership Team.’” (Doc. 30 at 15).
After submitting her COI, Defendants informed Plaintiff of the steps that she
would be required to meet before resuming her duties. Defendant Harris’s letter on
behalf of Wal-Mart required that Plaintiff “communicate with your leadership team,
including discussions with me.” (Doc. 78-10 at 102). There is no testimony or
documentation in the record to support the allegation that she was required to meet
“one-on-one” with Harris without any other witnesses present, much less that this
meeting to discuss “concerns and expectations about your behavior and performance
going forward” bore any relation to her EEOC complaint. Moreover, Plaintiff
submitted copies of text messages which she sent to Harris stating that “I respectfully
decline a meeting with you or any ‘leadership team member’ that is documented as
having committed disability-based retaliation, defamation of character, harassment,
or any other charge.” (Doc. 82-7 at 9). It is undisputed that after Plaintiff complied
with submitting her COI form, Defendants had offered her a date to return to work
with only one requirement: that she meet with her leadership team. Plaintiff declined
that invitation, stating that she failed “to find any positive outcome that would
develop from a meeting to discuss my ‘behavior and performance going forward,’
whatever that may mean…” Id. Plaintiff’s affidavit makes her intent as clear as

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possible: “I even told Rusty [Harris] that I was willing to return to work, but I was
not willing to meet with him.” (Doc. 85-15 ¶ 115).
The Eleventh Circuit has rejected the proposition that an employee may
engage in acts of insubordination simply because they occurred around the time of
a request for accommodations.
Whatever the obligations of an employer are under the ADA to
accommodate an employee, they do not extend to engaging in
generalized negotiations with an employee concerning the employer's
workplace rules and policies for all employees. As we have stated
before, the ADA is “remedial in nature—ensuring that those with
disabilities can fully participate in all aspects of society, including the
workplace.” Willis, 108 F.3d at 285. The ADA thus requires that
employers reasonably accommodate qualified individuals with a
disability, not that employers negotiate with disabled individuals on
behalf of all workers, disabled or not. See 42 U.S.C. § 12111(9)(B)
(discussing accommodations that must be offered “for individuals with
disabilities ”) (emphasis added).
Stewart, 117 F.3d at 1286.
Wal-Mart’s COI requirement predates Plaintiff’s protected action. It is
undisputed that Plaintiff complied with the COI filings before she requested any
accommodations. The record further supports that the COI disclosure form had been
sent to her on April 5, 2016. (Doc. 78-10 at 101). The record reflects that Plaintiff
expressed no concerns to the Defendants about filing the COI until it was delinquent.
More to the point, there is no dispute that once Plaintiff submitted her COI, the
Defendants offered a specific date to resume her employment if she would meet with
her management team. There is no dispute that Plaintiff flatly refused to meet with
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any member of the management or leadership team to which she was directly
subordinate.
Viewing the evidence in the light most favorable to Plaintiff as the nonmoving
party, she cannot establish a prima facie case of retaliation. Plaintiff argues “[t]he
frequency with which Tiffany received repeated adverse employment actions from
approximately June of 2015 through July 2016 was too often to be coincidental.”
(Doc. 81 at 34). Yet there is no indication in the record that she made any request
that could be construed as a protected activity until September 9, 2015, three months
after she alleges to have begun receiving adverse employment actions. All of
Plaintiff’s requested accommodations were granted. Several months later, her
refusal to comply with a company-wide policy degenerated into a shouting match
with a manager specifically because she wanted to make sure that unrelated people
around her heard the exchange.
Even after the July 6, 2016 confrontation, the record reflects that the
Defendants made clear, delineated requests in writing to Plaintiff to submit her COI
and meet with management, to which she responded with last-minute compliance
and counter-demands to circumvent interacting with the very people responsible for
her supervision. The ADA does not require an employer to accommodate
noncompliance unrelated to the employee’s disability in perpetuity simply because
the employee has previously requested and received other completely unrelated
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accommodations. Plaintiff has failed to offer evidence that the reason for terminating
Plaintiff’s employment, i.e., that she refused to meet with her own management team
before returning to work after a loud public exchange with management, was false,
much less pretextual. In the absence of any evidence that the reason for the
termination of Plaintiff’s employment was false or pretextual, summary judgment is
due as to this claim.
C. Defamation
Defendants argue that Plaintiff fails to meet several of the required elements
of defamation. Plaintiff argues in response that Harris declaring her “unfit” “is
slanderous per se.” (Doc. 81 at 54). Under Alabama law, a claim for defamation
requires “a false and defamatory statement concerning the plaintiff.” Skinner v.
Bevans, 116 So. 3d 1147, 1156 (Ala. Civ. App. 2012). Whether a statement “is
reasonably capable of a defamatory meaning, in the first instance, is a question of
law.” Finebaum v. Coulter, 854 So.2d 1120, 1128 (Ala. 2003) (citation and internal
quotation marks omitted). “[T]he test to be applied ... in determining the defamatory
nature of an imputation is that meaning which would be ascribed to the language by
a reader or listener of ordinary or average intelligence, or by a common mind.” Id.
(citation and internal quotation marks omitted).
One cannot recover in a defamation action because of another's
expression of an opinion based upon disclosed, nondefamatory facts,
no matter how derogatory the expression may be. Restatement (Second)
of Torts § 566 cmt. c (1977). This is so because the recipient of the
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information is free to accept or reject the opinion, based on his or her
independent evaluation of the disclosed, nondefamatory facts. Redco
Corp. v. CBS, Inc., 758 F.2d 970, 972 (3d Cir.), cert. denied, 474 U.S.
843, 106 S.Ct. 131, 88 L.Ed.2d 107 (1985).
Sanders v. Smitherman, 776 So. 2d 68, 74 (Ala. 2000); see also Bell v. Smith, No.
1171108, 2019 WL 1305886, at *7 (Ala. Mar. 22, 2019)(“Whether a given
representation is an expression of opinion or a statement of fact depends upon all the
circumstances of the particular case, such as the form and subject matter of the
representation and the knowledge, intelligence and relation of the respective
parties.”) (citation and internal quotation marks omitted); Williams v. Marcum, 519
So. 2d 473, 477 (Ala. 1987)(“The law is clear that an opinion can never be false.
Because a statement must be false to be actionable defamation, an opinion is simply
not actionable defamation. Lewis v. Time, Inc., 710 F.2d 549 (9th Cir.1983).”).
Even construing the evidence in the manner most favorable to the Plaintiff,
the allegedly defamatory communication did not occur without context. It is beyond
dispute that Plaintiff and Harris had engaged in multiple, tense, verbal exchanges on
July 6, 2016. Plaintiff admits that after being told she was relieved for the remainder
of her shift and suspended with pay, she refused to leave the pharmacy and continued
to make phone calls in the pharmacy. Although Plaintiff denies “yelling,” she admits
that she raised her voice “and I repeatedly asked him what the terminology unfit
meant. And I asked him what credentials do you have to deem me unfit and what
criteria are you using to determine me to be unfit and Rusty said, ‘I don’t even know
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what that means.’” (Doc. 78-10 at 37). By Plaintiff’s own account of the encounter,
a member of her leadership team informed her that she was being sent home from a
shift, she refused to leave when directed, she did not know what Harris meant by
unfit, and his own usage of the word had nothing to do with her professional
credentials. This is further supported by Plaintiff’s testimony that Harris told her
“Now we are suspending you without pay. We’ll call you back when we need you.”
(Doc. 78-10 at 38). No reasonable person could conclude that Harris was publicly
declaring Plaintiff to be unfit to practice pharmacy and in the same breath
acknowledging that he intended to bring her back to work in the future.
The record is devoid of any indication that Harris or any other employee of
Wal-Mart questioned Plaintiff’s competency as a pharmacist. The record is clear that
on July 6, 2016, the disclosed, nondefamatory facts are that Plaintiff refused to
complete a COI form, refused to leave the pharmacy when she was told she was
relieved for the remainder of her shift, and raised her voice specifically because she
wanted the people around her to be able to hear the argument she was having with
Harris. Any reasonable observer would realize that to the extent that Harris declared
Plaintiff to be “unfit,” it was his opinion as a member of management. The utterance
must be considered in the context it was used, i.e., as a manager relieving an
insubordinate employee from her shift. The expression was derogatory and
unpleasant. However, in light of the facts as recounted by Plaintiff of their
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interactions that day, Harris’s opinion was his own based on Plaintiff’s “behavior
and performance” at her job, not her competency to perform the regulated duties of
that job. Federal courts do not second guess an employer's management decisions.
“No matter how medieval a firm's practices, no matter how highhanded its decisional
process, no matter how mistaken the firm's managers, the [law] does not interfere.”
Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991). Harris’s
managerial decision and expressed opinion that Plaintiff was unfit to finish her shift
that day, no matter how derogatory or even wrong, was his opinion which cannot be
false or defamatory.
V.

CONCLUSION
Based on the above reasoning, Defendants’ Motion for Summary Judgment is

GRANTED. A final judgment will be entered by separate order.
DONE and ORDERED this 14th day of November 2019.

/s/ Andrew L. Brasher
ANDREW L. BRASHER
UNITED STATES DISTRICT JUDGE

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