King v. CVS Caremark Corporation et al
MEMORANDUM OPINION AND ORDER For the reasons noted within, the court DENIES CVS's motion to alter or amend the judgment (doc. 273). Signed by Chief Judge Karon O Bowdre on 10/28/16. (SAC )
2016 Oct-28 AM 11:47
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JAMES R. KING,
CVS HEALTH CORPORATION
CASE NO.: 1:12-cv-01715-KOB
MEMORANDUM OPINION AND ORDER
On August 2, 2016, the court entered a third amended final judgment requiring that CVS
reinstate James King to the pharmacist position he held prior to his termination. Now before the
court is CVS's motion to alter or amend that judgment. (Doc. 273). Because CVS fails to show
good cause why the judgment of the court should be altered, the court DENIES the motion.
CVS has appealed the third amended final judgment in this case to the Eleventh Circuit
Court of Appeals. See (Doc. 274). CVS also filed a motion in this court to amend or alter that
judgment. When an appeal is filed, a district court's jurisdiction over the subject matter appealed is
terminated. See Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (AThe filing of a
notice of appeal is an event of jurisdictional significanceCit confers jurisdiction on the court of
appeals and divests the district court of its control over those aspects of the case involved in the
appeal.@) However, a district court may Aconsider and deny such motions, but . . . if it indicates that
it will grant the motion, the appellant should then make a motion in the Court of Appeals for a
remand of the case in order that the district court may grant such motion.@ Markel Ins. Co. v. Bush,
308 B.R. 913, 916 (N.D. Ala. 2004) (citing Ferrell v. Trailmobile, 223 F.2d 697 (5th Cir. 1955)1).
Therefore, the court has jurisdiction to deny CVS's motion.
STANDARD OF REVIEW
Whether to grant a motion to reconsider under Federal Rule of Civil Procedure 59(e) or
60(b) rests with the discretion of the trial court. See Smith v. Casey, 741 F.3d 1236, 1241 (11th Cir.
2014). Newly discovered evidence or a manifest error of law or fact are the only grounds for
reconsideration. See Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007).
A motion to reconsider Amust demonstrate why the court should reconsider its prior
decision and >set forth facts or law of a strongly convincing nature to induce the court to reverse its
prior decision.=@ Fidelity & Deposit of Maryland v. Am. Consertech, Inc., 2008 WL 4080270, at *1
(S.D. Ala. Aug. 28, 2008) (quoting Cover v. Wal-Mart Stores, Inc., 148 F.R.D. 294 (M.D. Fla.
1993)). AReconsideration is an extraordinary remedy that should be employed sparingly in the
interests of finality and conservation of scarce judicial resources.@ Sonnier v. Computer Programs
& Systems, Inc., 168 F. Supp. 2d 1322, 1336 (S.D. Ala. 2001).
Recitation of the complete history of this litigation would be a novel-length endeavor.
Instead, the court will briefly highlight the particular facts pertinent to resolving this motion.
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
Mr. King sued CVS alleging, among other claims, that he was illegally discriminated
against on the basis of his age. After a trial, the jury found that CVS willfully discriminated against
Mr. King because of his age and that he was entitled to compensatory damages. Mr. King also
sought the equitable remedies of reinstatement and front pay. In the third amended final judgment,
the court ordered that CVS promptly reinstate Mr. King to his former position. The court
conditioned reinstatement on Mr. King's ability to pass a written assessment required of all CVS
pharmacists. CVS now moves the court to alter or amend its judgment because of newly
discovered evidence demonstrating that Mr. King is not qualified to practice pharmacy.
According to CVS, after the court entered its order requiring CVS to reinstate Mr. King,
CVS contacted Mr. King to begin the process to reinstate him. Jeffery Hardage, a CVS Human
Resources senior advisor, met with Mr. King on August 15, 2016. Mr. Hardage asked Mr. King
what continuing education classes he had taken during the current license period. Mr. King
responded that he had taken none. Mr. Hardage then asked what courses Mr. King had completed
to renew his license previously. Mr. King said he could not recall. Mr. Hardage also inquired about
Mr. King's certifications. Mr. King said he had not renewed his certifications since 2011 when he
was terminated by CVS.
Mr. Hardage asked Mr. King about recent developments in pharmacy practice, specifically
inquiring about a change in dispensing practices for the drug Naloxene. Naloxene, a medication to
combat opioid overdoses, will soon be available without a prescription in Alabama. Mr. Hardage
claims Mr. King asked what Naloxene was. Mr. King contends that he identified the drug for Mr.
Hardage, but was unaware of any new administration procedures.
CVS's only original grounds for opposition to reinstating Mr. King were that hostility
existed between Mr. King and CVS, he was past retirement age, and that he was not eligible to be
re-hired because he had violated company policy. (Doc. 283 at 32). As the court has previously
noted, A[o]nly after the court indicated its intent at the hearing to order reinstatement did counsel
for CVS begin raising other factors to question the feasibility of reinstatement.@ (Doc. 264 at 20).
The court deemed CVS's other arguments against reinstatement waived. (Doc. 283 at 32).
The court sees no reason to now revisit that decision. When it ordered CVS to reinstate Mr.
King, the court said: AWhatever it takes to reinstate him has to be done with the only caveat that he
has to pass the assessment to show that he is still capable of fulfilling the duties as a pharmacist.@
(Doc. 283 at 33). As discussed below, the evidence demonstrates that Mr. King is qualified and
capable of fulfilling the position. Therefore, the court will not alter its judgment.
Pharmacist Virtual Job Tryout
The first piece of new evidence submitted by CVS is Mr. King's score on the Pharmacist
Virtual Job Tryout (AVJT@). Mr. King scored a Amoderate@ on the VJT. CVS states that its policy is
not to offer positions to applicants who score Amoderate@ on the assessment when remaining
applicants have scored Astrong.@ Unsurprisingly, CVS prefers the most qualified applicants it can
get. However, by its own admission, CVS will hire an applicant with a Amoderate@ score. The score
is Apassing@ within the meaning of the court's order conditioning Mr. King's reinstatement on him
passing an assessment of his ability to work as a pharmacist. Mr. King’s score on the VJT is not a
good reason to alter the court’s judgment.
Continuing Education and Knowledge of New Pharmacy Practices and
CVS puts forward three new pieces of evidence concerning Mr. King's continuing
education credits and knowledge of current pharmacy practices. First, CVS states that Mr. King
could not recall which continuing education classes he had taken to renew his license during the
2013-2014 renewal period. Second, CVS also alleges that Mr. King had taken no continuing
education classes since his license was last renewed. Third, CVS claims that Mr. King was not
familiar with a recent Alabama Board of Pharmacy order regarding the protocol to dispense
Naloxone, a medication used to treat opioid overdoses. CVS also contends that Mr. King interfered
with his reinstatement by refusing to provide a list of his continuing education courses.
None of these new revelations warrant altering the order to reinstate Mr. King. Mr. King
has maintained his license to practice pharmacy. Given that the Alabama Board of Pharmacy saw
fit to renew Mr. King's license, the court sees no reason to second-guess its decision that Mr. King
was qualified to practice pharmacy merely because he now cannot remember the names of the
particular courses he took. Further, the court does not believe that the fact Mr. King had taken no
continuing education classes towards renewal of his next license evidences unfitness or disinterest
in practicing pharmacy. If Mr. King had not taken the required continuing education credits and his
license had lapsed the court's judgment might be different. But Mr. King did not let his license
lapse. Mr. King has complied with every licensing requirement imposed by the Alabama Board of
Mr. King's unfamiliarity with a particular protocol not yet in effect is similarly
unpersuasive to move the court to alter its judgement. Even if the court accepts CVS's narrative of
the events, it does not view one anecdotal, subjective encounter as sufficient evidence to
counteract the objective metrics of Mr. King's license to practice pharmacy and his passing score
on the VJT.
Further, the court is not persuaded that Mr. King interfered in his own reinstatement. The
parties' narratives seem to show miscommunication rather than obstinance. Mr. King was not
informed he needed to provide CVS a list of the continuing education classes he had taken. The
court also notes that Mr. King's counsel represents that they contacted CVS to determine what
documentation Mr. King needed to produce and CVS did not mention a list of continuing
education classes. Therefore, the court declines to alter its judgment based on this evidence.
Immunization and Other Certificates
CVS also argues that Mr. King's failure to obtain immunization, CPR, and blood borne
pathogen certificates shows that Mr. King had no intention of continuing work as a pharmacist.
But Mr. King offers an innocuous explanation: CVS used to provide that training to its pharmacists
but changed its policy after his termination. The new evidence offered here is not of a Astrongly
convincing nature@ to make the court revisit its judgment that Mr. King should be reinstated to his
previous position. See Fidelity & Deposit of Maryland, 2008 WL 4080270, at *1.
Request for Front Pay
CVS argues that Mr. King's Arequest for front pay in lieu of reinstatement is tantamount to
an admission it was never his intention to return to work at CVS or at any other pharmacy.@ (Doc
284 at 9B10). The court disagrees. Requesting front pay if the court finds reinstatement impractical
does not mean Mr. King is not serious about returning to work. All Mr. King's request evidences is
a desire for an alternative remedy if his preferred remedy is not chosen. The court previously
rejected this same argument.
Stay of Reinstatement Order
Alternatively, CVS moves the court to stay its reinstatement order until after its appeal to
the Eleventh Circuit is resolved. CVS argues that such time will permit an assessment of whether
Mr. King is qualified for reinstatement. As the court has previously noted, Mr. King has waited
long enough. (Doc. 264 at 28) (AHe is entitled to a final final judgment.@). The court sees no reason
to further delay Mr. King's recovery. The court DENIES CVS's request for a stay.
CVS's argues that because Mr. King did not score Astrong@ on the assessment coupled with
other new evidence demonstrates that Mr. King is not qualified to practice pharmacy despite being
licensed by Alabama State Board of Pharmacy to do so. The court wishes to ensure that Mr. King
is qualified and expressed as much at the hearing. See (Doc. 283 at 35) (AI can certainly understand
a concern by CVS . . . that he be up to speed with the requirements of being a pharmacist.@). But the
court is satisfied that Mr. King's license to practice pharmacy coupled with his passing score on
CVS's own internal assessment should assuage any concerns raised by the new evidence CVS has
provided to the court. Therefore, the court DENIES CVS's motion to alter or amend the judgment.
DONE and ORDERED this the 28th day of October, 2016.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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