Nappier v. United Healthcare Services Inc

Filing 46

MEMORANDUM OPINION AND ORDER - For the reasons stated above, UnitedHealths motion for summary judgment, (doc. 29), is GRANTED, and this action will be DISMISSED WITH PREJUDICE. A separate order will be entered. Signed by Magistrate Judge John H England, III on 3/18/2016. (KEK)

FILED
2016 Mar-18 AM 10:17
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
STEVEN D. NAPPIER,
Plaintiff,
v.
UNITED HEALTHCARE SERVICES,
INC.,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case Number: 2:13-cv-01382-JHE

MEMORANDUM OPINION AND ORDER
Plaintiff Steven D. Nappier (“Nappier”) initiated this action against his former employer,
Defendant United Healthcare Services, Inc. (“UnitedHealth”) alleging race discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and
a state law breach of contract claim. 1 (Docs. 1, 27, & 28). UnitedHealth moves for summary
judgment as to both of Nappier’s claims. (Doc. 29). The motion is fully briefed and ripe for
review. (Docs. 30, 38, 41). For the reasons stated more fully below, the motion for summary
judgment, (doc. 29), is GRANTED.
I. Standard of Review
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper if
the pleadings, the discovery, and disclosure materials on file, and any affidavits “show that there
is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter
of law.” “Rule 56[] mandates the entry of summary judgment, after adequate time for discovery
1

Nappier initially asserted a state law claim based on UnitedHealth’s alleged failure to
pay the full value of commissions owed pursuant to Alabama Code § 8-41-1 et seq. (Doc. 1).
After consultation with Defendant’s counsel, Plaintiff moved to dismiss this claim, and the
undersigned granted the motion. (Doc. 27 & 28).
1

and upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v. Catrett, 447 U.S. 317, 322 (1986). The moving party
bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323.
The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to
establish there is a “genuine issue for trial.” Id. at 324. (citation and internal quotation marks
omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
The Court must construe the evidence and all reasonable inferences arising from it in the
light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157,
(1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the nonmoving party’s favor). Any factual disputes will be resolved in Plaintiff’s favor when sufficient
competent evidence supports Plaintiff’s version of the disputed facts. See Pace v. Capobianco,
283 F.3d 1275, 1276-78 (11th Cir. 2002) (a Court is not required to resolve disputes in the nonmoving party’s favor when that party’s version of the events is supported by insufficient
evidence).

However, “mere conclusions and unsupported factual allegations are legally

insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th
Cir. 2005) (per curiam) (citing Bald Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560, 1563 (11th Cir.
1989)). Moreover, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s position will
not suffice; there must be enough of a showing that the jury could reasonably find for that party.”
Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).

2

II. Summary Judgment Facts
A. UnitedHealth and Its EEO Policy and Procedure
UnitedHealth is an operating division of UnitedHealth Group, a leading health carrier in
the United States. (Doc. 31-3 at ¶3). UnitedHealth Medicare & Retirement, a division of
UnitedHealth Group, offers products and services to individuals over the age of fifty. (Id.). At
the time Nappier worked for UnitedHealth, UnitedHealth Medicare & Retirement division was
known as “Ovations.” (Id. at ¶¶3, 12).
UnitedHealth maintains a strong policy of equal employment opportunity, which
prohibits any form of discrimination based on age, race, gender, color, religion, national origin,
ancestry, disability, marital status, covered veteran status, sexual orientation, gender identity
and/or expression, status with respect to public assistance or any other characteristic protected by
statute, federal, or local law. (Doc. 31-3 at ¶4; doc. 31-1 at 26 (99:5-7)). UnitedHealth also
maintains a separate anti-retaliation policy that prohibits retaliation against any employee who,
in good faith, reports unethical behavior or violations of law, regulations, or company policy.
(Doc. 31-1 at ¶4). These policies are available online and in hard copy upon request. (Id.at ¶5).
B. Nappier’s First Period of Employment with UnitedHealth
UnitedHealth initially hired Nappier on or about January 9, 2006, as a Medicare
Individual Sales Representative (“ISR”) in Montgomery, Alabama. (Doc. 31-1 at 8, 9 (29:14-18,
30:10-25), doc. 31-2 at 5-10). Nappier received a written offer of employment setting forth the
terms and conditions of his employment with UnitedHealth. (Doc. 31-1 at 8, 9 (29:23-25, 30:1025), doc. 31-2 at 5-10). Nappier is white. (Doc. 31-1 at 15 (55:6-9)). Nappier reported to Sales
Director Clark Cameron (“Cameron”) who in turn reported to Booker Joseph (“Joseph”). (Doc.
31-3 at ¶6). Joseph is black. (Doc. 31-1 at 15 (55:4-5)). Nappier understood that he was an “at

3

will” employee and was free to resign from his employment at any time, and that UnitedHealth
had no contractual obligation to employ him. (Doc. 31-1 at 9, 10 (33:13-25, 34:1-16)).
C. Nappier Resigns and Goes to HealthSpring
In approximately January 2007, following changes in UnitedHealth’s commission
structure, Nappier voluntarily resigned from his employment and accepted a position as an
Independent Medicare Sales Representative with HealthSpring. (Doc. 31-1 at 9, 12 (32:3-25,
33:1-10, 43:5-8)). Nappier remained with HealthSpring for approximately eight months. (Id. at
12 (44:4-11)). .
D. Nappier Returns to UnitedHealth
While Nappier was working for HealthSpring, Joseph called him. (Doc. 31-1 at 41
(160:13-16). During this call Joseph told Nappier, “man, I need you,” and was “after [Nappier]
pretty hard” to return to UnitedHealth. (Doc. 31-1 at 13, 14, 15 (49:3-14, 53:2-25, 54:2)).
Following his conversation with Joseph and believing the commission issues at UnitedHealth
(with which he had previously had a concern) had been resolved, Nappier reapplied for
employment with UnitedHealth in July 2007. (Doc. 31-1 at 13 (49:11-18)). Nappier believed
the application was a matter of form and that it was “pretty much a done deal” that Joseph had
decided to hire him. (Id. at 14 (51:18-24)). Nappier believes Joseph made the decision to rehire
him with UnitedHealth. (Id. at 15 (56:3-16, 57:3-13)).
Nappier received an offer letter from UnitedHealth, specifically from Joseph, in or
around July 2007. (Doc. 31-1 at 16 (58:2-19), doc. 31-2 at 11-25, doc. 31-3 at ¶10). The July
27, 2007 offer letter Nappier received was virtually identical to the December 29, 2005 offer
letter he received when he was first offered employment with UnitedHealth and stated that
Nappier’s “employment relationship is ‘at will,’ which means that [Nappier] or United Health

4

Group may terminate [Nappier’s] employment at any time for any reason.” (Doc. 31-2 at 5-25).
The July 27, 2007 offer letter did not guarantee Napier’s employment for any particular length of
time, including a lifetime, and did not state his employment was permanent. (Doc. 31-1 at 16-17
(61:8-25, 62:2-9), doc. 31-2 at 11-25). In addition, the offer letter stated that by accepting
employment with UnitedHealth, Nappier was agreeing to all terms set forth in the offer letter.
(Doc. 31-1 at 17 (63:19-23), doc. 31-2 at 11-25). When initially rehired in 2007, Nappier again
reported directly to Sales Director Clark Cameron, who in turn reported to Joseph. (Doc. 31-1 at
18 (66:16-20)).

Sometime in 2009, Todd Skaggs (“Skaggs”) replaced Cameron as Sales

Director, and Nappier and all the other ISRs in Alabama began reporting directly to Skaggs. (Id.
(67:3-18)).
On or about August 17, 2007, Nappier began working for UnitedHealth as an ISR. (Doc.
31-1 at 10 (34:17-25, 35:2-7), doc. 31-3 at ¶12). As an ISR, Nappier’s job responsibilities
included being training and educated on UnitedHealth’s products, and then prospecting,
educating, and selling insurance products, particularly Medicare Advantage, to clients. (Doc. 311 at 18 (67:23-25, 68:2-8)). Nappier was one of six ISRs in the state of Alabama. (Doc. 31-1 at
20 (75:7-25, 76:2-6); doc. 31-3 at ¶13).

UnitedHealth contends it employed John Walley

(white), Jeffrey Treganowan (white), and Benjamin Alexander (white) in the Mobile area;
Leonard Smoot (black) and Joe Teel (white) in the Birmingham area, and Nappier in the
Montgomery area. (Doc. 31-1 at 20 (75:7-25, 76:2-6), doc. 31-3 at 13). Nappier explains that
the geographic scope of ISRs was not “divide[d] up;” instead, Nappier, like all ISRs, “worked
where [he] could work” throughout Alabama, provided that the county was eligible for coverage.
(Doc. 31-1 at 19 (72:16-23)). All ISRs with UnitedHealth “were salespeople . . . competing for
business” without geographic restriction, and “weren’t just tied to a certain area” but worked

5

“anywhere [they] could . . . wherever.” (Id. at 20 (74:16-17, 75:5-6, 75:15-18)).
ISRs received client referrals through two primary means. First, UnitedHealth could
provide referrals based upon marketing responses received from prospective clients. (Doc. 31-1
at 21 (78:9-12); doc. 31-3 at ¶15). Second, ISRs could use a referral broker to provide them with
leads. (Doc. 31-1 at 20 (77:19-25); doc. 31-3 at ¶15). When utilizing a referral broker program,
the ISR would purchase a list of Medicare eligible leads and utilize a referral broker to contact
those leads and set up sales appointments for the ISR. (Doc. 31-1 at 20 (77:19-25); doc. 31-3 at
¶15). If an ISR made a sale, UnitedHealth would pay the referral broker a commission. (Doc.
31-1 at 20, 21 (77:24-25, 78:2-3); doc. 31-3 at ¶15). Nappier primarily relied upon the broker
referral program to obtain his sales leads, and received few company leads, though he admittedly
did not ask to receive them. (Doc. 31-1 at 21 (78:13-18, 79:21-24, 80:6-13)).
Upon his rehire, Nappier was paid $27,000.00 per year salary, plus he received
commission for the insurance policies he sold. (Doc. 31-1 at 16, 23-24 (60:2-8, 89:23-25, 90:28); doc. 31-2 at 11-25).

Commissions were paid on a tiered structure, meaning the more

applications Nappier wrote, the higher percentage of commission he received per application.
(Doc. 31-1 at 24 (90:14-25, 91:1-10); doc. 31-3 at ¶16). Commission payments were made to
ISRs in the month the enrollment became effective followed by a three-month commission
recoupment period to allow for rapid disenrollment, meaning if the customer did not stay with
UnitedHealth for at least three months following the initial application for insurance, any
commission paid to the agent for that application was charged back to the agent. (Doc. 31-1 at
37 (145:12-24); doc. 31-3 at ¶16).

Furthermore, if an agent left the company, the final

commission payment to the agent was held for three months to allow for any rapid disenrollment
of policies written during the last three months of the agent’s employment. (Doc. 31-1 at 37

6

(145:12-24); doc. 31-3 at ¶16).
During his second employment with UnitedHealth, Nappier received two performance
evaluations. (Doc. 31-1 at 26 (99:14-25, 100:2-15); doc. 31-2 at 29-36). Nappier’s 2008
performance evaluation rated his performance an overall “meets expectations.” (Doc. 26-27
(101:24-25, 102:2-5); doc. 31-2 at 29-32). Nappier’s 2009 performance evaluation rated his
overall performance as “exceeds expectations.” (Doc. 31-1 at 27 (102:15-25); doc. 31-2 at 3336). In connection with the 2009 performance evaluation, Cameron, Nappier’s supervisor, wrote
“[Nappier] is the most experienced and historically the most productive ISR on my team. He has
a great deal of Medicare knowledge and natural sales ability. His work ethic is second to none,
and the prospects and members relate very well to him.

[Nappier] prospered in 2008 by

leveraging the referral broker program that was in place at the time. MIPPA has ended that
program, but [Nappier] has responded well to the change. I’m grateful for what [Nappier] brings
to our Alabama sales team. He is a key member.” (Doc. 31-2 at 33-36).
Nappier worked from a home office, as UnitedHealth had closed its Montgomery area
office in 2006 as part of its then-plan to withdraw from the Montgomery market. (Doc. 31-1 at
19 (71:11-13); doc. 31-3 at ¶8). UnitedHealth later decided to remain in the Montgomery
market, though UnitedHealth never reopened a Montgomery office. (Doc. 31-3 at ¶8). As a
telecommuter, UnitedHealth reimbursed Nappier for his mileage, including mileage for sales
calls and mileage to attend meetings at UnitedHealth’s offices in Birmingham, Alabama. (Doc.
31-1 at 23 (86:9-18); doc. 31-3 at ¶17). Additional, UnitedHealth either provided or reimbursed
Nappier for other office expenses, including his cell phone and a computer and printer. (Doc.
31-1 at 23 (86:14-25, 87:2-25, 88:2-16), doc. 31-3 at ¶17).
E. UnitedHealth’s Reduction-in-Force

7

In 2009, due to a combination of changes, including regulatory oversight and a
significant decrease in the Medicare rate of reimbursement, UnitedHealth instituted a nationwide reduction-in-force, which affected the ISR positions in the Medicare division. (Doc. 31-3
at ¶18; doc. 31-1 at 24-25 (93:12-25, 94:2-9)). During this same time period, UnitedHealth was
considering various cost-savings measures including a shift from employee agents, such as ISRs,
to the use of independent sales agents. (Doc. 31-3 at ¶19). The cost of doing business with
independent sales agents is less than the cost of utilizing employee agents, for whom
UnitedHealth must provide benefits and a salary instead of paying only commissions. (Id.).
According to UnitedHealth, it made the decision to eliminate all ISR positions in
Alabama except for the position John Walley held. (Doc. 31-3 at ¶¶20-21). However, because
Leonard Smoot was involved in multiple marketing initiatives in Birmingham that UnitedHealth
wanted to see through conclusion, UnitedHealth contends it decided to delay the termination of
his employment for approximately two months. (Id. at ¶21). Therefore, UnitedHealth states it
eliminated four of the six ISR positions in Alabama, as well as approximately seven other ISR
positions outside of Alabama. (Id. at ¶20; doc. 31-1 at 24-25, 31 (93:12-25, 94:2-6, 121:7-12),
doc. 31-2 at 43-44). Specifically, UnitedHealth eliminated two ISR positions it characterizes as
“in Mobile” held by Treganowan and Alexander; one position it characterizes as a “Birmingham
ISR position” held by Joe Teel, and the ISR position it characterizes as the “Montgomery ISR”
position Nappier held. (Doc. 31-3 at ¶20).
UnitedHealth states it considered a multitude of factors in selecting which ISR positions
would be eliminated, including but not limited to profitability of the various markets, an ISR’s
acquisition cost per lead (meaning the amount of money UnitedHealth had to spend on an ISR,
including salary and expenses in order to generate one lead), and the employee’s overall

8

performance and expenses. (Doc. 31-3 at ¶21).

Based on these considerations, UnitedHealth

contends it decided to eliminate all ISR positions in Alabama except for the position Walley
held. (Id. at ¶¶20-21).
Following Nappier’s termination UnitedHealth maintained two ISR positions in Alabama
for an additional two months. (Doc. 31-3 at ¶¶20-21). Thereafter, in September 2009, following
the conclusion of the marketing initiatives Smoot was leading in Birmingham, UnitedHealth
states it also eliminated the remaining ISR position in Birmingham (that Smoot held), leaving
only one ISR position in Alabama – the position “in Mobile” held by John Walley. (Id.).
F. Termination of Nappier’s Employment
Skaggs met with Nappier on or about June 30, 2009, and notified him that his ISR
position was being eliminated and that his employment would be terminated effective July 7,
2009. (Doc. 31-1 at 30 (116:3-25, 117:2-25). Thereafter, Nappier began providing services to
UnitedHealth as an independent agent, and to this day, continues to sell UnitedHealth Medicare
products in an independent agent capacity. (Id. at 22 (84:6-13, 85:3-10)). Nappier’s position
was not filled. (Doc. 31-3 at ¶21). After his termination, Cameron provided Nappier with a
letter of recommendation stating, in part, “if I were starting a company or leading a sales
division, Steve Nappier would be my first hire.” (Doc. 39-2 at 2).
G. Nappier’s EEOC Charge and Judicial Complaint
On December 28, 2009, Nappier filed a charge of discrimination with the EEOC, alleging
race-based discrimination. (Doc. 1-1). On April 24, 2013, the EEOC dismissed Nappier’s
EEOC charge and issued a right-to-sue letter. (Doc. 1-2). On July 24, 2013, Nappier filed his
complaint, alleging UnitedHealth discriminated against him because of his race by selecting his
position for termination (Count III), breached an alleged oral contract for employment, salary,

9

and bonus payments (Count I), and violated the Alabama Sales Representative’s Commission
statute (Count II). (Doc. 1). On May 6, 2015, Nappier moved to dismiss Count II, which the
undersigned granted. (Docs. 27 & 28).
H. Additional Facts – Race Discrimination Claim
Nappier alleges UnitedHealth discriminated against him based on Joseph’s decision to
select Nappier’s position for elimination and not the position Smoot held. (Doc. 31-1 at 28, 33
(108:19-25, 109:2-25, 110:13-22, 129:6-9)). In support of his discrimination claim, Nappier
asserts that race had to be the reason he was selected for discharge because he was a successful
ISR, he had been with UnitedHealth the longest, he was the top-producing ISR in Birmingham
(and he believes in Alabama), and he believes he wrote more applications than Smoot. (Id. at
27-28, 33 (104:19-25, 105:2-25, 106:2-25, 129:2-9)).

Nappier contends his performance

numbers and evaluations were better than Smoots’, testifying that he “ha[d]n’t seen the exact
numbers and all . . . . [but he] kn[e]w there was [sic] a lot of months there that [Smoot] would
have fix, six sales and I would have 30.” (Doc. 31-1 at 32 (122:7:14)). Nappier further testified
he “recall[ed] seeing something at least one time, maybe more than once. . . . [UnitedHealth]
might have been sending out monthly sales reports of how we stacked monthly,” but he couldn’t
remember exactly. (Id. at 32 (123:7-13)). At Cameron’s request, Nappier helped train Smoot by
riding with him on a couple of appointments and showing him how to present the program.
(Doc. 31-1 at 27-28 (105:16-106:2)).
Nappier further contends Joseph treated black employees more favorably. (Doc. 31-1 at
29 (112:22-25, 113:2-24)).

Specifically, Nappier alleges Joseph was more sociable and

friendlier to “black guys” and “liked them more.” (Id. at 29-30 (113:8-19, 114:7-24)). Nappier
also states he was “very rarely” around Joseph. (Id. at 29, 30, 37 (113:20-25, 114:2-25, 115:2-

10

18, 142:17-24)). Nappier claims that during his first employment with UnitedHealth, Joseph
forced him to give up his desk to a black ISR. 2 (Doc. 31-1 at 28 (107:21-25, 108:2-7)).
Nappier did not complain about race discrimination while employed at UnitedHealth, but
was never told how to complain pursuant to an EEO policy. (Doc. 31-1 at 33, 42 (128:4-7,
162:21-24)). UnitedHealth’s Employee Handbook containing its EEO policy was available
online, and Nappier does not dispute he was responsible for reading the policy. (Id.at 25 (96:6 –
98:23). However, Nappier admits no one ever said anything to him to lead him to believe the
decision to terminate his employment was based upon his race. (Id. at 33-34 (129:13-25, 130:25)).
Joseph made the decision to hire white employees, and Nappier believes Joseph made the
decision to hire him on two different occasions. (Doc. 31-1 at 15, 34 (56:3-16, 57:3-11, 132:1120); doc. 31-3 at ¶29).

Nappier believes UnitedHealth’s decision to terminate Smoot’s

employment following Nappier’s termination was because it “felt like [Nappier] was going to
file a lawsuit” and it was “damage control.” (Doc. 31-1 at at 35 (135:5-23)). Nappier admits this
belief is based on speculation. (Id.).
Other than the allegations Joseph discriminated against him and treated blacks more
favorably, Nappier does not allege he was discriminated against or treated unfairly by anyone at
UnitedHealth. (Doc. 31-1 at 33 (127:2-25, 128:2-7)).
I. Additional Facts – Breach of Contract Claim
Nappier also claims UnitedHealth breached its contract with him by not paying him
commission for approximately seventeen applications he wrote during the month prior to his
termination. (Doc. 31-1 at 38-39 (146:23-25, 147:2-17, 148:7-25, 149:2-25, 150:2-25, 152:13-

2

UnitedHealth disputes this fact. (Doc. 31-3 at ¶26).
11

22); doc., 31-2 at 45). Skaggs informed Nappier, via email, on October 21, 2009, that Nappier’s
commission “will be released on the normal commission cycle, which will be paid on Friday,
October 30. If that doesn’t happen, please let me know and I will research.” (Doc. 39-3 at 2).
On October 30, 2009, Nappier informed Skaggs he had not received payment for the
applications, even though he was still having to service the clients. (Id.). On November 13,
2009, Nappier notified Skaggs, via email, that he had “received a list from you of 17
app[lications] with effective [dates] of 07/01/2009 that are effective,” and that he had only been
paid $275 in commission—lower than he believed he was entitled. (Doc. 31-2 at 45).
III. Analysis
A. Title VII Race Discrimination
Absent direct evidence of discrimination, a plaintiff can establish a prima facie case of
disparate treatment by demonstrating: (1) he is a member of a protected class; (2) he was
subjected to an adverse employment action; (3) his employer treated similarly situated
employees outside of his protected class more favorably than he was treated; and (4) he was
qualified to do the job. Burke-Fowler v. Orange County, 447 F.3d 1319, 1323 (11th Cir. 2006);
see also Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 252-54 (1981), McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). A plaintiff’s discrimination claim is not
doomed simply because there are no similarly-situated employees who may be used as
comparators. Smith v. Lockheed-Martin Corp., 644 F.3d 1321 (11th Cir. 2011).

“A triable

issue of fact exists if the record, viewed in a light most favorable to the plaintiff, presents “a
convincing mosaic of circumstantial evidence that would allow a jury to infer intentional
discrimination by the decisionmaker.” Id. at 1328.
There is no dispute Nappier is a member of a protected class, UnitedHealth terminated

12

his employment, and Nappier was qualified to do his job. The parties, however, disagree as to
whether there is evidence to support the third element – that UnitedHealth treated a similarly
situated non-white employee more favorably than Nappier.

Specifically, Nappier argues

UnitedHealth retained Smoot, a black employee, when Nappier was terminated. (Doc. 38 at 14).
UnitedHealth argues Smoot is not a proper comparator because he is not “similarly situated to
[Nappier] in all relevant respects,” and that Nappier and Smoot worked primarily in different
regions. (Doc. 30 at 23 (quoting Holidfield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)).
Although both parties cite the traditional McDonnel Douglas framework, (doc. 30 at 2021 & doc. 38 at 13), when a plaintiff is terminated as part of a reduction-in-force (“RIF”), the
Eleventh Circuit has explained that a plaintiff can establish a prima facie case by showing (1) he
is a member of a protected class; (2) he was terminated; (3) he was qualified for another position
at the time of termination; and (4) the employer intended to discriminate in failing to consider
him for another position. Conner v. Bell Microproducts-Futre Tech, Inc., 492 Fed. Appx. 963,
965 (11th Cir. 2012) (citing Rowell v. BellSouth Corp., 433 F.3d 794, 798 (11th Cir. 2005)
(ADEA), Coutu v. Martin Cnty. Bd. of Cnty. Comm’rs, 47 F.3d 1068, 1073 (11th Cir. 1995)).
This modification eliminates the requirement that the plaintiff present evidence of a comparator
to establish a prima facie case of discrimination and instead requires “the plaintiff produce some
evidence that the employer did not treat him neutrally with respect to his protected-class
membership, but, instead, discriminated upon it.” Conner, 492 Fed. Appx. at 965 (citing Rowell,
433 F.3d at 798). This evidence must lead the fact finder to reasonably conclude either the
employer consciously refused to consider retraining or relocating the plaintiff due to his
protected class membership, or that the employer considered his protected-class membership as a
negative factor in that consideration. Id. (citing Rowell, 433 F.3d at 798).

13

Regardless of the “framework” applied, Nappier fails to present evidence of intentional
discrimination to survive summary judgment.

Under the traditional McDonnell Douglass

framework, even if the court assumes Smoot is a proper comparator and thus Nappier can
demonstrate a prima facie case, Nappier has not presented evidence of pretext. After the prima
facie case is established, UnitedHealth would be required to offer a legitimate, nondiscriminatory
reason for Nappier’s termination, which UnitedHealth has done. Lopez v. AT&T Corp., 457 Fed.
Appx. 872, 874 (11th Cir. 2012); see Chavez v. URS Federal Tech. Servs., Inc., 504 Fed. Appx.
819, 821 (11th Cir. 2013). According to Joseph, UnitedHealth decided to eliminate all ISR
positions in Alabama except for the position held by John Walley (who, like Nappier, is white)
and that its elimination of Smoot’s position was delayed for two months because he was
involved in multiple marketing initiatives that UnitedHealth wanted to see through conclusion.
(Doc. 31-3 at ¶18, 20-21).

UnitedHealth having asserted a non-discriminatory reason for

retaining Smoot, Nappier must present evidence such that a reasonable juror could conclude that
the asserted nondiscriminatory reason is pretextual, Lopez, 457 Fed. Appx. at 874, and Nappier
has failed to do so.
A plaintiff may demonstrate pretext by directly persuading the court that a discriminatory
reason more likely motivated the employer or, alternatively, “by showing that the employer’s
proffered explanation is unworthy of credence.” Reeves v. Sanderson Plumbing Product, Inc.,
530 U.S. 133, 143 (2000) (quoting Burdine, 450 U.S. at 256). The plaintiff must demonstrate
“such weakness, implausibilities, inconsistencies, incoherencies, or contradiction in the
employer’s proffered legitimate reason for its action that a reasonable fact finder could find them
unworthy of credence.” McCann v. Tillman, 526 F.3d 1370, 1375 (11th Cir. 2008). “A plaintiff
may not show pretext by recasting an employer’s proffered nondiscriminatory reasons or by

14

substituting [his] business judgment for that of the employer.” Jackson v. Agency for Persons
with Disabilities Fla., 608 Fed. Appx. 740, 742 (11th Cir. 2015) (citing Chapman v. AI Transp.,
229 F.3d 1012, 1030 (11th Cir. 2000) (en banc). The same type of evidence used to establish
pretext in traditional discrimination case is considered in a RIF case to determine whether the
employer consciously refused to consider retraining or relocating the plaintiff due to his race or
whether the employer considered the plaintiff’s race as a negative factor in that consideration.
Conner, 492 Fed. Appx. at 965 (citing Rowell, 433 F.3d at 798).
Joseph, with recommendations from Todd Skaggs, Sales Director, selected the ISR
positions in Alabama to be eliminated. (Doc. 31-3 at ¶21). In his declaration, Joseph explains as
follows:
We based our selection decision upon multiple factors and not just a consideration
of job performance. We primarily considered the profitability of various markets
in Alabama, and Montgomery was the least profitable market. We also
considered an ISR’s acquisition cost per lead, meaning the amount of money
UnitedHealth had to spend on an ISR, including salary and expenses, in order to
generate one lead, as well as an employee’s overall expenses. Because Mr.
Nappier and Mr. Teel were telecommuters, their expenses were higher than Mr.
Smoot’s expenses. We made the decision that the only ISR position in Alabama
which was paying for itself and generating revenue for UnitedHealth was the
position held by John Walley, and therefore decided all other ISR positions would
be eliminated. We made the decision to delay Mr. Smoot’s severance from
UnitedHealth for two months, as he was involved in various marketing initiatives
that we wanted to see through conclusion. We were at the time working with the
American Diabetes Association as the signature sponsor of a program that they
were doing in the faith-based community in the Birmingham area, thereby
allowing Mr. Smoot to promote UnitedHealth’s products at these events. We
were also a paid sponsor of the Binny Miles Radio show and based on the
contractual obligations with that show, a UnitedHealth representative was to be in
studio every Thursday to field Medicare related questions from the radio
audience. Mr. Smoot had been selected to be that individual since he was the one
who brought that opportunity to UnitedHealth. Additionally, we were in the
midst of negotiating some extremely favorable radio marketing rates with yet
another radio station with which Mr. Smoot had been instrumental in assisting
with, creating concerns about potential business risks associated with not seeing
these initiatives through to their conclusion. These initiatives were all concluded
by September 2009, and Mr. Smoot’s reduction-in-force was initiated. The

15

decision to delay the termination of Mr. Smoot’s employment was based solely
upon UnitedHealth’s business needs at the time. Following the reduction-inforce, Mr. Walley was the only ISR in Alabama, and remains the only ISR in
Alabama to date. UnitedHealth did not hire replacements for any of the ISR
positions eliminated during the 2009 reduction-in-force.
(Doc. 31-3 at ¶21).
Nappier quarrels with UnitedHealth’s decision to retain Smoot for an additional two
months, characterizing their justification as “essentially that expenses associated with his
retention were lower because [Nappier] was a telecommuter and [Smoot] was not, and that
Smoot was involved in certain marketing initiatives in which [Nappier] was not.” (Doc. 38 at
22). As to the costs associated with retention, Nappier argues “[i]t stretches the bounds of logic
to contemplate how maintaining office space which entails literally every single expenses
associated with [Nappier], with the possible exception of mileage, but with greater overhead,
would be somehow ‘cheaper’ than retaining [Nappier], who worked from home. . . .” (Doc. 38
at 22). Although Joseph stated the telecommuting ISRs’ expenses were higher than Smoot’s
expenses, this was not UnitedHealth’s stated reason for retaining Smoot for two additional
months. (See doc. 31-3 at ¶21). Specifically, Joseph explained he considered this, along with
other factors that go into figuring out an ISR’s acquisition cost per lead, and determined the only
ISR position in Alabama paying for itself was the position held by John Walley, who, like
Nappier, is white. (Id.). Any dispute over the cost of a telecommuting ISR versus a nontelecommuting ISR relates to UnitedHealth’s conclusion that the position held by Walley was the
only profitable ISR position in Alabama. 3

3

Even if there was some relevant dispute as to whether UnitedHealth’s conclusion that its
telecommuting ISRs had higher expenses than Smoot, when an employer proffers more than one
legitimate, nondiscriminatory reason, the plaintiff must rebut each of the reasons to survive a
motion for summary judgment. White v. Crystal Mover Servs., Inc., 615 Fed. Appx. 545, 548
(11th Cir. 2015) (citing Chapman, 229 F.3d at 1037). As demonstrated supra, Nappier has not
16

In response to UnitedHealth’s explanation that Joseph decided to retain Smoot for two
months to complete several marketing initiatives, Nappier contends this is “puzzling” because “if
Smoot’s job responsibilities were really so different from [Nappier’s] in the marketing regard”
UnitedHealth should have attempted “to distinguish Smoot’s responsibilities in this regard in an
attempt to demonstrate how Smoot is an improper comparator . . . .” (Doc. 38 at 22). Nappier
further contends “[i]f ‘business needs’ really dictated firing decisions, it seems it would make the
most ‘business’ sense to retain the employee who was the top performer, perhaps assign him
additional responsibilities to account for any ‘marketing’ needs, and terminate those individuals
whose performance was found lacking.” (Id.). It appears here that Nappier is not only trying to
substitute his business judgment for that of UnitedHealth’s, but also his purported legal
expertise, attempting to dictate what United Health should have argued. However, Joseph
specifically identified three on-going marketing initiatives Smoot was involved in 2009: the
partnership with the American Diabetes Association’s program in the faith-based community;
the in-studio commitment with the Binny Miles radio show, a program Smoot brought to
UnitedHealth; and the on-going negotiations of favorable marketing rates with another radio
station that Smoot had been instrumental assisting with. (Doc. 31-3 at 11).
UnitedHealth was not required to retain Nappier to complete these marketing initiatives
simply because he was the most experienced or historically the most productive ISR in Alabama.
(See doc. 31-2 at 33-36). Nappier’s statement that Joseph made the decision to terminate his
employment instead of a worse performing black employee, (doc. 38 at 20), simply recasts and
misrepresents the undisputed facts. UnitedHealth’s decision to retain Smoot for two months to
complete projects with which he was already involved or that he worked to acquire does not

done so.
17

create a genuine issue of material fact as to pretext or to any alleged discriminatory intent.
Additionally, Nappier’s testimony that Joseph favored black employees over white
employees does little, if anything, to show pretext or any alleged discriminatory intent. (Doc. 38
at 20). Nappier testified “[Joseph] was a lot more friendlier to the black guys. It was just
obvious to me that he like the black guys better than he did me, you know, would rather be
friends with them or whatever. . . . [Joseph] was a lot - - he was a lot more sociable with them.”
(Doc. 31-1 at 29 (113:9-19)). Assuming these allegations about Joseph are true, they do not
show that UnitedHealth’s proffered reason for retaining Smoot was pretextual and are
insufficient to create a “convincing mosaic” of circumstantial evidence to infer intentional
discrimination. See Chavez, 504 Fed. Appx. at 822 (stating that evidence a manager was less
friendly to the plaintiff than some of her colleagues does not amount to discrimination).
Likewise, Nappier fails to present evidence that UnitedHealth did not treat him neutrally with
respect to his race, but, instead, discriminated upon it. See Conner, 492 Fed. Appx. at 965 (citing
Rowell, 433 F.3d at 798). UnitedHealth is due summary judgment on this claim.
B. Breach of Contract
Nappier contends UnitedHealth owes him commission for approximately seventeen
applications he wrote in July 2009, prior to his termination. 4 (See doc. 38 at 23-25). When
Nappier asked Skaggs, via email, about his July 2009 commission, Skaggs responded as follows
on October 21, 2009:

4

In his complaint Nappier also alleges UnitedHealth’s breach of an oral contract for
employment for life and that his salary would increase from $31,500.00 to $36,000.00. (Doc. 1
at ¶¶26 & 27). Although UnitedHealth addressed these claims in its motion for summary
judgment, Nappier failed to mention them at all in his opposition brief. (See docs. 30 & 38).
Accordingly, any such claims are deemed abandoned. See Burnett v. Harvard Drug Group,
LLC, No. CV-13-S-1620-NE, 2015 WL 3648762 at *6 (N.D. Ala. June 22, 2015) (citing
Chapman, 229 F.3d at 1027).
18

Steve - It is my understanding that your commission will be released on the
normal commission cycle, which will be paid on Friday, October 30. IF for some
reason that does not happen, please let me know and I will research. – Todd
(Doc. 39-3 at 2). On October 30, 2009, Nappier sent Skaggs the following email:
i [sic] was to be paid today for 17 apps..the 90 days is up…I called my bank..no
deposit..this is money owed me..i am still having to service these clients….I
WANT MY MONEY!!!!!!! STEVE NAPPIER
(Id.).
Joseph testified he personally reviewed UnitedHealth’s records regarding the
commissions it paid Nappier, as well as the applications Nappier wrote prior to his termination.
(Doc. 31-1 at ¶¶1, 30). Based on his review of the records, and in light of UnitedHealth’s policy
regarding “charge backs” for rapid disenrollments (i.e., deductions from any potential
commissions for customers who terminate their policies within ninety days of enrollment) Joseph
calculated Nappier received all of the commissions due. (Id. at ¶30). Although his brief
insinuates he did not get paid for any of the “approximately seventeen applications,” Nappier
testified he received $275 for these. (Doc. 31-1 at 39 (152:13-15)). This amount is reflected in
an email Nappier sent Skaggs on November 13, 2009, that stated as follows:
Todd
i [sic] received notice from uhc that 275 dollars was deposited in my
account..UNACCEPTABLE!!!...i received a list from you of 17 apps with
effective of 07/01/09 that are effective..3rd grade math tells one that is not
correct…thanks for your help!!!!! Steve
(Doc. 31-2 at 45). 5
To avoid summary judgment, Nappier must produce evidence, not merely conclusory
allegations, supporting his claim he is entitled to additional commissions. See Green v. Mobis

5

In his complaint, however, Nappier states that “[t]o date, [UnitedHealth] has only . . .
paid [Nappier] approximately $1,300.00 in commissions. (Doc. 1 at ¶18).
19

Ala., LLC, 613 Fed. Appx. 788, 793 (11th Cir. 2015) (“The plaintiff must present evidence
demonstrating that it can establish the basic elements of its claim, Celotex, 477 U.S. at 322, . . .
since ‘conclusory allegations without specific supporting facts have no probative value’ at the
summary judgment stage. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir.1985).”).
Here, Nappier’s evidence establishes he contacted Skaggs, his former supervisor, to inquire
about the commission he believed he was due, that Skaggs advised him any such commission
would be paid on October 30, 2009, and that he emailed Skaggs after receiving $275, believing
he was entitled to more commission. (Docs. 39-3 at 2 & 31-2 at 45). Nothing Nappier offers
disputes UnitedHealth’s evidence that Joseph reviewed company records regarding the
commissions it paid Nappier, and that, based on that review, Nappier received all the
commission he was due.

(See doc. 31-3 at ¶30).

There is no evidence Nappier served

interrogatories or requests for production on UnitedHealth seeking the records on which Joseph
relied. Additionally, there is no evidence Nappier attempted to depose Joseph to obtain evidence
to refute UnitedHealth’s position that, due to rapid disenrollment charge-backs, Nappier was not
owed any further commission. Nappier’s failure to engage in this or similar discovery does not
shift the ultimate burden of proof to UnitedHealth to disprove Nappier’s claim. Nappier has not
offered evidence to create a genuine issue of material fact he is owed any further commission.
UnitedHealth is entitled to summary judgment on this claim.
IV. Conclusion
For the reasons stated above, UnitedHealth’s motion for summary judgment, (doc. 29), is
GRANTED, and this action will be DISMISSED WITH PREJUDICE. A separate order will
be entered.

20

DONE this 18th day of March 2016.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

21