Hopkins v. Sam's West Inc
MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 10/20/2016. (KAM, )
2016 Oct-20 PM 03:50
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SAM’S WEST, INC.,
Case No. 2:14-cv-02254-JEO
In this employment discrimination and retaliation action, William Hopkins
asserts claims against his former employer, Sam’s East, Inc. (“Sam’s” or the
“Company”) 1, for retaliation under the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12101 et seq.; retaliation under the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 623; and associational discrimination
under the ADEA. Sam’s has moved for summary judgment on all three claims
pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Doc. 25). Upon
consideration of the pleadings, briefs, and evidentiary submissions, the court
concludes that the motion for summary judgment is due to be granted.
Sam’s East, Inc. is incorrectly identified in the case style as Sam’s West, Inc.
I. SUMMARY JUDGMENT STANDARD
Rule 56 provides that a court “shall grant summary judgment if 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). In other words,
summary judgment is proper “after adequate time for discovery 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, 477 U.S. 317, 322 (1986). “In
making this determination, the court must review all evidence and make all
reasonable inferences in favor of the party opposing summary judgment.”
Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc)
(quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in
favor of the non-moving party are not unqualified, however. “[A]n inference is not
reasonable if it is only a guess or a possibility, for such an inference is not based on
the evidence, but is pure conjecture and speculation.” Daniels v. Twin Oaks
Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983) (alteration supplied).
[t]he mere existence of some factual dispute will not defeat
summary judgment unless that factual dispute is material to an issue
affecting the outcome of the case. The relevant rules of substantive
law dictate the materiality of a disputed fact. A genuine issue of
material fact does not exist unless there is sufficient evidence favoring
the nonmoving party for a reasonable jury to return a verdict in its
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and
alteration supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 25152 (1986) (asking “whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law”).
II. SUMMARY OF FACTS
Alleged Discrimination at the Sam’s Club in Rome, Georgia
Hopkins was employed as a Market Manager for Sam’s from May 2004
through September 14, 2012. (Hopkins Dep. at 30-31, 218). 2
As a Market
Manager, Hopkins oversaw the operation of 14 to 15 Sam’s Club locations in
Alabama, Georgia, and Tennessee. (Id. at 30-31). He reported directly to the
Regional Manager of the Mid-South, a position held by Michael Mainer as of May
2012 and by Kelvin Buncum before that. (Id. at 33-34; Mainer Dep. at 12).3
Hopkins’s team included a Market Human Resources Manager. (Id. at 36). Josh
Jones became the Market Human Resources Manager in 2012. (Id. at 55, 83-84).
The Deposition of William Hopkins (“Hopkins Dep.”) and the exhibits thereto are located at
Docs. 27-1 through 27-3. Citations in this opinion are to the page numbers of the deposition.
The Deposition of Michael Mainer (“Mainer Dep.”) and the exhibits thereto are located at Doc.
27-4. Citations are to the page numbers of the deposition.
In August 2012, Cassie Bell, the Regional Human Resources Manager for
Sam’s at that time, called Hopkins to discuss a number of issues that had been
raised by associates (employees) at the Sam’s Club in Rome, Georgia. (Hopkins
Dep. at 38, 144-47).
Among the issues was a complaint by associate Rita
Cawthon. Cawthon, a cancer survivor, alleged that she had applied for a “fax and
pull” position at the Rome Club, but that Jerry Mclean, the Manager of the Club,
had denied her the position because he felt it was too physically demanding for
her.4 (Id. at 142-44; Doc. 32 at 3). Cawthon also alleged that she had been locked
in an office by an associate manager at the Club. (Id. at 146).
Following Hopkins’s conversation with Bell, Hopkins, Bell, and Jones
traveled to Rome to have “roundtable” discussions with the associates about their
concerns.5 (Hopkins Dep. at 145-46). Before talking with the associates, Hopkins,
Bell, and Jones discussed the fact that Cawthon’s allegations would require a “Red
Book” investigation. (Id. at 152-54). A Red Book investigation is conducted
whenever an allegation of discrimination arises at Sam’s. (Id. at 135-36; Mainer
A “fax and pull” associate, also known as a “click and pull” associate, receives orders from
business customers via fax and then “pulls” the requested merchandise for the customers.
(Hopkins Dep. at 143-44, 155).
There is a discrepancy in the record as to when Hopkins, Bell, and Jones visited the Rome Club.
In a written statement prepared by Hopkins, he states that they were in Rome on August 16 and
17, 2012. (Hopkins Dep., Exh. 22). In a statement prepared by Jones, he states that they were in
Rome on August 15 and 16, 2012. (Doc. 32 at 3). This discrepancy, however, is immaterial for
purposes of the motion for summary judgment under consideration.
Dep. at 16). Red Book investigations are conducted through the Employment
Advisory Services (“EAS”) team at Sam’s, which assigns an investigating manager
responsible for the investigation. (Hopkins Dep. at 140-41 & Exh. 10). According
to Hopkins, there was no discussion regarding who would serve as the
investigating manager with respect to Cawthon’s allegations, although either Bell
or Jones stated that EAS had been contacted. (Id. at 154-55).
According to Hopkins, the original plan was for Hopkins, Bell, and Jones to
return to Rome the following week to investigate Cawthon’s allegations. (Hopkins
Dep. at 148-49). However, Bell subsequently told Hopkins that she and Jones
would not be going back to Rome and that he would have to “finish” the
investigation by himself. 6 (Id. at 149, 157-58 & Exh. 22).
Hopkins returned to Rome on August 23 or 24, 2012. (Hopkins Dep. at 150
& Exh. 22). According to Hopkins:
[T]he thing at the time was Rita [Cawthon] was making a bigger issue
out of being locked in the office than she was not being picked for the
fax and pull. It’s almost like she had moved on past that. That didn’t
work out. It was done. The other person was named. You’re not
going to go back and undo that.
So it’s almost like that had settled in her mind, but she was
adamant that she was locked in the office. So to her, it’s almost like
According to Jones, he was scheduled to be in training the week after the visit to Rome. (Doc.
32 at 3). Jones contends that Hopkins and Bell “spoke in the training room in Rome and
[Hopkins] was going to have to follow-up with the Open Door concerns while [Jones] was in
training.” (Id.) He also contends that he told Cawthon he was looking into her allegations and
would follow up when he returned from his training. (Id.)
the [“]not being picked[”] was a side note to the [“]I was locked in the
office by the managers.[”]
So the whole purpose in that was identifying was she locked in
the office … not, what’s going on with the manager. …
(Id. at 158). Hopkins reviewed video from the date of the alleged incident and
took statements from Cawthon, McLean, and the assistant managers. (Id. at 15860, 162-63). The statements “were primarily focused” on Cawthon’s allegation of
being locked in the office. (Id. at 170). However, Hopkins also discussed the fax
and pull matter with both Cawthon and McLean. Cawthon stated that she “felt like
she could do the job” but that McLean “did not choose her because he was worried
about her being able to physically do the job ….” (Id. at 151-52).
similarly stated that he felt the fax and pull position was “too physically
demanding” for Cawthon and that he was “looking out for her” in not awarding her
the position. (Id. at 161).
On August 25, 2012, Hopkins emailed a report to Bell and Jones, along with
the statements he had taken “in regards to associate Rita Cawthorn [sic] and being
locked in the office.” (Hopkins Dep. at 163-64 & Exh. 14). In his report, Hopkins
primarily addressed Cawthon’s allegation that she had been locked in an office.
(Id., Exh. 14). He did mention that Cawthon “was also very upset that she didn’t
receive the FNP [fax and pull] job the day prior,” but included no other details
about that matter. (Id. at 165 & Exh. 14) Hopkins determined that the office door
had not been locked as Cawthon had alleged. (Id. at 150).
According to Hopkins, he attempted to follow up with Bell and Jones after
emailing them his report, but they were unresponsive. (Hopkins Dep. at 166-67,
182). Consequently, he decided to go back to Rome on September 5, 2012, to
“coach” McLean on his fax and pull hiring decision, which Hopkins considered an
act of discrimination. (Id. at 167, 182-83). According to Hopkins, “for [McLean]
not to be held accountable for an act of discrimination was wrong.” (Id. at 167).
Hopkins did not discuss his decision to coach McLean with anyone in EAS or
Human Resources, including Bell and Jones. (Id. at 182-83).
On the morning of September 5, 2012, hours before Hopkins followed
through with his decision to coach McLean, Jones contacted Hopkins and asked
him to send a copy of McLean’s written statement. When Hopkins responded by
email that he had already sent the statement to Jones “a couple of weeks ago,”
Jones clarified that he was seeking a statement on the fax and pull hiring decision:
“Jerry [McLean] did not write in his statement about the [fax] and pull position and
selection. … I reach[ed] out to him yesterday to provide a statement. He said he
would complete by COB [close of business]. I never received his statement.”
(Hopkins Dep. at 166-68 & Exh. 15). Hopkins then followed up with McLean,
who stated that he had sent a statement on the fax and pull matter to Jones the night
before. (Id. at 168). Nonetheless, McLean went ahead and transmitted a copy of
the statement to Jones a second time. (Id. at 169-70).
At 5:08 p.m. on September 5, 2012, Hopkins issued a First Written
Coaching to McLean, stating that McLean had “discriminated against an associate
when making a hiring decision” and that McLean “should not make decisions to
not allow someone a position based on his feeling that they may not be able to
handle it physically.” (Hopkins Dep. at 186 & Exh. 17). According to Hopkins, he
determined that a “first level” written coaching was appropriate because McLean
had engaged in discrimination, but had not acted with malice or for personal gain
and had the right intentions. (Id. at 186, 190; Exh’s 18 & 22).
Just over one hour later, at 6:19 p.m. on September 5, Jones emailed
Hopkins and asked: “Did you get a chance to review Jerry’s statement? I wanted
to talk with you in regards to the Redbook and EAS bringing Legal in for a
recommendation. … EAS and I are going to have a follow up call in the morning.”
(Id. at 177-78 & Exh. 16). Hopkins did not see the email at that time because he
was driving back to Alabama. (Id. at 178-79).
Less than an hour later, at approximately 7:00 p.m. on September 5, Hopkins
participated in a previously-scheduled conference call with Bell and Jones.
(Hopkins Dep. at 179-80). According to Hopkins, the call had been scheduled
because he could not get Jones to respond to him on anything, and had nothing to
do with the fax and pull matter. (Id. at 179-80). During the call, however, either
Bell or Jones mentioned the need to hold McLean accountable for his fax and pull
hiring decision. (Id. at 180). Hopkins immediately responded, “Hold on a second.
I’ve already held him accountable. I’ve already coached him. I coached him
today.” (Id.) Bell reacted with surprise and told Hopkins they would talk about the
matter later. (Id. at 180-81).
After the call ended, Hopkins sent two emails to Jones. In the first email,
which was a response to Jones’s email asking whether Hopkins had reviewed
McLean’s statement on the fax and pull matter, Hopkins stated that he “didn’t
realize you were doing a red book on this specific issue” and that he did not see
“what would be in this statement alone enough for termination.” (Hopkins Dep. at
177, 183-84 & Exh. 16). In the second email, which was a further response to
Jones’s emails from that morning seeking McLean’s statement on the fax and pull
matter, Hopkins clarified that the statements he had previously provided to Jones
“were in regards to the associate being locked in the office” and that while the fax
and pull selection was “touched on” in the prior statements, that was just “to create
the history” and was “not what [he] was inquiring about in these conversations.”
(Id. at 169-70 & Exh. 15).
Around the same time that Hopkins sent the two emails to Jones, Hopkins
had a second telephone conversation with Bell. Bell told Hopkins that they were
doing a Red Book investigation on Cawthon’s discrimination allegation against
McLean and that Hopkins should not have coached McLean. (Hopkins Dep. at
182). Hopkins replied that he was not aware of the Red Book investigation and
that no one had been communicating with him. (Id.) Hopkins said that, based on
what Bell was telling him, he “guess[ed] he shouldn’t have coached” McLean, but
reiterated that he was unaware of the “separate investigation into Jerry.” (Id.)
One week later, on September 12, 2012, Bell issued an Investigation
Summary report on the actions taken by Hopkins in his investigation of Cawthon’s
allegations. (Doc. 32 at 2). Bell noted that Hopkins “conclude[d] based on his
coaching that the club manager, Mr. McLean, discriminated based on perceived
disability due to [Cawthon’s] cancer. Mr. Hopkins stated that he felt it captured
the reason for the coaching. Mr. Hopkins stated he felt it was discrimination based
on the medical challenges the associate had.” (Id.) Bell concluded in her report
that Hopkins “acted without a sense of ‘no tolerance’ for the company’s
Discrimination and Harassment Policy” and that Hopkins “did not follow the
proper procedures for an alleged discrimination concern and the concern of the
associate being locked in the manager’s office.” (Id.) She further concluded that
Hopkins’s “admission of discriminatory behaviors during the coaching process
could open up significant liability for the company.” (Id.)
On September 13, 2012, Mainer, the Regional General Manager for Sam’s,
interviewed Hopkins about his investigation and decision to issue a First Written
Coaching to McLean. (Hopkins Dep. at 188-92 & Exh. 18). During the interview,
Hopkins again stated that he reached out to Bell and Jones after sending them his
“recap” of his investigation but got no response. (Id. at 190 & Exh. 18). He also
admitted that no one else was involved in his decision to give McLean a First
Written Coaching. (Id., Exh. 18).
After speaking with Mainer, Hopkins prepared a written statement on how
his investigation of Cawthon’s allegations unfolded. (Hopkins Dep. at 255 & Exh.
22). As before, he stated that he did not realize Human Resources was doing a Red
Book investigation into the fax and pull matter when he decided to coach McLean
on September 5, 2012. (Id.) He further stated that he reviewed the Company’s
Discrimination and Harassment Policy and determined that “Jerry met the
requirement for accountability based on his and others[’] statements” and that
“based on the fact that there was no malice or personal gain, the coaching would be
at the level of a 1st written.” (Id.) He concluded his written statement as follows:
“If there was an active Red Book on the specific charge [against McLean], I should
have known that, and as the Market Manager, I should have been in that loop. Had
I been, I would not have coached Jerry prior to the conference call [on September
5, 2012].” (Id.)
On September 14, 2012, Sam’s terminated McLean for, among other
reasons, making the fax and pull hiring decision “based on inappropriate reasons
not in accordance with our policies.” (Hopkins Dep. at 192-93; Mainer Dep., Exh.
3). That same day, Sam’s terminated Hopkins as well. (Hopkins Dep. at 193, 21822 & Exh. 19). Hopkins’s Exit Interview form states that he was terminated for
“Misconduct With Coachings” and includes the comments that Hopkins failed to
“follow the correct investigation protocol for handling a discrimination allegation”;
utilized “inappropriate verbiage on a performance coaching”; exhibited “poor
judgment” during the investigation; and failed to “leverage a HR partner.” (Id.,
Exh. 19). Mainer, Bell, and Regional Asset Protection Manager Kevin Warn were
present at the termination, although Mainer did most of the talking. (Id. at 219,
222). According to Hopkins, Mainer stated that he was being terminated because
he “put the company at risk by putting in writing that we discriminated against an
associate.” (Id. at 220).
Hopkins’s Participation in an Age Discrimination Investigation
Around the time that Cawthon’s allegations were being investigated,
Hopkins was interviewed by Felecia Collins-Wylie, a Regional Human Resources
Manager at Sam’s, concerning complaints that Mainer was “bullying” long-term
associates. (Hopkins Dep. at 204-09; Mainer Dep. at 27). Hopkins does not know
who made the complaints. (Hopkins Dep. at 209). According to Hopkins, he was a
“little guarded” in what he told Collins-Wylie, but did tell her that Mainer was
harder on long-term associates than on short-term associates and mentioned three
Club managers over age 50—Charles Long, Jerry McLean, and Stanley
McGuire—who were “getting undue pressure … above and beyond the others.”
(Id. at 193, 207-10). Hopkins also mentioned to Collins-Wylie that Long’s wife
was being treated for cancer. (Id. at 204-05).
The day after Hopkins spoke with Collins-Wylie, Mainer called him and
asked him how Long’s wife was doing. (Hopkins Dep. at 205-06). According to
Hopkins, he had not talked about Long’s wife’s cancer treatment with anyone
except Collins-Wylie. (Id. at 210). Hopkins’s conversation with Mainer concerned
only Long and his wife. (Id. at 211). Mainer did not reference anything Hopkins
had said about him to Collins-Wylie. (Id.) Hopkins admits that he does not know
whether Collins-Wylie ever told Mainer what she had learned during her
investigation of the complaints that Mainer was bullying long-term associates, and
Mainer testified that he does not know if Hopkins had any involvement in that
investigation. (Id.; Mainer Dep. at 29-30).
Hopkins’s Wife’s Medical Conditions and Medical Expenses
Hopkins’s wife suffers from several medical conditions. (Hopkins Dep. at
233). When Hopkins was employed at Sam’s, he and his wife participated in
medical insurance offered through Sam’s. (Doc. 11 ¶ 31; Doc. 15 ¶ 31). According
to Hopkins, they would reach their out-of-pocket minimum every year, making
their medical insurance very expensive. (Hopkins Dep. at 233-34).
According to Hopkins, Bell was aware of his wife’s medical conditions and
was aware that they were “maxing out” their medical insurance every year.
(Hopkins Dep. at 235, 238-39). Hopkins contends that Mainer was also aware of
his wife’s medical issues and that “way before” he was terminated Mainer
commented: “Your wife’s got all these medical issues. It’s costing y’all a fortune.
I don’t know how you keep going.” (Id. at 234-35).
According to Mainer,
however, he did not learn about Hopkins’s wife’s medical issues until the day
Hopkins was terminated, when he learned about the issues from Bell. (Mainer Dep.
According to Hopkins, Mainer stated at his termination: “We obviously
know about your wife’s situation and your medical expenses, and we feel really
bad. So we’ve got a severance package here that should cover six months of
COBRA insurance for you. We want to give this to you.” (Hopkins Dep. at 22021). According to Mainer, he did not make any comment to Hopkins at his
termination about the costliness of his wife’s medical treatment and did not hear
Bell make any such comment. (Mainer Dep. at 24). Mainer admits, however, that
Bell offered Hopkins six months of COBRA coverage and that Hopkins was asked
to sign a waiver in exchange. (Id.)
Hopkins’s EEOC Charge
On February 12, 2013, Hopkins filed a Charge of Discrimination with the
Equal Employment Opportunity Commission, alleging that Sam’s discriminated
against him based on his race and age, in retaliation for his involvement in
investigations pertaining to disability and age discrimination, and because of his
association with his allegedly disabled wife. (Doc. 11-1 at 2-3). The EEOC issued
a Dismissal and Notice of Rights with respect to Hopkins’s charge on September
26, 2014. (Id. at 5). Hopkins then filed this action.
Hopkins’s amended complaint contains three claims: a claim for retaliation
under the ADA, a claim for retaliation under the ADEA, and a claim for
associational discrimination under the ADEA. The court will address each claim
Hopkins’s ADA retaliation claim is based on the allegation that Sam’s
retaliated against him for engaging in the “protected activity” of “opposing Jerry
McLean’s discrimination against Rita Cawthorn [sic] and participating in an
investigation of McLean’s discrimination.” (Doc. 11 ¶ 41). The Eleventh Circuit
“asses[es] ADA retaliation claims under the same framework used in Title VII.”
Palmer v. McDonald, 624 F. App’x 699, 702 (11th Cir. 2015) (citing Stewart v.
Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997)).
To establish a prima facie case of ADA retaliation, a plaintiff must demonstrate
that “(1) [he] engaged in a statutorily protected expression, (2) [he] suffered an
adverse employment action, and (3) there was a causal link between the two.”
Frazier-White v. Gee, 818 F.3d 1249, 1258 (11th Cir. 2016).
If a plaintiff
establishes a prima facie case, the employer must articulate a legitimate, nondiscriminatory reason for the adverse employment action. Davis v. Postmaster
General, 550 F. App’x 777, 779 (11th Cir. 2013) (citing Holifield v. Reno, 115
F.3d 1555, 1565, 1567 (11th Cir. 1997)). If the employer meets this burden, “the
burden shifts back to the plaintiff to show that the proffered explanation is a
pretext for retaliation.” Id.
Here, Sam’s argues that Hopkins’s ADA retaliation claim fails because he
did not engage in protected activity and cannot, in any event, establish a causal link
between his alleged protected activity and his termination. Sam’s further argues
that it had legitimate, non-discriminatory reasons for terminating Hopkins that are
Hopkins responds that he did engage in protected activity in
opposing disability discrimination, that his opposition to the discrimination was the
reason for his termination, and that the Company’s alleged reasons for terminating
him are mere pretext.
Prima Facie Case
a. Protected Activity
The ADA prohibits retaliation against an employee who has “opposed any
act or practice made unlawful by” the ADA (the “opposition clause”) or “made a
charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under” the ADA (the “participation clause”). 42 U.S.C. §
12203(a); see also 42 U.S.C. § 2000e-3(a) (prohibiting discrimination against an
employee because he has “opposed any practice made an unlawful employment
practice” by Title VII or because he has “made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing” under Title
In its initial brief, Sam’s first argues that Hopkins cannot establish an ADA
retaliation claim under the participation clause. (Doc. 26 at 16-17). The court
agrees. The Eleventh Circuit has held that “at a minimum, some employee must
file a charge with the EEOC or otherwise instigate proceedings under the statute
for the conduct to fall within the purview of the participation clause.” Parker v.
Econ. Opportunity for Savannah-Chatham Area, Inc., 587 F. App’x 631, 634 (11th
Cir. 2014) (citing EEOC v. Total Sys. Servs., 221 F.3d 1171, 1174 (11th Cir.
2000)). Hopkins has not alleged or offered any evidence that Cawthon’s allegation
of discrimination was made in conjunction with the filing of an EEOC charge or
any other proceeding under the ADA. Moreover, Hopkins does not mention the
participation clause in his brief and makes no argument that he has a valid claim
under that clause. Consequently, Hopkins has abandoned any claim that he is
entitled to protection under the ADA’s participation clause. See Coal. for the
Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th
Cir. 2000) (“[F]ailure to brief and argue this issue during the proceedings before
the district court is grounds for finding that the issue has been abandoned.”); see
also McMaster v. United States, 177 F.3d 936, 940–41 (11th Cir. 1999) (noting
that a claim may be considered abandoned when the allegation is included in the
plaintiff's complaint but he fails to present any argument concerning the claim to
the district court).
The court is satisfied, however, that Hopkins has shown that he engaged in
protected activity under the ADA’s opposition clause, at least for purposes of
establishing a prima facie case of retaliation. The crux of Hopkins’s retaliation
claim is that he was terminated for opposing McLean’s discriminatory conduct
towards Cawthon. The Eleventh Circuit has held that “[a]lthough ‘opposition’
does not require ‘active, consistent behavior,’ it requires at least the disclosure of
an individual’s position or opinion on a matter.” Thampi v. Manatee Cnty. Bd. of
Comm’rs, 384 F. App’x 983, 990 (11th Cir. 2010) (citing Crawford v. Metro Gov’t
of Nashville & Davidson Cnty., 555 U.S. 271, 277 (2009)). Citing Thampi, Sam’s
argues that Hopkins’s retaliation claim fails because he has offered “no evidence
that [he] personally opposed Mr. McLean’s conduct” and that the coaching
Hopkins gave McLean “demonstrates only [his] belief that Mr. McLean violated
company policy, not [his] opposition to alleged unlawful conduct.” (Doc. 26 at 1516) (emphasis in original). The court does not agree.
Hopkins’s First Written Coaching to McLean unambiguously states that
McLean “discriminated against an associate when making a hiring decision.”
(Hopkins Dep., Exh. 17). His opposition to that discrimination is reflected in his
unilateral decision to issue the First Written Coaching to McLean. In addition,
Sam’s clearly understood Hopkins’s “position or opinion” on the matter; in her
Investigation Summary report, Bell noted that Hopkins “admits knowledge of
events that are against the laws” and that Hopkins “conclude[d] based on his
coaching that … McLean discriminated based on perceived disability” and “felt it
captured the reason for the coaching.” (Doc. 32 at 2). In other words, Sam’s was
aware that Hopkins viewed McLean’s conduct as constituting disability
discrimination and that Hopkins believed the conduct warranted discipline
In its reply brief in support of its motion for summary judgment, Sam’s also
argues, for the first time, that Hopkins did not engage in protected activity under
the so-called “manager rule,” citing the Eleventh Circuit’s opinion in Brush v.
Sears Holdings Corp., 466 F. App’x 781 (11th Cir. 2012). (Doc. 31 at 2-3). The
manager rule holds that “a management employee [who], in the course of her
normal job performance, disagrees with or opposes the actions of an employer does
not engage in “‘protected activity.’” Id. at 787. In Brush, the Eleventh Circuit
found the manager rule to be “persuasive and a viable prohibition against certain
individuals recovering under Title VII.” Id.
As an initial matter, the court notes that it is improper for a party to present a
new argument in a reply brief, as Sam’s has done here. See, e.g., Brown v.
CitiMortgage, Inc., 817 F. Supp. 2d 1328, 1332 (S.D. Ala. 2011) (noting that “it is
improper for a litigant to present new arguments in a reply brief” and that such
arguments “are generally not considered by federal courts”). Sam’s does not argue
or even mention the manager rule anywhere in its motion for summary judgment or
initial brief, and consequently Hopkins did not have an opportunity to respond to
The court also notes that Brush is an unpublished opinion. Unpublished
opinions of the Eleventh Circuit may be cited as persuasive authority, but they are
not considered binding precedent. See 11th Cir. R. 36-2.
As concerns the
persuasive authority of Brush, the court observes that the two cases cited by the
Brush panel as “creating” the manager rule—McKenzie v. Renberg’s Inc., 94 F.3d
1478 (10th Cir. 1996), and Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617 (5th
Cir. 2008)—involved claims under the Fair Labor Standards Act (“FLSA”), not
Title VII. Other circuit courts have refused to apply the manager rule to Title VII
claims. See DeMasters v. Carilion Clinic, 796 F.3d 409, 421-22 (4th Cir. 2015)
(noting that the manager rule has been applied in the context of retaliation claims
under the FLSA but concluding that the rule does not apply to Title VII); Johnson
v. Univ. of Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000) (holding that “the only
qualification … placed upon an employee’s invocation of protection from
retaliation under Title VII’s opposition clause is that the manner of his opposition
must be reasonable” and noting that “there is no qualification on who the
individual doing the complaining may be”); but see Weeks v. Kansas, 503 F. App’x
640, 642 (10th Cir. 2012) (applying the manager rule to a Title VII retaliation
claim). The court is not convinced that the manager rule should be applied to bar
Hopkins’s ADA retaliation claim here, especially when Hopkins went beyond
merely investigating Cawthon’s discrimination allegation and unilaterally coached
McLean on his conduct. Regardless, the court need not decide that issue at this
time, because (as discussed below) the court is otherwise convinced that Sam’s had
legitimate, non-discriminatory reasons for terminating Hopkins and that its reasons
are not pretextual. Even assuming that the manager rule does not apply and that
Hopkins did engage in protected activity, his ADA retaliation claim still fails.
b. Causal Connection
To prevail on his ADA retaliation claim, Hopkins must show that his
protected activity was a “but-for” cause of his termination. Frazier-White, 818
F.3d at 1258. “To establish a causal connection, the plaintiff must show that the
decisionmaker was aware of his protected conduct, and that the protected activity
and adverse action were not wholly unrelated.” Clemons v. Delta Air Lines
Inc., 625 F. App’x 941, 945 (11th Cir. 2015) (citing Kidd v. Mando Am. Corp., 731
F.3d 1196, 1211 (11th Cir. 2013)). “The burden of causation can be met by
showing close temporal proximity between the statutorily protected activity and
the adverse employment action.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361,
1364 (11th Cir. 2007).
Here, Sam’s terminated Hopkins just nine days after it learned that he had
coached McLean for discriminating against Cawthon. Sam’s stated in Hopkins’s
Exit Interview that he was terminated for “Misconduct With Coachings.” (Hopkins
Dep., Exh. 19). This “close temporal proximity” is sufficient to establish a causal
connection between his protected activity—his opposition to McLean’s
discrimination—and his termination.
Accordingly, Hopkins has established a
prima facie case of ADA retaliation.
Legitimate, Non-Discriminatory Reasons and Pretext
Hopkins having established a prima facie case of ADA retaliation, the
burden shifts to Sam’s to articulate legitimate, non-discriminatory reasons for his
termination. Sam’s has done so. Its reasons include Hopkins’s failure to follow
the correct investigation protocol for handling a discrimination investigation; his
use of inappropriate verbiage on a written coaching; his exercise of poor judgment
during the investigation; and his failure to leverage a Human Resources partner.
(Hopkins Dep., Exh. 19). All of these reasons relate to Hopkins’s failure to follow
Company procedures governing discrimination investigations.
Because Sam’s has articulated legitimate, non-discriminatory reasons for
terminating Hopkins, “the presumption of discrimination is rebutted, and the
burden of production shifts to the plaintiff to offer evidence that the alleged reason
of the employer is a pretext for illegal discrimination.” Wilson v. B/E Aerospace,
376 F.3d 1079, 1087 (11th Cir. 2004). To meet his burden, Hopkins must show
both (1) that the reasons articulated by Sam’s for his termination are not true, and
(2) that the real reason for his termination was discrimination. St. Mary’s Honor
Center v. Hicks, 509 U.S. 502, 515 (1983).
“If the plaintiff fails to proffer
sufficient evidence to create a genuine issue of material fact as to whether each of
the defendant’s proffered reasons is pretextual, the defendant is entitled to
summary judgment.” Wascura v. City of South Miami, 257 F.3d 1238, 1246 (11th
Here, Hopkins argues that Sam’s had “no basis in fact” for determining that
he violated Company policy in his handling of the McLean discrimination
investigation, asserting that he “acted within [C]ompany policy to complete the
investigation Bell had instructed him to complete.” (Doc. 28 at 12-13).
repeatedly emphasizes that Bell and Jones, the two Human Resources Managers
who were supposed to be working with him on the investigation, were
unresponsive when he reached out to them and “kept [him] in the dark” about a
separate Red Book investigation. (Id. at 7). He contends that he “took the action
[he] thought appropriate after not receiving the partnership from Bell and Jones he
requested” and that “[t]he prompt remedial action he handed down was within
[Company] policy.” (Id. at 9).
Even construing the facts in a light most favorable to Hopkins, the facts do
not support his argument that Sam’s had no basis for determining that he failed to
abide by Company policy in his discrimination investigation. First, the Company’s
Discrimination and Harassment Field Prevention Management Guidelines, which
Hopkins admits he reviewed, state that all discrimination investigations “must be
reviewed and certified by the MHRM [Market Human Resources Manager] or a
higher level HR associate.” (Hopkins Dep., Exh. 10). The investigation report
Hopkins submitted to Jones (his Market Human Resources Manager) and Bell (his
Regional Human Resources Manager) addressed only Cawthon’s allegation that
she had been locked in an office.7 (Id., Exh. 14). There is no evidence that
Hopkins ever submitted a report to Jones or Bell on the results of his investigation
into Cawthon’s separate allegation of discrimination in the fax and pull selection.
Indeed, Hopkins admitted in his email correspondence with Jones that the
statements he obtained from Cawthon and McLean only “touched on” the fax pull
decision and that the fax and pull decision was “not what [he] was inquiring about”
when he talked with them. (Id. at 169-70 & Exh. 15). In addition, it is undisputed
that Hopkins’s decision to issue a first level written coaching to McLean was never
certified by Jones or Bell, who were unaware that he had decided to issue the
Even if Jones and Bell had been unresponsive when Hopkins
endeavored to “partner” with them on the discrimination investigation, and even if
Hopkins understood that he had been charged with “completing” the investigation,
he was still required to submit his investigation to one or both of them for review
and certification, and he did not do so.
Second, on the morning of September 5, 2012, hours before he coached
McLean, Hopkins learned that Jones was looking for a statement from McLean on
As noted above in the Summary of Facts, Hopkins’s report mentioned that Cawthon was also
upset about not receiving the fax and pull position, but included no other details about that
matter. (Hopkins Dep., Exh. 14).
the fax and pull matter and that Jones had requested such a statement from McLean
the day before. (Hopkins Dep., Exh. 15). Therefore, even if Hopkins had been
unaware that a “separate” Red Book investigation was being performed, he
certainly knew (or, at the very least, should have known) that Jones was
investigating the matter by the time he coached McLean. 8
knowledge, Hopkins did not advise Jones that he was getting ready to coach
McLean or seek any input from Jones regarding the level of coaching he had
determined was appropriate. Moreover, Hopkins has effectively admitted that he
did not follow Company policy when he coached McLean, because he admits that
if he had known about the Red Book investigation, he would not have—and should
not have—coached McLean prior to speaking with Jones and Bell on the evening
of September 5, 2012. (Hopkins Dep. at 182 & Exh. 22). Even though it was only
a matter of hours, Hopkins was on notice that Jones was, in fact, investigating the
fax and pull matter before Hopkins coached McLean, yet he proceeded to coach
McLean despite such notice.
Third, after Jones reviewed McLean’s statement on the fax and pull matter,
and before he was made aware that Hopkins had gone ahead and coached McLean
on his own, Jones emailed Hopkins and asked for his input “in regards to the
As noted above in the Summary of Facts, Hopkins admits that when he went to Rome with Bell
and Jones in mid-August 2012, they discussed the fact that Cawthon’s allegations would require
a Red Book investigation and that the Employment Advisory Services team had been contacted.
(Hopkins Dep. at 152-55).
Redbook and EAS bringing Legal in for a recommendation.” (Id., Exh. 16). Even
if Jones (and Bell) had been unresponsive on prior occasions, it is clear from this
email that Jones was not seeking to keep Hopkins “in the dark” about the Red
Book investigation and in fact wanted his thoughts on the matter. It is also clear
from the email that the legal department was going to be consulted before any
action was taken, which is consistent with the concerns expressed by Sam’s about
the verbiage used by Hopkins in the First Written Coaching he issued to McLean.
It is undisputed that Hopkins did not consult with the legal department before
Hopkins also argues that “Mainer made clear when he fired [Hopkins] that
[his] opposition to McLean’s discrimination against Cawthon was the reason for
[his] firing,” pointing to McLean’s statements that “you put on paper that we
discriminated against an associate. … You put the company at risk.” (Doc. 28 at
8). Hopkins also notes that his Exit Interview cites “inappropriate verbiage on a
performance coaching” as a reason for his termination. (Id. at 8-9). This evidence,
however, merely establishes that Sam’s had concerns about the language Hopkins
used in his First Written Coaching and the potential liability it could create for the
company, not that Sam’s disagreed with his ultimate conclusion or that its true
reason for terminating Hopkins was retaliation. Indeed, the evidence is undisputed
that Sam’s agreed with Hopkins’s conclusion and fired McLean for his
discriminatory conduct (a harsher outcome than the first level written coaching
issued by Hopkins). Sam’s was opposed to McLean’s discrimination just as
Hopkins further argues that Sam’s conducted only a “cursory investigation”
before terminating him and that the “general hastiness” of his termination points to
pretext. (Doc. 28 at 15-16). The court does not agree. The evidence reflects that
before Sam’s terminated Hopkins, Bell investigated the actions taken by Hopkins
and issued a written Investigation Summary on her findings (Doc. 32 at 2); Mainer
interviewed Hopkins regarding his decision to coach McLean (Hopkins Dep., Exh.
18); and Hopkins submitted a lengthy written statement setting forth his position
on how his investigation of Cawthon’s allegations unfolded and why he decided to
give McLean a First Written Coaching. (Id., Exh. 22). The investigation was
anything but cursory.
Additionally, as Sam’s points out in its summary judgment brief, “[Hopkins]
has identified no similarly situated comparators who committed similar misconduct
Hopkins states in his brief that “Bell and Jones never discussed holding McLean accountable
until after [Hopkins] had disciplined him,” implying that they would not have taken any action
against McLean if Hopkins had not acted first. (Doc. 28 at 5). This statement is misleading in
several ways. According to Hopkins, either Bell or Jones mentioned the need to hold McLean
accountable before he advised them that he had already gone ahead and coached McLean.
(Hopkins Dep. at 180). In addition, before Jones was made aware that Hopkins had coached
McLean, Jones informed Hopkins that EAS would be seeking a recommendation from the legal
department regarding McLean’s conduct. (Id., Exh. 16). Finally, although Hopkins asserts that
Bell and Jones did not discuss Mclean’s accountability with him (Hopkins), he has offered no
evidence that they did not discuss the matter with each other or anyone else at Sam’s.
but were not terminated.” (Doc. 28 at 32). A plaintiff “may show pretext by
identifying a similarly situated employee who was not disciplined after engaging in
similar conduct as the plaintiff,” but “[the] comparator must be similarly situated to
the plaintiff in all relevant respects, and the misconduct must be nearly identical to
that of the plaintiff.” Rawls v. Ala. Dept. of Human Res., 507 F. App’x 895, 898
(11th Cir. 2013) (internal quotation marks omitted). Nowhere in his brief does
Hopkins even attempt to identify a similarly situated comparator who engaged in
similar conduct but was not terminated.
In sum, Sam’s has articulated legitimate, non-discriminatory reasons for
terminating Hopkins, all stemming from his failure to follow the Company
protocol for handling a discrimination investigation. Hopkins has failed to make a
showing sufficient to permit a reasonable jury to find that the reasons articulated
by Sam’s for his termination are not true, much less that the true reason was
retaliation for his opposition to ADA discrimination. It would be incongruous, to
say the least, to find that Hopkins has a valid claim for ADA retaliation when he
was neither the perpetrator nor the victim of the discrimination and the perpetrator
was terminated for his conduct (and not simply given the written coaching Hopkins
thought was sufficient). Accordingly, the court concludes that Sam’s is entitled to
summary judgment on Hopkins’s claim for ADA retaliation and that the claim is
due to be dismissed.
Hopkins’s second claim is for ADEA retaliation. Similar to Title VII and
the ADA, the ADEA prohibits an employer from discriminating against an
employee because the employee has “opposed any practice made unlawful” by the
ADEA or because the employee has “made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or litigation” under the
ADEA. 29 U.S.C. § 623(d). As with Title VII and the ADA, a plaintiff alleging
retaliation under the ADEA establishes a prima facie case by showing that “(1) he
engaged in a statutorily protected expression, (2) he suffered an adverse
employment action, and (3) there was a causal link between the protected
expression and the adverse action.” King v. Adtran, Inc., 626 F. App’x 789, 792
(11th Cir. 2015) (citing Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 919
(11th Cir. 1993)). “If a plaintiff establishes a prima facie case and the employer
articulates a legitimate, non-retaliatory reason for the materially adverse action, the
plaintiff must then show that the employer's proffered reasons for taking the
adverse action were actually a pretext for prohibited retaliatory conduct.” Id.
(citing Sullivan v. Nat’l R.R. Passenger Corp., 170 F.3d 1056, 1059 (11th Cir.
Here, Hopkins alleges in his amended complaint that he was terminated in
retaliation for engaging in the protected activity of “opposing and participating in
an investigation of Michael Mainer’s discrimination against employees over age
50.” (Doc. 11 ¶ 48). As with Hopkins’s ADA retaliation claim, Sam’s argues that
Hopkins cannot establish a retaliation claim under the participation clause of the
ADEA, and once again Hopkins has not responded to that argument.
Consequently, he has abandoned any claim based on the participation clause.
With respect to the opposition clause, Hopkins cites a single alleged instance
of his opposition to ADEA discrimination at Sam’s: his comments to Felicia
Collins-Wylie (the Regional Human Resources Manager who investigated the
allegations that Mainer was “bullying” older associates) that Mainer was harder on
long-term associates and that three older associates were getting undue pressure
from Mainer. 10 (Doc. 28 at 18). For purposes of its motion for summary judgment,
Sam’s has conceded that Hopkins’s comments to Collins-Wylie constitute
protected activity under the ADEA. (Doc. 26 at 20). Sam’s argues, however, that
Hopkins cannot establish a causal connection between those comments and his
termination, and that his efforts to do so are based on nothing more than
speculation. (Doc. 31 at 5-6). The court agrees.
At his deposition, Hopkins cited a number of other alleged instances in which he complained
about the treatment of long-term associates at Sam’s, but he does not mention or otherwise rely
on any of those alleged instances in his brief. The court notes that the other alleged instances all
concerned complaints about the manner in which his former Regional Manager, Kelvin Buncum,
treated long-term associates. (See Hopkins Dep. at 193-203). In fact, when Hopkins was asked
who he believed was targeting the three older associates he had identified in his amended
complaint, Hopkins answered: “Kelvin Buncum.” (Id. at 194). Buncum was replaced by Mainer
in May 2012. (Mainer Dep. at 12).
Hopkins asserts that, when he was questioned by Collins-Wylie during her
investigation of the allegations against Mainer, he mentioned that Charles Long’s
wife was being treated for cancer. According to Hopkins, the following day
Mainer called him and asked him how Long’s wife was doing. Based solely on
this unsolicited inquiry from Mainer, Hopkins infers that Collins-Wylie relayed
their entire conversation to Mainer and made Mainer aware of Hopkins’s
comments regarding his treatment of older associates. (Doc. 28 at 18-19). This
inference, however, goes well beyond the bounds of “reasonable” inferences. It is
“not based on the evidence, but is pure speculation and conjecture” on Hopkins’s
part. Daniels, 692 F.2d at 1324. Hopkins admits that he does not know whether
Collins-Wylie ever told Mainer what she had learned during her investigation.
(Hopkins Dep. at 211). Hopkins also admits that his conversation with Mainer
concerned only Long and his wife and that Mainer did not reference anything else
Hopkins had discussed with Collins-Wylie. (Id.) Mainer, for his part, has testified
that he does not know if Hopkins had any involvement in Collins-Wylie’s
investigation and was unaware that Hopkins had made any reports that older
workers had been mistreated. (Mainer Dep. at 27-30). Hopkins has offered no
evidence to the contrary.
Because Mainer had no knowledge of Hopkins’s protected activity—his
comments to Collins-Wylie regarding Mainer’s treatment of long-term
associates—he could not have retaliated against Hopkins.11
See Brungart v.
BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000) (“A decision
maker cannot have been motivated to retaliate by something unknown to him.”).
Therefore, no causal connection exists between Hopkins’s protected activity and
his termination. Hopkins has failed to establish a prima facie case of ADEA
retaliation, and the claim is due to be dismissed. 12
Associational Discrimination Under the ADA
Hopkins’s final claim is for associational discrimination under the ADA. He
alleges that he was terminated because of his wife’s “disabilities,” specifically her
“medical conditions and the costs associated with them.” (Doc. 11 ¶ 49). To
establish a prima facie case of associational discrimination, Hopkins must
demonstrate that (1) he was subjected to an adverse employment action, (2) he was
qualified for the job at that time, (3) he was known by Sam’s at the time to have a
relative with a disability, and (4) the adverse employment action occurred under
circumstances that raised an inference that the disability of the relative was a
determining factor in the decision. Hilburn v. Murata Electronics North America,
Inc., 181 F.3d 1220, 1230-31 (11th Cir. 1999). For purposes of its summary
Hopkins does not allege that anyone else who was involved in his termination was aware of
his protected activity.
Even if Hopkins were somehow able to establish a prima facie case, his ADEA retaliation
claim would still fail because, as discussed above, Sam’s has articulated legitimate, nondiscriminatory reasons for his termination and those reasons are not pretextual.
judgment motion, Sam’s has assumed that Hopkins’s wife suffers from one or
more disabilities as defined under the ADA. (Doc. 26 at 21). Sam’s argues,
however, that Hopkins’s associational discrimination fails because he cannot
establish that he was qualified for his position and cannot establish a causal link
between his wife’s disabilities and his termination. (Id. at 21-22).
Sam’s argues that “by deviating from [the Company’s] established practices
and coaching, rather than terminating, a Club Manager in violation of [the
Company’s] anti-discrimination policies and without input from Human
Resources, [Hopkins] demonstrated that he was not, at the time of his termination,
qualified for his position as Market Manager.” (Doc. 26 at 22). The court does not
agree. Hopkins’s failure to follow the Company’s protocol for investigating and
resolving the discrimination complaint against McLean may have constituted a
legitimate, non-discriminatory reason to terminate him, but it does not establish
that he was unqualified for his position, especially when he had held the position
for many years. Hopkins’s deviation from Company policy may have warranted
termination, but it does not equate to his being unqualified for his job.
However, the court does agree with Sam’s that Hopkins has not shown that
his termination occurred under circumstances raising an inference that his wife’s
disabilities were a determining factor in the decision to terminate him. The crux of
Hopkins’s associational discrimination claim is that Sam’s decided to terminate
him because he and his wife were “maxing out” their medical insurance every
year. He has come forward with no evidence that would give rise to such an
inference, such as evidence that his wife’s medical costs were adversely affecting
the Company’s insurance rates or that the Company wanted to get his wife off its
insurance plan. In particular, Hopkins has adduced no evidence that Mainer, Bell,
or anyone else who was involved in the decision to terminate him ever said
anything negative about how much his wife’s disabilities were costing Sam’s,
much less that they knew what those specific costs were. To the contrary, the
comments Hopkins attributes to Mainer reflect his (and the Company’s) concern
about the financial toll Hopkins’s wife’s medical issues were taking on Hopkins,
not any frustration with what they were costing Sam’s. According to Hopkins, at
one point Mainer commented that Hopkins’s wife’s medical issues must be
“costing y’all a fortune” and that he didn’t know how Hopkins kept going.
(Hopkins Dep. at 234-35).
According to Hopkins, Mainer also stated at his
termination that “[w]e obviously know about your wife’s situation and your
medical expenses, and we feel really bad.” (Id. at 220-21). These comments reflect
sympathy and concern about the financial stress Hopkins was experiencing, as
does the Company’s offer of a severance package that would cover six months of
None of this evidence reflects any intent to discriminate
against Hopkins or terminate him because of his wife’s disabilities. See Wascura,
257 F.3d at 1246 (noting that the plaintiff, a city clerk who alleged association
discrimination based on her son’s medical condition, had adduced virtually no
evidence of discriminatory intent and had “herself testified in deposition that she
remembered several of the [city] Commissioners expressing sympathy, and none of
the Commissioners expressing displeasure,” when she told them about her son’s
medical condition). Therefore, Hopkins cannot establish a prima facie case of
association discrimination under the ADA, and Sam’s is entitled to summary
judgment on that claim.
Finally, as discussed in detail above, Sam’s has articulated legitimate, nondiscriminatory reasons for terminating Hopkins, and Hopkins has failed to adduce
sufficient evidence to establish that those reasons are pretextual. Even assuming
that Hopkins could establish a prima facie case of association discrimination, his
claim would still fail and Sam’s would still be entitled to summary judgment.
For the reasons discussed above, the court concludes that the Company’s
motion for summary judgment (doc. 25) is due to be granted and that all of
Hopkins’s claims are due to be dismissed. An order consistent with this opinion
will be entered.
DONE, this 20th day of October, 2016.
JOHN E. OTT
Chief United States Magistrate Judge
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