Gosa v. Wal-Mart Stores East, LP
MEMORANDUM AND ORDER, GRANTING 12 Motion for Summary Judgment filed by Wal-Mart Stores East, LP, and finding 27 Motion to Strike Gosa's Affidavit to be MOOT. Signed by Senior Judge Callie V. S. Granade on 2/2/2017. (mab)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
PHYLLIS D. GOSA,
WAL-MART STORES EAST, LP,
CIVIL NO. 16-0055-CG-B
MEMORANDUM AND ORDER
This matter is before the Court on Defendant Wal-Mart Stores East,
LP’s (“Wal-Mart”) motion for summary judgment (Doc. 12), Plaintiff Phyllis
D. Gosa’s (“Gosa”) response (Doc. 21), and Wal-Mart’s reply (Doc. 25). Having
considered the vast evidentiary record, with no hearing being necessary, the
Court deems it proper to GRANT Wal-Mart’s motion. The Court also
considers Wal-Mart’s motion to strike (Doc. 27) Gosa’s Affidavit (Doc. 21-4) in
whole or in part, and Plaintiff’s response in opposition (Doc. 28) and finds the
motion to be MOOT for the reasons stated below.
Gosa, formerly a pharmacist employed by defendant, originally filed
her five-count suit alleging race and gender discrimination and related
causes of action in the Circuit Court of Dallas County, Alabama. (Doc. 1).
Wal-Mart properly removed the case to this Court, and after discovery moved
this Court for summary judgment as to all five claims. (Docs. 1, 12).
Wal-Mart’s Pharmacy Operations
Many of Wal-Mart’s shopping centers offer pharmaceutical services to its
customers. Wal-Mart employs licensed pharmacists in its stores, including
the Pharmacy Manager and Staff Pharmacists. When a permanent manager
is not available in a store, a Staff Pharmacist is elevated to a Pharmacist in
Charge (PiC) temporarily to fill the role. This temporary elevation comes with
a one dollar per hour raise, which reverts to a Staff Pharmacist’s original
salary at the end of the PiC role. (Doc. 14-12, ¶ 11). Pharmacy Managers
oversee the pharmacy operation in a particular store, including managing the
prescription stock, completing evaluations for pharmacy staff, and being held
accountable to the Alabama State Board of Pharmacy for maintenance and
security. (Doc. 14-4, p. 4). Staff Pharmacists “fill[ ] prescriptions and consult
[with] customers” while also supervising the general pharmacy operations
and overseeing hourly pharmacy staff. (Doc. 14-12, ¶ 3). In addition to
pharmacists, Wal-Mart employs over-the-counter (OTC) clerks, pharmacy
technicians, and cashiers. Id. Generally, pharmacists working on a shift are
tasked with “training [Pharmacy Technicians] to the proper standard.” Id.
Wal-Mart pharmacies operate out of individual stores and, thus, are
subject to a dual chain of command. (Doc. 14-11,¶ 4). Pharmacy personnel
report to the individual store’s management as well as to the Health and
Wellness Division. Id. Mr. Rusty Harris and Ms. Krystal Powe serve as
Market Health and Wellness Directors in Alabama, and both have supervised
Gosa. (See id. at ¶ 7; Doc. 14-12, ¶ 2). Mr. Chad Souers is the Regional Health
and Wellness Director for most of Alabama and the panhandle of Florida.
(Doc. 21-10, p. 4).
When hiring pharmacists, Wal-Mart considers a variety of factors,
including lateral hires’ prior experience and prior salary, the size of
graduating pharmacy classes for new hires, and relocation incentives or other
convenience factors. (See Docs. 14-11, ¶ 8; 14-12, ¶¶ 11–12). Mr. Harris
personally attends recruiting events at Alabama’s two pharmacy schools, but
the Regional Talent Specialist also recruits at two historically black
universities in the southeast—Xavier University in Louisiana and Florida
A&M. (Doc. 14-1, p. 12).
B. Gosa’s Employment at Wal-Mart
Gosa first began working at Wal-Mart Store number 700 in Selma,
Alabama in September 2003. (Doc. 14-1, p. 3). She remained in her Staff
Pharmacist role for the vast majority of her career, with the exception of her
year as a PiC from 2006 through June 2007. Id.; see also Doc. 14-3, p. 20. She
resigned from her position as PiC and voluntarily returned to her role as a
Staff Pharmacist. (Doc. 14-3, p. 20). In the spring of 2015, before her
resignation, Gosa was transitioning back into the PiC role. (Doc. 14-12, ¶ 9).
Gosa did not have an employment contract with Wal-Mart and worked as an
employee at-will. (Doc. 14-1, pp. 8–9).
During her time at Wal-Mart Store 700, Gosa worked with varied
pharmacists: Pharmacy Managers included Louie Hubert (Caucasian male),
Lennie Allen Ezelle (Caucasian male), Greg Crane (Caucasian male), and
Angie Lovingood (Caucasian female); Jean Spence (Caucasian female) worked
as a PiC and a Staff Pharmacist; other Staff Pharmacists included Vincent
Azzarello (Hispanic male) and Philip Lyman (African-American male). (See
Doc. 14-4, p. 15; Doc. 13, pp. 4–5).
Gosa also worked with different Pharmacy Technicians, OTC staff, and
cashiers. These included Christy Baynes-Calhoun, Tamika Ragland, Terrika
Frison, Shondra Jackson, Nancy DeWitt, and Tiffany Lewis. All of these WalMart associates are female, and all, except Ms. DeWitt, are AfricanAmerican. (Doc. 14-4, p. 15). As a Staff Pharmacist, Gosa was responsible for
supervising these employees, especially when she was the only pharmacist on
duty. Gosa had written up pharmacy associates on different occasions for
violating Wal-Mart policy. (See Doc. 14-3, pp. 8–9, 11, 23–25).
C. Gosa’s Coaching Reports
Wal-Mart issues a written “coaching” when an employee has violated
its policy as a method of holding its employees accountable. (Doc. 21-1, p. 7).
The first coaching “does not require the associate being coached to
acknowledge it” in the computer system. Id. at 11. If an associate receives a
second or third coaching, he or she must acknowledge it. Id. If an associate
commits another policy violation after the third coaching, the associate is
automatically terminated. Id. These coachings generally expires a year after
they are issued.
Gosa received three coachings between August 2014 and February
2015. Gosa garnered her first coaching in August 2014 for asking an AfricanAmerican pharmacy technician, Ms. Jackson, to leave the pharmacy to obtain
documentation of the approval of her ADA accommodation for a stool. (See
Doc. 14-3, pp. 26–27). Using a stool in the pharmacy without an
accommodation violates Wal-Mart policy, and Gosa was unaware of any
request for or approval of Ms. Jackson’s stool. (See Doc. 14-4, p. 7; Doc. 14-3,
p. 27). According to Mr. Harris, Gosa questioned Ms. Jackson’s
accommodation and “made some derogatory comments to Ms. Jackson about
the accommodation itself.” (Doc. 14-4, p. 13). Gosa vehemently denies making
any such comments, but the investigation by Wal-Mart, which included
interviews of the staff working in the pharmacy at the time in question,
determined she had made inappropriate remarks. Id. As a result, Gosa
received a coaching for violating Wal-Mart’s policy to respect the individual.
(Doc. 14-3, p. 26).
The second coaching, given in November 2014, concerned Gosa’s
breach of Wal-Mart’s policy relating to the removal of personal health
information (PHI) of patients from the pharmacy at the end of her shifts.
Gosa admits she recorded PHI in a notebook to note incoming phone
prescriptions and other intake methods. She further admits that she took her
notebook home with her. (See Doc. 14-2, p. 8). Wal-Mart policy prohibits the
removal of PHI from the pharmacy for any reason, as the removal presents a
possible HIPPA breach. (Doc. 14-4, pp. 8–9). During the investigation of
Gosa’s breach of the PHI policy, she accused two other pharmacists, Mr.
Ezelle and Mr. Hubert (both Caucasian males) of committing the same policy
violation. Wal-Mart investigated her claims and determined Mr. Ezelle
breached the policy because he, like Gosa, removed his notebook from the
pharmacy at the end of his shifts. Id. Mr. Hubert, however, did not remove
the PHI from the pharmacy and properly destroyed the notebooks. Id. As
such, Mr. Ezelle received a coaching, but Mr. Hubert did not. Id.; see also
Doc. 14-7, pp. 4–5.
Gosa received her final coaching in February 2015 for leaving the
pharmacy unsecured while she reprimanded an associate in the Health and
Beauty department, a section of the store adjacent to the pharmacy. (See Doc.
13-4, p. 35). According to Mr. Harris, Wal-Mart’s pharmacy operation manual
(POM) 902 provides Wal-Mart’s policy regarding pharmacy area security.
(See Doc. 14-4, p. 4). Mr. Harris explained the policy:
Pharmacists should—if there’s only one pharmacist on
duty, they should only leave the pharmacy unsecured if
they are going out to the over-the-counter area to help a
patient or customer with an over-the-counter question.
[. . .] If it’s the health and beauty aids and helping a
customer with an item, that’s fine, but there are no other
business reasons that are considered acceptable.
Id. (emphasis added). If the pharmacist must leave the area for any other
reason, even for “business reasons other than helping a customer,” the
pharmacy must be secured. Id.; see also Doc. 14-12, ¶ 4. To be secure, all
other personnel must exit the pharmacy, the gate must be brought down and
locked, and the door must be locked. Id. Gosa does not contest she left the
pharmacy unsecured while she went to an aisle in the health and beauty
section to speak with an “insubordinate associate.” (Doc. 14-2, pp. 12–13).
Because she left the pharmacy for a reason other than assisting a customer,
Gosa received a coaching. Gosa, however, was not the only associate who
received a coaching for violating POM 902. Vincent Azzarello, a
Caucasian/Hispanic male, received two coachings for violations of POM 902,
one of which occurred while he was working in Store 700. (Doc. 14-4, p. 6; 149, pp. 3–4). Mr. Harris also stated Kim Kurcz,1 a Caucasian female in his
district, also received coaching for violating POM 902. (Doc. 14-4, p. 6). He
further testified he was unaware of any other situation in which a
pharmacist had left the pharmacy unsecured and had not received a
D. Gosa’s Performance Evaluations
The name “Kurcz” is spelled as such in Mr. Harris’s deposition but appears
as “Kurucz” in his Affidavit (Doc. 14-11, ¶ 6).
2 In his Affidavit, Mr. Harris identifies three additional pharmacists in his
district who have been coached recently for a POM 902 violation. They are
two Caucasian men and one African-American man. Id.
Gosa received annual and mid-year performance reviews during her
tenure at Wal-Mart. The record contains evaluations from Fiscal Year (FY)
2011 through FY 2015. (Doc. 21-7). In her FY11 Annual Management
Performance Evaluation, Gosa received an overall rating of “Exceeds
Expectations.” (Doc. 21-7, p. 3). Her then-manager Mr. Hubert gave glowing
commendations of her ethical standards and thought she might have an
opportunity in the future in a management position. Id. In her FY12 MidYear Performance Evaluation, Mr. Hubert again rated her highly at “Exceeds
Expectations.” Id. at 10. In her FY12 Annual evaluation,3 however, Mr.
Hubert lowered her overall rating to “Solid Performer.” Id. at 13. She
received the same rating in FY13 Annual Performance Evaluation. Id. at 20.
Mr. Crane became the Pharmacy Manger in 2014, and he oversaw
Gosa’s FY14 Annual Performance Evaluation. In FY14, Gosa received a
rating of “Development Needed,” the second lowest rating. Id. at 24. In his
comments, Mr. Crane noted Gosa “adheres to assigned schedules” and
demonstrated concern for “patient welfare.” Id. He further noted, however,
Gosa did not exhibit a team effort or take advantage of opportunities
available to her. Mr. Crane stated,
During my time at this store, I have felt continually
undermined by [Gosa] in my attempt to build a cohesive
Gosa contends Gene Crane improperly handled her FY12 evaluation, as his
name appears on the form even though he was not working at Wal-Mart at
the time. Mr. Crane explained the computer system attached his name when
he viewed the record but that he did not in any way alter the information.
(Doc. 14-6, p. 5).
functional department. This began with her refusal to ever
attend any scheduled departmental meetings as well as
her only being willing to hold certain associates
accountable for policy violations. She has complained
about communication within the department but really
has desired for communication to be only one direction, not
a two way street. These issues have led directly or
indirectly to poor job satisfaction among our staff
members[,] and this split has contributed to the loss of a
number of long term associates. Her refusal to become a
certified immunizer crippled the ability of our store to
provide this much needed service to our customers.
Refusal to acknowledge her shortcomings in these areas
and to rise above self interest and bridge the gaps with
other staff members, though asked to do so directly, has
led to the store not being as functional as necessary . . . .
Rather than helping build a cohesive team, she has chosen
to foster cliques and divide the staff at every opportunity.
All of this has been done in spite of direct communication
with field management to do otherwise. When confronted
with these issues, and others, she chooses to play the
victim or being unaware of policy violations.
Id. at 22–23. In FY15, Mr. Crane again provided comments to Gosa’s Annual
Performance Evaluation, but Ms. Powe assigned the ratings. (See Doc. 14-6,
p. 9). That year, Gosa received a “Solid Performer” rating, although the notes
reflect she had yet to become a certified immunizer and needed to “become a
uniter” in the team. (Doc. 21-7, p. 29). Despite these downward-trending
reviews, Gosa was in the process of transitioning into the PiC role when she
resigned. (See Doc. 14-12, ¶ 9).
E. Gosa’s Resignation
On April 26, 2015, Gosa and Pharmacy Technician Tiffany Lewis were
involved in an incident. Ms. Lewis, a relatively new technician, worked a
weekend shift with Gosa and requested some assistance in calculating
dosages and other guidelines for working in the pharmacy. (See Doc. 14-12, p.
13). According to Ms. Lewis’s incident report, Gosa became hostile,
“questioned [her] intellect,” and—in Lewis’s view—refused to assist or train
her. During the confrontation, Gosa shut down Ms. Lewis’s work station. Id.
at 15. Ms. Powe learned of this incident and “requested store management to
obtain a written statement from Ms. Gosa, so we could more fully understand
the facts and circumstances of what had occurred.” Id. at ¶ 8.
Gosa indicates she became alarmed at Ms. Lewis’s lack of training
because she felt Ms. Lewis was unprepared to work as a Pharmacy
Technician. (See Doc. 14-1, pp. 11–12). Gosa claims she had completed a
write-up of the incident with Ms. Lewis when an assistant store manager
approached her at approximately 7:00 P.M. on April 29th asking her to fill
out more paperwork. Id. at 22. Around 7:50 P.M., Gosa called Ms. Powe to
resign her position, stating she was “resigning effective immediately slash
right now” because she was “tired of this.” Id. When asked to explain what
she meant, Gosa stated, “[h]aving people show up in front of everyone and
asking me to do reports about situations that I had not been effectively talked
to about it. So I was just tired.” Id. Gosa further indicated she was frustrated
because she had been unable to obtain any feedback or information from Ms.
Powe or store management on how the situation with Ms. Lewis would be
handled. (Doc. 26-1, pp. 3–4). Ms. Powe accepted her resignation, which
became effective that same day. (Doc. 14-12, ¶ 8).
After Gosa’s resignation, Wal-Mart transferred Ms. Sharonda Martin,
an African-American female, to Store 700 from a Wal-Mart store in Marietta,
Georgia. (Doc. 14-12, ¶ 10). Because Ms. Martin transferred from a
metropolitan area to a more rural area, Wal-Mart offered her a “larger salary
increase and [paid] relocation costs.” Id. at ¶ 12.
F. Gosa’s Complaint to the Alabama State Board of Pharmacy
Shortly after her resignation, Gosa wrote a formal complaint to the
Alabama Board of Pharmacy. She indicated her concern that Wal-Mart
employed technicians without enough experience and stated, “I resigned as a
staff pharmacist at the store because of my concern for the safety and
wellness of the public.” (Doc. 14-2, p. 26). On May 27, 2015, the Board
acknowledged Gosa’s complaint and initiated an investigation into Wal-Mart
store 700. (Doc. 14-3, p. 2). In its final letter, on September 18, 2015, the
Board informed Gosa, “[a]n investigation (Case 15–0078) resulted in no viable
evidence to support a hearing by the Alabama State Board of Pharmacy.” Id.
II. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) instructs, “[t]he 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.” The trial court’s mission is to “determine whether there is a genuine
issue for trial” and not to “weigh the evidence.” See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).
The burden is on the moving party to show that there is no genuine
dispute as to any material fact. Id. at 256. In conducting its summary
judgment analysis, the Court must construe all evidence “in the light most
favorable to the party opposing the motion.” United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962).
After the movant meets its burden, the burden shifts to the nonmoving
party “to make a showing sufficient to establish the existence of an element
essential to that party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). If the nonmoving party fails to do so, the “complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily
renders all other facts immaterial.” Id. at 323. Further, Rule 56 “requires
the nonmoving party to go beyond the pleadings and by [his] own affidavits,
or by the depositions, answers to interrogatories, and admissions on file,
designate specific facts showing that there is a genuine issue for trial.” Id. at
324 (internal quotation marks omitted). There is no genuine issue for trial
“[w]here the record taken as a whole could not lead a rational trier of fact to
find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
III. Wal-Mart’s Motion to Strike
Before addressing the substantive portions of this Order, the Court
turns to Wal-Mart’s motion to strike (Doc. 27) Gosa’s Affidavit (Doc. 21-4) in
whole or in part. With the December 1, 2010 rules change to Rule 56 of the
Federal Rules of Civil Procedure, motions to strike submitted on summary
judgment are no longer appropriate. Revised Rule 56(c)(2) provides, “[a] party
may object that the material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence.” The Advisory
Committee Notes specify as follows:
Subdivision (c)(2) provides that a party may object that
material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence.
The objection functions much as an objection at trial,
adjusted for the pretrial setting. The burden is on the
proponent to show that the material is admissible as
presented or to explain the admissible form that is
anticipated. There is no need to make a separate motion
to strike. If the case goes to trial, failure to challenge
admissibility at the summary-judgment stage does not
forfeit the right to challenge admissibility at trial.
FED. R. CIV. P. 56, Adv. Comm. Notes, “Subdivision(c)” (2010 Amendments).
As such, the Court construes the Defendants' motions as Objections, to be
overruled or sustained, and finds the motions to strike to be MOOT.
Wal-Mart objects to vast portions of Gosa’s Affidavit on the basis that
it fails to proffer relevant information, because it is cumulative of her
pleadings and other evidence, and because some of her statements contradict
her prior deposition testimony. (See generally Doc. 27; Doc. 25, pp. 1–3). A
party may not create an issue of material fact with an affidavit that
contradicts previously given testimony without an explanation. See Knight v.
Fourteen D Enters., Inc., 995 F. Supp. 2d 1311, 1322 (S.D. Ala. 2014). Gosa
has not provided any explanation as to why her testimony has changed, and
the objections to the contradictory testimony in the Affidavit must be
sustained. Further, all evidence must conform to the Federal Rules of
Evidence, including Fed. R. Evid. 401. Rule 401 states “[e]vidence is relevant
if: (a) it has any tendency to make a fact more or less probable than it would
be without the evidence; and (b) the fact is of consequence in determining the
action.” FED. R. EVID. 401. Moreover, this Court must also adhere to the
restrictions of Rule 403, which allows exclusion of “relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.” FED. R.
EVID. 403. After considering the Affidavit and the record as a whole, the
Court sustains the objections to the following paragraphs or portions of Doc.
Paragraph 2 will be stricken in its entirety, as it is mostly irrelevant
and, if relevant, cumulative of the pleadings and deposition testimony.
In Paragraph 3, the Court will strike the following phrases or
sentences: “who were unused to, and therefore struggled with, African
American female leadership, due to long standing [sic] traditions in our
state”; “I encouraged management to recruit at historically black
colleges and universities in hopes of diversifying Walmart’s Pharmacy
and hoping our community to create more just and fair traditions”;
“who dismissed my complaint against Nancy Dewitt as far back as
2009 as ‘drama’”; “[o]r in the case of Robert Holden, who insulted me
on several occasions, left shortly after coming to the Pharmacy.”
Objections to these portions of the Affidavit are sustained because they
are irrelevant or outside the scope of the matter before the Court.
The following sentence of Paragraph 4 will be stricken: “Especially,
when other Caucasian pharmacists ‘shopped the clock’, a.k.a. shopped
on company time for personal items quite frequently without
consequence.” The Court sustains this objection because it contradicts
Gosa’s deposition testimony.
The Court sustains objections to the first four (4) sentences of
Paragraph 5 (through the sentence beginning “In fact, Lennie Ezelle . .
. .”) because it is cumulative of prior testimony and because it is
irrelevant as to race or gender discrimination.
In Paragraph 6, the Court sustains objections to the phrases Gosa uses
to describe discrimination that are outside the protected classes or
gender and race, including “old and backwards,” “bipolar,” and
The Court also sustains objections to the entirety of Paragraphs 9, 11,
and 13 on the basis that they are cumulative.
The final phrase “so I called that night to tell them ‘I can’t take it
anymore’” of Paragraph 12 will be stricken, as it contradicts Gosa’s
Wal-Mart’s objections to Paragraphs 14 and 15 as cumulative to Gosa’s
(and others’) testimony are sustained.
The Court sustains objections to Paragraph 16 and will strike it
entirely because it is not relevant to the case at hand.
Having addressed Wal-Mart’s preliminary motion, the Court now turns to the
substantive matter at hand.
IV. Analysis of Plaintiff’s Federal Claims
In her Complaint (see Doc. 1, Ex. A), Gosa outlines three claims
relating to federal antidiscrimination laws. In an effort to view the facts in a
light most favorable to her, as the nonmoving party, the Court construes her
claims as follows: racial discrimination and retaliation under Title VII (Count
II), racial discrimination under 42 U.S.C. § 1981 (Count III), and gender
discrimination violating the Equal Pay Act, 29 U.S.C. § 206(d), and Title VII
A. Race Discrimination under Title VII and § 1981
Gosa’s disparate treatment claims brought under Title VII and § 1981
all require proof of discriminatory intent, and each claim is analyzed in the
Gosa’s Complaint only alleges gender discrimination under the Equal Pay
Act (“EPA”). Wal-Mart, however, has addressed both the EPA and Title VII
in its motion, and the Court will do the same.
same manner. See Bolton v. Baldwin Cnty. Publ. Schs., 47 F. Supp. 3d 1342,
1349 (S.D. Ala. 2014). “Discrimination claims brought under Title VII . . . are
typically categorized as either mixed-motive or single-motive claims.” Quigg
v. Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1235 (11th Cir. 2016). As the
Eleventh Circuit explained, “[m]ixed-motive and single-motive discrimination
are different theories of discrimination, as opposed to distinct causes of
action. Specifically they serve as alternative causation standards for proving
discrimination.” Id. at n. 4 (citing Univ. of Texas Sw. Med. Ctr. v. Nassar, -U.S. --, 133 S.Ct. 2517, 2530 (2013)). The Supreme Court has held “an
adverse employment action motivated by both legal and illegal reasons
constitutes actionable discrimination under Title VII.” Id. at 1236 (citing
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)). These mixed-motive
claims, like their single-motive sister claims, can be proved with either direct
or circumstantial evidence. Id. Wal-Mart proceeds under the single-motive
theory, and both parties concede no direct evidence exists. Thus, this case
turns on circumstantial evidence.
The McDonnell Douglas framework for single-motive claims relying on
circumstantial evidence “established a three-part burden-shifting framework
for determining liability in discrimination cases.” Quigg, 814 F.3d at 1237.
Once the plaintiff has made out the elements of the prima
facie case, the burden shifts to the employer to articulate
a non-discriminatory basis for its employment action.
Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 253 (1981). If the employer meets this burden, the
inference of discrimination drops out of the case entirely,
and the plaintiff has the opportunity to show by a
preponderance of the evidence that the proffered reasons
were pretextual. St. Mary’s Honor Center v. Hicks, 509
U.S. 502, 511 (1993). Where the plaintiff succeeds in
discrediting the employer’s proffered reasons, the trier of
fact may conclude that the employer intentionally
discriminated. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 148 (2000).
Vessels v. Atlanta Independent Sch. Sys., 408 F.3d 763, 767–68 (11th Cir.
2005). Wal-Mart and Gosa agree Gosa must demonstrate 1) she is a member
of a protected class; 2) she was meeting Wal-Mart’s legitimate work
expectations; 3) she suffered an adverse employment action; and 4) a causal
connection exists between the adverse employment action and her protected
class. (See Doc. 13, p. 12; Doc. 21, p. 10) (citing Vessels, 408 F.3d at 768). The
parties, however, appear to conflate the prima facie standard for disparate
treatment with an employer’s well-established defense of legitimate
termination based on productivity or other work-related deficiencies. See
Calvo v. Henderson, Postmaster Gen., U.S.P.S., E.E.O.C. Doc. 01991005,
2000 WL 283819, at *1 (Feb. 29, 2000). Rather, this Court has traditionally
required evidence that the defendant treated similarly situated employees
outside of plaintiff’s protected class more favorably to establish a race
discrimination claim. See Powell v. Am. Remediation & Envir., Inc., 61 F.
Supp. 3d 1244, 1252 (S.D. Ala. 2014); see also Surtain v. Hamlin Terrace
Foundation, 789 F.3d 1239, 1244 n. 3 (citing Holifield v. Reno, 115 F.3d 1555,
1562 (11th Cir. 1997)).
While Wal-Mart proceeds on the traditional single-motive framework,
Gosa requests this Court apply the recently adopted “mixed-motive” analysis
to her Title VII claims as an alternative theory of liability. (See Doc. 21 pp.
20–21). This analysis rejects the traditional McDonnell Douglas burdenshifting framework for circumstantial evidence claims. See Quigg, 814 F.3d at
1236. In Quigg, the Eleventh Circuit adopted the Sixth Circuit’s approach to
mixed-motive claims: “That framework requires a court to ask only whether a
plaintiff has offered ‘evidence sufficient to convince a jury that: (1) the
defendant took an adverse employment action against the plaintiff; and (2) [a
protected characteristic] was a motivating factor for the defendant’s adverse
employment action.’” Id. at 1239 (emphasis in the original) (quoting White v.
Baxter Healthcare Corp., 533 F.3d 381, 400 (6th Cir. 2008)). Thus, in a mixedmotive framework, this Court must conclude “whether the ‘plaintiff has
presented sufficient evidence for a reasonable jury to conclude, by a
preponderance of the evidence, that [her protected characteristic] was a
motivating factor for [an] adverse employment decision.’” Id. at 1239 (quoting
Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003)). The Court now turns to
the first theory of liability, the single-motive racial discrimination claim.
1. Single-Motive Racial Discrimination: McDonnell Douglas
Gosa alleges Wal-Mart racially discriminated against her in many
ways: 1) by coaching her for policy violations, which were committed by her
Caucasian co-workers and did not result in discipline, 2) through her
lackluster performance evaluations by Gene Crane, which were racially
motivated and resulted in missing a pay increase, and 3) by granting her
Caucasian colleagues priority in scheduling.5 To prevail under this theory,
she must first establish a prima facie case of race discrimination, see supra.
The parties agree Gosa is a member of a protected class as both an AfricanAmerican and as a female. They also agree the three coachings constitute
adverse employment action.
Wal-Mart, however, contends Gosa cannot establish a causal
connection between the three coachings and Gosa’s race because “the three
coachings were based upon undisputed policy violations” and because WalMart “issued identical coachings for other Pharmacists outside Plaintiff’s
protected class.” (See Doc. 13, p. 12). The Court interprets the parties’
discussions surrounding Gosa’s coachings and the comparators’ coachings to
evidence discord regarding both the element of similarly situated employees
being treated different because of race—a prima facie element—and
legitimate, non-discriminatory practices as required in the second step of the
Gosa also complains Mr. Harris ignored her encouragement to recruit from
historically black colleges and universities for new pharmacists. The record,
however, demonstrates Mr. Harris attended recruiting events at Auburn and
at Samford solely because these two pharmacy schools lie within his district.
The regional talent specialist, Michael Robinson, recruits from schools in the
Southeast, including Xavier University in Louisiana and Florida A&M, both
of which are historically African-America. (See Doc. 14-4, p. 12). As such, this
particular complaint fails to imply any racial bias in Wal-Mart’s recruiting
McDonnell Douglas framework. The Court will address the three coachings
as an element of the prima facie case first.
a. The Prima Facie Case: Comparators Analysis
“[I]n cases involving alleged racial bias in the application of discipline
for violation of work rules, the plaintiff, in addition to being a member of a
protected class, must show either (a) that [s]he did not violate the work rule,
or (b) that [s]he engaged in misconduct similar to that of a person outside of
the protected class, and that the disciplinary measures enforced against [her]
were more severe than those against the other persons who engaged in
similar misconduct.” Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989).
Further, the conduct between the employees must be “nearly identical” so
courts do not “second-guess[ ] employers’ reasonable decisions and confus[e]
apples with oranges.” Knight v. Fourteen D Enters., Inc., 995 F. Supp. 2d
1311, 1326 (S.D. Ala. 2014) (internal marks and citations omitted). Plaintiff
failed to meet this burden, as demonstrated below.
Gosa’s received her first coaching in August 2014 for asking Ms.
Jackson to leave the pharmacy to obtain documentation for the approval of
her ADA accommodation (a stool). After Wal-Mart investigated the incident,
Gosa received a coaching for violating Wal-Mart’s policy to respect the
individual. (Doc. 14-3, p. 26). Unlike the next two coachings, the record does
not contain evidence that other staff members committed similar policy
violations. Comparators testified they would generally accept the associate’s
word that the accommodation had been approved and would speak separately
and privately to store management to confirm the approval. (See generally,
Docs. 14-4, p. 13; 14-6, p. 8; 14-7, pp. 3–4; 14-8, pp. 8–9, 12.). Fatal to Gosa’s
claim is the fact that she cannot point to any evidence—direct or
circumstantial—to demonstrate the first coaching was related to her race.
Both she and Ms. Jackson are African-American females, and the record does
not support any finding that other Wal-Mart employees in Store 700 or in the
local region acted in this manner to merit a similar coaching or that Gosa’s
behavior did not merit the coaching.
The second coaching, given in November 2014, concerned Gosa’s
breach of Wal-Mart policy relating to the removal of personal health
information (PHI) of patients from the pharmacy at the end of her shifts.
Gosa admitted to removing her notebook containing PHI from the pharmacy,
although she avers she never allowed others to access the information.6 On
its face, it appears Wal-Mart followed its internal procedures to issue a
second coaching for a clear violation of its PHI policy. Further, the evidence
suggests Wal-Mart indiscriminately investigated other possible PHI policy
violations. Although Gosa alleges Wal-Mart did not coach others for similar
infractions until she pointed out the disparity, the record more clearly
Gosa fruitlessly argues about the commonality of this practice in
pharmacies and insists she did not allow any HIPPA breach to occur or
otherwise improperly handle PHI. This, however, is not the issue before the
Court. The issue is whether Gosa received a coaching for this policy violation
when her non-protected comparators did not.
establishes Gosa provided two names for investigation while she was being
questioned. (See Doc. 14-4, p. 8). Once she informed Mr. Harris that Mr.
Ezelle and Mr. Hubert—both Caucasian males—also kept notebooks, he
immediately investigated those claims. Id. at 10. Wal-Mart then determined
Mr. Ezelle violated policy, just as Gosa, but found Mr. Hubert did not violate
the policy because he locked his notebook securely in the pharmacy when he
was not working and shredded it when filled. Id. As such, Mr. Ezelle received
a coaching for the same policy violation as Gosa.7 (See Doc. 14-7, pp. 4–5).
Gosa received her final coaching in February 2015 for leaving the
pharmacy unsecured while she reprimanded an associate in the Health and
Beauty department. (See Doc. 13-4, p. 35). Despite Gosa’s opinion that
speaking to an associate about helping a customer qualifies as a businessrelated reason and thus does not violate POM 902, the evidence before the
Court reflects that a policy violation occurred, that Gosa was appropriately
coached for violating the policy, and that she acknowledged the policy
violation occurred. As the Court has already stated, it is not within the
Interestingly, Gosa concedes a Caucasian, male comparator received a
coaching for the same policy violation. She argues that the manner in which
Wal-Mart investigated the policy violations singled her out racially because
she was approached in person in front of other staff while the two men were
questioned over the phone. These arguments go beyond the bounds of Title
VII, as the Court do not micromanage business practices and will not enforce
a “civility code.” See English v. Bd. of Sch. Comm’rs of Mobile Cnty, 83 F.
Supp. 3d 1271, 1279 (S.D. Ala. 2015) (“Title VII is neither a general civility
code nor a statute making actionable the ordinary tribulations of the work
place.”) (internal citation omitted).
Court’s purview to referee internal business disputes. See English, 83 F.
Supp. 3d at 1279.
Further, the record again supports a finding that other pharmacists of
different races and gender than Gosa were coached for the same policy
violation. Vincent Azzarello, a Caucasian/Hispanic male, received two
coachings for violations of POM 902, one of which occurred while he was
working in Store 700. (Doc. 14-4, p. 6; 14-9, pp. 3–4). Mr. Harris also stated
Kim Kurcz,8 a Caucasian female in his district, also received coaching for
violating POM 902. (Doc. 14-4, p. 6). He further testified he was unaware of
any other situation in which a pharmacist had left the pharmacy unsecured
and had not received a coaching.9 Id. Thus, as a matter of law, the Court
finds Gosa has presented no evidence that either she did not violate WalMart policy or she was disciplined in a manner inconsistent with that of her
similarly situated peers.
b. The Prima Facie Case: Evaluations, Pay, and Shift
Gosa also claims her negative performance reviews were racially
motivated, which impacted her potential pay increases, and scheduling
preferences were given to her Caucasian colleagues. The Court will address
each in turn.
The name “Kurcz” is spelled as such in Mr. Harris’s deposition but appears
as “Kurucz” in his Affidavit (Doc. 14-11, ¶ 6).
9 In his Affidavit, Mr. Harris identifies three additional pharmacists in his
district who have been coached recently for a POM 902 violation. They are
two Caucasian men and one African-American man. Id.
Gosa received annual and mid-year performance reviews during her
tenure at Wal-Mart. In FY11, she received high marks at “Exceeds
Expectations,” but her performance generally declined over the subsequent
years. In FY13, she received an overall rating of “Solid Performer,” and the
following year, Mr. Crane rated her as “Development Needed.” Contrary to
Gosa’s claims that Mr. Crane rejected her as an African-American female in a
position of leadership, the substantive body of his review, see supra, indicates
he based his poor ratings on her behaviors irrespective of race and gender. He
provided multiple non-racial reasons for his negative review, including Gosa’s
failure to attend departmental meetings and her failure to obtain her
immunization license. While he did use the phrase “play the victim,” he
deposed he employs the phrase for people—regardless of race or gender—who
react in a manner so as to deflect negativity or criticisms. (See Doc. 14-6, p.
In FY15, Ms. Powe raised Gosa’s overall rating to “Solid Performer,”
although Mr. Crane also added comments. Again, any reasons for a lower
rating reflect Gosa’s failure to obtain an immunization license and her
perceived handling on interdepartmental conflicts. See id. After reviewing the
evaluations as a whole, the Court notes a steady downward trend in Gosa’s
ratings from FY11 through FY15 and cannot find evidence of racial bias as
reasons behind the lower ratings. Additionally, Gosa has provided no
evidence that these ratings negatively affected her pay increase or future
Just as Gosa cannot demonstrate racial animus in her performance
evaluations, she is unable to proffer evidence of racial bias regarding
scheduling. The record amply demonstrates Ms. Spence received a religious
accommodation not to be scheduled on Sundays. (Doc. 14-6, p. 5; Doc. 14-8,
pp. 5–6). Further, Gosa failed to provide any evidence that she did not receive
accommodations for her schedule. In her mostly-stricken Affidavit, Gosa
states she had difficulty receiving time off for medical appointments and
claims she reported this scheduling discrimination to the Wal-Mart Global
Ethics hotline and to her managers. She alleges they did not investigate her
claims. (See Doc. 21-4, ¶¶7–8). Without more, however, her unsubstantiated
claims do not create a genuine issue of material fact.
Considering all of the evidence before it, the Court concludes Gosa has
failed to carry her burden as to both the third element (Wal-Mart’s treatment
of similarly situated employees outside of Gosa’s protected class) and the
fourth element (causation). The record amply demonstrates Wal-Mart
promptly investigated Gosa’s and others’ allegations of policy violations in an
impartial manner, regardless of the protected status of the individual in
question. Further, the events surrounding the coachings, including the
Notably, Gosa was transitioning to PiC, as Ms. Spence became a part-time
worker, when she resigned. (Doc. 14-12, ¶ 9). Further analysis of any
disparate pay allegations will be addressed in a later section.
impetus for them, do not belie racial bias on the part of Wal-Mart’s
employees, including associates and management personnel. See, e.g., Bolton,
47 F. Supp. 3d at 1350–51; Flowers v. Troup Cnty, Ga. Sch. Dist., 803 F.3d
1327, 1340 (11th Cir. 2015). Further, a thorough examination of her annual
evaluations indicates her one-time poor ratings resulted from businessrelated reasons rather than any racial animus. Finally, she failed to present
any evidence of discriminatory bias regarding the scheduling process. As
such, Gosa has failed to produce evidence creating a genuine issue of material
fact and has failed to meet her burden establishing a prima facie case.
c. The remaining McDonnell Douglas Analysis
Even if Gosa established a prima facie case of racial discrimination,
she is unable to defeat Wal-Mart’s offering of legitimate, non-discriminatory
reasons for its adverse employment actions. As discussed comprehensively
above, each coaching addressed a clear policy violation, and Gosa did not
contest the incidents. Further, Gosa cannot demonstrate the three coachings
were merely pretext for Wal-Mart’s or its employees’ racial bias, as the record
clearly demonstrates Gosa was not “singled-out” but was disciplined as other
employees were. Her claims that Wal-Mart did not act until she complained
of disparate treatment holds no water: Wal-Mart cannot discipline employees
for acts of which it has no knowledge, and the record demonstrably reveals it
took proper and prompt investigatory action into all of her allegations.
Further, Gosa has provided no evidence of pretextal reasons behind her
coachings or performance evaluations. As such, Gosa’s claim of racial
discrimination under both Title VII and § 1981 must be denied under the
2. Mixed-Motive Analysis
The Court further finds Gosa has failed to meet the lower burden
provided in the mixed-motive analysis. Under this framework, plaintiff must
show her protected characteristic was merely a motivating factor for the
adverse employment decision. See Quigg, 814 F.3d at 1239. In Quigg, the
Eleventh Circuit found “[v]arious statements made by School Board members
Nesmith, Morgan, and Hiers indicate that sex or gender-based bias was a
motivating factor in their votes against [plaintiff].” Id. at 1241. Gosa,
however, cannot make the same showing. Her feeling that she was “tattled
on” does not indicate a finding of racial bias, especially as those reporting her
were mostly other African-American women. (See Doc. 14-5 p. 5; Doc. 14-4, p.
15). Further, the record shows that Mr. Crane’s view that Gosa was
“insubordinate” did not result from any personal feelings regarding race or
gender; rather, the record emphatically indicates Gosa did not react
positively to his leadership by not attending departmental meetings and by
not obtaining her immunization certificate. Compare with Quigg, 814 F.3d at
1241–42 (finding school board members’ making gender-specific remarks
regarding plaintiff’s job position offered circumstantial evidence of genderbias as a motivating factor).
After reviewing the evidence as a whole in the light most favorable to
Gosa, the Court cannot find she has presented circumstantial evidence
suggesting race-based bias played a motivating factor in the adverse
employment actions taken against her. As such, Wal-Mart’s motion for
summary judgment as to racial bias under Title VII and § 1981 is due to be
B. Retaliation under Title VII
Title VII prohibits retaliation against an employee who has “opposed
any practice made an unlawful employment practice[.]” 42 U.S.C. § 2000e–3.
Under the McDonnell Douglas framework, a plaintiff must first raise an
inference of retaliation by establishing a prima facie case. See Chapman v. AI
Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (citing Combs v. Plantation
Patterns, 106 F.3d 1519, 1527–28 (11th Cir. 1997)). To establish a prima facie
case of retaliation under Title VII, “the plaintiff must show (1) that she
engaged in statutorily protected expression; (2) that she suffered an adverse
employment action; and (3) that there is some causal relation between the
two events.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir.
2007). If a plaintiff makes out a prima facie case of retaliation, the Court
then applies the burden-shifting framework as laid out above. The parties
agree the coachings constituted an adverse employment action. As such, only
the first and third elements are contested.
Gosa contends she made repeated verbal and written complaints of
discrimination, but Wal-Mart denies she ever alleged racial (or gender)
discrimination in her complaints. On March 3, 2015, Gosa wrote to Mr.
Souers, “As I stated in my acknowledgement on 2/9/2015 Jean Spence , [sic]
and Greg Crane have left the pharmacy unsecured and shopped for personal
items. Why am I being treated differently?” (Doc. 21-6, p. 2). Further, she
wrote to Ms. Powe on April 17, 2015, “[Mr. Crane’s] leadership and
relationships clearly maintained the hostile environment and fostered a
feeling of him showing favoritism between he and others in the pharmacy. He
expressed in a meeting in June with Amanda that ‘I was not a bad person[,]’
so he had some person feeling about me early on.” Id. at 3. She also wrote she
found it “disrespectful” that she was “left out” of the hiring decision-making
process in March 2015. Id. at 4. As a whole, these statements do not rise to
the level of protected speech under Title VII. Gosa’s e-mail regarding Mr.
Crane’s feelings about her “plainly reflect[ ] a personal rather than a [race]based bias.” See Black v. Reynolds, 150 F. Supp. 3d 1273, 1281 (S.D. Ala.
2015). As this Court has previously noted,
“[T]o be classified as statutorily protected activity the
complaint needs to at last say something to indicate
discrimination is at issue.” Abuelyaman v. Ill. State Univ.,
667 F.3d 800, 814 (7th Cir. 2011) (internal quotes
omitted). “Although an employee need not use the magic
words ‘sex’ or ‘gender discrimination’ to bring her speech
within Title VII’s retaliation protections, she has to at
least say something to indicate her gender [or race] is an
issue.” Sitar v. Ind. Dep’t of Tranps., 344 F.3d 720, 727
(7th Cir. 2003). Simply complaining that one feels “picked
on” will not suffice. Id.
The Eleventh Circuit has not so held in a published case,
but it has come to the same conclusion in unpublished
opinions. See Demers v. Adams Homes, Inc., 321 F. App’x
847, 852 (11th Cir. 2009) (“T]o engage in protected
activity, the employee must still, at the very least,
communicate her belief that discrimination is occurring to
the employer, and cannot rely on the employer to infer
that discrimination has occurred.”) (internal quotes
omitted); Jeronimus v. Polk County Opportunity Council,
Inc., 145 F. App’x 319, 326 (11th Cir. 2005) (a complaint
“of being ‘singled out,’ being subjected to ‘a campaign of
harassment,’ and working in a ‘hostile environment’ . . .
did not amount to protected conduct” where it “never
suggested that this treatment was in any way related to
[the plaintiff's] race or sex”). Most plainly, “[a] complaint
about an employment practice constitutes protected
opposition only if the individual explicitly or implicitly
communicates a belief that the practice constitutes
unlawful employment discrimination.” Murphy v. City of
Aventura, 383 F. App’x 915, 918 (11th Cir. 2010) (internal
quotes omitted). This Court has recognized that, in light
of Murphy, “[t]he law is clear.” Roberson v. BancorpSouth
Bank, Inc., [No. 12–699–WS–N,] 2013 WL 6254108, at *10
(S.D. Ala. 2013).
Id. at 1281. Guided by its precedent, and that of the Eleventh Circuit, this
Court must conclude Gosa did not engage in protected activity. She did not
explicitly or implicitly communicate her belief that she was being
discriminated against because of her race.11 As such, her retaliation claim
necessarily fails. Wal-Mart’s motion for summary judgment must, therefore,
The Court also notes Gosa complained of being called “old [and] backwards”
and endured “insults about my age,” among other things. (See Doc. 14-3, pp.
14, 21). These allegations hold no sway over this Court, as Gosa did not plead
age discrimination in her Complaint.
C. Sex Discrimination under the Equal Pay Act and Title VII
Gosa pled sex discrimination only under the realm of the Equal Pay
Act, 29 U.S.C. § 206(d) (the “EPA”). Wal-Mart, however, read her claim as
also including a claim for sex discrimination under Title VII. The Court will
proceed in that vein. “Discrimination claims under Title VII are analyzed
using the same McDonnell Douglas burden-shifting framework as § 1981 race
discrimination claims.” Kosher v. Protective Life Corp., No. 2:11–3915–JHE,
2015 WL 1395896, at *15 (N.D. Ala. Jan. 13, 2015). “EPA claims use a similar
analysis but statutorily shift the burden of persuasion along with the burden
of productions.” Id.
1. Pay Equity under the Equal Pay Act
The EPA provides,
No employer [subject to this section] shall discriminate,
within any establishment in which such employees are
employed, between employees on the basis of sex by paying
wages to employees . . . at a rate less than the rate at
which he pays wages to employees of opposite sex . . . for
equal work on jobs the performance of which requires
equal skill, effort, and responsibility, and which are
performed under similar working conditions, except where
such payment is made pursuant to (i) a seniority system;
(ii) a merit system; (iii) a system which measures earnings
by quantity or quality of production; or (iv) a differential
based on any other factor other than sex: Provided, that an
employer who is paying a wage rate differential in
violation of this subsection shall not, in order to comply
with the provisions of this subsection, reduce the wage
rate of any employee.
29 U.S.C. § 206(d)(1). “To establish a prima facie case under the Equal Pay
Act of 1963, a complainant must show that an employer pays different wages
to employees of opposite sexes for equal work on jobs the performance of
which requires equal skill, effort, and responsibility, and which are
performed under similar working conditions.” Miranda v. B & B Cash
Grocery Store, Inc., 975 F.2d 1518, 1532 (11th Cir. 1992) (internal marks
omitted). Once plaintiff establishes this, “the burden shifts to the employer to
prove that the difference in pay is justified by one of the four exceptions”
stated in the Act. Id. Notably, the EPA “prescribes a form of strict liability:
Once the disparity in pay between substantially similar jobs is demonstrated,
the burden shifts to the defendant to prove that a ‘factor other than sex’ is
responsible for the differential. If the defendant fails, the plaintiff wins. The
plaintiff is not required to prove discriminatory intent on the part of the
defendant.” Id. at 1533.
To begin, a plaintiff must “compar[e] the jobs held by the female and
male employees, and [show] that those jobs are substantially equal, not by
comparing the skills and qualifications of the individual employees holding
those jobs.” Miranda, 975 F.2d at 1533. Further, “[t]he prima facie case also
focuses solely on the primary duties of each job, not duties that are incidental
or insubstantial. Any extra duties that might be used to distinguish two jobs
may not be tasks that are typically performed by other personnel at lower
pay.” Id. Most importantly, job titles, while entitled to some weight, are not
controlling; rather, the Court must look to the “actual duties the respective
employees are called upon to perform.” Id.
Gosa worked, for the majority of her tenure at Wal-Mart, as a Staff
Pharmacist. From 2006 through 2007, she served in a higher position as the
Pharmacist in Charge. Ms. Powe described the duties of a Staff Pharmacist,
which include “fill[ing] prescriptions and consult[ing] customers about
medications” as well as “exercise[ing] supervisory authority over all
operations in the pharmacy.” (Doc. 14-12, ¶ 3). Ms. Powe also indicated,
“Pharmacy Managers are paid more than Staff Pharmacists because of their
additional responsibilities.” Id. at ¶ 11. Gosa appears to concede that
Pharmacy Managers and Staff Pharmacists do not hold comparable jobs. (See
Doc. 21, p. 23). Rather, she contends the role of Pharmacist in Charge and
Pharmacy Manager is substantially equal, despite the pay disparity. Id. In its
brief, Wal-Mart appears to concede this point. As such, the Court considers
Plaintiff has met her burden, and the burden shifts to Wal-Mart to establish
an exception to the EPA.
Wal-Mart argues the fourth exception, “a differential based on any
other factor other than sex,” applies in this case. To support this argument,
Wal-Mart submits evidence that multiple factors outside of gender impact all
pharmacy employees, regardless of title. Wal-Mart hires both new associates
and lateral hires. (Doc. 14-11, ¶ 8). When hiring laterally, Wal-Mart must
consider the applicant’s current salary. Id. In addition, Wal-Mart considers
“fluctuations in the job market” and the skill and experience of an applicant
when making salary determinations. Id.; see also Doc. 14-12, ¶¶ 11–12. When
a Staff Pharmacist is elevated to Pharmacist in Charge, generally a
temporary position, his or her pay is only increased by one dollar per hour;
once a Pharmacist in Charge returns to the Staff Pharmacist position, his or
her salary is reduced to the original amount. (Doc. 14-12, ¶ 11). Gosa claims
she earned $62 per hour (although she provides no evidence of this). (See Doc.
21, p. 24). She also provided a mathematical breakdown of salaries into
hourly equivalents for other employees, but the Court rejects these figures
because the employees stated their pay as annual salary rather than as
As this Court has noted, “‘[P]rior pay plus experience establishes an
affirmative defense under the EPA.’” Joyner v. Town of Elberta, 22 F. Supp.
3d 1201, 1208 (S.D. Ala. 2014) (quoting White v. ThyssenKrupp Steel USA,
LLC, 743 F. Supp. 2d 1340, 1354 (S.D. Ala. 2010)); see also Irby v. Bittick, 44
F.3d 949, 955 (11th Cir. 1995) (“While an employer may not overcome the
burden of proof on the affirmative defense of relying on ‘any other fact other
than sex’ by resting on prior pay alone . . . there is no prohibition on utilizing
prior pay as part of a mixed-motive, such as prior pay and more experience.”).
The evidence supports Pharmacy Managers’ salaries incorporated both prior
pay and prior experience. In addition, both Mr. Harris and Ms. Powe reveal
an across-the-board pay increase of one dollar per hour when a Staff
Pharmacist takes on the temporary role of Pharmacist in Charge. The mere
fact that two women held the position (both Gosa and Ms. Spence) does not
indicate gender bias in the payment disparity between Pharmacist in Charge
and Pharmacy Manager. As Mr. Harris noted, the current Pharmacy
Manager at Store 700 is an African-American female, and she is a high paid
pharmacist in his region. (See Doc. 14-11, ¶ 9). Thus, as a matter of law, the
Court finds Wal-Mart has met its burden in demonstrating factors other than
sex explain any pay disparity.
2. Sex Discrimination under Title VII
As with claims of race discrimination, Gosa must establish a prima
facie case, showing (1) she is a member of a protected class, (2) she suffered
an adverse employment action, (3) her employer treated her differently than
similarly situated male employees, and (4) a causal relationship between her
protected status and the adverse employment action. See Valdes v. MiamiDade College, 463 F. A’ppx 843, 845 (11th Cir. 2012). The familiar McDonnell
Douglas framework applies equally here.
Wal-Mart argues, and the Court agrees, the same substantive facts
and analysis controlling her race discrimination claim govern the outcome of
Gosa’s sex discrimination claim. To conserve judicial resources, the Court will
not repeat its prior analysis. The record sufficiently demonstrates similarly
situated male comparators received coachings for committing the same
violations as Gosa for both the PHI policy violation and the POM 902
violation. (See, supra).
Regarding her pay, she once again cannot establish facts in the record
creating a genuine issue of material fact. It is undisputed Gosa primarily
worked as a Staff Pharmacist. For approximately one year, she served as the
PiC for Store 700. The payment scheme for PiC is established by Wal-Mart:
PiCs earn one dollar per hour more than their Staff Pharmacist rate. The
temporary nature of the job, as well as the lack of required managerial
experience, justifies the difference in payment between the PiC and
Pharmacy Managers. Ms. Martin’s high salary among Pharmacy Managers
indicates neither race nor gender influence Wal-Mart’s salary motives. For
predominantly the same reasons as outlined as to Count II, this Court
GRANTS Wal-Mart’s motion for summary judgment as to Count IV.
Having addressed Gosa’s three federal law claims, the Court turns its
attention to her State law claims.
V. Analysis of Gosa’s State Claims
Gosa also pled two state claims for breach of contract (Count I) and
wrongful termination (Count V). For the reasons below, Wal-Mart’s summary
judgment motion is due to be granted.
A. Breach of Contract
In Gosa’s first cause of action, she claims Wal-Mart breached her
employment contract. Gosa, however, readily admits she did not have an
employment contract with Wal-Mart and acknowledges her status as an at
will employee. (Doc. 14-1, pp. 8–9).
By now, the rule is well settled in Alabama that an
employee contract at will may be terminated by either
party with or without cause or justification. See, e.g.,
Meeks v. Opp Cotton Mills, Inc., 459 So.2d 814 (Ala. 1984);
Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130 (Ala.
1977). This means a good reason, a wrong reason, or no
reason. Hinrichs, supra.
Hoffman-La Roche, Inc. v. Campbell, 512 So.2d 725, 728 (Ala. 1987)
(emphasis in the original). To establish a contract, rather than at-will
employment terms, governed her employee relationship with Wal-Mart, Gosa
must establish: “(1) that there was a clear and unequivocal offer of lifetime
employment or employment of definite duration; (2) that the hiring agent had
authority to bind the principal to a permanent employment contract; and (3)
that the employee provided substantial consideration for the contract
separate from the services to be rendered.” Id. (internal citations omitted).
Gosa has provided no evidence of a contract but argues that the job
description and the employee handbook created a contract. This argument,
however, cannot stand. Neither the job description nor the handbook offer
any terms of tenure or have the “authority” to bind Wal-Mart into an
employment contract. Moreover, Gosa cannot demonstrate she provided
anything more than “the services to be rendered.” As such, she cannot prove a
claim for breach of contract.
Gosa argues this Court should depart from established Alabama law to
create an exception. This Court declines to do so: “[The Alabama Supreme]
Court has repeatedly refused to modify this [employment at will] doctrine
even so much as to recognize a so-called public policy exception to its
application.” Campbell, 512 So.2d at 728 (emphasis in the original). As such,
Wal-Mart’s motion for summary judgment must be GRANTED.
B. Wrongful Termination
In Gosa’s final claim, she seeks “an exception to the at will
employment [doctrine] when an employee is terminated for complying with
state and federal law because a society under the rule of law demands such.”
(Doc. 1, p. 16, ¶ 47). This argument, however, runs contrary to established
precedent, which Gosa concedes. Regarding a public policy exception, the
Alabama Supreme Court has held,
We also note [plaintiff’s] suggestion that we should carve
out a public policy exception to the employee-at-will
doctrine; however, we again decline to modify the
employee-at-will doctrine by recognizing such an
exception in this case. Historically, this Court has
deferred to the judgment of the legislature as to the need
for such an exception. See, e.g., Howard v. Wolff
Broadcasting Corp., 611 So.2d 307 (Ala. 1992), cert.
denied, 507 U.S. 1031 (1993), and the cases cited therein.
Dykes v. Lane Trucking, Inc., 652 So.2d 248, 250 (Ala. 1994) (affirming
summary judgment despite plaintiff’s argument that a public policy exception
should be applied because his company allegedly forced him to violate federal
law); see also Hall v. Infirmary Health Sys., No. 06–791–WS–B, 2007 WL
772560, at *5 (S.D. Ala. Mar. 8, 2007) (acknowledging that “Alabama case
law erects an insurmountable obstacle to” a public policy exception to the at
will employment doctrine).
The Court liberally construes Gosa’s pleading to include a claim for
constructive discharge, which also fails. To make such a claim, “‘the trier of
fact must be satisfied that the . . . working conditions would have been so
difficult or unpleasant that a reasonable person in the employee’s shoes
would have felt compelled to resign.’” Garner v. Wal-Mart Stores, Inc., 807
F.2d 1536, 1539 (11th Cir. 1987) (quoting Bourque v. Powell Electrical Manuf.
Co., 617 F.2d 61, 65 (5th Cir. 1980) (emphasis in the original)). The Eleventh
Circuit has held, “[p]art of an employee’s obligation to be reasonable is an
obligation not to assume the worst, and not to jump to conclusions too fast.”
Id. (emphasis in the original). The record does not evidence a genuine issue of
material fact as to this standard. The impetus for Gosa’s resignation was her
frustration that she “had not received any kind of confirmation of” how an
issue would be handled. (See Doc. X, p. X). Merely being “tired” of “[h]aving
people show up in front of everyone and asking [Gosa] to do reports about
situations” does not create working conditions that would compel a
reasonable individual to resign. (See Doc. 14-2, p. 22). In fact, Gosa had
previously filled out reports at management’s request, and following the
typical procedure for managing work-related disputes is not an unreasonable
request or expectation. Additionally, Gosa informed the Alabama State Board
of Pharmacy she resigned out of “[her] concern for the safety and wellness of
the public.” (Doc. 14-2, p. 26). As this Court has already determined Gosa’s
interdepartmental squabbles stemmed from personal, rather than race or
gender issues, it cannot find Gosa’s resignation amounted to a constructive
discharge. See Henderson v. Leroy Hill Coffee Co., Inc., No. Civ. A. 99–
1067CBS, 2001 WL 103147, at *10–11 (S.D. Ala. Jan. 30, 2001). Because this
Court will not create a public policy exception contrary to precedent and
cannot, as a matter of law, find Wal-Mart constructively discharged Gosa,
Wal-Mart’s motion for summary judgment is GRANTED.
For the reasons stated herein, Wal-Mart’s motion for summary
judgment (Doc. 12) is GRANTED. A separate Order dismissing all claims
with prejudice will be entered concurrently. Further, Wal-Mart’s motion to
strike (Doc. 27) is found to be MOOT.
DONE and ORDERED this 2nd day of February, 2017.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE
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