Adamson v. Walgreens Co.

Filing 44

Judge Richard G. Stearns: ORDER entered granting 15 Motion for Summary Judgment (RGS, law2)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 12-30068-RGS
ROBERT ADAMSON,
Plaintiff
v.
WALGREENS CO.,
Defendant
MEMORANDUM AND ORDER ON WALGREEN CO.’S
MOTION FOR SUMMARY JUDGEMENT
April 10, 2013
STEARNS, D.J.
Plaintiff Robert Adamson alleges that his former employer, defendant
Walgreens Co. (Walgreens), violated the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. § 621, et seq. (ADEA), and its Massachusetts state law
analog, Mass. Gen. Laws ch. 151B (Chapter 151B), by terminating his employment
because of his age. Walgreens now moves for summary judgment on both the federal
and state age discrimination claims. A hearing on the motion was held on April 2,
2013.
BACKGROUND
The following background facts and the underlying sequence of events provide
context for this dispute. The court will subsequently address in more detail the facts
necessary for disposition of Walgreens’ motion. Because the dispute is before the

court on a motion for summary judgment, the facts are viewed in the light most
favorable to Adamson as the non-moving party.
Adamson began working for Walgreens in September of 2007. He was then
aged fifty-five (55). He was hired as an Assistant Manager and kept this position
until his discharge in 2011, when he was fifty-eight (58) years old. The duties of an
Assistant Manager include protecting store assets, contributing to the selection,
training, and development of personnel, and providing proper service to customers.
Ogden Dec. – Ex. A. Adamson was trained by Walgreens on the importance of
customer service. In his own words, Adamson understood that the fundamentals of
Walgreens’ customer service policy are “to always greet the customer, to assist the
customer, don’t let the customer stay alone in the store, walk them into the aisles,
provide a good customer experience. Adamson Dep. 29:20-30:3.
Walgreens terminated Adamson on February 10, 2011, citing two incidents of
unsatisfactory customer service. In the first of these incidents, which occurred on
October 21, 2010, a customer visited the Ware, Massachusetts store where Adamson
was then working,1 and attempted to make a return. A cashier paged Adamson over

Adamson was originally hired to work at a Walgreens store in Florida, where he was
then residing. In or around November of 2008, he requested and received a transfer
to a store location in Massachusetts. He worked at stores located in Chicopee and
Worcester before beginning work at the store in Ware in October of 2010.
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the store’s intercom seeking managerial assistance with the return, but Adamson, who
was overseeing a warehouse delivery at the time, did not respond to the call. When
the cashier went to retrieve Adamson from the stock room, Adamson told him to ask
the customer to come back later. The customer complained to the cashier about the
inconvenience. The cashier, in turn, reported the complaint to Stephen Benoit (age
50), the Store Manager.
Benoit then contacted Peter Serafin (age 53), the Loss Prevention Supervisor,
for advice on the appropriate level of discipline. By virtue of his position, Serafin
was knowledgeable about disciplinary issues involving employees at other stores in
the district. Ultimately, the decision was made to issue Adamson a “Final Written
Warning,” which Benoit did on October 26, 2010. The Final Written Warning listed
the reason for discipline as “Poor Customer Service/Refused Customer Return.”
Adamson Dep. – Ex. 1. On the Optional Employee Response to Discipline that
accompanied the Final Written Warning, Adamson acknowledged that he “made a
judgement [sic] call during a truck delivery not to attend the customer at that moment
and I expected to do so happily afterwards. This was wrong. I will continue to
maintain my high standards of customer service throughout while exercising better
judgement [sic] as well.” Adamson Dep. – Ex. 1.
The second incident occurred less than four months later, on February 5, 2011.
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When a service clerk was late for his 8:00 a.m. shift, Adamson left the front of the
store unattended while he went to look for the clerk’s telephone number in the back
office. When he was unable to find the store roster, Adamson called Julie Martineau,
another Assistant Store Manager, and Ashleigh Sykes, the Store Team Leader, in an
attempt to track down the clerk’s number. He made these calls from the back office
rather than from the phone located at the front of the store.
While the front of the store was unattended, a customer attempted to make a
purchase, but could not find a salesperson to ring her up. After leaving the store, the
customer called the Walgreens’ customer hotline and complained. She reported that
she was “at the register for 15 minutes and there was no one,” that she was “calling
for an employee and no one came so she just left,” and that she “could of [sic] just
walked out with the items.” Adamson Dep. – Ex. 3.
Benoit attempted to contact the customer to discuss her complaint. The
Walgreens “Issue Communication Form” documenting the complaint indicates that
Benoit telephoned the customer several times, but was unable to reach her within the
two days that the Walgreens customer complaint policy requires. Benoit testified in
his deposition that he was later able to speak to the customer. According to Benoit,
she was not seeking monetary compensation, but rather wanted simply to inform him
of a problem at his store.
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Benoit also reviewed the Ware store security footage from that morning. The
video confirmed that a customer came into the store, placed items at the register as
if to purchase them, looked up and down the aisles, and then left without making a
purchase. She was in the store for just under two minutes and fifty seconds.
According to Walgreens, the video shows that Adamson was outside the view of the
camera for twelve minutes before and after the customer departed the store. Adamson
denies that he spent more than two to three minutes in the back office attempting to
retrieve the clerk’s telephone number, but admits to spending additional time “in the
aft part of the store addressing aisles.” Adamson Dep. 64:8-11; 73:14-15.
Following this incident, Benoit consulted with Serafin and District Manager
Paul Holstein (age 46) for “fairness and consistency” purposes. The termination
notice issued to Adamson referenced the prior incident and identified “Poor Customer
Service” as the basis for the termination. Adamson Dep. – Ex. 2. The notice
explained that Adamson “should have managed the store from the front entrance till
support arrived” and that his failure to do so “left the front store opening it up to
possible theft and poor customer service.” Adamson Dec. – Ex. 4.
At the time of Adamson’s discharge, the Ware store employed approximately
twenty-one people. One third of the employees at that time were over the age of
forty, and four (in addition to Adamson) were in their fifties. During 2010 and 2011,
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three employees under the age of forty were involuntarily discharged. Adamson was
the only employee at the store over age forty whose employment was terminated
during the relevant time period. He was also the only managerial employee about
whom Benoit had received verbal or written complaints regarding customer service
issues.
District-wide personnel records reveal that managerial-level employees who
received first-offense Final Written Warnings during the relevant period included an
Assistant Manager, aged twenty-seven (27), who left a store unattended for six
minutes; an Assistant Manager, aged twenty-eight (28), who physically detained a
shoplifter; and an Executive Assistant Manager, aged thirty (30), who gave store keys
to a non-managerial employee. Other managers and pharmacy managers were
disciplined for, inter alia, engaging in or failing to report sexual comments or
behavior in the workplace and for lying about sick time. Other than Adamson, no
managerial employees in the district were terminated for customer service issues from
2009 to the time of the incident.
After Adamson was discharged, his position was filled by Pauline Hackett, an
existing Walgreens employee who transferred into the position. Hackett was fiftyyears-old (50) at the time.2
Adamson claims that he “was temporarily replaced by someone nearly seven years
younger than he is, and then replaced long term by someone more than twenty years

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STANDARD OF REVIEW
Summary judgment is appropriate if the evidence, viewed in the light most
favorable to the non-moving party, “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). “A ‘genuine’ issue is one that could be resolved in favor of either party, and
a ‘material fact’ is one that has the potential of affecting the outcome of the case.”
Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir. 2004), citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-250 (1986). A party seeking
summary judgment bears the initial burden of demonstrating that there is no genuine
issue as to a material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
If this is accomplished, the burden “shifts to the nonmoving party to establish the
existence of an issue of fact that could affect the outcome of the litigation.” Rogers
v. Fair, 902 F.2d 140, 143 (1st Cir.1990).
To oppose the motion successfully, the nonmoving party “may not rest upon
the mere allegations or denials of his pleading.” Anderson, 477 U.S. at 256. Rather,
the nonmovant must submit “‘sufficient evidence supporting the claimed factual
dispute’ to require a choice between ‘the parties’ differing versions of the truth at
his junior.” Pl.’s Opp. at 5. Walgreens states in its reply that Hackett was officially
assigned to the position and only left it after she was injured on the job and placed on
extended disability leave. Def.’s Reply at 9. Neither party provides evidentiary
support for these claims.
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trial.’” LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993), quoting Hahn
v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975). “Even in cases where elusive concepts
such as motive or intent are at issue, summary judgment may be appropriate if the
nonmoving party rests merely upon conclusory allegations, improbable inferences,
and unsupported speculation.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896
F.2d 5, 8 (1st Cir. 1990).
DISCUSSION
The ADEA makes it unlawful for an employer “to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment, because of such
individual’s age.” 29 U.S.C. § 623(a)(1). The plaintiff in an ADEA discrimination
suit bears the ultimate burden of proving that age was the determinative factor in his
discharge. Bonefont-Igaravidez v. International Shipping Corp., 659 F.3d 120, 123
(1st Cir. 2011). Where, as here, there is no direct evidence of age discrimination,
ADEA claims are evaluated under the familiar burden-shifting framework laid out in
McDonnell-Douglas v. Green, 411 U.S. 792, 802-805 (1973). See Velez v. Thermo
King de Puerto Rico, Inc., 585 F.3d 441, 446-447 & n.2 (1st Cir. 2009).
Under the McDonnell-Douglas framework, a plaintiff must first establish a
prima facie case of employment discrimination. Id. at 447. In the context of an
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ADEA claim for discriminatory firing, this requires the plaintiff to show that: (1) he
was at least 40 years old at the time of the termination; (2) he was qualified for the
position that he had held; (3) he was fired; and (4) his employer subsequently filled
the position, demonstrating a continuing need for his services. Id. Once a plaintiff
establishes a prima facie case, a presumption of age-based discrimination arises and
the burden shifts to the employer to articulate a legitimate, non-discriminatory reason
for the termination. Id. The employer’s burden is one of production, not persuasion.
Davila v. Corporacion de Puerto Rico Para La Difusion Publica, 498 F.3d 9, 16 (1st
Cir. 2007). Accordingly, “the employer need do no more than articulate a reason
which, on its face, would justify a conclusion that the plaintiff was let go for a
nondiscriminatory motive.” Id. If the employer does so, the presumption of
discrimination disappears, and “the burden reverts to the employee to show, by a
preponderance of the evidence, that the employer’s proffered reason for the adverse
employment action is pretextual and that the true reason for the adverse action is
discriminatory.” Bonefont-Igaravidez, 659 F.3d at 124 (internal quotation marks and
citation omitted).
The first, third, and fourth elements of Adamson’s prima facie case are not in
dispute. Walgreens acknowledges that Adamson was within the protected age group
on February 10, 2011; that it terminated his employment on that date; and that it hired
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a replacement immediately on his departure. The parties dispute whether Adamson
can satisfy the second element of his prima facie burden, but for present purposes the
court will assume that he has made the requisite showing. See, e.g., Gomez-Gonzalez
v. Rural Opportunities, Inc., 626 F.3d 654, 662 (1st Cir. 2010), citing Fennell v. First
Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996) (“On summary judgment, the
need to order the presentation of proof is largely obviated, and a court may often
dispense with strict attention to the burden-shifting framework, focusing instead on
whether the evidence as a whole is sufficient to make out a jury question as to pretext
and discriminatory animus.”). Walgreens has come forward with a legitimate, nondiscriminatory reason for terminating Adamson: the two incidents in which he was
disciplined for poor customer service. The determinative question, then, is whether
Adamson has adduced sufficient evidence from which a reasonable factfinder could
conclude that this explanation is simply a pretext for age discrimination. The court
concludes that he has not.
“Pretext can be shown by such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its
action that a reasonable factfinder could rationally find them unworthy of credence
and hence infer that the employer did not act for the asserted non-discriminatory
reasons.” Gomez-Gonzalez, 626 F.3d at 662-662, quoting Morgan v. Hilti, Inc., 108
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F.3d 1319, 1323 (10th Cir. 1997). In arguing that Walgreens’ stated reason for
discharging him was pretextual, Adamson first highlights alleged inconsistencies in
Benoit’s recollection and reporting of the February 5, 2011 incident. He notes that
Benoit stated in the Issue Communication Form that he had been unable to speak with
the customer, but then took no steps to amend the form after (as he admitted in his
deposition testimony) he eventually reached her by telephone. Adamson also notes
that Benoit initially testified that his review of the video surveillance footage led him
to conclude that the customer had waited in the store for fifteen minutes, but changed
his estimate to five minutes when pressed on the point during his deposition. Based
on these supposed inconsistencies, Adamson’s counsel claims that Benoit “lied in
order to facilitate the firing of Mr. Adamson.” Pl.’s Opp. at 5.
Adamson’s argument distorts the facts. These show – and Adamson admits –
that he left the store unattended for a long enough period of time for the customer to
attempt to make a purchase, become frustrated, and leave when no employee came
to the register. Neither Benoit’s failure to amend the original customer complaint
form, nor his imprecise recollection of a video he had reviewed nearly two years
before his deposition, impeaches Walgreens’ contention that Adamson’s discharge
was motivated by the customer complaint and not his age. As the Court of Appeals
recently stated, “[t]o impugn the veracity of a tangential aspect of [the defendant’s]
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story is not enough. Rather, [the plaintiff] must elucidate specific facts to support the
proposition that [the defendant’s] reason for termination is not only a sham, but a
sham intended to cover up its real motive of discrimination.” Bonefont-Igaravidez,
659 F.3d at 124-125 (internal quotation marks, alterations, and citation omitted). The
alleged inconsistencies identified by Adamson raise no such inference.
Adamson’s next argument has even less heft. He contends that his termination
violated a Walgreens’ policy requiring that an employee facing discipline be given
the opportunity to offer an explanation for his actions. Relatedly, he complains that
there was “no policy or rule regarding how [he] should have reacted when he opened
the store alone” and that the Final Written Warning “only establishe[d] that [he] had
been instructed he would be subject to further discipline if he failed to take a return
from a customer in a timely fashion.” Pl.’s Opp. at 8. Although Adamson maintains
otherwise, these arguments are but a thinly veiled attack on the propriety of his
discharge. “In essence, he asks the court to excuse his performance by replacing
[Walgreens’] business judgment for his own, an untenable position.” VelazquezFernandez v. NCE Foods, Inc., 476 F.3d 6, 12 (1st Cir. 2007). It is not the province
of the court to second-guess Walgreens’ decision to fire Adamson for two instances
of poor customer service, as opposed to three or four or any other number. See, e.g.,
Fennell v. First Step Designs, Ltd., 83 F.3d 526, 537 (1st Cir. 1996) (“‘Courts may
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not sit as super personnel departments, assessing the merits – or even the rationality
– of employers’ nondiscriminatory business decisions.’” (quoting Mesnick v. Gen.
Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991))). And while proof of pretext may give
rise to an inference of discrimination, proof of mistaken judgment does not. Davila,
498 F.3d at 17.
In addition to challenging Benoit’s credibility and Walgreens’ business
judgment, Adamson labors to persuade that he was treated less favorably than
younger employees. He grounds this argument on two separate allegations: that
Benoit treated Martineau, a younger Assistant Manager, as Adamson’s superior, and
that Adamson received more severe punishment than younger employees who
committed similar offenses.3 Neither offering bears fruit.
While there seems no doubt that Benoit thought highly of Martineau, the
record is devoid of any evidence of preferential treatment based on her age. In
November or December of 2010, Benoit began training Martineau to become an
Executive Assistant Manager. Adamson asserts that as a result, Martineau was given
greater authority over the store and staff, including supervisory authority over him.
Adamson additionally alleges that Benoit engaged in text messaging conversations
of a personal nature with Martineau and Sykes (both of whom were under the age of
forty) and permitted them more desirable work schedules. These allegations are
easily dispatched, as Adamson offers no evidentiary basis for the first and the record
evidence does not support the second.

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He states that she was given access to computer programs and tools that were not
available to other assistant managers and was encouraged to attend trainings that
would allow her to be promoted to manager. Adamson complains that despite his
comparable experience, he was denied similar training and promotional opportunities
when he requested them. Even assuming that Adamson’s allegations find support
in the record (the support is meager at best), he has failed to offer any evidence that
calls into doubt Benoit’s explanation for the disparity – namely, that he considered
Martineau a more valuable employee because she knew the store and he trusted her.
Preferential treatment of one employee who happens to fall outside the protected
class, without more, is insufficient to establish pretext.
Adamson’s unsubstantiated allegation that younger employees received more
lenient discipline for similar offenses also comes up short. When using comparative
evidence to show pretext, “it is the plaintiff’s burden to demonstrate that [he] is
comparing apples to apples.” Rathbun v. Autozone, Inc., 361 F.3d 62, 76 (1st Cir.
2004). With regard to his termination, Adamson has not carried that burden. As
Walgreens emphasizes, “[t]his case involves a managerial employee who engaged in
two serious breaches of Walgreens’ expectations regarding customer service within
a four month period.” Def.’s Mem. at 16. Adamson is unable to point to any
evidence in the record demonstrating that younger employees who committed
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repeated infractions within a short time frame were not terminated for their conduct.
The record is clear that managerial employees in Adamson’s district who
committed similar infractions during the relevant period were also issued Final
Written Warnings on their first offense, regardless of their age. One managerial
employee was issued a Final Written Warning for a customer service issue (leaving
the store unattended), and two managerial employees received such warnings for loss
prevention issues (physically detaining a shoplifter and giving store keys to a nonmanagerial employee). These three employees were outside the protected class, yet,
like Adamson, they received Final Written Warnings.
Finally, Adamson alleges that Benoit once remarked “You’re that old!” upon
learning of Adamson’s actual age. Pl.’s Resp. to Def.’s Interrogs., Ogden Dec. – Ex.
D at No. 22. This isolated comment, seemingly intended as a compliment, but at most
ambiguous, is insufficient, standing alone, to satisfy Adamson’s burden of showing
discrimination. See Lehman v. Prudential Ins. Co. of Am., 74 F.3d 323, 329 (1st Cir.
1996) (“Isolated, ambiguous remarks are insufficient, by themselves, to prove
discriminatory intent.”); Speen v. Crown Clothing Corp., 102 F.3d 625, 636 (1st Cir.
1996) (same). Adamson was hired by Walgreens when he was fifty-five (55) years
old and assigned to the Ware store when he was fifty-eight (58), already well within
the protected age class. The individuals involved in his firing and replacement were
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also members of the protected class: Benoit was aged fifty (50) at the time he made
the decision to terminate Adamson; Serafin and Holstein, whom Benoit consulted for
fairness and consistency purposes in that decision, were aged fifty-three (53) and
forty-six (46); and Hackett, who replaced Adamson, was aged fifty (50). No rational
jury on these facts could glean an inference of age discrimination on Walgreens’ part.
Because Adamson has failed to adduce sufficient evidence from which a finder
of fact could infer that Walgreens’ stated reason for his discharge was pretextual, a
trial on his ADEA claim is not warranted. This conclusion fatally undermines his
Chapter 151B claim as well. See Matthews v. Ocean Spray Cranberries, Inc., 426
Mass. 122, 128 (1997).
ORDER
For the foregoing reasons, Walgreens’ motion for summary judgment is
ALLOWED. The Clerk will enter judgment for Walgreens and close the case.
SO ORDERED.
/s/ Richard G. Stearns
______________________________
UNITED STATES DISTRICT JUDGE

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