Adamson v. Walgreens Co.

United States Court of Appeals
For the First Circuit

No. 13-1511

ROBERT ADAMSON,

Plaintiff, Appellant,

v.

WALGREENS CO.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Howard, Stahl, and Lipez,
Circuit Judges.

Paul J. Caruso, with whom John Martin and Mann Martin LLP were
on brief, for appellant.
Gregory A. Manousos, with whom Laura E. Ogden and Morgan,
Brown & Joy, LLP were on brief, for appellee.

April 29, 2014
 STAHL, Circuit Judge. Plaintiff-Appellant Robert Adamson

was terminated from his position as an assistant manager for

Defendant-Appellee the Walgreen Co. ("Walgreens") after two

instances of failing to provide what Walgreens considered adequate

customer service. Adamson appeals from the district court's grant

of summary judgment to Walgreens on his state and federal age

discrimination claims. We affirm.

I. Facts & Background

Because this appeal is from the entry of summary judgment

in favor of Walgreens, we recite the facts in the light most

favorable to Adamson and draw all reasonably supported inferences

in his favor. Faiola v. APCO Graphics, Inc., 629 F.3d 43, 45 (1st

Cir. 2010). However, "evidence from the moving party as to

specific facts can be accepted by the court where no contrary

evidence is tendered by the party opposing summary judgment."

Statchen v. Palmer, 623 F.3d 15, 18 (1st Cir. 2010) (emphasis

omitted).

Adamson began his tenure with Walgreens in September

2007, when he was hired to work as an assistant manager in one of

its Florida stores. Among other duties, assistant managers are

responsible for the "protection of store assets" and providing

"proper service to all customers." Adamson was fifty-five years

old when hired. Just over a year later, he requested and received

a transfer to Massachusetts, working first in Chicopee and later in

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Worcester. In October 2010, he was transferred to the Walgreens

store in Ware, Massachusetts, where his supervisor was Stephen

Benoit. Adamson was fifty-eight years old at that time.

On October 21, 2010, a customer entered the Ware store

and attempted to make a return. The cashier called for managerial

assistance via intercom, but Adamson, who was the manager on duty,

did not respond. At that time, he was taking in a delivery in the

stockroom at the back of the store. The cashier sought Adamson out

in the stockroom and asked for his assistance with the return.

Adamson asked the cashier to tell the customer that he would take

the return later.1 By the time Adamson left the stockroom to

process the return, the customer had already left the store.

Benoit testified during deposition that this incident prompted a

complaint from the customer, which the cashier subsequently relayed

to Benoit.

Before determining whether or how to discipline Adamson

for this incident, Benoit contacted Peter Serafin. Serafin is a

Walgreens Loss Prevention Supervisor, and Benoit sought his input

due to his knowledge of disciplinary issues involving other

Walgreens employees in the region. After consulting with Serafin,

Benoit issued Adamson a "Final Written Warning," listing as the

basis for the discipline "Poor Customer Service/refused customer

1
There is a dispute as to exactly what Adamson instructed the
cashier, but all parties agree that he asked that the customer be
told that he could not process the return immediately.

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return." When given the option to offer a written response,

Adamson acknowledged that he had made a bad judgment call and

stated that he would "continue to maintain [his] high standards of

customer service throughout while exercising better judgement

[sic]."

On February 5, 2011, Adamson opened the Ware store alone

because the other employee scheduled that morning had not arrived.

When he could not find the employee's telephone number at the front

of the store, he went to the back office to look for the employee

telephone list. He did not locate the list, and, still in the back

office, made two telephone calls to other colleagues in an attempt

to determine the missing employee's number. He eventually obtained

the number and called the clerk from a cosmetics counter in the

front of the store. Adamson admits that he was in the back office

with the door closed for approximately two to three minutes.

That same day, a customer called a Walgreens customer

hotline to complain that she had been in the Ware store that

morning and was unable to make a purchase because the register was

unattended. A written record of the call indicates that she

reported that she called out for an employee but nobody came and

that she waited at the register for fifteen minutes. However, a

surveillance video shows that she was actually in the store for

just over two minutes and waited at the register for approximately

twenty seconds. The video shows the customer placing items at the

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register, looking up and down the aisles, and then leaving without

making a purchase. Adamson does not appear in the video -- which

covers the front of the store -- for a stretch of approximately

twelve minutes, eventually appearing about thirty seconds after the

customer left. Adamson admits that the video does not show him for

a twelve-minute period, but states that, aside from the two to

three minutes he was in the back office, he was working in aisles

in the back part of the store. He states that he was in the

aisles, and not in the back office, at the time that the video

shows the complainant in the store, but says he never saw the

complainant or heard anyone calling out for an employee.

The written record of the complaint was passed along to

Benoit for investigation. A Walgreens policy required him to

follow up with the complainant within two days. Benoit's attempts

to contact her in that time frame were unsuccessful, so he

submitted information to Walgreens indicating that he had not

contacted her. In his deposition, Benoit testified that he was

later able to reach the complainant, that they discussed the

February 5 incident, and that she indicated that she was not

seeking a monetary settlement and simply wanted to advise the

company of what had happened. He also testified that he contacted

Serafin and Paul Holstein (then forty-six), the district manager,

for "fairness and consistency" purposes and to discuss their

interpretation of Walgreens' policies, procedures, and guidelines.

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Benoit also viewed the video footage from that morning, although

the parties dispute when he did so.

On February 10, Walgreens terminated Adamson's

employment. The termination notice states in part: "In reviewing

the video, [c]onfirmed that the main [cashier] was not present and

you were not present as well." It lists "Poor Customer Service" as

the basis of the discipline, noting that Adamson "[s]hould have

managed the store from the front entrance [until] support

arrived. . . . Mr. Adamson fail[ed] to do so and left the front

store[,] opening it up to possible theft and poor customer

service."

After Adamson was terminated, an existing employee, then

fifty years old, was transferred into his position. A few weeks

later, this employee suffered an on-the-job injury and began a

leave of absence, and another existing employee, then thirty-seven

years old, was transferred into the position.

Adamson filed suit in federal court, alleging that he was

terminated because of his age in violation of both the Age

Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621–634,

and Massachusetts General Laws chapter 151B, § 4(1B). The district

court granted summary judgment in favor of Walgreens. Adamson

appeals.

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 II. Analysis

We review a grant of summary judgment de novo, reversing

the district court "only if, after reviewing the facts and making

all inferences in favor of the non-moving party . . . , the

evidence on record is sufficiently open-ended to permit a rational

factfinder to resolve the issue in favor of either side." Prescott

v. Higgins, 538 F.3d 32, 39–40 (1st Cir. 2008) (internal quotation

marks omitted). We draw all reasonable inferences in Adamson's

favor, but we are "not obliged to accept as true or to deem as a

disputed material fact, each and every unsupported, subjective,

conclusory, or imaginative statement made to the [c]ourt by a

party." Torrech-Hernández v. Gen. Electric Co., 519 F.3d 41, 47

(1st Cir. 2008).

The ADEA makes it unlawful for an employer to discharge

an employee because of that employee's age. 29 U.S.C. § 623(a)(1).

The employee bears the burden of proving that age was the but-for

cause of his termination. Gross v. FBL Fin. Servs., Inc., 557 U.S.

167, 176 (2009). "Where, as here, the employee lacks direct

evidence, we utilize the burden-shifting framework developed by the

Supreme Court to facilitate the process of proving discrimination."

Bonefont-Igaravidez v. Int'l Shipping Corp., 659 F.3d 120, 123 (1st

Cir. 2011) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802–05 (1973)).

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 The first step of this framework requires the employee to

establish his prima facie case by producing evidence that shows:

"(1) that he was at least forty years old when he was fired; (2)

that his job performance met the employer's legitimate

expectations; (3) that he suffered an adverse employment action

such as a firing; and (4) that the employer filled the position,

thereby showing a continuing need for the services that he had been

rendering." Meléndez v. Autogermana, Inc., 622 F.3d 46, 50 (1st

Cir. 2010). Doing so gives rise to a rebuttable presumption of

discrimination and shifts the burden of production -- but not

persuasion -- "to the employer to articulate a legitimate,

non-discriminatory reason for its decisions." Vélez v. Thermo King

de P.R., Inc., 585 F.3d 441, 447 (1st Cir. 2009) (internal

quotation marks omitted). If the employer meets this burden, "the

focus shifts back to the plaintiff, who must then show, by a

preponderance of the evidence, that the employer's articulated

reason for the adverse employment action is pretextual and that the

true reason for the adverse action is discriminatory." Gómez-

González v. Rural Opportunities, Inc., 626 F.3d 654, 662 (1st Cir.

2010) (internal quotation mark omitted). At the summary judgment

stage, the plaintiff need not prove his case, but must proffer

sufficient evidence to raise a genuine issue of material fact as to

whether he was fired because of his age. See Domínguez-Cruz

v. Suttle Caribe, Inc., 202 F.3d 424, 433 (1st Cir. 2000).

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 After noting that the parties agreed that Adamson had

made out the first, third, and fourth factors of his prima facie

case, the district court assumed that Adamson had made out the

second, and we follow suit. See Gómez-González, 626 F.3d at 662

(finding it "expeditious and appropriate" to assume prima facie

case was made where primary focus of dispute was whether proffered

reasons for termination were pretextual). We also agree with the

district court that Walgreens articulated a legitimate, non-

discriminatory reason for terminating Adamson; namely, the two

incidents of what it perceived as inadequate customer service. The

parties do not appear to dispute either of these points on appeal.

Instead, the parties focus on the final stage of the

burden-shifting analysis: whether Adamson presented sufficient

evidence to create a genuine issue of material fact as to whether

the proffered reason for his termination was pretextual and that

the "the pretextual reason[] [was] 'intended to cover up the

employer's real motive: age discrimination.'" Acevedo-Parrilla v.

Novartis Ex-Lax, Inc., 696 F.3d 128, 143 (1st Cir. 2012) (quoting

Mesnick v. Gen. Electric Co., 950 F.2d 816, 824 (1st Cir. 1991)).

"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

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non-discriminatory reasons." Gómez-González, 626 F.3d at 662–63

(internal quotation marks omitted).

Before the district court, Adamson advanced four claims

in attempting to meet his burden of showing both pretext and

discriminatory intent: (1) the reason proffered for his termination

was false; (2) Walgreens violated company policies to facilitate

his termination; (3) younger peers were treated better than he was

in terms of scheduling and responsibilities; and (4) younger peers

were disciplined less harshly for more severe behavior. The

district court held that these claims, to the extent they found any

evidentiary support in the record, were insufficient to create a

genuine issue of material fact. Adamson argues that, in reaching

this conclusion, the district court impermissibly resolved disputed

facts, a task properly left to the fact-finder.

Adamson first argues that the district court

impermissibly resolved disputed issues as to Benoit's credibility

when rejecting Adamson's claim that the reason proffered for his

termination was false. In essence, Adamson suggests that there is

a genuine issue as to whether Benoit himself believed that the

reason given for his termination was actually true. "In assessing

pretext, a court's 'focus must be on the perception of the

decisionmaker,' that is, whether the employer believed its stated

reason to be credible." Mesnick, 950 F.2d at 824 (quoting Gray v.

New Eng. Tel. & Tel. Co., 792 F.2d 251, 256 (1st Cir. 1986)).

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 Adamson's argument centers on discrepancies regarding how

long the February 5 complainant waited at the register. The

written record of the complaint states that the complainant

reported having waited fifteen minutes at the counter, while the

video shows that she was in the store for just over two minutes and

waited at the register for approximately twenty seconds. In his

deposition, Benoit stated that his investigation showed that the

complainant was in the store for fifteen minutes but that he could

not remember how long she was at the register.2 After conferring

with counsel, he later said that he did not know how long she was

in the store, and that it may have been only five minutes.

As the district court noted, it would not be surprising

if Benoit misremembered events that had happened more than two

years earlier and recited the timing reported by the complainant

rather than the correct timing as shown by the video. Regardless,

the district court did not determine whether Benoit was credible

regarding the duration of the complainant's wait; it simply (and

correctly) noted that the undisputed facts showed that Adamson left

the register unattended long enough for a customer to be unable to

make a purchase. There is no evidence to suggest that the length

of time she waited played any role in the decision to terminate

2
He first stated that her report that she was at the register
for fifteen minutes was "[a]ccurate." However, in response to the
next question ("She was at the register for 15 minutes?"), he
clarified that she was in the store for fifteen minutes.

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him. Adamson states that Benoit "reported to his superiors that he

reviewed [the] video and [the] customer was at the counter for

fifteen minutes." He points to no evidentiary support for this

claim, and we have found none. And, contrary to Adamson's

assertion on appeal, the termination notice does not even mention

the duration of the complainant's wait, let alone indicate that the

duration was relevant to Walgreens' ultimate decision.3 Because

nothing in the record suggests that the length of the complainant's

wait was material, the district court did not have occasion to, and

did not, render any determination as to Benoit's credibility on

this issue.4 See Bonefont-Igaravidez, 659 F.3d at 124–25 ("Even

3
The notice states, in part, that the "[c]ustomer informed
the company that the front store had no employees working. Due to
this, she was unable to make a purchase."
4
Adamson also asserts that Benoit "admitted to lying . . .
about the Adamson incident in order to facilitate the firing of Mr.
Adamson" and "admitted to . . . falsifying documents." As
Walgreens has pointed out both before the district court and here,
these assertions misconstrue Benoit's deposition testimony. As
stated on the internal "Issue Communication Form," Benoit was
required to resolve the complaint within two business days. He
testified that his attempts to contact the complainant within that
time period were unsuccessful, so he made a notation on the form
that the "contact attempt failed." When asked why he had made that
notation, he repeated the two-day requirement and stated that he
"didn't want to lie and say that I contacted the customer when I
really didn't at that time." He stated that he was eventually able
to reach the complainant, but did not go back and update the form.
Benoit testified that his notation was truthful at the time made,
and Adamson presents no argument or evidence that Benoit was
required to subsequently update the form after the two-day window
had passed. We do not understand how this testimony could lend
credence to Adamson's assertion that Benoit admitted that he had
lied or falsified documents.

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assuming, arguendo, that the inconsistencies identified by [the

plaintiff] find support in the record, they are still insufficient

to demonstrate pretext absent some cognizable nexus to [the

defendant's] offered basis for termination. To impugn the veracity

of a tangential aspect of [the defendant's] story is not enough.")

(footnote omitted). Adamson has not raised any genuine issue as to

whether Walgreens believed the truth of its stated reason for

terminating him.

Adamson next claims that the district court improperly

resolved disputed issues as to Walgreens' violations of its

disciplinary policy.5 It is true that "pretext can be demonstrated

through a showing that an employer has deviated inexplicably from

one of its standard business practices," Acevedo-Parrilla, 696 F.3d

at 142 (internal quotation marks omitted), but Adamson has not made

that showing here. He recites some unexceptional passages from

5
In fact, the district court did not resolve any factual
disputes as to whether Walgreens followed its policies, finding the
entire subject to fall within the coverage of the business judgment
rule. See Adamson v. Walgreens Co., No. 12-30068-RGS, 2013 WL
1456315, at *5 (D. Mass. Apr. 10, 2013). Some of Adamson's
arguments are requests that "the court . . . second-guess
Walgreens' decision to fire [him] for two instances of poor
customer service," id., an endeavor, as the district court properly
noted, that is not the province of the court, see Mesnick, 950 F.2d
at 825 ("Courts may not sit as super personnel departments,
assessing the merits -- or even the rationality -- of employers'
nondiscriminatory business decisions."). However, we do not
believe that all of his arguments can be so characterized. The rule
that deviations from policy can be evidence of pretext would be
meaningless if such deviations were automatically deemed to be
business judgments immune from the court's scrutiny.

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Walgreens' constructive discipline policy -- rules should be

clearly communicated to employees; employees cannot be expected to

comply with rules that have not been communicated to them; rules

must be enforced in a fair and consistent way -- but relies on a

distorted version of the facts in an attempt to show that these

policies were not followed.

He first says that the rule communicated to him in the

final written warning was that he was required to take customer

returns in a timely fashion, and thus he could be subject to

enhanced discipline only if he again failed to do exactly that.

But the warning communicated more than that. It listed as the

basis of discipline "Poor Customer Service/refused customer

return," and, when explaining the reason for the discipline,

stated, "[c]ustomer service is a great part of our job, not being

helpful to any customer, no matter what the issue[,] is just poor

customer service." Thus, the evidence shows that he was given

clear notice that failure to help a customer was not acceptable,

regardless of whether the customer was trying to return

merchandise, purchase merchandise, or something else altogether.

Adamson also argues that no clear rule was ever

communicated to him regarding how he should handle opening the

store when alone, but this is irrelevant. He was clearly informed

of his responsibility to attend to customers "no matter what the

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issue"; Walgreens did not need to provide him with an additional

rule saying "even when you open the store alone."

In arguing that Walgreens violated its policy to

uniformly enforce its rules, Adamson presents several examples of

younger managerial employees who engaged in misconduct that he

characterizes as more severe than his own but who were subject only

to final written warnings, while he was subject to termination.

"An employer's disparate treatment of employees in response to

behavior that legitimately offends the employer can provide

evidence of discriminatory animus." Vélez, 585 F.3d at 451 (citing

McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 (1976)).

However, the evidence Adamson offers does not suggest

discrimination and actually shows that Walgreens treated them all

alike. Adamson and every supposed comparator received the same

discipline for their first offense -- a final written warning. It

was only when he had a second customer service incident, not even

four months later, that he received the more severe discipline of

termination.6 He has not provided any example of a younger

6
Adamson also states that Benoit admitted that no other
employee was disciplined for customer service issues "despite the
fact that customers had complained about other employees." The
record does not support this claim. Benoit did not say that
customers complained about other employees; he stated that he
"get[s] various complaints on [sic] various different reasons."
Nothing in the record establishes that those complaints were about
employees as opposed to, for example, product availability or
prices. Moreover, Benoit averred in a declaration that, "[b]esides
those involving [Adamson], I did not receive any verbal or written
customer complaints about any customer service issues involving a

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employee who had a second incident of misconduct after having

already received a final written warning. Because his second

infraction renders him materially different from these other

employees, his attempt to show disparate treatment necessarily

fails. See id. ("[I]n order to be probative of discriminatory

animus, a claim of disparate treatment 'must rest on proof that the

proposed analogue is similarly situated in material respects.'"

(quoting Perkins v. Brigham & Women's Hosp., 78 F.3d 747, 752 (1st

Cir. 1996))). Adamson argues that the district court erred in

considering the second incident in determining that these other

employees were not similarly situated to him, but this is

nonsensical. While he admits that the second incident occurred, he

wants it to be ignored, arguing that he was treated differently

than other employees who only received Final Written Warnings after

one incident. This argument fails because Adamson was fired after

two incidents, and there is no basis for the court to ignore that

distinction.

Finally, Adamson contends that Walgreens violated its own

policies in failing to give him a chance to explain himself and to

conduct further investigation once Adamson said that the customer

complaint was untrue. However, the policy that he points to is the

policy for "Counseling (Verbal Warning)," the first, lowest level

of the constructive discipline policy. While it may be good

managerial employee in 2010 or 2011.

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practice to allow employees to justify their conduct before

discipline is imposed, nothing in Walgreens' policies required

Benoit to do so when issuing his termination notice. See Rivera-

Aponte v. Restaurant Metropol #3, Inc., 338 F.3d 9, 11 (1st Cir.

2003) (rejecting argument that failure to give plaintiff an

opportunity to explain his side showed pretext because "[w]hether

a termination decision was wise or done in haste is irrelevant, so

long as the decision was not made with discriminatory animus"

(citing Gray, 792 F.2d at 255)).

In sum, Adamson has failed to provide any evidence that

would raise a triable issue with respect to whether Walgreens

violated its own policies and practices -- much less whether such

violations establish pretext.

Finally, Adamson argues that the district court erred in

resolving disputes regarding alleged preferential treatment given

to two younger managerial employees. He states that Benoit gave

favorable schedules to younger employees and provided training and

promotional opportunities to a younger employee, Julie Martineau,

that were denied to him.7

As to the first claim, Adamson testified in his

deposition that he was required to work six to nine consecutive

days, while the younger employees only had to work three to five

7
Adamson also reprises his claim that he was disciplined more
severely than similarly situated younger employees. We need not
re-address it here.

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consecutive days, before getting a day off. The district court

rightly determined that the record evidence was to the contrary.

Walgreens provided a chart comparing the three employees' schedules

that shows that they each sometimes worked eight, nine, or, in the

case of one of the younger employees, even ten straight days before

having a day off. Although he stated that he "question[ed] the

validity or the accuracy" of this information, he has not produced

any evidence to call it into question.8

As to the second claim, Walgreens admits that Martineau

was identified by multiple people as having promotion potential

and, beginning in November or December of 2010, was provided

additional mentorship as part of Walgreens' promotion process.

Martineau began working at the Ware store several months before

Adamson did. Benoit testified that she did a good job, she knew

the store, and that, having worked with her for some time, he was

comfortable with and trusted her. Walgreens' decision to prepare

Martineau, but not Adamson, for promotion, without more, does not

support an inference of age discrimination, especially in light of

the fact that Adamson was disciplined for an admitted customer

service incident within weeks of transferring to the Ware store.

8
He also states that he usually only got one day off at a
time while the other two employees often got two consecutive days
off. He has cited no record evidence for this assertion, and the
schedule provided by Walgreens shows that he was scheduled to have
a single day off slightly less frequently than the other employees.

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 In sum, being mindful "that courts should exercise

particular caution before granting summary judgment for employers

on such issues as pretext, motive, and intent," Santiago-Ramos v.

Centennial P.R. Wireless Corp., 217 F.3d 46, 54 (1st Cir. 2000)

(citing Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 167 (1st Cir.

1998)), and "viewing the 'aggregate package of proof offered by

[Adamson]' and taking all inferences in [his] favor," Domínguez-

Cruz, 202 F.3d at 431 (quoting Mesnick, 950 F.2d at 824–25), we

conclude that the record is devoid of evidence from which a jury

could infer that Walgreens' proffered reason for terminating

Adamson was pretext designed to disguise age discrimination. We

therefore affirm the district court's grant of summary judgment on

Adamson's ADEA claim.

Because the ADEA and ch. 151B, § 4(1B), analyses are

"substantially similar" in all relevant respects,9 see Bennett v.

Saint-Gobain Corp., 507 F.3d 23, 30 (1st Cir. 2007), this

conclusion is also fatal to his claim under Massachusetts

discrimination law.

9
Massachusetts law deviates from federal law in at least one
respect -- the availability of a "mixed motive" theory, see Diaz
v. Jiten Hotel Mgmt., Inc., 671 F.3d 78, 82–84 (1st Cir. 2012) --
that is not material here. Adamson relies solely on the federal
framework in this appeal.

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 III. Conclusion

For the foregoing reasons, we affirm the district court's

order granting summary judgment in favor of Walgreens. Costs are

awarded to appellees.

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