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Epley v. Walgreen Co.

United States District Court, E.D. Tennessee

October 9, 2019


          STEGER JUDGE



         Plaintiff, Charlie Gordon Epley, brings this action against his former employer, Walgreens Company, alleging he was terminated from his position as a pharmacist because of his age and disability, in violation of the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Tennessee Human Rights Act, and the Tennessee Disability Act, Before the court is Walgreens' motion for summary judgment [R. 21]. Walgreens contends that Epley cannot establish a claim for disability or age discrimination. Alternatively, Walgreens contends it has presented legitimate, nondiscriminatory reasons for its decision to terminate Epley. Walgreens contends Epley was terminated for repeated violations of its attendance policy. Therefore, Epley cannot establish that he was terminated because of his age or disability. In addition, Walgreens contends Epley's claims brought under the Tennessee Disability Act and the Tennessee Human Rights Act are barred by the applicable statutes of limitations. Nor can Epley meet the requirements under the Americans with Disabilities Act for failure to provide reasonable accommodation because Epley never requested an accommodation. Last, Walgreens contends Epley's retaliation claims fail because he did not engage in any statutorily protected activity until after the decision to terminate his employment had already been made. Therefore, Walgreens asks the court to grant it judgment as a matter of law on all of Epley's claims.

         Epley has responded in opposition to the motion [R. 25]. Epley states he was a pharmacist for Walgreens for more than twenty-five years. When a new pharmacy manager took over operations at the Western Avenue Store in Knoxville, the manager began a campaign to force Epley to retire or go on disability. When that effort failed, the manager developed pretextual reasons for disciplinary action against Epley. The manager terminated Epley's employment for behaviors for which younger, non-disabled employees were not disciplined. Epley contends that there are material issues of fact regarding his termination and that a jury should decide whether Walgreens discriminated against him when it terminated his employment.

         I. Facts

         Epley was hired by Walgreens to work as a pharmacist in 1990. Epley was diagnosed with diabetes in 2006. In 2013, he reduced the number of hours he worked from 40 per week to 32 per week as a result of his health conditions. His shift typically began between 2:00 and 3:00 p.m.

         At the time of his termination, Epley worked in various locations, but considered the store on Western Avenue as his “home store.” Sloane Cleveland became the Pharmacy Manager of the Western Avenue store in February 2013. Epley noted Cleveland's friendships with younger pharmacists and pharmacy techs and her disdain for older workers, especially him.

         Cleveland prepared yearly evaluation forms for pharmacists starting with the 2014 fiscal year. At his evaluation, Epley made specific mention of his health issues impacting the conditions of his employment. Epley states he was required to work after the end of his shifts due to the cutting of pharmacy hours and the turnover rate of untrained staff. Again, on his 2015 evaluation form, Epley pointed out his health issues to Cleveland. And, on his 2016 evaluation, Epley not only referenced his health issues, he specifically mentioned that they affected various activities, including punctuality.

         Epley continued to work at the Western Avenue store and other locations. In September 2015, Epley was recognized for having worked for Walgreens for twenty-five years. Epley states that after the anniversary, Cleveland and many younger pharmacy employees began to make comments about his age. Cleveland also reprimanded him repeatedly for being late to work. Epley contends that prior to Cleveland becoming Pharmacy Manager, Walgreens management did not appear to have any problem with Epley's work performance.

         In March 2016, Cleveland counseled Epley that he would need to be on time for his shifts. Epley told her that arriving for his shift by 3:00 p.m. would be no problem and that he would no longer be late. On June 8, 2016, Cleveland issued a Verbal Warning to Epley for several issues, including “being on time.” Specifically, Epley had been 30 minutes late on May 27, 2016, and 12 minutes late on June 3, 2016. Epley was also counseled regarding staying late (well past the end of his shift), poor attitude, and failure to include an appropriate Improvement Action Plan (IAP) following a medication error. On October 12, 2016, Cleveland issued a Written Warning for Attendance, which documented the following:

Since our last meeting on 6/8/16, Chuck has been late at least twelve times.
Friday 6/24 15 minutes late
Wednesday 6/29 5 minutes late
Saturday 7/9 10 minutes late (to open the pharmacy)
Wednesday 7/13 5 minutes late
Friday 7/15 9 minutes late
Wednesday 7/20 5 minutes late
Wednesday 7/27 10 minutes late
Friday, 8/12 15 minutes late
Wednesday 8/24 15 minutes ...

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