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Summers v. Walgreen Co.

United States District Court, E.D. Michigan, Southern Division

June 15, 2017

WALGREEN CO., Defendant.

          Elizabeth A. Stafford Magistrate Judge.



         Plaintiff Stephen Summers had a long career as a manager of different stores of Defendant Walgreen Co. But in 2012, his District Manager began pointing out performance issues that Defendant alleges were not resolved. As a result, the District Manager offered Summers the option to take a lower-level position at a different store, retire, or have his employment terminated for performance issues. Summers elected the third option, and shortly thereafter filed this lawsuit for age discrimination pursuant to federal and Michigan law. The Court has already dismissed Summers' federal age discrimination claim, and Defendant now moves for summary judgment on Summers' state-law age discrimination claim. For the reasons that follow, Defendant's motion will be DENIED.


         Plaintiff Stephen Summers was born on February 1, 1948. (R. 22-2, PID 476.) He started his Walgreen Co. career in 1991, working as an Assistant Manager at a store in East Texas. (R. 21-3, PID 169.) He was eventually promoted to Store Manager, and from 1998 on, served as Store Manager at various Walgreens locations. (Id.) In 2008, he became the Store Manager for the Highland, Michigan location. (Id. at PID 173.)


         In Summers' role as Store Manager, his objective was “To improve store sales, profitability, and image through proper merchandising, protection of store assets, the selection, training, and development of team members, and modeling and delivering a distinctive and delightful customer and patient experience.” (R. 21-3, PID 174; R. 22-2, PID 394.) He supervised all store personnel, which included the Assistant Store Manager, Pharmacy Manager, Pharmacists, Shift Leads, and hourly associates. (R. 21-2, PID 161.) In turn, Summers reported to his District Manager, Greg Hansard, who was responsible for oversight of all stores within the district (i.e., all stores within a given area). (Id.) In addition, other area store managers would serve as Community Leaders, performing unannounced walk-throughs of other stores in order to provide feedback. (Id. at PID 162.)


         Summers experienced a few instances of discipline while working at Walgreen Co. In 2004, he was disciplined by loss prevention for consuming candy that was designated for disposal as unwanted. (R. 21-3, PID 175.) In 2009, he was issued a verbal warning by loss prevention for using a UPC code for discounted merchandise, which resulted in the inadvertent alteration of the tax information for those products. (Id.) In 2010, Hansard issued Summers a written warning after Summers told a subordinate that he “looked like he was gay, ” and Hansard issued a verbal warning after Summers revealed to store staff that a fellow employee was pregnant. (R. 21-3, PID 176.) And in 2011, Hansard issued Summers a “final written warning” after Summers grabbed a female subordinate's arm. (R. 21-3, PID 177.)

         Despite this disciplinary history, the parties' briefing focuses more on Summers' performance evaluations and performance improvement plans in the years leading up to his termination. Briefly, the Walgreen performance review system asks District Managers to rate employees in areas falling into three categories: Performance, Development, and Competency. (R. 22-2, PID 441.) The ratings system is as follows: N/A (too new to rate); 1 (not achieving expectations); 2 (partially achieving expectations); 3 (achieving expectations); 4 (exceeding expectations); 5 (outstanding). (Id.) Both the supervisor and the employee fill out the forms; thus, there is a supervisor rating and a self-rating in each report.

         For Summers, issues began to arise in the evaluation period between September 1, 2011 and August 31, 2012. Although Hansard rated Summers an overall 3.3 (achieving expectations), he rated Summers' “Functional Competency” at 2 (partially achieving expectations). (R. 21-3, PID 278.) Hansard commented, “You are very good at empowering your team and delegating to them. Don't be too hands off so that they are not followed up with and given feedback.” (R. 21-3, PID 278.) In addition, Hansard pointed out that store merchandise “at times lacks impact.” (Id.) He instructed Summers to promote the in-store pharmacy in order to “drive the business” and “[k]eep store condition sharp and crisp [at] all times.” (Id.)

         A few months after this evaluation period, on January 3, 2013, the Community Leader for Summers' store completed a Community Leader Evaluation, which he e-mailed to Hansard. A Community Leader is a fellow store manager within the same district who would make scheduled visits and report back to Hansard regarding store conditions. (R. 22-4, PID 719.) This particular evaluation read as follows: “Sales floor a 1. Many holes. . . . No front window signs. Managers spending time in Pharmacy. Scanouts most likely not being performed. Many items from my walk 12-14-12 still not done.” (R. 21-3, PID 285.) The Community Leader returned on January 16, 2013. (Id. at PID 286.) He reported to Hansard the following: “Scanouts” were still not being done, daily notes to employees were not being written, and several expired food items were still on the sales floor. The Community Leader concluded, “This store is missing a ton of sales because of the poor instock condition.” (Id.) Summers testified that he couldn't recall these particular issues-“I considered store issues an ongoing thing. Store issues always happen, and we just worked through them and correct them as we go. I didn't put a lot of . . . emphasis on store issues other than they're always going to happen day in, day out, and you take care of them as you go.” (R. 21-3, PID 179.)

         Nonetheless, on March 3, 2013, Hansard initiated a Performance Improvement Plan. Under “Explanation for Current Discipline, ” Hansard wrote, “Failure to perform job duties. Competencies include People Leadership, Operations Leadership, and Functional Capacity.” (R. 21-3, PID 289, 295.) Additionally,

Steve is given a written warning for failure to perform job duties. Communication with team members including coaching, giving specific information[] and follow up [is] not being addressed. Execution is not meeting expectation by failing to complete notes left by RX supervisor, Community Leader, and District Manager in a timely manner. Steve [is] not aware of what is happening in his pharm[a]cy and is not involved in driving execution on a daily basis. Failure to improve in the above areas will result in further disciplinary action.

(R. 21-3, PID 290.) Among Hansard's goals for Summers were: communicate with pharmacy staff and keep current on pharmacy operations on a daily basis, complete all notes, tasks and direction in a timely manner, and communicate with team personally on a daily basis. (Id.)

         Hansard completed a follow up on May 23, 2013. (Id. at PID 298.) He concluded, “Performance has improved and performance plan was met. If performance falls back and does not meet expectations, final written warning can be issued.” (Id. at PID 299.)

         Summers' next performance review, for the time period between September 1, 2012 and August 31, 2013, resulted in an overall rating of 3.0. (Id. at PID 317.) However, Hansard observed, “Merchandising can be poor at times. . . . Work on backing the ad, you can be complacent when you run out.” (Id. at PID 313.) Hansard also instructed Summers, “Work with your team to develop them. You delegate these tasks often and this is your role with field transformation. You should be working one on one with them to teach them.” (Id. at PID 314.)

         The following year (the period September 1, 2013 to August 31, 2014), Hansard rated Summers an overall 2.8. (Id. at PID 319.) Hansard commented,

Your store condition is often below standard. . . . I don't sense you are walking the store in detail daily and you delegate much of this to others without following up. . . . You empower others well, the missing link is you don't follow up and see how they are doing and give feedback and hold them accountable.

(Id. at PID 323.) But Summers saw his ability to delegate as a positive: “I was probably one of the best delegators in the whole district. You can . . . ask Mr. Hansard . . . how good was I at delegating. I was very good. . . . I always directed on how the store should go or the plans for the week, the day.” (R. 21-3, PID 183.)

         In October 2014, Hansard put Summers on another performance improvement plan. (R. 21-3, PID 332-33.) Under related disciplinary issues, Hansard reported that employees were writing their own notes instead of Summers doing it, there was little direction from Summers, there were issues with store condition, coaching cards were not being completed, an A frame sign at the front of the store had not been removed despite a request to do so months earlier, incidents of short staffing in ...

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