Collier v. Harland Clarke Corp.

Citation: 379 F. Supp. 3d 1191Docket: Case No.: 2:15-cv-01006-MHH

Court: District Court, N.D. Alabama; March 31, 2019; Federal District Court

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Plaintiff Robert Collier, Jr. alleges that his former employer, Harland Clarke Corp., unlawfully terminated his employment and retaliated against him due to his age and disability, violating the Age Discrimination in Employment Act, the Alabama Age Discrimination in Employment Act, and the Americans With Disabilities Act. Collier also claims invasion of privacy under state law. Harland Clarke has filed a motion for summary judgment, asserting that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Additionally, Collier has moved to compel the production of documents withheld by Harland Clarke on grounds of attorney-client privilege and work-product doctrine, while Harland Clarke seeks to quash subpoenas issued by Collier to various banks and individuals.

The opinion outlines the summary judgment standard, stating that summary judgment is warranted when there is no genuine dispute over material facts, and emphasizes that the non-moving party must cite specific evidence to challenge the motion. The court notes that self-serving statements from litigants can be considered, as jurors determine credibility, and that evidence must be viewed in the light most favorable to the non-moving party, in this case, Mr. Collier. The court will address all motions related to the case in its opinion.

Harland Clarke, a provider of products and services to financial institutions, has experienced various ownership changes since its inception. Mr. Collier was hired by Interchecks, a predecessor of Harland Clarke, in 1982 and remained through its acquisitions and mergers. After leaving for a competitor in 2003, he was rehired in 2004 as Director of Partnership Development II-MICR Express within Harland Clarke's Forms Division, which oversees paper products like checks and bank receipts. As the Forms Director, Mr. Collier coordinated sales activities and contributed to the development of a new commercial print product line, Print Solutions, launched shortly before his termination.

In 2014, Mr. Collier began reporting to Steve Moyer, who led a restructuring of the Forms Division and established a new sales group targeting large community banks and credit unions. Two new director positions were created for this group, which Mr. Collier did not apply for. Moyer's strategy for expanding commercial print was encapsulated in a PowerPoint presentation, which Mr. Collier helped create. External consultation was provided by David Newton, a print broker, to aid in aligning the market with vendor capabilities.

Participants in the Print Solutions initiative included individuals from American Litho and potentially Deborah Corwin from Harland Clarke's Marketing Department. Mr. Cox and Mr. Thompson, hired to lead the Key Markets Group, were not part of the Print Solutions team and their prior experience with commercial print products is unclear. The Print Solutions product was launched by the Key Markets Group in mid-2014, coinciding with the Forms Division's entry into the commercial print market.

Mr. Collier, a member of the Print Solutions team, supported the sale of commercial print products from the Forms Division but raised concerns regarding the use of marketing credits for these sales. He created a two-year strategic plan that integrated commercial print into the Forms Division's goals. A meeting in Birmingham in fall 2014 aimed to enhance the Print Solutions team's understanding of commercial print; Mr. Collier notably used a customized wooden cane during this meeting.

Subsequently, Mr. Moyer decided to eliminate Mr. Collier's position, a decision discussed with Mr. Ebrey. In November 2014, Mr. Moyer completed a Reduction in Force (RIF) Analysis Worksheet regarding Mr. Collier, with input from Human Resources. Mr. Moyer primarily provided the information, while Ms. Ellison handled the typing. The worksheet indicated Mr. Collier had no Equal Employment Opportunity Commission (EEOC) claims and had served for ten years in his role.

Three special circumstances cited for the RIF included Mr. Collier's expertise being in Forms rather than Commercial Print, his singular position in the Director Sales II role, and his lack of direct business relationships with significant clients. Mr. Moyer justified the RIF by citing a continuous decline in the MICR Form business and the establishment of Print Solutions to foster growth in commercial print. 

Harland Clarke did not have a formal RIF policy, yet labeled Mr. Collier’s termination as such, despite it being a one-person RIF. Mr. Collier contended that his termination was influenced by Mr. Moyer's observation of him using a cane, which he had begun using regularly after surgeries in 2012 and 2014. He also utilized short-term disability leave under Harland Clarke's disability plan.

Remarks about Mr. Collier's health were frequently made by Mr. Moyer and other colleagues prior to the "reduction in force" (RIF), including inquiries about his well-being and back condition. Debra Corwin, Vice President of Marketing, indicated a desire to "get rid" of Mr. Collier, a comment relayed to him by Tom Jones, who learned it from two other employees. At a December 2014 conference, several individuals, including Mr. Ebrey, Dan Singleton, and Ms. Corwin, commented on Mr. Collier's apparent struggles due to his back surgery. Sonia Ellison also asked if he regretted not taking additional leave. Mr. Moyer stated that he decided to eliminate Mr. Collier's position due to declining sales in the Forms Division, attributing this decline to a shift towards digital transactions in the banking industry. However, records indicate that the Forms Division's revenue actually increased by 37% between 2013 and 2014. Mr. Moyer initially planned to inform Mr. Collier of his termination on December 19, 2014, with an effective date of December 31, 2014, but this was delayed due to holiday scheduling and the unexpected termination of another director. On January 9, 2015, Mr. Moyer and Ms. Ellison formally communicated that Mr. Collier’s position would be eliminated, effective January 30, 2015, coinciding with Mr. Collier securing a five-year contract with SunTrust Bank. At the time of termination, Mr. Collier was 61 years old.

Mr. Collier inquired about transitioning to a sales position to continue selling forms and commercial print, but Mr. Moyer informed him that no such position was available. Ms. Ellison indicated that Mr. Collier would be considered for any open positions for which he applied. During a call on January 9, 2015, neither Mr. Moyer nor Ms. Ellison disclosed the availability of a director position in the Key Markets Group. Mr. Moyer testified that Harland Clarke posted this vacancy after notifying Mr. Collier of the reduction in force, while he and Ms. Ellison stated that the position had not been advertised at that time. 

Mr. Moyer later approved the job posting for the director role, which was advertised internally and externally in December 2014, with Gregory Gould interviewing candidates and recommending Larry Feinberg for the position. Although the hire date for Mr. Feinberg is not documented, a vacancy existed when Mr. Moyer communicated the reduction in force to Mr. Collier. Mr. Moyer claimed he had no reason to inform Mr. Collier about the vacant position, as the posting system was the standard communication method for such roles. 

Despite Harland Clarke's assertion that the director vacancy was posted, there is no evidence provided to support this, nor is there a witness identified who executed the posting. Following his termination, Mr. Collier sought short-term disability benefits from Unum, the disability plan administrator, and initially was informed by Ms. Ellison that he was not eligible for benefits due to the elimination of his position. However, after further discussions with Ms. Flanders, Ms. Ellison later confirmed Mr. Collier's eligibility for disability benefits in a January 30, 2015 email.

Ms. Ellison mailed a Benefits Summary Sheet to Mr. Collier on January 10, 2015, which outlined severance compensation of $60,823.18, subject to deductions, and included accrued, unused PTO hours. The document noted that compensation would be paid after the return of a signed separation agreement and that unemployment compensation would be determined by the State Workforce Commission. It emphasized confidentiality and advised that the separation document was the authoritative source for specific information. Ms. Flanders testified that the information was incorrect, as Mr. Collier had received over two weeks' notice of termination, which meant he would not have received severance in his final pay. 

On January 25, 2015, Mr. Collier filed a charge of age and disability discrimination with the EEOC, noting his employment history and health issues, including back surgeries and the use of a walking stick. He stated that he had never been disciplined and had consistently received favorable evaluations. Although he did not allege retaliation in his charge, he mentioned requests for disability benefits and an extension of his termination date, which were denied. He claimed he was informed he could receive six months of severance if he signed a release waiving his rights to file discrimination charges.

While Mr. Collier's EEOC charge was pending, Ms. Ellison and Melissa Sandoval, Harland Clarke's senior benefits analyst, communicated with Unum regarding Mr. Collier's disability benefits claim. Ms. Ellison stated her involvement was to check the claim's status as requested by Legal. She emphasized the urgency due to the pending EEOC claim. During a conference call on February 12, 2015, corporate counsel Danielle Hargrove and Ms. Ellison pressed Unum representative Chris Gillogly for a timely decision, questioning delays and the need for additional medical information despite Mr. Collier's physician indicating he could not work. Gillogly clarified that Unum would approve the claim if evidence supported Mr. Collier's limitations; otherwise, an adverse decision would be proposed, though Harland Clarke could choose to approve it regardless. Despite the option to approve benefits without evaluating disability due to the self-insured nature of the short-term disability plan, Gillogly advised against this, citing potential negative impacts should the claim transition to long-term disability. Ultimately, Unum denied Mr. Collier's claim, and Harland Clarke did not override this decision. On February 17, 2015, Mr. Collier filed a claim for social security disability benefits, which he later withdrew but refiled around March 1, 2015. The Social Security Administration awarded him benefits on March 23, 2015, with an amended onset date of April 7, 2015. After Mr. Collier's termination, his position was not filled, and his responsibilities were redistributed among the directors of the Key Markets Group, to whom his former employees began reporting. Mr. Collier did not reapply for a position at Harland Clarke.

Mr. Collier reported challenges in finding suitable employment after his termination from Harland Clarke due to a non-compete agreement that restricted his job options and because the company falsely communicated to his contacts that he had retired, leading them to consider him "out of the market." He claims Harland Clarke discriminated against him based on age and disability by wrongfully labeling his termination as a "reduction in force" and not reinstating him or offering him another position. The legal framework for his discrimination claims, including the Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA), and Alabama Age Discrimination in Employment Act (AADEA), follows the McDonnell Douglas burden-shifting model. Under the ADA, it is unlawful for employers to discriminate against qualified individuals based on disability. To establish a prima facie case under the ADA, a plaintiff must demonstrate that they had a disability, were qualified for their position, and faced discrimination due to that disability. The definition of disability encompasses substantial limitations on major life activities, a history of such impairments, or being perceived as having such impairments. The Eleventh Circuit allows for circumstantial evidence to establish discriminatory intent, stating that a convincing mosaic of such evidence can support a jury's inference of discrimination.

To establish a 'regarded as' disabled claim under the ADA, a plaintiff must demonstrate that they experienced an action prohibited by the ADA due to an actual or perceived physical or mental impairment. The ADA Amendments Act of 2008 broadened the definition of disability, allowing for a person to be regarded as having an impairment regardless of its impact on major life activities. The Eleventh Circuit has indicated that minimal analysis is necessary to determine if an impairment qualifies as a disability under the amended ADA.

In the case at hand, Mr. Collier claims that Harland Clarke perceived him as disabled after a supervisor noticed him using a cane. He compares his situation to a plaintiff in a previous case (St. Joseph's), who had a qualifying impairment that substantially limited her ability to walk. The court in that case affirmed that substantial limitations in walking constituted a disability. Mr. Collier notes that he was moving slowly after back surgery and that inquiries were made regarding his condition, suggesting that he was perceived as struggling.

However, the court expressed skepticism about whether simply being seen with a cane or assistive device is enough to fulfill the 'regarded as' definition. Nonetheless, the combination of observations about Mr. Collier's mobility and inquiries about his back condition could lead a jury to determine that Harland Clarke regarded him as disabled. Given the Eleventh Circuit's guidance on minimal analysis for disability determination, the court concluded that Mr. Collier met the first element of his prima facie case.

Regarding Mr. Collier's qualifications, Harland Clarke conceded that he was otherwise qualified for his position at the time of termination. A "qualified individual" is defined as someone who can perform essential job functions with or without reasonable accommodation. However, Harland Clarke argued that Mr. Collier was no longer able to perform his job's essential functions as he had been deemed disabled by the Social Security Administration in February 2015.

Mr. Collier acknowledges his inability to perform job duties due to supranuclear palsy but contends that this does not legally establish he was incapable of working after February 11, 2015, the last day of his employment with Harland Clarke. The court notes that both parties agree Mr. Collier was able to perform essential job functions as of January 2015, prior to his termination. To support his ADA discrimination claim, Mr. Collier must demonstrate that his disability was a factor in his termination. He admits to lacking direct evidence of discriminatory intent and relies on circumstantial evidence instead. He claims that Mr. Moyer's decision to terminate him was influenced by observations of him using a cane during a meeting and remarks made by coworkers regarding his back condition. These remarks include inquiries about his well-being and comments indicating he was struggling to move. However, the court finds that the statements made by coworkers do not sufficiently indicate discriminatory intent, as they are considered stray remarks unrelated to the termination decision. Although Ms. Corwin's suggestion to "get rid" of Mr. Collier is concerning, it lacks a direct connection to his disability, weakening its relevance as circumstantial evidence. Ultimately, the lack of sufficient evidence to suggest that his termination was due to his disability leads to the conclusion that Mr. Collier's ADA claim fails as a matter of law.

An ADA plaintiff can meet the "regarded as" disability standard if an employer observes them with a cane; however, merely seeing an employee with a cane and subsequently making an adverse employment decision does not suffice to infer discriminatory intent without additional evidence. The Court notes that while circumstances surrounding Mr. Collier's termination suggest Harland Clarke aimed to eliminate his position and was not entirely transparent in its rationale, there is insufficient evidence linking these actions to Mr. Collier's perceived disability. The unusual nature of a reduction in force (RIF) involving only one employee raises questions about the company's motives, yet inconsistencies in the explanations provided do not establish a connection to Mr. Collier's back surgery or cane usage. Thus, the record indicates a harsh business decision, but not one driven by discriminatory intent. Harland Clarke is entitled to judgment on Mr. Collier's ADA claim due to a lack of evidence showing unlawful discriminatory motive. 

Similarly, Mr. Collier’s ADEA claim is also unsubstantiated. He suggests that Mr. Moyer viewed him as "too old" or "too disabled" after seeing him with a cane, but fails to provide evidence that his termination or lack of alternatives was age-related. Mr. Moyer's decision to eliminate the Forms Director position was based on a business strategy responding to declining revenue, asserting that Mr. Collier's skills were not aligned with the company's new focus. Although forms sales were declining, they still contributed revenue, but this does not undermine the rationale for the reorganization.

Mr. Collier asserts that he contributed to the development of the Print Solutions plan for the Key Markets Group, trained the Forms Division on commercial print, and created a two-year plan to integrate commercial print sales into the Forms Division. However, he fails to establish discriminatory intent by merely disputing Mr. Moyer's rationale for the decision regarding a reduction in force (RIF). Legal precedent indicates that disputing an employer's reasoning does not suffice to prove discrimination. Collier has not presented evidence indicating that Harland Clarke offered inconsistent reasons for the 2014 RIF or that age-related comments were made about him or other employees. There is no indication of age-based discrimination against employees over 50 or a trend of hiring younger employees in the Forms Division. Consequently, his Age Discrimination in Employment Act (ADEA) claim lacks merit.

In terms of retaliation claims under the Americans with Disabilities Act (ADA) and ADEA, Collier argues that Harland Clarke retaliated against him by denying his short-term disability benefits. Both claims are analyzed collectively since they rely on the same evidence. The court emphasizes the necessity of exhausting administrative remedies by filing a charge with the Equal Employment Opportunity Commission (EEOC) before pursuing litigation under the ADA or ADEA. This process is crucial for triggering an investigation and notifying the employer of the allegations. A judicial complaint is confined to the scope of the EEOC investigation stemming from the charge, but courts may allow claims that clarify or focus on the original allegations, provided they do not introduce new acts of discrimination. Allegations of adverse employment actions occurring after filing an EEOC charge may relate back to the original complaint without necessitating a new EEOC filing.

A plaintiff is not required to exhaust administrative remedies before filing a retaliation claim related to a prior EEOC charge, as the district court can exercise ancillary jurisdiction over such claims. Mr. Collier's EEOC charge, filed on January 27, 2015, did not include a retaliation claim because the alleged retaliatory actions occurred after this date. Specifically, he claims he was terminated around February 9, 2015, with severance contingent on waiving his right to file an EEOC charge. Collier argues that this condition was retaliatory in nature.

Although Mr. Collier's claims indicate that Harland Clarke’s position on severance altered post-filing of his EEOC charge, he failed to include his severance and short-term disability claims in the retaliation section of his June 15, 2015 complaint. His complaint alleges discrimination under the ADEA and ADA, focusing on termination and lack of job consideration. The Eleventh Circuit has ruled that a plaintiff cannot amend their complaint through arguments in a brief opposing summary judgment, requiring a formal motion to amend.

Since Mr. Collier did not seek permission to amend before submitting his summary judgment brief, his retaliation claims are procedurally barred. Even if they were considered, his arguments regarding retaliation related to short-term disability, particularly involving the involvement of legal counsel in his application, would not be convincing.

Harland Clarke's attorney participated in discussions regarding Mr. Collier's short-term disability claim, but there is no evidence suggesting that the attorney influenced the denial of benefits. During a conference call attended by corporate counsel and a Unum representative, the delay in deciding Mr. Collier's claim was discussed, with counsel expressing frustration over the lack of a timely decision despite medical evidence of Mr. Collier's inability to work. Unum, which administers Harland Clarke's disability benefits, ultimately recommended denying the claim. Although Harland Clarke had the authority to override Unum's decision, evidence shows that it did not deviate from its usual practice and accepted Unum's recommendation, believing Unum to be better positioned for disability determinations. 

Regarding severance pay, Harland Clarke included inaccurate information in a summary sheet sent to Mr. Collier, but the sheet contained a disclaimer clearly stating that it was subject to change and should not be the sole source of information. There is no evidence that this inaccuracy was retaliatory in nature against Mr. Collier for filing an EEOC charge. Thus, Harland Clarke is entitled to judgment in its favor on the retaliation claim.

To establish a claim for invasion of privacy under Alabama law, Mr. Collier must prove that Harland Clarke (1) intruded into his solitude or seclusion, (2) disclosed private information that violates ordinary decency, (3) placed him in a false public position, or (4) appropriated an aspect of his personality for public use, as outlined in Butler v. Town of Argo. Invasion of privacy is defined as an intentional wrongful intrusion into private activities causing mental suffering, humiliation, or shame, referencing Ex parte Bole.

Mr. Collier alleges that Harland Clarke violated his privacy by communicating with Unum about his short-term disability benefits claim, claiming that Harland Clarke's attorney solicited medical information and shared it with the EEOC. However, the court reviewed relevant communications and found no evidence of discrediting Mr. Collier; rather, the communications aimed to expedite his disability application. The interactions did not constitute objectionable prying, as confirmed by Hogin v. Cottingham.

Additionally, Mr. Collier claims that Harland Clarke incorrectly informed former customers that he had retired, which he argues placed him in a false light. The Alabama Supreme Court defines "false light" invasion of privacy as publicizing a matter that portrays someone in a false light, which is highly offensive and done with knowledge of its falsity. Mr. Collier failed to provide evidence that Harland Clarke disseminated false information regarding his employment status. The deposition of Tom Jones cited by Mr. Collier does not support his claims, as Jones did not recall how he learned of Mr. Collier's departure from the company and did not mention retirement.

Harland Clarke is granted summary judgment on Mr. Collier's invasion of privacy claim due to a lack of evidence showing that information about Mr. Collier's retirement was publicly disclosed or deemed highly offensive. Mr. Collier's motion to compel the production of documents related to the elimination of his Sales Director position was denied as moot, as most requested documents were deemed privileged communications, and their review did not alter the Court's analysis of Mr. Collier's claims. Additionally, Harland Clarke's motion to quash Mr. Collier's non-party subpoenas was granted because the subpoenas were issued too close to the discovery deadline, preventing reasonable compliance, and Mr. Collier did not respond to the motion or provide justification for the timing. The Court concluded by entering judgment in favor of Harland Clarke on Mr. Collier's discrimination and retaliation claims, granting the motion to quash, denying the motion to compel, and allowing Mr. Collier to voluntarily dismiss certain state law claims. Counts related to harassment or hostile work environment were also dismissed. A final judgment will be issued following this memorandum opinion.

Mr. Collier's complaint included state law claims for intentional infliction of emotional distress, interference with business or contractual relations, and negligent or wanton hiring, training, supervision, and retention. He expressed a desire to voluntarily dismiss these claims in response to Harland Clarke's summary judgment motion, which the Court will grant. Harland Clarke contends that Mr. Collier has also asserted claims for discrimination and harassment under the ADEA and ADA, for which they have moved for summary judgment. Mr. Collier clarified that he did not intend to pursue stand-alone harassment or hostile work environment claims, leading to their dismissal as well.

The document outlines the roles of two Key Markets Group directors, one managing Texas and neighboring states and the other overseeing the East Coast from Washington D.C. Marketing credits, which are funds set aside in payment agreements with banks, are discussed, indicating that they could be utilized strategically by banks in agreements with Harland Clarke. Mr. Collier's inquiries about the applicability of the 2015 marketing credits policy and discrepancies in Harland Clarke's financial reporting are noted.

Mr. Moyer's testimony revealed an accounting change that affected financial reporting, while Johnna Massie provided revised financial reports for the Forms Division, highlighting errors. The decision to terminate Mr. Collier's employment was influenced by relevant financial information, with his effective termination date extended from January 30, 2015, to February 9, 2015. Testimonies suggest this extension may have been to allow Mr. Collier to pursue short-term disability claims. Mr. Collier's last day of work was January 30, 2015, but his last payroll date was February 9, 2015. His physician recommended retirement due to inability to return to work, and he was later diagnosed with Parkinson's Disease in July 2015.

Mr. Collier's initial diagnosis of Parkinson's Disease was later corrected to progressive supranuclear palsy. Arlene Gaitan, Director of Health and Wellness at Harland Clarke, acknowledged that while the company could override Unum's denial of short-term disability, they chose not to do so based on Unum's recommendation, despite wanting to assist Mr. Collier as a valued long-term employee. Gaitan indicated that Harland Clarke had not overturned Unum's decisions for other employees. 

The Alabama Age Discrimination in Employment Act (AADEA) protects individuals over 40 from age discrimination, mirroring the federal Age Discrimination in Employment Act (ADEA). The court noted uncertainty about the permissibility of simultaneously pursuing claims under both acts in this circuit but indicated that plaintiffs must choose one. In this case, as Mr. Collier filed under the ADEA, his AADEA claim was deemed duplicative and thus could not proceed. 

The court also clarified that it would not decide on simultaneous claims under both statutes since Mr. Collier's age discrimination claim failed under either theory. Evidence showed that Mr. Moyer would have terminated Mr. Collier by December 31, 2014, had there not been organizational upheaval. Mr. Collier did not seek new positions at Harland Clarke post-termination, citing a lack of suitable roles. Although the court assumed he would have applied for a director position if aware of it, it rejected the notion that using assistive devices equates to being "old." Furthermore, it was acknowledged that Mr. Collier played a significant role in developing the Print Solutions plan and had created a two-year plan for merging sales into the forms division.

Mr. Collier references specific materials from his deposition and a document (Doc. 46-20) but these do not include any information regarding a "two-year plan" he allegedly created. The record shows that Mr. Collier participated in a Print Solutions meeting in August 2014, where Mr. Moyer confirmed the initiation of education on commercial print. Mr. Collier acknowledged that the Forms Division began selling commercial print six months prior to his termination. While some of Mr. Collier's claims about his experience in commercial print lack supporting evidence, the Court accepts these arguments for the purpose of its decision. The Court notes that the parties extensively debate the viability of pursuing an age discrimination claim alongside other employment discrimination claims, but finds it unnecessary to address this issue. Additionally, the Eleventh Circuit has adopted as binding precedent all decisions from the Fifth Circuit issued before October 1, 1981. Although Mr. Collier asserts receiving numerous congratulatory emails and cards regarding his retirement, the record reveals only one email and one card from a single client. Lastly, the discovery deadline was extended to November 14, 2017.