With a Backdated Firing, This Bad Boss Hit a New Low in Age Bias
Cody Berguson had laid the groundwork — he was ready to fire James King.
But Mr. King was unavailable: The 65-year-old pharmacist was caring for his wife, Trudy, who was hospitalized for surgery.
Mr. Berguson, a pharmacy supervisor for health giant CVS, waited a few days. Then he called in Mr. King and, in a two-minute meeting, terminated him.
The kicker: Mr. Berguson backdated the termination to before Trudy King’s surgery, which meant that CVS-supplied insurance no longer covered her hospitalization. The Kings had to pay their medical bills with credit cards.
Cody Berguson is our latest “Bad Boss of the Month.”
Earlier this year, a federal jury found CVS liable for age discrimination and awarded Mr. King more than $1 million in damages — then doubled it by finding that CVS “willfully” violated the Age Discrimination in Employment Act, for a final award of more than $2.1 million.
CVS is fighting the verdict.
At the time of his firing, Mr. King had worked at the CVS Pharmacy in Pell City, Ala., for more than seven years. Although he was 65, he had no intention of retiring: “I wanted to work until I died,” he said at trial, joking that his wife “didn’t want me around the house.”
In reality Mr. King enjoyed working and needed to pay for the education of his daughter, who was still in high school and planned to go to college.
Mr. Berguson, however, seemed to have a different plan.
Soon after Mr. King’s 65th birthday, the CVS supervisor started what Judge Virginia Emerson Hopkins characterized as a “retirement-related inquisition,” repeatedly asking Mr. King pointed questions like “Don’t you have enough money to buy an annuity and retire?”
Mr. Berguson also began what Mr. King called “a constant barrage of unjustified and petty criticisms,” writing up the pharmacist for sins including a “bad attitude.”
Before long, Mr. Berguson and another regional official called Mr. King into a meeting and told the pharmacist he was under investigation for allowing other employees to use his “manager card” for voiding transactions, among other things.
They also faulted him for taking too many smoke breaks — they had reviewed an entire day’s video and tracked his smoking to the minute — and for failing to properly document his purchase of two Diet Pepsis.
According to Mr. King, Mr. Berguson called him a “thief,” a “liar,” and “lazy” — and topped off the encounter by asking, “Now, what about retirement?”
Fearing the worst, Mr. King complained to Mr. Berguson’s boss and also called a company hotline to say he felt like a victim of age discrimination. But CVS did nothing — and things escalated.
One day when Mr. King was not working, a younger pharmacist filled a narcotic drug prescription via the store’s drive-through lane. It was for the wife of a local judge but, based on later investigation, was picked up by an unauthorized person.
A few days later, the irate judge — a longtime customer well-known to CVS staff — arrived at the pharmacy to get his wife’s pain medication. Seeking to make things right, Mr. King gave him replacement pills without forcing the judge to contact a doctor first.
In a prior incident of this type, CVS had sorted out details later. This time, however, Mr. Berguson told Mr. King he had violated state law and suspended the pharmacist without pay. CVS referred the incident to the Alabama State Board of Pharmacy — and reported it to local police.
A stunned Mr. King gave a statement to the pharmacy board investigator; he was told he’d be called for a hearing if the matter went any further. Neither the board nor the police ultimately took any action against him; Mr. King remains a pharmacist in good standing.
In the meantime, however, Mr. Berguson had sent an e-mail to CVS officials: “Considering … this latest issue, one month after meeting with him about the Pepsi issue … I would think it’s time to relieve Jim of his duties as an employee of CVS no matter what the state board decides to do with him.”
CVS approved the termination without waiting for further facts, and Mr. Berguson tried to implement it immediately — only to find Mr. King tending to his hospitalized wife.
As jurors heard, it wasn’t the first case of age discrimination involving Mr. Berguson. That’s “not coincidental,” Mr. King’s lawyers said: Under direction from CVS to hire a quota of newly-minted pharmacists, the supervisor had to create slots for cheaper, younger new hires across a 23-store territory from Auburn to Birmingham.
In a 2013 jury trial against CVS, veteran pharmacist Roger Harris won $800,000 on similar claims of Mr. Berguson's prejudice.
Like Mr. King, Mr. Harris had been subjected to ageist heckling by Mr. Berguson; like Mr. King, he had received multiple write-ups over the six months before being fired; like Mr. King, he was terminated at age 65.
There was no sick wife in the case, but Mr. Harris suffered his own cruel flourish: Mr. Berguson fired him on his 65th birthday.
The Employment Law Group® law firm was not involved in King v. CVS Caremark Corp. We select "Bad Boss" cases to illustrate the continuing relevance of employee protection laws for our newsletter's audience, which includes attorneys and former TELG clients.