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Nganje v. CVS RX Services, Inc.

United States District Court, D. Arizona

February 11, 2014

ANNETTE J. NGANJE, an individual, Plaintiff,
CVS Rx SERVICES, INC., Defendant.


H. RUSSEL HOLLAND, District Judge.

Motion to Dismiss

Defendant moves to dismiss plaintiff's complaint.[1] This motion is opposed.[2] Oral argument was requested but is not deemed necessary.


Plaintiff is Annette J. Nganje. Plaintiff is black, African in race, and originally from Cameroon, West Africa.[3] Plaintiff began working for defendant CVS Rx Services, Inc. as a pharmacist in June 2005 in Minnesota.[4] In 2007, plaintiff moved to Arizona, where she continued to work for defendant.[5] Plaintiff worked at defendant's Store 01719 in Queen Creek, Arizona.[6] Plaintiff "was the only black pharmacist in the CVS district in which she worked."[7] Jennifer Richmond was plaintiff's Pharmacy Manager; John Cerni was her District Manager; and Don Mott was her Store Manager.[8]

Plaintiff alleges that "Cerni has treated her with hostility not shown to non-black, non-African employees."[9] Plaintiff alleges that Cerni "mishandled [her] immigration paperwork... which... required [her] to take a forced leave of absence for several months...."[10] Plaintiff alleges that in January 2010, Cerni "wrote her up" "for alleged customer service issues based on complete hearsay - ignoring the many customer thank yous and emails communicated to CVS regarding" plaintiff.[11] Plaintiff alleges that Cerni "interview[ed] other Store employees soliciting them for anything negative about [her] that he could use to write her up."[12]

Plaintiff alleges that Cerni "wrote [her] up again in October 2011 for staying too long at work' - a problem perpetuated by [defendant's] refusal to provide trained pharmacy technicians to the Store...."[13] Plaintiff alleges that she was written up a third time by Cerni "in February 2012 for following CVS policy in dealing with a drug-seeking customer."[14] Plaintiff alleges that Cerni "was not present for the situation but simply assumed that [she] was in the wrong and the customer was in the right...."[15] Plaintiff alleges that when she "confronted Cerni with the policy, [he] altered the write-up to be for something else, but left it in place."[16]

Plaintiff alleges that in 2010, Cerni "pulled rank to conduct [her] annual review (instead of her immediate supervisor handling it)... and gave her a negative review."[17] Plaintiff alleges that Cerni "did not conduct the reviews of other employees at the Store."[18]

Plaintiff alleges that in November 2012, Cerni and Richmond gave her a "coaching session" for poor performance and that Cerni required her to stay in the employee lounge after the coaching session, even though she was ill.[19] Plaintiff alleges that when she told Cerni she was ill, he "replied mockingly, I thought you were going to say that and you look fine to me.'"[20] Plaintiff alleges that she "asked to be allowed to go home, but Mr. Cerni informed her it would be job abandonment' if she left."[21] Plaintiff alleges that she "even asked Mr. Cerni to fire her so she could just leave" but he "said no, stay in the lounge until you are ready to return to work.'"[22] Plaintiff alleges that Cerni "would not even allow [her] to leave to go to the pharmacy to obtain her feminine products from her purse to deal with her monthly period."[23] Plaintiff alleges that when she "made this request, Mr. Cerni said, what makes you think I will let you do that?"[24] Plaintiff alleges that after sitting in the employee lounge for one hour, she fainted and "[t]he front store supervisor found and awakened [her]."[25] Plaintiff alleges that she then "called 911 and the ambulance came and took [her] to the hospital where she was diagnosed with dehydration, vomiting, and hypokalemia...."[26]

Plaintiff alleges that Cerni also "accused [her] in front of staff and customers for an alleged disarray' of medications - never bothering to inquire as to whether [she] was responsible for the problem - when in fact the practice of the Store made that the problem of the previous shift."[27] Plaintiff alleges that "Cerni's accusations, tone of voice, and actions were so hostile that [she] felt compelled to call the police in fear for her safety."[28]

Plaintiff alleges that when she "directed Mr. Cerni to performance problems regarding the inexperienced Pharmacist in Charge who was creating some of the issues for which Mr. Cerni was blaming [her], Mr. Cerni warned her (in Ms. Richmond's presence): watch what you say, I trained her" and refused to follow up on [plaintiff's] complaint."[29] Plaintiff also alleges that "Cerni did not pay [her] an end of year bonus in 2012 despite paying bonuses to the other Store employees."[30]

Plaintiff alleges that "when the pharmacy became extremely crowded, other (white) pharmacists were allowed, upon their request, to close the drive-through window at the Store to deal with the crowd inside. CVS management denied [her] request to close the drive-through every time she asked."[31] Plaintiff further alleges that on January 12, 2013, when she "arrived at the Store as a customer to fill her husband's prescription... [a] white pharmacist was working that day, and the drive through window was closed...."[32]

On December 20, 2012, plaintiff filed a charge of discrimination with the EEOC. In the charge, plaintiff alleges that she was discriminated against based on race, color, gender, and national origin.[33] Plaintiff alleged that she had been

subjected to harassment and hostile work environment by John Cerni. Examples include, but are not limited to, being intimi-dated and disrespected; being written up; he interfered with my annual evaluation; he refused to give me a pay raise for 2012; he threatened to fire me; held me in the breakroom against my will when I was ill and told me it would be considered job abandon-ment if I left ...

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