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Nganje v. CVS Rx Services, Inc.

United States District Court, D. Arizona

April 23, 2014

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


RUSSEL HOLLAND, District Judge.

Motion to Dismiss

Defendant moves to dismiss Count II of plaintiff's first amended complaint.[1] This motion is opposed.[2] Oral argument has been 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 was formerly employed as a pharmacist by defendant CVS Rx Services, Inc.[4] On December 20, 2012, plaintiff filed a charge of discrimination with the EEOC.[5] In the charge, plaintiff alleged that she had been "subjected to harassment and [a] hostile work environment by John Cerni", a district manager for defendant.[6] Although plaintiff mentions that Jennifer Richmond was her pharmacy supervisor, plaintiff does not describe any discriminatory conduct by Richmond in the charge.[7] Plaintiff alleged discrimination based on race, color, and national origin.[8]

Plaintiff alleges that on January 22, 2013, she was given "yet another negative coaching and counseling' form" by Brad Dudley[9] and Richmond, "addressing [plaintiff's] alleged performance deficiencies based on hyper-scrutiny and hearsay."[10] Plaintiff alleges that she resigned from her employment with defendant on January 22, 2013 because "[w]ith the unresolved stress, accusations, unwarranted management pressure, and recent medical issues piling up... she felt she had no [other] choice...."[11] Plaintiff also alleges that the coaching she was given on January 22, 2013 was given "in retaliation for the charge of discrimination."[12]

Plaintiff alleges that on January 23, 2013, she "emailed EEOC investigator Tara Crubaugh... to tell Ms. Crubaugh that she had quit her job due [to] her serious concerns for her health [and] the impact CVS's post-charge actions were having upon her."[13] Specifically, plaintiff told Crubaugh that she "walked away yesterday from my job...."[14] In the email, plaintiff mentioned her EEOC charge number, and she listed five reasons for leaving her job: 1) Richmond would not approve sick time for her, 2) she had to work with untrained technicians, 3) she had to work 4 hours beyond the end of her shift on January 6, 4) she had to "clean up" after other employees were sent to help the pharmacy "catch up" on January 19, and 5) she was given the coaching and counseling on January 22.[15] Crubaugh responded, asking plaintiff if she had "officially quit" her job.[16] Plaintiff alleges that she called Crubaugh and informed her that "she [plaintiff] had indeed quit her job for the reasons" stated in the email.[17]

On February 7, 2013, plaintiff emailed Crubaugh again and stated that she wanted the EEOC investigation to continue, rather than engage in mediation, because "I was close to losing my life and the harassment/discrimination continued[.]"[18]

Plaintiff alleges that she "reiterated her position that she had left her job fearing for her health in her written rebuttal to the [d]efendant's position statement sent to the EEOC on June 12, 2013."[19] In her rebuttal, plaintiff stated that she "voluntarily resigned on Jan 22, 2013... because of retaliation, intimidation, harassment, constant disrespect, humiliation and discrimination."[20] She also stated that she was singled out by Cerni regarding loss prevention forms and that this issue "was brought back to retaliate against me months later."[21] In closing, plaintiff stated that Cerni, Richmond, and Dudley "made my job impossible to perform so I informed EEOC Investigator, Tara Crubaugh of the continued discrimination... and I left on Jan 22 (not 23) to save my life."[22]

On August 16, 2013, the EEOC issued a right to sue notice.[23] On November 14, 2013, plaintiff commenced this action. In her complaint, plaintiff asserted Title VII hostile work environment, constructive discharge, and retaliation claims; a § 1981 discrimination claim; and a claim for equitable relief. On December 19, 2013, defendants moved to dismiss plaintiff's complaint in its entirety.

On February 11, 2014, the court granted defendant's motion in part and denied it in part.[24] The court granted the motion as to plaintiff's constructive discharge and retaliation claims because "it appear[ed] that plaintiff has failed to exhaust her administrative remedies as to" these claims.[25] The court gave plaintiff leave to amend as to these claims.[26]

On February 28, 2014, plaintiff filed her amended complaint in which she asserts three causes of action. In her first cause of action, plaintiff asserts Title VII hostile work environment and constructive discharge claims. Plaintiff's second cause of action is a Title VII retaliation claim in which plaintiff alleges that "[d]efendant has retaliated against [her] by issuing her an unwarranted negative employment action in January 2013 after she complained of discrimination in the workplace...."[27] Plaintiff's third cause of action is a § 1981 racial discrimination claim.

Pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, defendant now moves to dismiss plaintiff's Count II, which is her Title VII retaliation claim, because defendant contends that plaintiff has still failed to allege that ...

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