United States District Court, D. Arizona
ANNETTE J. NGANJE, Plaintiff,
CVS RX SERVICES, INC., Defendant.
MOTION FOR SUMMARY JUDGMENT
H. RUSSEL HOLLAND, District Judge.
Defendant moves for summary judgment. This motion is opposed. Oral argument was requested and has been heard.
Plaintiff is Annette J. Nganje. Defendant is CVS Rx Services, Inc.
Plaintiff is "black in color, African in race, and is originally from Cameroon, West Africa." Plaintiff began working for defendant as a pharmacist in 2005. Plaintiff worked for defendant in Minnesota until 2007, at which time she and her family moved to Arizona. Plaintiff continued to work for defendant as a full-time Staff Pharmacist after moving to Arizona. Plaintiff primarily work at Store No. 1719, which is in Queen Creek, Arizona. Plaintiff believes that she was the only black, African pharmacist in the district in which she worked in Arizona.
John Cerni, who at the time was a Pharmacy Supervisor, participated in the decision to approve plaintiff's transfer to Arizona. Cerni was aware of plaintiff's race, color and national origin at that time. Plaintiff testified that in the fall of 2008, she had to take an unpaid leave of absence from work because Cerni mishandled her immigration documents.
On January 6, 2010, plaintiff was given a "Last and Final Written Coaching and Counseling" for poor customer service and inappropriate behavior by her supervisor, Ray Umbarger. This discipline was based on a January 6, 2010 complaint from a customer about plaintiff's "lack of customer service, " a January 3, 2010 complaint from a customer that plaintiff "was very rude, " a December 29, 2009, complaint from a customer about plaintiff's unwillingness to help him, and a December 27, 2009 complaint from a customer about plaintiff being "very rude." Plaintiff refused to sign the coaching and counseling form.
On March 2, 2010, plaintiff received a compliment from a customer who called her a "very kind lady." On March 3, 2010, Umbarger sent plaintiff an email thanking her for "everything she does" after a customer reported that plaintiff "was just wonderful to us. She was so friendly, kind, polite and helpful."
On May 4, 2010, Umbarger received an email compliment from a customer about how "amazing" the pharmacy staff was, especially "Chris, Rachel, and RPH Annette." On May 10, 2010, another customer called to compliment the pharmacy staff, including plaintiff, calling them "wonderful."
On May 21, 2010, Sandra Finn, the pharmacist in charge of Store 5891, completed a "Floater Evaluation" after plaintiff worked in her store the day before. Finn wrote that "Rx's left in que [sic], not completed. [T]ransfer RX left, which was received in afternoon. #3 schedule... Rx's left for next day, received in afternoon. [T]echs claim she talks too much. [T]oo much talk, no action. Irritating to co-workers." Finn indicated that she would not want plaintiff as a permanent employee in her store nor would she want plaintiff to fill in at her store again.
On July 8, 2010, Umbarger sent plaintiff an email regarding a compliment from a customer who said she was "wonderful." On July 12, 2010, plaintiff received another compliment from a customer who remarked on her pleasant experience and said that plaintiff was "very informative." On August 3, 2010, Umbarger emailed plaintiff regarding a compliment from a customer who stated that plaintiff "does an excellent superb job."
On September 28, 2010, Umbarger emailed plaintiff regarding a complaint from the office manager at a doctor's office who said that plaintiff refused to talk to her and then screamed at her over the phone.
On October 1, 2011, Umbarger attempted to give plaintiff a "Last and Final Coaching and Counseling" for again being insubordinate and argumentative with a Front-Store associate. Umbarger wrote that Dan Mott, the store manager, had attempted to inform plaintiff about a new requirement for issuing gift cards and plaintiff "proceeded to be insubordinate and argumentative in front of Technician as well as customer(s)...." Umbarger avers that plaintiff "told Mott that he needed her permission to enter the pharmacy" and that when he "approached [p]laintiff to discuss the incident with her, she began yelling and screaming at me and refused to let me speak to her[.]" Umbarger told plaintiff "that th[e] meeting was over and that she must go home because she was suspended until a decision could be made with regard to her continued employment." Plaintiff testified that she was issuing gift cards when a customer transferred a prescription, which was according to CVS policy, and that she would issue gift cards "if a customer was angry" but that she "made sure I told the supervisor or my PIC before I issued any gift card."
On October 5, 2011, Umbarger gave plaintiff an "Initial Coaching and Counseling" for consistently opening the pharmacy late; for falling behind on her work load and thus having to stay late, which forced the front-store manager/supervisor to also have to stay late; and for continuing to issue gift cards to customers "as an offset of her slow service."
Plaintiff testified that she got behind on her work because she had inadequate help, either in the form of too few pharmacy technicians or pharmacy technicians who had no medical background. Plaintiff claims that she would request additional technicians but defendant would refuse to provide technicians, even though other pharmacists were being given technicians upon request. Plaintiff also makes much of the fact that defendant has "admit[ted] that [she] worked with pharmacy technicians who were not yet certified by the Arizona State Board of Pharmacy in 2013." But, in making that admission, defendant explained "that pharmacy technicians are not required to become certified by the Arizona State Board of Pharmacy upon commencing employment and, instead, have two years, sometimes up to four years, to obtain certification."
On March 2, 2012, Cerni gave plaintiff a "Coaching and Counseling" for her poor handling of a customer and for giving improper wait times for transfer prescriptions. Plaintiff did not sign the coaching because she was "not comfortable" doing so "because of the information in" it. Plaintiff testified that this incident involved a drug seeking customer and that she followed CVS policy for dealing with such a customer,  which allows her to exercise her "professional and clinical judgment" when deciding whether to fill a prescription. Plaintiff contends that Cerni changed the Coaching and Counseling form after she pointed this policy out to him because he handwrote on the form that he was "concerned with Annette's inability to resolve the customer's issue not professional judgment." Plaintiff also contends that Cerni added previous unrelated disciplinary actions to the discipline, did not speak to her to get her side of the story before issuing the discipline, and failed to consider the pharmacy tech's version of what happened, which supported her contention that the customer was drug seeking.
On April 23, 2012, Jennifer Vucson, plaintiff's pharmacy supervisor, sent plaintiff an email sharing a "great compliment" that plaintiff had received from a customer.
On or around May 1, 2012, Cerni and Vucson gave plaintiff her 2012 Performance review. Vucson rated plaintiff's performance as "needs improvement" and wrote that plaintiff "needs to improve on her communication skills with her team and front store team. She has a passion for customers; but the way she communicates with her team and expectations of front store doesn't correspond to the expectations of other team members." Although Cerni "did not conduct the reviews of other employees at the Store[, ]" Cerni and Vucson aver that plaintiff's performance review was not the only one Cerni attended that spring.
On November 12, 2012, a complaint was received from a pharmacy technician about plaintiff, in which the technician "alleged that [p]laintiff was creating an extremely hostile environment' by making negative comments, yelling, and making fun of him in front of customers. He also said that [p]laintiff is always saying that she can't wait until the day that she is fired or leaves [CVS].'"
On November 14, 2012, Cerni and Vucson planned to coach and counsel plaintiff about her "ongoing performance issues[.]" Vucson "prepared three Coaching and Counseling documents to deliver to" plaintiff that addressed "her: 1) inappropriate behavior toward her co-workers which created a difficult working environment; 2) failure to perform the minimum requirements of her position to run the pharmacy; and 3) failure to properly handle controlled substances in violation of CVS and regulatory policy." Cerni avers that "[a]t the beginning of the meeting, [p]laintiff advised Vucson and I that she was sick and she went to restroom." Cerni avers that when plaintiff returned, they counseled plaintiff but she refused to sign the forms and that she asked to be allowed to go home and that she also asked to be fired. Cerni contends that plaintiff stated "why don't you just fire me... you know you want to.... are you chicken?" Plaintiff admits that she did talk about wanting to be fired but she denies that she asked Cerni whether he was "too chicken" to fire her. Cerni did tell plaintiff it would be job abandonment if she left the coaching and counseling session when it appeared that she was well enough to continue. And Vucson confirmed that when plaintiff indicated that she felt sick at the end of the coaching session and that she wanted to go home, Cerni "replied that she did not appear to be sick enough to leave[.]" Vucson avers that before she and Cerni left the store, she "confirmed with another pharmacist that she could cover [p]laintiff's shift if [p]laintiff remained to[o] ill to work...." Plaintiff passed out in the employee lounge and after being awakened by the front store supervisor, she called 911 and was taken to the hospital by ambulance. Cerni and Vucson received voicemail messages from plaintiff's husband "stating that [they] had locked Annette in the office and that she was in the hospital in hypertensive crisis because of it." Cerni contends that Vucson "reached out to [plaintiff's] husband to make sure she was ok and he did not return the call." Plaintiff contends that her husband never received any calls from Vucson.
On November 21, 2014, Cerni "visited [p]laintiff's store and conducted a reindeer run' with... Mott, as I am required to do by CVS to evaluate a store's readiness for the holiday season." Cerni "noticed that the pharmacy department was staging' medication to be put away on a front bay in direct view of the customer[s] instead of leaving it in a tote and putting it away." Cerni avers that he
attempted to discuss the pharmacy's cleanliness with [p]laintiff, but she directed me to speak with a Pharmacy Technician about the problem. I explained that, as the pharmacist on duty, it was her job to maintain cleanliness and appearance of the pharmacy, but [p]laintiff refused to follow my directive. I advised [p]laintiff that I was going to arrange to meet with her for further coaching and counseling. Plaintiff began stating that I was harassing her and that she was going to call the police, at which point I left the pharmacy.
Plaintiff testified that she was on the phone when Cerni complained about the medication that had been delivered not being put away and that she told him she would take care of it but that he could talk to the pharmacy tech about it if he wanted it done right away.
On November 22, 2012, plaintiff contacted the CVS ethics line to lodge a complaint against Cerni.[ ...