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Wigger v. CVS Pharmacy Inc.

United States District Court, D. South Carolina, Charleston Division

September 27, 2017

DELORES V. WIGGER, Plaintiff,
v.
CVS PHARMACY, INC.; CVS CAREMARK; and CVS RX SERVICES, INC., Defendants. v.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE

         This matter is before the court on United States Magistrate Judge Mary Gordon Baker's report and recommendation ("R&R"), ECF No. 99, that the court grant defendants CVS Pharmacy, Inc., CVS Caremark, and CVS Rx Services, Inc.'s (collectively "CVS") motion for summary judgment, ECF No. 90. For the reasons set forth below, the court adopts the R&R and grants CVS's motion for summary judgment.

         I. BACKGROUND

         Plaintiff Delores V. Wigger brings this employment discrimination action against defendants for a violation of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213, ("ADA"), which allegedly occurred during her employment and subsequent termination by defendants.[1] Plaintiff seeks damages "for back pay, front pay, emotional distress, humiliation and embarrassment, attorneys' fees and costs, prejudgment interest, post-judgment interest, and punitive damages." Am. Compl. ¶ 79.

         A. Factual Allegations

         In short and viewing the facts in the light most favorable to the non-moving party, plaintiff began employment with defendants in 1999 as a pharmacist at Store Number 4395 located at 10599 Dorchester Road in Summerville, South Carolina. Pl.'s Dep. 20:3-21:11; 27:22-28:2; 29:9-13. In 2010, plaintiff became the pharmacist-in-charge ("PIC") at the same store. Id. at 30:13-15.

         In 2011, plaintiff completed a mid-year self-assessment in which she determined that she needed improvement in several employment duties, such as achieving pharmacy business metrics, managing inventory, and more broadly, delivering results. ECF No. 90-2 at 50-54. Plaintiffs supervisor at the time, Jeffrey Holcombe, reviewed the evaluation with her and likewise determined she needed improvement in several broad categories, such as leading and developing her team, maintaining business and service foundations, managing workflow and quality assurance, and focusing on customers and the market. Id. at 53-54; Pl.'s Dep. 129:15-133:4. In June 2012, Darlene Molett ("Molett") replaced Jeffrey Holcombe as plaintiff s supervisor. Molett Dep. 13:4-5, ECF No. 90-4. Molett found that plaintiff still needed improvement, and plaintiff signed a document stating that she needed to improve in several areas. Pl.'s Dep. 136:10-139:6; ECF No. 90-2 at 56. Subsequently, plaintiff was written up once per month for deficient performance in September, October, and November 2012. ECF No. 90-2 at 57-62; Defs.' Br. in Supp. of Mot. for Summ. J. 6-7, ECF No. 90-1; Pl.'s Mem. in Opp'n to Defs.' Mot. for Summ. J. 8, ECF No. 91. With respect to the November 2012 write-up, Molett told plaintiff that this was her final job warning. Pl.'s Dep. 168:20-22.

         On December 27, 2012, plaintiff saw psychiatrist Dr. Ricardo Fermo ("Dr. Fermo"), who diagnosed her with depression[2] and placed her on leave from work. Pl.'s Dep. 168:23-169:7; Fermo Dep. 70:4-19, ECF No. 90-7. Molett and Kevin Elliott ("Elliott"), who supervised Molett, were informed that plaintiff was on leave. Molett Dep. 80:6-19; Elliott Dep. 95:10-19, ECF No. 90-6. On March 7, 2013, Dr. Fermo released plaintiff to work with no restrictions. ECF No. 90-7 at 10; Pl.'s Dep. 35:16-19.

         Upon her return, plaintiff was offered a choice between her prior position at Store Number 4395 and a position as staff pharmacist at Store Number 563, located at 1515 Old Trolley Road, Summerville, South Carolina, with the same pay. Pl.'s Dep. 30:16-31:8; 33:3-16. Molett told plaintiff she had the right to resume her previous position at Store Number 4395 if plaintiff so desired but that Molett wanted to keep the new PIC who took over during plaintiffs leave in that position, and plaintiff agreed "that was fine" because she did not need any additional stress. Pl.'s Dep. 30:25-31:8; 31:17-32:13. In March 2013, plaintiff began working at Store Number 563 where Millie Fippen was the PIC. Pl.'s Dep. 34:15-35:2. Shortly thereafter, plaintiff told Molett and Elliott that she was unhappy working at Store Number 563 because of a stressful environment and her negative relationship with Fippen. Molett Dep. 93:1-94:7; Elliott Dep. 102:3-22. Plaintiff also told Molett and Elliott that she had taken the three-month leave of absence due to severe anxiety and depression, requesting that they reassign her to the CVS in St. George, South Carolina. Pl.'s Dep. 66:18-67:19. Elliott instructed her to put her request in writing and to write down at least four other CVS locations where she was willing to work. Pl.'s Dep. 67:5-8. On March 21, 2013, plaintiff handwrote a note[3] stating:

After returning from leave due to extreme stress disorder I wanted to be in an environment less stressful. Thus, I did not return to my old store. Starting at [Store Number] 563 [, ] the situation did not appear any better. As I wasn't aware there was an opening at St. George[, ] I did not request it but at this time would really appreciate being put there permanently.

ECF No. 93-2. The note lists other options as Store Numbers 7537, 4204, and 7305. Id. None of the requested stores had openings available. Molett Dep. 96:1-25; Elliott Dep. 105:17-107:16. CVS had a policy in effect addressing requests for accommodation, which applied to employees requesting transfer due to anxiety. ECF No. 93-3; ECF No. 91-4 at 52:4-8, 54:9-18. The policy provided that when a request for a reasonable accommodation is made to a supervisor, the supervisor completes a reasonable accommodation form in order to assess the employee's situation. ECF No. 91-4 at 52:9- 16. Alternatively, an employee may call human resources, who then processes the form. ECF No. 91-4 at 52:24-53:4. Either way, human resources resolves the request by reviewing and responding to it.[4] Id. at 55:6-56:25.

         Defendants received complaints about plaintiff from customers. In April 2013, an employee at a doctor's office, whom plaintiff called to request a prescription refill, complained to defendants that she was offended and embarrassed by plaintiffs condescending attitude. ECF No. 90-4 at 32. In the same month, defendants received another complaint that plaintiff was rude to and dismissive of a customer, causing that customer to fill his wife's prescription at Publix instead and vow not to return. Id. at 33-34. In May 2013, defendants received a handwritten letter from a customer who stated that she had switched from Store Number 4395 to 563 because of plaintiff s rudeness and bad attitude, and was dismayed that plaintiff now worked at Store Number 563. Id. at 35-36. Defendants also received several complaints about plaintiff from Fippen, who requested that plaintiff be moved to another store because she was unfit for service and created discord among employees. ECF No. 93-4.

         On May 13, 2013, Molett and Elliott placed plaintiff on an "Individual Development Plan" ("IDP"), which provided seven areas where they would monitor plaintiffs improvement and provide corrective action. ECF No. 90-2 at 63-84; Pl.'s Dep. 182:21-188:7; Molett Dep. 72:1-13. Once per month, plaintiff met with Molett to review her progress on the IDP goals. Pl.'s Dep. 194:18-195:17. Between May and August 2013, plaintiff did not meet her goals. ECF No. 90-2 at 63-84; Pl.'s Dep. 194:16-195:17, 201:24-205:19, 205:20-213:1. Defendants' problems with plaintiff at Store Number 563 were similar to the previous problems dating back to 2012 at Store Number 4395. Pl.'s Dep. 212:22-213:25. As a result of her August 2013 IDP review-wherein Molett writes "[o]verall there has been no consistent improvements with overall performance leading to unacceptable results with service, [key performance metric], and overall SOS[5] results[, ]" ECF No. 90-2 at 84-plaintiff s employment was terminated. Pl.'s Dep. 214:6-9.

         B. ...


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