United States District Court, D. South Carolina, Charleston Division
DELORES V. WIGGER, Plaintiff,
CVS PHARMACY, INC.; CVS CAREMARK; and CVS RX SERVICES, INC., Defendants. v.
C. NORTON UNITED STATES DISTRICT JUDGE
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.
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. 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.
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
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.
December 27, 2012, plaintiff saw psychiatrist Dr. Ricardo
Fermo ("Dr. Fermo"), who diagnosed her with
depression 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.
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 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
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
Id. at 55:6-56:25.
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.
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 results[, ]" ECF No. 90-2 at
84-plaintiff s employment was terminated. Pl.'s Dep.