Johannes, RPH v. Wal-Mart Stores, Inc.

Filing 26

OPINION and ORDER Granting 17 MOTION for Summary Judgment Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CATHERINE ANN JOHANNES, RPH,
Plaintiff,
Case No. 16-10756
v.
Hon. John Corbett O’Meara
WAL-MART STORES, INC., d/b/a
SAM’S CLUB,
Defendant.
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OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Before the court is Defendant’s motion for summary judgment, which has
been fully briefed. For the reasons explained below, Defendant’s motion is
granted.
BACKGROUND FACTS
Plaintiff Catherine Ann Johannes began her employment as a licensed
pharmacist at Sam’s Club in 2006. In 2013 an audit of the pharmacy was
conducted. After a review of surveillance tapes, the investigator discovered that
Plaintiff had left the pharmacy unattended on January 23, 2013, for approximately
fifty minutes. Contending that Plaintiff violated pharmacy policy, Defendant
terminated her employment on February 20, 2013. See Def.’s Ex. C (prescription

area security policy). Although Plaintiff acknowledges her absence from the
pharmacy for computer training and to shop for groceries, she denies that she
violated company policy. See Johannes Dep. at 96-97.
Defendant reported Plaintiff’s termination to the Michigan Department of
Licensing and Regulation on February 22, 2013. In the notice, Defendant stated
that Plaintiff was “terminated for violation of Walmart’s Pharmacy area security
policy.” Def.’s Ex. E.
Subsequently, the Michigan Board of Pharmacy filed an administrative
complaint against Plaintiff, alleging that she failed “to maintain personal charge of
a pharmacy that is open for business” in violation of various sections of the Public
Health Code. Ultimately, however, the administrative complaint was dismissed on
October 14, 2015.
Plaintiff filed this action, which was removed to this court, in January 2016.
Plaintiff’s complaint alleges claims of malicious prosecution, abuse of process, and
intentional infliction of emotional distress.
LAW AND ANALYSIS
Defendant argues that its report of Plaintiff’s termination to the state
pharmacy board was in compliance with its duty under Michigan law and is
protected by statutory immunity. Pursuant to M.C.L. 333.17748,
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A pharmacy, manufacturer, or wholesale distributor shall
report to the department a change in ownership,
management, location, or its PIC [pharmacist in charge]
or facility manager designated under subsection (2) not
later than 30 days after the change occurs.
Id.1 M.C.L. 333.16244 provides statutory immunity as follows:
A person . . . acting in good faith who makes a report;
assists in originating, investigating, or preparing a report;
or assists a board or task force, a disciplinary
subcommittee, a hearings examiner, the committee, or the
department in carrying out its duties under this article is
immune from civil or criminal liability including, but not
limited to, liability in a civil action for damages that
might otherwise be incurred thereby and is protected
under the whistleblowers’ protection act. . . . A person
making or assisting in making a report, or assisting a
board or task force, a hearings examiner, the committee
or the department, is presumed to have acted in good
faith. The immunity from civil or criminal liability
granted under this subsection extends only to acts done
pursuant to this article or section 21513(e).
Id.
Plaintiff does not dispute that Defendant was required to report her change
in employment status pursuant to M.C.L. 333.17748. Under M.C.L. 333.16244,
Defendant is immune from civil liability for making such a report, provided that it

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Defendant also argues that it was required to report Plaintiff’s change in
employment status pursuant to M.C.L. 333.20175(5). However, this section applies to a
“health facility or agency,” which does not expressly include pharmacies. See M.C.L.
333.20106(1) (definition of “health facility or agency”).
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acted in good faith. Id. Moreover, Defendant is presumed to have acted in good
faith. Id. Plaintiff has not provided evidence to rebut the presumption that
Defendant reported her termination in good faith. Plaintiff’s disagreement with the
decision to terminate her is insufficient to rebut the presumption that Defendant
made the report in good faith. Based upon the above statutory authority, the court
finds that Defendant is entitled to immunity.
ORDER
IT IS HEREBY ORDERED that Defendant’s motion for summary judgment
is GRANTED.
s/John Corbett O’Meara
United States District Judge
Date: September 19, 2017

I hereby certify that a copy of the foregoing document was served upon
counsel of record on this date, September 19, 2017, using the ECF system.

s/William Barkholz
Case Manager

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