Hughey v. CVS Caremark
Filing
36
MEMORANDUM OPINION OF THE COURT. Signed by District Judge Todd J. Campbell on 1/5/2015. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
PAUL HUGHEY
v.
CVS CAREMARK
)
)
) NO. 3-13-1016
) JUDGE CAMPBELL
)
MEMORANDUM
Pending before the Court is Defendant’s Motion for Summary Judgment (Docket No. 27).
For the reasons stated herein, Defendant’s Motion is GRANTED, and this action is DISMISSED.
FACTS
Plaintiff Hughey was employed by Defendant CVS as a pharmacist from August 10, 1998,
until August 8, 2012. As a pharmacist for CVS, Plaintiff was responsible for all aspects of pharmacy
operations within the store, including ensuring that everything that occurred in the pharmacy
complied with CVS policy and the law. CVS maintained a Pharmacy Operations Manual in the
workplace that described various pharmacy policies with which it expected the pharmacists to
comply.
One of the CVS policies provided that patients who received a partial amount of their
prescription (because the store had an insufficient quantity in stock to dispense the full amount) were
not to pay any amount until they received the full quantity of their prescription, whether they were
paying themselves or through a third-party insurer. Another CVS policy provided that CVS
pharmacists were not allowed to exchange merchandise with competing pharmacies. In addition,
one of CVS’ policies required pharmacists to take several steps upon the discovery of a dispensing
error, including completion of an electronic incident report.
Plaintiff has admitted that in December of 2011, he dispensed a partial amount of a
prescription to a patient who was a TennCare beneficiary and billed TennCare for the full amount.
Plaintiff has also admitted that his failure to comply with CVS policy caused TennCare to be billed
for prescription drugs that the TennCare beneficiary never received, although Plaintiff claims the
failure was unintentional. Plaintiff has admitted that he traded Nexium for B-12 with Fred’s
Pharmacy in violation of CVS policy concerning exchange of merchandise, but he contends that this
violation was not worthy of termination. Plaintiff has also admitted that he mis-filled two
prescriptions and failed to complete incident reports on those mistakes. Plaintiff claims he was
unaware of the mistakes, but his initials were on the incorrectly dispensed prescriptions and they
were not reported.
Defendant terminated Plaintiff’s employment because of these three violations of CVS
policies and procedures. Plaintiff contends that he was fired because of his age, in violation of the
Age Discrimination in Employment Act (“ADEA”). Defendant has moved for summary judgment
on Plaintiff’s claim.
SUMMARY JUDGMENT
Summary judgment is appropriate where there is no genuine issue as to any material fact and
the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Pennington v. State
Farm Mut. Automobile Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009). The party bringing the summary
judgment motion has the initial burden of informing the Court of the basis for its motion and
identifying portions of the record that demonstrate the absence of a genuine dispute over material
facts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). The moving party may satisfy this
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burden by presenting affirmative evidence that negates an element of the non-moving party’s claim
or by demonstrating an absence of evidence to support the nonmoving party’s case. Id.
In deciding a motion for summary judgment, the Court must review all the evidence, facts
and inferences in the light most favorable to the nonmoving party. Van Gorder v. Grand Trunk
Western Railroad, Inc., 509 F.3d 265, 268 (6th Cir. 2007). The Court does not, however, weigh the
evidence, judge the credibility of witnesses, or determine the truth of the matter. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). The Court determines whether sufficient evidence has been
presented to make the issue of fact a proper jury question. Id. The mere existence of a scintilla of
evidence in support of the nonmoving party’s position will be insufficient to survive summary
judgment; rather, there must be evidence on which the jury could reasonably find for the nonmoving
party. Rodgers, 344 F.3d at 595.
AGE DISCRIMINATION
To establish his claim for age discrimination under the ADEA,1 Plaintiff must show that (1)
he was a member of a protected class; (2) he was subjected to an adverse employment action; (3) he
was qualified for the position he held; and (4) he was treated differently from similarly situated
employees outside the protected class. Mitchell v. Vanderbilt University, 389 F.3d 177, 181 (6th Cir.
2004); Jones v. Shinseki, 804 F.Supp. 2d 665, 671 (M.D. Tenn. 2011). If Plaintiff is able to establish
a prima facie case of age discrimination, the burden shifts to the Defendant to articulate a legitimate,
nondiscriminatory reason for any adverse employment action. Schoonmaker v. Spartan Graphics
Leading, LLC, 595 F.3d 261, 264 (6th Cir. 2010). If Defendant provides a legitimate,
1
Although Plaintiff asserts that he has direct evidence of Defendant’s age
discrimination, nothing Plaintiff presents is direct evidence of discrimination.
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nondiscriminatory reason, the burden shifts back to Plaintiff to show that a genuine issue of material
fact exists as to whether Defendant’s reason is really a pretext to mask intentional discrimination.
Jones, 804 F.Supp.2d at 673. Plaintiff may demonstrate pretext by showing that the proffered reason
(1) has no basis in fact, (2) did not actually motivate Defendant’s challenged conduct, or (3) was
insufficient to warrant the challenged conduct. Id. Ultimately, Plaintiff bears the burden of
persuasion to show that his age was a “but-for” reason for his firing. Gross v. FBL Financial
Services, Inc., 557 U.S. 167, 176 (2009).
It is undisputed that Plaintiff is older than 40 years and that he was subjected to an adverse
employment action. For purposes of summary judgment, Defendant also concedes that Plaintiff was
qualified for his position. Defendant argues that Plaintiff cannot establish the fourth prong of the
age discrimination test, that a similarly-situated employee outside the protected class was treated
more favorably than he.
To be similarly situated, the individuals with whom Plaintiff seeks to compare his treatment
must have dealt with the same supervisor, have been subject to the same standards, and have engaged
in the same conduct without such differentiating or mitigating circumstances that would distinguish
their conduct or the employer’s treatment of them for it. Jackson v. FedEx Corporate Servs., Inc.,
518 F.3d 388, 393 (6th Cir. 2008).
Plaintiff has not identified any younger employee of Defendant who billed insurance
companies for medication not dispensed, traded medications with another pharmacy, failed to
properly report dispensing errors, and was not fired for that misconduct. Plaintiff admits that the
only other employee of Defendant accused of such misconduct (Mohamed B., who is younger than
Plaintiff) was also fired, just as Plaintiff was. Plaintiff alleges that younger employees were not
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terminated after reports of their sexual harassment and excessive tardiness, but those employees did
not engage in the same violations of policies as Plaintiff. In other words, they did not engage in the
same conduct without such differentiating or mitigating circumstances that would distinguish their
conduct or the employer’s treatment of them for it. 2
The Court finds that Plaintiff has not established the fourth prong of his age discrimination
claim, that similarly situated younger employers were treated differently than he.
Alternatively, even if Plaintiff could establish a prima facie case of age discrimination,
Defendant has articulated a legitimate, nondiscriminatory reason for firing him, and Plaintiff has not
shown that reason to be pretext for age discrimination. Pretext is a commonsense inquiry: did the
employer fire the employee for the stated reason or not? Jones, 804 F.Supp.2d at 673. The Court
must ask whether the employer made a reasonably informed and considered decision before taking
the complained-of action, but it does not require that the decisional process used by the employer
be optimal or that it left no stone unturned. Id.
Defendant concluded, based in part upon Plaintiff’s own admissions, that Plaintiff had
violated CVS policies. A plaintiff cannot establish pretext so long as the employer made a reasonably
informed and considered decision before taking the adverse employment action. Foster v. Spring
Meadows Healthcare Center, LLC, 2013 WL 829363 at * 10 (M.D. Tenn. March 6, 2013) (citing
Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998)). Where the employer can demonstrate
an honest belief in its proffered reason, an inference of pretext is not warranted. Seeger v. Cincinnati
2
Plaintiff argues that a younger employee was “high” on the job and threw away
prescriptions and was not fired, but the evidence Plaintiff offers for this fact is inadmissible
hearsay. In any event, that employee did not commit the same violations as Plaintiff, and the
only employee who did, Mohamed B., was also fired.
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Bell Telephone Co., LLC, 681 F.3d 274, 285 (6th Cir. 2012). An employer’s proffered reason is
considered honestly held where the employer can establish it reasonably relied upon the
particularized facts that were before it at the time the decision was made. Id. A plaintiff is required
to show more than a dispute over the facts upon which the decision was based. Id.
Plaintiff has failed to show that Defendant did not have a reasonable belief that Plaintiff had
violated company policies on three occasions. Challenging the soundness of the employer’s business
judgment does not establish age discrimination. Jones, 804 F.Supp.2d at 675. Plaintiff has not
shown that Defendant’s reason for firing him was pretext for age discrimination.
CONCLUSION
For all these reasons, Defendant’s Motion for Summary Judgment (Docket No. 27) is
GRANTED, and this action is DISMISSED.
IT IS SO ORDERED.
___________________________________
TODD J. CAMPBELL
UNITED STATES DISTRICT JUDGE
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