Jain v. CVS Pharmacy, Inc.
| Decision Date | 04 March 2015 |
| Docket Number | No. 14–1498.,14–1498. |
| Parties | Dimple JAIN, Plaintiff–Appellant v. CVS PHARMACY, INC., Defendant–Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Amy L. Coopman, Foland, Wickens, Eisfelder, Roper & Hofer, P.C., Kansas City, MO, for appellant.
Richard M. DeAgazio, Edwards Wildman Palmer LLP, Morristown, NJ, Jeannie M. DeVeney, Littler Mendelson, P.C., Kansas City, MO, for appellee.
Before LOKEN, MURPHY, and MELLOY, Circuit Judges.
Dimple Jain, a woman of East Asian descent, worked as a staff pharmacist for CVS Pharmacy, Inc. and was promoted to head pharmacist at one of its stores. Seven months later, she was terminated. Jain sued CVS, claiming discrimination and retaliation in violation of the Missouri Human Rights Act. CVS moved for summary judgment which Jain opposed. She submitted a declaration from her husband stating that she had improved the ranking of her pharmacy in every performance metric. After striking the declaration, the district court1 granted summary judgment to CVS, and Jain appealed. We affirm.
CVS hired Jain as a staff pharmacist in 2006. She worked in that role until 2009 and claims that her coworkers and supervisors discriminated against her during that period. Staff pharmacists called her the “little Indian lady,” and district manager Deone Petersen criticized her Indian clothing as unprofessional. Referring to her “bossy” attitude, pharmacy manager Bret Dobson remarked that “she was from India but might as well be from Germany.” Despite these comments, Jain informed Petersen and her supervisor Amanda Deaner that she wanted to be promoted to head pharmacist, a position called the “pharmacist-in-charge” (PIC). She was offered the promotion after the PIC at Store 8578 was discharged for cursing at a customer. She accepted the offer but asked for permission to work a three day schedule. Supervisor Deaner agreed, and Jain began working as the PIC at Store 8578 on December 27, 2009.
In April 2010 Deaner learned that the store was struggling in numerous performance metrics. The Triple–S score, an objective measurement of service related competencies, was 83 out of a target score of 87. The Key Performance Measures (KPM) score, a composite of six different patient care initiatives, was 52 out of a target score of 90. And the Execution Scorecard, a measurement related to task completion, was only 36 percent. Deaner also learned that Jain had not been following company policies and that multiple complaints about the pharmacy had been filed. One complaint stated that the pharmacy was in “trouble” because Jain had been working only three days a week and had “no idea what is going on the other four days a week.”
Deaner issued a performance action plan and began holding weekly engagement meetings to help Jain align performance goals and staff expectations. At a May 30, 2010 meeting, Jain was given a performance warning stating that she had not been supporting company programs or achieving results on either the Triple–S or KPM scores. It explained that Jain did not “hold her associates accountable for their performance,” displayed a “negative attitude towards her team,” and struggled to “maintain organization.” The warning also included a corrective action plan, noting that “failure to improve performance may lead up to and include termination.”
Problems continued. Jain was issued another warning on June 13, 2010, stating that she had “not changed the schedule to accommodate the increased service needs of the pharmacy,” she had “closed the pharmacy [leaving 20 prescription] pages in the queue [and] 12 voice mails on the machine unchecked,” and had not created “a productive relationship with the front store management team.” Her recent performance scores fared no better. Her KPM score was 43, compared to an area average of 57, and her Triple–S score and Execution Scorecard were in the bottom quartile of all pharmacies. As a result of these scores, regional manager Greg Leiker conducted a loss prevention audit of the pharmacy. His report stated that he was “very concerned” with the pharmacy because drugs were “piling up in the back [and] bottles [were] scattered in pockets all over countertop areas.” He concluded that the pharmacy was “leaving the door open for theft to occur.” Another inspection one week later found that the pharmacy was “trashed” and its “overall condition [was] hard to get over.”
On July 21, 2010 Deaner and Petersen met with Jain to discuss the failed audits and to terminate her employment. Jain sent a letter to the CVS Regional Business Office asking to be reinstated as a staff pharmacist. In a second letter, Jain asserted that she had not been “given the appropriate training to be a pharmacy manager,” her performance goals had been “unattainable,” and she had been “set up to fail.” CVS upheld the termination decision and refused to reinstate her as a staff pharmacist.
Jain sued CVS in Missouri state court for discrimination and retaliation under the Missouri Human Rights Act (MHRA), Mo.Rev.Stat. §§ 213.055, 213.070. CVS removed the action to the federal district court and moved for summary judgment. Jain opposed the motion with a declaration from her husband, Rajeev Jain, stating that an “arithmetic comparison” of Triple–S scores, KPM scores, and Execution Scorecards showed that the pharmacy had improved in every performance metric after Jain became PIC. The court struck the declaration and its exhibits because Mr. Jain “never worked for [CVS] and did not claim to have industry experience that would allow him to provide testimony analyzing and providing conclusions from [the attached] business records.” The court then granted summary judgment to CVS. Jain appeals.
Jain first argues that the district court erred in striking her husband's declaration. District courts enjoy “wide discretion in ruling on the admissibility of proffered evidence,” and such “rulings should only be overturned if there was a clear and prejudicial abuse of discretion.” U.S. Salt, Inc. v. Broken Arrow, Inc., 563 F.3d 687, 689–90 (8th Cir.2009). A declaration used to oppose a motion “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the [declarant] is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). Lay opinion testimony is admissible if the witness has “personal knowledge” or “perceptions based on industry experience.” Allied Sys., Ltd. v. Teamsters Local 604, 304 F.3d 785, 792 (8th Cir.2002). A declaration which does not satisfy these requirement may be stricken or disregarded. See McSpadden v. Mullins, 456 F.2d 428, 430 (8th Cir.1972) ; see also Shaver v. Indep. Stave Co., 350 F.3d 716, 723 (8th Cir.2003).
The declaration at issue here does not satisfy the rule's requirements. Although Mr. Jain states that he is “married to Jain” and that Jain had asked him to “review all the KPM reports, Triple–S reports, and Execution Scorecards produced by CVS in this case,” his declaration does not state that he had firsthand knowledge or personal experience analyzing CVS performance data.Cf. Warner Bros. Entm't, Inc. v. X One X Prods., 644 F.3d 584, 591–92 (8th Cir.2011). Nor does it establish that he had sufficient industry experience to synthesize hundreds of pages of metric scores in order to compare the performance of other pharmacies to the performance of Jain's pharmacy before and after she became PIC. Because these complex calculations required more than basic mathematics, Mr. Jain's lack of personal knowledge and industry experience made him unqualified to offer lay testimony on the subject. See U.S. Salt, Inc., 563 F.3d at 690; see also James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1214–15 (10th Cir.2011). The district court thus did not abuse its broad discretion by striking the declaration. See U.S. Salt, Inc., 563 F.3d at 690.
To the extent Jain contends that the district court erred by “ignoring” the hundreds of business records attached to his declaration, the argument assumes that the court had an “affirmative obligation to plumb the records in order to find a genuine issue of material fact.” Barge v. Anheuser–Busch, Inc., 87 F.3d 256, 260 (8th Cir.1996). The court had no such obligation. Id. A district court is not required to mine the “summary judgment record searching for nuggets of factual disputes to gild a party's arguments.” Rodgers v. City of Des Moines, 435 F.3d 904, 908 (8th Cir.2006). We find this especially true where as here, the materials consist of over 500 pages and contain thousands of data points. See Tolen v. Ashcroft, 377 F.3d 879, 883 n. 3 (8th Cir.2004). Without an admissible declaration interpreting the business records, the district court did not abuse its discretion by refusing to pour through them.
Jain also argues that the district court erred in granting summary judgment to CVS on her discrimination claim. We review a grant of summary judgment de novo, viewing all admissible evidence and drawing all reasonable inferences in favor of the nonmoving party. Baye v. Diocese of Rapid City, 630 F.3d 757, 759 (8th Cir.2011). Summary judgment is proper when there is no genuine dispute of material fact and the prevailing party is entitled to judgment as a matter of law. Id.
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