Kelleher v. Fred Meyer Stores, Inc., CV-13-3108-SMJ

CourtUnited States District Courts. 9th Circuit. Eastern District of Washington
Writing for the CourtSALVADOR MENDOZA, JR. United States District Judge
Docket NumberNo. CV-13-3108-SMJ,CV-13-3108-SMJ
PartiesSEAN R. KELLEHER, Plaintiff, v. FRED MEYER STORES, INC., Defendant.
Decision Date28 January 2015

SEAN R. KELLEHER, Plaintiff,

No. CV-13-3108-SMJ


January 28, 2015


This matter came before the Court on January 7, 2015 for a motion hearing on Defendant's Motion for Partial Summary Judgment Dismissal on Plaintiff's Non-Public Policy Claims, ECF No. 66. Plaintiff Sean Kelleher was represented by Elizabeth Hanley1 and Defendant was represented by Keller Allen.2 At the hearing, after hearing argument from the parties, the Court took the matter under advisement. Also pending before the Court without oral argument were Plaintiff's Motion to Exclude Defendant's Purported Expert Witness, ECF No. 58,

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Defendant's Motion for Partial Summary Judgment Requesting Dismissal of Plaintiff's Public Policy Claim, ECF No. 46, and Defendant's Second Motion for Partial Summary Judgment Requesting Dismissal of Plaintiff's Public Policy Claim, ECF No. 53. Having reviewed the pleadings, the record in this matter, the applicable case law, and the arguments of counsel, the Court is fully informed and rules as follows.


A. Factual Background3

Defendant Fred Meyer operates retail stores, located in Oregon, Washington, Idaho, and Alaska, that combine a number of departments, including a pharmacy, under one roof. Beginning in 2002, Defendant employed Plaintiff Sean Kelleher in its Ellensburg, Washington Fred Meyer store as a Pharmacy Manager, where she was paid overtime for hours worked in excess of forty per week. During the course of Plaintiff's employment, Defendant had Plaintiff register with the Washington State Board of Pharmacy as the "responsible manager" for the Ellensburg pharmacy. The responsible manager "shall ensure that the pharmacy complies with all the laws, rules and regulations pertaining to

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the practice of pharmacy. Every portion of the establishment coming under the jurisdiction of the pharmacy laws shall be under the full and complete control of such responsible manager." WAC 246-869-070.

As the pharmacy fell within the purview of the food department, Plaintiff reported directly to the store's Food Manager. During Plaintiff's employment there were multiple Food Managers, including Chris Ewald, Chris Warth, and Ryan Shilley. Also at the Ellensburg store was Store Director Ryan Cheney who was responsible for the overall operation of the entire store. As Food Managers and Store Directors are not trained in pharmacy specific operations like regulations and drugs, Fred Meyers has Pharmacy Coordinators or Pharmacy Regional Supervisors who coordinate pharmacy functions, establish guidelines, and assist store personnel with pharmacy specific issues. The Ellensburg store is located in Fred Meyers District 6, where the Pharmacy Coordinator for the relevant time period was Berkeley Fraser, who supervised 19 Fred Meyer pharmacies in Washington and Idaho. Finally, during the relevant time period, the person responsible for the entire pharmacy business of Fred Meyer was the Pharmacy Merchandiser Marc Cecchini.

Defendant required employees to read and sign an Associate Responsibilities form which set forth specific rules employees were to follow and identifies whether termination or a warning would be issued for their violation.

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Plaintiff signed and acknowledged this policy when she began her employment and on subsequent occasions, including most recently on February 26, 2012. ECF No. 69-1 at 85-89. Under the policy conduct that "Will Result in Immediate Termination Without Prior Warning" includes "Dishonesty of any kind" and provides as an example "[u]nauthorized conversion to personal use or removal of company money, merchandise, or other property from company premises; committed alone or in conjunction with another person(s)." ECF No. 69-1 at 89. The policy also provides that "[f]ailure to perform work as required" and "[w]orking 'free time' or working overtime without specific approval of the person-in-charge" is conduct that "Will Result in Disciplinary Action But Which Usually Results in Termination After Prior Warning." Id.

At all Fred Meyer stores, the optimal ratio is the number of hours earned or projected for a department or store. The manager's goal in running a department or store was to be within 98% to 103% of that number. The number of hours a particular pharmacy was permitted to schedule on a weekly basis was determined mainly by the number of prescriptions processed in that pharmacy in the previous eight weeks. For the pharmacy, the Food Manager could authorize additional hours if it was financially responsible to do so.

Fred Meyer policy is to allow non-union employees to take up to 26 weeks of medical leave, concurrent with Family Medical Leave Act ("FMLA") leave, if

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the employee properly documents the medical need. Plaintiff took one week of leave in 2004, twelve weeks of leave in 2009 to 2010, and seventeen weeks of leave in 2011.

In April 2006, Plaintiff received a positive performance evaluation by Food Manager Chris Ewald. ECF No. 68-1 at 9. The evaluation indicates Plaintiff was consistently over in hours and was not seeking overtime authorization. Id. at 11. Plaintiff was advised to better communicate with the Food Manager and Store Director when overtime was needed. Id. at 20.

In May 2007, Plaintiff received a positive performance evaluation by Food Manager Chris Ewald. ECF No. 68-1 at 22-28. The evaluation indicates Plaintiff could "have done a better job at controlling hours and [overtime]." Id. at 24.

On November 30, 2007, Defendant terminated Lori Nelson, Pharmacy Manager in Bend, Oregon, for violating company policy by removing company property from the pharmacy, specifically for removing the perpetual inventory book and paper prescriptions from the store. Ms. Nelson's employee records indicate she was discharged for "VIOLATION OF COMPANY POL" and states "Rehire? Y." ECF No. 96-19.

On May 22, 2008, Plaintiff complained to Pharmacy Coordinator Fraser that with a technician on leave and two others leaving, the pharmacy was

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understaffed. ECF No. 68-1 at 30. Mr. Fraser responded indicating they were attempting to find additional staff to assist at the pharmacy. Id.

On April 9, 2009, Plaintiff raised concerns to Mr. Cecchini and Mr. Fraser that the "workload is getting ridiculous with the current staffing." ECF No. 68-1 at 32.

In April 2009, Plaintiff's 2009 evaluation prepared by Food Manager Chris Warth, which evaluates her 2008 conduct, denotes "meets expectations" and again set a goal of continuing to reduce overtime hours. ECF No. 68-1 at 38.

Starting on November 25, 2009, and continuing until February 18, 2010, Plaintiff took twelve weeks of protective leave.

In May 2010, Food Manager Warth prepared Plaintiff's 2010 evaluation, which evaluated her 2009 conduct as meeting expectations. ECF No. 68-1 at 4045. The evaluation includes improving communication regarding breaks and lunches in order to stop overtime. Id. at 42. Plaintiff comments on the evaluation that "management should reevaluate how they are allotting hours in the pharmacy." Id. at 44.

On December 5, 2010, Food Manager Shilley emailed Plaintiff inquiring why the pharmacy had incurred 12.84 hours of overtime the previous week. ECF No. 69-1 at 91. Mr. Shilley, noting that the pharmacy was accruing a lot of

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incidental overtime, instructed Plaintiff to follow up daily with each associate that accrued incidental overtime. Id.

Plaintiff took leave under FMLA and Fred Meyer policy between April 26, 2011, and August 21, 2011. Upon Plaintiff's return she was employed as a full time Pharmacy Manager. However, Plaintiff maintains in this lawsuit that upon return the terms and conditions of her employment had substantially changed.

While Plaintiff was on leave, in May 2011, Erik Sundet, the Pharmacy Manager for the Ellensburg store, was counseled by his Food Manager on his 2011 evaluation that "[i]n 2012 [he] will need to concentrate on the daily control of hours and Overtime. [sic] There are T&A reports available to isolate his [overtime]." ECF No. 106 at 31.

When Plaintiff returned after August 21, 2011, as in previous years, she was expect to complete the health screenings of the other employees, but was the only person in the pharmacy at that time qualified to conduct screenings. Plaintiff maintains she was not given more hours to conduct the screenings and had to complete them by October 31, 2011.

After Plaintiff's return, on September 2, 2011, Plaintiff sent a letter to Mr. Cecchini advising of staffing difficulties since her return, difficulty scheduling health screenings, and concern that Store Director Cheney and Food Manager Shilley had complained numerous times about overtime and changes in the

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schedule that had not been approved, but had occurred before her return to work. ECF No. 69-1 at 100-101. Mr. Cecchini directed she should have a meeting with Pharmacy Coordinator Fraser and Store Director Cheney to find a solution. Id.

On October 21, 2011, Food Manager Shilley instructed Plaintiff on areas where she was not meeting expectations, including adding both hours and overtime hours without approval. ECF No. 69-1 at 109. He also counseled her to not contact Mr. Fraser for issues that do not pertain to "a specialist." Id. Also at some point in October 2011, Mr. Shilley sought to use store cashiers to assist the pharmacy staff, including at one point bringing a cashier to the pharmacy to work. Plaintiff, explaining to Mr. Shilley that all staff had to be licensed, refused to permit any unlicensed cashiers to work in the pharmacy, but offered to train additional cashiers to become licensed. ECF No. 97-1 at Exhibit 15.

On November 3, 2011, an unruly patient came to the pharmacy and apparently became violent and threatening. When he returned the next day and again...

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