Kendrick v. Walgreen Co.
| Decision Date | 19 November 2012 |
| Docket Number | Case No. 3:11-cv-404 |
| Parties | AGINAH KENDRICK, Plaintiff, v. WALGREEN COMPANY, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
This civil case is before the Court on the Motion for Summary Judgment (Doc. 32) filed by Defendants Walgreen Company ("Walgreen"), William Lemen ("Lemen") and Marie Smith ("Smith") (collectively referred to as "Defendants"). Plaintiff Aginah Kendrick ("Plaintiff") filed a response to Defendants' Motion. (Doc. 38). Thereafter, Defendants filed a Reply. (Doc. 40). The Motion is ripe for decision.
Defendant Walgreen Company ("Walgreens") is an Illinois-based employer engaged in the retail sale of prescription and non-prescription drugs and general merchandise through its drug stores operated in all fifty states. Walgreens divides its operations into geographic regions, assigning a District Manager with responsibility for drug stores within their jurisdiction.
Walgreens' drug stores are staffed with a Store Manager, and management teams comprised of Executive Assistant Store Managers ("EXA") and Drug Store Management Trainees ("MGT"). The EXA position is a training role for employees aspiring to become Store Managers. EXAs are responsible for direction of personnel and supervision of store operations and report directly to the Store Manager. MGTs report to Store Managers and EXAs and are responsible for inventory control, merchandise stocking, work schedules and coordinating store openings, closings and shift changes.
Plaintiff, an African-American female, started her career with Walgreens in August 1999 as a cashier. Over the next ten years, Plaintiff worked in different roles in several stores, all within the Dayton District. Plaintiff's performance ratings in her evaluations from 2007 to 2009 were 3 or above, which means she met expectations or was above average. In April 2009, Plaintiff held an MGT position and transferred from a Walgreens store in Troy, Ohio to the Walgreens store on Miamisburg Centerville Road, in Dayton ("Centerville Store"). At that time, she reported to Centerville Store Manager, Tracy Pollard ("Pollard"), an African-American, who in turn reported to Regional Manager, Defendant Marie Smith, an African-American.
In mid-October 2009, as a result of a number of issues in her personal life, including breaking up with her boyfriend, Plaintiff "turned to alcohol" and began "drinking heavily." On or about October 15, 2009, Plaintiff reported to an emergency room. The on-call physician, Dr. Gary Balster, noted that Plaintiff had been "drinkingprodigious quantities of alcohol" for several days. Plaintiff's was diagnosed with major depression and recurrent alcohol abuse/dependence.
Upon admission to the hospital, Plaintiff called Pollard, her store manager at the time, to report off from work for the remainder of the week of October 14 through October 18. Plaintiff also called Pollard during the week "to update him." Plaintiff's absences for the week of October 14 were excused.
Plaintiff was discharged from the hospital on or about October 19, 2009. Upon discharge, Plaintiff immediately started the application process for disability leave.1
On October 20, 2010, Defendant William Leman became the Centerville store manager. Within days thereafter, Plaintiff was approved for short-term disability leave from October 22, 2009 through November 30, 2009.
According to Lemen, he received an email confirming Plaintiff's leave approval and the duration of the approved leave, but he was never informed as to the reasons for Plaintiff's leave.2 Plaintiff's short term disability leave was subsequently extendedthrough December 15, and again, Leman learned of this extension via email without specific information regarding the reason for Plaintiff's leave.
Plaintiff was released to return to work without restriction on December 16, 2009. Plaintiff received written confirmation regarding her return to work date in a writing, which also provided instructions on how Plaintiff could reactivate her short-term leave in the event she "did not recover sufficiently enough to resume [her] job duties." While Plaintiff did return to work on December 16, she arrived late without providing notice or offering an excuse. Plaintiff also arrived late for her shift on December 17 without providing notice or an excuse.
On December 19, Plaintiff failed to show up at all for her scheduled shift and called the store after her scheduled start time claiming to have been involved a car accident and requesting to take the entire day off from work. Plaintiff's request for the day off was granted.
On December 20, 2009, Plaintiff again failed to report for her scheduled shift and called the store after her scheduled start time claiming that she remained too shaken up from the car accident to report to work. On December 21, Plaintiff produced a copy of a police report filed December 19, describing a domestic violence incident that occurred on November 29, 2009. Plaintiff admitted that she made up the story about the car accident.
On December 22, 2009, Plaintiff reported late to work and left work early the same day notifying only a colleague that she was leaving early because her grandmother had passed away. Plaintiff later spoke to Lemen with regard to funeral leave.
On December 24, Plaintiff sought and received permission to arrive late for her shift and then asked to go home early. Around this time, Lemen agreed to allow Plaintiff to combine vacation days with her funeral leave allowance so that Plaintiff could be off from work from Christmas through the beginning of January 2010, all with pay.
Thereafter, in consultation with either employee relations or Regional Manager Marie Smith, Lemen was to issue Plaintiff a final written warning when she returned from funeral leave. That final written warning was to remind Plaintiff of her obligation to report to work on time and cautioned that further unexcused absences or late arrivals would result in further discipline, up to and including discharge. Lemen planned to issue the final written warning to Plaintiff when she returned to work for her next scheduled shift, which was January 4, 2010.
Prior to January 4, 2010, Plaintiff called Lemen who confirmed that Plaintiff was scheduled to work January 4. However, Plaintiff never appeared for her scheduled shift on January 4, and then failed to appear for her next scheduled shift on January 5. Plaintiff never called the store to report her absences either before her shifts or before expiration of those shifts. Without dispute, Plaintiff's cell phone records reflect approximately sixty outgoing calls from January 3 to the end of her scheduled shift on January 5, and none of those approximately sixty calls was made to Walgreens.
On the evening of January 5, Plaintiff called the Centerville Store and asked MGT Rebecca Whited for the number to file a disability claim. Lemen learned of Plaintiff'scall and her request for the disability hotline number and attempted to call Plaintiff using the phone number Walgreens had on file. However, that phone number was no longer in service.3 Plaintiff failed to report to work or to call her store manager for the remainder of the week.
On January 7, 2010, Lemen sent Plaintiff a letter directing her to contact him by January 11 to discuss her employment status and to explain her absences. Lemen cautioned Plaintiff that her non-response or her failure to provide adequate documentation excusing her absences and tardiness would be interpreted as her resignation from employment. On January 8, Plaintiff returned to the Kettering Emergency Room for "alcohol intoxication and severe depression" stating she had been drinking one pint of vodka a day.
Despite asserting that she never received the letter from Leman, Plaintiff called Leman on January 11 and scheduled a meeting for the next morning. On January 12, at approximately 9:00 a.m., Plaintiff met with Leman and Smith and produced a discharge instruction sheet from her visit to the emergency room on January 8, as well as a copy of her grandmother's funeral notice. Plaintiff claims that she also attempted to provide anote from her family physician, Dr. Robinson, advising that Plaintiff had been treating for depression and should be off work from January 4, 2010 through January 31, 2010.4 Leman and Smith testified seeing the discharge sheet and the funeral notice. However, both Leman and Smith also testified that Plaintiff never produced the note from Dr. Robinson.
Finding Plaintiff's explanations as to why she failed to contact her Manager inadequate, Smith converted Plaintiff's prior written warning into a termination for attendance issues, i.e., no call no show.
A motion for summary judgment should be granted if the evidence submitted to the Court demonstrates that there is no genuine issue as to any material fact and that the movant is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986).
"Summary judgment is only appropriate 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881,886 (6th Cir. 2007) (quoting Fed. R. Civ. P. 56(c)). "Weighing of the evidence or making credibility determinations are prohibited at summary judgment - rather, all facts must be viewed in the light most favorable to the non-moving party." Id.
Once "a motion for summary judgment is properly made and supported, an opposing party may...
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