Mitri v. Walgreen Co.

• Decision Date: 03 June 2011
• Docket Number: 1:10-cv-538 AWI SKO
• Parties: SAMI MITRI, Plaintiff, v. WALGREEN CO., INC. dba WALGREENS, and DOES 1 to 20, inclusive, Defendants.
• Court: U.S. District Court — Eastern District of California

SAMI MITRI, Plaintiff,

v. WALGREEN CO., INC.dba WALGREENS, and DOES 1 to 20,inclusive, Defendants.

1:10-cv-538 AWI SKO

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: June 3, 2011

ORDER ON DEFENDANT'S

MOTION FOR SUMMARY JUDGMENT

(Doc. No. 14)

This case was removed from the Fresno County Superior Court on the basis of diversity. Plaintiff Sami Mitri ("Mitri") alleges one cause of action against his former employer, Defendant Walgreen Company, Inc. ("Walgreens"). Mitri alleges a single California state law cause of action for wrongful termination in violation of public policy. Walgreens now moves for summary judgment. For the reasons that follow, Walgreens's motion will be denied.

FACTUAL BACKGROUND¹

Walgreens is a national retailer and pharmacy chain. DUMF 1. Walgreens employspharmacists and other pharmacy employees who fill customer prescriptions. DUMF 2. Mitri began working for Walgreens as a pharmacist in 1996, and was later promoted to a pharmacy manager in the Fresno District. See DUMF 3. Throughout his employment, Mitri regularly worked as a pharmacist at a number of Walgreens's stores in and around the area of Fresno, California, i.e. "the Central Valley." See id.; PUMF 4. Mitri was employed by Walgreens as an at-will employee. See id. When Mitri was terminated on January 8, 2010, Mitri was the pharmacy manager at a Walgreens store in Fresno, California. See PUMF 3.

At the time of his termination, Mitri was employed as a "non-exempt" employee. DUMF 4. This meant that Mitri was compensated on an hourly basis, and was entitled to overtime pay for any hours worked in excess of eight hours per day, or forty hours per week. See id. Mitri's regular pay rate as a Pharmacy Manager was $64.75 per hour, and his overtime pay was $97.13 per hour. See DUMF 5.

In 2006, Mitri worked 1,118 hours of overtime in addition to his regular shifts. DUMF 6. In 2007, Mitri worked 1,014.5 hours of overtime in addition to his regular shifts. See id. However, much of this overtime was affirmatively scheduled and involved a new store where there were only 2 pharmacists who worked 10 hours shifts, and worked a 7 days on, 7 days off schedule. See Mitri Depo. 132:8-134:5; PUMF 127. In 2008, Mitri worked 500 hours of overtime due in large part to a change in work schedules. See Mitri Depo. 133:4-10.

Beginning in 2008, Walgreens in the Fresno District undertook an effort to reduce expenses, including the amount of overtime worked by all employees. DUMF 7. As part of this effort, Walgreens's managers were encouraged to monitor the overtime of all employees, and to ensure that employees did not work beyond their scheduled shifts. See id. At least as early as 2008, Walgreens Fresno District Manager Robert Guillen ("Guillen") spoke to Mitri on several occasions about the importance of Mitri adhering to Mitri's scheduled shifts. See DUMF 8. However, Adrian Olivares ("Olivares"), the Walgreens store manager at Mitri's last store, was never told to monitor Mitri's hours. PUMF 156. Prior to August 2010, Olivares "never did" and "never had to" monitor the pharmacists' hours. See Olivares Depo. 78:19-79:8; PUMF 157. Olivares's policy was to leave it to the pharmacists to decide what was required for customerservice. See PUMF 158. Pharmacists stayed past their closing "occasionally," but Olivares didn't pay attention to it prior to receiving an e-mail in August 2010, and his practice had been not to tell the pharmacists to go home. See PUMF 159.

In early 2008, Mitri made a claim to Walgreens that he had worked "off the clock" for hours for which he had not been paid. DUMF 9. On February 8, 2008, Walgreens and Mitri entered into a "General Release Agreement" (the "Release") by which Walgreens paid Mitri a sum of money in return for a full release of any and all claims, known and unknown, existing as of February 8, including any claims for work "off the clock," i.e. without recording the time that Mitri worked/working while not clocked in. See DUMF 10; PUMF 117; PUMF 118. The Release stated in part:

Walgreens's policies prohibit an employee from working before he or she has 'clocked in' on his or her timecard. By signing this [Release], Mitri acknowledges that he understands this policy and agrees that in the future he will work at times when he has been scheduled to work and has clocked in. Mitri further understands and acknowledges that the failure to do so could result in discipline, up to and including termination.

PUMF 118; DRPUMF 118. As part of the Release, Mitri also was told to record all of his hours. PUMF 119. Mitri asked Walgreens Senior Attorney Chris Murray ("Murray") if there were exceptions to this portion of the release.² See Mitri Depo. 91:12-19. Murray responded that "emergencies happen," and that sometime during the emergencies Mitri should get the permission or approval of the supervisor or someone over Mitri. See id. at 91:20-25.

In April 2009 (and at various times thereafter), Mitri raised complaints about what he believed to be improper or fraudulent billing practices by pharmacy employees that could constitute Medicare fraud. See DUMF 26; PUMF's 46, 47. Mitri was concerned about the use of "old fashioned IOU labels" (hereinafter "IOU labels"), which is a practice used to bill the full amount for partially filled prescriptions.³ See PUMF 72; Warinner Depo. 34:25-35:23.Specifically, a pharmacist partially fills a prescription, but bills for the entire prescription after creating a label that shows the amount that is "owed" to the customer. PUMF 71. Mitri reported his concerns to various officers of Walgreens, and was advised to contact either Loss Prevention, his store manager, or the Pharmacy Supervisor Chris Scalzitti.⁴ See PUMF's 48-49. Based on what he was taught in a recent training program, and because he was concerned that Scalzitti was responsible for the type of improper billing at issue, Mitri contacted Loss Prevention. See PUMF 50. Mitri also reported the fraud to Walgreens Market Vice President Robert Hasty.⁵ See PUMF 54. Mitri was placed in touch with Loss Prevention Supervisor Lisa Warinner.⁶ See id. Mitri also made a complaint to the Department of Health and Human Services and to the California Department of Health Care at the end of April or first half of May 2009. PUMF 70. Scalzitti is unsure of the timeline, but he knew that Mitri had raised the issue of IOU labels in March, April, or May. See PUMF 56. However, Scalzitti testified that he would have known prior to May 11 that Mitri had come to Walgreens about the IOU labels. See Scalzitti Depo. 27:19-23.

On May 6, 2009, Mitri attended a conference call while on vacation. See Mitri Depo. 266:2-14; Mitri Depo. Ex. 12. Mitri did not identify himself on the call because he joined after the roll had been taken. PUMF 105. Mitri learned about the call from his pharmacy technician, and believed that his store manager, Viviana Lares, wanted him to participate. See PUMF's 104, 106. The notice for the conference call was for "all" pharmacy managers, and two weeks previously, Lares asked Mitri to attend a conference call on Mitri's day off. See PUMF 107. There was no written policy prohibiting off-duty pharmacists from attending such calls. PUMF 108. After the call, Mitri spoke to Lares and explained that he did not want to be paid, but thathe wanted her to know that he was on the call so that he couldn't get in trouble for "working off the clock." PUMF's 109, 115. Mitri was concerned about "working off the clock" because of the Release, which prohibited him from working off the clock. PUMF 116. Lares told him to call on Saturday when she did payroll. PUMF 110. Lares did not recommend that any action be taken against Mitri for the call. PUMF 111. Lares was not aware that there were any issues with Mitri's clocking in, and she recognized that Mitri did his best to increase profits. PUMF 113.

On May 11, 2009, Mitri was given a final written warning (the "Final Written Warning"). See Mitri Depo. Ex. 12. Mitri, Scalzitti, and Guillen were present at the meeting where the Final Written Warning was given. See id. Under the "Basis for Discipline" section of the Final Written Warning, it reads "Violation of Company Policies & Procedures." See id. Under the "explanation of the reason for the discipline" section, it reads:

On May 6th, [Mitri] attended a conference call while on vacation. When roll call was conducted, [Mitri] failed to identify himself as present on the call. After the call concluded, [Mitri] called his store manager asking to be paid.

In addition, you have previously received clear instruction from the District Manager and Pharmacy Supervisor that you are not to work beyond your scheduled shift. Despite the prior warning, you have continued to clock in before the start of your shift and continue working beyond your scheduled shift.

Your conduct in working off the clock and working beyond your scheduled shift goes against Walgreens policies and procedures and creates liability for the company. We realize that emergency situations sometimes will arise that require you to work beyond your scheduled shift; or to perform work for the benefit of Walgreens before you have checked in. In those or any other situations in which you believe that you need to take action that violates our policies and procedures you must get approval from the Pharmacy Supervisor, District Manager, or Store Manager. Any further unauthorized violations of Walgreens policies or procedures will result in your immediate termination.

Id. The Final Written Warning was signed by Scalzitti, Guillen, and Mitri.⁷ See id. Under the "optional employee response to discipline" section, Mitri responded: "I was not on the conference call [until] after roll was taken. Mrs. Lares said that I should call her Saturday AM & she would figure it out then." Id. Neither Scalzitti nor Guillen explained any concerns over reducing overtime, rather, they only mentioned "liability." PUMF 121. Mitri...