You v. Longs Drugs Stores Cal., LLC

• Decision Date: 27 March 2013
• Docket Number: Civil No. 11–00530 SOM/RLP.
• Citation: 937 F.Supp.2d 1237
• Parties: Tammy P. YOU, Plaintiff, v. LONGS DRUGS STORES CALIFORNIA, LLC, d/b/a Longs Drugs; Thomas McKeown; John Does 1 through 10; Doe Corporations 1 through 10; and Doe Unincorporated Associations, Including Partnerships 1 through 10, Defendants.
• Court: U.S. District Court — District of Hawaii

937 F.Supp.2d 1237

Tammy P. YOU, Plaintiff,

v.LONGS DRUGS STORES CALIFORNIA, LLC, d/b/a Longs Drugs; Thomas McKeown; John Does 1 through 10; Doe Corporations 1 through 10; and Doe Unincorporated Associations, Including Partnerships 1 through 10, Defendants.

Civil No. 11–00530 SOM/RLP.

United States District Court, D. Hawai‘i.

March 27, 2013.

R. Steven Geshell, Honolulu, HI, for Plaintiff.

Darin Robinson Leong, Richard M. Rand, Marr, Jones & Wang, LLLP, Honolulu, HI, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

SUSAN OKI MOLLWAY, Chief Judge.

I. INTRODUCTION.

This removed case involves Plaintiff Tammy You's claims of employment discrimination and retaliation against her former employer, Defendant Longs Drugs Stores California, LLC, and her former supervisor, Thomas McKeown. See Verified Complaint, ECF No. 6–3. You asserts that Defendants (1) discriminated against her on the basis of race, sex, age, disability, and national origin, in violation of federal and state law, and (2) retaliated against her in violation of the Hawaii Whistleblower Protection Act, section 378–62 of Hawaii Revised Statutes. She also asserts that McKeown intentionally inflicted emotional distress on her. She seeks special, general, and punitive damages, plus costs and attorney's fees. See id.

Defendants now move for summary judgment on the ground that each of You's claims lacks merit. See ECF Nos. 26. The court grants the motion.

II. BACKGROUND.

You describes her race as “Hawaiian, Japanese, Korean, white, and possibly Spanish.” Deposition of Tammy You at 20, ECF No. 27–2, PageID # 250. Her national origin is American. Id. at 299, ECF No. 27–3, PageID # 403. She believes that others perceive her as “mixed race, local”. Id. at 26, ECF No. 27–2, PageID # 251. You testified that she has no disability. Id. at 54, ECF No. 27–2, PageID # 267.

On June 27, 2010, Roy Matsuura, the manager of the Longs store in Kaneohe, Hawaii, hired You and Lauren Kanda as pharmacy service associates at that Longs location. See You Depo. at 32, ECF No. 27–2, PageID # 253; Declaration of Roy Matsuura ¶ 2 (“I made the decision to hire Tammy You as a pharmacy service associate in June 2010.”), ECF No. 27–34, PageID # 804. You, who was born in 1967, is older than Kanda, who is in her 20s and of Japanese descent. Declaration of Tammy P. You ¶ 17, ECF No. 31–1, PageID # 822; You Depo. at 5, ECF No. 27–2, PageID # 249.

You and Kanda began working the overnight shift on August 1, 2010, when the store was scheduled to offer twenty-four-hour service. You Depo. at 31, ECF No. 27–2, PageID # 252. You and Kanda were in a “special training program” designed to prepare them for the overnight shift by August 1, 2010. Id.

McKeown is the head pharmacist at the Longs store in Kaneohe. Declaration of Thomas McKeown ¶ 1, ECF No. 27–31, PageID # 797. Thirty-six years old when You was hired, McKeown is of Caucasian and Japanese descent, and considers himself “local American” and “mixed local.” McKeown Decl. ¶¶ 2, 4.

You says Defendants treated Kanda more favorably than her. Specifically, You says that Kanda received more overtime work, was not reprimanded when she was late, and was allowed to make up time when she was late. You, on the other hand, was reprimanded and not allowed to make up time when she was late. You Decl. ¶¶ 11, 13, ECF No. 31–1, PageID # 819. You also says that someone at Longs manipulated attendance records. See You Decl. ¶ 11, ECF No. 31–1, PageID # 819 (“There are numerous instances where I signed in and then the employer changed the time records to make it look like I was late or took too much time for lunch or whatever they wanted to prove in changing my records.”).

Although You says that she does not have a disability, she claims that Defendants treated her as if she had a learning disability. You Depo. at 302, ECF No. 27–3, PageID # 406.

You alleges that, on or around July 2010, McKeown asked her how many times she had dispensed a particular drug. You Depo. 32–33, 36–41, ECF No. 27–2, PageID # s 253–60. You says she did not understand why McKeown sought such information, and told him, “You're stressing me out.” Id. at 36, ECF No. 27–2, PageID # 255. McKeown recalls having asked You about dispensing the generic form of Flonase. McKeown says that he wanted to make sure that You “was familiar with the names of common drugs dispensedfrom the pharmacy.” You Decl. ¶¶ 10–11, 13, ECF No. 27–31, PageID # s 798–99.

According to You, in response to her statement that McKeown was stressing her out, McKeown asked her to go upstairs so they could speak, then said, “You're not qualified for pharmacy. Who do you think you are? Other people have been waiting for their chance to be in pharmacy. Why do you think you're qualified?” Pl. Dep. 44, ECF No. 36–1, PageID # 878. You says McKeown also told her, “You need to self-identify and check.” Id. at 45. You interpreted this statement to mean, “You check your national origin. Who are people going to believe? The Hawaiian or the Japanese?” Id. at 45–46. McKeown did not expressly refer to national origin; You concedes that he only said, “Look into yourself and see. You're not qualified.” Id. at 45. He also allegedly said, “You need to go home, decide what you're going to do. Don't come back to pharmacy.” Id. at 51, ECF No. 27–2, PageID # 266.

During this exchange, You expressed her concern regarding getting enough training before the August 1 deadline. Id. She alleges that McKeown replied, “Don't worry about it. I decide.” Id.

On September 5, 2010, You contacted the Longs ethics line to report that she was being harassed on the basis of race, age, and intelligence, and that she had been denied training that other employees received. She complained that McKeown only showed her things once and chastised her for not writing things down. She also complained that McKeown reprimanded her for using the word “yea” instead of “yes” in front of a customer and pushed her with a basket to make her move faster. See ECF No. 27–22, PageID # 781. In connection with the basket incident, You explained that, during her “production” training, she had seen a basket of prescription drug bottles. She initially characterized McKeown as having “shoved” her with that basket, but later said that, when she refrained from touching the basket because she did not know what her trainer expected her to do with it, McKeown pushed it toward her without a word, causing the basket to touch her below her breast. See You Depo. at 144, ECF No. 27–2.

You complains that McKeown viewed her as having a slow learning curve and was therefore unwilling to provide training to her. Id. at 197–98. Although You's charge of discrimination stated under penalty of perjury that McKeown made derogatory comments about her “learning curve,” see ECF No. 27–27, You conceded in her deposition that McKeown never expressly commented that her learning curve was holding her back. You Depo. at 206. Instead, McKeown told her that she should write things down and that she was not 100% yet. Id. at 205 and 303. You appears to have interpreted the “write things down” comment as meaning “Your learning curve is holding you back. You can't be trained.” Id. at 206.

Asked what training she had not received, You's reply was only that she had not felt fully trained. See You Depo. at 236, ECF No. 42–3, PageID # 952. It appears that You had received about 20 types of training and may have failed to complete only the on-job training, although she did receive two days of on-job training. Id. at 233–36. You testified that her records incorrectly reflected that she had, in fact, completed the on-job training. See id. at 127. You does not specifically identify any training that another employee received that she did not.

According to You, Kanda was trained first, then McKeown wanted Kanda to train You. See id. at 248. You observed Kanda progressing faster. For example, although You eventually did “production,” Kanda did it first. See id. at 244. You suggests that Kanda was allowed to progress faster because she was younger and “Japanese-looking,” not based on competency. See id. at 241.

In her Verified Complaint, You says that, on October 10, 2010, she reported to the Longs ethics line that she was being retaliated against because of her earlier contact with the ethics line. Verified Complaint ¶ 22. The retaliation You was referring to came in the form of “Coaching and Counseling Forms” stating that You had placed a prescription on the wrong shelf and had sent a prescription to the out-of-stock queue even though the item prescribed was in-stock. See ECF Nos. 27–23 and 27–24, PageID # s 783–786. These forms were signed by You and her supervisor, pharmacist Rona Nuesca. Id. You claims that Nuesca counseled her at McKeown's direction on false grounds. See You Depo. at 98, 254, ECF Nos. 27–2 and 27–3. You does not contest the accuracy of the write-ups and was not demoted as a result of the alleged errors. Id. at 255–57.

According to the Verified Complaint, You spoke with the Longs employee relations office on October 26, 2010, and was told that her ethics complaint was closed with no finding of misconduct. See Verified Complaint ¶ 25, ECF No. 6–3.

On December 3, 2010, You filed a Charge of Discrimination (“Charge”) with the Hawaii Civil Rights Commission (“HCRC”) and the United Stated Equal Employment Opportunity Commission (“EEOC”), alleging that Defendants had discriminated against her on the basis of sex, national origin, retaliation, age, and disability. See ECF No. 27–27. The charge alleges that the discrimination began on June 28, 2010, and last occurred on November 23, 2010. Id. The Charge states:

On June 28, 2010, I was hired by the above-named employer. My current job title is Pharmacy Service Associate.

Since my hire, Lead Pharmacist Thomas Mckeown [sic] (Asian/White male, age 30's) has subjected me to disparate treatment and harassment. Mckeown failed to provide me...