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You v. Longs Drugs Stores California, LLC

United States District Court, D. Hawai'i

March 27, 2013

TAMMY P. YOU, Plaintiff,

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For Tammy P. You, Plaintiff: R. Steven Geshell, LEAD ATTORNEY, Honolulu, HI.

For Longs Drug Stores California LLC, doing business as Longs Drugs, Thomas McKeown, Defendants: Darin Robinson Leong, Richard M. Rand, LEAD ATTORNEYS, Marr Jones & Wang LLLP, Honolulu, HI.


Susan Oki Mollway, Chief United States District Judge.

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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,

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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.


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 dispensed

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from 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,

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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 with adequate training and job assignments. He has also made derogatory comments to me and in front of co-workers about my " learning curve" to perform my job duties. On one occasion, McKeown intentionally hit me with a black basket used for patient's prescriptions and has repeatedly threatened to discharge me. On the other hand, McKeown has provided a similarly situated employee Lauren Kanda (younger Asian-Japanese female, 20's) adequate training and job assignments.
In September 2010, I complained to Respondent about McKeown's discriminatory behavior and my training. During the investigation of my complaint, Mckeown [sic] directed a female Night Pharmacist (Rona Nuenes [sic]) to issue me an unwarranted written warning. Subsequently, I complained to Respondent about retaliation. I do not believe Respondent took appropriate, corrective action with respect to my complaints because they were both dismissed.

ECF No. 27-27, PageID # 791.

Longs has a policy regarding the sale of pseudoephedrine (" PSE" ), a component used in the illegal manufacture of methamphetamine. Longs uses a " MethCheck" procedure to enforce limits on sales of PSE products. MethCheck requires every pharmacy service associate to scan the PSE product and enter the customer's identification information into the system. The MethCheck system then looks up the customer's records and tells the employee whether the customer has exceeded the limit. See You Depo. at 166-67, ECF No.

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27-2, PageID # 166-67. You acknowledged that she received training from Longs on the PSE limits, as well as the company's policy and procedure governing PSE sales. See id. at 163, 176. You knew that " Failure to comply with CVS company policy and the law regarding sales of restricted products [would] have numerous potential outcomes, including disciplinary action, including termination of employment . . . ." Id. at 183-84.

You admits that, on May 22, 2011, she sold Loratadine-D, a generic form of Claritin-D and a regulated PSE product, without obtaining customer identification and in violation of company policy. See You Depo. at 261-66, 273, ECF No. 27-3. She tried to scan the product, but because it would not scan properly, she manually looked up the price of the item, then entered the item into the register as a " taxable item" with the corresponding price. Id. at 265. Because You entered the item as a " taxable item," it did not trigger the MethCheck procedure. Id. at 269. She admitted that this act violated company policy, as well as federal guidelines. Id. at 271-72. You said that she did not know whether the customer had exceeded his limit for PSEs when she sold him the Loratadine-D. Id. at 270.

On May 25, 2011, the EEOC issued You a " right to sue" notice, with a determination that it was unable to conclude that Defendants had violated anti-discrimination laws. See Complaint, Ex. 2. On June 28, 2011, the Hawai'i Civil Rights Commission also issued You a " Notice of Dismissal and Right to Sue" letter. See Complaint, Ex. 3.

On May 27, 2011, two days after the EEOC had issued its right-to-sue letter and about one month before the HCRC had issued its right-to-sue letter, the Kaneohe Long's store manager, Roy Matsuura, terminated You based on her violation on May 22, 2011, of the PSE policy. See Matsuura Decl. ¶ 4; [1] You Depo. at 282, ECF No. 27-3. According to Matsuura, You's " selling [of] the PSE without obtaining proper identification" was the sole reason You was terminated. Matsuura Decl. ¶ 5. There is no dispute that You's termination was not raised in her December 3, 2010, Charge to the EEOC or the HCRC.


Summary judgment shall be granted when " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a) (2010). See Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The movants must support their position that a material fact is or is not genuinely disputed by either " citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials" ; or " showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c). One of the principal purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See id. at 323.

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A moving party without the ultimate burden of persuasion at trial--usually, but not always, the defendant--has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).

The burden initially falls on the moving party to identify for the court those " portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp., 477 U.S. at 323). " When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (footnote omitted).

The nonmoving party must set forth specific facts showing that there is a genuine issue for trial. T.W. Elec. Serv., Inc., 809 F.2d at 630. At least some " 'significant probative evidence tending to support the complaint'" must be produced. Id. (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). See Addisu, 198 F.3d at 1134 (" A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact." ). " [I]f the factual context makes the non-moving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial." Cal. Arch'l Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587). Accord Addisu, 198 F.3d at 1134 (" There must be enough doubt for a 'reasonable trier of fact' to find for plaintiffs in order to defeat the summary judgment motion." ).

All evidence and inferences must be construed in the light most favorable to the nonmoving party. T.W. Elec. Serv., Inc., 809 F.2d at 631. Inferences may be drawn from underlying facts not in dispute, as well as from disputed facts that the judge is required to resolve in favor of the nonmoving party. Id. When " direct evidence" produced by the moving party conflicts with " direct evidence" produced by the party opposing summary judgment, " the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact." Id.


You's Verified Complaint asserts claims against Longs for violations of Title VII, 42 U.S.C. § § 2000e-2 and 2000e-3 (Counts I and IV); the Americans with Disabilities Act, 42 U.S.C. § § 12112 and 12132 (Count II); the Age Discrimination in Employment Act, 29 U.S.C. § 623 (Count III); and section 378-2 of Hawaii Revised Statutes (Count V). The Verified Complaint asserts that Longs and McKeown violated the Hawaii Whistleblower Protection Act, section 378-62 of Hawaii Revised Statutes (Count VI), but You has withdrawn that claim with respect to McKeown and is proceeding in Count VI only against Longs. You also asserts an intentional infliction of emotional distress claim against McKeown (Count VII).

A. Disparate Treatment Claims.

Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on " race, color, religion, sex, or national origin." 42 U.S.C. ยง 2000e-2(a). The Americans with Disabilities Act ...

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