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Killen v. Walgreen Co.

United States District Court, E.D. Tennessee, Greeneville

July 11, 2019

WALGREEN CO., Defendant.




         Before the Court is a motion for summary judgment by Defendant, Walgreen Company. (Doc. 27.) Plaintiff Sheila (“Krys”) Killen has responded (Doc. 34), and Defendant has replied (Doc. 38). Also before the Court is a motion by Defendant to strike affidavits and exhibits filed by Plaintiff. (Doc. 40.) Plaintiff has responded (Doc. 42), and Defendant has replied (Doc. 44). For the following reasons, the Court will DENY Defendant's motion to strike (Doc. 40), and GRANT IN PART and DENY IN PART Defendant's motion for summary judgment (Doc. 27).

         The Court will GRANT the motion for summary judgment as to Plaintiff's claims for age discrimination and maintaining a hostile work environment under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 623, 626; for sex discrimination, age discrimination, and through maintaining a hostile work environment under the Tennessee Human Rights Act (“THRA”), Tenn. Code Ann. §§ 4-21-401(a), 4-21-311; and for disability discrimination, and through maintaining a hostile work environment under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12102, et seq. The Court will DENY the motion as to Plaintiff's claims for retaliation under the ADEA, the THRA, and the ADA.

         I. BACKGROUND

         This action concerns Plaintiff's five years of employment with Defendant Walgreen Company (“Walgreen”). (Doc. 25.)[1] The allegations span three different store locations, and Plaintiff's complaint invokes ten different causes of action. (See id.)

         Plaintiff is a fifty-nine-year-old white female. (Doc. 37 ¶ 1.) She is a breast cancer survivor and also suffers from a heart condition which has required hospitalization. (Id. ¶ 2.)[2]

         Plaintiff began her employment with Walgreen in August 2011 as a customer service representative at its Johnson City State of Franklin Road retail store and pharmacy (the “Johnson City store”). (Id. ¶ 3.) Prior to her start, the woman who would serve as Plaintiff's manager, Renee Burleson, told current employees that Plaintiff was not a real blonde, was “not all there, ” did not have any sense, and could not get the job done. (Doc. 35 at ¶ 4.) Once Plaintiff started working at the Johnson City store, Burleson used the word “stupid” to describe Plaintiff's work activities to other employees, talked to Plaintiff in a condescending voice, and raised her voice or yelled at her for taking too much time on tasks. (Id. ¶¶ 8-11.) Burleson called Plaintiff “She She, ” and made her wear a name tag reflecting the name “She She, ” in spite of Plaintiff's protests. (Id. ¶¶ 9, 12; Doc. 37-1.)

         Plaintiff complained to the store manager, Tim Mullins, who transferred Plaintiff to a new location-the Broadway-Unaka Walgreen store (the “Broadway-Unaka store”). (Doc. 35 ¶ 21; Doc. 37 ¶ 3.) Plaintiff got along well with her new manager, Winston Richey, received several promotions, and was named as one of the store's shift leads. (Doc. 35 ¶ 21; Doc. 36 ¶ 7.) Plaintiff worked as shift lead for approximately eight months, until Burleson was transferred to be her supervisor once again, but now at the Broadway-Unaka store. (Doc. 36 ¶ 8.) Plaintiff received several written reprimands from Burleson, but Plaintiff refused to sign them because she found them unjustified. (Doc. 37 ¶ 13.) The reprimands were discipline for incurring overtime by clocking out late, taking a cell phone call in the restroom, refusing to answer intercom pages, and for telling a younger male associate “go play with yourself.” (Doc. 37 ¶¶ 14-16, 20-28, 40.) The bases of the written warnings were not always factually correct, or were exaggerated-for instance, Plaintiff observed that the younger male associate was playing with a rubber ball and Plaintiff said, or intended to say, “go play by yourself.” (Id. ¶ 26.) Because of daily hostility from Burleson, Plaintiff became a “nervous wreck” at Walgreen. (Id. ¶ 38.)

         On December 3, 2015, Plaintiff emailed District Manager Gregg McCollum stating that she could no longer work under Burleson. (Id. ¶ 43.) She also called Walgreen's complaint hotline the next day and described the work environment Burleson had created. (Id. ¶ 44.) After speaking with a hotline representative and meeting with McCollum personally, Plaintiff requested a transfer to Walgreen's Boone's Creek store location (the “Boone's Creek store”). (Id. ¶ 47.) On December 9, 2015, Plaintiff also emailed Randy Reddick, Walgreen's Director of Pharmacy and Retail Operations, about her concerns. (Id. ¶ 53.)

         Within two weeks of her complaint to McCollum, McCollum transferred Plaintiff to Walgreen's Piney Flats store location (the “Piney Flats store”), instead of the Boone's Creek store which she had requested. (Id. ¶ 55.) Plaintiff found the transfer “unusual” because there was no existing shift lead vacancy at the Piney Flats store, but there was a vacancy at the Boone's Creek store. (Id.) The female shift lead at the Piney Flats store, Cathleen Bradshaw, was approximately eight to nine years younger than Plaintiff. (Id. ¶ 56.) Within a week of Plaintiff's start at the Piney Flats store, Bradshaw was transferred to the Boone's Creek store to fill the vacancy Plaintiff had requested to fill. (Id. ¶ 58.)

         Plaintiff was not happy to be transferred to the Piney Flats store because she had heard that the manager, Robert Leigh, was a difficult manager. (Id. ¶ 57.) Leigh was “cool” toward Plaintiff from the start. (Id. ¶ 59.) In late December 2015, Leigh approached Plaintiff from behind and told her in a “somewhat threatening tone, ” “if you feel like you're being watched, you are.” (Id. ¶ 59.) He then added “I am watching you.” (Id.) This remark unnerved Plaintiff and made her continuously on edge for the rest of her employment at the Piney Flats store. (Id.) Leigh also started slamming management store books down on his desk in order to startle Plaintiff, and once vented his anger by shoving a metal dolly towards her. (Id. ¶ 60-61.)

         Plaintiff began experiencing persistent chest pain. (Id. ¶ 62.) Plaintiff went to the emergency room on January 1, 2016, and was hospitalized at length due to a significant blockage in one of her arteries. (Id.) She missed six weeks of work during recovery, and returned on February 22, 2016. (Id.)

         Leigh informed a claims manager via an email sent January 11, 2016 that the store would not be able to accommodate a shift lead returning to work on “restricted duty, ” but that the shift lead would otherwise need to be able to perform “heavy work, ” as described in the shift lead job duties. (Id. ¶ 65; Doc. 37-11.)

         When Plaintiff returned to work, Leigh and Pharmacy Manager Matt Lunsik met with Plaintiff, and gave her a verbal warning about her failure to complete a “smart count”[3] and other work assignments in late December, before her hospitalization. (Doc. 37 ¶ 66.) At the meeting, Leigh told Plaintiff she would be discharged if her performance did not improve. (Id. ¶ 66.)

         The next day, February 23, 2016, Leigh and McCollum met with Plaintiff. (Id. ¶ 67.) They told her she was getting a “new start” with Walgreen. (Id.) During the meeting, Leigh also told Plaintiff that she was “too slow.” (Id.) Leigh met with Plaintiff once a week thereafter. (Id.) Leigh told Plaintiff that she needed to work faster. (Id.)

         On April 8, 2016, Leigh told Plaintiff that he had seen some improvement in her work and that Plaintiff would need to continue to show “major improvement” during the next month. (Id. ¶ 68.) Leigh then began assigning Plaintiff “self-improvement articles” to read, and required Plaintiff to write one-page essay commentaries on what Plaintiff gleaned from each article. (Id.) Leigh did not block off time during the day for her to complete the articles, so Plaintiff read them after she got home from work each night. (Id. ¶ 70.) On April 11, 2016, Leigh assigned Plaintiff two articles to read, but Plaintiff could not get both of the assignments done in one week. (Id. ¶ 77.) On one occasion, Plaintiff was given leave to select an article to read, but when she turned in her essay, Leigh told her she had chosen the “wrong one, ” and directed her to read and write an essay on a different article of his choice. (Id. ¶ 78.) Plaintiff did not see any relevance in reading articles about time management, as Walgreen prioritized her job duties and planned her work day for her through assignment sheets which listed chores to be performed between predetermined times. (Id. ¶ 79.)

         Leigh had successfully utilized the method of assigning articles and essay summaries with a male pharmacist whom he had supervised. (Doc. 29 ¶ 10.) The self-improvement articles were available through a Walgreen employee-improvement “library, ” and related to an employee's discretionary activities and personality development. (Doc. 36 ¶ 19.)

         At some point during the spring of 2016, Leigh showed Plaintiff into the storeroom and pointed out several cardboard boxes containing gallon jugs of liquid detergent sitting atop the storage shelves. (Doc. 37 ¶ 71.) Each box contained four one-gallon jugs of liquid detergent, and weighed nearly fifty pounds each. (Id.) Plaintiff was instructed to put the boxes on the floor. In order to do so, she had to get a step ladder, open each box, take each jug out separately, and go down the ladder with each jug. (Id. ¶ 72.) Leigh later had Plaintiff repeat the same task after someone placed the boxes back onto the shelf. (Id. ¶¶ 74-75.) Plaintiff believed Leigh was attempting to convince her to resign. (Id. ¶ 76.)

         From May to June of 2016, Plaintiff discovered that the Piney Flats store's side-door had been left unlocked and ajar on three different occasions during her evening security walk. (Id. ¶ 92.) The side door could not be unlocked unless a manager used a key to open the door and turn off an alarm. (Id.) Each time Plaintiff found the door open, she reported the incident to Leigh. (Id.) Because the door continued to be left ajar, Plaintiff believed Leigh was setting her up to accuse her of missing the open door during her security check. (Id.)

         On June 7, 2016, Leigh and Lunsik met with Plaintiff and placed her on a Performance Improvement Plan (a “PIP”). (Id. ¶ 93.) Under the PIP, Leigh assigned seven more self-improvement articles. (Doc. 28-11 at 6.) Leigh's notes on meetings with Plaintiff in the PIP reflected the following, errors in original:

• 12/15/15 - Initial meeting, laid out the expectation of working at this location
• 2/22/16 - Conducted meeting that was to happen on 1/4, meeting did not happen due to her medical leave, reviewed: 1) My concerns toward her performance before she went out on leave 2) her options 3) retraining process 4) Steps if her performance does not improve. (Matt Lunsik was present for this meeting)
• 2/22/16 - A verbal warning was issued for not completing assigned task. (Matt Lunsik was present for this meeting)
• 2/23/16 - (with District Manager Greg McCollum) expressed that she wanted a fair shot. He explained that this was a new start, also that I communicated in December that yesterdays meeting was going to take place.
• 3/2/16 - reconfirmed the verbal warning from last week. COMPASS, PPL's overdue & smart count not completed. Also reviewed the following 1) Checklist 2) COMPASS 3) Sense of urgency 4) Time management 5) Communication 6) multi tasking. (Matt Lunsik was present for this meeting)
• 3/4/16 - Asked for update on PPL's, she said she was working on them. I explained that they were already overdue and needed to be completed.
• 3/7/16 - Recapped her day on Friday 3/4, Not much work was completed, explained that she needed to speed things up, she has one pace, very slow. Told her she must manage her time, 48 Minutes of overtime in the last pay week. (Matt Lunsik was present for this meeting)
• 3/9/16 - Gave her the HMM on time management. Explained that this was not required, but I thought it might help her
• 3/10/16 - 28 minutes of overtime last week. Explained that she was to have no overtime going forward unless approved by me.
• 3/14/16 - Hanging of ad tags must be done before store opens. Let her know that training with Christy on Friday went well according to Christy (Randy Kind &. Matt Lunsik were present for this meeting)
• 3/18/16 - Reviewed the following 1) Working the list and leading your team 2) Taking lunches 3) Code green, attitude toward the pharmacy techs. (Matt Lunsik was present for this meeting)
• 3/22/16 - Reviewed COMPASS, expiring call-ins & PLP project
• 3/23/16 - Reviewed Leading people, sense of urgency & Communication.
• 3/26/16 - Let her know to page me when she could not get to a call. Coached her on working the list, both her and Taylor working OSA (not even on the list) with truck sitting in the stockroom. Also spoke about time management & worrying about what she is doing instead of Randy (ASM) & Christy (SFL) are doing
• 3/30/16 - Spoke about previous day when I was out sick. Not much work completed.
• 4/1/16 - Got her feedback on how she thought everything was going to help prep for her 30 day check-in • 4/8/16 - Coached on pharmacy issue from previous night
• 4/8/16 - 30 day check-in. Explained that I was not ready to issue a verbal warning at this time due to starting to see some improvement, and that major improvement was needed in the next 30 days. Also explained that I was going to use a different approach using some reading to help with the problem areas. 60 day check in scheduled for 5/9/16 (Matt Lunsik was present for this meeting)
• 4/11/16 - Assigned 2 articles "sense Of Urgency" & "Time Trap" 4/12/16 -Expressed that 2 articles by Monday might be too much. Changed it to 1 article
• 4/14/16 - coached on front end ECC
• 4/18/16 - Reviewed article "Time Trap". Changes coming in Cosmetic Dept.
• 4/25/16 - "Sense Of Urgency" article due. Not completed. Spoke about time management
• 4/26/16 - Reviewed article & assigned the next one "Make Every Second Count", discussed duties & task issues
• 5/4/16 - Reviewed article "Make Every Second Count". Discussed overdue PPL.
• 5/9/16 - 60 day check-in. Explained that this check in was going to be her verbal warning for overall performance. Discussed issues. She stated that there were too many interruptions and that I expected to much. Assigned her next article "The Up Side Of Stress" 90 day check in scheduled for 6/6/16 (Matt Lunsik was present for this meeting)
• 5/19/16 - Reviewed checklist. Stress article, expectations, reviewed the SFL job description
• 5/20/16 - Reviewed pricing/inventory checklists from previous day
• 5/23/16 - Reviewed pricing/inventory checklists again, cooler/freezer temp log also
• 5/31/16 - Reviewed weekend performance and notes for current day due to new crew members
• 6/1/16 - Reviewed issues from the the previous night
• 6/13/16 - Issued verbal warning for overtime. Had overtime in each of the last 3 pay periods

(Doc. 28-11 at 4-5.) Leigh noted that the competencies in which Plaintiff needed improvement were people leadership, functional competency, operations/business leadership, communication, time management, multitasking, and sense of urgency. (Id. at 5-6.) In the portion of the PIP where Plaintiff could provide her own comments, she wrote the following, errors in original,

since I have been transferred to this store I have had my position threatening, harassed, singled out and been told to write summarys and was a secret between the pharmacist matthew and mr. leigh, and was told not to tell anyone else. I thinks when I was transfer to this store and the reason why I was really transfer to this store, mr. leigh says he don't know and don't care. I am contacting the EECO for help, policy state this harassment, and I have email Mr. McCollum, and I have done everthing he have ask and will but the harrassement has to stop and the threats to. I will not sign this because I don't agree with it. I will do the assignment and I have done everthing he ask.

(Id. at 10.) In the “30 Day PIP Follow-up” portion of the PIP, Leigh entered the ...

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