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Rando v. Leonard

United States Court of Appeals, First Circuit

June 17, 2016

SHELLY A. RANDO, Plaintiff, Appellant,
v.
MICHELLE LEONARD, Defendant, Appellee, CVS PHARMACY, INC., Defendant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS, Hon. Leo T. Sorokin, U.S. District Judge.

          Robert D. Loventhal, on brief for appellant.

          Laura M. Raisty and Locke Lord LLP, on brief for appellee.

          Before Torruella, Thompson, and Kayatta, Circuit Judges.

          TORRUELLA, Circuit Judge.

         From 2010 to 2012, more than 100 bottles of the pain medication butalbital went missing from a CVS Pharmacy in Concord, Massachusetts. After a CVS surveillance video showed plaintiff-appellant Shelly Rando, a pharmacy technician, pocketing a bottle of butalbital, Rando was suspected of committing the thefts. Defendant-appellee Michelle Leonard, a loss prevention manager at CVS, conducted an interview with Rando in which Rando confessed to stealing all of the missing bottles, and Rando was subsequently terminated. In this suit, Rando denies that she stole the bottles and asserts that Leonard is liable for the tort of intentional interference with contractual relations for forcing her to confess. The United States District Court for the District of Massachusetts entered summary judgment in favor of Leonard. We affirm.

         I.

         A. Factual History

         Since 2002, Leonard has served as a Regional Loss Prevention Manager at CVS Pharmacy, Inc. ("CVS").[1] As a Loss Prevention Manager, Leonard investigates "shrinkage, " the loss of inventory due to factors such as theft and vendor fraud. In February of 2011, Leonard learned of significant "growth" in butalbital at the CVS in Concord.[2] Growth occurs where a pharmacy "order[s] a drug in quantities that significantly exceed those that are being dispensed to patients." At that time, the CVS should have had 73 bottles, each containing 100 tablets of butalbital, in inventory. A review of the inventory yielded only 205 tablets of butalbital: 7095 tablets, or slightly fewer than 71 bottles, were missing. The losses soon stopped, however, and Leonard concluded that an employee who had recently left the company must have been responsible for their disappearance. In April of 2012, Leonard learned that the same CVS in Concord was again experiencing growth in butalbital, with 67 bottles, or 6700 tablets, missing. All in all, a total of 138 bottles of butalbital had disappeared since 2010. Around this time, Leonard also learned that the CVS had growth in hydrocodone.

         Rando had served as a pharmacy technician at various CVS stores since 1994 and was then employed at the CVS in Concord. On April 21, 2012, an in-store surveillance camera captured Rando taking a bottle of butalbital off the shelf and placing it in her pocket. Rando took the bottle home that day. After watching the video, either store manager Steve Normandy or pharmacy manager Colleen Robillard told Leonard about the tape and informed her that a bottle of butalbital was missing. Leonard watched the tape as well.[3]

         Two days later, on April 23, Leonard interviewed Rando with another loss prevention manager, Alfie Binns. Early in the interview, Rando acknowledged having taken the single bottle of butalbital on April 21. Leonard then broached the issue of whether Rando had also stolen the hydrocodone and the other 138 bottles of butalbital. Rando felt coerced and pressured during the meeting and recalled that Leonard barraged her with questions. Leonard repeatedly placed a confession in front of Rando for her to sign, asked whether Rando knew that she was going to be terminated, yelled at Rando, and threatened to call the police.[4] Rando also felt nervous as she did not know who Binns was or why he was there. Desperate to leave and exhausted by Leonard's constant questions, Rando finally signed the confession and a promissory note stating that she had stolen the 138 bottles of butalbital (but not any hydrocodone) and owed CVS $7, 482.99. During her deposition, Rando stated that she "would have admitted to stealing the crown jewels to get out of that room."

         Once Rando signed the confession, Leonard called the police and they arrived soon after. Rando agreed to let them search her home. During the search, the police found the bottle of butalbital that Rando had stolen two days before, along with two empty bottles from a "long, long time ago." Rando has not had a prescription for butalbital for more than ten years.

         In early May, Normandy called Rando to terminate her employment. Normandy did not explain why Rando was being terminated, nor did Rando ask for an explanation. Rando was charged with one count of larceny over $250 in the Concord District Court. After CVS failed to give any further evidence to the assistant district attorney ("ADA") in charge of the case, Rando was accepted into a pretrial diversion program. Rando took drug tests over a six-month period as part of the program, and the case was dismissed. The ADA later informed Rando's counsel that another individual had confessed to stealing the hydrocodone.

         B. Procedural History

         In May of 2013, Rando filed suit against Leonard and CVS in the United States District Court for the District of Massachusetts on the basis of diversity jurisdiction. Her amended complaint alleged counts of malicious prosecution, intentional infliction of emotional distress, negligent infliction of ...


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