SHELLY A. RANDO, Plaintiff, Appellant,
MICHELLE LEONARD, Defendant, Appellee, CVS PHARMACY, INC., Defendant.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS, Hon. Leo T. Sorokin, U.S. District Judge.
D. Loventhal, on brief for appellant.
M. Raisty and Locke Lord LLP, on brief for appellee.
Torruella, Thompson, and Kayatta, Circuit Judges.
TORRUELLA, Circuit Judge.
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.
2002, Leonard has served as a Regional Loss Prevention
Manager at CVS Pharmacy, Inc.
("CVS"). 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. 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
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.
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. 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."
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
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.
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 ...