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Mariano v. Rite Aid of Maine, Inc.

United States District Court, D. Maine

October 15, 2018




         Before the Court are Defendant's Motion for Summary Judgment (ECF No. 35), Plaintiff's Motion to Amend Complaint (ECF No. 52), and the Unopposed Amended Motion to Allow Oral Argument on Summary Judgment (ECF No. 53). As to the request for oral argument, the Court has determined, in an exercise of its discretion, that the pending motions can be decided without oral argument. Therefore, this request is DENIED. For reasons explained herein, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion for Summary Judgment (ECF No. 35) and DENIES Plaintiff's Motion to Amend Complaint (ECF No. 52).


         Generally, a party is entitled to summary judgment if, on the record before the Court, it appears “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). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). An issue is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. A “material fact” is one that has “the potential to affect the outcome of the suit under the applicable law.” Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993).

         The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether this burden is met, the Court must view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. See Santoni v. Potter, 369 F.3d 594, 598 (1st Cir. 2004).

         Once the moving party has made this preliminary showing, the nonmoving party must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Triangle Trading Co., Inc. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (quotation marks and internal ellipsis omitted); see also Fed.R.Civ.P. 56(e). “Mere allegations, or conjecture unsupported in the record, are insufficient.” Barros-Villahermosa v. United States, 642 F.3d 56, 58 (1st Cir. 2011) (quoting Rivera-Marcano v. Normeat Royal Dane Quality A/S, 998 F.2d 34, 37 (1st Cir. 1993)); see also Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st Cir. 2011) (“A properly supported summary judgment motion cannot be defeated by conclusory allegations, improbable inferences, periphrastic circumlocutions, or rank speculation.”). “As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment for the moving party.” In re Ralar Distribs., Inc., 4 F.3d 62, 67 (1st Cir. 1993). “However, summary judgment is improper when the record is sufficiently open-ended to permit a rational factfinder to resolve a material factual dispute in favor of either side.” Morales-Melecio v. United States (Dep't of Health and Human Servs.), 890 F.3d 361, 368 (1st Cir. 2018) (quotation marks omitted).


         Having reviewed the record and the statements of material fact in accordance with Local Rule 56, “the Court constructs the following narrative from the undisputed facts as well as the disputed material facts viewed in the light most favorable to the non-movant, ” here, Plaintiff. Ramsdell v. Huhtamaki, Inc., 992 F.Supp.2d 1, 5 (D. Me. 2014).

         Defendant Rite Aid of Maine, Inc.

         Rite Aid Of Maine, Inc. (“Rite Aid”) is a drug store chain engaged in the business of providing pharmacy services. Rite Aid's advertised mission is: “To be a successful chain of friendly, neighborhood drugstores. Our knowledgeable, caring associates work together to provide a superior pharmacy experience and offer everyday products and services that help our valued customers lead healthier, happier lives.” (Joint Statement (ECF No. 32), PageID # 288.) In general, Rite Aid staffs each pharmacy with one or more pharmacists who are supported by a team of pharmacy technicians. Rite Aid also employs Pharmacy District Managers (“PDMs”) to provide another level of management for its stores. Each PDM manages a district that contains approximately twenty-five stores and approximately fifty to sixty pharmacists working in those stores.

         Rite Aid has adopted a Nondiscrimination Policy and a Harassment in the Workplace Policy, both of which are contained in the Rite Aid Associate Handbook (ECF No. 38-1).[1] The Rite Aid Associate Handbook also contains procedures to report discrimination or harassment, a policy prohibiting retaliation against employees that utilize these reporting procedures, and a policy for accommodating associates with disabilities. Additionally, the Handbook contains Rite Aid's Family and Medical Leave (“FMLA”) Policy and a Non-FMLA Medical Leave Policy, which includes leave as an accommodation under the ADA.[2] Rite Aid's FMLA Policy generally provides up to twelve weeks of unpaid FMLA leave for eligible associates with qualifying family and/or medical needs. The policy also notes that an “associate may be eligible for additional leave beyond the FMLA . . . as a reasonable accommodation.” (Rite Aid Family & Medical Leave Policy (ECF No. 44-4), PageID # 1194.)

         Generally, requests for leave and accommodations are handled by the Rite Aid Benefits Service Center (“RABSC”), whereas Rite Aid's short and long term disability benefits are administered by Prudential Insurance Company. When RABSC has “enough information” to determine leave is being taken for a “FMLA-qualifying reason, ” the policy states that the associate must be notified that her leave is designated and counted as FMLA leave within five business days. (Rite Aid Family & Medical Leave Policy (ECF No. 44-4), PageID # 1195.) The Handbook explains that non-FMLA medical leave requires that a packet of information supporting the leave request be returned to RABSC “within 15 days” and further indicates that “medical leaves of absence . . . ordinarily have a cap of 180 days (consecutive or cumulative) in any 365-day period.” (Handbook (ECF No. 38-1), PageID # 1071.)[3]

         Rite Prescription Program

         One of the essential job functions of a Rite Aid Staff Pharmacist is to ensure the accuracy and appropriateness of all filled prescriptions. During the relevant time period, Rite Aid used a process to monitor its prescriptions-called the Rite Prescription Program-to track whether each pharmacist was fulfilling this function. The Rite Prescription Program includes (1) quality assurance guidelines to prevent prescription incidents, (2) handling, reporting and auditing of prescription incidents, and (3) a Continuous Quality Improvement (CQI) Process. The Program states: “It is company policy that all quality related incidents in the pharmacy be reported immediately upon discovery, after the pharmacist has addressed the incident with the patient.” (Armiento Decl. (ECF No. 38), PageID # 1042.) The program required that all quality related incidents in Rite Aid's pharmacies (including prescription errors) be reported immediately using Rite Aid's toll-free claims reporting number. These reports are then tracked and attached to a particular pharmacist via a program known as Net Claims.

         Rite Aid has a step-by-step process for disciplining Pharmacists when there are prescription errors. To the extent a Technician or Cashier working at the pharmacy makes a prescription error, the error is the responsibility of the Pharmacist working at the time.

         During the relevant time period, if a Pharmacist incurred three errors[4] in a rolling twelvemonth period, the Pharmacist received a verbal warning from the PDM. If a Pharmacist incurred six errors in the same rolling twelve-month period, the Pharmacist received a written counseling from the PDM. If a Pharmacist incurred nine errors in the same rolling twelve-month period, the Pharmacist received a final written warning from the PDM. If a Pharmacist incurred an additional error in the same rolling twelve-month period, the Pharmacist's continued employment was subject to review by a Peer Review Committee, which could recommend corrective actions or termination of the pharmacist subject to review.

         Plaintiff Christine Mariano

         Christine Mariano, R. Ph. (“Mariano”) completed a five-year program at the Massachusetts College of Pharmacy and graduated with a Bachelor of Science degree in Pharmacy in 1985. She became licensed to practice pharmacy in the State of Maine in November 1985 and has practiced pharmacy since that date. On August 13, 1990, Mariano was hired as a Pharmacist at a store located at 37 Portland Road in Kennebunk, Maine (the “Kennebunk Store” or the “Store”). Rite Aid acquired the Store shortly thereafter.[5] At various times during her Rite Aid career, Mariano worked as a Staff Pharmacist, Pharmacy Manager, and Pharmacy District Manager (“PDM”).[6] On or about February 29, 2000, Mariano voluntarily transferred to the Rite Aid store in Biddeford, Maine (the “Biddeford Store”). Thereafter, she worked as a PDM from 2005 until 2007 before transferring back to a Staff Pharmacist position at the Biddeford Store. On or about September 22, 2013, Mariano transferred back to the Kennebunk Store as a Staff Pharmacist.

         Throughout her tenure at Rite Aid, Mariano's annual performance evaluations rated her at meeting or exceeding expectations. On or before April 12, 2015, Mariano received an overall “Meets Expectations” performance rating from the Kennebunk Store Pharmacy Manager Christopher Joseph (“Joseph”) and her then-PDM Shauna Armiento (“Armiento”).[7]

         The Kennebunk Store

         Rite Aid staffed its Kennebunk Store with two assigned Pharmacists. After Mariano's 2013 transfer, those pharmacists were Mariano and Joseph, who served as Mariano's direct supervisor in his role as the Pharmacy Manager of the Kennebunk Store. In general, Rite Aid expected these two pharmacists to cover all of the shifts at the Store.[8] If Mariano was the pharmacist on duty for a particular shift, she was “in charge” for that shift. However, the Pharmacy Manager retained the authority to hire, fire and formally evaluate pharmacy staff and was also registered as the Pharmacist in Charge (PIC) with the Maine Board of Pharmacy.

         As a Staff Pharmacist, Mariano understood that she was responsible for quality assurance during the prescription-filling process for her shifts and she was familiar with Rite Aid's quality assurance guidelines, which contain the prescription-filling requirements for Pharmacists. In accordance with Rite Aid's policies and the directions she received from her supervisors, Mariano understood that she was required to report prescription errors and violations of the Health Insurance Portability and Accountability Act (“HIPAA”) in her role as Staff Pharmacist, and that failure to do so could lead to employment termination.

         In 2013, when Mariano transferred back to the Kennebunk Store, the Store was in “red status, ” which meant it was not in full compliance with Rite Aid's model for practicing pharmacy. By Spring 2014, Mariano had assisted in bringing the Kennebunk Store into compliance with the necessary metrics for the Store to be in “green status.”

         In December 2014, Armiento became the PDM responsible for the district that included the Kennebunk Store. This was a promotion for Armiento, who began working for Rite Aid in 2011 immediately after receiving her Pharm.D. degree.[9] In connection with beginning this position, Armiento attended a month-long training and also received computer-based training on discrimination and harassment. While working as the PDM for the Kennebunk Store, Armiento interacted with Mariano every two to three weeks. Within Armiento's first six months as PDM, Mariano reported multiple concerns about management of the Kennebunk Store. Mariano also made multiple reports of prescription errors and HIPAA violations to her PDM and through Net Claims; in some instances, Mariano's reports tied these errors and violations to work flow and training problems at the Store. On one occasion in response to a Mariano complaint, Armiento and Mariano jointly provided counseling to a technician in connection with HIPAA violations.

         Mariano's History of Reported Errors

         On November 15, 2011, Rite Aid issued Mariano a written counseling for incurring more than six prescription errors in a rolling twelve-month period. (JR 190-91.) On November 14, 2014, Rite Aid issued Mariano a written counseling for incurring eight errors in a rolling twelvemonth period. (JR 192-93.) At the time Mariano received this written warning from her then-PDM Steve Thibeau, she and Thibeau discussed that one or more of the errors should be removed from Mariano's record, but no removal occurred.

         At the very end of January and beginning of February 2015, Mariano and Armiento exchanged emails regarding retraining for HIPAA violations at the Kennebunk Store. Mariano reiterated her concern that HIPAA violations by store technicians appeared on her employee record and Armentio responded that she would “work diligently on those to get them removed if they [were] not actual prescription filling errors.” (JR 597.)

         On February 8, 2015, Mariano was responsible for a prescription error. On February 17, 2015, Armiento issued Mariano a final written warning for incurring nine errors in a rolling 12-month period. (JR 194-95.) Mariano again raised concerns that some of the errors included should not be counted as prescription errors. On March 30, 2015, Mariano was responsible for another prescription error. On April 7, 2015, Armiento informed Mariano that this latest error would require a Peer Review meeting.

         On April 9, 2015, Mariano attended a meeting with a Peer Review Committee (the “Committee”), which had been triggered by her March 30 prescription error. The Committee consisted of Garrett Cavanaugh, a Regional Pharmacy Vice President at Rite Aid, Matthew Parsons, a PDM at Rite Aid, and Reginald Thomas, a Senior Human Resources Manager at Rite Aid. During the meeting with the Committee, in response to questions about what was causing her prescription errors, Mariano raised concerns about: (1) a relaxed style of management by the Pharmacy Manager; (2) the Pharmacy Manager allowing the technicians to write the schedule; (3) the Pharmacy Manager allowing one of the technicians at the Kennebunk Store a better schedule so that he could go work at a methadone clinic; (4) the Pharmacy Manager allowing technicians to arrive late or leave early without consulting with Mariano; (5) the Pharmacy Manager's failure to force a technician who was primarily working as a cashier to be cross-trained on other skills; (6) frequent potential HIPAA violations occurring, some of which Plaintiff was able to prevent; and (7) inadequate technician training. At the meeting, no Committee member expressed that they were upset with Mariano for raising these issues with the Peer Review Committee.

         Ultimately, the Committee did not recommend termination of Mariano's employment. Rather, the Committee noted that Mariano had demonstrated proven abilities to achieve results and recommended that Armiento place Plaintiff on a 90-day Performance Improvement Plan (“PIP”), during which time Plaintiff could have no additional prescription errors. Armiento relayed this decision to Mariano via a phone call on April 9, 2015. For the most part, the Committee and Armiento agreed with the concerns raised by Mariano during the meeting.

         Events that Occurred After Mariano was Placed on a PIP

         On April 13, 2015, Mariano emailed Armiento expressing her concerns about the staffing at the Store on April 12 and 13. In both cases, she noted that pharmacy technicians had departed early and that “the same old nonsense” was creating problems with the operation of the pharmacy. She suggested that the situation was impacting her anxiety level. (JR 603.) On April 15, 2015, Mariano had a routine appointment with her health care provider. During that appointment, Mariano explained her recent symptoms, and told her health care provider that she had been stressed at work because of her meeting with the Peer Review Committee.

         In May 2015, in an effort to address some of Mariano's concerns, Armiento met with Joseph to discuss pharmacy practice at the Kennebunk Store. She also required Joseph to review the HIPAA policy with each member of the Store's pharmacy team.

         At the beginning of one shift in May 2015, Mariano called Armiento to complain that the pharmacy was “a mess” with a backlog of prescriptions. She also complained about the management of the pharmacy. In response, Mariano recalls Armiento asking her if she was “getting too old for this.” (JR 31.)

         On May 21, 2015, Mariano received a “Rite Aid Applause!” accolade by the Kennebunk Store Manager that stated: “Great job this week.” In emails between Mariano and Armiento dated May 28-29, 2015, Mariano voiced concerns about workflow related to moved equipment and concerns about a delivery driver who had suddenly quit. She noted that although Joseph was out, he apparently was being “filled in” on “all the mayhem” at the Store. (JR 612.) On June 4, 2015, Mariano again emailed Armiento reporting “a real can of worms” with respect to outstanding amounts owed on billed accounts. (JR 614.)

         On June 4, 2015, Mariano received another “Rite Aid Applause!” accolade from Susan Bragg, the pharmacy “Wellness Ambassador” who stated: “Thank you Christine for guiding and getting the pharmacy through the tough times.” (JR 613.)

         On June 9, 2015, Armiento went out of work on maternity leave. On June 10, 2015, Rite Aid notified the Pharmacy Manager, Mariano's direct supervisor, that Mariano was to receive a “career achievement award” for having 25 years of service with the company as of August 13, 2015. (JR 615.)

         On June 18, 2015, Mariano was working at the Kennebunk Store when she recalls learning that a technician would be leaving early. In her recollection, “the work flow deteriorated quickly.” (Mariano Aff. (ECF No. 44-2), PageID # 1181.) After going to the bathroom, she became immobilized and unable to fill prescriptions safely, her cognitive skills shut down, and she began to vomit and felt as though she was about to pass out. Another pharmacy employee called Mariano's father to come pick her up at the Store and Mariano left without finishing her shift. The DPM covering Armiento's maternity leave later told Armiento that Mariano had a “mental break” that required her to leave during her shift. (JR 486.) On June 19, Mariano discussed her need to take a medical leave with Matthew Parsons, who was then the covering DPM. Parsons agreed that a medical leave was a good idea and instructed Mariano on how to apply for medical leave.

         Mariano's ...

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