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Shaun Owens v. Walgreen Co. and Does 1 Through 100

April 9, 2012

SHAUN OWENS,
PLAINTIFF,
v.
WALGREEN CO. AND DOES 1 THROUGH 100, INCLUSIVE, DEFENDANT.



MEMORANDUM AND ORDER RE: MOTION TO DISMISS

Plaintiff Shaun Owens brought this action against defendant Walgreen Co. ("Walgreen") arising out of defendant's allegedly discriminatory employment practices on the basis of plaintiff's race and mental disability. Presently before the court is defendant's motion to dismiss for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b). (Docket No. 4.)

I. Factual and Procedural Background In August 2007, plaintiff was hired by defendant as a manager in training ("MGT"). (Compl. ¶ 8.) Plaintiff began his employment in Store 7313 in Modesto, California. (Id. ¶ 9.) On March 17, 2008, plaintiff was notified by Executive Assistant Manager ("EXA") Andrew Terry of an opportunity to transfer to Store 6355, also in Modesto, California. (Id. ¶¶ 9-10.) Plaintiff alleges that Terry, who like plaintiff is an African American, warned him about the manager at Store 6355, Adriana Frias, saying "Watch out for Frias, she's been known to not take kindly to managers of color." (Id. ¶ 9.)

Plaintiff alleges various verbal confrontations with Frias that stemmed from his requests for additional training. (Id. ¶¶ 12-14.) On April 4, 2008, plaintiff called Walgreen's toll-free, confidential hotline for complaints to report how Frias was treating him. (Id. ¶ 15.) On April 5, 2008, plaintiff spoke with Loss Prevention/Human Resources Representative Derrick Chan and informed Chan that Frias "was treating him unfairly because of his race in terms of the shifts he was assigned, the lack of time off he was being provided and the way she was treating him differently than other employees." (Id.) Chan instructed plaintiff to write out a timeline detailing what had happened and indicated that he would look into the situation. (Id.)

On April 9, 2008, plaintiff was working the night shift when he witnessed a masked gunman loading prescription drugs into a duffle bag while the pharmacist held up her hands. (Id. ¶ 16.) Plaintiff, the pharmacy tech, pharmacist, and a customer escaped to the warehouse where, once behind the locked door, plaintiff dialed 911. (Id.) Following the robbery, plaintiff requested that Frias give him a day or two off work, but Frias refused and scheduled plaintiff to work the day after the robbery. (Id. ¶ 17.)

On April 11, 2008, Frias told plaintiff he had made an error on the cash report. (Id. ¶ 19.) Plaintiff replied that "he was still shook up from the robbery incident, that his focus was off, and that he was nervous closing the store alone." (Id.) Frias told plaintiff that, "That's no excuse. You've worked here nine months. You shouldn't be making mistakes." (Id.)

After learning about a Walgreen counseling program, plaintiff expressed interest in receiving counseling on or about April 24, 2008. (Id. ¶ 21.) Plaintiff alleges that Frias became angry with him because he wanted to open a counseling claim, but that Frias contacted the claims administrator so that plaintiff could put in a claim for benefits. (Id.)

In May 2008, plaintiff met again with Chan and explained that Frias was singling him out, treating him unfairly, denying him training opportunities, and scheduling him only for night shifts. (Id. ¶ 26.) Plaintiff stated that he believed that the basis for the unfair treatment was his race. (Id.) Plaintiff also informed Chan that the robbery was having a negative impact on him and that "I'm kind of screwed up. I'm constantly watching the door." (Id.)

On May 21, 2008, plaintiff began to receive counseling from licensed therapist Pamela Mello. (Id. ¶ 27.) Plaintiff states that he was suffering from serious emotional distress including sleep deprivation, headaches, stomach aches, anxiety, and depression. (Id.)

In May 2008, plaintiff contacted Walgreen District Manager Linda DeFranzo and requested a transfer. (Id. ¶ 28.) Plaintiff initially requested a transfer because of the high cost of gasoline and his long commute. (Id.) After speaking with DeFranzo, plaintiff admitted that the real reason for his transfer request was that Frias harassing was him and treating him differently from other employees because of his race. (Id.) DeFranzo informed plaintiff that she would speak with Frias. (Id.)

On May 23, 2008, plaintiff was written up by Frias for not completing a work list and for cash handling errors. (Id. ¶ 29.) Plaintiff alleges that other employees were not written up for similar behavior. (Id. ¶¶ 30-31.)

While at work on May 28, 2008, plaintiff began to feel nervous, anxious, his vision blurred, and he became dizzy. (Id. ¶ 33.) Plaintiff left work and was treated at St. Joseph's Medical Center in Stockton, California. (Id.) Plaintiff was prescribed medication and referred to Dr. John Chellsen, a psychiatrist at St. Johnson's Occupational Heath. (Id.) Dr. Chellsen took plaintiff off work for approximately five months. (Id.)

On September 15, 2008, plaintiff was notified that he was being transferred to Store 2680 in Stockton, California. (Id. ¶ 34.) Plaintiff returned to work at Store 2680 on October 27, 2008, under store manager Robert Scheven. (Id.) Despite assurances that he would not be working alone, plaintiff worked the graveyard shift by himself several days in the week following his return. (Id.)

On December 24, 2008, Scheven gave plaintiff a verbal warning for an error on a cash drop. (Id. ¶ 39.) Plaintiff felt "increasingly anxious at work and continued to have difficulty sleeping." (Id.) Plaintiff also suffered from headaches and stomach aches and had intense crying fits and depression. (Id.)

On January 19, 2009, plaintiff was written up by Scheven using the store's DVR monitor without permission or authorization. (Id. ΒΆ 40.) Plaintiff explained that he was trained on the DVR monitor and provided the passcode by MGT Aaron Ring, a Caucasian employee with the same job title as plaintiff, but with less seniority. (Id.) On the write up, plaintiff indicated that he loved working at Walgreen, was concerned that he ...


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