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Hyams v. CVS Health Corp.

United States District Court, N.D. California

December 12, 2019

RYAN HYAMS, Plaintiff,
CVS HEALTH CORPORATION, et al., Defendants.



         Defendants CVS Health Corporation, CVS Pharmacy, Inc., Garfield Beach CVS, LLC, and CVS RX Services, Inc.'s (together, “CVS”) motion for summary judgment came on for hearing before this court on November 13, 2019. Plaintiff Ryan Hyams appeared through his counsel, Beth Gunn. Defendants appeared through their counsel, Andrew Haeffele and Daniel Fears. Having read the papers filed by the parties and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby rules as follows.


         Plaintiff Ryan Hyams was employed as a pharmacist by CVS, and this action stems from his termination from employment. The First Amended Complaint alleges eight causes of action, each against all defendants: (1) Disparate Treatment Discrimination on the Basis of Race and/or Color in Violation of the California Fair Employment and Housing Act (“FEHA”); (2) Disparate Impact Discrimination on the Basis of Race and/or Color in Violation of FEHA;[1] (3) Harassment on the Basis of Race and/or Color in Violation of FEHA; (4) Retaliation for Complaining of Discrimination and/or Harassment on the Basis of Race and/or Color in Violation of FEHA; (5) Failure to Prevent, Investigate, and Remedy Discrimination, Harassment, or Retaliation in Violation of FEHA; (6) Intentional Infliction of Emotional Distress; (7) Negligent Infliction of Emotional Distress; and (8) Wrongful Termination in Violation of Public Policy. Defendants move for summary judgment on all claims. See First Amended Compl., Dkt. 22 (“FAC”).

         Plaintiff was hired by CVS on December 15, 2015, after CVS acquired a pharmacy located in a San Francisco Target store where plaintiff had worked since June 2011. Id. ¶ 18; Declaration of Ryan Hyams, Dkt. 65 (“Hyams Decl.”) ¶ 3. The parties agree that he had a generally positive employment record prior to the incident at issue. E.g., Hyams Decl. ¶¶ 3-4. On or about May 19, 2017, plaintiff was selected by CVS for an audit of a Drug Utilization Review (“DUR”) system, although by the nature of the audit plaintiff was not informed that it was occurring. FAC ¶ 26; Hyams Decl. ¶ 9. The audit essentially consisted of CVS creating a digital record of a fictitious patient (the “test patient, ” Jessica Launer) with various ailments and drug prescriptions, designed to test pharmacists' detection of possible drug interactions. FAC ¶¶ 27-29. When undergoing the audit, plaintiff bypassed a warning screen, made notations in the test patient's file, and then approved the prescription. Id. ¶ 29; Hyams Decl. ¶ 10. He planned on discussing the drug interactions with the test patient, and he claims that he marked the physical bag containing the prescription for an in-person oral consultation regarding drug interactions. FAC ¶ 31; Hyams Decl. ¶¶ 10-11. But when bypassing the screen to approve the prescription, plaintiff indicated that he had called the prescriber of the medication-which he had not actually done. E.g., Hyams Decl. ¶¶ 7-10. Plaintiff understood CVS's policy as permitting him to approve the prescription as long as he discussed it with the patient, although the computer system did not allow him to indicate that was his intention. Id. ¶¶ 6-10. As such, he thought the computer had a “glitch, ” and he falsely indicated that he had contacted the prescriber.

         There is a factual dispute with respect to what happened when the test patient came to collect the prescription. Plaintiff has submitted a declaration attesting that the test patient was first asked by the pharmacist technician whether she had insurance, at which point she left and never returned. Id. ¶ 11. In plaintiff's telling, the test patient spoke only with a pharmacist technician, never the pharmacist. So, she was never given the prescription, never advised about the medication interactions, and plaintiff never spoke with her. Id. However, the test patient submitted a declaration saying that she discussed the drug interactions with “the pharmacist, ” although she did not specify who that pharmacist was-i.e., whether it was plaintiff. Declaration of Jessica Launer, Dkt. 51 ¶ 9. She said that she asked if there would be dangerous interactions, but the pharmacist only said the drug might make her tired. Id. Because the test patient attests that she spoke with a pharmacist and not the pharmacist technician, the parties' proffered evidence cannot be read consistently, and at this stage of litigation the court must credit plaintiff's evidence.

         In July 2017, CVS contacted plaintiff regarding the DUR audit. FAC ¶ 37; Hyams Decl. ¶ 13. Interactions between plaintiff and CVS's human resources department ensued. FAC ¶¶ 37-45; Hyams Decl. ¶¶ 13-19.

         On July 26, 2017, plaintiff's supervisor Harmony Aker asked him to attend a meeting with her and Rowenanne Labuguen Turner, a Human Resources employee, about the events of the audit. Hyams Decl. ¶ 13. Aker and Turner asked plaintiff to explain why he had indicated that he contacted the prescriber when he had not done so. Plaintiff did not recall, but he guessed that he had prior contact with the prescriber and obtained approval to dispense the prescription. He attests that he “also questioned why I, the only African American pharmacist in my District at CVS, appeared to be singled out for this investigation.” Id.

         On July 26 and 27, 2017, without knowing the specific prescription at issue, plaintiff submitted two written statements regarding what he recalled about the incident. Id. ¶ 14 & Exs. B-C. On July 28, 2017, plaintiff submitted another written statement after being informed about the specific prescription name at issue. Id. ¶ 15 & Ex. D.

         On August 23, 2017, plaintiff was terminated in an in-person meeting. Id. ¶ 17. He was told that a committee made the decision to terminate him. Id. Plaintiff's supervisor Aker also testified that a committee made the decision to terminate plaintiff. See Aker Dep. 68:4-23, Declaration of Catherine Coble, Dkt. 64, Ex. A (“Aker Dep.”) (“I said, ‘Do you think this is going to lead to termination?' She said, . . . . I don't know for sure because it's going to go to a committee. There was a committee or something that was making that decision ultimately.”), 101:7-25 (“She told me that the committee had made their decision and the decision was to terminate Ryan immediately.”).

         Defendants argue that a man named Thomas Davis alone made the decision to fire plaintiff, and they have submitted a declaration from Davis stating that he decided to terminate individuals who misrepresented that they spoke to prescribers in the computer system. Declaration of Thomas Davis, Dkt. 50 ¶ 14. But Davis's declaration is potentially inconsistent with defendants' arguments in describing how his policy was implemented. For example, Davis at one point stated that the “decision to terminate was based strictly upon my conclusion that these four pharmacists . . . had misrepresented that they had contacted the prescriber;” yet he also stated that the zero-tolerance policy of termination applied “to all pharmacists who we concluded had entered false information into the system during a DUR Audit[.]” Id. (emphasis added).[2]

         Even ignoring plaintiff's and Aker's sworn testimony indicating that a committee was involved in the decision, Davis's declaration leaves open a reasonable dispute as to the material fact of who was responsible for plaintiff's termination. Davis declares that he was solely responsibility for the company policy, but he suggests that others were involved in executing it. As a result, the specific facts are unclear but it appears plausible that Davis alone decided on the overall policy of terminating those who entered false information into the computer system, and some larger group (which Davis refers to as “we”) determined whether a pharmacist had entered false information into the computer system (or otherwise violated company policy). This plausible characterization of Davis's declaration is consistent with plaintiff's evidence that a committee ultimately decided to terminate his employment. Given the dispute in the factual record, the evidence supporting plaintiff's characterization of the disputed factual issue must be credited for purposes of this motion.

         On August 29, 2019, defendants filed the present motion for summary judgment. Dkt. 56. On September 23, 2019, defendants deposed Hyams. See Dkt. 104 at 4. On September 27, 2019, plaintiff deposed Davis. See Dkt. 104 at 1. Over a month after those depositions, on November 6, 2019, defendants filed an administrative motion to supplement the factual record on their summary judgment motion, seeking to include the deposition transcripts of Davis and Hyams as part of the record. Dkt. 104. Plaintiff timely opposed, five days before the hearing on defendants' motion to dismiss. Dkt. 112.


         A. Legal Standard

         Summary judgment is proper where the pleadings, discovery, and affidavits show 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). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. “A ‘scintilla of evidence,' or evidence that is ‘merely colorable' or ‘not significantly probative,' is not ...

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