United States District Court, N.D. California
ORDER REGARDING MOTION FOR SUMMARY JUDGMENT RE: DKT.
PHYLLIS J. HAMILTON UNITED STATES DISTRICT JUDGE
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.
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; (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
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.
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.
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.
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.
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.
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.”).
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).
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
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.
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 ...