United States District Court, D. Maryland, Southern Division
STEPHANE J. WANTOU SIANTOU, Plaintiff,
CVS RX SERVICES, INC. Defendant.
W. Grimm United States District Judge.
Stephane Wantou Siantou was the head pharmacist at a CVS drug
store in Maryland. While there, he filed a multitude of
complaints against his employer, alleging the company had
been discriminating against him because of his race,
nationality, and gender. His rocky tenure was marked by a
number of formal reprimands and culminated in his termination
in January 2016.
suit, Mr. Wantou Siantou alleges that several of the
reprimands and his eventual termination constituted unlawful
racial discrimination under 42 U.S.C. § 1981 as well as
retaliation under various federal and state laws. I grant
summary judgment for the defendant, CVS Rx Services Inc.
("CVS"), on the § 1981 discrimination claim,
as Mr. Wantou Siantou cannot show that CVS treated him
differently from employees outside of the protected class or
that his termination was suggestive of racial animus. I also
grant partial summary judgment for CVS on the retaliation
claim, concluding Mr. Wantou Siantou cannot make the
requisite showing that certain reprimands or the termination
were retaliatory. He may proceed, though, on his claim that
the company retaliated against him when, in April 2015, it
reprimanded him a second time for an alleged unexcused
absence from the pharmacy three months earlier.
controversy in this case unspooled between July 2014 and
January 2016, while Mr. Wantou Siantou was employed as the
head pharmacist (or "pharmacist-in-charge") at a
CVS drug store in Oxon Hill, Maryland. See Nguyen
Decl. ¶¶ 5-6, Ex. 2, ECF No. 72-3. The store, which
was located in a low-income neighborhood, had an unenviable
record of performance issues, ranking last among all CVS
stores in the country in a company wide assessment of
"workflow." Holmes Dep. 111:11-18, Ex. 1(C), ECF
No. 72-2. The workforce, like the clientele it served, was
diverse. According to Mr. Wantou Siantou, who is black and
hails from the Central African nation of Cameroon,
see Wantou Siantou Decl. ¶ 1, all of the
pharmacists on staff during the decade preceding his
employment were members of minority groups and, in fact, were
"disproportionately African men" like himself.
Addendum to Discrimination Compl. 2, Ex. 16, ECF No. 72-17.
Mr. Wantou Siantou would later assert: "It is very
obvious to me that I would not have been assigned as pharmacy
manager in store 1469 had I been a White man .. .."
Wantou Siantou's tenure was, in many respects, a
turbulent one, with friction developing between himself and
management only a few months after his arrival and persisting
until his termination. During that time, Mr. Wantou Siantou
reached out to both the U.S. Equal Employment Opportunity
Commission ("EEOC") and, on at least a dozen
occasions, to CVS officials to complain about the way his
supervisor and other higher-ups had treated him. See
EEOC Charge, Ex. 34, ECF No. 72-35; Ethics Line Reports, Ex.
20, ECF No. 72-21. This lawsuit alleges that treatment
amounted to unlawful discrimination and retaliation.
for Showing Up Late to Work
between Mr. Wantou Siantou and management first flared up on
the morning of November 18, 2014, when he showed up 25
minutes late for his shift. See November 18, 2014
Counseling Report, Ex. 3 A, ECF No. 72-4. His late arrival
delayed the opening of the pharmacy that morning, forcing
four customers to wait for service. Id. Mr. Wantou
Siantou's supervisor, Tiana Holmes, issued a
"counseling" report containing a "Level
II" reprimand. Id. The report explained that
"[f]urther attendance/tardiness issues will result in
further disciplinary action to include termination of
employment." Id. The company soon afterward
withdrew the formal reprimand, issuing a "verbal
warning" instead. See Nguyen Note, Ex. 2(F),
ECF No. 72-3.
just after this incident (but before the withdrawal of the
Level II reprimand) that Mr. Wantou Siantou sent the first of
what would be numerous complaints to management about the way
he was being treated at the store. In a November 27, 2014
email, he accused Ms. Holmes of failing to recognize the
improvements he had made to the pharmacy's operations
over the previous four months and complained her decision to
reprimand him for a single instance of tardiness "was at
best unfair, and at worst discriminatory." November 27,
2014 Email, Ex. 3(B), ECF No. 72-4.
for Leaving the Store
escalated in late January 2015, while Mr. Wantou Siantou was
sick with the flu. After calling in sick on January 23, he
returned to work the following day but was overcome by a
variety of symptoms, including nausea and the chills.
See Wantou Siantou Decl. ¶ 26. He texted and
called Ms. Holmes and the pharmacy scheduler to say that he
did not feel well enough to complete his shift and to ask if
anyone was available to fill in for him. Id.; see
January 24, 2015 Text Messages, Ex. 12, ECF No. 72-13. Ms.
Holmes did some "checking around" but was unable to
find a replacement. Wantou Siantou Dep. 194:19-195:7. Mr.
Wantou Siantou "begged" her for authorization to
shut down the pharmacy, Wantou Siantou Decl. ¶ 27, but
she refused, advising him instead to "[s]it in the back
if you must and tell all new scripts they will be ready
tomorrow," Wantou Siantou Dep. 195:1-3. Feeling too cold
to stay inside the store, Mr. Wantou Siantou spent a portion
of his remaining shift going back and forth between the store
and his car, which was parked in the lot outside. See
Id. at 182:7-13, 191:3-10. All told, he estimates he
spent a little more than two hours in his car. See Id.
at 191:6-7. Ms. Holmes promptly wrote up the episode in a
counseling report, issuing a Level I reprimand. See
January 26, 2015 Counseling Report, Ex. 9, ECF No. 72-10.
Wantou Siantou complained about the writeup a few days later
in an email to CVS Human Resources Representative Jane Nguyen
and Ms. Holmes, characterizing the reprimand as
"extremely harsh." February 2, 2015 Email 2, Ex.
2(H), ECF No. 72-3. The email alleged that requiring him to
remain at work while he was severely ill constituted "a
form of discrimination under the Family and Medical Leave Act
and the American[s] with Disabilities Act." Id.
Ms. Nguyen called Mr. Wantou Siantou later that day to set up
a meeting to discuss his allegations. Nguyen Dep. 53:17-20.
They planned to meet on February 6, 2015, but when Ms. Nguyen
arrived for the meeting Mr. Wantou Siantou "decided he
didn't want to talk about his concerns."
Id. at 54:4-16. They rescheduled the meeting for
February 23, 2015. Nguyen Timeline, Ex. 2(1), ECF No. 72-3.
Wantou Siantou emailed Ms. Nguyen on the morning of the
rescheduled meeting, writing: "Once again I feel
discriminated against on the basis of gender, race, and
national origin." February 23, 2015 Email, Ex. 37, ECF
No. 72-38. The email complained that he had been required to
work "every single Monday," while his partner
pharmacist, Brenda Taylor, "gets to have every other
Monday off." Id. "I think this is very
discriminatory," he wrote. Id. Taylor is an
African American woman. See Wantou Siantou Dep.
231:16-22. The meeting proceeded as planned that afternoon,
but Mr. Wantou Siantou "refused to speak about the
e-mails he sent in regards to feeling discriminated
against." Nguyen Timeline I; see Nguyen
February 23, 2015 Notes, Ex. 2(L), ECF No. 72-3. He later
explained in an email that he felt his "voice was not
heard" at the meeting and that Ms. Nguyen appeared to be
acting as an "advocate" for Ms. Holmes. February
25, 2015 Email, Ex. 2(M), ECF No. 72-3.
March 1, 2015, Mr. Wantou Siantou sent Ms. Nguyen, Ms.
Holmes, and the CVS district manager an email with the
subject line, "Formal Complaint of Discrimination Based
on Gender, Race, and National Origin." March 1, 2015
Complaint 1, Ex. 10, ECF No. 72-11. There, he wrote: "I
feel that there has been very disparate, egregious treatment
by my supervisor between me and my staff pharmacist,"
Ms. Taylor. Id. The email alleged that Ms. Taylor,
in contrast with himself, had not been reprimanded when she
was late to work, enjoyed a preferable work schedule, and had
not been held accountable for the store's poor
performance. See Id. It concluded: "I fear
retaliation or more adverse actions directed towards me
following the writing of this letter. But I feel that the
writing of the letter is necessary to achieve a fair,
discrimination-free environment and to improve my
store." Id. at 2.
this same time,  Ms. Holmes - who was still in her first
year as a CVS supervisor - began to take a "closer
look" at CVS's policies requiring the presence of a
registered pharmacist during operating hours. Holmes Dep.
211:5-18; see Nguyen Dep. 75:11-15. She consulted
another CVS supervisor who had similarly reprimanded a
pharmacist who had left her store unattended for 15 minutes
to buy a coffee at a nearby 7 Eleven. See id, at
212:13-214:10; Forestville Store Counseling Report, Ex. 2(U),
ECF No. 72-3. The pharmacist in that case received a Level
III reprimand, a more serious disciplinary action than the
one Ms. Holmes had issued to Mr. Wantou Siantou. See
Forestville Store Counseling Report.
this same period,  either Ms. Holmes or another CVS higher-up
asked the company's regional loss prevention officer,
James Gerwig Jr., to investigate Mr. Wantou Siantou's
conduct during the January 24, 2015 incident. See
Holmes Dep. 219:6-16; Gerwig Dep. 92:11-93:12, Ex. 1(F), ECF
No. 72-2. Mr. Gerwig interviewed Mr. Wantou Siantou and
reviewed the store video surveillance footage. See
Gerwig Dep. 100:8-10. The investigation prompted Ms. Holmes
to issue a follow-up counseling report on April 15, 2015,
citing Mr. Wantou Siantou for a Level III reprimand. April
15, 2015 Counseling Report, Ex. 13, ECF No. 72-14.
Wantou Siantou was continuing to raise complaints during this
period of time. On April 2, 2015 - one day after Ms. Nguyen
and Mr. Gerwig came to the store to speak with him -he
emailed Ms. Nguyen and another CVS executive a document
entitled "Addendum to Title VII Complaint of
Discrimination Based on Race, Gender, and National Origin;
and Subsequent Retaliation Complaint." Addendum to
Discrimination Compl., Ex. 16, ECF No. 72-17. The document
said he found their visit the day before intimidating and
felt it "raised concerns of unfairness and further
retaliation for filing a Title VII Complaint."
Id. It further asserted that he was being held to an
unfair standard while working in an especially challenging
environment, which resulted in a poor yearly performance
evaluation. Id. at 3. "If I were a White
pharmacist," he wrote, "let alone a White American
born female pharmacist, I would not have been assigned as
Manager in store 1469 and I would have been held to different
document stated that he wished to be transferred to a
different store. Id. The next day, Ms. Nguyen
offered him the opportunity to accept a position as
pharmacist in charge at a store in Hollywood, Maryland, or as
a staff pharmacist at either of two stores in New Carollton.
See Transfer Offer, Ex. 19, ECF No. 72-20. He
declined all three options. See Wantou Siantou Dep.
Wantou Siantou took a leave of absence in April 2015 but
continued to make complaints against Ms. Holmes and Ms.
Nguyen, raising allegations against them in a pair of reports
submitted to the CVS ethics complaint line in May 2015.
See Ethics Line Reports 1-3, Ex. 20, ECF No. 72-21.
On May 20, 2015, he filed a charge with the Prince
George's County Human Relations Commission and the EEOC
alleging the company had retaliated against him in response
to the discrimination complaint he submitted to Ms. Nguyen in
March 2015. See May 2015 EEOC Charge, Ex. 14, ECF
for Failing Scores on Store Audits
the summer and fall of 2015, the regional loss prevention
officer, Mr. Gerwig, conducted a series of walkthroughs and
audits of the Oxon Hill store. See Gerwig Dep.
78:20-79:16. Under company policy at the time, a pharmacy
receiving a score of less than 85 percent on a baseline audit
was said to have failed, triggering the need for a follow-up
audit. Gerwig Decl. ¶¶ 7, 10. These audits had
consequences for the store's pharmacist in charge, who,
in accordance with store policy, would receive a Level II
reprimand for the initial failing score and a Level III
"final warning" should the store also fail the
follow-up audit. Id. ¶¶ 7-8, 11. Neither
the loss prevention manager nor the pharmacy supervisor has
any discretion over the issuance of reprimands under these
circumstances. See Gerwig Decl. ¶ 8.
Gerwig audited the Oxon Hill store on August 19, 2015,
roughly 30 days after Mr. Wantou Siantou returned from his
leave of absence. See August 2015 Audit Scorecard,
Ex. 4(A), ECF No. 72-5; Wantou Siantou Decl. ¶ 47-48.
The audit yielded a failing score of 82.22 percent. August
2015 Audit Scorecard. The store failed a follow-up audit on
October 1, 2015, this time receiving a score of 84.78
percent. See October 2015 Corrective Action Record
1, Ex. 3(F), ECF No. 72-4. Mr. Wantou Siantou received Level
II and Level III reprimands for these audits,
respectively. See August 2015 Corrective Action
Record 2, Ex. 3(E), ECF No. 72-4; October 2015 Corrective
Action Record 3. Mr. Gerwig has said that at no time while
working on these audits was he aware that Mr. Wantou Siantou
had filed any complaints of discrimination or retaliation.
See Gerwig Decl. ¶ 13.
between the two audits, Mr. Wantou Siantou filed new
paperwork with the Prince George's County Human Relations
Commission and EEOC supplementing his earlier charge.
See September 2015 EEOC Charge, Ex. 34, ECF No.
72-35. The new filing took issue with the reprimand he
received as a result of the failed August 2015 audit,
asserting the company took this step "in further
retaliation" because of his previous EEOC charge.
Wantou Siantou continued to air his concerns through the CVS
ethics complaint line. On October 3, 2015, just after the
loss prevention officer completed the follow-up audit, he
alleged the audits "were set up by management as
retaliation" for his internal discrimination complaint
and EEOC charge. Ethics Line Reports 4. He lodged more
complaints via the ethics complaint line on November 7, 2015,
and December 9, 2015, complaining that his supervisors were
not appreciating his hard work and that his partner, Ms.
Taylor, was not shouldering her share of the workload.
See id, at 4-9. He maintained that the company was
discriminating against him on account of his race, gender,
and national origin and was retaliating against him because
of his various complaints. See Id. at 5, 7.
conflict between Mr. Wantou Siantou and Ms. Holmes came to a
head in the two months following November 4, 2015, when a
physical fight broke out between a pharmacy technician named
Latara Wellman and a disgruntled customer at the store.
See Application for Statement of Charges, Ex. 23,
ECF No. 72-24. Ms. Holmes ordered Mr. Wantou Siantou to fire
Ms. Wellman, although there is a dispute over exactly when
she issued those instructions. Ms. Holmes stated in her
deposition, and the company has asserted in its answers to
interrogatories, that she first gave the order in late
November 2015 and then repeated the instructions during a
store visit on December 17, 2015, after learning that Mr.
Wantou Siantou had not followed through on the order.
See Holmes Dep. 284:10-19, 289:1-290:21; Def.'s
Suppl. Resps. 7, Nguyen Dep. Ex. 1, Ex. 1(B), ECF No. 72-2.
Wantou Siantou has maintained that he did not learn about the
directive until Store Manager Adebowale "Roland"
Saibu mentioned it sometime between January 4 and January 6,
2016, shortly after Mr. Wantou returned from a two-week
vacation. See Wantou Siantou Dep. 465:14-18; Wantou
Siantou Decl. ¶ 56. Saibu told him Ms. Holmes
"wants you to let [Ms. Wellman] go ASAP." Saibu
Dep. 66:5-67:7. Mr. Wantou Siantou said he "wasn't
comfortable doing it," saying he felt as though he was
being "set up." Id. at 67:9-19.
Wantou Siantou lodged more complaints via the CVS ethics
complaint line on January 3, January 5, and January 6, 2016,
repeating his past allegations that the company was
discriminating against him and retaliating for his previous
complaints. See Ethics Line Reports 9-14. On the
morning of January 8, 2016, Ms. Holmes texted Mr. Wantou
Siantou, asking, "Has Latara been terminated?"
January 8, 2016 Texts, Ex 3(G), ECF No. 72-4. Mr. Wantou
Siantou replied that he had "just tried to call"
her. Id. In an ensuing phone call, Mr. Wantou
Siantou asked her if she could put the directive in writing.
See Wantou Siantou Dep. 432:22-433:3. She refused.
See Id. at 433:4-5. Ms. Holmes told him he must fire
Ms. Wellman "by the end of the day or it would be
considered insubordination, which would lead to his
termination." See Termination Report, Ex 3(J),
ECF No. 72-4; Wantou Siantou Dep. 432:18-20.
Wantou Siantou promptly called the CVS ethics complaint line,
accusing Ms. Holmes of putting him "in an impossible
situation." Ethics Line Reports 14-15. He alleged that
Ms. Holmes was either "trying to get [him] fired"
or forcing him into a confrontation with Ms. ...