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Siantou v. CVS RX Services, Inc.

United States District Court, D. Maryland, Southern Division

December 7, 2018

STEPHANE J. WANTOU SIANTOU, Plaintiff,
v.
CVS RX SERVICES, INC. Defendant.

          MEMORANDUM OPINION

          Paul W. Grimm United States District Judge.

         Plaintiff 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.

         In this 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.

         FACTUAL BACKGROUND

         The 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 .. .." Id.

         Mr. 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.

         Reprimand for Showing Up Late to Work

         Tensions 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.[1] 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.

         It was 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.

         Reprimands for Leaving the Store

         Tensions 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.[2] 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.[3] 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.

         Mr. 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.

         Mr. 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.

         On 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.

         Around this same time, [4] 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.

         During this same period, [5] 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.

         Mr. 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 standards." Id.

         The 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. 348:10-349:20.

         Mr. 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 No. 72-15.

         Reprimands for Failing Scores on Store Audits

         During 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.

         Mr. 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.[6] 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.

         In 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. Id.

         Mr. 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.

         Termination

         The 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.

         Mr. 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.

         Mr. 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.

         Mr. 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. ...


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