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Sajal Roy v. Continuing Care Rx

February 22, 2011


The opinion of the court was delivered by: Judge Munley


Before the court for disposition is Magistrate Judge Martin C. Carlson's report and recommendation. Magistrate Judge Carlson recommends denying Defendant Continuing Care RX, Inc.'s ("CCR") motion for summary judgment. Defendant has filed objections to the report and recommendation, and the matter is ripe for disposition. Background

Generally, the parties do not dispute or object to the facts as set forth in the report and recommendation, therefore, we adopt them as follows*fn1

CCR provides long-term care pharmacy to the residents of skilled and assisted living facilities. Plaintiff is an American citizen whose father was born in India, and whose mother is from West Virginia. Plaintiff began working for defendant on April 24, 2007, as a staff pharmacist. At the time that plaintiff was hired, Thomas Trite, defendant's CEO and owner, knew that plaintiff was of Indian descent. Also at the time of his hiring, plaintiff was romantically involved with a woman named Jamie, who is Caucasian.*fn2

During the fall of 2007 and early 2008, a number of employment changes took place within CCR. Approximately two to three months after his hiring, Roy was promoted to Pharmacy Director of defendant's Pittston, Pennsylvania pharmacy. Shortly thereafter, in October 2007, plaintiff hired Lisa Tomcykowski, a Caucasian female, to work as a pharmacist for defendant. Sometime in December 2007, Tomcykoski was promoted to the position of Pharmacy Director at the Pittston pharmacy. Thereafter, in January 2008, plaintiff was promoted to become CCR's Director of Professional Placement/Assistant Regional Manager. Trite was involved in the decision to promote the plaintiff. In addition to plaintiff's and Tomcykoski's respective promotions, defendant hired Robert Weir as the company's Chief Operating Officer in January 2008.

During this time of change within the pharmacy, plaintiff's romantic relationships changed. In or around November or December 2007, plaintiff and his fiancee broke off their engagement and in late January 2008, plaintiff became romantically involved with Tomcykoski. The new relationship between plaintiff and Tomcykoski did not go unnoticed within the company. By mid-January 2008, various management-level employees believed that plaintiff was dating Tomcykoski.

Kristina Manbeck, CCR's Human Resources Manager, was advised in January 2008 by two CCR employees that plaintiff and Tomcykoski were involved in a romantic relationship. According to Manbeck, these employees notified her about the relationship because they expressed concern that Tomcykoski reported directly to plaintiff. Manbeck attests that she told Patrick Loughlin, the company's Chief Operating Officer prior to Weir, to be sure that there was no direct reporting between Tomcykoski and plaintiff because they were in a romantic relationship.

In February 2008, plaintiff and Tomcykoski became engaged. On or about March 7, 2008, plaintiff sent an email to Trite and another CCR representative formally notifying them that he and Tomcykoski were engaged to be married.

According to the plaintiff, at the time he made this announcement to Trite, he was aware that Trite held views disapproving of interracial marriages. Plaintiff professes to be aware of Trite's views in this regard due to a series of statements which he claims Trite had made to him over the time that the two men worked together Within days of plaintiff's announcement, events occurred that eventually lead to plaintiff being dismissed from employment with CCR. These events began on or about March 12, 2008, when Maria Noone, an unlicensed pharmacy technician supervisor, complained to CCR that on March 8, 2008, plaintiff and Tomcykoski gave her a key to CCR's Pittston pharmacy. In addition, Noone complained via email sent on March 12, 2008, the she "knew without a doubt that it is illegal for anyone to be in a pharmacy without a registered pharmacist present." Manbeck, the Human Resources manager, who received these complaints, also understood that unlicensed pharmacy technicians were not permitted to have keys to the pharmacy because it was a violation of Pennsylvania's Pharmacy Code.

For this reason, Manbeck believed that the plaintiff and Tomcykoski could be terminated for giving Noone the key. Manbeck was unaware of any other instance in the company when an unlicensed pharmacy technician was provided a key to the pharmacy.

Manbeck brought the matter to Weir's attention, who stated that he "didn't think it was appropriate for a technician to have been given the keys to the pharmacy," and began the termination process for Tomcykoski and plaintiff as a result. While Weir undeniably took the lead in this employment matter, Trite also participated in a more limited way in the resolution of this issue. For example, Weir and Trite met with plaintiff and Tomcykoski on March 13, 2008, to address the issue about the key that was provided to Noone. Trite attested during his deposition that giving a key to the pharmacy to an unlicensed technician, and thereby providing her with access to the pharmacy, was a violation of CCR's pharmacy technician protocol, which states that "[technicians] can't have access to the pharmacy without a pharmacist being present." During the meeting with Weir and Trite, plaintiff and Tomcykoski admitted that they gave Noone the key to the Pittston pharmacy. It is further undisputed that it was plaintiff's idea to give her the key. In fact, plaintiff testified that he provided the key to Noone because of his concerns that if a pharmacist were unable to make it to work, or would be delayed, a technician with a key could, if necessary, obtain the alarm code and enter the pharmacy to fill prescriptions. Plaintiff candidly attested to his belief that "it was stupid" that no one other than licensed pharmacists could have keys to the pharmacies.

Upon being informed that he and Tomcykoski were being terminated effective immediately, because the key, plaintiff asserted that the Pennsylvania Pharmacy Code, and CCR's own practices, did not prohibit Noone from having a key. Plaintiff also testified that on the day he met with Weir and Trite, he informed both of them that he understood that keys, and even alarm codes, have been provided to non-pharmacists at other CCR pharmacies. In response to these allegations, Weir suspended plaintiff and Tomcykoski -instead of immediately terminating them -pending an investigation.

Notwithstanding plaintiff's allegations, the record reveals that an investigation into plaintiff's claims failed to substantiate them in any way. Furthermore, there is no evidence that either Weir or Trite had any knowledge that non-pharmacists had been provided keys or alarm codes at any CCR pharmacies, other than the key that plaintiff and Tomcykoski provided to Noone.

Following receipt of the plaintiff's allegations about other unlicensed technicians having been provided keys or alarm codes, Weir instructed Manbeck to conduct an investigation into the issues plaintiff raised during the March 13, 2008 meeting. Although plaintiff takes issue with the quality of the investigation, it is undisputed that Manbeck conducted an investigation. The investigation included (1) talking to CCR employees in Pittston and Norristown, pharmacies where plaintiff and Tomcykoski worked while employed by CCR, (2) reviewing the Pennsylvania Pharmacy Code and CCR's pharmacy technician protocol, and (3) interviewing the individuals that ...

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