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Angela Ekhato v. Rite Aid Corporation

August 23, 2012

ANGELA EKHATO
v.
RITE AID CORPORATION, ET AL.



The opinion of the court was delivered by: Ditter, J.

MEMORANDUM AND ORDER

This is an employment discrimination case brought against the Rite Aid Corporation, Rite Aid of Pennsylvania, Inc., and John Boyle, Regional Vice President of Pharmacy Operations. Plaintiff, Angela Ekhato, alleges that she was subjected to race, national origin, age and retaliatory discrimination that led to the termination of her employment as a Pharmacy District Manager ("PDM"). Presently before me is the defendants' motion for summary judgment which I am granting. *fn1

I. FACTUAL BACKGROUND *fn2

Ekhato describes herself as a black woman who was born in Nigeria and is a naturalized citizen of the United States. She began working for Rite Aid as a pharmacist in June 2005. *fn3

Ekhato performed well as a pharmacist and was assigned some special projects. Her direct supervisor was PDM Alexander Kocsy.

In November or December 2007, Ekhato learned through an internal Rite Aid listing that a PDM position was open. Kocsy supported Ekhato's decision to apply for this position and recommended her for the job. Ekhato was first interviewed for this position by Boyle. See Plt.'s Ans. to Summ. Judg. Mot ("Plt.'s Ans."), Exh. B, Ekhato Dep. at 104. During a second interview with Boyle, he told Ekhato that he wanted to promote her, but before a final decision was made, she would have to be interviewed by Rite Aid executives Phil Keogh, a Regional Pharmacy Vice President and Boyle's supervisor; Jon Olsen, a Senior Vice President; and Brian Fiala, an Executive Vice President, at the Rite Aid offices in Harrisburg. Id. at 107-08. He also told her to be prepared for questions about her management experience because she was not a pharmacy manager at Rite Aid. Id. As expected, Olsen asked Ekhato about her lack of management experience at Rite Aid. Id. at 114. When Keogh expressed concerns about her lack of management experience, Ekhato described pre-Rite Aid work experience that she believed resulted in transferable management skills. Id. at 119-120.

Ekhato was promoted to the position of PDM for District 7203 on December 23, 2007. Plt.'s Ans., Exh. 42. She was 50 years old at that time. Boyle, a 52 year-old, white male who was born in the United States, became her direct supervisor. Boyle asked two experienced PDMs, Hao Tran and Cynthia Chang, to assist Ekhato in her transition to management. *fn4

After her promotion, Ekhato toured the pharmacies in her district. On February 14, 2008, Ekhato provided Boyle with a document she entitled an "executive summary" that listed the problems she found in four of her stores. *fn5 See Compl. Exh.1. These problems included staffing issues for pharmacists and technicians, paperwork backlogs, and customer complaints. She attributed the problems, in part, to the lack of consistent management in prior years. She provided this summary to Boyle for his input and in an effort to obtain additional personnel for the pharmacies. *fn6 Ekhato maintains that Boyle did not respond to her report. Plt's Ans. at 15 ("Mr. Boyle did not respond to Dr. Ekhato's February 14, 2008 memo. He simply ignored it. To try to fill the pharmacist vacancies, Dr. Ekhato contacted Patricia Sims, a Rite Aid employee based in Maryland responsible for recruiting pharmacists."). In contrast, Ekhato stated in her complaint that Boyle instructed her to contact Sims concerning her staffing needs. Compl . ¶ 62. *fn7

In any event, Ekhato exchanged e-mails with Sims on February 27, 2008, only two weeks after she gave her report to Boyle, and they arranged to meet on March 6, 2008. Plt's Ans., Exh.18.

Boyle's alleged lack of response to Ekhato's request for additional personnel caused problems in their working relationship over the next few months. Ekhato testified that she would try to speak to Boyle about her ideas and her perceived staffing needs, but he would only yell at her that she had all the pharmacists she needed. When the arguments continued and Ekhato was unable to get the additional personnel she desired, she sought advice from two co-workers. One of those co-workers, human resources manager Mark Firment suggested she contact Kandy Grenier in Rite Aid's Human Resource Department and she did. Plt's Ans., Exh. B, Ekhato Dep. at 232.

Following a May 21, 2008 meeting with Grenier, *fn8 Ekhato e-mailed Grenier a letter summarizing the complaints she raised at the meeting. Compl. Exh. 2. Ekhato detailed her efforts to get a response from Boyle concerning her executive summary and his advice to contact recruiter Patricia Sims for assistance with staffing issues. She described his reaction to her staffing request as follows:
John called me when he received this sysm *fn9 and basically "chewed me out." He yelled and yelled, telling me that I will walk myself out of my job if I think that I need all the pharmacists I had listed and hung up on me when he was done yelling. He called me back after about 5 mins[.], and started yelling at me again, and he would not let me say anything. I kept saying John, John, John, please let me explain, but he hung up on me without giving me the opportunity to explain. I am sure everyone in the pharmacy knew what had happened and it was humiliating. I tried to cover it up but I don't think I was successful at it because the pharmacist asked me if I was alright. John called me in the afternoon to apologize for his outburst. The only two statements I made were that I expected him to discuss this in a professional manner, and that I did not deserve to be yelled at considering the condition of my district and all I have been doing to clean it up. I thought this incident would be the first and last of such an outburst. Rather, it intensified; his telephone calls would not just stop from morning till [sic] evening, most of the time it is to yell at and hang up on me when he was done yelling. I am not used to this.

Id. at 1. This correspondence goes on to describe four similar incidents culminating in a call on May 4, 2009, during which Boyle told Ekhato that she "may not be the right fit for the district." Id. at 2. Ekhato "answered, maybe not." Id. After this call, Ekhato talked to David Mahan, the regional vice president and manager of the front end of the pharmacies in Ekhato's district, who calmed her down. She met with Mahan and Mark Firment the next day. Id.

Ekhato summarized her concerns with Boyle as his "inability to discuss business matter[s] without yelling," his "unwillingness or impatience to listen to my response after he has had his say; he hangs up when he is done," and "[f]requent phone calls very early in the morning, throughout the day, and into the evening." Id. This is the only complaint to Rite Aid management made by Ekhato. Ekhato does not indicate what, if any, follow-up occurred as the result of this report to Grenier. However, Ekhato testified at her deposition that she continued to have a working relationship with Boyle and there were no problems between them in the following months. Plt.'s Ans., Exh. B, Ekhato Dep. at 257. She also testified that her staffing issues were resolved by October, 2008. Id. at 248.

Grenier testified that, after meeting with Ekhato, she spoke separately with Boyle about this complaint. Plt.'s Ans. , Exh. F, Grenier Dep. at 42. Grenier also discussed this situation with Firment and Mahan. Id. at 46. Neither had ever heard Boyle yelling at Ekhato but they told Grenier that Boyle normally speaks in a loud voice. Id. at 54-55. In addition, Grenier testified that she had not received any complaints from other employees about Boyle. *fn10 Id. at 38, 75. Based on these conversations, Grenier determined the problem to stem from a lack of communication concerning Rite Aid's pharmacy staffing formulas and the responsibilities of a PDM. Id. at 44; 48-49; 60-65.

She recommended that Firment and Mahan provide communications counseling as needed and act as intermediaries if problems arose in the future. Id. at 48. Grenier instructed Ekhato to come to her if there were any additional problems and reminded her that the company had a "zero retaliation policy." Id. at 49-50. She assumed the matter was resolved because she never received any additional complaints. Id. At no time did Ekhato say that she felt she was being discriminated against by Rite Aid in any manner. Id. 72. In fact, Ekhato acknowledges she made no complaints of discrimination and never felt discriminated against while employed at Rite Aid. Plt.'s Ans., Exh. B, Ekhato Dep. at 18, 335.

Rite Aid has provided documents that were prepared by Boyle as part of his purported efforts to improve Ekhato's performance. The first, dated May 8, 2008, was intended to notify Ekhato that her "performance was not meeting company expectations." See Def. Mot., Exh. P. Boyle's handwritten note indicates this document was discussed with her on May 12, 2008. It was not signed by Ekhato and she does not recall meeting with Boyle to discuss her performance. *fn11 Boyle described four areas that needed immediate improvement: prepping stores for inventory day; keeping stores clutter free; keeping payroll consistent with procedures and budget allotted; and maintaining customer satisfaction at a minimum of 75 percent. Ekhato was also told to "address [her] communication skills, both written and oral. Your team needs to receive direction from you in order to perform their best work." Id.

On August 1, 2008, Boyle and James Ivers, a human resources manager for Rite Aid, met with Ekhato to discuss her performance. This meeting was also memorialized in a document prepared by Boyle and the concerns are consistent with those set forth in Boyle's May memorandum. See Def. Mot., Exh. Q; Plt .'s Ans ., Exh. 80. Again, the document was not signed by Boyle or Ekhato but includes a similar hand-written notation that Boyle had discussed the memorandum with Ekhato.

This document describes Boyle's concerns in "the following key areas:" ! Customer satisfaction: we need to make sure your pharmacists are practicing ready when promised at all times, in addition proper workflow procedures need to be implemented and adhered to. ! Building sales: schedules need to be stabilized and associates need to be engaged in promotions both in and out of store. ! Clutter free: associates need to be held accountable for maintaining a neat and clean work environment. Keep in mind a clean lab is a state board requirement. Food should be eaten in the break room and not in the dispensing area. ! Execution on company programs: acrylic displays need to be properly set and store staff needs to be aware of and participating in all current marketing initiatives (ie patient callback program, living more, etc.) ! Protecting the bottom line (pharmacy controllable ebitda): *fn12 this can be achieved thru expense control (managing payroll to plan and earned hours, reduction of audit chargebacks, supply management and controlling pharmacy inventory shrink thru proper inventory preparation). ! Adherence to raptar *fn13 culture when visiting stores. There have recently been two complaints to the union from associates in stores 872 and 3394. Id. at 2.
In his deposition, Ivers described this meeting with Ekhato as an intended counseling or coaching session designed to help her improve her communication skills. Plt.'s Ans ., Exh. H, Ivers Dep. at 44-45. Ivers testified that his focus in this session was to address two complaints he had received from a union representative who had called him and said "you got this woman that's acting like a crazy person at the store, she is scaring the associates." Id. According to Ivers, the meeting with Ekhato did not go well -- he described it as "more or less a combative meeting . . . she didn't want to hear it." Id. Ekhato acknowledges that this meeting occurred and that the above items were discussed with her. Plt.'s Ans., Exh. B, Ekhato Dep. at 259.

On August 12, 2008, Boyle conducted a telephone conference with all of his PDMs to discuss an upcoming trade show. He told the PDMs that they could bring a pharmacist to the conference if each of their stores had sufficient coverage in the pharmacies. A company-wide deadline was set in order to make travel and hotel accommodations. Ekhato was unable to bring a pharmacist because her shifts were not covered by the deadline.

Personality issues were further exposed at the trade show. Ekhato shared a room with another PDM, Cynthia Chang. Ekhato describes this pairing as "not good." Plt.'s Ans. at 25. Ekhato attributes this to the fact that she is a devout Christian and Chang would not pray with her. Id. Ekhato acknowledges that the two of them got into an argument "in a hallway of the convention center hosting the Trade Show." Id. Her complaint is that when Boyle intervened he "naturally took Ms. Chang's side, assuming Dr. Ekhato was the instigator." Id. She cites Boyle's deposition testimony to support this conclusion, but a fair reading of the testimony is that he was describing a couple of "pretty ugly instances" -- a hallway conversation with a shaken pharmacist, Alan Katz, after what Katz described as an altercation with Ekhato, and then entering the meeting room and having to separate Ekhato from fellow PDMs Chang and Christine Caravello for fear she might assault them. Id.

Although the recollections of the attending employees vary to some degree in the details, all but Ekhato attribute the core of the problem at the trade show to Ekhato's inability to bring one of her pharmacists to the conference. Ekhato had invited a pharmacist believing her stores had been fully staffed. Just before the conference, Ekhato learned that was not the case. According to several Rite Aid employees, including Boyle, this caused Ekhato to get into an argument with Boyle at the trade show. Boyle testified that Ekhato was upset that she was unable to bring a pharmacist and she yelled at him, "exhibit[ing] unprofessional and embarrassing behavior in front of numerous Rite Aid employees." Def. Mot., Exh. D, Boyle Aff. ¶ 22. This conduct was witnessed by Chang and Caravello. Id. , Exh. H, Chang Aff. ¶ 17; Exh. L, Caravello Aff. ¶ 14. Chang also describes another instance where Ekhato yelled at Chang in front of co-workers because she had told them that Ekhato was not going to join them for breakfast that morning. Id., Chang Aff. ¶ 18. Ekhato denies complaining to or yelling at Boyle at the trade show. Ekhato Dep. at 265-66.
The problems continued when the group returned to work following the trade show. Ekhato admits she and Chang had a "heated phone call about the Trade Show" on August 21, 2008. Plt.'s Ans. at 26. Without any citation to the record she contends "Boyle presumed Dr. Ekhato was at fault, although he did not speak to Dr. Ekhato to hear her side of what happened during the phone call." Id. [emphasis added]. She further asserts, again without reference to the record, that Boyle "apparently solicited written statements" from Chang and Caravello and forwarded Caravello's e-mail to "corporate headquarters giving it the imprimatur of truth." Id. She then boldly concludes "Boyle would never have taken similar action against a white, Asian or non-African born employee, but for him there was no reason to ask a black Nigerian-Born employee what happened, because they are not trustworthy." Id. Alas, no citation to any fact in record to support such a conclusion.
These allegedly suspect written statements are e-mails and are exhibits in the record. There is no indication that they were "solicited" by Boyle. One is an e-mail from Chang to Dave Mahan dated August 22, 2008. Chang describes Ekhato's screaming at the trade show and her later call after the trade show to continue the same discussion. Chang states that Ekhato was so loud and rude on the phone that she had Caravello and co-worker Sean Simmons listen to the call. After Ekhato hung up, Caravello and Simmons encouraged Chang to report the call. Plt.'s Ans., Exh. 97. Caravello brought the incident to the attention of Boyle -- who was out of the office when the incident occurred -- in an e-mail also dated August 22, 2008. Id. , Exh. 99. Caravello details the telephone conversation and the problems at the trade show -- corroborating Chang's complaint. She also describes her own problem with Ekhato that occurred in June 2008.

[Ekhato] verbally attacked me in front of John Boyle and Hao Tran and claimed that I was a liar. She would not listen to anything I was saying and continued to yell at me for no valid reason. This was also embarrassing, especially due to the fact that our newly graduated interns were sitting on the other side of the wall and they most likely heard the yelling.

Id. at 2.

Boyle forwarded Caravello's e-mail to Phil Keough, the Senior Vice President of Pharmacy Operations. Keogh responded that Ekhato's behavior was not acceptable or tolerable and told Boyle to get human resources involved. Id. at 1. Boyle planned to write-up Ekhato but, because of a death in her family, he decided not to go forward with it at that time. Def. Mot., Exh. D, Boyle Aff. ¶ 24.

During the summer of 2008, Rite Aid's Internal Assurance Department had begun an investigation of suspicious Consumer Satisfaction Index ("CSI") phone activity at one of Ekhato's stores. The activity involved Rite Aid employees in Ekhato's district calling the CSI phone number in an effort to improve the customer satisfaction ratings. Higher ratings resulted in larger employee bonuses. All employees knew they were not permitted to make these calls.

Loss Prevention Manager Richard Wozniak was originally assigned to the investigation. He reviewed a surveillance video from the store that revealed a pharmacy technician, Naly Moua, was retaining customer receipts. Def. Mot., Exh. O, Wozniak Aff. ¶¶ 7-8. In her interview with Wozniak, Moua told him she had called the CSI survey number at the instruction of her pharmacy manager, Andrea Marinaro. Id. , at ¶ 8. Marinaro told Wozniak that Ekhato had instructed her pharmacy managers to "do whatever it takes" to improve the district's CSI scores. Id. , at ¶ 9. *fn14 This statement was independently confirmed by another pharmacist, Shaji Joseph. Plt.'s Ans. , Exh. I, at 56. Once Wozniak's ...


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