Opinion
Civil Action No. 03-6002.
January 7, 2005
MEMORANDUM
Plaintiff Linda Mihalik, a pharmacist employed by defendant Eckerd Corporation, has sued it for sex discrimination and retaliation under: (1) Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq.; (2) the Pennsylvania Human Relations Act ("PHRA"), PA. STAT. ANN. TIT. 43, § 951, et seq., and (3) 42 U.S.C. § 1981. Before the court is the motion of the defendant for summary judgment.
Mihalik's complaint also alleged a count for disability discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. Since she has now chosen not to proceed with this claim, summary judgment will be entered as to it in favor of the defendant.
Under Rule 56(c) of the Federal Rules of Civil Procedure, we may grant summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 254. We review all evidence and make all reasonable inferences from the evidence in the light most favorable to the non-movant. See Wicker v. Consol. Rail Corp., 142 F.3d 690, 696 (3d Cir. 1998). The non-moving party may not rest upon mere allegations or denials of the moving party's pleadings but must set forth specific facts showing there is a genuine issue for trial. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990).
I.
Mihalik has been employed by Eckerd as a pharmacist since 1996. In March, 1999, she transferred to an Eckerd pharmacy in Langhorne, PA ("Flowers Mill Store") from an Eckerd pharmacy in the Northeast section of Philadelphia ("Hendrix Store") because the latter store was being closed.
According to Eckerd's "tier-system," the Hendrix Store was either a tier-one or a tier-two, low prescription volume store. The Flowers Mill Store was a tier-six or high prescription volume store. Three pharmacists were needed to staff Flowers Mill, with two usually on duty at any time during the week. When Mihalik transferred to Flowers Mill, Pharmacist Joseph Pagano was already employed there. Sometime later, Mihalik and Pagano were joined by Pharmacist Chu "Christi" Kim. The District Pharmacy Supervisor was Carol Schultz. The District Pharmacy Supervisor oversees the administration of Eckerd pharmacies in his or her district which in this case, consisted of Bucks, Lehigh, and Montgomery counties.
Approximately four months after Mihalik was transferred to the Flowers Mill Store, Pagano and Kim advised Schultz of problems that they and a number of pharmacy technicians were having with Mihalik. According to Pagano and Kim, Mihalik would: (1) spend too much time engaging in discussion with the customers, while delaying in filling prescriptions; (2) fail to shelve shipments of drugs; (3) fail to mix prescription drugs ahead of time for customers; (4) fail to notify customers ahead of time when a problem arose with their prescriptions; (5) fill out prescriptions under the incorrect patient name; and (6) provide customers with incorrect quantities of their drugs. As a result of these deficiencies, the other employees had to handle numerous customer complaints.
In January, 2001, Mihalik underwent a performance evaluation administered by Schultz. Mihalik achieved an overall performance rating of "Meets Expectations." She received high scores in the performance areas of "Prompt, Friendly, Courteous Service," "Adherence to Rx Ethics/Standards," and other similar customer interaction categories. She was designated as in need of improvement, however, in the areas of "Customer Complaints Resolved Within the Store," "Phone Answered in Three Rings," "Pharmacy-Neat, Clean and Organized," and all but one of the sub-categories in the section that evaluated her ability to work with other employees. In the area designated for written comments, Schultz noted that while Mihalik's strength was in "customer service," her weaknesses were in "management execution" and "communication to management and associate management." She also noted that there were "[t]oo many customer complaints."
In June, 2001, David Bachman replaced Schultz as the District Pharmacy Supervisor ("DPS"). Pagano and Kim raised with him their concerns with Mihalik's work habits. A few months later, Kim "resigned from Eckerd primarily because of the problems Linda Mihalik was causing at Flowers Mill." Pagano threatened to resign but did not do so when Bachman agreed to transfer him to an Eckerd pharmacy in Yardley, Pennsylvania.
According to Mihalik, after the departures of Pagano and Kim, Bachman appointed her to the position of Pharmacist-in-Charge ("PIC"). Under Pennsylvania law, a PIC for each pharmacy must be identified to the Commonwealth. The PIC's name is listed on the permit issued to the store. Nothing in the record indicates that Mihalik was ever listed on any of Eckerd's permits as a PIC. According to Eckerd, there is no PIC position for internal purposes within the corporation. Being identified to the Commonwealth as the PIC does not provide the pharmacist with any additional salary, bonus, or responsibilities. The PIC does not review the performance of other pharmacists and does not decide salaries or raises. Mihalik identifies no evidence to the contrary. The purpose of the designation is to provide the state with a contact person within the pharmacy. In addition, because a pharmacy can be owned by a non-pharmacist, the PIC designation ensures that at least one pharmacist is on site.
Shortly after Pagano's and Kim's departures, John Kleinfelder, a pharmacist at CVS, took the initiative and solicited Bachman to hire him at Eckerd. Bachman offered Kleinfelder a pharmacist position at Flowers Mill. Bachman planned to transfer Mihalik to a lower volume store but decided against doing so when Kleinfelder said that he could work with Mihalik and make Flowers Mill efficient. To fill the third pharmacist position, Bachman solicited Elizabeth Fernandez to transfer from an Eckerd pharmacy in Upper Dublin, Pennsylvania. Fernandez initially hesitated to accept the offer because she had previously "floated" at Flowers Mill while Mihalik was employed there and did not have a favorable impression of her. She accepted the position, however, when she was informed that Kleinfelder would be employed there as well. Kleinfelder and Fernandez began working at Flowers Mill around October, 2001.
A floater pharmacist is not permanently stationed at any particular pharmacy. Instead, he or she works at various stores where temporary assistance is needed.
Bachman designated Kleinfelder to the Commonwealth of Pennsylvania as the Pharmacist-in-Charge ("PIC") of the Flowers Mill Store. Bachman, who disputes ever having designated Mihalik as the PIC, chose to designate Kleinfelder as the PIC rather than Mihalik because he was unsure of how long he would allow Mihalik to remain at that high prescription volume store. Within a few days of working with Mihalik, both Kleinfelder and Fernandez had difficulties with her inefficiency. Kleinfelder and Fernandez voiced their concerns to Bachman, who told them to "hang in there" and "see how things turned out." Kleinfelder also spoke to Mihalik about speeding things up, to no avail.
According to Mihalik, in April, 2002, she contacted Diane Stephens, Eckerd's Human Resource Specialist for Bucks County, Pennsylvania, to complain of what she characterized as discriminatory treatment. She complained that her schedule was changed after Kleinfelder and Fernandez began working at Flowers Mill. She mentioned that she no longer received every third Tuesday of the month as a regular day off. She alleged that Kleinfelder yelled at and disrespected her. Furthermore, at her deposition, she testified that she informed Stephens that Kleinfelder sexually harassed her. Although Mihalik felt that the position of PIC was inappropriately taken away from her and given to Kleinfelder, she did not reference this to Stephens. Stephens denies any such conversations with Mihalik.
After her discussion with Stephens, Mihalik alleges that she was treated worse. She asserts that she was provided with less staff on her shifts and that prescription errors were being falsely attributed to her.
After working with Mihalik for seven months, Kleinfelder asked Bachman to transfer her to another pharmacy. In June, 2002, Bachman gave her the option of working permanently at one of two lower prescription volume stores or floating. Mihalik chose to float because the permanent positions were at stores that were more than a one hour commute from her home. Bachman then brought in Jay Frank, previously a floater pharmacist, to replace Mihalik.
During the first two weeks of Mihalik's floating position, she was working only 20-25 hours per week. Periodically, while she was floating, permanent positions would become available at tier-six pharmacies near her home. When she requested a position within these pharmacies, her request was denied. Then, from November, 2002 until January, 2003, she was placed in the Fairless Hills Store, a lower prescription volume tier-three store. She was placed in this location while one of the permanent female pharmacists, Kim Lee, was on maternity leave. It was Bachman's practice to return a pharmacist back from maternity leave to the same store where she had previously worked. Therefore, when Mihalik requested to remain at Fairless Hills, Bachman refused to do so in order to avoid displacing Lee.
In March, 2003, Bachman permanently placed Mihalik in the tier-three pharmacy in Bristol, Pennsylvania. As a tierthree pharmacy, there are two permanent pharmacists, with only one on duty at any given time. Mihalik joined pharmacist Bhavish Patel, who was already designated as the PIC for the Bristol pharmacy. Eventually, Patel and several of the pharmacy technicians began complaining about Mihalik's inefficient work habits. In June, 2004, Patel, several pharmacy technicians, and the store manager, put their complaints in writing for submission to Helen Moore, who replaced Stephens as Eckerd's Human Resources Specialist for Bucks County, Pennsylvania. Some of the employees hesitated to put their complaints in writing, fearing that Mihalik's feelings might be hurt.
In July, 2004, while Moore was investigating the employee complaints, Patel and pharmacy technician Teresa Figeroa submitted their letters of resignation. In their letters, they specifically stated that they were resigning because they could no longer tolerate working with Mihalik. At the time of their resignation, Joe Urban had replaced Bachman as the DPS. In order to keep Patel and Figeroa from leaving the Bristol pharmacy, Urban transferred Mihalik to a pharmacy located in Morrisville, Pennsylvania, where apparently she is currently employed.
II.
We first turn our attention to Mihalik's sex discrimination claim. At the outset, we must note that "sex-based claims are not cognizable under 42 U.S.C. § 1981." Anjelino v. New York Times Co., 200 F.3d 73, 98 (3d Cir. 1999). Therefore, we will grant summary judgment in favor of the defendant on Mihalik's sex discrimination claim brought under this statute.
With respect to a sex discrimination claim brought under Title VII or the PHRA, the elements a plaintiff must satisfy are essentially the same. See Jones v. School Dist. of Philadelphia, 198 F.3d 403, 410-11 (3d Cir. 1999). A plaintiff must establish a prima facie case of discrimination by showing that: (1) she is a member of a protected class; (2) she was qualified for her position; (3) she suffered some form of adverse employment action; and (4) similarly-situated persons outside the protected class were treated more favorably. See Monaco v. American General Assur. Co. 359 F.3d 296, 300 (3d Cir. 2004); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If these elements are met, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the adverse employment decision. McDonnell, 411 U.S. at 802. The plaintiff must then present evidence that the defendant's proffered reasons were a pretext for discrimination. Id. at 804.
Mihalik rests her sex discrimination claim upon: (1) her demotion from the position of PIC; and (2) her transfer from being a permanent pharmacist at Flowers Mill to a floater pharmacist. Eckerd does not dispute that Mihalik, as a female, is a member of a protected class. Nor does it dispute Mihalik's qualifications to be either a PIC or a permanent pharmacist. The company also does not dispute that a male pharmacist, Kleinfelder, was given the position of PIC instead of Mihalik, and that another male pharmacist, Jay Frank, replaced Mihalik when she was removed from Flowers Mill to become a floater. The parties are in dispute, however, as to whether Mihalik's demotion from the position of PIC and transfer to a floater pharmacist position qualify as adverse employment actions.
As stated above, Bachman denies ever having designated Mihalik as the PIC of the Flowers Mill Store.
While there is no bright line rule, the Supreme Court has defined an adverse employment action as "a significant change in employment status, such as failing to promote . . . [or] reassignment with significantly different responsibilities." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Our Court of Appeals has added "transfers," demotions," and employment decisions that significantly "alter an employee's compensation, terms, conditions or privileges of employment" to the definition. Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997).
Eckerd presents unrefuted evidence that the PIC designation is nothing more than an administrative formality for state licensing purposes, carrying no increase in compensation or responsibility. Kleinfelder and a former PIC, Matthew Voulgarakis, have testified to these facts in their depositions, and Pagano stated the same in his declaration. Eckerd further argues that the PIC designation is not a meaningful position within the company, and there are no internal documents describing such a position. Therefore, Eckerd maintains that designating Kleinfelder as the PIC of the Flowers Mill Store rather than Mihalik was not a failure to promote her, a demotion or an alteration of her employment compensation or privileges.
At her deposition, Mihalik was repeatedly asked whether she had first-hand knowledge of PICs receiving higher bonuses and having greater authority over employees than other pharmacists. Although she has never previously been designated as a PIC, she once responded that her viewpoint was based on "years of experience." Later in her deposition, however, when questioned again about whether PICs received larger bonuses than other pharmacists, she admitted that her viewpoint was based on "speculation." As we have stated earlier, when opposing a motion for summary judgment, the non-moving party may not rest upon mere allegations but must set forth specific facts showing there is a genuine issue for trial. Lujan, 497 U.S. at 888. As our Court of Appeals has pointed out, "`not everything that makes an employee unhappy' qualifies as [an adverse employment action]." Robinson, 120 F.3d at 1300. The designation of Kleinfelder as PIC of the Flowers Mill Store, therefore, does not qualify as an adverse employment decision against Mihalik.
Eckerd also argues that Mihalik's transfer from a permanent pharmacist position at Flowers Mill to a floater pharmacist position was not an adverse employment action because she chose to become a floater. Mihalik maintains that her transfer was involuntary, since her only other option was to take a permanent pharmacist position at one of two stores located more than a one hour drive from her home. She maintains that the transfer was adverse because it required her to travel long distances to work while there were permanent pharmacist positions open at stores closer to her home. A hair-splitting analysis of the voluntariness of Mihalik's decision is not necessary, however. Even if Mihalik could establish a prima facie case of sex discrimination with respect to this transfer, the defendant has offered a legitimate, non-discriminatory reason for the transfer which Mihalik cannot rebut. See Jones, 198 F.3d at 412, 414.
If we assume, for purposes of this motion for summary judgment, that Mihalik's transfer to a floater pharmacist position was an adverse employment action, thereby establishing her prima facie case of sex-discrimination, our next step is to determine whether Eckerd has met its burden of articulating a legitimate, non-discriminatory reason for making the transfer. See McDonnell, 411 U.S. at 802. We find that Eckerd has met this burden. The record shows that Mihalik was transferred to a floater position because she simply could not handle Flowers Mill's high prescription volume and made virtually every employee around her miserable. Even Schultz, the female DPS before Bachman, noted that Mihalik did not properly handle customer complaints, did not quickly answer the phone, did not keep the pharmacy organized, and could not work well with other employees. Mihalik's work habits were so troubling that Pagano threatened to resign and Kim, a female, actually did so.
Eckerd has also presented a legitimate reason for requiring Mihalik sometimes to travel long distances to other pharmacies as a floater while denying permanent positions to her at stores closer to her home. According to Eckerd's scheduler, Kris Gerlach, a female, it is very difficult to juggle the scheduling needs of full-time pharmacists regarding vacation, sick and personal leave, and floaters regarding their time and distance preferences. Gerlach stated in her undisputed affidavit that she did her best to accommodate Mihalik's preferences, sometimes scheduling her to work 12-13 hour shifts in order to keep her close to her home. She also declared that it would not be possible for Mihalik to reach her desired 40 hour work week if she were only assigned to nearby pharmacies. Furthermore, the stores closer to Mihalik's home in which permanent positions became available were tier-six stores. Bachman has testified that it would not make sense for him to place Mihalik in one of these stores on a permanent basis, given the fact that she could not handle the volume of prescriptions at the tier-six Flowers Mill Store.
In order to survive summary judgment, Mihalik must "provide sufficient evidence from which a jury could conclude that the purported reasons for the defendant's adverse employment actions were in actuality a pretext for intentional [sex] discrimination." Jones, 198 F.3d at 412; see also McDonnell, 411 U.S. at 802. She must produce evidence to allow a fact-finder to either: "(1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Jones, 198 F.3d at 413 (citations omitted). Relevant evidence includes "`weaknesses, implausibilities, . . . [and] inconsistencies'" in the employer's proffered reasons. Id. (citation omitted). Also relevant is evidence that "`the employer has previously discriminated against other persons within the plaintiff's protected class, or that the employer has treated more favorably similarly situated persons not within the protected class.'" Id. (citation omitted).
Mihalik simply argues that Eckerd's decision to float her and refuse to place her permanently in other tier-six pharmacies closer to her home because she could not handle the tier-six Flowers Mill Store is "bogus" because she was assigned to tier-six stores while floating. Bachman points out, and Mihalik does not contradict, however, that a pharmacist "can go into a store and work any kind of volume for a day and get through it, but day in and day out the store will deteriorate if you can't handle the volume." Furthermore, Mihalik has presented absolutely no evidence that Eckerd had previously discriminated against her or anyone else in the protected class. Id. Moreover, simply because Jay Frank, a male, replaced her as a permanent pharmacist at Flowers Mill does not prove discrimination without other evidence. Finally, she cannot show weaknesses, implausibilities, or inconsistencies in Eckerd's evidence. Id. In sum, she has offered no evidence that Eckerd's reason for sometimes floating her to long distance pharmacies was a pretext for intentional sex discrimination against her.
Consequently, we will grant summary judgment in the defendant's favor on Mihalik's sex discrimination claims under Title VII and the PHRA.
III.
We turn to Mihalik's retaliation claim, brought under Title VII and the PHRA. It requires essentially the same McDonnell burden-shifting analysis as a sex-discrimination claim. Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997). The only variation occurs with respect to the elements of the prima facie case. A plaintiff must show that "(1) [she] engaged in a protected employee activity; (2) the employer took an adverse employment action after or contemporaneous with [her] protected activity; and (3) a causal link exists between [her] protected activity and the employer's adverse action." Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000). There is no dispute that Mihalik's complaints to Stephens of discriminatory treatment qualify as protected employee activity. See Abramson v. William Patterson College of New Jersey, 260 F.3d 265, 287-88 (3d Cir. 2001).In her brief, Mihalik advances five instances of retaliatory treatment to which she was subjected after complaining to Stephens about discriminatory treatment: (1) her transfer to a position of floating pharmacist; (2) her being assigned to pharmacies long distances from her home; (3) her being denied permanent positions in tier-six pharmacies close to her home while she was a floater; (4) her being falsely accused of prescription errors; and (5) Bachman and Moore coercing employees in the Bristol pharmacy to make complaints against her.
Mihalik, however, fails to make out a prima facie case with respect to her prescription error claim and her employee coercion claim. Mihalik presents the affidavits of two former Eckerd pharmacy technicians, Lou Ellen Akgun and Sandralee Hayes, in support of her claim that prescription errors were falsely attributed to her. However, at her subsequent deposition, Akgun refuted the relevant portions of her affidavit. She stated that the words in the affidavit were not her exact works, but the interpretation of her words by Mihalik's attorney. She testified that, in actuality, the prescription errors were attributed to Mihalik because "she was the pharmacist on duty at the time" of the errors and was the pharmacist who had "filled the prescriptions."
Hayes' testimony also does not provide Mihalik with any support. At her deposition she recounted that on a few occasions Mihalik would leave the store but fail to sign off from the pharmacy computer. During the night, when various pharmacy technicians made errors with respect to prescription information, these errors would be attributed to Mihalik rather than the actual pharmacist on duty since her name was logged in the computer. According to Hayes, Kleinfelder stated "if she is stupid enough to leave her name signed in on the computer, so be it." Even if true, his lack of sympathy for Mihalik's carelessness is not evidence of an improper attempt to attribute errors to her.
Even if her other allegations qualify as adverse employment actions, she has failed to establish a causal connection between her complaint to Stephens and any subsequent actions against her. The actions which she identified were taken against her by Bachman and Gerlach. There is no evidence that either of these individuals was aware of her complaint to Stephens about discrimination. If the individual who takes an adverse employment action against the plaintiff had no knowledge that she engaged in protected activity, there can be no causal connection between the two. Bedford v. Southeastern Pennsylvania Transp. Auth., 867 F. Supp. 288, 293 (E.D. Pa. 1994); see also Jones, 198 F.3d at 415.
Mihalik cannot establish a prima facie case of retaliation. Summary judgment will therefore be granted in favor of Eckerd on her retaliation claim under Title VII and the PHRA.
ORDER
AND NOW, this 7th day of January, 2005, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:(1) the motion of defendant Eckerd Corporation for summary judgment is GRANTED; and
(2) judgment is entered in favor of the defendant, Eckerd Corporation, and against the plaintiff, Linda Mihalik.