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McPadden v. Wal-Mart Stores East, L.P.

United States District Court, D. New Hampshire

November 3, 2015

Maureen McPadden, Plaintiff
Wal-Mart Stores East, L.P., and Jennifer Fonseca, Defendants Opinion No. 2015 DNH 205

Richard E. Fradette, Esq., Lauren S. Irwin, Esq., Joseph A. Lazazzero, Esq., Christopher B. Kaczmarek, Esq.


Steven J. McAuliffe United States District Judge

Maureen McPadden had been a long-term employee of Wal-Mart, where she worked as a pharmacist at various stores, including locations in Maine, Massachusetts, and New Hampshire. In 2010, she began working at the Wal-Mart pharmacy in Seabrook, New Hampshire. After McPadden lost her key to the pharmacy, Wal-Mart terminated her employment. Shortly thereafter, McPadden filed a charge of discrimination with the New Hampshire Commission for Human Rights. And, subsequently, she filed this suit, in which she advances both state and federal claims that include workplace discrimination, retaliation, and invasion of privacy.

McPadden has voluntarily withdrawn several of her claims and, as to those that remain, Wal-Mart moves for summary judgment. For the reasons discussed, that motion is granted in part, and denied in part.

Standard of Review

When ruling on a motion for summary judgment, the court must “constru[e] the record in the light most favorable to the non-moving party and resolv[e] all reasonable inferences in that party’s favor.” Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301 (1st Cir. 2014). Summary judgment is appropriate when the record reveals “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In this context, “a fact is ‘material’ if it potentially affects the outcome of the suit and a dispute over it is ‘genuine’ if the parties’ positions on the issue are supported by conflicting evidence.” Int’l Ass’n of Machinists & Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st Cir. 1996) (citations omitted). See also Nolan v. CN8, 656 F.3d 71, 76 (1st Cir. 2011). Nevertheless, if the non-moving party’s “evidence is merely colorable, or is not significantly probative, ” no genuine dispute as to a material fact has been proved, and “summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted).


Viewed in the light most favorable to McPadden, as they must be at this stage, the relevant facts are as follows. McPadden began working for Wal-Mart in 1994, as a staff pharmacist in one of its Las Vegas, Nevada, stores. She relocated to New England and worked at various stores in this region. She left Wal-Mart’s employ for approximately five years, but returned again in 2008. Two years later, she began working at the Wal-Mart pharmacy in Seabrook, New Hampshire. There, McPadden reported to Janice Urbanski, the pharmacy manager.

Wal-Mart has a progressive disciplinary policy known as “Coaching for Improvement, ” which provides guidelines for improving employee performance and for disciplining employees. In July of 2011, Urbanski gave McPadden what Wal-Mart calls a “verbal coaching” for failing to ensure that certain essential tasks within the pharmacy were performed in a timely manner. See Affidavit of Janice Urbanski (document no. 21-13) at para. 6. See also Coaching Report #8452914 (document no. 21-14). McPadden acknowledges that Urbanski raised those concerns with her, but denies that it was ever formally treated as a “verbal coaching.” McPadden Deposition (document no. 21-2) at 45-47. That is, McPadden claims Wal-Mart’s policy requires a supervisor to specifically tell the employee that “you are being coached” in order for the event to qualify as “verbal coaching” (i.e., discipline). So, while Urbanski documented the meeting as a “verbal coaching, ” McPadden says it should never have been recognized as any form of official discipline against her (a point that became relevant later, when McPadden lost her pharmacy key). See Plaintiff’s Statement of Facts (document no. 24) at 15-16.

During the summer of 2011, McPadden began raising concerns about pharmacy staffing - in particular, what she believed was an insufficient number of adequately trained pharmacy technicians during the pharmacy’s busy summer season. According to her deposition, she raised those concerns with several superiors (including Urbanski and District Manager David Kelley), and she also “called Walmart home office.” McPadden Deposition at 105. But, says McPadden, her concerns were ignored. She also says she was not alone in recognizing that the Seabrook pharmacy was under-staffed: other pharmacy employees also complained to management about the issue. Indeed, Urbanski says she agreed that Wal-Mart should hire additional pharmacy technicians and raised the issue with Kelley. Urbanski Affidavit at paras. 8-9.

On balance, McPadden’s “Mid-Year Performance Evaluation, ” dated September 26, 2011 (document no. 21-7) at 34-37, suggests that McPadden was a capable employee and Urbanski gave her an overall rating of “solid performer” (a 3.0 out of 5.0). Urbanski did, however, again note that McPadden needed to work “on completing auxiliary tasks within the pharmacy” in a more timely way. Id. at 36.

In December of 2011, Urbanski gave McPadden what Wal-Mart says was McPadden’s “Second Coaching, ” this time for being late to work, failing to complete various tasks, and leaving work before completing all of her tasks. See Coaching #9029342 (document no. 21-15). And, in her next Performance Evaluation of McPadden, Urbanski gave McPadden an overall rating of “development needed” (a 2.0 out of 5.0), while continuing to recognize that McPadden was a “solid performer” with regard to her technical competencies. Performance Evaluation (dated March 27, 2012) (document no. 21-7) at 38-41.

Subsequently, Joshua Varieur replaced Urbanski as manager of the Seabrook pharmacy. McPadden was not pleased. She reported to District Manager Joseph Certo (who had replaced Kelley in that position) that she believed Varieur was “not up to the job” and was concerned that he lacked adequate training to act as the manager of the Seabrook pharmacy. She says those complaints about Varieur’s abilities ultimately related to a “public safety” issue: her concern that customer prescriptions be filled accurately. McPadden also reiterated her concern that the pharmacy did not have enough technicians to assist with the heavy workload.

According to McPadden, Certo agreed that turnover of pharmacy technicians was a problem. And, documentation in the record shows that Certo was trying to hire additional staff at the pharmacy and/or obtain assistance from technicians at nearby Wal-Mart pharmacies. Nevertheless, it remained busy and stressful in the Seabrook pharmacy and McPadden continued to be concerned that the staff was over-worked and that errors in filling prescriptions might well occur. And, in fact, such an error did occur, in August of 2012, when Varieur mistakenly filled a prescription with a generic drug, rather than the brand name drug (the patient, it turns out, had a known severe allergy to the generic). And, says McPadden, although Varieur had previously made two other dispensing errors (and a third would have required him to attend mandatory retraining), neither Certo nor any other Wal-Mart employee “coached” or disciplined him in any way for this particular error.

At some point in 2012, McPadden contacted the New Hampshire Board of Pharmacy about her concerns related to customer safety, pharmacy errors, and inadequate staffing at the Seabrook pharmacy.[1] She spoke with Margaret Clifford, a compliance officer, who told McPadden that there were not any specific laws or regulations concerning minimum staffing requirements for pharmacies and, therefore, there was little she could do to help. McPadden did not tell anyone at Wal-Mart that she had contacted the Board of Pharmacy. Nevertheless, she continued to raise her staffing concerns with Certo. See, e.g., Email dated August 29, 2012, from McPadden to Certo (document no. 21-4) at 25 (“I have no cashier this morning until 10am. I have one technician. It is next to impossible to open this pharmacy and do everything required and be safe for our customers.”).

Working in the Seabrook pharmacy - a pharmacy that she believed was under-staffed and potentially posed a safety hazard to the public - was extremely stressful for McPadden. In early September of 2012, her primary care physician recommended that she take a two-week leave of absence, so she might address her stress, anxiety, and depression. See Certification of Health Care Provider (document no. 23-26). Specifically, McPadden’s physician opined that:

1. Her disabling condition - a stress condition, anxiety, and depression - would last for (or be stabilized within) two weeks;
2. During that period, she would be incapable of filling patient prescriptions;
3. Once her disabling condition had resolved, McPadden would not need follow-up treatment, nor would she need to work on part-time or reduced schedule; and
4. While McPadden might suffer “flare-ups” of her condition one or two times a year, she would not need to be absent from work during those periods.

Id. Importantly (as McPadden now appears to realize, since she has dropped her failure-to-accommodate claim), nothing in that medical opinion stated or even implied that McPadden would require any type of accommodation upon her return to work.

McPadden did not discuss her health issues with co-workers in the pharmacy and most appear to have thought that she had taken time away from work to care for her ailing mother. But, while McPadden was on leave, defendant Jennifer Fonseca (who was working at the counter where new prescriptions arrive and are entered into the pharmacy computer system) told Varieur that McPadden’s doctor had called in a prescription for lorazepam - a medication frequently used to treat anxiety. Fonseca allegedly commented that McPadden must have had a “nervous breakdown” and speculated that was the reason for her absence from work. Although no customers were ...

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