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Federal Court in Tennessee Denies Summary Judgment in Case Where Employee Retaliated Against For Reporting Illegal Activity

drugstore-75978-mA federal court in Tennessee recently denied a motion for summary judgment against an employee claiming that he was retaliated against by his employer after reporting illegal activity.

In Walls v. Tennessee CVS Pharmacy, LLC, Michael Walls worked for CVS from 1998 to 2011, mainly as a store manager.  As part of his position, Walls was responsible for the entire store, although each pharmacy fell under its pharmacist’s responsibility.  In 2007, Walls became the manager for the Madison CVS store, where he observed that the pharmacist, Dr. Warner, suffered from a loss of cognition.  Walls reported the problem, but nothing was done to correct it.  Eight months later, Walls raised the issue again at a meeting of district managers.  One week after that, he was transferred to a different CVS store in Nashville.

Soon after Walls began work at that store, he and a pharmacist discovered that more than 20,000 prescription medicines in the pharmacy were past the expiration date printed on the bottle, some as many as four years.  Since many of those bottles were just partially full, Walls became concerned that the pharmacy had been dispensing medicines to customers that were past their expiration date.  This included HIV medications, anti-rejection drugs, children’s medication, and pain medication.  Since it was against CVS policy to have out-of-date medication, Walls reported the problem to his superiors at the company, including the District Manager and supervising pharmacist.  His superiors never showed any indication that they were investigating his concerns.

In July 2010, Walls sent a letter to CVS’s Chairman and CEO, stating his concerns about the out-of-date medications discovered in 2008.  This led to an investigation conducted without Walls’ knowledge, where the investigators concluded that no out-of-date medications were being dispensed.  In January 2011, Walls called the ethics hotline to report that, rather than transfer old medications to the company warehouse, CVS transferred an amount worth $100,000 to another Nashville CVS.  Walls also learned that his store had received out-of-date medications from one of CVS’s warehouses.  Walls reported the problem to the District Manager, as well as his concern that this was happening at a number of CVS stores.

Finally, in November 2011, CVS terminated Walls’s employment allegedly because he had a family member help him stock the stores once for a couple of hours, in violation of CVS’s zero-tolerance policy.  Walls claimed that he was not aware of any such policy and had received no training on the issue.  He filed a lawsuit claiming that CVS violated the Tennessee Public Protection Act (TPPA) and Tennessee common law.

To establish a claim under the TPPA, (1) the plaintiff was an employee of the defendant; (2) the plaintiff refused to participate in or be silent about an illegal activity; (3) the defendant employer terminated the plaintiff’s employment; and (4) the defendant did so solely for the plaintiff’s refusal to participate in or remain silent about the illegal activity.  For a common-law violation, a plaintiff needed to show: (1) that an at-will employment relationship existed; (2) that the employee was discharged; (3) that the reason was anything that constituted a clear public policy violation; and (4) that a substantial factor in the employer’s decision to discharge the plaintiff was the employee’s exercise of protected rights or compliance with public policy.

CVS argued that Walls could not establish that the District Manager knew that Walls had engaged in a protected activity multiple times before his termination, or that his termination was solely or substantially due to his reporting the out-of-date medication.  However, the court noted that the District Manager did know, since Walls had discussed his concerns about the medication multiple times.  Furthermore, the court believed that Walls had established causation.  Before the one incident involving his family member, he was a “model” employee.  Therefore, since there was a dispute of fact over the two issues, CVS’s summary judgment motion was denied.

Mays & Kerr represents plaintiffs in employment matters, including employment discrimination, wage and hour, FMLA, and more.  With offices in Atlanta and Nashville, we offer a client-centered philosophy and strive to accomplish our clients’ goals as if they are our own.  If you live in Georgia or Tennessee and need an experienced Atlanta employment law attorney, contact us today at 1-877-986-5529.

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