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Ash v. Walgreens Specialty Pharmacy, LLC

United States District Court, E.D. Michigan, Southern Division

January 22, 2014

GERALD ASH, Plaintiff,



This disability discrimination case arises out of plaintiff Gerald Ash's claims that his employer, Walgreens Specialty Pharmacy, LLC and Walgreens Co. (collectively "Walgreens") terminated him in retaliation for using medical leave for treatment of his HIV in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Ash also claims Walgreens denied his leave request to attend a doctor appointment in violation of the FMLA, and failed to accommodate his disability under the ADA. Now before the court is Walgreen's motion for summary judgment. Oral argument was heard on January 13, 2014. For the reasons set forth below, Walgreen's motion shall be granted as to Ash's FMLA interference claim arising out of his request to attend a doctor's appointment, and his failure to accommodate claim under the ADA, but denied as to his FMLA and ADA claims arising out of his termination.

I. Factual Background

On February 18, 2008, Walgreens hired Ash to work as a "team lead" at its Ann Arbor specialty pharmacy, also known as a "call center". The Ann Arbor call center fills prescription orders by mail for specialty drugs used in the treatment of cancer, HIV, hepatitis, and other illnesses, which are not usually available at retail stores. On September 29, 2009, Walgreens promoted Ash to a supervisor position. In April, 2010, Ash was promoted again, this time to the patient manager supervisor position. Call center general manager, Judie Kral, interviewed Ash for the position, hired him, and became his direct supervisor. In that position, Ash supervised 72 employees and his duties included managing groups responsible for customer service, pharmaceutical order processing, and insurance support. At his deposition, Ash testified that he lacked knowledge of the insurance business which he needed to learn to perform his new job. (Doc. 19, Ex. C at 86). Walgreens alleges that Ash failed to learn the technicalities of the insurance business, and thus, failed to perform his job to satisfaction.

According to Walgreens, Kral began receiving complaints about Ash's work in the fall of 2011, but she decided to give him more time to acclimate to the new job, and thus did not issue a performance improvement process ("PIP") until February, 2012. (Doc. 19, Ex. E at 124-35). In November, 2011, however, human resources manager, Jessica Gliesman, issued an employee document called a "Stop, Stop, Continue" ("SSC") process which outlines areas where improvement is needed and recognizes areas where an employee is succeeding. (Doc. 19, Ex. F). Gliesman testified at her deposition that the SSC is not a form of discipline (Doc. 23, Ex. 19 at 100); however, the document issued in connection with the SSC outlines certain employee complaints against Ash, including poor communication and overdelegating. (Doc. 19, Ex. F).

Walgreens gave Ash a bonus and a pay increase in December, 2011. Pay raises and bonuses at Walgreens are generally merit based. (Doc. 23, Ex. 17 at 67-68). Walgreens alleges, however, that Ash's bonus and increase in 2011 were not based on his performance, but that Kral authorized pay increases for all supervisors across the board without conducting any employee evaluations. (Doc. 26, Ex. 4 at 106).

Ash testified that in November, 2011, Kral told him that she had let some nurses go because of "medical issues." (Doc. 23, Ex. 1 at 192). At her deposition, Kral admitted that one of the nurses that she terminated was on FMLA leave. (Doc. 23, Ex. 5 at 227). Sometime in early 2012, Ash and four other employees filed a written complaint against Kral alleging that she created a hostile environment based on her abrasive management style. (Doc. 23, Ex. 1 at 134-35). Walgreens investigated the complaint, issued a written warning, suspended her for two days, and placed her on a PIP in March, 2012.[1] (Doc. 23, Ex. 5 at 183-84).

In January or February, 2012, Ash told Gliesman that he suffered from HIV and complained that the stress of working for Kral exacerbated his condition. (Doc. 23, Ex. 1 at 37). Before he disclosed his HIV status, Ash alleges that Kral stated on two occasions, "God forbid you ever have someone on a management team that takes FMLA; you might as well just get rid of them because they are useless." (Doc. 23, Ex. 1 at 192). On February 2, 2012, Ash asked Kral for leave to attend a medical appointment. (Doc. 23, Ex. 11). Kral denied his request. Id . One week later, on February 9, 2012, Kral issued Ash a PIP. (Doc. 23, Ex. 15). The document issued in connection with the PIP references verbal reprimands in September, October, and November, 2011. Id . Fearing that Kral would not authorize his leave requests for medical appointments, on March 26, 2012, Ash filed a request for intermittent FMLA leave. (Doc. 23, Ex. 2, 3). On those forms, he identified his medical condition as HIV. Id . In speaking with Gliesman about his leave request, she told him that Kral would be required to sign off on the request. At his deposition, Ash testified that he believed that Gliesman would inform Kral of his HIV status, but when pressed, admitted that she did not specifically state that she would tell Kral that he had HIV. (Doc. 23, Ex. 1 at 42-43). On the form that Gliesman presented to Kral, the reason for his leave request is identified as "serious chronic condition." (Doc. 23, Ex. 3). Kral testified that the first time she learned that Ash has HIV was at her deposition, but admitted knowing that he had a serious chronic condition. (Doc. 19, Ex. A at 148-49).

Although Ash requested intermittent FMLA leave, he never actually used any of it. On Monday, April 16, 2012, he requested leave for a medical appointment set for Friday, April 21, 2012. (Doc. 23, Ex. 12). In a written e-mail, Kral advised Ash that there was an important meeting in the morning on the 21st asked him to try to reschedule his appointment for another time. Id.

On May 23, 2012, Kral presented Ash with a PIP and a final written warning advising him that he had 60-days to improve his performance or he risked termination. (Doc. 23, Ex. 16). In the written record of his discipline, Kral wrote, inter alia, that Ash was not meeting the expectations of his position as he lacked business judgment, failed to timely communicate and provide updates to senior management, and did not understand the insurance side of the business. Id . Ash argues the issuance of the final written warning violated Walgreen's progressive discipline policy because he had not received a prior verbal and written warning. In support of its claim that Ash was fired for cause, Walgreens relies on a four-page performance log, filed under seal, in which Kral recorded Ash's alleged performance failures from September, 2011 until June 26, 2012.

In late June, 2012, Ash alleges that Kral told him that just because he had a medical condition did not mean he was not expected to perform. (Doc. 23, Ex. 1 at 177). Walgreens argues that Kral decided to terminate Ash on June 26, 2012, approximately one week before he filed for continuous FMLA leave on July 9, 2012. In support of this contention, Walgreens relies on four pieces of evidence: 1) Kral's deposition testimony that she decided to terminate him in late June, 2012 but put off telling him because of her scheduled vacation (Doc. 19, Ex. A at 241), 2) an e-mail from vice president of specialty operations and pharmacy operations Donald Vidic to Gliesman dated September 19, 2012 stating that they would go forward with the June 26, 2012 decision to terminate Ash (Doc. 19, Ex. O), 3) Gliesman's testimony that the decision to terminate Ash was made in late June (Doc. 19, Ex. E at 209), and 4) Ash's own deposition testimony that on June 26 or 27, 2012, he was in Human Resource manager Mo Zayed's office and overheard Gliesman state on speaker phone that they were going to terminate him without waiting 60 days. (Doc. 19, Ex. C at 202-03). Ash responds that the decision to terminate him was made sometime after he filed for continuous leave (so likely in retaliation for his FMLA request). In support of this claim, he relies on notes from Kral's executive coach Woody Woodburn wherein Woodburn states Kral expressed concerns on August 16, 2012, over how Ash will handle changes made in his absence upon his return to work (Doc. 23, Ex. 25), and a June 27, 2012 entry in Kral's performance log of Ash states that Kral "still had hope, supported [Ash] and thought he could do the job."

On July 6, 2012, Ash began his continuous FMLA leave for which he filed his formal request on July 9, 2012. (Doc. 23, Ex. 4). Gliesman testified that they decided to allow Ash the disability leave he requested before following through on the decision to terminate him. (Doc. 19, Ex. E at 210). Kral was required to sign off on that leave request. As with the intermittent leave request, the continuous leave request presented to her did not state that HIV was the reason, but stated "serious health condition." (Doc. 19, Ex. A at 146, Ex. P). Ash qualified for and was paid short-term disability benefits for the time he was on leave. On September 21, 2012, Ash returned to work. On that morning, Ash met with Kral and Gliesman and Kral told Ash that he was being terminated for performance issues that had been discussed earlier in the year. (Doc. 23, Ex. 1 at 184).

On February 15, 2013, Ash filed a three-count amended complaint against Walgreens alleging (1) retaliation in violation of the FMLA, (2) interference in violation of the FMLA, and (3) violations of the ADA under theories of disparate treatment, failure to accommodate, and retaliation. Walgreens seeks summary judgment on all three counts.

II. Standard of Review

Federal Rule of Civil Procedure 56(c) empowers the court to render summary judgment "forthwith 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 judgment as a matter of law." See Redding v. St. Eward , 241 F.3d 530, 532 (6th Cir. 2001). The Supreme Court has affirmed the court's use of summary judgment as an integral part of the fair and efficient administration of justice. The procedure is not a disfavored ...

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