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Lindsey v. Walgreen Co.

December 8, 2009


The opinion of the court was delivered by: Hon. Harry D. Leinenweber


Before the court is the Motion of Defendant Walgreen Co. (hereinafter, "Walgreens") for Summary Judgment on Plaintiff Katie Lindsey's (hereinafter, the "Plaintiff") employment discrimination claim pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, the motion is granted.


Plaintiff, a licensed pharmacist, was hired by Walgreens in May 1995 and worked for the company until her termination on August 30, 2007. She was 53 years old when she was fired. Plaintiff subsequently brought suit under the Age Discrimination in Employment Act (the "ADEA"), alleging that Defendant wrongfully terminated her based on her age.

Plaintiff first worked for Walgreens as an hourly pharmacist at various Walgreens locations on the south side of Chicago. In March 2002, Connie Jenkins ("Jenkins"), pharmacy supervisor for Walgreens' Chicago West District, promoted Plaintiff to pharmacy manager at the Walgreens located on South Halsted Street in Chicago. Upon that promotion Jenkins became Plaintiff's direct supervisor.

Jenkins rated Plaintiff "meets expectations" once or twice in her evaluation of Plaintiff's performance as pharmacy manager but in March 2006 rated Plaintiff "needs improvement." In early 2007, Jenkins received complaints from various employees in the Halsted store that Plaintiff was violating pharmacy policies and procedures. This led to an investigation in which Jenkins concluded that Plaintiff had filled expired prescriptions and modified the price of certain drugs in violation of Walgreens policies. Jenkins demoted Plaintiff to staff pharmacist, transferred her to a Walgreens location on South Western Avenue in Chicago, and gave her a final warning that another failure to follow company policy would result in termination. The pharmacy manager at the Western Avenue location was Akua Bamfo-Agyei ("Bamfo-Agyei"). Plaintiff does not allege that Jenkins's decision to demote her was based on her age.

Plaintiff and Bamfo-Agyei apparently had a contentious relationship. Plaintiff alleges that Bamfo-Agyei called her old and slow, and made derogatory references to her demotion. Plaintiff also claims that her co-workers at Western Avenue made similar comments, referring to Plaintiff as "old, crazy and slow."

Plaintiff contends that she informed Jenkins of these comments by her co-workers but Jenkins never took disciplinary action and instead told Plaintiff she was "old enough to know better" and "too old" to take such remarks seriously. Plaintiff also claims that certain occasions when Plaintiff was behind in her work Jenkins questioned whether Plaintiff could "keep up," was "past her prime," or "too old to do this anymore." Walgreens denies that Jenkins ever made such comments.

The events leading to Plaintiff's dismissal concern her alleged violation of Walgreens' Drug Utilization Review (the "DUR") guidelines. Those guidelines require that, before a prescription can be filled, the pharmacist must perform a computer-assisted review of the patient's drug therapy, including the patient's drug history and the possibility of drug interactions, and use his or her professional judgment to resolve any issues that arise. That may include contacting the doctor or the patient when appropriate, although the DUR policy does not require the pharmacist to contact the patient's doctor in every circumstance. If a pharmacist ultimately proceeds with filling the prescription, he or she must override the drug-interaction warning and enter an explanatory notation in the database.

On Aug. 22, 2007, about four months after Plaintiff received her final warning, Bamfo-Agyei began processing a prescription for fluconazole, an antifungal drug used to treat yeast infections. A warning came up in the Walgreens database indicating that the drug could have a severe adverse reaction with another drug the patient was taking, the cholesterol drug simvastatin. The customer's history revealed that she also was taking anti-rejection medication for a recent kidney transplant. The monograph described the severity of the potential drug interaction as "major."

After reviewing this information, Bamfo-Agyei called the patient's doctor to discuss the potential drug interaction and the doctor's nurse told Bamfo-Agyei the doctor would call back. BamfoAgyei claims that she put the prescription in an "exception queue" in the database and entered a notation indicating that she was waiting for a return phone call from the doctor to dispense the drug. When Plaintiff arrived that day, Bamfo-Agyei claims that she notified Plaintiff of the prescription in the exception queue and that the patient's doctor would be calling the pharmacy with further instructions. Plaintiff denies that Bamfo-Agyei told her anything about this prescription.

Shortly after starting her shift Plaintiff filled the prescription, entered a notation in the database that read "reviewed patient history," and overrode the drug interaction warning. Plaintiff does not recall whether this prescription was in the "exception queue" when she filled it and she denies ever seeing a notation in the system from Bamfo-Agyei indicating that she had contacted the patient's doctor and was waiting for approval to dispense the prescription. There is no written evidence that Bamfo-Agyei left such a notation nor would there be; when Plaintiff entered her own notation, it would have overridden any prior notation in the system. Plaintiff contends that risk of a drug interaction was minimal and that she appropriately exercised her professional judgment in dispensing the prescription. Nonetheless, Plaintiff acknowledged in her deposition testimony that if the patient's doctor had instructed the pharmacy to give the patient an over-the-counter medication instead, she would not have filled the prescription.

Bamfo-Agyei testified that she received a call from the patient's doctor the next day instructing the pharmacy not to fill the prescription but when she pulled up the prescription in the database she saw that Plaintiff had already filled it. Bamfo-Agyei then called the customer and advised her not to take the drug, and reported the incident to Jenkins.

Jenkins investigated the incident by interviewing Bamfo-Agyei and reviewing all of the information in the Walgreens database, including the customer's drug history and the monograph detailing the possible drug interaction of simvastatin and fluconazole. Jenkins did not interview Plaintiff. She determined that Plaintiff should not have filled the prescription without consulting with the patient's doctor. This was based on the possibility of a severe adverse reaction, the patient's medical history, and the availability of over-the-counter medications for yeast infections. It was also based in part on Bamfo-Agyei's decision to call the doctor and the doctor's ultimate determination that he did not want the prescription filled. As a result of her investigation, Jenkins concluded that termination was warranted since Plaintiff failed to follow pharmacy policy by not deferring to the warning of a potentially severe drug reaction and by recklessly filling the prescription without waiting to hear back from the patient's doctor. Jenkins terminated Plaintiff on August 30, 2007.

Walgreens replaced Plaintiff with Cornetta Levi ("Levi"), a pharmacy extern who was already working at the Western Avenue location. Jenkins testified in her deposition that Levi appeared "slightly younger" than Plaintiff did, and that Levi was in pharmacy school at the time of Plaintiff's firing. Plaintiff contends in her response brief that Levi appeared to be in her mid-twenties but there is no evidence in the record as to Levi's exact age.


A. Standard of ...

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