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Judith Vicich v. Walgreen Co

November 2, 2012

JUDITH VICICH, PLAINTIFF,
v.
WALGREEN CO., DEFENDANT.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:

MEMORANDUM OPINION AND ORDER

Judith Vicich, who has multiple sclerosis, has sued her former employer, Walgreen Co. (Walgreens), under the Americans with Disabilities Act (ADA). Vicich contends that Walgreens failed to provide a reasonable accommodation for her multiple sclerosis and that it fired her in retaliation against her for exercising her rights under the ADA. Walgreens moved for summary judgment on both of Vicich's claims. For the reasons stated below, the Court grants Walgreens' motion with regard to the retaliation claim but denies it with regard to the accommodation claim.

Background

Vicich first worked for Walgreens from 1968 through 1973. She returned to Walgreens several years later in 2000 as a staff pharmacist. By the time she returned, Vicich had been diagnosed with multiple sclerosis (MS). Vicich worked as a pharmacist in a number of different Walgreens locations before deciding in December 2007 to take a permanent position as a staff pharmacist at a store in Warrenville, Illinois (Store 5712). She remained there until she was fired on May 29, 2009.

Vicich worked indirectly underneath Scott Diveney, a district pharmacy supervisor for the west suburban district of Walgreens, the entire time she worked at Store 5712. Dave Hauge was the pharmacy manager when Vicich first began at the store, but Abeir Heib took over the post in late 2008. They were the only two full-time staff pharmacists at the store. Sonal Vyas worked part-time as a staff pharmacist. Other pharmacists would occasionally work at Store 5712 on a temporary basis, filling in for the staff as needed. The store also had two full-time pharmacy technicians, Andrea Hedges and Barbara Zieneski.

During her deposition, Vicich testified that when she began working at Store 5712 in December 2007, she worked Sunday through Thursday every week. At some point, however, Vicich's schedule changed, and she began working alternating six-day and four-day work weeks. Vicich would work Sunday through Friday one week, followed by Monday through Thursday the following week. Heib likewise worked an alternating schedule, and Vyas, the part-time pharmacist, worked every Friday and Saturday.

A. R.W.'s Prevacid prescription

In January 2009, Vicich was working at Store 5712 with Hedges when a prescription for a two-year-old patient, R.W., was transferred to the store from another Walgreens store. The prescription was for the drug Prevacid, used primarily to treat acid reflux and to prevent and treat ulcers. R.W.'s prescription called for a liquid compound form of the drug, requiring the pharmacy to combine the medication with a liquid to create a liquid form of the drug that a young child can ingest. The doctor's prescription called for a dose of fifteen milligrams of medicine per five milliliters of liquid (15mg/5ml), but the Walgreens pharmacist who previously filled the prescription had calculated a preparation that would create a dose of twenty-five milligrams of medicine per five milliliters of liquid (25mg/5ml). The calculation thus called for a greater dosage of medication than the prescription authorized.

Hedges and Vicich discovered the inconsistency between the prescription and calculation when they refilled the prescription. Vicich testified that she called the prescribing physician's office and asked a nurse there to verify the prescription dosage. According to Vicich, the nurse placed her briefly on hold and then returned and instructed her to continue making the prescription at the 25mg/5ml strength. Walgreens does not dispute this for present purposes, although Diveney submitted an affidavit in which he stated that he "entertained serious doubts about whether Vicich actually called the doctor's office." Def. Ex. 15 at 4. Vicich admits that she did not record the name of the nurse to whom she spoke, although she contends that this is not uncommon. Def. Ex. 1 at 57. Vicich and Hedges prepared the medication at the 25mg/5ml strength, and Vicich rewrote R.W.'s prescription. Vicich testified, however, that she erroneously rewrote the prescription at the same 15mg/5ml strength. Id. at 54--55.

Walgreens policy requires that when an improperly processed or filled prescription leaves the pharmacy, a pharmacist must file a report through the company's Strategic Tracking and Analytical Reporting System (STARS report). Def. Ex. 15 at 219; Pl. Ex. 13. The policy also states that the pharmacy staff "should do all they can to correct the situation, ensure the customer's health and welfare, and satisfy the customer." Def. Ex. 15 at 219. Vicich filed a STARS report in January 2009, stating that she had verified the dosage with the prescribing physician at the 25mg/5ml level.

Vicich did not notify anyone of the incident verbally, including her supervisors or R.W.'s family. Diveney testified that he reviews all STARS reports filed in his district but admitted that he did no investigation regarding Vicich's January 2009 report. Walgreens retains STARS report for only one year before it purges them, and thus it has since destroyed Vicich's January report.

Diveney testified that R.W.'s prescription was filled a few times from January through April 2009, but the parties have submitted no evidence regarding who filled those refills or what dosage of the medication they contained. On April 24, 2009, R.W.'s prescription was again refilled at Store 5712. During her deposition, Vyas testified that she was reviewing the prescription data for R.W.'s prescription when she noticed the inconsistency between the calculations, which called for a 25mg/5ml suspension, and the prescription that Vicich had written, which called for a 15mg/5ml suspension. Vyas stated that she called the prescribing physician's office and verified that the prescription was supposed to be 15mg/5ml. She did not tell Vicich that she had contacted the doctor's office and confirmed the lower dosage.

When Vicich arrived for her shift later that day, Vyas told her that she had found an error in R.W.'s prescription and that she had corrected the calculation to the lower dosage. Vicich told Vyas that she was wrong, and she discarded the compound Vyas had prepared. She then remade the compound at the 25mg/5ml strength. Vicich prepared a new copy of the prescription, this time calling for a dosage of 25mg/5ml. She did not contact the prescribing physician's office again before reprinting the prescription. Vicich prepared a new STARS report, stating that she had made a documentation error in January when she wrote the prescription at the 15mg/5ml dosage. She did not, however, notify R.W.'s family about the prescription order or indicate to them that there had ever been an issue regarding the Prevacid prescription. Walgreens has purged Vicich's April STARS report.

Vyas testified that when Vicich arrived for her shift on April 24, she took the documents Vyas had collected regarding R.W.'s prescription and "stated that she would take care of it." Def. Ex. 13 at 1. Vicich denies that she ever took any papers from Vyas. Vyas stated that she then brought the matter to Heib's attention. She testified that before she left the store that day, she collected "the original refill leaflet, a copy of the original prescription order and a STARS note stapled together" and left them for Heib to review. Id.; see also Def. Ex. 4 at 51--52.

After learning of the incident from Vyas, Heib asked Vicich about the prescription, and Vicich said that she had incorrectly written the dosage of 15mg/5ml on the prescription in January after she first received the prescription. Heib directed Vicich to contact the prescribing physician's office to confirm the dosage. Vicich left a message with the office. The physician's office later advised Heib that 15mg/5ml was, in fact, the correct dosage. Vicich testified that she told Heib and Vyas that Walgreens did not need to contact R.W.'s family and that doing so would only create a "[m]ulti-million dollar lawsuit." Def. Ex. 1 at 93.

When district pharmacy supervisor Diveney visited Store 5712 in May 2009, Heib told him about the Prevacid prescription incident. Diveney immediately instructed Heib to contact R.W.'s mother and the prescribing physician to inform them that R.W. had been receiving an incorrect dosage of the medication. Heib testified that she notified R.W.'s mother, although she could not remember whether she spoke with her in person or over the telephone. Vicich denies that Heib ever contacted the mother. Diveney also asked Vyas and Heib (but not Vicich) to prepare written statements summarizing their involvement in the R.W. incident. Vyas and Heib sent their written statements to Diveney on May 14, 2009.

Diveney and Walgreens' Loss Prevention Supervisor Mike Miller interviewed Vicich on May 26, 2009 at Store 5712. Diveney stated in his affidavit that he did not interview Vicich earlier because he was on vacation from May 20 until May 25, 2009. During the interview, Vicich admitted to Diveney and Miller that she advised Vyas and Heib not to contact R.W.'s family regarding the incident. She testified as follows during her deposition:

Q. Do you know whether Scott [Diveney] believed that you advised Sonal Vyas to not contact R.W.'s family?

A. Yes, he knew I advised both Sonal [Vyas] and Abeir [Heib].

Q. Not to contact?

A. Yes.

Def. Ex. 1 at 148--49. The parties disagree on how long the interview lasted, and Vicich contends that Diveney was very hostile at the meeting. Diveney accused Vicich of lying about having spoken to the prescribing physician's ...


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