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Joseph J. Frank v. Walgreens Co

September 26, 2011


The opinion of the court was delivered by: Hurley, Senior District Judge:


Plaintiff Joseph J. Frank commenced this diversity action alleging that his employer, defendant Walgreens Co., retaliated against him because of a complaint he filed with the New York Department of Education in violation of New York Labor Law Section 740, New York State's "Whistleblower Statute." Plaintiff has also asserted causes of action for negligent hiring and supervision, intentional infliction of emotional distress, and prima facie tort. Presently before the Court is defendant's motion, pursuant to Federal Rule of Civil Procedure 12(b)(6), seeking the dismissal of the Complaint. For the reasons set forth below, defendant's motion is granted.


Commencement of the Suit

Plaintiff originally filed this action in New York State Supreme Court, Suffolk County by filing a Summons with Notice on January 28, 2009. Because the Summons with Notice alleged violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq., and the Occupational Safety and Health Act, 29 U.S.C. § 651, et seq, defendant removed the case to this Court based on federal question jurisdiction. Plaintiff filed the Complaint on March 29, 2009. The Complaint asserts state law claims only, and explicitly states: "All of plaintiff[']s claims are state claims. There are no federal claims." (Compl. ¶ 2.) The Court denied plaintiff's subsequent motion to remand, however, finding that the Court had diversity jurisdiction over the action. (Mem. & Order, dated Aug. 4, 2010 at 8.)

Factual Background

The following facts are taken from the Complaint, including the exhibits attached thereto,*fn1 and are presumed true for purposes of the instant motion.

Plaintiff, a resident of Suffolk County, New York, has been, at all relevant times, employed by defendant as a Senior Certified Pharmacy Technician in defendant's Store No. 2216, located in Patchogue, New York. (Compl. ¶ 5 & Ex. F.) Defendant is a "foreign corporation authorized to do business in the State of New York." (Compl. ¶ 6.) On December 3, 2008, plaintiff had a "first meeting" with Maurice Ward, the Loss Prevention Supervisor for defendant's Districts 291 and 236, as well as Louis Morandi, the Pharmacy Supervisor for District 236. (Id. ¶ 8c & Ex. B.) Morandi was not plaintiff's direct supervisor, but was a supervisor on the District level. (Compl. ¶ 10.) The December 3, 2008 meeting revolved around plaintiff's interactions with Craig Schmidt, the Pharmacy Manager and plaintiff's direct supervisor (id. ¶ 10 & Ex. A), as well as Krista Wolfe, plaintiff's co-worker in the pharmacy department (Compl., Ex. F). The Complaint describes the discussion during the meeting as follows:

At this point all I knew was that I was being accused of creating a hostile work environment. It was at this point that I said I was being harassed because Craig Schmidt and Krista Wolfe were seeing each other and [I] had proof to support this claim. (Id. ¶ 8c.)

On December 18, 2008, plaintiff submitted a complaint against Schmidt to the New York State Department of Education's Office of Professional Discipline (the "Administrative Complaint"). (Compl., Ex. A.) The Administrative Complaint sets forth plaintiff's complaining information:

It's an ongoing problem not limited to just one occasion. Craig Schmidt the Pharmacy Manager brings his girlfriend[']s son into the pharmacy. He is allowed to play with the vials and pill bottles. Also during business hours he wears the Pharmacy Manager[']s labcoat with name tag. Several customers have complained to me saying its unprofessional that he is back there where we store the medication.

[T]hey also believe our attention should be on filling medications without making a mistake instead of being distracted by the child. Not only that but it poses a safety hazard. He cannot watch the child on a [consistent] basis and do his job effectively. Not all medications are in [ ] child resistant bottles and what would happen if he got into a bottle? As a pharmacist Craig should know better than anyone the result.


On December 22, 2008, plaintiff attended a "second meeting" with Ward and Morandi. (Compl. ¶ 8c.) Plaintiff was informed that Schmidt was being transferred to a different store "because of his relationship with Krista." (Id.) "Midway through" this meeting, plaintiff informed Ward and Morandi "about the claim [plaintiff] filed with New York State, which they weren't happy about." (Id.) Plaintiff also informed Ward and Morandi that he had made copies of photographs that "were left in the pharmacy," which depicted the child in the medication storage area of the pharmacy. (Id.) Those photographs were apparently submitted to the State Department of Education as part of plaintiff's Administrative Complaint. (See Compl., Ex. A.)

On December 23, 2008, plaintiff and Marvin Boyer, who is described as a Loss Prevention Manager for defendant's Region 16 (see Compl., Ex. B), had a telephone conversation regarding the manner in which plaintiff had "been treated over the past year or so since [Schmidt] took over as Pharmacy Manager in Patchogue." (Compl. ¶ 8c.) The following day, plaintiff and Boyer spoke again, and the focus of the conversation "start[ed] to shift to the claim [plaintiff] filed about children being allowed in the pharmacy." (Id.) "At [that] point," plaintiff believed that "everyone [knew]" about the Administrative Complaint. (Id.)

On December 30, 2008, Morandi informed plaintiff that he was being transferred to the Smithtown store. (Id.) Plaintiff also learned that Schmidt was being transferred to the Medford store, although it was "undecided" as to whether or where Wolfe would be transferred. (Id.) That same day, plaintiff sent an email to John Foley (Vice President of Store Operations for Region 16), Morandi, Ward, and Boyer, as well as Debbie Smith (Employee Relations Representative), Adrienne Johnson (District Manager for District 326), and Gene Slade (Senior Attorney). (Compl., Exs. B & F.) In the email, plaintiff expressed that he was "not happy about being transferred to Smithtown," and stated that he believed his transfer was "nothing more than Retaliation." (Compl., Ex. F.) Plaintiff further stated: "I've done nothing wrong, but bring [ ] attention [to] things that were going on in the pharmacy . . . [A]nother thing that is clear now is that I am being retaliated against and odds are [its] because I had called New York State." (Id.)

On December 31, 2008, plaintiff spoke with Joseph Moy, a Pharmacy Supervisor for District 291, regarding the December 30, 2008 email. (Compl. ΒΆ 8c.) Moy informed plaintiff that his transfer to the Smithtown store was only temporary. (Id.) The ...

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