DURADE ZEBARI v. CVS CAREMARK CORPORATION WOODWARD DETROIT CVS LLC (2017)

ORDER

Durade Zebari, a Michigan litigant proceeding pro se, appeals the district court's judgment in favor of CVS Caremark Corporation and Woodward Detroit CVS, LLC (collectively “CVS”) in this action brought under the Michigan Whistleblowers' Protection Act (“WPA”), Mich. Comp. Laws § 15.361 et seq. This case has been referred to a panel of the court that, upon examination, unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a).

Zebari began working for CVS in 2003. In March 2013, Zebari became the pharmacy manager of CVS Store No. 8031 located in Livonia, Michigan. On February 26, 2014, Zebari discovered that the pharmacy was missing 70 tablets of methadone. In accordance with federal and state law as well as CVS's policies, Zebari submitted an Initial Notification of Suspected Controlled Substance Theft or Potentially Significant Loss (“Initial Notification”) to the Drug Enforcement Agency (“DEA”) and to the Michigan Board of Pharmacy. Approximately one month later, on March 21, 2014, pharmacist Tammy Tran informed Zebari that 100 tablets of amphetamine (Adderall) were unaccounted for. At Zebari's direction, Tran notified Pharmacy Supervisor Jennifer Iwick and submitted an Initial Notification. According to Zebari, when Iwick came to the pharmacy, she asked what was going on and told him that “this is going to bring lots of eyes to the store if we can't find it.”

Iwick informed Regional Loss Prevention Manager Michael McDonald that Store No. 8031 had two suspected losses of controlled substances over the past few weeks. Shortly thereafter, Bianca Konja, a CVS pharmacist who had recently worked at Store No. 8031, notified Iwick that one of the controlled substances safes at that store did not lock and could be opened without entering a combination. Iwick reported this information to McDonald, who went to the store to inspect the safes and investigate the missing controlled substances. McDonald asked Zebari to try to open one of the safes without entering a combination. According to Zebari, when the safe opened, “it was a complete shock for me because I did not know that.” As part of his investigation, McDonald interviewed the pharmacy staff at Store No. 8031 and also spoke with pharmacists who had recently worked at that store. While Zebari asserted that he was not aware that the safe was malfunctioning until McDonald asked him to open it without entering a combination, three other pharmacists reported that they were aware that the safe did not lock and that Zebari was also aware because they had discussed the fact with him or had seen him open the safe without entering a combination.

During the course of McDonald's investigation, Andrew Thompson, a pharmacy technician at Store No. 8031, stopped coming to work and was terminated. McDonald later learned that Thompson was working at an affiliated company. On May 1, 2014, McDonald interviewed Thompson, who admitted stealing controlled substances from Store No. 8031. McDonald filed a police report, and Thompson's placement was terminated.

McDonald reported the results of his investigation to Regional Manager Gregory Cassin and others. After reviewing the investigation materials provided by McDonald, Cassin concluded that Zebari knew that the controlled substances safe was not locking properly and had not taken steps to repair it. According to Cassin, because Zebari was the pharmacy manager and therefore solely responsible for the operations of the pharmacy at Store No. 8031, Cassin made the decision to terminate Zebari's employment for failure to ensure that controlled substances were secured in compliance with federal and state law. On May 30, 2014, District Manager Alex Johnson and Iwick met with Zebari and terminated his employment, presenting him with a counseling form which stated that, “[a]s the Pharmacy manager, Durade failed to take appropriate action to ensure the CII safe was functional which could have prevented signif[ic]ant loss incurred during a recent internal theft case.” The other pharmacists who admitted knowing that the safe was malfunctioning received written warnings requiring them to complete training on DEA and regulatory policies.

Zebari subsequently filed a complaint pursuant to the WPA, alleging that CVS wrongfully terminated his employment because he reported a violation or suspected violation of law. CVS removed the action from the Wayne County Circuit Court to the district court based on diversity jurisdiction. See 28 U.S.C. §§ 1332, 1441.

After discovery closed, Zebari filed a motion to amend his complaint to conform to the evidence pursuant to Federal Rule of Civil Procedure 15(b). The district court conducted a hearing and denied Zebari's motion to amend.

CVS filed a motion for summary judgment on Zebari's WPA claim. After a hearing, the district court granted CVS's motion, concluding that Zebari failed to demonstrate a causal connection between his submission of the Initial Notifications and his discharge and therefore failed to establish a prima facie case under the WPA. The district court further determined that Zebari waived any public policy claim by failing to advance that theory of liability in his complaint. Zebari filed a motion for reconsideration of the district court's order granting summary judgment and a notice of appeal. The district court subsequently denied Zebari's motion for reconsideration.

On appeal, Zebari contends that the district court erred in granting CVS's motion for summary judgment and in denying him leave to amend his complaint to assert a public policy claim. Zebari has filed a motion to take judicial notice and a motion to strike CVS's response to his motion to take judicial notice.

Summary Judgment

We review the district court's decision to grant summary judgment de novo. Watson v. Cartee, 817 F.3d 299, 302 (6th Cir. 2016). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court must view the evidence and draw all reasonable inferences in favor of the non-movant and determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

The WPA provides that “[a]n employer shall not discharge ․ an employee ․ because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule ․ to a public body.” Mich. Comp. Laws § 15.362. To establish a prima facie case under the WPA, the plaintiff must show: (1) that he was engaged in protected activity as defined by the WPA; (2) that he suffered an adverse employment action; and (3) that a causal connection exists between the protected activity and the adverse employment action. Whitman v. City of Burton, 831 N.W.2d 223, 229 (Mich. 2013).

The district court determined that Zebari satisfied the first two elements—the submission of the Initial Notifications to the DEA and Michigan Board of Pharmacy constituted protected activity under the WPA, and his termination constituted an adverse employment action. The district court went on to conclude that Zebari failed to demonstrate a causal connection between the submission of the Initial Notifications and his termination. To demonstrate the requisite causal link, Zebari “had to show that his employer took adverse action because of [his] protected activity”—that is, “the adverse employment action was in some manner influenced by the protected activity.” West v. Gen. Motors Corp., 665 N.W.2d 468, 472 (Mich. 2003).

As evidence of a causal link, Zebari relies in part on Iwick's statement that the second instance of missing controlled substances was “going to bring lots of eyes to the store if we can't find it.” According to Zebari, Iwick “did not directly tell me not to report it,” but “[s]he wasn't happy with the reporting.” Even if we draw the inference that Iwick's comment reflected her displeasure with the submission of an Initial Notification, rather than her displeasure with the unexplained loss of controlled substances and concern for locating them, Zebari failed to link Iwick's displeasure with Cassin's decision to terminate his employment. Iwick testified that she was not involved in the decision to terminate Zebari's employment. That decision was made by Cassin. According to Cassin, at the time he made the termination decision, he had no knowledge that Zebari had submitted or had had another pharmacist submit an Initial Notification. The information provided to Cassin, including the written statements from employees and McDonald's investigation report, did not mention the Initial Notifications. Zebari has identified no record evidence that contravenes these facts, and thus there is no genuine dispute that Cassin made the decision to terminate Zebari and had no knowledge of his protected activity. Furthermore, CVS presented evidence that Zebari was the only pharmacist in his region who submitted an Initial Notification in 2014 and was later involuntarily terminated and that 49 other pharmacists in his region submitted one or more Initial Notifications in 2014 and remained employed by CVS as of January 5, 2016. For these reasons, Zebari has failed to demonstrate the causal connection necessary to make out a prima facie case under the WPA.

Zebari's other arguments challenge the legitimacy of CVS's stated reason for his termination, including that the pharmacists who admittedly knew that the safe was not locking were not terminated, that those pharmacists changed their stories, and that a CVS executive said in an email that his termination “sounds off.” But these arguments go to the issue of pretext, which is irrelevant given that Zebari has failed to demonstrate a causal connection in the first place. Kuhn v. Washtenaw Cty., 709 F.3d 612, 629 (6th Cir. 2013). Accordingly, the district court properly granted CVS's motion for summary judgment on Zebari's WPA claim.

Amended Complaint

After discovery closed, Zebari filed a motion to amend his complaint to conform to the evidence pursuant to Rule 15(b). We review the district court's denial of Zebari's motion for abuse of discretion. Kovacevich v. Kent State Univ., 224 F.3d 806, 831 (6th Cir. 2000). In support of his motion, Zebari asserted that “the Amended Complaint effectuates justice and better informs the Court and trier-of-fact of the supporting evidence behind Plaintiff's Whistleblower action.” At the hearing on the motion, the district court characterized the proposed amendments as “evidentiary.” Zebari's counsel agreed, stating that the amended complaint “is simply much more polished and detailed.” The district court denied Zebari's motion on the basis that “a more polished and detailed complaint at this time I think would be unproductive and prejudicial. Defendant would have to answer it, and it would delay proceedings.” The district court did not abuse its discretion in denying Zebari's motion on this basis.

At the hearing on CVS's motion for summary judgment, Zebari's counsel purported to raise a claim for discharge in violation of public policy. In its order granting CVS's motion, the district court pointed out that Zebari's complaint did not mention a violation of public policy and that his motion to amend his complaint did not seek to add a public policy claim. The district court concluded that Zebari waived a public policy claim by failing to advance that theory of liability in his complaint. A plaintiff may not raise a new legal claim for the first time in response to a motion for summary judgment. Tucker v. Union of Needletrades, Indus. & Textile Emps., 407 F.3d 784, 788 (6th Cir. 2005). Therefore, the district court properly rejected Zebari's attempt to raise a public policy claim at that late stage.

Zebari moved for reconsideration of the district court's order granting CVS's motion for summary judgment, asserting in part that he should be allowed to file an amended complaint explicitly raising a public policy claim. The district court denied Zebari's motion. Zebari did not file a notice of appeal or an amended notice of appeal to seek review of the denial of his motion for reconsideration. See Fed. R. App. P. 3(c)(1)(B), 4(a)(4)(B)(ii). Zebari's motion for reconsideration is therefore beyond the scope of this appeal. See Gruener v. Ohio Cas. Ins. Co., 510 F.3d 661, 665-66 (6th Cir. 2008).

Motion to Take Judicial Notice and Motion to Strike

Zebari's motion to take judicial notice consists of text images, including text messages, deposition excerpts, and emails, accompanied by his explanations for why these materials are relevant to his case. As CVS points out, Zebari's motion does not “state with particularity the grounds for the motion, the relief sought, and the legal argument necessary to support it.” Fed. R. App. P. 27(a)(2)(A). Zebari presumably seeks judicial notice pursuant to Federal Rule of Evidence 201, which provides that “[t]he court may judicially notice a fact that is not subject to reasonable dispute because it ․ can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). “This standard applies to appellate courts taking judicial notice of facts supported by documents not included in the record on appeal.” United States v. Ferguson, 681 F.3d 826, 834 (6th Cir. 2012). However, “[j]udicial notice is only appropriate if ‘the matter [is] beyond reasonable controversy.’ ” Id. (second alteration in original) (quoting Fed. R. Evid. 201(b) advisory committee's note). Zebari's motion fails to explain how the submitted materials satisfy this standard. Indeed, CVS disputes the facts or factual inferences that Zebari asks this court to draw from the materials. Accordingly, we deny Zebari's motion.

Zebari moves this court to strike CVS's response to his motion to take judicial notice, arguing that CVS's response was untimely. Zebari served his motion to take judicial notice by mail on April 5, 2017. CVS had ten days to respond to Zebari's motion. See Fed. R. App. P. 27(a)(3)(A). Because the tenth day fell on Saturday, April 15, the response period continued until Monday, April 17. See Fed. R. App. P. 26(a)(1)(C). Three days were added for service by mail, making CVS's response due on Thursday, April 20. See Fed. R. App. P. 26(c) & advisory committee's note to 2009 amendment. CVS's response filed on Wednesday, April 19, was therefore timely.

For these reasons, we DENY Zebari's pending motions and AFFIRM the district court's judgment in favor of CVS.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk