Evans v. Walgreen Co.

CHANDRA EVANS, Plaintiff,

v.WALGREEN COMPANY, Defendant.

No. 09-CV-24 91 Ma/P

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

Date: August 16, 2011

REPORT AND RECOMMENDATION

Before the court by order of reference is defendant Walgreen Company's ("Walgreens") Motion for Sanctions Under Rule 11 of the Federal Rules of Civil Procedure ("Rule 11 Motion"). (D.E. 72.) The court submits the following proposed findings of fact and conclusions of law, and recommends that the motion be denied.¹

I. PROPOSED FINDINGS OF FACT

The following proposed findings of fact are based on the court's July 28, 2011 Order Denying Plaintiff's Motion for Sanctions and to Declassify Attorney-Client Relationship.²

Chandra Evans, an African-American female, worked for Walgreens as a Staff Pharmacist from January of 2007 until she was terminated on December 20, 2007.³ Evans alleges that on December 11, 2007, her PDA phone was stolen by Rafael Renfroe, a male Walgreens employee, who then attempted to override the passcode on her phone.⁴ When Evans confronted Renfroe, he denied that he hadstolen her phone. According to Evans, Renfroe had a history of harassing female employees. Evans reported the theft and her confrontation with Renfroe to Walgreens's management. On December 13, 2007, Tracie Davis, a Walgreens Pharmacy Technician who worked under Evans's supervision, made a racially derogatory statement in Evans's presence. Davis used the word "wigger," which was defined by Davis as a "white nigger."⁵ Evans also reported this conduct to management.

On or about December 13, 2007, Walgreens initiated an internal investigation into both incidents. During the investigation, Evans was interviewed by Steve Walker (Walgreens's Loss Prevention Supervisor) and Jacob Tibbe (Evans's Pharmacy Supervisor) (collectively, "Investigators"). Evans eventually provided the Walgreens Investigators with a typed statement, in which she admitted to losing her temper with Renfroe, using profanity, telling him that she would "slap the piss out of him" if they were on the street, and telling him that if he had taken her car keys she would have "put him on the ground." On December 20, 2007, Evans was notified by Walgreens that she was being terminated.

In her complaint, Evans alleges that she was discriminated against on the basis of her sex and/or race when she was investigated, suspended, and terminated from her employment at Walgreens. Her discrimination claims are brought under Title VIIof the Civil Rights Act of 1964, the Tennessee Human Rights Act, and 28 U.S.C. § 2201.

Walgreens disputes these allegations. According to Walgreens, on December 13, 2007, Walker received notice from Store Manager Bryan Lindfield of a potential workplace violence incident between Evans and Renfroe. On December 13 and 14, Walker interviewed Renfroe and other Walgreens employees who witnessed the confrontation, including Assistant Store Manager Kathi Holland and Davis. These witnesses told Walker that Evans yelled at Renfroe, told him that if he ever touched her phone again she would "slap the piss" out of him, and told him that if he had taken her car keys she would have "put him in the ground."⁶ During the course of the investigation, Walker also learned that Evans had notified management about Davis's use of the word "wigger." Walgreens interviewed Evans and three other employees about that incident. Based on the investigation, Renfroe and Davis were disciplined with final written warnings.

Walgreens further asserts that on December 14, 2007, the Investigators attempted to interview Evans about her altercation with Renfroe, and that she refused to cooperate. Based on her refusal to cooperate with the investigation and the informationgathered from the investigation, Tibbe suspended Evans from work.⁷ Afterwards, Evans provided the Investigators with the typed statement in which she admitted to threatening Renfroe. According to Walgreens, Tibbe decided to terminate Evans based on her violation of Walgreens's Workplace Violence Policy.

During the course of this litigation, Evans filed a Motion for Sanctions and Motion to Declassify Attorney-Client Relationship Against Defendant Walgreens Company ("Motion for Sanctions"). The Motion for Sanctions was based on Evans's communications with Puamuh Ghogomu, a Walgreens in-house attorney. Ghogomu works in Walgreens's Employee Relations Department, which is a department within the Human Resources Division at Walgreens where employees can make reports of discrimination.⁸ As an attorney for Walgreens, Ghogomu's responsibilities include ensuring that Walgreens and its management are in compliance with federal, state, and local laws, giving advice to Walgreens's management, handling internal reports of discrimination by employees and, if an internal report results in a lawsuit, assisting in the ensuing litigation.⁹ (Def.'s Resp.to Mot. for Sanctions at 18 & n.26.) When Evans complained to management about the incidents with Renfroe and Davis, she was told to contact Walgreens's Employee Relations Department. Evans called that department and spoke with Ghogomu. In total, Evans spoke to Ghogomu on the telephone three times on December 14.

Evans claimed that Ghogomu, who was allegedly only concerned with protecting Walgreens's interests, had conversations with Evans about the Renfroe and Davis incidents even though he was aware that she had previously consulted with another lawyer. She further claimed that Ghogomu coerced her into cooperating with the investigation without the aid of a lawyer, providing a typed statement that contained false or embellished facts relayed by Ghogomu to her, and attending a termination meeting without a lawyer. (Pl.'s Mot. for Sanctions at 1-2.) Evans also alleged that Walgreens's lead trial counsel in this litigation, attorneys with the firm of Leitner, Williams, Dooley & Napolitan, PLLC ("Leitner Williams"), were "personally involved in the investigation into Ms. Evans' complaints and the decision to terminate her for making the protected complaints" and that "[u]pon information and belief, Leitner Williams was aware of, and sanctioned, Ghogomu's conduct throughout." (Id. at 2.) Evans argued that Ghogomu violated Tennessee Rules of Professional Conduct ("TRPC") 4.2 and 4.3, and that Leitner Williams violated TRPC 8.4.

Walgreens filed a response in opposition to the Motion for Sanctions, in which it disputed Evans's factual and legal allegations. Walgreens subsequently filed the present Rule 11 Motion, in which it raises the same arguments contained in its opposition brief to the Motion for Sanctions as grounds for imposing Rule 11 sanctions against Evans's counsel.

II. PROPOSED CONCLUSIONS OF LAW

A. Rule 11

"Rule 11 generally requires an attorney to conduct a reasonable inquiry into the relevant law and facts before signing pleadings, written motions, or other documents, and it prescribes sanctions for violations of these obligations." Nieves v. City of Cleveland, 153 F. App'x 349, 352 (6th Cir. 2005); see also Jones v. Ill. Cent. R.R. Co., 617 F.3d 843, 854 (6th Cir. 2010) (stating that Rule 11 authorizes a court to sanction an attorney who presents court filings for an improper purpose or based on frivolous arguments). The Rule provides:

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper -whether by signing, filing, submitting, or later advocating it - an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legalcontentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Fed. R. Civ. P. 11(b).

In the Sixth Circuit, the test for the imposition of Rule 11 sanctions is "whether the attorney's conduct was objectively reasonable under the circumstances," and the trial court "has broad discretion in determining when a sanction is warranted and what sanction is appropriate."¹⁰ Nieves, 153 F. App'x at 352; see also Huntsman v. Perry Local Sch. Bd. of Educ., 379 F. App'x 456, 461 (6th Cir. 2010) (same). "The court is expected to avoid using the wisdom of hindsight and should test the signer's conduct by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was submitted." Merritt v. Int'l Ass'n of Machinists and Aerospace Workers, 613 F.3d 609, 626 (6th Cir. 2010)(internal quotation marks and citation omitted).

B. Whether Evans's Attorney Violated Rule 11

The court submits that Evans's attorney, Mr. Aubrey Pittman, did not violate Rule 11 by filing Evans's Motion for Sanctions. First, Walgreens contends that Pittman violated Rule 11 by claiming in the Motion for Sanctions that Ghogomu spoke to Evans even though he knew that she had consulted with an attorney, in violation of TRPC 4.2. Although the court rejected this argument in its July 28 order - and in doing so, admonished Pittman for deliberately omitting critical portions of Ghogomu's deposition testimony - the court finds that, based on the fact that Evans told Ghogomu that she had spoken to a family friend who happened to be an attorney, Pittman had at least some factual basis (albeit tenuous) to make the claim.¹¹ Under these circumstances, Pittman's conduct was objectively reasonable.

Second, Walgreens...