McMellon v. Safeway Stores, Inc.

945 F. Supp. 1402, 1996 U.S. Dist. LEXIS 17498, 1996 WL 682250
CourtDistrict Court, D. Oregon
DecidedNovember 13, 1996
DocketCivil No. 95-1290-FR
StatusPublished
Cited by2 cases

This text of 945 F. Supp. 1402 (McMellon v. Safeway Stores, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McMellon v. Safeway Stores, Inc., 945 F. Supp. 1402, 1996 U.S. Dist. LEXIS 17498, 1996 WL 682250 (D. Or. 1996).

Opinion

OPINION

FRYE, District Judge:

The plaintiff, Karla MeMellon, alleges claims for wrongful discharge, the intentional infliction of emotional distress, and the reckless infliction of emotional distress against her former employer, the defendant, Safeway Stores, Inc. (Safeway). Before the court is the motion of Safeway for summary judgment (#23) against all of the claims of MeMellon, and the motion of Safeway to strike (# 40).

UNDISPUTED FACTS

Safeway employed Karla MeMellon in 1984 in its store in Tillamook, Oregon. In 1991, she was assigned to the pharmacy department of the Safeway store. She worked in that department until her last day of work as a Safeway employee on or about June 15, 1994. At that time, MeMellon was a pharmacy technician. David Walker, the manager of the pharmacy department of the Tillamook Safeway store, was McMellon’s supervisor. Steve Gardner was the general manager of the Tillamook Safeway store. Jack Boehme, the director of pharmacy operations for Safeway, had his office away from the Tillamook Safeway store.

Prescription drugs are packaged by the manufacturers with the expiration date for the drug on the packaging. It is illegal for any pharmacy to dispense outdated drugs. [1405]*1405Although McMellon noticed that Walker was filling prescriptions with outdated drugs shortly after she transferred to the pharmacy in 1991, this practice did not trouble her until 1993 when the pharmaceutical knowledge that she had acquired led her to believe that the use of outdated drugs could be dangerous to purchasers of such drugs.

Pharmacies have a procedure for dealing with outdated drugs. The procedure provides that once the expiration date of a drug passes, the drug is removed from the shelf and put into a separate container in another part of the pharmacy. This procedure protects against the accidental use of outdated drugs. On occasion, unopened packages of outdated drugs are returned to the manufacturer for credit on Safeway’s account. Opened packages of outdated drugs cannot be returned to the manufacturer for credit; therefore, they are destroyed..

McMellon has seen Walker dispense the following outdated drugs: morphine, Cardizem, acetaminophen with codeine, tetracycline, and Nystatin. McMellon, along with some of the other pharmacy employees, attempted to remove outdated drugs from the shelves of the pharmacy department on numerous occasions. Walker always thwarted McMellon’s efforts, either by ordering her to reshelve the drugs or by reshelving the drugs himself. He told McMellon that he felt comfortable giving the outdated drugs to his family or taking them himself.

Walker was on vacation one week in March of 1994. While he was gone, McMellon and two other employees took more than $9,000 worth of outdated drugs from the pharmacy shelves and boxed them for shipment to the manufacturers. When Walker returned, he was angry. He would not talk to McMellon for a week. He then spoke to her privately, telling her that she did not have authority to take the outdated drugs from the pharmacy shelves and return them to the manufacturers. Walker told McMellon that he was going to reduce her work hours to remind her that he was the boss. Walker reduced McMellon’s work hours from eight hours per day to six and one-half or seven hours per day. She followed this work schedule for about a week. She then returned to an eight-hour a day work schedule.

McMellon complained to Gardner, the store manager, about her reduced work schedule. McMellon had also complained to Gardner about Walker’s use of outdated drugs in December of 1993, April of 1994, and May of 1994. Gardner told McMellon that he would talk to Walker, and that she should not continue to worry about the situation. McMellon had also called Boehme, the director of pharmacy operations, in March and May of 1994 to report Walker’s use of outdated drugs and to get information about how to properly dispose of outdated drugs.

On June 15, 1994, McMellon called Walker at the Safeway store to tell him that she was ill arid could not come to work the next day. She reports her conversation with Walker as follows:

He said that Mr. Boehme talked to him about using outdates. Mr. Walker said he did not know what kind of wild hair I had by accusing him of using outdates. He said he did not know why I was out to get him but I was going to be sorry. He said he was going to get me for this. He said I could not prove he was using outdates____

Plaintiffs Affidavit, p. 4, ¶ 7 (attached to Plaintiffs Memorandum in Opposition to Motion for Summary Judgment). McMellon states that she was unable to return to work for Safeway after this telephone call.

On June 17, 1994, McMellon filed a workers’ compensation claim for undue stress, whereupon Safeway placed her on a medical leave of absence. She then received workers’ compensation benefits.

McMellon made a telephone report to the Oregon Board of Pharmacy on June 20,1994. After an investigation, the Oregon Board of Pharmacy found Walker in violation of OAR 855-41-4)65(7) for intentionally dispensing prescription medications after the printed expiration date of the manufacturer.

McMellon testified that she had never quit her job at Safeway. On July 19, 1994, Safeway sént a letter to McMellon’s attorney. The letter states, in part:

As I mentioned to you on the phone on July 8, 1994, we have made a management [1406]*1406change in the Pharmacy in our Tillamook store where Ms. MeMellon works. As I understand Ms. McMellon’s concerns from you and now from Dr. Tureo’s evaluation, it appears that by replacing our Pharmacy Manager [Walker], Ms. MeMellon could now possibly return to work in her former position. At this time we would like to invite her to return to work and if there are any other concerns she has about the operations of that Department, she is encouraged to call me directly at 657-6359.

Exhibit B-l to Affidavit of Patti A. Krieg in Support of Defendant’s Motion for Summary Judgment. MeMellon never responded to Safeway’s letter of July 19, 1994. MeMellon states that she did not respond because she did not want to return to work while the matter was still being investigated.

On April 13,1995, Safeway sent the following letter to MeMellon:

Our employment records show you have not worked since approximately 6/18/94. I am writing to you to determine whether or not you are interested in continuing your employment at Safeway.
Please let me know your intentions by completing the attached form and returning it to me in the provided envelope. If I do not receive the attached form back from you within 10 days of receipt of this letter I will assume that you are no longer interested in employment with Safeway and will faciliate [sic] the paperwork to that effect and instruct payroll to dispense any accurals [sic] you may have.
If you have any questions, please give me a call.

Id., Exhibit B-3. MeMellon never responded to this letter. She testified that her failure to respond did not mean that she did not want to come back to work for Safeway.

Safeway’s employee record for MeMellon lists her termination date as April 9, 1995. It is unclear why this date is earlier than the date of the last quoted letter.

CONTENTIONS OF THE PARTIES

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Related

McLean v. Pine Eagle School District, No. 61
194 F. Supp. 3d 1102 (D. Oregon, 2016)
Campbell v. Safeway, Inc.
332 F. Supp. 2d 1367 (D. Oregon, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
945 F. Supp. 1402, 1996 U.S. Dist. LEXIS 17498, 1996 WL 682250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmellon-v-safeway-stores-inc-ord-1996.