Judge denies lead plaintiff's attempt to avoid deposition in class action against CVS

PHILADELPHIA – On May 7, the U.S. District Court for the Eastern District of Pennsylvania denied a motion that would’ve kept the chief representative in a class action lawsuit from being questioned by the defendant.

The motion for a protective order was sought by a former CVS pharmacist.

A May 5 motion from plaintiff Junius Baugh sought to bar him from being subject to deposition by CVS counsel on the basis of merits issues, but CVS attorneys felt Baugh’s motion was not filed in a timely manner and counter-filed to strike it.

“First, Plaintiff’s request for an order barring CVS from taking his deposition comes too late: plaintiff waited until after the Court had already issued an order on CVS’s motion [that same day] compelling him to appear for a deposition,” said James N. Boudreau, lead counsel for CVS.

“Plaintiff did not seek a protective order after he was served with the notice of deposition on April 13, 2015, as he was required to do if he believed CVS’s notice was objectionable.

“It is not unfair to allow CVS to depose plaintiff. Plaintiff’s motion should be seen for what it is: an unjustified effort to keep CVS from obtaining deposition testimony to which it is entitled.”

Further, Baugh also filed a previous motion in March which sought to obtain documents from CVS regarding his classification as an “hourly” employee, the basis for his wage calculations, his alleged failure to comply with statutes of limitations, mitigate his losses or consent to the conduct for which he now complains, but CVS counsel rejected those requests in full on the basis of privilege.

Judge Mark A. Kearney ruled last week that Baugh would in fact be deposed – but also that CVS was mandated to produce the documents requested by Baugh and his counsel in March, or else state exactly why those documents should be withheld due to privilege on a factual or legal basis.

Court records indicate CVS’ counsel plans to file a motion for summary judgment in this case before the end of the month. Kearney further ruled the full discovery period for the case would cease in December 2016, with trial dates being considered for March 2017.

Baugh, a former assistant pharmacist for several stores in the Philadelphia area, is the lead plaintiff in a complaint accusing CVS Pharmacy of violating the Fair Labor Standards Act, the Pennsylvania Minimum Wage Act and the Pennsylvania Wage Payment and Collection Law by requesting him to work more than 40 hours per week but failing to compensate the time-and-a-half overtime rate.

According to the complaint, Baugh worked as an hourly paid Subordinate Pharmacist from October 2011 to October 2012. During that time, Baugh would clock in for shifts at several different local stores as a floater, filling in for sick or absent pharmacists on an as-needed basis, he says.

The claim says Baugh would speak to a CVS scheduler on the phone and receive the work assignment for the coming week, including locations, days and times. The floaters had the opportunity to choose overtime shifts immediately available, pick up hours as the week progressed or be forced to work an overtime shift if another employee failed to show up.

Baugh estimates hourly paid pharmacists would work an average of 40 to 50 hours a week and personally logged between 100 and 130 hours in a two-week pay period. According to the claim, Baugh earned an hourly rate of $58.93 for the entire shifts and claims he should have earned $88.40 per overtime hour.

The eligible members of the class are defined as subordinate or floater pharmacists who worked overtime hours for CVS during the October 2011 and October 2012 period.

The claim estimates more than 1,000 potential plaintiffs would be eligible under the federal claims, and several hundred from the 406 CVS stores located in Pennsylvania would qualify for the state class.

The plaintiff is represented by David J. Cohen of Kolman Ely P.C. in Penndel and Ryan F. Stephan of Stephan Zouras, LLC in Chicago.

The defendant is represented by James N. Boudreau, Christiana L. Signs and Brian T. Feeney, all of Greenberg Traurig LLP in Philadelphia.

U.S. District Court for Eastern District of Pennsylvania case 2:15-cv-00014