STATE OF MINNESOTA DISTRICT COURT

COUNTY OF AITKIN NINTH JUDICIAL DISTRICT

Court File No. 01-CV-19-1198

Plaintiff,

v. ORDER AND MEMORANDUM

Grand St. Paul CVS, LLC dba

Defendants.

The above-entitled matter came on for a Motion Hearing on February 18, 2021, before

the Honorable David F. Hermerding, Judge of District Court, Aitkin County Courthouse, County

of Aitkin, State of Minnesota, on Defendant Thrifty White’s and Defendant CVS’s Motions for

Summary Judgment and Plaintiff’s Motion for Partial Summary Judgment.

Jessica Braverman and Christy Hall, Attorneys at Law, appeared on behalf of Plaintiff,

Andrea Anderson. Ranelle Leier, Attorney at Law, appeared on behalf of Defendant, Aitkin

Pharmacy Services, LLC dba Thrift White Pharmacy. Grant Goerke and Kathryn Mrkonich

Wilson, appeared on behalf of Defendants, Grand St. Paul CVS, LLC dba CVS Pharmacy

#10397 and CVS Health Corporation, CVS Pharmacy Inc. Charles Shreffler, Attorney at Law,

appeared on behalf of George Badeaux.

Defendant Thrifty White filed a motion for summary judgment on October 14, 2020.

Defendant CVS filed a motion for summary judgment on October 20, 2020. Plaintiff filed a

motion for partial summary judgment on October 20, 2020. Following the hearing, the Court
provided a briefing schedule for the parties for CVS’s motion for summary judgment. Defendant

CVS was given until February 23, 2021, to submit a written argument. Plaintiff was given until

March 2, 2021, to respond. The Court took the matter under advisement on March 2, 2021.

Based upon the arguments of the parties, all the files, records, and proceedings herein, the

Court makes the following:

ORDER

IT IS HEREBY ORDERED THAT:

1. Defendant Thrifty White’s Motion for Summary Judgment is, in all respects, DENIED.

2. Defendant CVS’s Motion for Summary Judgment is, in all respects, DENIED.

3. Plaintiff’s Motion for Partial Summary Judgment is, in all respects, DENIED.

4. The attached Memorandum shall be incorporated herein.

Dated: May 12, 2021 BY THE COURT:

______________________________
The Honorable David F. Hermerding
Judge of District Court

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 MEMORANDUM

I. BACKGROUND

This matter is before the Court pursuant to several motions for summary judgment. The

undisputed facts will be discussed only briefly. It is not for this Court to decide issues of

disputed facts on a motion for summary judgment.

This case arises from alleged discrimination against Andrea Anderson (hereinafter

“Plaintiff”) by Defendant George Badeaux, a pharmacist at Thrifty White Pharmacy in

McGregor, Minnesota. On January 21, 2019, the Plaintiff’s birth control failed and she obtained

a prescription for emergency contraception from her doctor. Her doctor prescribed the

emergency contraceptive pill “ella,” which is only available by prescription, and sent the

prescription to Defendant Aitkin Pharmacy Services, LLC d/b/a Thrifty White Pharmacy

(hereinafter “Defendant Thrifty White”).

Plaintiff called Defendant Thrifty White and verified that the prescription was covered by

her insurance and whether it was in stock. Plaintiff learned from a pharmacy technician that ella

was not in-stock, but could be ordered and in-stock the next day. Later that day, Defendant

George Badeaux, a pharmacist employed by Defendant Thrifty White, called the Plaintiff about

her ella prescription. During that phone call, Defendant Badeaux informed Plaintiff that he may

be the only pharmacist on staff the following day because a snowstorm could prevent his co-

pharmacist from making it to work. Defendant Badeaux advised Plaintiff that if he were the only

pharmacist on staff, he would be unable to fill her prescription. When Plaintiff asked for

clarification, Defendant Badeaux indicated that he would be unable to fill her prescription based

on his religious beliefs. Defendant Badeaux then suggested that Plaintiff call CVS to fill her

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prescription and warned against calling Shopko, as they were going through bankruptcy

proceedings.

Defendant Badeaux did not speak with the co-pharmacist about whether he anticipated

coming to work the following day prior to calling the Plaintiff. Defendant George Badeaux did

not inform Plaintiff that it was likely the other pharmacist would be working the following day.

Defendant Badeaux did not attempt to speak with another pharmacist who lived closer to the

store to develop a plan to fill Plaintiff’s prescription if he was unable to make it to work. On

three other separate occasions, Defendant Badeaux had refused to fill prescriptions for

emergency contraception.

Plaintiff called Defendant CVS’s pharmacy in Aitkin after speaking with Defendant

Badeaux. A CVS employee told her that they did not have ella in stock and would be unable to

order it from their wholesaler. The CVS employee offered to check at Walgreens in Brainerd to

see if they could fill Plaintiff’s prescription. Plaintiff was put on hold and then informed that a

Walgreens pharmacist stated they could not fill her prescription.

Defendant CVS asserts that neither of the two CVS pharmacy employees working on

January 21, 2019, remember speaking with Plaintiff. However, one of the two CVS pharmacy

employees indicated that it is possible that she spoke to Plaintiff and did not remember doing so.

Both CVS employees agreed that they did not learn about Plaintiff’s story until December 2019.

Plaintiff then called the Walgreens in Brainerd.

II. ARGUMENT

a. Summary Judgment Standard

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 A summary judgment shall be rendered pursuant to Rule 56.03 of the Minnesota Rules of

Civil Procedure where “the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to any material fact

and that either party is entitled to a judgment as a matter of law.” In other words, summary

judgment should be employed only if no issue of fact is involved whatsoever, and that it is not

desirable nor necessary to inquire into facts which might clarify the application of the law.

Donnay v. Boulware, 144 N.W.2d 711, 716 (Minn. 1966). A fact is “material” if its resolution

will affect the outcome of the case. Zappa v. Fahey, 245 N.W.2d 258, 259 (Minn. 1976). No

genuine issue of material fact exists when “the record taken as a whole could not lead a rational

trier of fact to find for the nonmoving party.” Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d

558, 564 (Minn. 2008) (citation omitted). Accordingly, to prevail in its opposition to a summary

judgment, the nonmoving party must present evidence that is sufficiently probative with respect

to an essential element of its case to permit reasonable persons to draw different conclusions.

DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).

In a summary judgment decision, the court determines whether there is an issue of fact to

be tried and views the evidence in a light most favorable to the nonmoving party. Nord v.

Herreid, 305 N.W.2d 337, 339 (Minn. 1981) (citations omitted). The court does not make any

decisions as to the issues of fact per se. Id. Further, all inferences from circumstantial evidence

and all doubts must be resolved against the moving party, without undertaking to determine

credibility. Forsblad v. Jepson, 195 N.W.2d 429, 730 (Minn. 1972) (citation omitted). “[I]f any

doubt exists as to the existence of a genuine issue as to a material fact, the doubt must be

resolved in favor of finding that the fact issue exists.” Rathbun v. W. T. Grant Co., 219 N.W.2d

641, 646 (Minn. 1974).

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 b. Genuine Issues of Material Fact

In the present case, there are genuine issues of material fact in dispute which would

preclude granting any of the parties’ motions for summary judgment or partial summary

judgment.

First, as is evident from the record, there is a genuine dispute of material fact that would

preclude granting Defendant CVS’s motion for summary judgment. The Plaintiff asserts that she

called Defendant CVS to ask whether they would be able to fill her prescription and was told by

an employee that Defendant CVS was unable to do so. That employee then offered to call

Walgreens to see if they would fill the prescription and later told the Plaintiff that Walgreens was

unable to fill her prescription. Defendant CVS denies that their employees ever spoke with the

Plaintiff on that day. Accordingly, Defendant CVS’s Motion for Summary Judgment is denied.

Second, there is a genuine issue of material fact with regards to Defendant Thrifty

White’s and Plaintiff’s competing motions for summary judgment and Plaintiff’s motion for

summary judgment against Defendant Badeaux. Although Defendant Thrifty White and Plaintiff

repeatedly assert that they agree on the material facts, they both dispute whether Defendant

Thrifty White refused to serve the Plaintiff. Defendant Thrifty White asserts that Defendant

Badeaux did not refuse to serve Plaintiff and appears to argue that the Plaintiff rejected being

served by Defendant Thrifty White following Defendant Badeaux’s phone call. The Plaintiff

rejects this argument and asserts that the Defendant Thrifty White refused to serve the Plaintiff

through Defendant Badeaux’s statements that he would not fill her prescription if he was the

only pharmacist on staff the following day. While Defendant Badeaux does not raise any

genuine issues of material fact, this Court’s factual determination of whether the Plaintiff was

refused service would also preclude granting the Plaintiff’s motion for partial summary judgment

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against Defendant Badeaux. Accordingly, the Court finds that there is a genuine issue of

material fact which precludes granting either Defendant Thrifty White’s Motion for Summary

Judgment or the Plaintiff’s Motion for Partial Summary Judgment.

III. CONCLUSION

Based on the foregoing analysis, Defendant Thrifty White’s and Defendant CVS’s

motions for summary judgment shall be DENIED. Plaintiff’s motion for partial summary

judgment shall be DENIED.

—D.F.H.—