Dive Brief:
- Walgreens won summary judgment on a former store manager’s race discrimination, retaliation and emotional distress claims in part because its stated reason for firing the plaintiff was not discriminatory, a New Mexico federal judge held Thursday. However, the court denied summary judgment as to the plaintiff’s age discrimination and common law retaliatory discharge claims related to his reporting of safety concerns.
- Per the decision, Walgreens fired the plaintiff in Ulivarri v. Walgreens for repeated, unauthorized store closures during overnight hours. While the plaintiff, a Hispanic male, claimed that he was treated differently from two non-Hispanic comparators, the court deemed the comparisons improper.
- The court applied the McDonnell Douglas framework, which has come under scrutiny in federal courts recently.
Dive Insight:
The McDonnell Douglas framework outlines a three-prong test for plaintiffs alleging disparate treatment under Title VII of the 1964 Civil Rights Act. The plaintiff failed the last prong, per the court, and was unable to show an inference of discrimination based upon treatment of similarly situated employees.
The former manager claimed that his store closures were authorized by his supervisor, who he noted was not terminated for the closures. He also pointed to a pharmacy manager at the same location who was not terminated for booking fictitious vaccine appointments.
Both proposed comparators were insufficient, the court determined. Neither side demonstrated that they knew the supervisor’s race, rendering him an insufficient comparator. The pharmacy manager — whom the court assumed to be White without deciding this point — did not have the same supervisor, a fact which similarly cut against the plaintiff.
Walgreens also argued that the pharmacy manager’s act of falsifying appointments was not of “comparable seriousness” to that of the plaintiff. The court held that this point “is arguably a question for the jury,” but nonetheless noted that the plaintiff did not produce evidence disputing the company’s assertion that the store closures led to $200,000 in lost revenue, which the company claimed exceeded the amount lost due to the pharmacy manager’s conduct.
The court permitted the plaintiff’s age discrimination claim to go to trial because Walgreens did not seek summary judgment on it. The plaintiff had claimed that he was “forced out of the company” and passed over in favor of younger, non-Hispanic employees.
He also claimed that Walgreens retaliated against him for speaking up about safety and well-being issues and for making internal complaints. The court similarly permitted this common law retaliatory discharge claim to go to trial.
A series of recent decisions have questioned the McDonnell Douglas framework’s compatibility with Title VII’s statute. Earlier this month, a panel of the 5th U.S. Circuit Court of Appeals applied McDonnell Douglas despite criticizing it. But the same court also upheld the framework’s comparator requirement in a separate decision months earlier.