A New Mexico federal judge partly sided with Walgreens in a former store manager’s discrimination and retaliation lawsuit, granting summary judgment on some claims while allowing others to proceed to trial.
The judge determined that neither of the two racial comparators put forth by the plaintiff to show disparate treatment were sufficiently similar, which contributed to the partial win for Walgreens.
Walgreens fired the plaintiff, a Hispanic male, for repeated, unauthorized store closures during overnight hours, according to the decision in Ulivarri v. Walgreens.
The plaintiff claimed that he was treated differently from two non-Hispanic comparators, but the court deemed these comparisons improper.
The court applied the McDonnell Douglas framework, which 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 of the test, 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.
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He also pointed to a pharmacy manager at the same location who was not terminated for booking fictitious vaccine appointments, but the court determined that both proposed comparators were insufficient.
Walgreens argued that the pharmacy manager’s act of falsifying appointments was not of comparable seriousness to that of the plaintiff, and the court noted that the plaintiff did not produce evidence disputing the company’s assertion that the store closures led to $200,000 in lost revenue.
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, and the court allowed this common law retaliatory discharge claim to go to trial as well.
A series of recent decisions have questioned the McDonnell Douglas framework’s compatibility with Title VII‘s statute.
A panel of the 5th U.S. Circuit Court of Appeals applied McDonnell Douglas despite criticizing it, and the same court also upheld the framework’s comparator requirement in a separate decision months earlier.
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