United States District Court, M.D. Florida, Orlando Division
ANTOON II UNITED STATES DISTRICT JUDGE.
Daniel Odongo brought the instant action alleging two claims
that Defendant Walgreens Corporation improperly terminated
Odongo's employment based on his race in violation of 42
U.S.C. § 1981. Walgreens now moves for summary judgment.
(Doc. 41).As set forth below, Walgreens's motion
was hired by Walgreens in 2013 as a pharmacy intern and
became a licensed pharmacist later the same year. (Odongo
Dep. at 34-35). Odongo was promoted several times by
people outside of his protected class before obtaining his
final position as a registered store manager of a specialty
pharmacy in 2016. (Id. at 36, 40, 41, 47, 59). As
part of his store manager duties, Odongo was tasked with
promoting and administering flu immunizations to patients and
employees. (Id. at 97, 115). Walgreens sets internal
goals for the number of immunizations administered to
patients and encourages flu immunizations for its employees.
(Healy Dep. at 31-32, 51-52). Vipul Vassa, another Walgreens
pharmacist, provided immunization training to Odongo and
other Walgreens pharmacists. (Odongo Dep. at 182; Vassa Dep.
at 20, 38).
orders are processed through Walgreens's electronic
prescription processing program. (Odongo Dep. at 114). To
protect patient privacy and comply with legal requirements,
pharmacists may not access a patient's electronic
prescription processing profile without consent. (Vassa Dep.
at 25-26). Consent may occur in various ways, including
written and verbal consent, as well as by submitting a
prescription to Walgreens. (Healy Dep. at 74; Odongo Dep. at
104; Vassa Dep. at 24). If a patient submits a request for a
prescription to be filled, Walgreens allows pharmacists to
analyze the information in the electronic profile to
determine whether the patient may also be a good candidate
for a flu vaccine and whether the patient's insurance is
likely to cover the immunization. (Healy Dep. at 76).
provide quicker service to immunization patients, Odongo
would go one step further and begin electronically processing
the immunization order before the potential patient had
agreed to be immunized. (Odongo Dep. at 105-109). Odongo
would then back the order out of the electronic system if the
patient declined to receive the immunization. (Id.
at 109). Although Odongo states that Vassa trained him to do
this, it is not in the printed training materials, and Odongo
never personally saw Vassa or other pharmacists participate
in this conduct. (Id. at 182-84, 205-06).
about October 3, 2016, Odongo entered an immunization order
for a Walgreens employee who expressly declined receiving a
flu vaccine, (Id. at 117-120; LaBelle Decl. at 1-2).
Odongo reportedly followed the employee around the store with
the vaccine, attempting to vaccinate her. (LaBelle Decl. at
1-2). After receiving several rejections from the employee,
Odongo relented; however, he forgot to back the order out of
the electronic program until the following week. (Odongo Dep.
at 131-32). The employee discovered the order and filed an
anonymous complaint with Walgreens. (LaBelle Decl. at 1).
After an internal investigation of the incident,
Walgreens's corporate office recommended that Odongo be
terminated. (Id. at 2-3). And that is what happened.
The Director of Pharmacy and Retail Operations and the
District Manager terminated Odongo's employment on
December 20, 2016 for violating Walgreens's policies and
the Health Insurance Portability and Accountability Act
Odongo's termination, Primesha McGirt-an employee of the
same protected racial class as Odongo-assumed Odongo's
duties. (Odongo Dep. at 179). The position was then posted
internally and Vassa-an employee outside of Odongo's
protected racial class-was chosen for the position. (Id.
at 178). Shortly before Odongo's termination, Vassa had
spent a few days shadowing Odongo and another specialty store
manager at a different store. (Vassa Dep. at 46). It was
Vassa's understanding that he was allowed to shadow the
managers as part of his "individual development
plan" and in order to "expand [his] horizon."
(Id.. Odongo believed that Vassa was a top performer
and that Walgreens wanted him to eventually take over
Odongo's store so Odongo could "move up with the
company." (Odongo Dep. at 160-61).
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). The Court must construe the facts and all
reasonable inferences therefrom in the light most favorable
to the nonmoving party. Reeves v. Sanderson Plumbing
Prods., Inc.. 530 U.S. 133, 150 (2000). However, when
faced with a "properly supported motion for summary
judgment, [the nonmoving party] must come forward with
specific factual evidence, presenting more than mere
allegations." Gargiulo v. G.M. Sales, Inc., 131
F.3d 995, 999 (11th Cir. 1997). "Thus, in response to a
summary-judgment motion, a plaintiff cannot rely on factual
allegations set forth in the complaint, 'but must set
forth by affidavit or other evidence specific facts . . .
.'" Smith v. Mobile Shipbuilding & Repair,
Inc., 663 Fed.Appx. 793, 798 (11th Cir. 2016) (guoting
Luian v. Defenders of Wildlife, 504 U.S. 555
(1992)). "Essentially, the inquiry is 'whether the
evidence presents a sufficient disagreement to require
submission to the jury or whether it is so one-sided that one
party must prevail as a matter of law.'" Sawyer
v. Southwest Airlines Co., 243 F.Supp.2d 1257, 1262 (D.
Kan. 2003) (quoting Anderson v. Liberty Lobby. Inc.,
477 U.S. 242, 251-52 (1986)).
Odongo's Response, he repeatedly and inappropriately
cites to the pleadings and mischaracterizes the record.
Despite these attempts at illusion, he has failed to
establish that there is a genuine issue of material fact that
requires denial of summary judgment.
1981 prohibits intentional race discrimination in the making
and enforcement of public and private contracts, including
employment contracts." Blow v. Va. College, 619
Fed.Appx. 859, 861 (11th Cir. 2015) (quoting Ferrill v.
Parker Grp., Inc., 168 F.3d 468, 472 (11th Cir. 1999)).
Discrimination claims brought under § 1981 "are
subject to the same standards of proof and employ the same
analytical framework" as those brought under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §2000e et
seq. Id. (quoting Bryant v. Jones, 575 F.3d
1281, 1296 n.20 (11th Cir. 2009)). Therefore, where, as here,
Plaintiff does not present any direct evidence of
discrimination, the claims are analyzed under the
McDonnell Douglas framework. Holifield v. Reno,
115 F.3d 1555, 1561-62 (11th Cir. 1997); see also
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). Under this framework, the plaintiff has the initial
burden to establish a prima facie case of
discrimination. McDonnell Douglas, 411 U.S. at 802.
"Demonstrating a prima facie case is not
onerous; it requires only that the plaintiff establish facts
adequate to permit an inference of discrimination."
Holifield, 115 F.3d at 1562. If the plaintiff
establishes a prima facie case by a preponderance of
the evidence, a presumption of discrimination arises. See
Tex. Dep't, of Cmty. Affairs v. Burdine, 450 U.S.
248, 253-54 (1981).
the plaintiff has presented a prima facie case and
its attendant presumption arises, the burden "shift[s]
to the employer to articulate some legitimate,
nondiscriminatory reason" for its actions. McDonnell
Douglas, 411 U.S. at 802. If the employer meets this
burden, "the presumption of discrimination is eliminated
and 'the plaintiff has the opportunity to come forward
with evidence . . . sufficient to permit a reasonable
factfinder to conclude that the reasons given by the employer
were not the real reasons for the adverse employment
decision.'" Chapman v. Al Transp., 229 F.3d
1012, 1024 (11th Cir. 2000) (citing Combs v. Plantation
Patterns,106 F.3d 1519, 1528 (11th Cir. 1997)).
"If the plaintiff does not proffer sufficient evidence
to create a genuine issue of material ...