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Odongo v. Walgreens Corp.

United States District Court, M.D. Florida, Orlando Division

September 5, 2019

DANIEL ODONGO, Plaintiff,
v.
WALGREENS CORPORATION, Defendant.

          ORDER

          JOHN ANTOON II UNITED STATES DISTRICT JUDGE.

         Plaintiff 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).[1]As set forth below, Walgreens's motion is granted.

         I. Background

         Odongo was hired by Walgreens in 2013 as a pharmacy intern and became a licensed pharmacist later the same year. (Odongo Dep. at 34-35).[2] 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).

         Immunization 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).

         To 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).

         On or 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 (HIPAA). (Id.).

         After 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[3]-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).

         II. Legal Standard

         "The 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)).

         Throughout 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.

         III. Discussion

         "Section 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.[4] 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).

         Once 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 ...


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