Filed: Aug. 26, 2021
Latest Update: Aug. 27, 2021
Case: 21-60198 Document: 00515995508 Page: 1 Date Filed: 08/26/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 21-60198 August 26, 2021
Summary Calendar Lyle W. Cayce
Clerk
Van Philip East, Jr.,
Plaintiff—Appellant,
versus
Walgreen Company,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No: 1:19-CV-139
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Plaintiff-Appellant Van Philip East, Jr. appeals the district court’s
summary judgment against him in this employment discrimination lawsuit.
We AFFIRM.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-60198 Document: 00515995508 Page: 2 Date Filed: 08/26/2021
No. 21-60198
I. Facts & Procedural History
East, a pharmacist born in 1938, began working for Walgreens in early
2018 after Walgreens purchased the Rite-Aid in Aberdeen, Mississippi and
retained all previous employees. On November 12, 2018, a pharmacy
technician reported to the store manager, Naomi Whooper, and the
pharmacy manager, Terry Hurst, that a few days prior East was rubbing his
groin and inviting the technician to sit on his lap. Hurst relayed the report to
Nicole Lewis, the district manager, who investigated the report. Lewis
interviewed both the technician and East, and East did not deny the
technician’s account. Lewis ultimately terminated East because of his
conduct.
In May 2019, East sued Walgreens alleging age and sex discrimination
under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §
623, et seq, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
et seq. Walgreens removed the case from state court to federal court. East
subsequently voluntarily dismissed his sex discrimination claim. Walgreens
moved for summary judgment on the ADEA claim, which the district court
granted. East appeals.
II. Discussion
We review the district court’s grant of summary judgment de novo,
and will affirm the district court 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.” United States v. Nature’s Way Marine, L.L.C., 904 F.3d 416,
419 (5th Cir. 2018) (quoting Fed. R. Civ. P. 56(a)).
East argues that the district court erred in granting the motion for
summary judgment, maintaining that there is a genuine factual dispute as to
whether he was terminated because of his age. The ADEA makes it unlawful
for an employer “to discharge any individual or otherwise discriminate
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No. 21-60198
against any individual with respect to . . . terms, conditions, or privileges of
employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). In
evaluating employment discrimination claims under the ADEA, courts use
the same burden-shifting framework as under Title VII. McDaniel v. Nat’l
R.R. Passenger Corp., 705 F. App’x 240, 244–245 (5th Cir. 2017) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
Under this framework, the plaintiff must first make a prima facie case
of discrimination, at which point “the burden shifts to the employer to
provide a legitimate, non-discriminatory reason for the employment
decision.” Id. at 244. (citation omitted). “If the employer articulates a
legitimate, non-discriminatory reason for the employment decision, the
plaintiff must then be afforded an opportunity to rebut the employer’s
purported explanation, to show that the reason given is merely pretextual.”
Id. (citation omitted). A plaintiff may show pretext “either through evidence
of disparate treatment or by showing that the employer’s proffered
explanation is false or ‘unworthy of credence.’” Jackson v. Cal–Western
Packaging Corp.,
602 F.3d 374, 378–79 (5th Cir. 2010)(quoting Laxton v. Gap
Inc.,
333 F.3d 572, 578 (5th Cir. 2003)).
Neither party disputes that East established a prima facie case of age
discrimination. Therefore, the burden shifts to Walgreens to provide a
legitimate reason for East’s termination. Walgreens’s proffered reason is that
East’s inappropriate comments towards the pharmacy technician violated
company policy. As this is a facially non-discriminatory reason, East has the
burden of showing that this reason is pretextual. We agree with the district
court that East has failed to meet his burden.
East has not disputed the veracity of the pharmacy technician’s
report. Rather, East attempts to show pretext by relying on alleged
statements by Whooper and Hurst. First, he points to deposition testimony
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No. 21-60198
from the pharmacy technician that Whooper told her “one down, two to go”
and “we’re going to get rid of all these old people” following East’s
termination. 1 He also points to an email from Hurst to Lewis reporting East’s
comments to the pharmacy technician that notes that East’s “mind may be
not all there all the time[.] He is now 80.”
Age-related comments may demonstrate pretext if they would allow
“a reasonable jury to conclude . . . that age was an impermissible factor in the
decision to terminate the employee.” McMichael v. Transocean Offshore
Deepwater Drilling, Inc., 934 F.3d 447, 457 (5th Cir. 2019) (quoting E.E.O.C.
v. Texas Instruments Inc.,
100 F.3d 1173, 1181 (5th Cir. 1996)). “[W]hen an
employee offers workplace comments as circumstantial evidence of age
discrimination, the court applies a flexible two-part test, under which the
comments must show: ‘(1) discriminatory animus (2) on the part of a person
that is either primarily responsible for the challenged employment action or
by a person with influence or leverage over the relevant decisionmaker.’”
Squyres v. Heico Companies, L.L.C.,
782 F.3d 224, 236 (5th Cir. 2015)(quoting
Reed v. Neopost USA, Inc.,
701 F.3d 434, 441 (5th Cir. 2012)). None of the
comments alleged by East can demonstrate pretext.
East has provided no evidence showing that either Whooper or Hurst
had any involvement in the independent investigation of East’s actions or the
subsequent decision to terminate his employment. No reasonable jury could
conclude that Whooper and Hurst’s comments, respectively occurring
before and after Lewis’s independent investigation (in which both the
1
The district court determined that these statements were inadmissible hearsay
under Federal Rule of Evidence 802. We need not determine whether a hearsay exception
applies, however, because even if these statements were admissible they fail to create a
question of fact that would preclude summary judgment.
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No. 21-60198
pharmacy Technician and East confirmed that East made inappropriate
remarks), were a factor in Lewis’s decision to terminate East.
East’s argument that Walgreens is liable under a “cat’s paw” theory
of liability fails for the same reason. “Under this theory, a plaintiff must
establish that the person with a retaliatory motive somehow influenced the
decisionmaker to take the retaliatory action.” Zamora v. City of Hous., 798
F.3d 326, 331 (5th Cir. 2015). This theory of liability requires the
impermissible influence to be the proximate cause of the termination.
Id. at
332. As stated before, East has not disputed that Walgreens terminated East
after an independent investigation of East’s actions that did not involve
either Whooper or Hurst. There is therefore no evidence showing the
proximate causation necessary for the cat’s paw theory of liability.
East has failed to make any showing that Lewis, the sole
decisionmaker regarding his termination, acted with any discriminatory
animus. With an absence of evidence of pretext, East fails to meet his burden
to survive summary judgment and dismissal of his suit was proper.
III. Conclusion
For the aforementioned reasons, we AFFIRM the judgment of the
district court.
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