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East v. Walgreen, 21-60198 (2021)

Court: Court of Appeals for the Fifth Circuit Number: 21-60198 Visitors: 13
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

                                  No. 21-60198                         August 26, 2021
                                Summary Calendar                        Lyle W. Cayce

   Van Philip East, Jr.,



   Walgreen Company,


                  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.

            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   opinion should not be published and is not precedent except under the limited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
          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

Case: 21-60198      Document: 00515995508           Page: 3   Date Filed: 08/26/2021

                                     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
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.”
 (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
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

Case: 21-60198       Document: 00515995508             Page: 4      Date Filed: 08/26/2021

                                        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

             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.

Case: 21-60198       Document: 00515995508         Page: 5   Date Filed: 08/26/2021

                                    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.

Source:  CourtListener

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