United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller Senior United States District Judge.
before the court is a motion for summary judgment filed by
defendant Kroger Texas, LP (“Kroger”). Dkt. 11.
After considering the motion, response, reply, record
evidence, and applicable law, the court is of the opinion
that the motion should be GRANTED.
an employment discrimination case. Plaintiff Ava Newman began
working for Kroger in 1998 as an assistant pharmacy manager.
Dkt. 11, Ex. A at 32. She was promoted to pharmacy manager in
September 1999, and she worked as a pharmacy manager until
her employment was terminated on August 28, 2015.
Id. at 86; Dkt. 11, Ex. B. Kroger contends that
Newman's employment was terminated for fraud and
falsification of prescriptions and violations of company
policy. Dkt. 11 & Ex. B. Specifically, Newman verified
and released five prescriptions when no patient was
present. Dkt. 11. Newman, on the other hand,
contends that there is prima facie evidence that her
employment was terminated because of her race-African
American. Dkt. 14. She argues that she was a member of a
protected class, subject to an adverse employment decision,
and qualified for her position, and that she was replaced by
a person who she contends is outside of her class, a Hispanic
female. Id. She also asserts that she was subject to
harassment and discriminatory actions by the Hispanic female
who replaced her as well as two Hispanic females who were her
supervisors at different times. Id. In reply, Kroger
argues that it had a legitimate non-discriminatory reason for
terminating Newman's employment and that Newman has
provided no evidence that this reason is pretext. Dkt. 15.
shall grant summary judgment when a “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). “[A] fact is genuinely in dispute
only if a reasonable jury could return a verdict for the
nonmoving party.” Fordoche, Inc. v. Texaco,
Inc., 463 F.3d 388, 392 (5th Cir. 2006). The moving
party bears the initial burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). If
the moving party meets its burden, the burden shifts to the
non-moving party to set forth specific facts showing a
genuine issue for trial. Fed.R.Civ.P. 56(e). The court must
view the evidence in the light most favorable to the
non-movant and draw all justifiable inferences in favor of
the non-movant. Envtl. Conservation Org. v. City of
Dallas, 529 F.3d 519, 524 (5th Cir. 2008).
Title VII and § 1981
asserts that Kroger discriminated against her in violation of
42 U.S.C. § 2000e(2)(a) (Title VII) and 42 U.S.C. §
1981. Dkt. 1. Courts in the Fifth Circuit “evaluate
claims of race discrimination under § 1981 using the
same analysis as those under Title VII.” Bright v.
GB Bioscience Inc., 305 Fed.Appx. 197, 201 n.3
(5th Cir. 2008) (citing Patterson v. McLean Credit
Union, 491 U.S. 164, 186, 109 S.Ct. 2363 (1989),
superceded by statute on other grounds as stated in CBOCS
W., Inc. v. Humphries, 553 U.S. 442, 449, 128 S.Ct. 1951
(2008)). Plaintiffs may prove discrimination using either
direct or circumstantial evidence. Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir. 2007).
“Direct evidence is evidence which, if believed, proves
the fact without inference or presumption.” Jones
v. Robinson Prop. Grp. L.P., 427 F.3d 987, 992 (5th Cir.
2005). Race discrimination claims based on circumstantial
evidence are analyzed under the McDonnell Douglas
framework. Turner, 476 F.3d at 345; see
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93
S.Ct. 1817 (1973). Under this framework, a plaintiff claiming
her employment was terminated in violation of Title VII must
present a prima facie case that she “(1) is a member of
a protected class; (2) was qualified for her position; (3)
was subjected to an adverse employment action; and (4) was
replaced by someone outside the protected class.”
Shackelford v. Deloitte & Touche, LLP, 190 F.3d
398, 404 (5th Cir. 1999). A plaintiff may also satisfy the
fourth prong by showing that similarly situated individuals
were treated more favorably. See Okoye v. Univ. of Tex.
Hous. Health Science Ctr., 245 F.3d 507, 512 (5th Cir.
2001); Davin v. Delta Air lines, Inc., 678 F.2d 567,
570 (5th Cir. 1982) (defining the fourth prong as follows:
“after her discharge, [the defendant] either hired a
man to replace her or retained a man who had engaged in
conduct similar to that for which [the plaintiff] was
plaintiff successfully establishes a prima facie case, the
burden or production shifts to the employer to “rebut a
presumption of discrimination by articulating a legitimate,
nondiscriminatory reason for adverse employment
action.” Turner, 776 F.3d at 345. If the
employer meets its burden, then the plaintiff must
“present substantial evidence that the employer's
reason was pretext for discrimination.” Id.
“If the plaintiff can show that the proffered
explanation is merely pretextual, that showing, when coupled
with the prima facie case, will usually be sufficient to
survive summary judgment.” Id. However, a
“Title VII plaintiff at all times bears the
‘ultimate burden of persuasion.'” St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113
S.Ct. 2742 (1993).
argues that summary judgment should be denied because it is
undisputed that she is a member of a protected class,
suffered an adverse employment action when her employment was
terminated, was qualified to be the pharmacy manager, and was
replaced by somebody outside her protected class. Dkt. 14.
Her summary judgment evidence consists solely of a
declaration by Newman in which she asserts, among other
things, that she made complaints to the store manager about
harassment and discriminatory actions of three Hispanic
women, including two pharmacy coordinators who were
Newman's supervisors at different times and the assistant
pharmacy manager who replaced Newman when Newman's
employment was terminated; that she became the center of an
investigation in 2015 for allegedly committing fraud,
falsifying prescriptions, and violating company policy; and
that the allegations of fraud and theft were made by the
assistant pharmacy manager who had been harassing her.
Id. & Ex. A.
argues that (1) Newman cannot make out a prima facie case
because there is no evidence of a similarly situated employee
of a different race who was treated differently; (2)
regardless, it had a legitimated non-discriminatory reason
for terminating Newman's employment; and (3) Newman has
no evidence of pretext. Dkts. 11, 15. The court need not
consider the first argument because even if Newman has
sufficient evidence to support her prima facie case, Kroger
provides evidence of a legitimate nondiscriminatory reason
for Newman's termination, and Newman provides no evidence
Kroger provides Newman's deposition testimony, an
affidavit from a Veterinarian, and an affidavit from Angie
Balla, the district pharmacy coordinator for Kroger. Dkt. 11,
Exs A, B, J. Prior to Newman's termination, Balla
investigated a report that a customer had come in to pick up
a prescription that appeared to have been picked up a few
days before, but there was no receipt or signature, which is
required by Kroger policy. Dkt. 11, Ex. B (Balla Aff.). The
system showed that the prescription had been verified and
released by Newman within one minute even though this process
usually takes longer. Id. Balla contacted the
district's Loss Prevention Manager (the
“LPM”), and Balla and the LPM reviewed video
footage for the time period in which the prescription was
showing verified and released. Id. There was no
patient present when the medication was keyed into the
computer system as complete. Id. During this
investigation, Balla noticed that there were other
prescriptions that had been verified and released by Newman
within one minute, and she and the LPM consequently reviewed
video footage for these time periods as well. Id.
Again, there was no patient present. Id. Kroger next
contacted the prescribing physician on the prescriptions that
were dispensed within a minute with no customer present, and