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Newman v. Kroger Texas LP

United States District Court, S.D. Texas, Houston Division

July 3, 2019

Ava Newman, Plaintiff,
Kroger Texas, LP, Defendant.


          Gray H. Miller Senior United States District Judge.

         Pending 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.

         I. Background

         This is 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.[1] 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.

         I. Legal Standard

         A. Summary Judgment

         A court 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).

         B. Title VII and § 1981

         Newman 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 terminated”).

         If the 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).

         III. Analysis

         Newman 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.

         Kroger 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 of pretext.

         Specifically, 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 ...

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