PREWITT v. WALGREENS COMPANY
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 2/19/2015. 2/19/2015 ENTERED AND COPIES E-MAILED.(kp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RODNEY G. PREWITT,
February 19, 2015
Rodney Prewitt was employed as a pharmacist at Walgreens. He was demoted and
then terminated after voicing a moral objection to vaccinating customers. He claims
Walgreens discriminated and retaliated against him because of his age. Walgreens now
moves for summary judgment. For the reasons explained below, I will grant this motion
and enter judgment in favor of Walgreens.
On August 21, 2006, Rodney Prewitt was hired by Walgreens as a full-time
salaried pharmacist.1 He was 57 at that time.2 He was assigned to work at the Walgreens
Doc. No. 61, Ex. A. at 4; Joint Stipulation (JS), Doc. No. 23 at ¶¶ 2, 5. His designation was “RPS,”
meaning “Pharmacist Salaried-Drug Store.” See also Doc. No. 61-1 at 50.
On January 4, 2012 the plaintiff filed a Joint Stipulation of Facts for Purposes of a Motion for Summary Judgment.
Doc. No. 23. The plaintiff contends that the Joint Stipulation was not intended to address facts relating to plaintiff’s
age discrimination claim.” Doc. No. 62 at 1 n. 2 and Doc. No. 64 at 2 n. 2. The plaintiff argues it was only meant to
pertain to his wrongful suspension/discharge claim—which he voluntarily withdrew while this motion was pending.
He also argues that the stipulation was essentially mooted by the subsequently filed amended complaint. Despite
arguing that the Stipulation does not apply to his age-based claims, the plaintiff cites to the Stipulation throughout
his statement of facts and brief in opposition to this motion. See Doc. No. 60 at 2 n. 2, 3-4, 6, 8, 9, 10-11. He
concedes “it contains information relevant to his age claims.” Doc. No. 70 at 5. He even refers to the Joint
store in Oxford, PA on either the day or evening shift.3 The Oxford store is about eight
miles from the plaintiff’s home.4 At the Oxford store, Mr. Prewitt was one of two fulltime pharmacists, the other being Karen Schneider.5 Prewitt and Schneider rotated shifts
bi-weekly so that weekend shifts were covered.6 A third pharmacist Ann Green worked
part-time.7 Typically, two of the three pharmacists worked each day with their shifts
overlapping between 2:00 p.m. and 4:00 p.m.8 Only two shifts were available for
Stipulation when talking about age-based topics such as “comparators.” See Doc. No. 10. In a brief submitted after
he withdrew his wrongful discharge claim, the plaintiff also refers back to the Statement of Facts he submitted on
March 28, 2014, which cites to the Joint Stipulation. See Doc. No. 64 at 1 n. 1.
I will consider the Joint Stipulation of Facts to be undisputed, despite the plaintiff’s contentions. The facts offer
information about the circumstances of Mr. Prewitt’s demotion and termination. See, e.g., Joint Stipulation, Doc.
No. 23 at ¶¶ 20-26. The plaintiff included both his age-based claims and his wrongful discharge claim as alternative
theories for relief. See Doc. No. 60 at 3 n. 1, Doc. No. 61-1 at 22. The information contained in the Joint Stipulation
would still be relevant to the age-based claims, even if his wrongful discharge claim no longer provides a legal basis
for relief. The plaintiff’s amendment of his complaint, after the Joint Stipulation was filed, added new legal theories
of relief, not new facts. See Doc. No. 24; Prewitt v. Walgreens, No. 11-2393, 2012 WL 4364660 (E.D. Pa. Sept. 25,
2012). In fact, the proposed amended complaint incorporated the Joint Stipulation of facts into it. See Doc. No. 26
at 2 n. 1.
Furthermore, to allow the plaintiff to cherry-pick favorable facts and eliminate those which hurt his case in hindsight
would contravene the ideals set forth in Rule 1 of the Federal Rules of Civil Procedure. The plaintiff cannot have it
both ways. The Joint Stipulation was a way for both parties to more efficiently litigate this case. For the plaintiff to
agree to these facts as uncontested and then dispute their usage when they did not suit him is simply unfair.
I will also consider any other relevant documents the parties have submitted for review in this motion. I will cite to
See Doc. No. 61-1 at 4 (DOB 9/18/48).
JS, Doc. No. 23 at ¶ 3; Doc. No. 61 at 35. The Oxford store is #11074. See Doc. No. 61-1 at 37.
JS, Doc. No. 23 at ¶ 4. It is the closest store to the plaintiff’s home. Id. at ¶ 43.
Id. at ¶ 7.
See id. at ¶¶ 7-9.
Id. at ¶¶ 7, 10. See also Doc. No. 61 at 37.
Id. at ¶¶ 11-13.
pharmacists at the Oxford store to work because the store was not open twenty-four hours
like other Walgreens stores.9
a. Prewitt’s Moral Objection to Immunizing
In or around 2009, Walgreens began offering customers the flu vaccine, among
others, at the Oxford store.10 The plaintiff was morally opposed to administering the flu
vaccine because a close friend of his had contracted Guillain-Barre Syndrome after
receiving a flu vaccine.11 His friend become paralyzed and died of complications from
the disease.12 The plaintiff believed that there was medical evidence to substantiate such
risks of flu vaccines.13 He did not want to be responsible for putting his patients at risk.14
The plaintiff voiced his objection to his store manager.15 He was permitted to not
administer flu vaccines.16 When customers asked for an immunization, he would refer
them to another pharmacist or tell them when an immunizing pharmacist was available.17
Id. at ¶ 19.
Prewitt Dep., Doc. No. 57, Ex. 1 at 73-74, 94-95.
JS, Doc. No. 23 at ¶¶ 58-59. The plaintiff considered his objection to be moral and ethical, not religious, in nature.
He based his objection on the idea that he should “do no harm” to his patients. Prewitt Dep., Doc. No. 57 at 89-90.
JS, Doc. No. 23 at ¶¶ 58-59. See Doc. No. 61 at 17-19. The plaintiff included information on others who had
health complications from receiving the flu vaccine in his opposition to the summary judgment motion. See Doc.
No. 61 at 20-27.
JS, Doc. No. 23 at ¶ 60.
Prewitt Dep. Doc. No. 57 at 94-95.
JS, Doc. No. 23 at ¶ 97. See Prewitt Dep. Doc. No. 57 at 77-78, 159-61.
JS, Doc. No. 23 at ¶ 98.
b. Walgreens Immunization Program 2010
In 2010, Walgreens made a business decision to provide flu shots during all hours
at every one of its stores nationwide. Walgreens planned to heavily market this
availability.18 As a result, Walgreens required all pharmacists to become certified to
immunize and to perform flu immunizations for the 2010 flu season.19 Prior to that time,
Walgreens had not required all of its pharmacists to be certified to administer
On May 24, 2010, Walgreens enacted a Vaccination Standing Order Protocol.21
The Protocol was essentially a large-scale prescription which allowed certified
pharmacists to administer twenty different vaccines including the flu vaccine in
Walgreens stores.22 As part of the certification process, pharmacists were required to
successfully complete an immunization training program.23
On July 15, 2010, Walgreens informed employees that it planned to expand its flu
and pneumonia vaccination program to stores nationwide.24 Flu and/or pneumonia
Id. at ¶ 99.
Id. at ¶¶ 95, 96.
Id. at ¶¶ 27-28, at 16-20. See Doc. No. 61 at 7. The protocol is dated April 15, 2010 but the signature by Physician
John Hipps is dated May 24, 2010. The Protocol included an addendum listing certified pharmacists and one listing
locations where vaccines would be administered. Id. at 11; JS, Doc. No. 23 at 21-25. Mr. Prewitt and the Oxford
store were on these lists. See id. at 22, 25.
See Doc. No. 61 at 7-8.
See Doc. No. 61 at 8.
JS, Doc. No. 23 at ¶ 31, at 28. See Doc. No. 61 at 12; Doc. No. 61-2 at 44.
vaccines would be offered daily beginning in September. In preparation for the expanded
service, employees were expected to complete the required training course by August 15,
During the summer of 2010, Walgreens disseminated a new Immunizer Policy
(2010 IP) to employees.25 The 2010 IP explicitly stated that all pharmacists were
expected to become certified to immunize and to perform all immunizations.26 The Policy
became effective September 1, 2010. The policy stated, inter alia, that “[a]ttempts to
provide reasonable accommodation will be made for any pharmacist who provides
medical certification of a condition that prevents him or her from performing
immunization duties.” These reasonable accommodations included, but were not limited
to, transfer to a vacant non-immunizer position/shift or assignment as a “floater
pharmacist.” A non-immunizer shift was described as “any shift designated by Walgreens
as not requiring at least one immunizer pharmacist on duty all or part of the shift.”
“These will be handled on a case-by-case basis between the affected pharmacist and their
pharmacy supervisor.” Any person requesting an accommodation was required to submit
medical documentation explaining the condition and accommodation to his/her
On August 17, 2010, Walgreens issued a press release announcing that
immunizations would be “available at Walgreens every pharmacy and Take Care Clinic
JS, Doc. No. 23 at ¶ 29.
Doc. No. 61-2 at 8-9.
nationwide, every day, during nearly all pharmacy and clinic hours – with no
appointment necessary.”27 Other correspondence to employees in August made clear that
Walgreens planned to market the readily available flu vaccine to customers.28
c. Scheduling during the 2010 Flu Season
The immunization certification took several weeks to be processed by the state of
Pennsylvania.29 Walgreens allowed many pharmacists to work though they were not
certified before the September 1, 2010 deadline.30 At certain times during the 2010 flu
season, Walgreens did not have enough immunizing pharmacists to cover all shifts
between 8:00 a.m. and 10:00 p.m. in all stores.31 As a result, Walgreens did not offer
vaccinations at certain stores in Pennsylvania during certain times.32 Signs were posted to
alert customers to the unavailability of immunizations during those times and information
JS, Doc. No. 23 at ¶¶ 33-34, at 29; Doc. No. 61 at 13.
See Doc. No. 61 at 29. Several emails sent to employees from the plaintiff’s supervisor in August 2010 indicate as
much. Id. at 29-34. One email sent on August 25, 2010 from the plaintiff’s pharmacy supervisor stated: “WE do not
see our employees talking to customers about the flu shot….This is our best kept SECRET!!!!! Rite Aid has
EVERYONE with Buttons ‘Ask about a Flu Shot.’ 5 Minute Meetings TODAY about pushing the Flu Shots…” Id.
at 29. Another said, “Everybody give a Flu Shot Today!!!!” Id. at 31. These bi-weekly emails reported the flu shot
sales totals for various Walgreens’ regions on the East Coast. See also Prewitt Dep., Doc. No. 57 at 171-73.
JS, Doc. No. 23 at ¶ 102.
Id. There were 78 pharmacists in Pennsylvania, including Mr. Prewitt, who were not certified to immunize as of
September 1, 2010 but were permitted to work between September 1, 2010 and October 15, 2011. Id. Three of these
pharmacists did not end up getting certified. One is on long-term disability. Another moved out of state before the
certification could be completed. The third left Walgreens before the certification process was complete. Id. at ¶ 108.
All three were still employed at Walgreens as of October 15, 2011. None had an objection to immunizing. Id. at ¶
Id. at ¶ 117.
Id. at ¶¶ 113-16.
about when immunizations would be available.33 Sometimes, certain Walgreens stores
scheduled customers for vaccination appointments when immunizing pharmacists would
be available.34 Customers were also referred to other Walgreens stores where
immunizations were available.35 To allow for expanded immunizations, Walgreens also
hired additional pharmacists in its Pennsylvania stores.36
d. Plaintiff’s Conscience Objection and Change in Job Status
After learning of the 2010 IP, the plaintiff informed his District Pharmacy
Supervisor Phillip Anderson of his moral objection to administering flu vaccines.
Anderson oversaw the enactment of the 2010 IP at several Walgreens stores, including
the Oxford store. The plaintiff told Anderson that he was willing to become a certified
immunizer, but he objected to immunizing as a matter of conscience.37 The plaintiff
signed up for the required certification course in August 2010.38 However, he asked to
continue working full-time as a non-immunizing pharmacist.39 Prewitt also made his
objection known to other Walgreens personnel, including Oxford store managers.40 Mr.
Id. at ¶¶ 113-14.
Id. at ¶ 118.
Id. at ¶ 119.
An additional 22 uncertified pharmacists were hired or transferred into Pennsylvania since September 1, 2010. Id.
at ¶ 110. All 22 eventually obtained their certifications and began immunizing customers. Id. at ¶ 111.
Id. at ¶¶ 56, 61, 62.
Id. at ¶ 64.
Id. at ¶ 63.
Id. at ¶ 57.
Prewitt was the only pharmacist employed in Pennsylvania who objected to
Anderson believed Prewitt’s objection to be sincere.42 In July or August,
Anderson advised the plaintiff that he would be put on “floater” status beginning in
September until the flu season was over.43 In an email dated August 23, 2010, Mr.
Anderson asked the plaintiff if he would be willing to work overnight shifts (7 days on, 7
days off) in the York, PA store because he would not be licensed to immunize by
September 1, 2010.44 Anderson had also offered this overnight shift to two other
pharmacists who had not yet gotten certified.45 The plaintiff refused this alternative
schedule because the hours were a significantly less than his regular schedule, the York
store was forty-seven miles from his home, and he had “medical concerns identified by
his physician and worries about the safety of him and his wife.”46 The plaintiff was not
offered any other shifts in September beyond those available in York.47
Id. at ¶¶ 103, 104.
Anderson Dep., Doc. No. 60, Ex. B at 105, 110-11.
JS, Doc. No. 23 at ¶ 65, at 30; Doc. No. 61 at 28. The Oxford store’s pharmacy was not open twenty-four hours;
the plaintiff could not work an overnight shift there. As of August 31, 2010, the pharmacy the Oxford Store was
open from 8:00 a.m. until 10:00 p.m., 6 days a week, and from 9:00 a.m. until 5:00 p.m. on Sundays. JS, Doc. No.
23 at ¶ 6.
Anderson Dep., Doc. No. 60, Ex. B at 215-16.
JS, Doc. No. 23 at ¶¶ 66-67; Doc. No. 64 at 5 n. 2. See also Prewitt, Dep., Doc. No. 57 at 153.The plaintiff
contends he worked 20 shifts on average per month. Doc. No. 64 at 5.
JS, Doc. No. 23 at ¶ 71.
e. Schedule of Pharmacists at the Oxford Store
Throughout August 2010, the plaintiff was scheduled full-time in the Oxford store
as a non-immunizing pharmacist.48 On September 4, 2010, the plaintiff’s employment was
officially changed from full-time RPS at the Oxford store to “Floater pharmacist,” which
meant the plaintiff was no longer salaried and only was paid for the shifts he worked.49
The plaintiff was the only employee under Anderson’s supervision who was placed on
“floater” status.50 After September 3, 2010, the plaintiff was not scheduled to work at the
Oxford store.51 The other two Oxford store pharmacists, Karen Schneider and Ann
Green, continued to work their regular schedules after the immunization season began.52
Both had become licensed immunizers by August 31, 2010.53
In September, David Reinertsen began working as the second full-time pharmacist
at the Oxford store.54 He was a licensed immunizing pharmacist.55 Mr. Reinertsen is six
Doc. No. 61 at 35-36. He was scheduled to work full time in June and July as well. See Doc. No. 61-2 at 23-31.
JS, Doc. No. 23 at ¶¶ 68-69. See Doc. No. 61 at 40.
Anderson testified that this change was made because the plaintiff was not certified to immunize . Anderson Dep.,
Doc. No. 60, Ex. B at 120. According to Anderson, Prewitt was the only person under his supervision who was not
yet certified to immunize. Id. Anderson did not consider or offer to move the plaintiff to another store under another
supervisor. Policy did not prohibit this transfer but also did not require it. Id. at 130-32. None of the other uncertified
pharmacists in the state of Pennsylvania were placed on “Floater status” effective September 1, 2010 as a result of
their lack of immunization certification. JS, Doc. No. 23 at ¶ 105.
See Doc. No. 61 at 36-39.
Id. at 37-39.
JS, Doc. No. 23 at ¶ 14.
Doc. No. 61 at 36.
years younger than the plaintiff.56 He continued working full-time at the Oxford store as
an immunizing pharmacist.57 All the pharmacists covering shifts at the Oxford store after
September 1 were immunizing pharmacists.58
f. Communications Between Prewitt and Anderson in Fall 2010
On September 15, 2010, Mr. Prewitt sent Mr. Anderson an email titled “Follow up
to our 09/02 conversation.”59 Mr. Prewitt indicated the two had discussed his temporary
removal from the Oxford store on September 2, 2010. 60 Prewitt said that he had
explained at that time that he had completed the required training but his Pennsylvania
Immunizer certification had not been processed. 61 He asked Anderson to send him
“written documentation” which he had been promised. 62 Anderson responded with the
“Performing Immunization Duties” from the 2010 IP, which states that all pharmacists
were expected to become certified and administer immunizations.63
See Anderson Dep., Doc. No. 60, Ex. B at 167-68; Doc. No. 60 at 19.
Doc. No. 61 at 37.
See Doc. No. 61 at 37. Several other immunizing pharmacists were added to cover immunizing pharmacists who
were off. Though these pharmacists were only scheduled to work at the Oxford store one day in two weeks, their
total hours scheduled showed them to be working full-time hours for the company. See id. at 38-39.
Doc. No. 61 at 40-41.
Id. at 40.
Id. at 40-41. There is a processing delay between the time a person completes a certification course and when he
can become licensed in Pennsylvania. See id. at 40, 48.
Id. at 40-41.
JS, Doc. No. 23 at 31. This was the same language included in the 2010 IP that was previously disseminated.
Compare JS, Doc. No. 23 at 26, 31; Doc. No. 61 at 40; Doc. No. 61-2 at 8-9.
On November 4, 2011, the plaintiff became certified to administer
immunizations.64 On November 15, 2010, Mr. Anderson emailed the plaintiff stating the
plaintiff’s license had been approved.65 He would return the plaintiff to full time hours if
Mr. Prewitt agreed to immunize. The plaintiff continued to assert his moral objection.66
g. Plaintiff’s Demand Letter, Doctor’s Note, and Correspondence with
On October 5, 2010, the plaintiff’s attorney sent Walgreens a letter demanding
reinstatement of the plaintiff to his former position.67 The letter documented the
plaintiff’s objection to providing immunizations “on the grounds of his moral/ethical
and/or religious beliefs,” citing to the “PA Conscience Policy,” 49 Pa. Code. § 27.103.68
The letter went on to allege that Mr. Prewitt had been subject to age discrimination
because “certain younger Walgreens' pharmacists employed near Oxford in Pennsylvania
who have not raised conscience objections are working despite non-compliance with
Walgreens' alleged policy, thus implicating retaliatory intent, as well as the Age
Discrimination in Employment Act 29 U,S.C. 9621, et seq. (‘ADEA’).” These two
younger employees were allegedly permitted to work their regular shifts at the Lancaster
Id. at ¶ 76. See Prewitt Dep., Doc. No. 57 at 165.
JS, Doc. No. 23 at ¶ 78, at 42; Doc. No. 61-1 at 16.
JS, Doc. No. 23 at ¶ 79.
JS, Doc. No. 23 at 32-36; Doc. No. 61 at 42-43.
JS, Doc. No. 23 at ¶ 72.
store though they were not certified to immunize.69 The rest of the letter discussed
Walgreens’ immunization policies and the plaintiff’s changed work status after the
policies were implemented.
Attached to the letter was a note from the plaintiff’s family doctor dated August
26, 2010.70 The doctor advised Walgreens that the plaintiff should not be required to
administer vaccines because “he has significant and sincere aversions due to his own
personal experience with a serious adverse reaction that resulted in a death of a friend and
also due to his real concerns for patient safety.” His doctor believed requiring Mr. Prewitt
to act against these beliefs would “create undue stress and cause significant illness.”71 He
also advised that if Mr. Prewitt worked an overnight shift “at a store some distance from
his home…such a schedule would be deleterious on his health and well being” because of
his known cardiac disease. The doctor noted that Mr. Prewitt was concerned about
leaving his wife alone overnight in their “very rural” home since she has “medical issues
that would be aggravated” by his working overnight.”72
The letter did not name the two men. However, the plaintiff identified in them in his deposition as Hung Luu and
Hiren Patel. See Prewitt’s Dep., Doc. No. 57, Ex. 1 at 153.
JS, Doc. No. 23 at ¶ 73, at 37; Doc. No. 61 at 47. Though the letter was dated August 26, 2010, this was the first
time the plaintiff notified the defendant of his need for an accommodation for medical reasons. See Doc. No. 61 at
The doctor did not specify what type of illness the plaintiff was at risk of contracting.
What type of illness his wife had was not specified.
Walgreens’ Senior Attorney Stephanie Gaines responded to plaintiff’s counsel on
November 3, 2010.73 She acknowledged that “Walgreens has recently made the business
decision to increase the availability of immunizations in its pharmacies.” As a result,
Walgreens’ policy on how it handled scheduling immunization shifts had changed. Ms.
Gaines explained that Walgreens expected to have Mr. Prewitt return to working day and
evening shifts in the Oxford store once the flu season ended on January 31, 2011.74 To
accommodate his continued objection, the plaintiff was offered ten day shift hours per
week at the York store.75 These hours would have overlapped with when immunizing
pharmacists were working.76 Mr. Prewitt did not accept this alternative schedule.77
The plaintiff’s attorney responded to this letter on November 10, 2010.78 He
reiterated his position about the plaintiff’s demands and claims. He also indicated that the
plaintiff had been emailed about available shifts in Newark on November 5 and on
Christmas day in two stores in York.
JS, Doc. No. 23 at ¶ 74, at 38-39; Doc. No. 61 at 48-49.
Walgreens also offered to discuss disability leave for Mr. Prewitt, based on his doctor’s note. It appears that
Walgreens may have mistakenly placed Mr. Prewitt on disability leave based on a November 24, 2010. Doc. No. 611 at 17. Mr. Prewitt, however, never received disability. He was denied disability because he did not qualify. See
Doc. No. 61-1 at 18. Prewitt corresponded with Anderson about clearing up the mistake. Id. at 18.
See Doc. No. 61 at 49.
See Anderson Dep., Doc. No. 60, Ex. B at 217.
JS, Doc. No. 23 at ¶ 75.
See id. at 40.
Ms. Gaines responded to the November 10, 2010 letter.79 She noted that Mr.
Prewitt was now certified to immunize but that she assumed he still objected to
immunizing. She offered him available non-immunizing shifts in the area: an overnight
shift on Mondays at one store in York and day shifts on Tuesdays and Fridays at another
store in York.80 He did not accept this offer.81
h. Prewitt’s EEOC Charge
On December 18, 2010, the plaintiff filed charges with the EEOC and the
Pennsylvania Human Rights Commissions claiming age discrimination.82 That same day
plaintiff’s counsel faxed the EEOC charge to Ms. Gaines.83 At that time, the plaintiff was
62. The charge itself claimed that “younger pharmacists…who are similarly not able to
administer flu immunization shots, have since been permitted to work at Walgreens’
stores located within driving range of [the plaintiff’s] home.” On December 19, 2010,
plaintiff’s counsel emailed Mr. Anderson and Ms. Gaines a copy of the EEOC
Prewitt and Anderson’s Continued Correspondence
Id. at 43-44.
Doc. No. 61-1 at 14. Walgreens was unable to determine what shifts would be available in December. The York
stores referenced here is also known as the “Queen” store and the “Market” store. See Anderson Dep., Doc. No. 60,
Ex. B at 216-17.
JS, Doc. No. 23 at ¶ 82.
Doc. No. 61-1 at 23-30.
Id. at 21-30.
Id. at 31.
On December 27, 2010, the plaintiff emailed Mr. Anderson to ask about his pay
for the December 12/10/10 and 12/24/10 pay periods.85 He said that he had received pay
in his last direct deposit for one vacation day and five sick days. He claimed he still had
sick days left to use. Anderson responded and asked how Prewitt wanted to be paid.
Prewitt replied that he would like to take his remaining sick days. If he could not use
them, he “would just not get paid.”
j. Walgreens 2011 Immunization Policy
On January 12, 2011, Sherri Trotz, Walgreens’ Executive Pharmacy Director for
Midwest Pharmacy Operations, issued a “Revised Immunizer Policy: Effective
3/1/2011.” 86 The Policy was distributed to Walgreens’ managers including Mr.
Anderson. On February 15, 2011, Walgreens informed its pharmacy supervisors that the
policy was to be communicated to all pharmacists.87 It stated that non-immunizing
pharmacists displaced during the past flu season should return to their prior position or
schedule “if possible” after March 1, 2011. However, they were expected to become
immunizers or work non-immunizing shifts “when available” after September 2011.
Non-immunizing shifts were “mid-shifts” or day shifts at a “Take Care Clinic.” It
specifically stated that non-immunizing pharmacists may have to work less hours. If a
non-immunizer were to be displaced due to a lack of shifts, he could be terminated or
Doc. No. 61-2 at 43.
See Am. Compl., Doc. No. 38-1 at ¶ 92. Revisions to this Policy were presented at a Market Leadership Meeting
on January 12, 2011 by Sherisse Trotz. See Doc. No. 61-1 at 38-45.
Id. at 26-27; Doc. No. 61-1 at 12-13.
eligible for disability. Anderson understood the 2011 IP to mean that pharmacists either
had to immunize or had to work non-immunizing shifts.88
k. Plaintiff’s “Retroactive Termination”
On January 21, 2011, the plaintiff emailed Anderson about his return after the flu
season had ended.89 Prewitt indicated he was no longer able to access information
regarding scheduling, pay, etc. through the Walgreens’ website. He asked if he would be
returning to his full time position at Oxford and whether he’d be expected to immunize.
He also noted that he had taken sick days to cover two eye surgeries. On January 28,
2011, Ms. Gaines requested to see Mr. Prewitt’s personnel file.90
Walgreens’ flu immunizing season ended on January 31, 2011.91 On February 2,
2011, Mr. Anderson emailed Mr. Prewitt about returning to work “as soon as possible.”92
Mr. Anderson asked Mr. Prewitt whether his objection extended to other vaccines beyond
the flu vaccine or whether he would be employed as a non-immunizing pharmacist.93
Anderson Dep., Doc. No. 60, Ex. B at 247-48.
JS, Doc. No. 23 at ¶ 88, at 47; Doc. No. 61-1 at 32.
Doc. No. 61-1 at 33.
JS, Doc. No. 23 at ¶ 89. Anderson testified that the flu season had not actually ended on this date. Anderson Dep.,
Doc. No. 60 at 234-35. The parties have stipulated to the above. However, even if there was a dispute about the end
date, it would not be a dispute material to the outcome in this case. From Anderson’s testimony, it appears the flu
season would have wrapped up by the time Prewitt did return, if his objection had only applied to the flu vaccine.
Mr. Prewitt also objected to administering any immunizations. By all accounts, Walgreens’ immunizations of other
vaccines would be ongoing throughout the year. The flu season end date would have been irrelevant to
administering the other vaccinations.
JS, Doc. No. 23 at ¶ 90 at 48; Doc. No. 61-1 at 34.
On January 31, 2011, Mr. Anderson sent a draft of this email to Ms. Gaines, who subsequently edited it. See Doc.
No. 61-1 at 34; Anderson Dep., Doc. No. 60, Ex. B at 225. The content of the email remained substantially the
On February 4, 2011, the plaintiff responded by saying that he expected to return
to his former position as a pharmacist in the Oxford store.94 He stated that he would
support the immunization programs but maintained his “conscience objection to injection
of any vaccines, regardless of type.” 95 He then stated that if he was not given written
notification within five business days of a specific date on which he could return to work
at the Oxford store, he would consider his employment to have been terminated by
Walgreens. Neither Mr. Anderson nor any other Walgreens employee responded to his
On February 14, 2011, Mr. Prewitt was sent a COBRA notice which stated that his
healthcare coverage had ended on December 13, 2010 when he was terminated.97 On
March 5, 2011, Mr. Prewitt received a letter from the profit-sharing department stated his
employment with Walgreens had ended on December 13, 2010.98 With the exception of
accrued vacation pay, the plaintiff was not paid throughout the 2010-2011 flu season.99
JS, Doc. No. 23 at ¶ 91, at 49; Doc. No. 61-1 at 37.
The plaintiff claimed his views about administering vaccinations as a practice changed after he attended his
training in August 2010. Prewitt Dep., Doc. No. 57, Ex. 1 at 78-84. See also Anderson Dep., Doc. No. 60, Ex. B at
JS, Doc. No. 23 at ¶ 92.
Id. at ¶¶ 83, 84, at 45; Doc. No. 61-1 at 19.
JS, Doc. No. 23 at ¶¶ 85, 86 at 46; Doc. No. 61-1 at 20.
JS, Doc. No. 23 at ¶ 93.
On April 6, 2011, the plaintiff filed this complaint against Walgreens. The original
complaint included a federal claim of age discrimination under the Age Discrimination
Employment Act (ADEA) and a state law claim of “wrongful discharge in violation of
Pennsylvania’s public policy” embodied in the PA Conscience Policy.
After several motions for extensions of discovery deadlines requested by the
plaintiff, the six-month discovery period ended. The plaintiff then filed a motion to
amend his complaint. I allowed the plaintiff to amend his complaint to include a state law
claim of age discrimination and retaliation claims under state and federal law for age
discrimination. I denied his request to add discrimination claims based on religion or
disability under state law and Title VII. I also denied his request to add a claim for
wrongful discharge under the Pennsylvania Constitution.100
Three months later, the plaintiff filed a second complaint against Walgreens. See
12-cv-6967 (E.D. Pa.). This complaint included a “wrongful suspension claim” under
what the plaintiff referred to as the Pennsylvania public policy “embodied in sections of
Article 1 of the Pennsylvania Constitution.” I dismissed that complaint based on both
legal substantive deficiencies in the complaint and principles of res judicata.101
The defendant filed this motion for summary judgment. At the close of discovery,
the parties filed a joint stipulation of facts for purposes of a motion for summary
See Prewitt v. Walgreens, No. 11-2393, 2012 WL 4364660 (E.D. Pa. Sept. 25, 2012).
See Prewitt v. Walgreens, No. 12-cv-6967, 2013 WL 6284166 (E.D. Pa. Dec. 2, 2013).
judgment.102 After the parties had fully briefed the motion for summary judgment, the
plaintiff moved to withdraw Count III—his wrongful discharge/suspension in violation of
public policy claim—with prejudice.103 I granted the plaintiff’s motion to withdraw
Count III because, as the plaintiff argued, Count III was legally deficient. 104
The remaining claims at issue in this motion pertain to discrimination based on
age: Count I for age discrimination claim under the ADEA and the Pennsylvania Human
Rights Act (PHRA) and Count II for retaliation claim under the ADEA and PHRA.
Essentially, the plaintiff is now claiming his termination was because of his age and not
because he refused to administer flu vaccines.
STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a). A dispute is “genuine” when “a reasonable jury could return
a verdict for the nonmoving party” based on the evidence in the record. Anderson v.
See Doc. No. 23.
Whether this claim was for suspension or discharge or both was entirely unclear. In the amended complaint the
plaintiff filed, after I granted him leave to do so, he also changed his “wrongful discharge” count to one of
“wrongful suspension.” See Doc. No. 38, Ex. 1. This change was not a part of his proposed amended complaint. See
Doc. No. 26, 30. In his response to the motion for summary judgment, the plaintiff claims that his Count includes
both suspension and discharge violations. See Doc. No. 60 at 3. Yet, his later motion to withdraw Count III indicates
that the change from “discharge” to “suspension” was intentional. See Doc. No. 65 at 3. He was not granted leave to
change this Count. See Prewitt v. Walgreens, No. 11-2393, 2012 WL 4364660 (E.D. Pa. Sept. 25, 2012). Walgreens
did not raise this argument with the court and answered the amended complaint as filed. The plaintiff later withdrew
this Count, so any problem with the amendment of this count has been mooted. However, this additional amendment
See Doc. No. 75. I also granted this motion because the defendant did not oppose it. It was not worth having the
parties continue to litigate a claim that both agree had no merit. I questioned the propriety of the plaintiff’s motion to
withdraw, especially in light of the prior procedure in this case and the timing of the motion.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “material” when it
“might affect the outcome of the suit under the governing law.” Id.
A party seeking summary judgment initially bears responsibility for informing the
court of the basis for its motion and identifying those portions of the record that “it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Where the non-moving party bears the burden of proof
on a particular issue at trial, the moving party's initial Celotex burden can be met simply
by demonstrating to the district court that “there is an absence of evidence to support the
non-moving party’s case.” Id. at 325. After the moving party has met its initial burden,
the adverse party’s response must cite “particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.” FED. R. CIV. P. 56(c)(1).
Summary judgment is therefore appropriate when the non-moving party fails to rebut by
making a factual showing that is “sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear the burden of proof at
trial.” Celotex, 477 U.S. at 322.
Under Rule 56 of the Federal Rules of Civil Procedure, the court must draw “all
justifiable inferences” in favor of the non-moving party. Anderson, 477 U.S. at 255. The
court must decide “not whether . . . the evidence unmistakably favors one side or the
other but whether a fair-minded jury could return a verdict for the plaintiff on the
evidence presented.” Id. at 252. If the non-moving party has produced more than a “mere
scintilla of evidence” demonstrating a genuine issue of material fact, then the court may
not credit the moving party’s “version of events against the opponent, even if the quantity
of the [moving party's] evidence far outweighs that of its opponent.” Big Apple BMW,
Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
There are no genuine disputes of material fact.105 The outstanding issues in
this case can be decided on summary judgment.
a. Age Discrimination Under the ADEA and PHRA106
The plaintiff concedes that there is no direct evidence of discrimination.107 ADEA
claims lacking direct evidence are analyzed under the McDonnell Douglas burden
shifting framework. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142
(2000); Barber v. CSX Distribution Servs., 68 F.3d 694, 698 (3d Cir. 1995). Under
McDonnell Douglas, the plaintiff first has the burden of establishing a prima facie case of
In the Joint Stipulation, the parties acknowledge that they do not agree about the reason Mr. Prewitt was demoted
and/or terminated. JS, Doc. No. 23 at ¶ 105. The defendant has offered a reason for the adverse actions taken against
the plaintiff. The plaintiff disputes whether this reason is legitimate. That “dispute” is really a legal argument about
whether the reason was pretextual. I will address this legal argument in my pretext analysis.
The plaintiff also claims that “an examination of the Statement of Facts will, alone demonstrate beyond cavil that
there are multiple issues of fact that require determination by the trier of fact, and therefore preclude summary
judgment of plaintiff’s age discrimination claims.” See Plaintiff’s Response to MSJ, Doc. No. 62 at 2. However, the
plaintiff’s statement of facts only includes those that are “uncontested.” He does not note which are contested. See
Plaintiff’s Statement of Facts, Doc. No. 60. His memorandum disputes the legal relevance of certain facts (i.e. facts
regarding differential treatment of other employees), but he doesn’t offer other factual evidence to contradict those
facts. Essentially, any disputes between the parties are about whether the defendant’s reason for demoting and/or
termination the plaintiff was pretextual. That can be legally determined on summary judgment.
The same analysis used for ADEA is also applied to PHRA claims. Fasold v. Justice, 409 F.3d 178, 183-84 (3d
Cir. 2005). I would consider the plaintiff’s allegations of age discrimination claim under both statutes together.
Doc. No. 64 at 1.
age discrimination: 1) he is at least 40 years of age; 2) he was qualified for his job; 3) he
suffered an adverse employment action; and 4) the circumstances of the adverse action
give rise to a reasonable inference of age discrimination. See, e.g., Barber, 68 F.3d at
698; Massarsky v. General Motors Corp., 706 F.2d 111, 118 (3d Cir. 1983)(“[A] plaintiff
alleging a discriminatory layoff need show only that he is a member of the protected class
and that he was laid off from a job for which he was qualified while others not in the
protected class were treated more favorably.”).
1. The Plaintiff Has Established a Prima Facie Case
As the defendant admits, the first two parts of the case are easily met: the plaintiff
is over age 40 and he was qualified to work as a pharmacist.108 It is also clear that the
plaintiff suffered adverse employment actions: he was demoted from his original position
as a salaried pharmacist to that of an hourly “floater;” and he was terminated from
employment at Walgreens all together.109
For the fourth element, the plaintiff points to several pieces of evidence to show
that younger employees were treated more favorably, thereby raising an inference of age
discrimination.110 The plaintiff claims that other non-certified employees in Pennsylvania
See Defendant’s MSJ, Doc. No. 57 at 21. The plaintiff was 61 when his job title changed; he was 62 when he was
terminated and demoted. His date of birth is September 18, 1948. See Compl., Doc. No. 38-1; Doc. No. 61 at 4.
See Defendant’s MSJ, Doc. No. 57 at 21. The plaintiff treats these actions as a continuum of discrimination and
has not pled them as two separate counts. For this reason, I will analyze them as part of one prima facie claim. If his
demotion and termination were analyzed as two distinct adverse actions and two distinct prima facie claims, it is
arguable whether the plaintiff has offered evidence of a prima facie case of age discrimination based on his
termination. He has failed to offer any evidence that he was replaced by a younger employee after his termination or
that other younger employees were returned to their positions after the season.
See Doc. No. 61 at 36; Anderson Dep., Doc. No. 60, Ex. B at 167-68, 19; Doc. No. 64 at 9.
who had the same title as the plaintiff that were not placed on “floater” status. According
to the plaintiff, they were allowed to work their regular hours though they were not able
to immunize. These employees were sufficiently younger than the plaintiff.
The defendant argues that the plaintiff has not established the fourth element
because the other employees to which he points were not suitable comparators or
“similarly situated” employees. “[C]omparator employees must be similarly situated in
all relevant respects.” Wilcher v. Postmaster Gen., 441 Fed. Appx. 879, 882 (3d Cir. Aug.
9, 2011)(adopting standard from other circuits), cert. denied, 132 S. Ct. 1645 (2012);
Opsatnik v. Norfolk S. Corp., 335 Fed. Appx. 220, 222-23 (3d Cir. Jul. 9, 2009). To
determine whether two employees are “similarly situated,” a court should look at whether
the employees dealt with the same supervisor, were subject to the same standards, shared
similar job responsibilities, and how they may have acted differently. See Wilcher, 441
Fed. Appx. at 881-82; Opsatnik, 335 Fed. Appx. at 222-23.
The plaintiff argues that other non-certified employees are appropriate
comparators because they were all employed in Pennsylvania, shared the same job title
(RPS) as the plaintiff, worked day and evening shifts, and were not licensed to immunize
The Third Circuit has held that no particular age difference be shown to establish that an employee is “sufficiently
younger.” Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d Cir. 1995). A 5 year age differential may suffice to
raise an inference of age discrimination. Id. See also Steward v. Sears Roebuck & Co., No. 06-3360, 231 Fed. Appx.
201, 209 (3rd Cir. Aug. 14, 2007)(declining to adopt a bright line rule that 6.75 year age difference between plaintiff
and replacement was insufficient to support inference of age discrimination). To determine if the age difference is
“sufficient,” a court should consider whether “a fact-finder can reasonably conclude that the employment decision
was made of the basis of age.” Sempier, 45 F.3d at 729.
during the 2010-11 flu season.111 Specifically, the plaintiff points to Josette Baroudi, 38,
who transferred to work at the Lancaster store on November 27, 2011.112 She was
certified in New Jersey but not in Pennsylvania as of that date. On January 7, 2011,
Pennsylvania accepted her certification.113 Ms. Baroudi did work during day and evening
shifts (i.e. between the hours of 8:00 a.m. and 10:00 p.m.) between November 27, 2010
The plaintiff specifically claims that there were 15 RPS comparators who did not suffer a loss of hours or change
of schedule during the 2010-11, despite being non-certified at some point during that period. He claims that all of
them are younger than the plaintiff by at least 18 years. See Doc. No. 64 at 7. He does not name the 15 nor cite to
information in the record to substantiate this number and claim. Where he does discuss specific non-certified
pharmacists in Pennsylvania (i.e. those who were older than the plaintiff), he cites to Doc. No. 61-1 at 46-50.
From this cited list, there are sixteen RPS pharmacists in Pennsylvania who were not certified as of September 1,
2010 in compliance with the 2010 IP. All were at least 18 years younger than the plaintiff. I’m assuming that the
plaintiff’s claims come from this list. Of these fifteen, three pharmacists (Simons, Allen-Myahwegi, and Valenzuela)
were certified by September 3, 2010—before the plaintiff was placed on “floater” status. I would not consider them
to be comparators for this reason. As for the remaining twelve, the plaintiff has only provided time sheets for those
that worked at the Lancaster store. Only one of the remaining twelve—Josette Baroudi—worked at the Lancaster
store. For this reason, I can only substantiate the claims made about Ms. Baroudi. As for the other eleven, I cannot
necessarily know what hours they were working (i.e. day and evening or overnight), if they were working alone, or
whether their store schedule was similar to that of the Oxford store. See Doc. No. 64 at 6 (citing Trotz Dep. At
10)(explaining how usually only larger stores regularly have non-immunizer shifts available). Those points are
important because they go to whether accommodations were made for these other non-certified pharmacists which
were not made for the plaintiff, such as were made for Ms. Baroudi.
JS, Doc. No. 23 at ¶¶ 25-26; Doc. No. 61-2 at 5-6.
The plaintiff also points to two employees at the Lancaster store as comparators: Hung Luu and Hiren Patel. See
Prewitt’s Dep., Doc. No. 57, Ex. 1 at 153. It is admitted by Walgreens that both Luu and Hung—who are 26 and 28,
respectively—worked daytime shifts in September and October before they were certified to immunize. JS, Doc.
No. 23 at ¶¶ 21, 23-25. However, Luu and Hung did not share the same job title as the plaintiff. Luu was also only
employed as a part-time pharmacist. JS, Doc. No. 23 at ¶ 21. They were considered RPRs (Regular Pharmacist Multi-Location – Unassigned), whereas the plaintiff was a RPS (Pharmacist Salaried—Drug Store). The plaintiff
himself argues that only RPS pharmacists would be appropriate comparators. See Doc. No. 64 at 7.
The parties also stipulated about several other Lancaster store employees who were permitted to work while not
certified. However, none of those were RPS pharmacists like the plaintiff. See JS, Doc. No. 23 at ¶ 106; Doc. No.
61-1 at 46-50. Without more accurate descriptions of what each person’s job title involved, I cannot fairly determine
that these other pharmacists are similarly situated to the plaintiff. See Wilcher, 441 Fed. Appx. at 881-82; Opsatnik,
335 Fed. Appx. at 222-23. Ultimately, this determination is irrelevant because, as I will explain, the other evidence
offered by the plaintiff is enough to raise an inference of discrimination.
JS, Doc. No. 23 at ¶¶ 25-26; Doc. No. 61-2 at 5-6.
and January 6, 2010. Many times, she was working alone in the Lancaster pharmacy
though she was not certified to immunize.114
During the 2010-11 flu immunization season, Walgreens made several
accommodations for pharmacists who were not certified by the September 1, 2010 cut
off: they were permitted to work their regular shifts even when they were the only
pharmacists working such shifts; the work schedules of other pharmacists were altered to
insure that non-immunizing pharmacists were always working with at least one
immunizing pharmacist; and the schedule of the non-immunizing pharmacist was
adjusted so that they were working shifts besides 8:00 am to 4:00 pm and 2:00 pm to
10:00 pm, if they could not be scheduled to work with an immunizing pharmacist. 115
Walgreens admits that none of the other Pennsylvania employees, who were noncertified by September 1, 2010, were placed on “floater” status like the plaintiff. 116
Many of these employees were significantly younger than the plaintiff.117 Walgreens
argues that Prewitt cannot compare himself to his colleagues because he was the only one
See Doc. No. 61-1 at 9-11.
JS, Doc. No. 23 at ¶ 106.
JS, Doc. No. 23 at ¶ 105. There were 77 pharmacists in Pennsylvania employed with Walgreens who were not
certified as of September 1, 2010. See Doc. No. 61-1 at 46-50. An additional 22 were hired or transferred into
Pennsylvania after September 1, 2010. Id. at ¶ 110. All but three of these 99 pharmacists eventually became
certified. See Id. at ¶ 111. One was on long-term disability. Another moved out of state before the certification could
be completed. The third left Walgreens before the certification process was complete. Id. at ¶ 108. All three were
still employed at Walgreens as of October 15, 2011. None of these pharmacists had an objection to immunizing. Id.
at ¶ 109. Not all shared the same job title as Mr. Prewitt. See Doc. No. 61-1 at 46-50.
See Doc. No. 61-1 at 46-50.
who objected to immunizing.118 Walgreens contends it would have allowed Mr. Prewitt
to do one or more of the three options if he had agreed to immunize once he became
certified.119 While this logic makes sense once Mr. Prewitt did become certified but still
objected, it does not explain why he was not permitted to work his regular hours while he
was waiting for his certification to become finalized. Other employees were permitted to
keep working their regular hours while waiting for their certification. Whether they
wanted to immunize or not they would not have been able to do so. Prewitt and his noncertified colleagues would be similarly situated in this regard.120
The plaintiff also points out that David Reinertsen, who was about six years
younger than the plaintiff, replaced him in the Oxford store in the fall of 2010. Reinertsen
was not hired specifically for that role. He was a Walgreens employee transferred from
another store to fill in, in Prewitt’s absence. It is not clear if he remained at the Oxford
store past the fall of 2010.121 Unlike the plaintiff, Reinertsen was certified to immunize
by the September 1, 2011 flu season. Under these circumstances, he would not be
considered an appropriate comparator.
JS, Doc. No. 23 at ¶¶ 103, 104. The plaintiff claims that four other pharmacists objected as well but he did not
know their names. One of the objecting pharmacists was from Delaware. Prewitt Dep., Doc. No. 57 at 145-46.
JS, Doc. No. 23 at ¶ 107.
Walgreens also claims that some of the other non-certified workers, such as Baroudi, are not similarly situated
because they worked for a different regional manager with different business needs. See Doc. No. 61-1 at 49; Doc.
No. 64 at 7. I do not find this argument persuasive for this step of the analysis. The 2010 IP was supposed to apply
to all pharmacy employees. JS, Doc. No. 23 at ¶ 96. However, this information is relevant to showing that
Anderson’s reason for demoting the plaintiff was legitimate and not pretextual.
In his brief in opposition to the MSJ, the plaintiff stated he “either does not have or cannot at this time locate any
schedules for the Oxford store for year 2011.” Doc. No. 60 at 18 n. 10. Whether the schedules were not produced or
the plaintiff had simply misplaced them is not entirely clear.
Drawing all justifiable inferences in favor of the plaintiff, I find that a fact-finder
can reasonably conclude the decision to change the plaintiff’s job status to “floater” was
made based on age. The plaintiff was told he was not permitted to remain in his original
position at the Oxford store because an immunizing pharmacist needed to be available at
all times. The scheduling at the Oxford store, where a pharmacist would be alone for all
but two hours, prevented the plaintiff from remaining on full time. Yet, the plaintiff has
shown that other younger employees, specifically Baroudi, were permitted to work alone
while being uncertified. Walgreens also admits that not all stores had immunizers
available at all hours on all days during the 2010-11 flu season. Viewing these facts in
favor of the plaintiff, the plaintiff’s removal from the Oxford store could reasonably have
been based on age. The plaintiff has established a prima facie case of age discrimination.
2. Walgreens Had a Legitimate, Non-discriminatory Reason
Once the plaintiff has established a prima facie case, the law creates a presumption
of unlawful discrimination. Barber, 68 F.3d at 698. The burden then shifts to the
defendant employer to articulate a “legitimate nondiscriminatory explanation for the
employer's adverse employment action.” Id. If the employer puts forth a legitimate
business explanation, the presumption is rebutted. Id.
Walgreens maintains that it did not suspend, terminate, or place the plaintiff on
“floater” status because of his age.122 He was demoted and later terminated because he
JS, Doc. No. 23 at ¶ 105.
refused to immunize customers.123 After the 2010 IP, administering immunizations
became an essential part of the plaintiff’s job. As far back as May 2010, the plaintiff was
notified that this was a mandatory change in his job description. He was the only
pharmacist to be placed on “floater” status in Pennsylvania because he was the only
pharmacist to object to administering vaccinations in Pennsylvania.124 The plaintiff did
not work while being a “floater” because he refused to work any shifts which were not
his regular ones at the Oxford store.
3. The Plaintiff Cannot Show Pretext
Once the employer rebuts the presumption of discrimination, the burden then
shifts back to the plaintiff to show that the employer’s purpose was really a pretext for a
discriminatory motive. Barber, 68 F.3d at 698. “Once the employer answers its relatively
light burden by articulating a legitimate reason for the unfavorable employment decision,
the burden of production rebounds to the plaintiff, who must now show by a
preponderance of the evidence that the employer's explanation is pretextual (thus meeting
the plaintiff's burden of persuasion).” Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).
To show pretext, a plaintiff “must demonstrate such weaknesses, implausibilities,
Id. at ¶¶ 94, 107.
Walgreens also explained that the plaintiff was placed on “floater” status while not being certified while other
employees, such as those in the Lancaster store, were permitted to work while not being certified because the
Oxford store and the Lancaster store were supervised by different regional managers with different business needs.
If Anderson had enough pharmacists willing to immunize under his supervision, it would make sense that he would
not use the plaintiff to cover daytime and evening shifts (i.e. peak hours for vaccinations) when an immunizing
pharmacist could. See JS, Doc. No. 23 at ¶¶ 41-53. It also makes sense that another manager might let non-certified
pharmacists to cover those shifts. If the district supervisor of the Lancaster store did not have enough immunizing
pharmacists to cover all shifts, he/she would use what employees under his supervision he did have available to
cover those shifts. See JS, Doc. No. 23 at ¶ 25.
inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate
reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of
credence’… and hence infer ‘that the employer did not act for [the asserted] nondiscriminatory reasons.’” (citations omitted). Id. at 765.
The plaintiff does not point to a single shred of evidence to support pretext. To the
contrary, evidence in the record shows that the plaintiff himself agrees that his objection
to immunize was the reason he was suspended and then terminated. The plaintiff himself
testified that his supervisor Mr. Anderson had no dislike for him because of his age or
otherwise.125 The plaintiff testified that he was not allowed to work because of his
conscience objection.126 The plaintiff proceeded under the theory that his
suspension/termination were “wrongful” based on his moral objection up until he realized
that this claim was legally deficient. The plaintiff admitted that he knew of no
pharmacists who refused to immunize and who continued to be employed at
When asked at his deposition about whether his termination related to his age, the
plaintiff testified that he believed he was terminated because of a “combination of [his]
Prewitt Dep., Doc. No. 57, Ex. 1 at 99.
Prewitt Dep., Doc. No. 57, Ex. 1 at 141.(“Q. Were you told you couldn’t work because you weren’t licensed, or
were you told you couldn’t work because you were refusing to give immunizations?...A. Initially, I was told I could
not work because I wasn’t licensed. Q. And at some later time were you told something else? A. I was never directly
told that I couldn’t work because of my conscience objection, but it’s my belief, to this day, that that’s the reason
that I have not been allowed to work.”).
Prewitt Dep., Doc. No. 57, Ex. 1 at 99. See also JS, Doc. No. 23 at ¶¶ 103-104.
age and conscience objection.” He premised his belief that age was a factor on his
knowledge that two other pharmacists at the Lancaster store were allowed to work while
not being certified. Yet, he admitted that neither objected to immunizing.128 Under a
theory of disparate treatment, the plaintiff must show that the age discrimination was a
determinative factor in his termination. See Fuentes, 32 F.3d at 764 (emphasis in
original). Even if age played some role in the plaintiff’s demotion and termination, his
age was not the “determinative” factor in the decision to demote him or terminate his
employment.129 See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (“Whatever
See id. at 153 (“Q. Do you have reason to believe that your termination was related, in any way, to your age? A.
Well, I know that Hiren and Hung were working, and they were younger and I was older and I wasn't. So, I would
say maybe it was a combination of the age and conscience objection.”). Beyond the fact that Hiren and Hung were
working when he was not, he could not offer any other facts that would indicate his termination was related to his
age. Id. at 154-56. Hung and Hiren did not object to immunizing customers. See JS, Doc. No. 23 at ¶¶ 103-104. He
stated as much in his October 5th demand letter. (“These two gentlemen are distinguished from Mr. Prewitt in at least
2 significant ways: 1) neither has voiced a conscience objection; 2) both are significantly younger than Mr. Prewitt.”
Doc. No. 61-1 at 44.)
The plaintiff also argues that the defendant’s failure to transfer him to the Lancaster store or a closer store to his
home (i.e. Walgreens’ failure to accommodate his moral objection) is some evidence of pretext. He points to
testimony by Trotz and Anderson to show that such transfers were possible. This argument is rather presumptuous
under the circumstances. The plaintiff had no right to such a transfer or accommodation. He was an at-will
employee. By all accounts, Anderson tried to work with the plaintiff throughout the flu season, offering what shifts
he could. The plaintiff refused to work these shifts for one reason or another. He even provided a doctor’s note to
prevent him from working “too far” from home. He was steadfast in only wanting to work his regular shifts at the
Oxford store as a non-immunizer.
The plaintiff’s proposed accommodation also did not appear to be entirely plausible from the undisputed facts. There
were no open non-immunizing positions available at other stores near the plaintiff’s home. Walgreens had several
locations within forty miles of the plaintiff’s home. At each of those locations, the pharmacists on the day and
evening shifts were all licensed and willing to administer vaccinations by September 1, 2010, with the exception of
two employees who held different titles than the plaintiff. The Walgreens in Avondale is located approximately
fifteen miles from Mr. Prewitt’s home. The Kennett Square Walgreens is approximately twenty miles from Mr.
Prewitt’s home. The Walgreens store in Glen Mills is about thirty miles from his home. The Brookhaven Walgreens
is about forty miles from the plaintiff’s home. As of September 1, 2010, all pharmacists working first or second shift
at the Avondale, Kennett Square, Glen Mills, and Brookhaven stores were licensed and willing to administer
the employer’s decisionmaking process, a disparate treatment claim cannot succeed
unless the employee’s protected trait actually played a role in that process and had a
determinative influence on the outcome”). His objection to immunize was the
The plaintiff’s refusal to perform this job function gave Walgreens every right to
take an adverse employment action against him. The plaintiff’s manager repeatedly
testified that, if the plaintiff would have performed immunizations, “I would hire him
back, hands down.”130 Anderson offered to return the plaintiff to his previous position at
least twice, if the plaintiff agreed to vaccinate. But for the plaintiff’s objection to
vaccinating, he would have continued working after September 2010. See Gross v. FBL
Fin. Servs., 557 U.S. 167, 180 (2009)(“[A] plaintiff bringing a disparate-treatment claim
pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the
‘but-for’ cause of the challenged adverse employment action. The burden of persuasion
does not shift to the employer to show that it would have taken the action regardless of
age, even when a plaintiff has produced some evidence that age was one motivating
factor in that decision.”).
Three Walgreens stores located in West Chester were a distance of approximately 25-33 miles from Mr. Prewitt’s
home. As of September 1, 2010, all pharmacists working first or second shift at the three West Chester stores, with
the exception of one pharmacy manager, were licensed and willing to administer immunizations.
The Walgreens store in Chadds Ford is located approximately thirty miles from the plaintiff’s home. As of
September 1, 2010, all pharmacists working first or second shift at the Chadds Ford store were licensed and willing
to administer immunizations, with the exception of one pharmacist designated SP8 (Salaried Pharmacist 8 Shift
Schedule). JS, Doc. No. 23 at ¶¶ 41-53.
Anderson Dep., Doc. No. 57, Ex. 2 at 283-84, Doc. No. 60 at 211.
Even drawing all reasonable inferences in favor of the plaintiff, it is clear that
Walgreens demoted and then terminated the plaintiff because he refused to perform
immunizations which became an essential part of his job.131 The facts are clear. The
plaintiff’s difficulties with his employer started when Walgreens enacted the 2010 IP,
formally requiring all pharmacists to vaccinate. Every correspondence between the
plaintiff and his employer involved his objection to immunizing. For almost the entirety
of this case, beginning with his October 5th demand letter, the plaintiff claimed he was
wrongfully suspended/discharged because of his moral objection. While the burden of
production shifts between the parties, the ultimate burden of persuasion remains with the
plaintiff at all times. Reeves, 530 U.S. at 142 (citing Burdine, 450 U.S. at 253). The
plaintiff has failed to show that the defendant demoted and terminated him based on age
discrimination. His ADEA and PHRA discrimination claims are without merit.
b. Plaintiff’s Retaliation Claims Under ADEA and PHRA132
ADEA retaliation claims are also governed by the McDonnell Douglas burden
shifting framework. Klastow v. Newtown Friends Sch., 515 F. App’x 130, 132 (3d. Cir.
2013) (citing Fasold v. Justice, 409 F.3d 178, 188 (3d Cir. 2005)). A plaintiff must show
that: he engaged in protected activity, he was subject to adverse action by the employer at
the same time as or after the protected activity, and there was a causal connection
Doc. No. 61-2 at 8-9.
The analysis under the ADEA and the PHRA for a retaliation claim is the same. Fasold v. Justice, 409 F.3d 178,
189 (3d Cir. 2005). I will analyze both claims together.
between the protected activity and the adverse action. Id. The plaintiff has offered enough
to establish a prima facie case of retaliation related to his termination: he filed an EEOC
charge in mid-December 2010 which he forwarded to Ms. Gaines and Mr. Anderson; he
was not returned to his previous position in February 2011 though he was told he would
be reinstated at the end of the flu season; and the timing of the two events can implicate a
The burden then shifts to the employer to rebut the presumption of retaliatory
intent. Again, the defendant states that the plaintiff was terminated because he refused to
perform any vaccinations. After the 2010 IP, vaccinating became an essential job duty of
all pharmacists. The 2011 IP reaffirmed this point. In light of the defendant’s decision to
make vaccinations more available at all their stores, their decision to terminate the
plaintiff for refusing to immunize is a legitimate, nondiscriminatory rebuttal to the
presumption of retaliatory intent.
Only actions taken by the defendant after October 5, 2010 can be considered retaliatory. Before that point, the
plaintiff did not put the defendant on notice of his possible age discrimination complaint. See Am. Complaint ¶ 54;
Stipulation ¶ 72.
There is an implied dispute about whether Mr. Anderson knew about the EEOC charge when the plaintiff was
terminated. Anderson was emailed the charge. Anderson testified that he did not receive these emails. Anderson
Dep. Doc. No. 57, Ex. 2 at 286. This dispute is not material. Even if Anderson did know about the EEOC filing,
he has offered a legitimate reason for terminating the plaintiff—his refusal to immunize. As I will explain, the
plaintiff has failed to show that this reason was pretext for retaliatory intent.
I recognize that final prong of the prima facie case is attenuated. When causality is established by “mere temporal
proximity between an employer's knowledge of protected activity and an adverse employment action,” the timing
between the two events should be “very close.” Clark County School Dist. v. Breeden, 532 U.S. 268, 273 (2001).
While two months may not be “very close,” it could be considered close enough under the circumstances of this
case. Given that the plaintiff was expected to return to his job in February, the termination’s timing close to two
months after the EEOC charge had been filed would make sense. He was expects not to return to work until
February. Viewing these facts in favor of the plaintiff, this set of circumstances could show causality.
If the employer offers a legitimate, nondiscriminatory reason for terminating the
plaintiff, the burden returns to the plaintiff to show this reason was really a pretext for an
illegitimate motive. To show pretext regarding his termination, the plaintiff offers a
conspiracy theory. He contends that Anderson’s February 2 email was simply a ruse
because Anderson “knew when he offered to reinstate Mr. Prewitt on November 15,
2010…Mr. Prewitt would reject this proposal.”134 He claims this email was the
“culmination of a plan that was hatched subsequent to November 2010, when
[Walgreens] offered to unconditionally reinstate him when the flu season ended, a plan
that germinated when it received his EEOC charge on December 18, 2010 – the
extraction of Mr. Prewitt’s ‘voluntary resignation,’ which was in fact a constructive
discharge.”135 This is nonsense. What reason would Walgreens have to string the plaintiff
along for two months, waiting for him to file an EEOC charge, in order to “extract” Mr.
Prewitt’s “voluntary resignation?”136 The plaintiff himself admits that Mr. Anderson had
no ill will against him.
Doc. No. 64 at 18. The plaintiff contends that he notified Anderson as early as January 2010 of “his
conscience-based objection to administering vaccinations of any kind.” Plaintiff’s Statement of Facts, Doc. No. 60 at
¶ 17 (emphasis in original). He cites to Anderson’s testimony to support this point. See id. at ¶ 18. Yet, the plaintiff
also indicated he told Anderson his objection was based on his friend receiving the flu vaccine. See id. at ¶¶ 22, 23.
Even if the plaintiff had told Anderson before February 2011 that he had an objection to administering other
vaccines besides the flu vaccine, it is not unreasonable for Anderson to have confirmed whether the plaintiff’s
objection extended to other vaccines in February. Mr. Prewitt’s formal objection to vaccinating was related to the flu
vaccine. See Plaintiff’s Statement of Facts, Doc. No. 60 at ¶ 31; JS, Doc. No. 23 at ¶ 64. This argument is
Doc. No. 64 at 18.
The plaintiff also argues that Anderson’s intervention after the plaintiff mistakenly received a disability letter was
also part of this pretextual “plot.” The plaintiff received this letter in November. It indicated he would be terminated
on December 10, 2010 if he didn’t speak to his employer. He contacted Anderson about the letter. Anderson said he
would work on resolving the issue. The plaintiff implies that Anderson’s efforts in this regard are insidious. See
The plaintiff also argues that the date of his termination being made retroactive to
December 13—5 days before his EEOC charge was filed—is suspicious.137 Yet, he offers
no evidence to explain why this fact shows pretext. See, e.g., Allen v. Petsmart, Inc., 512
F. Supp. 2d 288, 293 (E.D. Pa. 2007) (a plaintiff’s “own unsubstantiated, subjective
beliefs or suspicions alone would not suffice to persuade a rational trier of fact that age
was a factor in the termination decision”); see also Robertson v. Allied Signal, Inc., 914
F.2d 360, 382 n.12 (3d Cir. 1990) (affirming summary judgment and finding that
inference based upon speculation or conjecture does not create a material factual dispute
sufficient to defeat entry of summary judgment); Martin v. Healthcare Bus. Res., No. 00–
3244, 2002 WL 467749, at *6 (E.D. Pa. Mar. 26, 2002) (“Plaintiff’s mere pronouncement
or subjective belief that she was terminated because of her race, gender and age is not a
substitute for competent evidence.”).
The plaintiff had not been working since September 2010. Any payments he
received thereafter were for accrued vacation time. By all accounts, Mr. Prewitt and Mr.
Anderson had expected he would return to work in February 2011, after the flu season
Plaintiff’s Statement of Facts, Doc. No. 60 at 24-25. To the contrary, Anderson’s intervention further bolsters his
contention that the plaintiff’s objection only related to the flu vaccine and that he planned for him to return to work
after the flu season had ended. This argument is meritless.
Doc. No. 64 at 21. The plaintiff notes that the COBRA notice was untimely, being sent two months after he was
terminated. Doc. No. 64 at 20. However, he has not asserted an ERISA claim and did not seek to bring forth a claim
before this mention in his brief on April 15, 2014. To support his alleged COBRA violation, he claims the defendant
destroyed the notice of his termination sent to the plan administrator. Doc. No. 64 at 20. Again, no issue of
spoliation was raised before this point. Though he claims there is evidence to suggest spoliation, he cites to none.
Then, based on this unsubstantiated spoliation theory, he argues that the plaintiff’s termination was, in fact, in
February after Mr. Prewitt rejected Walgreens’ reinstatement offer. Doc. No. 64 at 20. I’m not really sure what to
make of these allegations or how they may help the plaintiff’s case. Instead, the plaintiff’s admission that the
defendant likely terminated him retroactively after he rejected their offer of reinstatement only seems to bolster the
defendant’s argument that he was terminated because he would not administer vaccines.
had ended. Mr. Prewitt was unwilling to comply with the new 2011 IP and to administer
any vaccinations (not just the flu vaccine). He made Anderson aware of this point in
February and would only accept a return to his prior position which required he be a
certified immunizer. Given this chain of events, it makes complete sense that his
healthcare coverage and profit-sharing employee benefits would be terminated
retroactively. I see no pretext in his retroactive termination.
The facts are clear. Walgreens made a business decision to market vaccinations,
specifically the flu vaccine. Mr. Prewitt did not agree with this decision and voiced a
moral objection. He refused to perform an essential part of his job. Though Mr. Prewitt’s
objection may have been genuine and sincere, he has not established any unlawful
discrimination by his employer.
For the reasons stated above, I will grant the defendant’s motion for summary
judgment and enter judgment in favor of the defendant.
An appropriate Order follows.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?