Newman v. Kroger Texas LP
Filing
18
MEMORANDUM OPINION AND ORDER GRANTING 11 MOTION for Summary Judgment . (Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
AVA NEWMAN,
Plaintiff,
v.
KROGER TEXAS, LP,
Defendant.
§
§
§
§
§
§
§
§
§
CIVIL ACTION H-18-81
MEMORANDUM OPINION AND ORDER
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.
1
Kroger also contends that Newman violated other policies and that there were other
performance problems, but the court finds it unnecessary to delve into these other issues. See
Dkt. 11 & Exs.
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 nondiscriminatory 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
2
Bioscience Inc., 305 F. App’x 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
3
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.
4
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 the physician
was not aware of anybody calling in the prescription and was not even familiar with the medications
prescribed. Id. Ballas and the LPM met with Newman regarding these findings, and Newman was
unable to provide an explanation. Id. The Human Resources Department reviewed the results of
the investigation and recommended termination. Id.
Newman contends in her declaration that she advised the LPM “that the only reason a
prescription would be verified and release[d] without a patient present in the pharmacy or without
an electronic signature would be for a home delivery or [because a] patient provided a manual
signature in the drive through.” Dkt. 14, Ex. A. She states that for home delivery, once the
verification process is complete and the medication has been released, the pharmacy employee
5
delivers the prescription to the customer, and the customer signs a signature tab that is stored with
all the other manual signatures. Id. However, she does not directly state that the prescriptions at
issue were home deliveries, and she provides no evidence of the manual signatures. Moreover,
Newman admitted during her deposition that she told the LPM that she had not done a home delivery
in several months. Dkt. 11, Ex. A at 195. She testified that she was “horrified” during that interview
and that she “actually delivered prescriptions more frequently,” but she “was afraid to tell him” that
“because the work environment [she] had been experiencing at the time.” Id. at 195–96.
The medications that were verified and released without a patient present were Albenza and
Jublia 10 percent. Id. at 182–84; Dkt. 11, Ex. B. Newman testified that the Jublia 10 percent was
a topical drug used for fungus and that Albenza is used for parasites. Dkt. 11, Ex. A at 183. Kroger
provides an affidavit from a veterinarian who has published works relating to bird or avian health,
and she asserts that Albenzadole has pharmacological use on pigeons and other birds as it can treat
parasites, and Efinaconazole, while not documented for use on birds, could be expected to have antifungal properties in pigeons and other birds. Dkt. 11, Ex. J. Kroger also provides evidence that
during the time of the events at issue, Newman was the managing member and president of a
business called A-Champ RX Complete Pigeon, LLC. Dkt. 11, Ex. A at 35–36. This business sells
nutritional supplements for pigeons. Id. at 254. Newman owns about twelve pigeons. Id. at 41.
In her response to Kroger’s motion for summary judgment, Newman points out that manual
signatures for home deliveries and prescriptions that are picked up in the drive through are stored
in the pharmacy department for up to three years and older signatures are stored off site. Dkt. 14.
She conclusorily contends that she adhered to the policy of requiring either electronic or manual
signatures to release all medications. Id. However, Newman does not make this assertion in her
declaration, and the response points to no deposition testimony supporting this statement. See id.
6
& Ex. A. Thus, there is no evidence to support the contention. Additionally, she does not provide
any evidence of manual signatures for these medications, which could have been obtained during
discovery. Moreover, Newman does not even argue in her response that Kroger’s purported reason
for her termination is pretext. See Dkt. 14 (arguing only that Newman “has shown that there is
evidence to support an essential element of Ava Newman’s claim” and discussing pretext only in the
“standard of review” section).
Kroger has produced sufficient summary judgment evidence that it had a legitimate nondiscriminatory reason for terminating Newman’s employment. The results of its fraud investigation
implicated Newman. When Newman was interviewed about the prescriptions that were released
without a patient present, she told her supervisor and the LPM that she had no recollection of the
transactions. Dkt. 11, Ex. B. She agreed during her deposition that she told the LPM that she would
only release a prescription without a customer present if she were doing a home delivery, and she
did not deny that she told him the last time she had a home delivery was several months prior to the
events at issue.2 Dkt. 11, Ex. A at 194–95. While Newman now contends that it also could have
been a customer in the drive through signing manually or that she did home deliveries all the time
and just did not want to tell the LPM, the information Kroger had at the time of termination was that
Newman had not done a home delivery in months, home delivery was the only way there would be
no signature on file, and somehow these prescriptions, which the physician did not even recall
writing or know what the drugs were used for, had been dispensed by Newman without a customer
2
At first Newman stated that she was “not sure” and that she “may have said that” when
asked if she told Loss Prevention that the last home delivery was several months ago. Then, she
agreed that she would not have been dishonest with Loss Prevention but that she was “just terribly
upset at the time.” She agreed that she was “pretty sure” that her answer was several months ago.
Dkt. 11, Ex. A at 195.
7
present. Moreover, the drugs dispensed appear to be drugs that can be used to treat pigeons, and
Newman had a side business selling pigeon supplements and owned approximately twelve pigeons.
These investigation results are a legitimate nondiscriminatory reason for termination of employment.
Newman does not argue that this reason is pretext in her response and she did not present any
evidence that could be construed as indicating that Kroger’s reason was pretext. Her implication that
the prescriptions at issue could have been drive-through or home-delivery prescriptions is
insufficient for a reasonable juror to conclude that the termination of Newman’s employment was
based on Newman’s race. Newman centers her case around the fact that her supervisor and the
woman who replaced her are both Hispanic females and her conclusory assertions that her
“workplace slowly became hostile” and “unbearable” due to the “discriminatory behavior” of these
women. See Dkt. 14, Ex. A. Without evidence to support the alleged “discriminatory behavior” and
in light of Kroger’s evidence of a legitimate nondiscriminatory reason for Newman’s termination,
these allegations and the mere fact the women are of a different race than Newman does not raise
an issue of material fact that Kroger terminated Newman’s employment because of her race.
IV. CONCLUSION
Kroger’s motion for summary judgment is GRANTED. Newman’s claims against Kroger
are DISMISSED WITH PREJUDICE. The court will enter a final judgment concurrently with the
order.
Signed at Houston, Texas on July 3, 2019.
___________________________________
Gray H. Miller
Senior United States District Judge
8
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?