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Greene v. Walgreens Eastern Co. Inc.

United States District Court, D. Massachusetts

November 18, 2016

JAMES S. GREENE
v.
WALGREEN EASTERN CO., INC.

          MEMORANDUM AND ORDER ON DEFENDANT WALGREEN'S MOTION FOR SUMMARY JUDGMENT

          Richard G. Stearns, UNITED STATES DISTRICT JUDGE

         James S. Greene, a pro se plaintiff, brought this action against his former employer, Walgreen Eastern Co., Inc. (Walgreens), alleging that it discriminated against him on the basis of his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Counts I, II, and III), and his age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. (Counts IV, V, and VI). Limited by the timing of his November 20, 2014 filing with the Massachusetts Commission Against Discrimination (MCAD), [1] Greene raises actionable claims of race and age discrimination with respect to Walgreens' failure to promote him in 2014. Greene alleges discrimination theories based on both disparate treatment and disparate impact.[2] Walgreens now moves for summary judgment on all counts.

         BACKGROUND

         The facts, taken in the light most favorable to Greene as the nonmoving party, are as follows.[3] Greene is an African-American man who worked for Walgreens from 2005 until 2014 as a Management Trainee (MGT). During his tenure at the company, Greene worked at several Walgreens stores in southeastern Massachusetts, in a territory designated as “District 106.” When Greene left Walgreens, he was working at the District 106 Bridgewater store.

         In 2012, Walgreens decided to revamp its store management structure. The company eliminated the MGT position in all of its stores nationwide, and replaced it with a new position titled Assistant Store Manager-Trainee (ASM-T).[4] All existing MGTs were either to be transferred to the new ASM-T position, demoted to a non-management “Shift Lead” position, or terminated.[5] Walgreens' minimum qualifications for promotion to the ASM-T position were: (1) a rating of “Achieving Expectations” on a 2013 performance review, (2) a high school diploma or GED, and (3) no written disciplinary actions during the prior 12 months.

         It is undisputed that Greene met the three entry-level qualifications. Greene alleges that notwithstanding his advanced degrees and exemplary work history, his supervisors repeatedly discouraged him from applying for an ASM-T position, and instead urged him to step down to the Shift Lead level.[6] On January 15, 2014, Greene's immediate supervisor, Diane Peavey, presented him with a memorandum giving him the option of accepting a Shift Lead job or separating from the company, and demanded that he “sign it today.” Greene Dep. at 102. Greene elected to resign and signed the document. However, shortly afterwards, Bob Nash, a Walgreens' “community leader”[7] notified him that he had been given the memorandum by mistake and that he was in fact eligible to apply for a promotion to an ASM-T position. Greene decided to remain at Walgreens.[8]

         Walgreens' ASM-T selection process had three components; for each component, the applicant received a numerical score from 1 to 5, with 5 being the highest possible score.[9] First, eligible applicants were to complete a mathematics examination administered through a computer. The math test was composed of thirty math questions “measuring low-level job-related retail math skills.” Gerjerts Decl. ¶ 7 (Dkt #73-2). It included questions about “measuring calculations of gross profits, costs, retail profits, and pro-rated ad prices.” Id. Second, district managers asked patterned questions of the applicants' supervisors regarding his or her job skills, utilizing “an anchor rating scale to rate job-related competencies” relevant to the ASM-T position. Id. at 7, 11 (Overview of ASM-T Selection Process). The skills included “Knowledge of Company Policies and Procedures; Ability to Learn and Work Under Pressure; Valuing the Customer; [and] Being Motivated and Ethical & Honest.” Id. ¶ 8. This process, termed the Internal Reference Review (IRR), took “about 45 minutes to complete.” Id. at 7. Finally, applicants who achieved a minimal level of competency on the first two measures were invited to an interview. Interviewers asked nine specific questions, common to all applicants, “relating to ASM-T job competencies . . . assessing how applicants handle certain job-related situations and . . . the applicant's ability to manage the store and others.” Id. ¶ 9. The interviewers were provided a rubric with which to evaluate the applicants' responses. The interviews were conducted by a panel consisting of at least two Walgreens managers - individuals to whom the candidate did not report - and “took about 30-45 minutes to complete.” Id. The candidate's performance on the three components was then weighted and aggregated to determine his or her overall score. The mathematics exam comprised 15% of the rating, the IRR performance review 35%, and the interview evaluation the remaining 50%.

         On the mathematics exam, Greene received a score of 4.06 out of 5, placing him in the band of “Highly Recommended.” Greene received a 3.11 on the IRR component which correlated to the band of “Recommended with Serious Caution.” His combined IRR/math score, after weighting, was 3.4, also corresponding to the band of “Recommended with Serious Caution.” All applicants with a combined IRR/MA rating within the “Recommended with Serious Caution” band or above were invited to interview for the ASM-T position; fifteen employees in Greene's cohort chose to do so.[10]

         “The panel that interviewed Greene consisted of three individuals to whom Greene did not report - Community Leaders Geoff Robinson, Kelly Zbyszewski and Todd Halliwell.” Def.'s SOF ¶ 40. At his interview, Greene received a score of 2.08 - “Not Recommended” - the third-lowest score of the fifteen candidates.[11] See Dkt #47-3 at 42. After the interview score was combined with the math and IRR components, Greene had a final composite score of 2.74, again the third-lowest among the candidates. Walgreens promoted the top eleven candidates based on the final composite scores. Of the candidates who reached the interview stage, Walgreens advanced two who were over the age of 40 (42 and 59) and nine who were under the age of 40; all eleven successful candidates are white. Conversely, all four of the rejected candidates were over 40, and none of them is white.[12]

         On June 12, 2014, after Greene's application for an ASM-T promotion had been denied, Peavey again offered Greene the choice of stepping down to a “Shift Lead” position or separating from Walgreens. Greene elected to leave the company, but declined to take a severance package. Greene was 67 years old when he resigned from Walgreens.

         In November of 2014, Greene filed a complaint against Walgreens with the Equal Employment Opportunity Commission (EEOC) alleging that Walgreens had discriminated against him by failing to promote him to the ASM-T position.[13] The EEOC dismissed the complaint in April of 2015. Greene filed this action on July 10, 2015. Following discovery, Walgreens moved for summary judgment. Greene filed an Opposition on September 12, 2016.

         DISCUSSION

         Summary judgment is appropriate when, based upon the pleadings, affidavits, and depositions, “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment will not be granted if the evidence is “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of establishing that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant carries its burden, the nonmovant must show more than a “metaphysical doubt” as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

         “In a wrongful termination case under the ADEA, the plaintiff must establish ‘that his years were the determinative factor in his discharge, that is, that he would not have been fired but for his age.'” LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842 (1st Cir. 1993), quoting Freeman v. Package Mach. Co., 865 F.2d 1331, 1335 (1st Cir. 1988); see also Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009). Similarly, Title VII provides:

[that it] shall be an unlawful employment practice for an employer -
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such ...

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