United States District Court, D. Massachusetts
JAMES S. GREENE
WALGREEN EASTERN CO., INC.
MEMORANDUM AND ORDER ON DEFENDANT WALGREEN'S
MOTION FOR SUMMARY JUDGMENT
Richard G. Stearns, UNITED STATES DISTRICT JUDGE
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),  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. Walgreens now moves for summary
judgment on all counts.
facts, taken in the light most favorable to Greene as the
nonmoving party, are as follows. 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.
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). All existing MGTs
were either to be transferred to the new ASM-T position,
demoted to a non-management “Shift Lead”
position, or terminated. 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.
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. 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” 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.
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. 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
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.
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. 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
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.
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. 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
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).
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
[that it] shall be an unlawful employment practice for an
(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 ...