Birmingham, AL - Race Discrimination lawyer represented defendant with a claim for discrimination in discipline charge.
Carolyn Robinson is an African-American pharmacist employed by Walmart
Stores East, LP’s (“Walmart”) from 2005 until her termination in 2018. Ms.
Robison was 51-years old when Walmart fired her. After her termination, Ms.
Robinson filed suit against Walmart, asserting claims of race discrimination in
violation of Title VII and 42 U.S.C. § 1981 and age discrimination in violation of
the Age Discrimination in Employment Act (“ADEA”). Before the court is
Walmart’s motion for summary judgment and motion for partial judgment on the
pleadings (doc. 32) and motion to strike (doc. 44).
The court DENIES Walmart’s motion for partial judgment on the pleadings
because Ms. Robinson’s complaint states a claim for discrimination in discipline.
The court GRANTS Walmart’s motion for summary judgment on Ms. Robinson’s
claims of race discrimination because Ms. Robinson has not presented a prima
2021 Jan-27 PM 12:08
U.S. DISTRICT COURT
N.D. OF ALABAMA
Case 2:19-cv-00856-ACA Document 50 Filed 01/27/21 Page 1 of 21
facia case of race discrimination and even if she had, she has not presented
evidence creating a dispute of material fact about whether Walmart’s articulated
reasons for disciplining and firing her were pretext for unlawful race
discrimination. The court GRANTS Walmart’s motion for summary judgment on
Ms. Robinson’s age discrimination claim because she has not presented evidence
from which a reasonable jury could find that Walmart’s articulated reason for
firing her was pretext for unlawful age discrimination.
Finally, the court DENIES AS MOOT Walmart’s motion to strike certain
paragraphs of the declaration Ms. Robinson submitted in opposition to summary
judgment because the court has relied on only admissible and material evidence in
ruling on Walmart’s motion for summary judgment.
I. MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS
Walmart moves for judgment on the pleadings as to any claim for race
discrimination in discipline. (Doc. 32 at 1–2). In support of its argument, Walmart
contends that Ms. Robinson’s complaint does not allege facts related to any
employment event other than her termination. (Doc. 35 at 20). Walmart’s
argument is belied by the face of the complaint.
Ms. Robinson’s complaint alleges that her supervisor issued multiple writeups for deficient job performance and held her to a higher standard of policy
compliance than Caucasian employees. (Doc. 1 at ¶¶ 12, 19, 21). And the first
Case 2:19-cv-00856-ACA Document 50 Filed 01/27/21 Page 2 of 21
count of Ms. Robinson’s complaint specifically states that Walmart discriminated
against her “because of her race with respect to the assessment of discipline. . . .”
(Doc. 1 at ¶ 20).
In reviewing a Rule 12(c) motion for judgment on the pleadings, the court
accepts “as true all material facts alleged in the non-moving party’s pleading” and
views “those facts in the light most favorable to the non-moving party.” Perez v.
Wells Fargo N.A., 774 F.3d 1329, 1335 (11th Cir. 2014). Applying this standard,
Ms. Robinson’s allegations in the complaint regarding how Walmart disciplined
her state a discrimination claim. Therefore, the court DENIES Walmart’s partial
motion for judgment on the pleadings.
II. MOTION TO STRIKE
Before turning to the merits of Walmart’s motion for summary judgment,
the court examines Walmart’s motion to strike paragraphs 17, 18, 35, 38, 41, 45,
46, 47, and 48 of Ms. Robinson’s declaration that she submitted in opposition to
summary judgment. (Doc. 44). Walmart contends that these paragraphs contain
information that is not based on personal knowledge or is conclusory or
speculative. (Id.). Ms. Robinson counters that the challenged portions of the
declaration are admissible for a variety of reasons. (Doc. 46). Some of the
challenged portions to the declaration appear in admissible form in Ms. Robinson’s
deposition. To the extent that is the case, the court has considered any relevant
Case 2:19-cv-00856-ACA Document 50 Filed 01/27/21 Page 3 of 21
testimony. Otherwise, consistent with its obligation under Federal Rule of Civil
Procedure 56, the court has not considered any inadmissible or immaterial portions
of the declaration.
Accordingly, the court DENIES as MOOT Walmart’s motion to strike
paragraphs 17, 18, 35, 38, 41, 45, 46, 47, and 48 of Ms. Robinson’s declaration.
III. MOTION FOR SUMMARY JUDGMENT
In considering a motion for summary judgment, the court “draw[s] all
inferences and review[s] all evidence in the light most favorable to the non-moving
party.” Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir.
2012) (quotation marks omitted).
In 2005, Walmart hired Ms. Robinson, an African-American, as a Staff
Pharmacist to work at the Homewood, Alabama store. (Doc. 33-1 at 9). In 2006,
Walmart promoted Ms. Robinson to Pharmacy Manager, a position she held until
2012 when she asked to step down and return to her position as a Staff Pharmacist.
(Id. at 17). Thereafter, Ms. Robinson served as a Staff Pharmacist until Walmart
terminated her employment in 2018. (Doc. 33-39 at 7–9).
In 2016, Zachary Martin, a Caucasian male in his thirties, became the
Pharmacy Manager at the Homewood Walmart. (Doc. 33-4 at ¶ 4). Ms. Robinson
Case 2:19-cv-00856-ACA Document 50 Filed 01/27/21 Page 4 of 21
reported to Mr. Martin, and Mr. Martin reported to Market Health and Wellness
Director Billy Lawley. (Doc. 33-5 at ¶¶ 4, 7). Mr. Lawley reported to Chad
Souers, the Market Manager for the area that included the Homewood store. (Doc.
33-2 at 4; Doc. 33-3 at 3–4).
Mr. Martin and Ms. Robinson were the only pharmacists assigned to the
Homewood store, and each worked a 12-hour shift. (Doc. 33-3 at ¶ 7). They were
subject to the same policies and procedures which, among other things, included a
Coaching for Improvement Policy. (Doc. 33-7). The Coaching for Improvement
Policy is designed to help employees identify, acknowledge, and change
unacceptable job performance through three levels of coaching: first written
coaching, second written coaching, and third written coaching. (Id. at 1–2). An
employee may receive only one of each level of coaching in a 12-month period,
and a coaching remains active for one year. (Id.). Supervisors have discretion to
determine the appropriate level of coaching or to skip certain levels of coaching,
depending on the circumstances of a particular situation. (Id.). If an employee’s
job performance warrants a level of coaching and the employee already has
received a third written coaching within the previous 12 months, the employee may
be terminated. (Doc. 33-7 at 2).
In August 2016, Mr. Martin issued a first written coaching to Ms. Robinson
because she did not follow pharmacy procedures for returning expired prescription
Case 2:19-cv-00856-ACA Document 50 Filed 01/27/21 Page 5 of 21
medication (“GENCO” returns). (Doc. 33-4 at ¶ 21; Doc. 33-15). Under previous
managers, Walmart required pharmacists to complete GENCO returns by the 15th
of every month. (Doc. 33-1 at 31–32). Shortly after Mr. Martin took over,
Walmart implemented a new policy, requiring pharmacists to submit GENCO
returns on the second Sunday of a given month instead of by the 15th day of every
month. (Doc. 33-1 at 32; Doc. 33-4 at ¶¶ 12–18; Doc. 33-12; Doc. 34-10). During
her shift on Sunday, August 14, 2016, Ms. Robinson did not submit the GENCO
returns. (Doc. 33-1 at 34; Doc. 33-4 at ¶ 21).
In her deposition, Ms. Robinson testified that she was unaware of the new
GENCO procedure until Mr. Martin disciplined her, but she previously
acknowledged in emails that she read notes from the store visit where management
outlined the updated policy. (Doc. 33-1 at 3; Doc. 33-12; Doc. 33-4 at ¶¶ 14–16,
18). And in a July 14, 2016 email to Mr. Martin summarizing notes from a store
meeting, Ms. Robinson stated: “Out of date processing on the 2nd weekend of
month (have their drugs pull[ed] and counted).” (Doc. 33-13).
The day after Mr. Martin issued the GENCO coaching, Ms. Robinson
emailed Mr. Lawley and requested a meeting to discuss the write-up. (Doc. 33-19
at 2). After the meeting, Ms. Robinson was under the impression that Mr. Lawley
was going to talk to Mr. Martin about removing the written coaching from her
record. (Doc. 33-9 at 2). Mr. Lawley testified that he reviewed Ms. Robinson’s
Case 2:19-cv-00856-ACA Document 50 Filed 01/27/21 Page 6 of 21
first written coaching and determined that Ms. Robinson had notice of the GENCO
requirements and saw no need to overturn the written coaching. (Doc. 33-2 at 29).
In April 2017, Mr. Martin gave Ms. Robinson a second written coaching for
allowing a visiting pharmacy technician to bring personal items into the pharmacy,
in violation of Walmart policy. (Doc. 33-4 at ¶ 37; Doc. 34-35 at 1, 3; Doc. 33-
18). Mr. Martin became aware of the incident after reviewing store video footage
during his investigation into an unrelated matter. (Doc. 33-4 at ¶ 30). The footage
revealed that the technician brought a bag of personal items into the pharmacy
while Ms. Robinson was the pharmacist on duty. In accordance with Walmart
policy, Mr. Martin disciplined Ms. Robinson for allowing the visiting technician to
bring personal items into the pharmacy. (Doc. 33-18). Mr. Martin did not
discipline the visiting pharmacy technician because she was not a Walmart
employee, and Mr. Martin did not have authority to coach the technician for her
independent violation of pharmacy protocol. (Doc. 33-4 at ¶ 39).
After the second written coaching, Ms. Robinson realized that the first
written coaching was still active. (Doc. 33-9 at 2). She emailed Mr. Souers and
requested a meeting to discuss the first coaching. (Id.; see also Doc. 33-1 at 42).
During this meeting, Ms. Robinson also raised other complaints. For instance, Ms.
Robinson was upset that Mr. Martin had not disciplined the visiting technician for
violating pharmacy policy. (Doc. 33-1 at 42; Doc. 33-9 at 1). Ms. Robinson also
Case 2:19-cv-00856-ACA Document 50 Filed 01/27/21 Page 7 of 21
complained that Mr. Martin had not submitted GENCO returns but was not
disciplined and that Mr. Martin had been seen sleeping on the pharmacy floor.
(Doc. 33-1 at 54; Doc. 33-9 at 1). Several days after her meeting with Mr. Souers,
Ms. Robinson emailed Mr. Souers and Mr. Lawley an undated picture of Mr.
Martin lying on the pharmacy floor. (Doc. 33-1 at 44–45; Doc. 33-2 at 14).
Before Ms. Robinson’s meeting with Mr. Souers, Mr. Lawley had in fact
issued a first written coaching to Mr. Martin for failing to submit GENCO returns
on time. (See Doc. 33-9 at 1; Doc. 34-31). After Ms. Robinson’s meeting with
Ms. Souers, Mr. Lawley issued a second written coaching to Mr. Martin for not
completing other medication returns. (Doc. 33-4 at ¶ 95; Doc. 34-31). During this
second coaching session, Mr. Lawley told Mr. Martin that someone reported that
he had been lying on the pharmacy floor during his shift. (Doc. 33-2 at 14; Doc.
33-4 at ¶ 95). Mr. Martin told Mr. Lawley that on one occasion, he felt ill during
his shift and had lain down between tasks, but that he was never asleep. (Doc. 33-
4 at ¶¶ 95–101). Mr. Lawley did not issue a separate written coaching for Mr.
Martin’s lying on the floor. (Doc. 33-2 at 14; Doc. 39-3 at 1). Instead, he decided
to address the concern as part of Mr. Martin’s second coaching session. (Id.)
In November 2017, Mr. Martin issued a third written coaching to Ms.
Robinson because she documented that she had cleared a patient’s flagged
medication as “doctor approved” when it was not. (Doc. 33-21). Walmart’s Drug
Case 2:19-cv-00856-ACA Document 50 Filed 01/27/21 Page 8 of 21
Utilization Review (“DUR”) Policy requires that a pharmacist review a patient’s
prescribed medication with additional scrutiny when the pharmacist receives
certain color-coded alerts. (Doc. 34-36). For example, a “red alert” notifies a
pharmacist of a possible drug allergy, and a pharmacist, in her judgment, must
contact the prescribing physician, counsel the patient, or both. (Doc. 33-4 at ¶ 49;
Doc. 34-36 at 3). The pharmacist must then select the type of intervention from a
drop down box in the computer system. (Doc. 34-36 at 3). One choice from the
drop down box is “Dr. Approved.” (Doc. 33-4 at ¶ 50). Another choice is “other,”
for which the pharmacist must type in the reason for overriding the alert. (Id.;
Doc. 34-36 at 3).
Mr. Martin received a call from a patient that prompted him to review the
patient’s record for a possible DUR violation. (Doc. 33-4 at ¶¶ 52–54). Mr.
Martin discovered that Ms. Robinson filled a hydrocodone prescription for a
patient even though the patient was allergic to codeine. (Id.). Ms. Robinson
marked a DUR override for the patient’s hydrocodone as “Dr. Approved,” but the
comments explained that Ms. Robinson had counseled the patient only. (Id.). Ms.
Robinson admitted that she did not speak to anyone at the patient’s physician’s
office or get approval from the doctor to dispense the medication despite the
allergy alert and that she did not select the right DUR code. (Doc. 33-1 at 47, 50,
Case 2:19-cv-00856-ACA Document 50 Filed 01/27/21 Page 9 of 21
52). Mr. Martin issued the third written coaching because Ms. Robinson tagged
the DUR override incorrectly. (Doc. 33-4 at ¶ 57; Doc. 33-21).
Around the same time Ms. Robinson received her third written coaching,
Walmart’s pharmacies began an initiative to improve customer adherence with
certain maintenance medications like those that treat high cholesterol, high blood
pressure, and diabetes. (Doc. 33-4 at ¶¶ 63–64). In early December 2017, Mr.
Martin emailed Ms. Robinson and instructed Ms. Robinson on the use of “Teal
Cards” to address patient compliance. Under this approach, a pharmacist filling a
prescription would place a plastic card in an external bag holding the medication if
a patient had not refilled the medication regularly and had an adherence percentage
below a particular number. (Doc. 33-4 at ¶ 66; Doc. 34-23). The existence of the
card alerted the pharmacist on duty to counsel the patient about medication
adherence. (Doc. 33-4 at ¶ 66). Between December and late March 2018, Mr.
Martin emailed Ms. Robinson two more times instructing her on the use of the Teal
Cards and requesting that she document incidents where she elected against
counseling a patient with a Teal Card in their prescription. (Doc. 33-4 at ¶ 70; Doc.
33-24; Doc. 33-25).
In late March 2018, Walmart’s Pharmacy Clinical Services Manager audited
the Homewood store’s Teal Card program. (Doc. 33-4 at ¶ 72; Doc. 34-26). After
the audit, the Pharmacy Clinical Services Manager emailed Mr. Lawley and Mr.
Case 2:19-cv-00856-ACA Document 50 Filed 01/27/21 Page 10 of 21
Martin to inform them that for the days he audited, Ms. Robinson did not have an
opportunity to use a Teal Card, but she had missed immunization prescreens during
that time. (Doc. 33-4 at ¶ 73; Doc. 34-26). The Clinical Services Manager asked
Mr. Martin to track Ms. Robinson’s Teal Card and immunization prescreens in the
coming weeks. (Doc. 33-4 at ¶ 76; Doc. 33-28).
Between March 20, 2018 and April 5, 2018, Mr. Martin determined that Ms.
Robinson had thirteen opportunities to use Teal Cards but had not done so on any
of those occasions, and she had not issued any immunization prescreens. (Doc. 33-
4 at ¶ 76; Doc. 33-27; Doc. 33-28). On April 5, 2018, Mr. Martin met with Ms.
Robinson and told her that the thirteen missed Teal Card opportunities warranted a
written coaching because she had received multiple reminders about following the
procedure but did not do so. (Doc. 33-4 at ¶ 85; Doc. 33-27). Even though a
violation of the Teal Card procedure is not itself a terminable offense, because Ms.
Robinson already had three active coachings, Mr. Martin terminated Ms.
Robinson’s employment for “misconduct with coachings” pursuant to the terms of
the Coaching for Improvement Policy. (Doc. 33-49; see also Doc. 33-2 at 17; Doc.
33-4 at ¶ 86; Doc. 33-27; Doc. 33-7 at 2).
Ms. Robinson was 51-years old when she lost her job. (Doc. 1 at ¶ 24; Doc.
1-1 at 2). Walmart hired a 37-year old African-American to fill Ms. Robinson’s
position. (Doc. 33-2 at 28; Doc. 33-4 at ¶ 113; Doc. 34-48).
Case 2:19-cv-00856-ACA Document 50 Filed 01/27/21 Page 11 of 21
Walmart moves for summary judgment on all of Ms. Robinson’s claims,
arguing that Ms. Robinson has failed to present evidence creating genuine
disputes of fact about whether it discriminated against her on the basis of race or
In deciding a motion for summary judgment, the court must determine
whether, accepting the evidence in the light most favorable to the non-moving
party, the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a); see also Hamilton, 680 F.3d at 1318. “[T]here is a genuine issue of
material fact if the nonmoving party has produced evidence such that a reasonable
factfinder could return a verdict in its favor.” Looney v. Moore, 886 F.3d 1058,
1062 (11th Cir. 2018) (quotation marks omitted).
A. Title VII/§ 1981 Claim
In Count One of her complaint, Ms. Robinson alleges that Walmart
discriminated against her because of her race “with respect to discipline, including
termination” in violation of Title VII and § 1981. (Doc. 1 at ¶ 20).
Title VII prohibits an employer from discriminating against a person based
on race. 42 U.S.C. § 2000e-2(a)(1). Section 1981 prohibits intentional
discrimination “in private employment on the basis of race.” Johnson v. Ry.
Express Agency, 421 U.S. 454, 4659–60 (1975). As a general rule, claims
Case 2:19-cv-00856-ACA Document 50 Filed 01/27/21 Page 12 of 21
brought under Title VII and § 1981 “are subject to the same standards of proof
and employ the same analytical framework.” Bryant v. Jones, 575 F.3d 1281,
1296 n.20 (11th Cir. 2009). A plaintiff may establish discrimination under Title
VII and § 1981 through direct evidence, circumstantial evidence, or statistical
proof. Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
Here, Ms. Robinson has not presented direct evidence of discrimination,
and the record contains no statistical evidence of discrimination. Therefore, the
court must determine whether Ms. Robinson presented sufficient circumstantial
evidence for a reasonable jury to find that Walmart discriminated against her
because of her race. To do this, Ms. Robinson relies on the test set out in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). (See Doc. 40 at 10–
Under that test, a plaintiff must first make out a prima facie case of
discrimination by showing “(1) that she belongs to a protected class, (2) that she
was subjected to an adverse employment action, (3) that she was qualified to
perform the job in question, and (4) that her employer treated ‘similarly situated’
employees outside her class more favorably.” Lewis v. City of Union City, 918
F.3d 1213, 1220–21 (11th Cir. 2019). If the plaintiff can establish a prima facie
case of discrimination, the burden shifts to the defendant to present evidence
showing a legitimate, non-discriminatory reason for the adverse employment
Case 2:19-cv-00856-ACA Document 50 Filed 01/27/21 Page 13 of 21
action. Id. at 1221. If the defendant can satisfy that burden, the plaintiff must
present evidence from which a reasonable jury could find that the proffered
reason was pretext for unlawful discrimination. Id. To establish that a reason was
pretextual, the plaintiff must present evidence that “the reason was false, and that
discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 515 (1993); Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d
1344, 1349 (11th Cir. 2007).
Walmart argues that Ms. Robinson cannot establish a prima facia case of
race discrimination because written employment actions do not constitute adverse
employment actions and because Mrs. Robinson has not demonstrated that
Walmart treated her differently than similarly-situated employees. (Doc. 35 at
23–24, 27–33). Even assuming that the written employment actions are adverse
actions, the court finds that Walmart is entitled to summary judgment because Ms.
Robinson failed to establish that Walmart treated her differently than similarly
A plaintiff relying on the McDonnell Douglas burden-shifting framework to
establish a race discrimination claim must show that she and her comparators are
“similarly situated in all material respects.” Lewis, 918 F.3d at 1224. In most
cases, adequate comparators are those who have been “engaged in the same basic
conduct (or misconduct), . . . subject to the same employment policy, guideline, or
Case 2:19-cv-00856-ACA Document 50 Filed 01/27/21 Page 14 of 21
rules, . . . under the jurisdiction of the same supervisor, . . . and  share the [same]
employment or disciplinary history” as the plaintiff. Lewis, 918 F.3d at 1227–28.
In this case, Ms. Robinson offers Mr. Martin (doc. 40 at 10–11),
and—possibly—the visiting pharmacy technician (id. at 8, n.1) as comparators.
Neither comparator is adequate.
Ms. Robinson appears to suggest that Walmart treated her differently than
the visiting technician who brought personal items into the pharmacy in violation
of company policy but was not disciplined like Ms. Robinson was. (See Doc. 40 at
8, n. 1). Putting aside the fact that the visiting technician is African-American and
therefore not outside Ms. Robinson’s protected class, the technician is not a proper
comparator. Although Ms. Robinson and the technician were subject to the same
workplace policy, they share no other characteristics. Importantly, they did not
work for the same employer and did not have the same supervisor. (Doc. 33-4 at ¶
39–40). In fact, the undisputed evidence is that Mr. Martin did not have the
authority to discipline the visiting technician. (Doc. 33-4 at ¶ 39). Accordingly,
Ms. Robinson and the visiting technician are not similarly situated in “all material
respects,” and their difference in treatment does not raise an inference of
intentional discrimination. Lewis, 918 F. 3d at 1229.
Ms. Robinson’s comparison to Mr. Martin also fails. Ms. Robinson claims
that Walmart treated her less favorably than Mr. Martin with respect to discipline
Case 2:19-cv-00856-ACA Document 50 Filed 01/27/21 Page 15 of 21
and termination because she received written coachings and was fired while Mr.
Martin was not disciplined or terminated for sleeping on the pharmacy floor. (Doc.
40 at 10–11).
First, with respect to discipline, Ms. Robinson and Mr. Martin did not
engage in the same basic misconduct. Ms. Robinson received a written coaching
for allowing a pharmacy technician to bring prohibited items into the pharmacy
and for not properly entering a DUR code. (Doc. 33-18; Doc. 33-21). Mr. Martin
slept on the pharmacy floor. (Doc. 33-29 at 1–2). And “[a]n employer is well
within its rights to accord different treatment to employees who are differently
situated in ‘material respects’—e.g., who engaged in different conduct . . . .”
Lewis, 918 F.3d at 1228.
Moreover, Ms. Robinson and Mr. Martin did not share a supervisor. Mr.
Martin reported to Mr. Lawley, and Ms. Robinson reported to Mr. Martin. (Doc.
33-4 at ¶¶ 4, 7). “Although not dispositive,” the fact that Mr. Lawley was
responsible for disciplining Mr. Martin while Mr. Martin was responsible for
disciplining Ms. Robinson is a “meaningful distinction.” Knox v. Roper Pump
Co., 957 F.3d 1237, 1248 (11th Cir. 2020); see also Jones v. Bessemer Carraway
Med. Ctr., 137 F.3d 1306, 1312 (11th Cir. 1998) (“Different supervisors may have
different management styles that—while not determinative—could account for
the disparate disciplinary treatment that employees experience.”).
Case 2:19-cv-00856-ACA Document 50 Filed 01/27/21 Page 16 of 21
With respect to Ms. Robinson’s termination, Mr. Martin likewise is not a
valid comparator. Mr. Martin terminated Ms. Robinson’s employment pursuant
to Walmart’s Coaching for Improvement Policy for repeated Teal Card violations
while having three active written coachings. (Doc. 33-49; see also Doc. 33-2 at
17; Doc. 33-4 at ¶ 86; Doc. 33-27; Doc. 33-7 at 2). Again, and as explained
above, see supra p. 16, Mr. Martin did not engage in similar conduct, and he
reported to a different supervisor. In addition, Ms. Robinson has not shown that
she and Mr. Martin shared the same disciplinary history. She has pointed to no
evidence that Mr. Martin had three active written coachings and then engaged in
any conduct (much less similar conduct) that warranted a level of coaching
subjecting him to termination. Accordingly, Ms. Robinson has not presented
evidence creating a genuine dispute about whether she and Mr. Martin are
“sufficiently similar, in an objective sense, that they ‘cannot reasonably be
distinguished.’” Lewis, 918 F.3d at 1228 (citing Young v. United Parcel Service,
Inc., 135 S. Ct. 1338, 1355 (2015)). Therefore, Ms. Robinson cannot establish a
prima facie case of race discrimination.
But even if she could establish a prima facie case of race discrimination,
Ms. Robinson has presented no evidence from which a reasonable jury could infer
that Walmart’s articulated reasons for her coachings and termination are false and
pretext for unlawful discrimination. See Smith, 644 F.3d at 1326; Springer, 509
Case 2:19-cv-00856-ACA Document 50 Filed 01/27/21 Page 17 of 21
F.3d at 1349. Ms. Robinson does not argue that any of Walmart’s legitimate,
non-discriminatory reasons for its actions are false. (See generally doc. 40 at 10–
11). Rather, she claims that Walmart’s proffered reasons for disciplining her and
terminating her employment are pretext for race discrimination because Walmart
did not discipline Mr. Martin for sleeping on the pharmacy floor. (Id.). This is
the same evidence that Ms. Robinson offered in support of her prima facie case.
A plaintiff may use evidence “necessary and proper to support” a prima
facie case to show that an employer’s explanations for its conduct are pretextual.
Lewis, 918 F.3d at 1229. However, as explained above, see supra pp. 15–17,
Walmart’s decision to treat Mr. Martin differently than Ms. Robinson does not
raise an inference of discriminatory intent. Therefore, Ms. Robinson has not
presented evidence from which a reasonable jury could infer that Walmart’s true
reason for disciplining her and terminating her employment was racial
discrimination. Therefore, Walmart is entitled to judgment as a matter of law on
Ms. Robinson’s Title VII and § 1981 claims of race discrimination.
B. ADEA Claim
In Count Two of her complaint, Ms. Robinson alleges that Walmart
discriminated against her because she was 51-years old at the time of her
termination. (Doc. 1 at ¶ 24).
Under the ADEA, an employer may not discriminate against an employee
Case 2:19-cv-00856-ACA Document 50 Filed 01/27/21 Page 18 of 21
who are is least forty years old on the basis of her age. 29 U.S.C. § 623(a)(1). As
in the race discrimination context, when, as here, a plaintiff relies on
circumstantial evidence to make that showing, the court evaluates the claim under
the McDonnell Douglas burden shifting framework. Liebman v. Metropolitan
Life Ins. Co., 808 F.3d 1294, 1298 (11th Cir. 2015).
For purposes of summary judgment, Walmart concedes that Ms. Robinson
can establish a prima facie case of age discrimination. (Doc. 35 at 23 n. 3).
Therefore, to survive summary judgment, Ms. Robinson must show that
Walmart’s articulated, non-discriminatory reason for terminating her employment
is pretext for unlawful age discrimination. Liebman, 808 F.3d at 1298. In this
regard, Ms. Robinson has the “burden of persuasion . . . to proffer evidence
sufficient to permit a reasonable factfinder to conclude that the discriminatory
animus was the ‘but-for’ cause of the adverse employment action.” Sims v. MVM,
Inc., 704 F.3d 1327, 1332 (11th Cir. 2013) (citing Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167, 176 (2009)).
Where an employer justifies termination based on a work rule violation, a
plaintiff may prove pretext by showing “either that [s]he did not violate the work
rule or that, if [s]he did, other employees not within the protected class who
engaged in similar acts were not similarly treated.” Delgado v. Lockheed-Georgia
Case 2:19-cv-00856-ACA Document 50 Filed 01/27/21 Page 19 of 21
Co., 815 F.2d 641, 644 (11th Cir. 1987) (quotation marks omitted). Ms. Robinson
cannot sustain her burden.
Walmart terminated Ms. Robinson because when Mr. Martin coached Ms.
Robinson for Teal Card violations, she already had three active written coachings
which subjected her to termination under the Coaching for Improvement Policy.
Ms. Robinson does not argue that she failed to use Teal Cards consistently. (See
generally doc. 40). And she has pointed to no evidence that Mr. Martin failed to
comply with the Teal Card policy or even if he had, that he had three active written
warnings that would have made his susceptible to termination.
Ms. Robinson appears to suggest that Walmart’s proffered reason for her
termination is pretext because she received a written coaching for allowing a
visiting technician to bring prohibited items into a secure area of the pharmacy, but
Mr. Martin, her younger supervisor, was not disciplined for sleeping on the
pharmacy floor. (Doc. 40 at 13). According to Ms. Robinson this written
coaching “advanced [her] towards discharge,” while Mr. Martin received more
lenient treatment for what she describes as a similar offense which allowed him to
remain employed. (Id.). Again, and as explained above with respect to her race
discrimination claims, see supra pp. 15–17, Ms. Robinson’s conduct and Mr.
Martin’s conduct in this regard is too dissimilar for a reasonable juror to infer that
Walmart treated Ms. Robinson differently because of her age.
Case 2:19-cv-00856-ACA Document 50 Filed 01/27/21 Page 20 of 21
In sum, Ms. Robinson has offered no evidence to suggest that age was the
“but for” cause of her termination.
Therefore, Walmart is entitled to judgment as a matter of law on Ms.
Robinson’s ADEA claim
Outcome: The court DENIES Walmart’s partial motion for judgment on the pleadings
and its motion to strike portions of Ms. Robinson’s declaration. The court
GRANTS Walmart’s motion for summary judgment and WILL ENTER
SUMMARY JUDGMENT in favor of Walmart on all of Ms. Robinson’s claims.