Pharmacist Alleges Gender Discrimination Was Basis for Termination

Pharmacy Times, January 2022, Volume 88, Issue 1

Did trial court judge err when dismissing the lawsuit without direct evidence of plaintiff’s claim?

Issue of the Case

A pharmacist was terminated from employment because of alleged violation of workplace policies and subsequently made accusations of illegal termination based on gender discrimination. May his lawsuit proceed without direct evidence of his claim?

Facts of the Case

A pharmacist in a Midwestern state accepted an offer of employment at a pharmacy chain. He signed an acknowledgement that termination could occur if he violated the firm’s conduct or internet policies. Shortly after
he was hired, female coworkers reported to company officials that he was engaging in inappropriate behavior. That led to his receiving a verbal warning from company officials.

About 2.5 years after he had started work, the company’s human resources department launched an investigation in response to complaints from coworkers that he had been viewing pornography on his work computer. The firm interviewed 4 of his female coworkers, who alleged that he had engaged in online gambling, had touched them inappropriately, and had viewed naked women on his work computer while at work. The firm assigned members of its information technology department to determine whether he had viewed pornography on his work computer. Those investigations did not definitively conclude that he had done so.

Company officials interviewed him, and during those discussions he admitted visiting dating and sports websites on his computer at work but denied gambling while at work, touching his coworkers, or viewing pornography while at work. His employment was terminated, and he filed a lawsuit about 5 weeks later in state court, arguing that his firing occurred in violation of the prohibition on gender-based discrimination contained in the state civil rights act. The crux of his argument in the court filing was that he had received disparate treatment when he was fired after accusations of inappropriate touching. He pointed to the situation of a prior female employee who was not terminated by the firm 3 years earlier after 2 male coworkers had accused her of inappropriate touching.

The employer had the case transferred to federal court based on diversity of citizenship, because its headquarters was in a different state. The employer also made a motion with the federal trial court judge requesting that it be granted summary judgment, essentially arguing that there was no material fact to be decided by conducting a trial.

This advances the notion that all necessary factual issues are settled and the case can be decided on the written filings from the parties.

The attorney representing the pharmacist opposed that motion with an argument that the pre-trial discovery process had elicited direct evidence of the employer’s discriminatory motive when it fired him. The federal trial court judge ruled that this “direct evidence” argument by the pharmacist/plaintiff was an attempt to amend the complaint that he had filed when launching the lawsuit, with that argument now being presented too late during the flow of the case.

The judge concluded that the submissions from the pharmacist “failed to present a prima facie case of discrimination.” The judge granted the motion for summary judgment made by the employer/defendant.

The pharmacist also argued that his “direct evidence” argument was a way for him to prove the underlying disparate treatment claim, not a new legal theory for recovery of damages. The trial judge denied that motion as well.

The pharmacist/plaintiff appealed to the US Court of Appeals.

The Ruling

The federal appellate court agreed with the trial court judge and affirmed the dismissal of the lawsuit.

The Court's Reasoning

The appellate court began by restating the standard to be used for its decision: “Summary judgment is appropriate if, viewing all the evidence and reasonable inferences in the light most favorable to the nonmovant, there is no genuine issue of material fact.”

A plaintiff alleging disparate treatment may survive summary judgment by either presenting an inference of discrimination or showing direct evidence of discrimination. “Direct evidence shows a ‘specific link’ between discriminatory animus and an employment decision.” It is evidence that directly links an individual to an act or event, without need for any inference. It directly proves what is alleged.

The court reviewed all the assertions made by the attorneys for the pharmacist. It concluded that “assuming the assertions are true, none of his purported direct evidence establishes the required ‘specific link’ between his termination and gender-bias animus. Further, the employer’s policies permit termination for inappropriate conduct or personal use of a work computer, the latter of which the pharmacist admitted.” Finally, “Declining to interview 2 male employees while investigating allegations of inappropriate touching of exclusively female employees is insufficient to show discriminatory intent in this case.”

The court continued with discussion of the internet access portion of the case: “The absence of conclusive evidence that the pharmacist violated internet and conduct policies is insufficient to prove improper termination, because the central question in determining if termination is proper is not whether the employee actually engaged in prohibited conduct, but whether the employer believed so in good faith.”

The overall conclusion of the appellate court was that the pharmacist had failed to demonstrate direct evidence of discrimination sufficient to survive summary judgment. Dismissal of the lawsuit was affirmed.

Joseph L. Fink III, JD, DSc (hon), FAPhA, BSPharm is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Professor
of Leadership at the University of Kentucky College of Pharmacy in Lexington.