Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—D.N.M.: Former Walgreens manager, fired for purportedly unauthorized store closures, cannot advance claim, (Aug 17, 2026)

By Todd Harrison, J.D.

His comparator evidence was lacking, as the race of one comparator was never established, and it was unclear whether another answered to the same supervisor.

Granting Walgreens’ renewed motion for summary judgment against the Title VII race discrimination claim asserted by a former store manager, a federal district court in New Mexico determined that the employee’s prima facie case stumbled at the third hurdle, failing to make a showing that he was terminated under circumstances giving rise to an inference of discrimination. Having adopted the rulings and reasoning stated on the record at a previous hearing on the matter, the court also granted the renewed motion for summary judgment against the employee’s Title VII and ADEA retaliation claims, and his intentional infliction of emotional distress claim. Further, the court denied the motion as to the employee’s claims for age discrimination in his termination and retaliation for reporting workplace safety concerns (Ulivarri v. Walgreen Co., No. 1:24-cv-675-DHU-LF (D.N.M. Aug. 13, 2026)).

The employee in this case is a Hispanic man who worked for Walgreens for about 35 years, 22 of which were spent as store manager of a 24-hour location in Albuquerque.

Lawsuit. After he was terminated in 2023, the employee filed suit against Walgreens, alleging he was wrongfully terminated for misconduct based on his act of closing the inside of the store, but not the pharmacy/drive-thru, during nighttime hours. He alleged the store closures were authorized by his supervisor after he had reported staffing issues related to safety concerns for himself and other staff members. According to the employee, he was forced out of the company due to race- and age-based discrimination and was retaliated against for speaking up about workplace safety issues. He further contended that he had reported a white, younger pharmacy manager for fraudulent customer complaint resolutions. Unlike the employee, the pharmacy manager was not fired for violating company policy.

For its part, Walgreens argued that the employee was fired because of repeated unauthorized store closures during overnight hours. Before he was terminated, the employee received a written warning in 2016 as part of a food safety audit and received a final written warning in 2019 for failing to perform management duties in accordance with company policy.

Renewed motion. Walgreens filed its first motion for summary judgment on April 21, 2025. The court denied that motion after finding deficient briefing by both parties. After filing a renewed motion for summary judgment, the court held a hearing on July 8, 2026. At that hearing, the court granted Walgreens motion as to the employee’s Title VII and ADEA retaliation claims, as well as his intentional infliction of emotional distress claims. The court denied the motion as to his age discrimination claim with respect to his termination and his common law retaliatory discharge claim.

The court reserved ruling on the employee’s claim of race discrimination in his termination. Specifically, it indicated that would consider whether the employee had met the third prong to establish a prima facie case of race discrimination by showing he was terminated under circumstances giving rise to an inference of discrimination. The court now addressed this issue.

First two prongs. Because the employee failed to adduce direct evidence of discrimination, the court applied the McDonnell Douglas burden shifting framework to his claim. It was undisputed that the employee is a member of a protected class. As to the second prong, Walgreens contended that his prima facie case should fail because he was not performing his job satisfactorily. The court disagreed.

Based on the employee’s own admission, he regularly closed the interior of the store at night. However, he asserted that these closures were authorized by his supervisor. The court found this sufficient to raise a dispute of fact which bore directly on whether the employee was satisfactorily performing his job. Thus, summary judgment was not appropriate on this basis.

Comparators. Turning to the third prong of the employee’s prima facie case, Walgreens argued that he failed to identify any similarly situated employees outside of his protected class who engaged in similar conduct but were not terminated. The employee contended that his supervisor was not terminated for his role in the store closures and that a pharmacy manager was not terminated for booking fictitious vaccine appointments.

With regard to the employee’s supervisor, the court found he had failed to meet his burden to show the supervisor was not a member of a protected class. Walgreens claimed the supervisor is Hispanic but did not cite any evidence to support this presupposition. At the prior hearing, both parties seemed to acknowledge that they did not know the supervisor’s race. The employee’s counsel relied only on speculation that the supervisor is white based on his name and how he was perceived, which was not enough at the summary judgment stage.

As to the pharmacy manager, the employee alleged that he is white, a fact that Walgreens did not admit and was an assertion that the employee failed to back up with any additional evidence. This too was insufficient, explained the court, but because Walgreens did not outright dispute the assertion, it assumed without deciding that the pharmacy manager was white.

Supervisor questions. In considering this comparator evidence, the court noted that while both employees were subject to company policy, including its disciplinary policy, there was no evidence that both answered to the same supervisor. The identity of the pharmacy manager’s supervisor was unclear from the record. He may have reported to a “healthcare supervisor” who had initiated the investigation against the pharmacy manager, or the employee may have in fact been the pharmacy manager’s supervisor.

According to the employee’s deposition, the two shared the same supervisor as he was the one who ultimately disciplined the pharmacy manager, but the court found the record was too muddled on this question. Without any evidence that the two had the same supervisor, the employee fell short of his burden to establish the pharmacy manager as a similarly situated employee.

Differential treatment? Even if the pharmacy manager was found to be similarly situated, the employee had failed to rule out nondiscriminatory explanations for why the pharmacy manager was treated differently. Based on Walgreens’ investigation, the pharmacy manager was issued a final written warning but was not terminated. Although this constituted differential treatment, the court noted that the employee already had a final written warning on his record when he was terminated, and the court could not find evidence in the record clarifying whether the pharmacy manager was previously issued a final written warning or if this was his first. Further, there was no evidence the pharmacy manager had a comparable disciplinary history.

“Comparable seriousness.” Walgreens also contended the pharmacy manager’s actions were not of “comparable seriousness” because they did not result in the purported loss of over $200,000 in revenue as a result of the store closures. This “comparable seriousness” question was arguably a question for the jury, observed the court. However, the employee failed to produce evidence that disputed Walgreens’ account of the lost revenue resulting from the store closures, nor did he produce evidence demonstrating the estimated impact of the pharmacy manager’s conduct. This fell short of the employee’s burden of production at this stage and thus failed to raise a genuine dispute of fact for a jury to resolve at trial, said the court.

With insufficient evidence to support an inference of racial discrimination, the court concluded that the employee’s claim for racial discrimination necessarily failed, and Walgreens’ motion for summary judgment against this claim was granted.

The case is No. 1:24-cv-675-DHU-LF.

Judge: Urias, D.

Attorneys: Anita Marie Kelley (Law Office of Anita M. Kelley) for Steven Ulivarri. Michael H. Bell (Ogletree Deakins) for Walgreen Co.

Companies: Walgreen Co.

Cases: RaceDiscrimination Discrimination AgeDiscrimination Discharge Retaliation TortClaims NewMexicoNews