Obinyan v. Walgreens Specialty ( 2022 )

Case: 21-10294 Document: 00516262848 Page: 1 Date Filed: 03/31/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 31, 2022
No. 21-10294
Lyle W. Cayce
Clerk
Okoeguale Obinyan,
Plaintiff—Appellant,
versus
Walgreens Specialty Pharmacy Holdings, L.L.C.,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CV-933
Before Barksdale, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
The linchpin in Okoeguale Obinyan’s Title VII action against
Walgreens Specialty Pharmacy Holdings, L.L.C. (WSPH), is whether it
became Obinyan’s employer as the result of a joint business venture
(venture) between Prime Therapeutics, L.L.C. (Prime), and Walgreens Co.
(Walgreens). Proceeding pro se, Obinyan challenges: an entry of default
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 21-10294
being set aside; his motions to compel discovery being denied; and summary
judgment’s being granted for WSPH on the basis that it did not employ him.
AFFIRMED.
I.
Prime, a third-party pharmacy benefits manager, hired Obinyan in
December 2010 to work as a customer-service representative in its Irving,
Texas, facility, at which Obinyan worked until his termination in October
2017. Prime and Walgreens entered the venture on 31 March 2017 “to
combine . . . pharmacies and related businesses . . . each company owned”.
As a result, WSPH was created as a holding company, owned jointly by Prime
and Walgreens, with their remaining separate entities.
WSPH became the owner of, inter alia, Prime’s Irving facility.
Because WSPH had not yet implemented employment policies or protocols,
it entered into an employee-lease agreement with Prime, which began that
April. Prime leased employees at its Irving facility, including Obinyan, to
WSPH, with those employees to remain employed by Prime until WSPH
became their employer at the end of 2017. (Obinyan contends that, because
of the venture, he became an employee of WSPH on 4 April 2017.) Until
Obinyan’s termination that October, Prime: employed Obinyan in multiple
positions; paid and supervised him; implemented employee-discipline
procedures against him; and administered employee-benefit programs in
which he participated.
In June 2017, Prime reproached Obinyan for: failing to meet daily-
production metrics; and taking time off work without authorization. He
contended these actions constituted discrimination and filed: complaints
with Prime’s human-resources department; and a charge of discrimination
based on retaliation with the EEOC, listing Prime as his employer.
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At the end of the summer, Obinyan was informed that his department
was being relocated. Prime provided him with two options: secure another
position with it; or remain employed, be terminated eventually, and receive
severance pay if he signed, inter alia, an agreement releasing all claims against
it. Obinyan neither secured another position nor signed the agreement.
Prime terminated Obinyan that October. (Earlier that month, some
pharmacies owned by WSPH began using the tradename “Alliance Rx
Walgreens Prime” (Alliance).) Obinyan’s requested severance pay from
Prime was denied because, as noted, he failed to sign a claims-release
agreement. That November, he filed a second charge of discrimination with
the EEOC against Prime for national-origin discrimination, contending
Prime had discriminated against him as early as 2016.
Having received a right-to-sue letter and proceeding pro se, Obinyan
filed this action in 2018 against, inter alia, Prime, Alliance, and Walgreens,
contending they violated Title VII of the Civil Rights Act of 1964 by:
discriminating against him on account of his race and national origin; and
retaliating against him. Obinyan did not, however, include WSPH as a
defendant.
Default was entered against Alliance (entry) after it did not respond
to Obinyan’s complaint. On the same day that Obinyan moved for default
judgment against Alliance, WSPH moved to set aside the entry, contending
it was named incorrectly as Alliance in Obinyan’s complaint, and noting
Obinyan’s confusion likely resulted from some pharmacies owned by WSPH
beginning to use the Alliance tradename in October 2017. A magistrate
judge’s report (R & R) recommended, inter alia: WSPH did not willfully fail
to respond; and the entry be set aside. The district court: adopted the R & R;
set aside the entry; and ordered WSPH to file a responsive pleading.
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WSPH’s motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) (failure to state claim) was granted; but Obinyan was permitted to
replead his claims against WSPH. In doing so, he contended WSPH violated
Title VII through national-origin discrimination and retaliation. WSPH’s
second similar motion to dismiss was denied.
In his two motions on 20 October and 2 November 2020 to compel
discovery from Prime and Walgreens, Obinyan sought, inter alia, information
pertaining to WSPH’s formation. Both motions were denied. (The motions
were against Prime and Walgreens as nonparties. All defendants other than
WSPH had been dismissed in 2019.)
After WSPH moved for summary judgment in 2021, contending, inter
alia, it never employed Obinyan, his response was instead an objection to
WSPH’s first motion to dismiss, which the court construed as a summary-
judgment response. He also filed: a February 2021 motion to compel
discovery from WSPH; and a “second response” to its summary-judgment
motion. This response was not considered because it constituted an improper
surreply.
In its 17 March 2021 opinion and order, the court, inter alia: denied
as moot Obinyan’s motion to compel discovery; awarded summary judgment
to WSPH on the basis it was not his employer; and dismissed this action with
prejudice.
II.
In challenging his action’s being dismissed, Obinyan presents three
issues. (As noted, he proceeds pro se, as he did in district court. Accordingly,
his briefs and filings “are to be liberally construed”. Coleman v. United
States, 912 F.3d 824, 828 (5th Cir. 2019) (citation omitted).) Title VII
prohibits, inter alia, “an employer” from: “discriminat[ing] against any
individual . . . because of such individual’s . . . national origin”; and retaliating
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against an employee for engaging in a protected activity under the Act. 42
U.S.C. §§ 2000e-2(a), 3(a).
A.
The entry’s being set aside because WSPH was named incorrectly as
Alliance in Obinyan’s complaint is reviewed for abuse of discretion. E.g.,
Koerner v. CMR Constr. & Roofing, L.L.C., 910 F.3d 221, 225 (5th Cir. 2018).
Factual findings underlying the decision are reviewed for clear error. Lacy v.
Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000).
Rule 55(c) states a “court may set aside an entry of default for good
cause”. Three factors are generally applied: “whether the default was
willful”; “whether setting it aside would prejudice the adversary”; and
“whether a meritorious defense is presented”. Lacy, 227 F.3d at 292(citation omitted). Obinyan’s opening brief, liberally construed, claims error
for only the second and third factors.
1.
Obinyan’s prejudice challenge is waived for failure to brief. (As is true
for all parties, pro se appellants must brief their challenges to preserve them.
E.g., Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).) Obinyan
reiterates his prejudice challenge without explaining what prejudice, if any,
resulted, instead making conclusory statements about: the court’s failure to
explain how it determined WSPH was named incorrectly as Alliance; and the
evidence did not support setting aside the entry.
2.
Presenting a meritorious defense is a low bar: “the underlying
concern is whether there is some possibility that the outcome of the suit after
a full trial will be contrary to the result achieved by the default”. In re OCA,
Inc., 551 F.3d 359, 373 (5th Cir. 2008) (emphasis added) (citation and
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alterations omitted). WSPH presented sufficient allegations to support
setting aside the entry, including a declaration explaining WSPH never
employed Obinyan. Moreover, the adopted R & R addresses adequately why
setting aside the entry was proper.
B.
Obinyan filed three motions to compel discovery: against Prime in
October 2020; Walgreens that November; and WSPH in February 2021.
Denial of a motion to compel discovery is reviewed for abuse of discretion.
E.g., Landry v. Air Line Pilots Ass’n Int’l AFL-CIO, 892 F.2d 1238, 1270 &
n.114 (5th Cir. 1990).
Although Obinyan asserts the court failed to rule on his first two
motions, they were denied on 14 January 2021. He also makes conclusory
statements that: the denials violated his due-process rights; and the court
generally erred. These challenges are waived for failure to brief, as Obinyan
provides no explanation to substantiate his assertions.
C.
The summary judgment granted WSPH is reviewed de novo, under the
same standards used by the district court. Hagen v. Aetna Ins. Co., 808 F.3d
1022, 1026 (5th Cir. 2015). Summary-judgment evidence is viewed in the
light most favorable to the non-movant. E.g., Am. Family Life Assur. Co. of
Columbus v. Biles, 714 F.3d 887, 895 (5th Cir. 2013) (per curiam).
Summary judgment is proper “if . . . movant shows that there is no
genuine dispute as to any material fact and . . . is entitled to judgment as a
matter of law”. Fed. R. Civ. P. 56(a). A “dispute about a material fact is
‘genuine’ . . . 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). If movant “makes a properly supported motion for
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summary judgment, the burden shifts to . . . nonmovant to show . . . the
motion should not be granted”. Edwards v. Cont’l Cas. Co., 841 F.3d 360,
363 (5th Cir. 2016) (citation and alteration omitted).
As noted infra, generally only employers may be liable for conduct in
violation of Title VII. E.g., Oden v. Oktibbeha Cnty., 246 F.3d 458, 462 (5th
Cir. 2001). Accordingly, for all claims against it, WSPH contended it never
employed Obinyan as a result of the venture because, inter alia: he was not
required to reapply for his position; he never received new employee policies
or benefits-program information from WSPH; Prime continued to pay and
supervise him; and he listed Prime as his employer on his tax returns through
2017.
Obinyan’s summary-judgment evidence was, inter alia: an email
referring to him as an Alliance employee; an email directing him to send files
to WSPH; a screenshot of a joint-employment-application database used by
WSPH and Prime, showing he applied to positions at WSPH; and emails
showing he applied for a WSPH position and requested an interview.
The court considered whether WSPH and Prime constituted a single,
or a joint, employer, and granted summary judgment for WSPH on both
theories. Obinyan claims only that they constitute a joint employer.
The latter part of Obinyan’s employment by Prime coincided with the
venture’s initial stages, evidenced by Obinyan’s applying for WSPH
positions. Essentially for the reasons stated by the district court: he fails to
show a genuine dispute of material fact exists for whether WSPH and Prime
constituted a joint employer; and, WSPH is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a). Prime, inter alia, hired Obinyan; paid his
wages; supervised him; provided employee benefits in which he participated;
implemented employee-disciplinary procedures against him; and terminated
him when he failed to seek another position with Prime.
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III.
For the foregoing reasons, the judgment is AFFIRMED.
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