By Saranac Hale Spencer, The Legal Intelligencer

Walgreens was within its rights to fire a pharmacist who had moral objections to administering flu vaccines, a federal judge has ruled.

Rodney Prewitt, a 66-year-old pharmacist who had worked at the company’s Oxford store for about five years, sued Walgreens after the pharmacy started a program in 2010 offering 20 vaccines, including one for the flu, to customers in its stores nationwide. It required pharmacists to complete a training program in order to administer the vaccines and immunize customers who asked for the service.

Prewitt, however, had moral objections to giving the vaccine since a close friend of his had gotten Guillain-Barre syndrome after getting a flu vaccine. The friend first became paralyzed and then died of complications from the disease, according to the opinion from U.S. District Judge Lawrence F. Stengel of the Eastern District of Pennsylvania.

Prewitt brought an age discrimination suit against the pharmacy, arguing that other, younger pharmacists who weren’t yet able to immunize customers had been able to maintain their regular work hours, whereas Prewitt wasn’t permitted to do that. Walgreens had offered him night shifts at a store farther away from his home than the Oxford location.

Prewitt was the only pharmacist working for Walgreens in Pennsylvania when it started the vaccine program who objected to participating, according to the opinion.

Prewitt “testified that he was not allowed to work because of his conscience objection,” Stengel said. “The plaintiff proceeded under the theory that his suspension/termination were ‘wrongful’ based on his moral objection up until he realized that this claim was legally deficient.”

He then brought the age discrimination claim.

Stengel granted that Prewitt had made an initial, prima facie case for age discrimination since he is over 40, was qualified for his job, suffered an adverse employment action, and the circumstances of that action could indicate age discrimination. Those are the four marks that a plaintiff must meet to make a case for an age discrimination suit.

However, when the burden shifted to Walgreens to show that it had a legitimate and nondiscriminatory reason to fire Prewitt, the company persuaded the judge that it did.

“He was demoted and later terminated because he refused to immunize customers,” Stengel said.

After the pharmacy started its vaccine program, administering those vaccines became a required part of Prewitt’s job, the judge said.

Referring to the change in scheduling—for both hours and locations—for Prewitt, Stengel said, “He was the only pharmacist to be placed on ‘floater’ status in Pennsylvania because he was the only pharmacist to object to administering vaccinations in Pennsylvania. The plaintiff did not work while being a ‘floater’ because he refused to work any shifts which were not his regular ones at the Oxford store.”

Further, Prewitt couldn’t show that Walgreens’ reliance on the immunization issue was a pretext for firing him for age discrimination.

“The plaintiff does not point to a single shred of evidence to support pretext,” Stengel said. “To the contrary, evidence in the record shows that the plaintiff himself agrees that his objection to immunize was the reason he was suspended and then terminated.”

Even if his age had played a role in the company’s decision to fire Prewitt, it hadn’t played a determinative role, Stengel said, addressing the theory of disparate treatment, which would require age to be the determinative factor.

However, here, it was Prewitt’s objection to vaccinating Walgreens’ customers that was the determinative factor, the judge said.

“Walgreens made a business decision to market vaccinations, specifically the flu vaccine,” Stengel said. “Mr. Prewitt did not agree with this decision and voiced a moral objection. He refused to perform an essential part of his job. Though Mr. Prewitt’s objection may have been genuine and sincere, he has not established any unlawful discrimination by his employer.”

Michael Ossip of Morgan, Lewis & Bockius in Philadelphia represented Walgreens and declined to comment.

John Gallagher of Gallagher Law Group in Berwyn represented Prewitt and couldn’t be reached for comment.

Saranac Hale Spencer can be contacted at 215-557-2449 or [email protected]. Follow her on Twitter @SSpencerTLI.

(Copies of the 36-page opinion in Prewitt v. Walgreens, PICS No. 15-0293, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •

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