# United States Court of Appeals **for the Fifth Circuit**

No. 21

- 10294

**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* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED March 31, 2022 Lyle W. Cayc e Clerk Case: 21-10294 Document: 00516262848 Page: 1 Date Filed: 03/31/2022No. 21

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2 being set aside ; his motions to compel dis covery 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 p harmacy b enefits m anager , 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

. . . pharmacie s and related businesses

. . . each company owned”. As a result, WSPH was created as a holding company , owned jointly by Prime and Walgreens , with their remain ing 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 remai n employed by Prime until WSPH bec ame their employer at the end of 2017

. ( Obinyan contends that , because of the venture , he became a n 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 re proached Obinyan for: failing to meet daily

production metri cs ; and taking time off work without authorization. He contended these actions constituted discrimination and filed : complaint s with Prime’s human

- resources department; and a charge of discrimination based on retaliation with the EEOC , listing Prime as h is employer

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3 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. ( E arlier that month , some pharmacies owned by WSPH began using the tradename “Al liance 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 nat ional

- origin discrimination , contending Prime had discriminated against him as early as 2016

. Having received a right

- to

- sue letter and p roceeding pro s e , 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: discriminat ing 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 again st Alliance (entry) a fter it did not respond to Obinyan’s complaint

. O n the same day that Obi nyan 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 not ing 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) recommend ed , inter alia : WSPH did not willfully fail

to respond ; an d 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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4 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 contend ed WSPH violated Title VII through national

- origin discrimination and retaliation. W SPH ’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. A ll 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 objecti on to WSPH’s first motion to dismiss , which t he c ourt 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. T his response was not considered because it constituted a n improper surreply. In its 17 March 2021 opinion and order, t he court , inter alia : denied

as moot Obinyan’s motion to compel discovery; awarded summary judgment

to WSPH on the basis it wa s not his employer; an d 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] a gainst any individual . . . because of such individual’s

. . . national origin”; and retaliating Case: 21-10294 Document: 00516262848 Page: 4 Date Filed: 03/31/2022No. 21

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5 against an employee for engaging in a protected activity under the Act. 42 U.S.C. §§ 2000e

- 2(a), 3(a).

A.

T he entry ’s being set aside because WSPH was nam ed 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. Site l 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”. T hree 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 onl y the second and third factors

.
1. Obinyan’s prejudice challenge is waived for failure to brief. (As is true for all parties, p ro se appellants must brief their challenges to preserve them. E.g. , Y ohey v. Collins , 985 F.2d 222, 224

– 25 (5th Cir. 1993). ) Obinyan reiterates his prejudice challenge without explaining what prejudice , if any, resulted , i nstead 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.

P r esent ing 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 Case: 21-10294 Document: 00516262848 Page: 5 Date Filed: 03/31/2022No. 21

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6 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 m otions 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 , th ey 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.

T he 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, 102 6 (5th Cir. 2015). S ummary

- 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 en titled 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 Case: 21-10294 Document: 00516262848 Page: 6 Date Filed: 03/31/2022No. 21

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7 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 , WS P H contend ed 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

- appli cation 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 gr anted 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. E ssentially for the reasons stated by the district court : he fails to show a genuine dispute of material fac t exist s 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 partic ipated; implemented employee

- disciplinary procedures against him; and terminated him when he failed to seek another position with Prime. Case: 21-10294 Document: 00516262848 Page: 7 Date Filed: 03/31/2022No. 21

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8 III. For the foregoing reasons, the judgment is **AFFIRMED**

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