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Five years after EEOC charge, deviation from usual rehiring process suggests retaliation

By Lorene D. Park, J.D.

Reversing summary judgment on a former Walgreen employee’s retaliation claim, the Seventh Circuit held that, despite the fact that years had passed since she filed EEOC charges of race discrimination, the plaintiff offered sufficient circumstantial evidence of a causal link to support her Section 1981 and Title VII retaliation claims. This included evidence that the district manager who handled her earlier EEOC charges intervened in the 2014 decision not to rehire her, and did so in ways that inexplicably deviated from Walgreens’ standard procedures. Walgreens also failed to explain how the plaintiff’s application materials went missing (Baines v. Walgreen Co., July 12, 2017, Hamilton, D.).

Three EEOC charges. The plaintiff started working for Walgreens in 2005 as a pharmacy technician. In July 2007, she filed an EEOC charge claiming she was discriminated against because she is black. Walgreens managers met with her to discuss the issue and the meeting was tense. She testified that one supervisor said she “messed up” and that “what I had done was bigger than me, and that I didn’t know what I had done.” The District Manager (DM) for the Milwaukee store asked what she wanted and she said a promotion and transfer. When she got neither, she filed a second EEOC charge in October 2007, alleging retaliation. In 2008, the plaintiff transferred to Atlanta, Georgia, but there was “no work” there. She filed a third EEOC charge alleging retaliation. She later moved back to Wisconsin.

Failure to rehire. In 2014, the plaintiff applied for a pharmacy technician job at a Walgreens in Wauwatosa, Wisconsin. She discussed the job with the pharmacy supervisor, who generally had the sole discretion to hire pharmacy techs. The supervisor said she would review the plaintiff’s application and get back to her if she did well enough on her assessment. The next day, the plaintiff was interviewed by the supervisor and another Walgreens employee. However, a day later, the supervisor left a message saying someone else had been hired.

Several days later, the supervisor hired a different candidate who had less experience than the plaintiff. In fact, the plaintiff was the only applicant with prior Walgreens experience. It turned out that it was the plaintiff’s cousin who was hired and, according to her, the supervisor said in February 2015 that she didn’t hire the plaintiff because the DM (the same one that oversaw the Milwaukee store) intervened and said not to hire the plaintiff, though she did not know why.

Missing records. The plaintiff filed a fourth EEOC charge and, during the investigation, the agency asked for Walgreens’ records from the hiring process. Though Walgreens uses hiring software and the supervisor testified that she enters interview scores right away, all the information on the plaintiff was missing, with no explanation. Her name was not even on the list of interviewees and her interview scores were gone.

District court finds no causation. Granting summary judgment against the plaintiff’s retaliation suit under Title VII and Section 1981, the district court held that she failed to establish a causal connection between her prior EEOC charges and Walgreens’ failure to rehire her in 2014. The court assumed her cousin’s testimony about what the pharmacy supervisor said was admissible but explained that the testimony fell short of showing the supervisor knew about the 2007 or 2009 charges and didn’t hire the plaintiff because of those. The court also noted that the number of years that had passed between the charges and the failure to rehire weakened any causal inference.

DM’s interference, missing records suggest causal link. Reversing, the Seventh Circuit found that the lower court “strayed off course” by finding the cousin’s testimony insufficient to show retaliatory intent simply because she did not testify that the prior EEOC charges were the reason the plaintiff wasn’t hired. The absence of such testimony did not preclude the plaintiff from meeting her burden with circumstantial evidence and there was plenty of that here.

After rejecting Walgreens’ hearsay-within-hearsay objection to the cousin’s testimony (the DM’s command to not hire the plaintiff was not hearsay and the supervisor’s statement was an admission by the agent of a party opponent), the appeals court found it admissible. With that testimony, the plaintiff presented substantial evidence of retaliatory intent because it provided a link—through the DM’s interference in the hiring process—to the prior EEOC charges. The DM was personally involved in the prior handling of the EEOC charges, and the evidence suggested it was highly unusual for the DM, who managed over 20 stores, to interfere in the hiring of pharmacy techs. She normally hired managers and the managers hired other employees. Moreover, her primary responsibility was retail operations, not pharmacy management.

There were also other indications that “something was amiss” in the hiring decision, including that the supervisor said she liked the plaintiff, that the plaintiff was more experienced that the individual who was hired, and that the plaintiff’s application and interview scores mysteriously went missing.

Walgreens did not explain the substantial deviation in the hiring process or the missing records. It simply insisted on its own set of facts, claiming the DM did not intervene at all. Walgreens also tried to undercut the plaintiff’s evidence by emphasizing the length of time between the EEOC charges in 2007 and 2009, and the failure to rehire the plaintiff in 2014. However, passage of time is not dispositive if there is other evidence of retaliation, and this may have been the DM’s first opportunity to retaliate. For all these reasons, summary judgment was reversed.