Thursday, July 27, 2017

7th Circuit Reverses Summary Judgment in Retaliation Case Against Walgreens

The Court of Appeals for the Seventh Circuit decided a case earlier this month whereby it reversed summary judgment in favor of Walgreen's whereby a former employee, Regina G. Baines, claims she was not rehired in retaliation for EEOC discrimination charges she filed some five years previously.  As is the mantra in employment law cases:  the devil lies in the details.  This case presented some unique facts that require special attention.  (The case originated out of my city, Milwaukee, by the way!)


The plaintiff, Baines, began working for Walgreens in 2005 as a pharmacy technician at a Walgreens store in Milwaukee, Wisconsin and worked there until approximately October 2008 when she received authorization to transfer to a Walgreens location in Atlanta, Georgia.  However, when she arrived in Atlanta, there was "no work."  Baines filed her 1st EEOC charge against Walgreens in July 2007 while with the Milwaukee store.  Members of management met with Baines in response to her EEOC charge, including district manager, Michelle Birch, who asked Baines what she wanted.  Baines stated that she wanted to be promoted to "senior technician" and transferred to a different story.  When she received neither, she filed her second EEOC charge against Walgreens in October 2007 alleging retaliation.

Later, Baines received approval to transfer to a Walgreens in Atlanta and when she found no work, she filed her third EEOC charge in January 2009 with the EEOC in Georgia alleging retaliation.  Baines later moved back to Wisconsin.  In July 2014 Baines applied for a pharmacy technician position with Walgreens in Wauwatosa, Wisconsin as they were looking for pharmacy technicians and the pharmacy supervisor there, Hannah Ruehs, managed the hiring process.  Baines called and discussed the position with Ruehs by telephone and was told that her application would be reviewed and she would be contacted if she had done well on her assessment test.  On July 25th, Ruehs called and told Baines she had selected Lisa Martin for the position.  Martin had less experience than Baines at the time and, in fact, Baines was the only applicant who had prior experience working as a Walgreens pharmacy technician.

Martin testified at her deposition that Ruehs told her in February 2015 that she did not hire Baines because Birch intervened.  Martin testified that Ruehs said that she had wanted to hire someone named "Regina" and that she "really liked" Regina and she "really wanted to hire her."  However, Ruehs told Martin:  "You didn't hear it from me, but I was told from higher up, Ms. Birch, that I could not hire her."  Ruehs said she did not know why Birch forbade her from hiring Baines.

After Walgreens chose not to hire Baines in July 2014, she filed her fourth EEOC charge against Walgreens alleging retaliation, which provided the basis for the facts in this appeal.


To survive summary judgment on a retaliation claim, a plaintiff has to offer evidence of "(1) a statutorily protected activity; (2) a materially adverse action taken by the employer; and (3) a causal connection between the two."  Filing an EEOC charge is a "statutorily protected activity" and failing to hire is a "materially adverse action."  The issue in this case was whether there was a "causal connection between the two":  Baines' EEOC charges and Walgreens' decision not to rehire her.  A plaintiff demonstrates a causal connection by showing that the defendant "would not have taken the adverse ... action but for [her[ protected activity."

The district court below, in granting summary judgment in favor of Walgreens, held that Baines failed to establish a causal connection.  The district court did assumed Martin's testimony about what Ruehs told her was admissible, but explained:  "Martin did not testify that Ruehs told her that Birch did not hire Baines because of the prior EEOC complaints.  Martin's testimony, thus, falls short of a showing that Birch was aware of the 2007 and/or 2009 EEOC charges in 2014 and did not hire Baines because of discriminatory animus."  The district court also noted the number of years that had passed between Baines' EEOC charges and the alleged retaliation in 2014, and that this time gap weakened the causal inference that Walgreens failed to rehire Baines because of her prior charges.

In reversing the district court's decision, the 7th Circuit emphasized the other tremendous pieces of circumstantial evidence Baines had showing a causal connection (also noting that rarely do plaintiffs have direct evidence of retaliation).  In addition to Martin's testimony about what Ruehs told her about being commanded  not to hire Baines (the Court discussed at length how a command is not a statement which makes it not hearsay and, thus, admissible), Baines also had evidence that her application and interview scores were mysteriously missing and that Walgreens offered no explanation for how or why, Ruehs hired someone with less experience than Baines, Ruehs initially denied even having interviewed Baines, and the unusual behavior of Birch in the hiring process of the pharmacy tech position when evidence showed Birch never played a role in the hiring of this position.  Because Birch played a role in Baines' first EEOC charge and then intervened in her rehire, which was highly unusual, this provided further substantial circumstantial evidence of a causal connection.

With respect to the fairly significant time gap between Baines' EEOC charge filings and Walgreens' failure to rehire her, the Court noted that Baines was not using this piece of circumstantial evidence as the sole piece of evidence to show a causal connection--that it was merely one piece of circumstantial evidence.

Key take away:  Just because there is a significant gap between statutorily protected activity and an adverse employment action does not doom a case when there is present other significant pieces of circumstantial evidence.  The 7th Circuit appreciates the fact plaintiffs almost always have to prove retaliation cases circumstantially and this case shows how evidence needs to be taken as a whole, with one piece of circumstantial evidence (temporal proximity) not capable of dooming an entire case.

Wednesday, July 26, 2017

Wisconsin Supreme Court Grants Cert in Unemployment Absenteeism Case

My colleague, Victor Forberger of the Wisconsin Unemployment blawg, recently brought to the fore that the Wisconsin Supreme Court has granted cert in a case involving absenteeism under the newer change to the unemployment insurance statute that created stricter standards for employees seeking benefits when they are terminated for absenteeism.  As explained by Attorney Forberger:

At issue in Beres is one of the new misconduct provisions that became effective in January 2014:
(e) Absenteeism by an employee on more than 2 occasions within the 120 day period before the date of the employee's termination, unless otherwise specified by his or her employer in an employment manual of which the employee has acknowledged receipt with his or her signature, or excessive tardiness by an employee in violation of a policy of the employer that has been communicated to the employee, if the employee does not provide to his or her employer both notice and one or more valid reasons for the absenteeism or tardiness.

Wis. Stat. § 108.04(5)(e). In this provision, the number of absences and tardies was greatly reduced from what was originally in Wis. Stat. § 108.04(5g).   Prior to these changes, this absenteeism and tardiness provision in Wis. Stat. § 108.04(5g) allowed for disqualification for 6 or more tardies or 5 or more absences in a 12-month period and had detailed requirements about about employer notice to employees of this disqualification possibility and how employees had to notify the employer of an absence of tardy. During its meetings, the Advisory Council, after rejecting the Department's proposal, had agreed to amend sub-section (5g) in the following manner:
(5g) DISCHARGE FOR FAILURE TO NOTIFY EMPLOYER OF ABSENTEEISM OR TARDINESS. (a) If an employee is discharged for failing to notify his or her employer of absenteeism or tardiness that becomes excessive, and the employer has complied with the requirements of par. (d) with respect to that employee, the employee is ineligible to receive benefits until 6 weeks have elapsed since the end of the week in which the discharge occurs and the employee earns wages after the week in which the discharge occurs equal to at least 6 times the employee's weekly benefit rate under s. 108.05 (1) in employment or other work covered by the unemployment insurance law of any state or the federal government. For purposes of requalification, the employee's weekly benefit rate shall be the rate that would have been paid had the discharge not occurred.
(b) For purposes of this subsection, tardiness becomes excessive if an employee is late for 6 4 or more scheduled workdays in the 12 month 120 day period preceding the date of the discharge without providing adequate notice to his or her employer.
(c) For purposes of this subsection, absenteeism becomes excessive if an employee is absent for 5 2 or more scheduled workdays in the 12âˆ'month 120 day period preceding the date of the discharge without providing adequate notice to his or her employer.
(d) 1. The requalifying requirements under par. (a) apply only if the employer has a written policy on notification of tardiness or absences that:
a. Defines what constitutes a single occurrence of tardiness or absenteeism;
b. Describes the process for providing adequate notice of tardiness or absence, and, regarding tardiness, which gives the employee a reasonable time for providing notice and which at least allows the employee the opportunity to provide notice as soon as practically possible; and
c. Notifies the employee that failure to provide adequate notice of an absence or tardiness may lead to discharge.
2. The employer shall provide a copy of the written policy under subd. 1. to each employee and shall have written evidence that the employee received a copy of that policy.
3. The employer must have given the employee at least one warning concerning the employee's violation of the employer's written policy under subd. 1. within the 12 month period preceding the date of the discharge.
4. The employer must apply the written policy under subd. 1. uniformly to all employees of the employer.
But, the Department bill that set forth what the Advisory Council had proposed, see 2013 SB200, did NOT contain these provisions. When the first public hearing for 2013 SB200 was under way on 29 May 2013, the Joint Finance Committee introduced an amendment to the then budget bill, 2013 AB40, which included the absenteeism language now at issue in Beres. See "JFC UI Amendments" (29 May 2017) (available at
Into this messy legislative history arrives a relatively simple fact pattern. The employer nursing home in Beres had an attendance policy which indicated that employees would be terminated for a single absence during their 90-day probationary period if they were a no call, no show. The claimant in this case, Ms. Beres, was extremely ill and did not report to work or call in her absence. The employer called her home, and her spouse indicated that she was too sick to work. The employer then terminated her employment, and the Department denied her claim for unemployment benefits as misconduct because of absenteeism.
The Commission over-turned that disqualification because the claimant was not responsible for her illness and a single illness did not meet the threshold disqualification of more than two absences within 120 days.
The Department, however, appealed the case to circuit court and argued that employers have the option under this disqualification to set their own attendance standard for what will constitute misconduct pursuant to this statutory phrase: "unless otherwise specified by his or her employer in an employment manual of which the employee has acknowledged receipt with his or her signature." For the Department, the employer's absenteeism policy — a single no call, no show absence during the probationary period — was the attendance requirement "specified" by the employer and so constituted misconduct under this provision. The circuit court agreed with the Department, and the Commission appealed.
The appeals court agreed with the Commission 2-1. The Department has now taken this case to the Wisconsin Supreme Court. In granting review, the court added the following additional question to be examined:
Does the practice of deferring to agency interpretations of statutes comport with Article VII, Section 2 of the Wisconsin Constitution, which vests the judicial power in the unified court system?
Recall that in Operton, three justices proclaimed that agency deference unconstitutionally impinges on the power of elected judges to decide what the law is on their own initiative.
A decision in this case raises two major problems. First, the court could gut agency deference. As a result, any and all decision by administrative agencies will be litigated under de novo review in circuit court and again at the appeals court. Certainly, there will be more billable hours. But, there will also be much greater expenses.
And, I doubt the outcome will be all that friendly to workers. Take the Wisconsin Bell/Carlson case, the disability discrimination case. That case is completely upended if de novo review is always applied by every court because judicial independence mandates such independence.
Second, the absenteeism provision will allow an employer to have a policy of a single absence being grounds for discharge. Any discharges that then occur under this policy will count as misconduct for UI purposes. Keep in mind that there is nothing here that requires this policy to be uniformly applied (the point will probably be litigated but I suspect that any uniformity requirement will be tossed). This disqualification would be a disaster for unrepresented workers. Represented workers will also be confronted with a significant change in the legislative landscape and new bargaining demands to change absenteeism policies to match what DWD will allow as misconduct.
Note that this UI disqualification now applies to WC benefit cases as well. How many times do folks on partial WC disability miss work?
Be sure to monitor this one as this will create substantial burdens and obstacles for employees seeking unemployment benefits when they are terminated for attendance.

Updated: Worker's Guide to Unemployment Insurance

The wonderful people at the Unemployment Appeals Clinic at the University of Wisconsin Law School (my alma mater) have updated their "Worker's Guide to Unemployment Insurance" to update several changes in the law and case law surrounding unemployment insurance in Wisconsin.  Be sure to consult this booklet if you are someone going through the appeals process or at least skim it if you handle unemployment insurance issues!  The guide is available here.