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.

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