Time Was Not on Walgreens’ Side: Wisconsin Employee’s Retaliation Claim Revived

Regina Baines worked as a pharmacy technician in a Milwaukee Walgreens store. In 2007, she filed a charge of race discrimination with the Equal Employment Opportunity Commission (EEOC). Later that year, she filed a second EEOC charge alleging retaliation. In January 2009, she filed a third charge alleging that she had been retaliated against for filing the previous charges.

In 2014, Baines, who had not worked at Walgreens since 2008, applied for another position with the company but was not hired. She then filed a lawsuit claiming she was not hired because of the EEOC charges she had filed five to seven years earlier. The trial court granted Walgreens’ motion to dismiss the lawsuit.

A three-judge panel of the U.S. 7th Circuit Court of Appeals (whose rulings apply to all Wisconsin employers) unanimously agreed that Baines should be given an opportunity to tell her story to a jury. Despite the lengthy gap between her previous complaints and the hiring decision, the appellate court focused on circumstantial evidence that raised suspicions about Walgreens’ motivations. The type of evidence the appellate court focused on provides good lessons for employers.

No Satisfaction From Walgreens, Trial Court

In July 2007, Baines filed her first EEOC charge, which alleged she had been discriminated against because of her race. She met with several Walgreens supervisors to discuss the charge. Michelle Birch, a district manager responsible for 20 to 30 stores, including the store where Baines worked, was one of the managers at the meeting. Baines characterized the meeting as “tense” and claimed a supervisor stated the complaint was “bigger than” her and that she “messed up” in filing the charge. During the meeting, Baines requested a promotion and transfer to resolve the charge. She received neither and filed a second EEOC charge alleging retaliation in October 2007.

In October 2008, Baines received authorization to transfer to a Walgreens store in Atlanta, Georgia. However, after leaving her job in Milwaukee and arriving in Atlanta, she learned there was no work for her. She was shattered. In January 2009, she filed a third EEOC charge alleging retaliation for filing the previous charges.

Fast-forward 5½ years later. In July 2014, Baines applied for a pharmacy technician position at a Walgreens store in Wauwatosa, Wisconsin. Walgreens did not hire her for the position. She sued, claiming the company’s decision not to hire her was in retaliation for the EEOC charges she had filed five to seven years earlier.

The trial court agreed with Walgreens’ argument that Baines did not present enough evidence for the case to go to a jury, particularly given the lengthy gap between her protected conduct (the complaints five to seven years earlier) and the adverse hiring decision. She claimed there was adequate circumstantial evidence to question Walgreens’ motivation, and she appealed.

Baines Meets Her Beast of Burden for Trial

The 7th Circuit agreed with Baines, reversed the decision of the trial court, and sent the case back to the trial court for a trial on her retaliatory-refusal-to-hire claim. Employers can learn much from the type of circumstantial evidence that was important to the court of appeals.

First, it is important to adhere to company policies and procedures regarding hiring decisions. Walgreens had a specific process for handling interviews that included notes and scoring. The court found that Walgreens did not enter any interview notes or scores for Baines into its electronic systems under the policy. In fact, its systems did not even show that she had been interviewed for the pharmacy technician position. Additionally, her application materials were missing, and Walgreens had no explanation for the missing items.

Second, Lisa Martin, who was hired for the pharmacy technician position at the Wauwatosa store shortly after Baines was informed that she would not be hired, testified about a conversation she had with Hannah Ruehs, the store’s pharmacy manager. Ruehs, who generally was in charge of hiring decisions, allegedly told Martin, who happened to be Baines’ cousin, that she wanted to hire someone named Regina and that Birch prevented the hire. Walgreens denied that the conversation occurred. However, for purposes of a dismissal motion, the court had to believe Baines’ version of events. The appellate court concluded that it would be highly unusual for Birch to intervene in the hiring process for a pharmacy technician position at an individual store.

Third, the appellate court deemed important the comments allegedly made during the 2007 meeting in which the parties tried to resolve Baines’ original EEOC charge. The “fact” that the meeting was tense and was attended by Birch and the statement that the charge was “bigger than just Baines” allowed the appellate court to infer that the filing of the charge was a big deal.

Fourth, the appellate court noted that in hiring Martin, Walgreens selected someone who was less qualified than Baines. It is unclear from the decision whether Martin was hired for the exact same position Baines was not hired for.

Finally, the appellate court observed that it was possible that Walgreens had not been honest with the EEOC’s investigator during an investigatory interview. During the interview, Ruehs stated that she did not know Baines and that she had not interviewed her. However, it turned out that Baines had retained a voice mail in which Ruehs specifically stated that she had interviewed her.

The appellate court also discussed the lengthy period between the EEOC charges in 2007 and 2009 and the hiring decision in 2014. The court noted that a gap of as little as four months between protected conduct and an adverse employment action may be adequate to destroy any causal connection between the two events. In this case, the appellate court found that the lengthy gap was less significant for two reasons. First, there was circumstantial evidence suggesting a retaliatory motive. Second, the hiring decision was supposedly the first opportunity Walgreens had to retaliate against Baines because she had not been employed by the company since late 2008. Baines v. Walgreen Co., No. 16-3335 (7th Cir., July 12, 2017).

Coming to Your Emotional Rescue

Retaliation claims are common. They are often combined with underlying discrimination or harassment claims (e.g., “you fired me because I raised concerns that I was not promoted because of my race”). Consider taking the following steps to avoid retaliation claims:

• If an employee alleges that she has been discriminated against because of her membership in a class protected under federal, state, or local equal employment opportunity laws, make clear to everyone involved that retaliation is prohibited and that there will be employment consequences for retaliatory conduct, regardless of the results of the investigation into the underlying complaint.
• Make certain that you follow internal written policies and established procedures on making employment decisions meticulously, especially if an employee has previously raised discrimination or retaliation concerns.
• Always examine how similarly situated employees were treated in the past, and do not treat an employee who has raised discrimination or harassment concerns less favorably than similarly situated employees. For example, if you gave a written warning to an employee who was insubordinate with a supervisor, do not discharge a worker who raised discrimination concerns and was also insubordinate.
• Train your supervisory and managerial employees to avoid making comments during investigations that may come back to harm the company. A supervisor may simply wish to be supportive of an employee, but years later, the context of the supportive comment may be forgotten if the matter ends up in court.
• Be well prepared for interviews with agency investigators. The fact that Ruehs told the EEOC investigator that she had never interviewed Baines when there was a voice mail contradicting that statement turned out to be problematic for the employer. When a federal, state, or local agency wishes to interview your supervisory or managerial employees, it is a good idea to have your legal counsel involved.

This article, slightly modified to note recent updates, was featured in the August 2017 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.