Many employers have a rehire policy for former employees. However, a recent case may make it more difficult to ban former employees from future employment with your organization.
In February 2005, Regina Baines began working as a pharmacy technician at a Walgreens store in Milwaukee, Wisconsin. She worked there until approximately October 2008.
In 2007 Baines filed an EEOC charge against Walgreens alleging that she experienced racial discrimination. Baines had a meeting afterwards with her managers, including the District Manager, which was problematic. Baines then wanted a promotion to senior technician and transfer to a different Milwaukee location. Neither occurred. She filed another EEOC charge for retaliation.
Baines later sought and received approval to transfer to a Walgreens location in Atlanta, Georgia. When she got there, she was informed that there was no work there. Baines filed a third EEOC charge. She then moved back to Milwaukee.
In July 2014, Baines applied for a pharmacy technician position with Walgreens in Wauwatosa, Wisconsin. The Wauwatosa store was looking for pharmacy technicians, and the pharmacy supervisor managed the hiring process. The supervisor was generally permitted to hire candidates for these jobs at her sole discretion. Baines interviewed for the job, but the next day was told that someone else was hired for the position. It appears that several days later after declining Baines, the supervisor hired Lisa Martin, who was not as qualified as Baines for the job. Martin, as it turns out, is Baines’ cousin.
Baines filed another EEOC charge for retaliation – failure to hire. During the investigation it turns out that the supervisor lied to the EEOC investigator saying she did not interview Baines and did not know her. The EEOC investigator played the tape to the supervisor of her telling Baines the job was filled. Further, when the EEOC asked for Walgreens interview records of Baines, they were missing. The EEOC issued a right to sue letter to Baines who immediately sued Walgreens for retaliation.
At deposition Martin testified that the supervisor told her in February 2015 that she did not hire Baines because the district manager had intervened and told the supervisor not to hire her.
Even with all this evidence, the trial court ruled on a summary judgement motion in favor of Walgreens ruling that Baines failed to establish a causal connection between her protected activity (filing the earlier EEOC charges) and Walgreens’ adverse employment action (failing to rehire her in 2014). The court also noted that a number of years had passed between Baines’ EEOC charges and the alleged retaliation in 2014, and that the time gap weakened the causal inference that Walgreens failed to rehire Baines because of her prior charges.
On appeal, the 7th Circuit Court of Appeals overturned the summary judgement. The Court first stated that to survive summary judgment on her retaliation claim, Baines had 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.” The filing of an EEOC charge is a protected activity, and failing to hire is a materially adverse action.
The question then before the Court was whether Walgreens “would not have taken the adverse … action but for [her] protected activity.” The Court believed so. Although direct evidence could not be adduced, all the other evidence and Martin’s testimony showed a likelihood that Birch knew and that her actions were based on that.
The period of time is not a decisive factor to determine causal connection. As the Court pointed out “there are no bright-line rules to apply when considering the temporal proximity of adverse actions to protected activities because it is a fact-intensive analysis.”
The take-away for employers is to review rehire policies and ensure that managers follow policy. When a protected activity is involved and the reason for non-hire has nothing to do with prior performance, the employer may be exposed for liability, regardless of the manager’s intention.
Source: Baines v. Walgreen Co., No. 16-3335 (7th Circuit Court of Appeals, 7/12/17)