A Candidate Named Sue (or Maybe Regina)? Tread Carefully With the Litigious Job Applicant.When is it safe to take action against an employee (or a former employee) who filed an EEOC charge against you? As the 7th Circuit just found in Baines v. Walgreen Co., you can never –REPEAT, NEVER – take action because an employee filed a claim. In Baines, the court ruled that even though the protected activity was five years before, the plaintiff presented sufficient evidence that the company’s refusal to hire her could have been retaliatory and overturned the lower court’s grant of summary judgment.

Baines’ Complaints From 2007 and 2009

There are a lot of facts in this one, so stay with me.

In 2005, Regina Baines began working for Walgreens as a pharmacy tech in Milwaukee. In 2007, she filed an EEOC charge alleging discrimination based on her African American race. After she filed the charge, she claims that several managers, including Michelle Birch, met with her and said she had “messed up.” Birch allegedly asked what she wanted, and Baines said a promotion and a store transfer. She got neither and filed her second EEOC charge, alleging retaliation.

A year later, Baines requested and received a transfer to Georgia. So far, so good. When she arrived in Georgia, however, Baines found there was no work for her and filed her third charge – again alleging retaliation. The court record did not indicate what happened to these charges.

Jump to 2014

In 2014, Baines applied for a pharmacy tech job with Walgreens back in Wisconsin. The local store manager, Hannah Ruehs, interviewed her but then left her a voicemail that she had selected someone else. In a curious twist of fate, several days after the message, Ruehs interviewed and hired another applicant, Lisa Martin – who just happened to be Baines’ cousin – who had less pharmacy experience than Baines.

After Cousin Martin and Ruehs became BFFs, Ruehs told Martin that she had really wanted to hire an applicant named “Regina,” allegedly confiding that “You didn’t hear this from me, but I was told from higher up, Ms. Birch, that I could not hire her. Guess what? Baines filed a fourth EEOC charge alleging retaliation.

The EEOC Investigation and Baines’ Lawsuit

Initially, Ruehs told the EEOC she didn’t know Baines and had never interviewed her. After listening to the voicemail message (that Baines had cleverly preserved), Ruehs admitted she interviewed Baines. In another odd twist, Walgreens could not find any interview records for Baines’ interview (and apparently had no explanation). Baines’ name was not even on the list of candidates. The EEOC issued a right to sue letter, and Baines filed a lawsuit alleging retaliatory failure to hire.

In discovery, Birch denied that she told Ruehs not to hire Baines. For her part, Ruehs testified that she didn’t hire Baines because a former coworker gave her a negative review. Baines testified that the coworker told her he didn’t want to work around her because of her EEOC charges.

The district court granted Walgreens’ motion for summary judgment, finding that Baines did not establish a causal connection between her prior complaints and the failure to hire. It noted that Cousin Martin testified that Ruehs said Birch said she could not hire her – not that she could not hire her because of her prior complaints. The district court said the five-year gap between the last EEOC charge and the failure to rehire was just too long. The 7th Circuit disagreed.

Circumstantial Evidence of a Causal Connection

The 7th Circuit found that Baines presented “substantial evidence that can support a reasonable inference of retaliatory intent,” including the “mysteriously missing” interview records, Ruehs’ initial denial of interviewing Baines, and her apparent lie to Baines that she had hired someone else – because she interviewed and hired Martin several days later. The court also said that Ruehs hiring Martin, who had less experience than Baines, didn’t look so good and neither did Martin’s testimony about what Ruehs said that Birch said about not hiring Baines. The court also threw in that if Birch got involved in Ruehs’ hiring decisions, it significantly deviated from Walgreens’ normal practices – yet another indication that maybe Birch was retaliating against Baines.

The court noted that on summary judgment, it must accept Martin’s and Baines’ testimony as true and that testimony could not be squared with Birch’s and Ruehs’ versions of events – so there was a classic dispute of fact precluding summary judgment.

Does That Mean You Have to Rehire a Bad Employee Just Because She Filed a Charge?

No. When an employee files a charge or a lawsuit or even just an internal complaint, you must take steps to be sure that you don’t get a retaliation charge, even after that employee leaves. What are those steps?

  • People involved in the first complaint need to stay out of subsequent decisions. Again, we don’t know if Birch actually told Ruehs anything. However, if Birch only said “I wouldn’t hire her” or “that would be a big mistake” or “she had some troubles before,” that could provide a causal connection between the prior complaints and the new decision.
  • Ideally, you want people to make the subsequent decision who don’t know about the prior complaints. In this case, if Ruehs (who apparently knew nothing about the earlier complaints) had simply not hired Baines, we might not be reading this case. It was only Birch’s alleged involvement that raised a potential causal connection.
  • If you cannot get around the connection, think about adding independent decision-makers as a check. For example, if Ruehs knew about the charges, she could enlist two other interviewers so they can provide untainted assessments of Baines as a candidate. Keep in mind that this only works if the records are clear that the two independent interviewers didn’t like Baines based on her interview – not on what they were told by Ruehs.
  • Keep information about complaints to a small group. The only people who need to know about a charge are the people who need to know. The more people who know, the harder it is to have independent decision-makers.
  • Don’t talk out of school. We don’t know if Ruehs told Martin anything about wanting to hire Baines or whether Birch even got involved. Let’s just take it as a cautionary tale – don’t talk to employees about “the boss wouldn’t let me do it” or anything about an employment decision that doesn’t involve them. It is unprofessional and can get you sued.