Regina Baines v. Walgreen Company , 863 F.3d 656 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3335
REGINA GWYNN BAINES,
Plaintiff-Appellant,
v.
WALGREEN CO.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 15-CV-258 — Nancy Joseph, Magistrate Judge.
____________________
ARGUED MARCH 28, 2017 — DECIDED JULY 12, 2017
____________________
Before FLAUM, KANNE, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. This appeal provides an example
of circumstantial evidence that allows a reasonable inference
that an employer acted with unlawful intent. Plaintiff Regina
Baines alleges that when her former employer Walgreens re-
fused to rehire her in 2014, it intentionally retaliated against
her for complaining about race discrimination several years
earlier. Baines sued Walgreens for retaliation under 42 U.S.C.
§ 1981 and Title VII of the Civil Rights Act of 1964. The district
2 No. 16-3335
court granted summary judgment for Walgreens. The court
said it found no evidence linking Baines’ protected activity
(filing EEOC charges) and Walgreens’ adverse employment
actions (failing to rehire her).
We reverse. While Baines did not offer direct evidence of
a causal link, she offered sufficient circumstantial evidence to
satisfy the summary judgment standard. She offered evidence
that the manager who handled her earlier EEOC charges in-
tervened in the 2014 decision not to rehire her, and that she
did so in ways that deviated significantly from Walgreens’
standard hiring procedures. Walgreens offers no explanation
for this unusual behavior. It insists instead on its own version
of events. That approach might work in a trial, but it cannot
sustain summary judgment. Other circumstantial evidence
includes missing records of Baines’ application and her inter-
view scores, a decision to hire instead someone less qualified,
and dishonest answers from Walgreens decision-makers
when asked to explain their decisions. If a jury believes
Baines’ evidence, it could reasonably find that Walgreens un-
lawfully retaliated against her.
I. Factual and Procedural Background
A. Employment and EEOC Charges in 2007–2009
On appeal from a grant of summary judgment, we accept
as true the evidence offered by the non‐moving party and we
draw all reasonable inferences in her favor. Zerante v. DeLuca,
555 F.3d 582, 584 (7th Cir. 2009). In February 2005, Regina
Baines began working as a pharmacy technician at a
Walgreens store in Milwaukee, Wisconsin. She worked there
No. 16-3335 3
until approximately October 2008, when she received author-
ization to transfer to a Walgreens location in Atlanta, Georgia.
When she arrived in Atlanta, however, there was “no work.”
Baines filed her first EEOC charge against Walgreens in
July 2007 when she was working at a Milwaukee store. Baines
is black, and she alleged that Walgreens discriminated against
her because of her race. After she filed the charge, several
Walgreens managers met with her to discuss the matter. The
meeting was tense. Baines testified in her deposition that a
pharmacy supervisor said that “what I had done was bigger
than me, and that I didn’t know what I had done.” The super-
visor said that she had “messed up” and that “this is much
bigger” than Baines realized.
One manager at the meeting was Michelle Birch, the dis-
trict manager responsible for the Milwaukee store where
Baines worked. Birch supervised approximately twenty or
thirty stores for the company, and she generally focused on
retail operations, not pharmacy management. During the
meeting, Birch asked Baines what she wanted. Baines said she
wanted to be promoted to “senior technician” and transferred
to a different store in Milwaukee. Baines received neither, and
in October 2007 she filed a second EEOC charge, this time al-
leging retaliation.
Baines later sought and received approval to transfer to a
Walgreens location in Atlanta, Georgia. When she arrived and
found no work, though, Baines filed her third EEOC charge
in January 2009, this time with the EEOC in Georgia. She al-
leged that Walgreens was retaliating against her because of
her previous EEOC filings. The record does not explain how
any of these EEOC charges were ultimately resolved. Baines
later moved back to Wisconsin.
4 No. 16-3335
B. Failure to Rehire in 2014
In July 2014, Baines applied for a pharmacy technician po-
sition with Walgreens in Wauwatosa, Wisconsin. The Wau-
watosa store was looking for pharmacy technicians, and phar-
macy supervisor Hannah Ruehs managed the hiring process.
Ruehs was generally permitted to hire candidates for these
jobs at her sole discretion.
Baines called and discussed the pharmacy technician
opening with Ruehs by telephone on July 23, 2014. Ruehs said
that she would review Baines’ application and contact her if
she had done sufficiently well on her assessment test. Ruehs
called her back, and Baines interviewed with Ruehs and an-
other Walgreens employee the next day. The day after that,
July 25, Ruehs left Baines a voicemail saying that she had se-
lected someone else for the position.
It is not clear whether Ruehs had more than one pharmacy
technician position to fill, but several days after telling Baines
that the position was filled, Ruehs interviewed and hired Lisa
Martin as a pharmacy technician. Martin had less experience
than Baines at that time—in fact, Baines was the only appli-
cant who had prior experience working as a Walgreens phar-
macy technician. Also, as it turns out, Martin is Baines’ cousin.
After Martin was hired, she worked at Walgreens for approx-
imately thirteen months under the supervision of Ruehs.
Martin testified in her deposition that Ruehs told her in
February 2015 that she did not hire Baines because district
manager Michelle Birch had intervened. Martin testified that
Ruehs said she had wanted to hire someone named “Regina”
around the time that Martin was hired. Plaintiff Baines was
the only person named Regina who applied to the Wauwatosa
No. 16-3335 5
Walgreens for a pharmacy technician position at that time.
According to Martin, Ruehs said that she “really liked” Re-
gina and she “really wanted to hire her.” However, Ruehs told
Martin: “You didn’t hear this 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.
C. Procedural History
After Walgreens chose not to rehire Baines in July 2014,
she filed a fourth EEOC charge against the company. She al-
leged that Walgreens retaliated against her because of her pre-
vious EEOC filings. During the EEOC investigation, Ruehs
told the investigator that she did not know Regina Baines and
that she had not interviewed her. After she was confronted
with a recording of the voicemail she had left Baines on July
25, 2014, however, Ruehs acknowledged that she had inter-
viewed Baines.
During the investigation, the EEOC asked Walgreens for
its records from the hiring process for the pharmacy techni-
cian position. Walgreens used hiring software that generated
five or six structured questions to ask interviewees. After the
interview, the interviewers gave the interviewee a score and
then were required to enter the scores in the computer. Ruehs
testified that after an interview, she and another manager
would enter the scores into the computer right away and she
would then discard her notes. Walgreens does not dispute
that Ruehs interviewed Baines and took notes during the in-
terview. When Walgreens provided its interview records,
however, all information about Baines was missing. Her name
was not even on the list of interviewees, and her interview
scores were gone. Walgreens has not explained why or how
Baines’ interview information came to be missing.
6 No. 16-3335
The EEOC eventually issued a right to sue letter, and
Baines brought this federal suit alleging that Walgreens retal-
iated against her in violation of 42 U.S.C. § 1981 and Title VII
of the Civil Rights Act of 1964. After discovery, Walgreens
moved for summary judgment, and the court granted its mo-
tion. The court held 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 assumed Martin’s tes-
timony about what Ruehs had 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 com-
plaints. 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 court also noted that a number of years had passed be-
tween 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.
II. Analysis
A. Legal Standards
We review de novo the district court’s grant of summary
judgment. Magnus v. St. Mark United Methodist Church, 688
F.3d 331, 336 (7th Cir. 2012). We construe all facts and draw all
reasonable inferences in a light most favorable to the non-
moving party. Magin v. Monsanto Co., 420 F.3d 679, 686 (7th
Cir. 2005). Summary judgment is proper if the “materials in
the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations (in-
No. 16-3335 7
cluding those made for purposes of the motion only), admis-
sions, interrogatory answers, or other materials” show that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c); Magin, 420 F.3d at 686.
Baines claims that Walgreens retaliated against her in vio-
lation of § 1981 and Title VII when it failed to rehire her in
2014. We generally use the same standard to review discrimi-
nation and retaliation claims under § 1981 and Title VII, and
we do so here. See Humphries v. CBOCS West, Inc., 474 F.3d
387, 403–04 (7th Cir. 2007) (collecting cases), aff’d, 553 U.S. 442(2008) (recognizing retaliation claims under § 1981). 1 To sur-
vive 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.” Id. Filing an EEOC
charge is a protected activity, and failing to hire is a materially
adverse employment action. The issue is whether there was a
causal connection between 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 … ac-
tion but for [her] protected activity.” Greengrass v. International
Monetary Systems Ltd., 776 F.3d 481, 486 (7th Cir. 2015), quot-
ing King v. Preferred Technical Group, 166 F.3d 887, 892 (7th Cir.
1999). Direct evidence, such as an admission by the employer
1 One important difference between the two statutes is that claims under
§ 1981 are not subject to the damage caps in 42 U.S.C. § 1981a that apply
to Title VII claims. See § 1981a(b)(4); see also Kim v. Nash Finch Co., 123
F.3d 1046, 1062 (8th Cir. 1997) (collecting cases).
8 No. 16-3335
of unlawful animus, is sufficient but rare. A plaintiff may
“also supply the causal link through circumstantial evidence
from which a jury may infer intentional discrimination.” Id.,citing Stephens v. Erickson, 569 F.3d 779, 787 (7th Cir. 2009). “If
[a] plaintiff can assemble from various scraps of circumstan-
tial evidence enough to allow the trier of fact to conclude that
it is more likely than not that discrimination lay behind the
adverse action, then summary judgment for the defendant is
not appropriate.” Morgan v. SVT, LLC, 724 F.3d 990, 996 (7th
Cir. 2013). The district court strayed off course here when it
said Martin’s testimony was insufficient to show retaliatory
intent because she did not testify that Ruehs said Baines was
not rehired because of her earlier EEOC filings. The absence
of such a direct admission of unlawful intent does not mean
the plaintiff cannot meet her burden with circumstantial evi-
dence.
B. Admissibility of Martin’s Testimony
Before addressing the merits of Baines’ claim, we first ad-
dress Walgreens’ argument that the critical portion of Martin’s
testimony is inadmissible hearsay. Evidence offered at sum-
mary judgment must be admissible to the same extent as at
trial, at least if the opposing party objects, except that testi-
mony can be presented in the form of affidavits or transcripts
of sworn testimony rather than in person. See Fed. R. Civ. P.
56(c)(2); Eisenstadt v. Centel Corp., 113 F.3d 738, 742–43 (7th Cir.
1997). The critical portion of Martin’s testimony was that
Ruehs told her in 2015 that she had wanted to hire “Regina”
(Baines) in 2014 but that district manager Birch had told
Ruehs she could not hire Baines.
While Walgreens agrees that Martin may testify about
what Ruehs told her about Ruehs’ own thoughts, it argues
No. 16-3335 9
that Martin may not testify about what Birch told Ruehs. Ac-
cording to Walgreens, this is a “classic example of hearsay
within hearsay,” so that the innermost layer of hearsay
(Birch’s statement to Ruehs) is inadmissible. If this were cor-
rect, Martin’s testimony about what Birch said to Ruehs could
not be considered. See Eisenstadt, 113 F.3d at 742.
Walgreens’ analysis is mistaken. There are two layers of
out-of-court communications here. Working from the inner
layer, what Birch said to Ruehs cannot be hearsay because it
was not a “statement” but a command. The outer layer is Mar-
tin’s testimony about what Ruehs told her. That is a statement
offered to prove the truth of the matter asserted, but it is ex-
cluded from the definition of hearsay and so is admissible un-
der Federal Rule of Evidence 801(d)(2)(D) as an admission of
a party’s agent within the scope of the agency. To explain:
Rule 801(c) defines hearsay as “a statement that: (1) the de-
clarant does not make while testifying at the current trial or
hearing; and (2) a party offers in evidence to prove the truth
of the matter asserted in the statement.” (Emphasis added.) A
“statement,” in turn, is a person’s “oral assertion, written as-
sertion, or nonverbal conduct, if the person intended it as an
assertion.” Fed. R. Evid. 801(a). In other words, statements as-
sert propositions that may be true or false. They are distinct
from other forms of communication, such as questions or
commands. “[A] command is not hearsay because it is not an
assertion of fact.” United States v. White, 639 F.3d 331, 337 (7th
Cir. 2011), citing United States v. Murphy, 193 F.3d 1, 5 (1st Cir.
1999); see also United States v. Love, 706 F.3d 832, 840 (7th Cir.
2013) (“questions are not ‘statements’ and therefore are not
hearsay”) (collecting cases).
10 No. 16-3335
It is possible in certain contexts for a question or command
to function effectively as an assertion, such as with a code
phrase. See, e.g., United States v. Rodriguez-Lopez, 565 F.3d 312,
314 (6th Cir. 2009) (“Indeed, if the statements were questions
or commands, they could not—absent some indication that
the statements were actually code for something else—be of-
fered for their truth because they would not be assertive
speech at all.”); see also George E. Dix et al., McCormick on
Evidence, § 246 (Kenneth S. Broun et al. eds., 7th ed. June 2016
Update) (noting that courts sometimes categorically exclude
from the hearsay definition questions and commands but that
“[m]ore appropriately nuanced opinions find such statements
hearsay despite their form if the circumstances and/or word-
ing demonstrate an intent to assert”).
Here, Martin testified that Birch commanded Ruehs not to
hire Baines. According to Martin, Ruehs said, “You didn’t
hear this from me, but I was told from higher up, Ms. Birch,
that I could not hire her.” (Emphasis added.) What Birch report-
edly said to Ruehs was not a statement because it was not an
assertion of fact. It was a command: you may not hire Regina
Baines. There is no evidence that the command was intended
to communicate indirectly an assertion, such as with a code.
Birch’s command to Ruehs was not hearsay.
Next, as Walgreens acknowledges, Martin may testify
about what Ruehs said to her—that she wanted to hire Baines
but Birch ordered her not to—because what Ruehs said was a
statement of a party opponent being offered against that
party. Under Rule 801(d)(2)(D), a statement is not hearsay
when “offered against an opposing party and … made by the
party’s agent or employee on a matter within the scope of that
relationship and while it existed.” Ruehs’ statement to Martin
No. 16-3335 11
is a clean fit. We have explained, in reversing summary judg-
ment in another discrimination case against Walgreens, coin-
cidentally, that a “subordinate’s … account of an explanation
of the supervisor’s … understanding regarding the criteria
utilized by management in making decisions on hiring, firing,
compensation, and the like is admissible against the em-
ployer, regardless of whether the declarant has any involve-
ment in the challenged employment action.” Simple v.
Walgreen Co., 511 F.3d 668, 672 (7th Cir. 2007), quoting Marra
v. Philadelphia Housing Authority, 497 F.3d 286, 298 (3d Cir.
2007); see also Makowski v. SmithAmundsen LLC, 662 F.3d 818,
823 (7th Cir. 2011) (reversing summary judgment based on de-
fendant’s agent’s out-of-court statements about reasons for fir-
ing plaintiff). In sum, Birch’s command to Ruehs is not hear-
say, and Ruehs’ statement to Martin is an admission by the
agent of a party opponent. The critical portions of Martin’s
testimony are admissible. Weighing their credibility will be a
question for the jury.
C. Evidence of a Causal Connection
With Martin’s testimony about Ruehs’ statement available
to her, Baines presented substantial evidence that can support
a reasonable inference of retaliatory intent. There are several
indications that something was amiss with Walgreens’ deci-
sion not to hire Baines: As noted, Baines’ application and in-
terview scores are mysteriously missing. Walgreens offers no
explanation for how or why. Ruehs hired someone with less
experience than Baines. When first asked by an EEOC inves-
tigator, Ruehs initially denied even having interviewed
Baines. Ruehs also may have lied when she left Baines a
voicemail saying that she had selected someone else for the
pharmacy technician position and then interviewed and hired
12 No. 16-3335
Martin for a pharmacy technician position only days later.
Most important, Martin testified that Ruehs told her that dis-
trict manager Birch intervened to stop her from hiring Baines.
Martin’s testimony is particularly important because it
provides a link between Baines’ earlier EEOC filings and
Walgreens’ 2014 decision not to rehire her. Birch was person-
ally involved in handling Baines’ earlier EEOC charges. She
attended the tense meeting where Baines was told that she
had “messed up” by filing the charges. The evidence of her
unusual intervention to stop Ruehs from hiring Baines as a
pharmacy technician (in just one of the twenty or thirty stores
that Birch oversaw) supports a reasonable inference that
Baines’ earlier protected activity caused Walgreens’ 2014 de-
cision not to rehire her. Birch and Ruehs both deny Martin’s
account, of course, but on summary judgment, Walgreens and
we must accept it as true. This evidence, combined with other
circumstantial evidence, creates a genuine dispute of material
fact.
Since we take Martin’s testimony as true, we accept her ac-
count that Birch stopped Ruehs from hiring Baines.
Walgreens argues that even if Birch did intervene, Martin tes-
tified that Ruehs said she did not know why Birch forbade her
from hiring Baines. Thus, Walgreens argues, we do not know
why Birch intervened, and it could have been for a lawful rea-
son. That is possible, but that approach flips the summary
judgment standard on its head and seems to insist mistakenly
that direct evidence of retaliatory intent is required. At the
summary judgment stage, we must draw all reasonable infer-
ences in favor of Baines as the non-moving party. Magin, 420
F.3d at 686.
No. 16-3335 13
Walgreens’ argument also fails to take account of just how
much Birch’s (presumed) intervention deviated from
Walgreens’ normal hiring practice. An employer’s unusual
deviation from standard procedures can serve as circumstan-
tial evidence of discrimination. See, e.g., Coleman v. Donahoe,
667 F.3d 835, 858 (7th Cir. 2012) (explaining that selective en-
forcement of company policy can establish pretext); Gordon v.
United Airlines, Inc., 246 F.3d 878, 891–92 (7th Cir. 2001) (same);
see also United States ex rel. Hamrick v. GlaxoSmithKline LLC,
814 F.3d 10, 22 (7th Cir. 2016) (“[D]eviations from standard
procedures can give rise to an inference of pretext.”) (quota-
tions omitted). Here, Birch’s intervention was highly unusual
given her position in the corporate hierarchy. As a district
manager Birch oversaw approximately twenty to thirty
stores. She normally hired managers, and the managers
would hire other employees such as pharmacy technicians.
Moreover, Birch’s primary responsibility was retail opera-
tions, not pharmacy management. This account is also con-
sistent with Ruehs’ testimony that she generally hired phar-
macy technicians without consulting other managers.
Why, then, would Birch have deviated from the normal
practice to micromanage the decision whether to hire one par-
ticular pharmacy technician in one of the twenty to thirty
stores that she managed? Walgreens offers no explanation. In-
stead, Walgreens insists on its own version of the facts. It ar-
gues that Birch did not intervene at all, and that Ruehs de-
cided not to hire Baines because one of Baines’ former co-
workers gave her a negative review. 2 That may or may not be
2 In addition, Walgreens incorrectly argues that it is undisputed that
Baines’ former co-worker had no knowledge of her EEOC charges. How-
ever, Baines set forth evidence to dispute this claim. In her deposition,
14 No. 16-3335
true, but Walgreens’ argument about the disputed facts can-
not support summary judgment in its favor. The argument
based on these conflicting accounts of the facts shows that
there is a genuine dispute of material fact that cannot be de-
cided on summary judgment.
Martin’s testimony is also important for a related reason.
The factual accounts provided by Birch and Ruehs cannot be
squared with Martin’s testimony. On summary judgment, of
course, we must accept Martin’s testimony as true. If it is true,
then it also provides evidence that Walgreens lied. Evidence
that an employer lied about the reasons for an adverse em-
ployment action permits a trier of fact to infer that the deci-
sion was actually motivated by discriminatory animus. Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000)
(“[I]t is permissible for the trier of fact to infer the ultimate fact
of discrimination from the falsity of the employer’s explana-
tion.”) (emphasis in original). The Supreme Court has noted
that an employer’s false explanation is “one form of circum-
stantial evidence that is probative of intentional discrimina-
tion, and it may be quite persuasive.” Id. We have explained:
“Because a fact-finder may infer intentional discrimination
from an employer’s untruthfulness, evidence that calls truth-
fulness into question precludes a summary judgment.”
O’Neal v. City of New Albany, 293 F.3d 998, 1005 (7th Cir. 2002),
quoting Perdomo v. Browner, 67 F.3d 140, 145 (7th Cir. 1995).
Here, Baines provided evidence through Martin’s testimony
Baines testified that her former co-worker “stated that he did not want to
work around me because of the EEOC case that I had filed against the
company; that he did not know how to act around me, he did not know
what to say when he was around me, and he felt uncomfortable around
me.”
No. 16-3335 15
that the explanations provided by Birch and Ruehs were false.
Based on this falsity, a trier of fact could “infer the ultimate
fact of intentional discrimination.” Perdomo, 67 F.3d at 145,
quoting St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511
(1993).
To recap, Martin’s testimony provides a link between
Baines’ protected activity and Walgreens’ adverse employ-
ment action; it provides circumstantial evidence of unlawful
retaliation because of Birch’s unusual departure from ordi-
nary hiring procedures; and it provides evidence that Birch
and Ruehs lied about why Baines was not hired, which would
permit a trier of fact to infer that the real reason was discrim-
ination. All of this evidence is further supported by other cir-
cumstantial evidence, such as the unexplained missing rec-
ords of Baines’ interview and her scores.
Walgreens attempts to undercut all of this evidence by em-
phasizing the length of time that passed between Baines’
EEOC charges in 2007 and 2009 and Walgreens’ failure to re-
hire her in 2014. This delay, Walgreens argues, undermines
any inference of a causal connection between the protected
activity and the alleged retaliation. Walgreens cites a long list
of cases to support its claim, arguing that even a four-month
gap can undermine a causal connection.
It is true that the passage of time can weaken and eventu-
ally break an inference of causation. See, e.g., Lalvani v. Cook
County, 269 F.3d 785, 790 (7th Cir. 2001). But the many cases
that Walgreens cites stand for a different proposition: when
there is a long gap between a protected activity and an ad-
verse employment action, a plaintiff cannot support her
causal connection solely with evidence of “suspicious tim-
16 No. 16-3335
ing.” Additional evidence is necessary. Put simply, “suspi-
cious timing” can provide circumstantial evidence of retalia-
tion, but generally the timing is not suspicious when there is
a long gap between the protected activity and the adverse em-
ployment action. This principle does not mean, however, that
a long gap will undermine a causal connection that is other-
wise supported by sufficient circumstantial evidence, as is the
case here. 3
3 The nine cases cited by Walgreens simply show that when there is a long
gap between a protected activity and an adverse employment action, evi-
dence of “suspicious timing” alone is insufficient to find a causal connec-
tion. See Lalvani, 269 F.3d at 791 (“[T]here will be cases in which a plaintiff
can demonstrate causation despite a substantial time lag. This, however,
is not one of them. Other than pure speculation … [plaintiff] offers noth-
ing to support a causal connection.”) (citation omitted); Boston v. U.S. Steel
Corp., 816 F.3d 455, 464 (7th Cir. 2016) (fifteen-month gap too long to es-
tablish causal connection when plaintiff did “not cite any evidence that
demonstrates that her supervisor knew about the 2010 EEOC charge”);
Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 481 (7th Cir. 2010) (year-long
gap is insufficient evidence of causal connection when plaintiff presented
“no other factual or legal theory linking [protected activity] to her termi-
nation”); Turner v. The Saloon, Ltd., 595 F.3d 679, 687 (7th Cir. 2010) (suspi-
cious timing, without more, is insufficient to establish causal connection
when gap is over half a year); Haywood v. Lucent Tech., Inc., 323 F.3d 524,
532 (7th Cir. 2003) (plaintiff provided “nothing to establish causation”
other than “pure speculation” and one-year gap was “far too long—at
least on this record—to allow a reasonable fact-finder to infer that her ter-
mination was causally related to the filing of her complaint”), overruled
in part on other grounds, Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th
Cir. 2016); Filipovic v. K&R Express Sys., Inc., 176 F.3d 390, 399 (7th Cir.
1999) (no causal connection when gap is four months and plaintiff “has
not presented any direct evidence of causal connection”); Salvato v. Illinois
Dep’t of Human Rights, 155 F.3d 922, 925 (7th Cir. 1998) (six-month gap,
without other evidence, is insufficient evidence to find causal connection);
Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th Cir. 1998) (five-
No. 16-3335 17
We have long noted that the passage of time is not dispos-
itive, and Walgreens concedes this point in its brief. See Hicks
v. Forest Preserve Dist. of Cook County, 677 F.3d 781, 789 (7th Cir.
2012) (“[T]here are no bright-line rules to apply when consid-
ering the temporal proximity of adverse actions to protected
activities because it is a fact-intensive analysis.”). There are
“cases in which a plaintiff can demonstrate causation despite
a substantial time lag.” Lalvani, 269 F.3d at 791; see also Malin
v. Hospira, Inc., 762 F.3d 552, 559 (7th Cir. 2014) (collecting
cases). This is such a case. Baines does not rely on evidence of
“suspicious timing” to support her claim. She relies instead
on testimony from Lisa Martin and a good deal of other cir-
cumstantial evidence. Moreover, unlike many retaliation
cases, here the adverse employment action was failure to re-
hire, not termination or demotion. Because Baines had not
worked at Walgreens since 2008, her 2014 application was
Walgreens’ first opportunity to retaliate for her 2009 EEOC
charge. Under these circumstances, the time gap is under-
standable and presents a question for a jury at trial rather than
a judge on summary judgment.
We REVERSE the grant of summary judgment, and we
REMAND for further proceedings consistent with this opin-
ion.
month gap, without other evidence, is insufficient evidence to find causal
connection); Hughes v. Derwinski, 967 F.2d 1168, 1174 (7th Cir. 1992) (four-
month gap “standing by itself” does not establish a causal connection).