Steven L. Brenneman, Teri F. Thompson, Elizabeth A. Ward, Editors
Ford & Harrison LLP

Vol. 18, No. 7
February 2008

RACE DISCRIMINATION

Walgreens must defend claim by black manager passed over to manage 'white' store

Can an employer be on the hook for discrimination when it offers a promotion to a black employee on repeated occasions but on another occasion declines to consider that employee for a position awarded to a white employee? Could be, according to a recent Seventh Circuit decision.

A normal life

Eric Simple, who is black, was hired by Walgreen Co. in 1995 as a management trainee. Four years later, he was promoted to assistant store manager and worked at various stores in the Bloomington-Normal area.

Beginning in April 1999, Simple made it known to Walgreens that he was interested in being a store manager in the Bloomington-Normal area, which included five Walgreens stores. Both the assistant manager and store manager positions were salaried, with a bonus based on store profitability. District manager Michael Palmer was responsible for selecting store managers in the district, including stores in the Bloomington-Normal area, Peoria, Kankakee, and Pontiac.

Will it play in Peoria?

In November 2001, Palmer offered Simple a store manager position in Kankakee. Simple turned it down because he didn't want to relocate and believed that the store was in a predominantly black, "socioeconomically challenged" area with a high shoplifting rate. A year later, Palmer offered him a store manager position in Peoria, but he rejected that offer too, again saying he wanted to stay in the Bloomington-Normal area.

In October 2003, Palmer selected a white woman, Melissa Jonland, to manage a store in Pontiac, which was one of the five stores in the Bloomington-Normal area. The Pontiac store was in a more affluent "white" area than the Kankakee or Peoria stores and was more profitable. He didn't seek applications for the position or post the opening. Instead, he interviewed only Jonland and offered her the position during the interview.

Shortly after Jonland's appointment, Leanne Turley, the store manager of the Bloomington Walgreens where Simple worked, told Palmer that Jonland was probably a "better fit for the store" and that "Pontiac was possibly not ready to have a black manager." Palmer had consulted with Turley, who had supervised Jonland previously at another store, before offering her the position, and she agreed with his assessment of her performance and the decision to promote her.

In February 2004, Simple filed a race discrimination charge with the Equal Employment Opportunity Commission. Two months later, he turned down another offer to work at a Peoria Walgreens that was scheduled to close and merge with another store in 16 months. In September 2004, he sued Walgreens in federal court in Peoria, just before he turned down another offer to manage a Kankakee store in October and told Palmer that he was unwilling to relocate and was no longer interested in becoming a store manager. The district court dismissed the case before trial, and Simple appealed.

Neighborhood association

On appeal, the Seventh Circuit noted that it was uncertain (though likely) that Palmer knew that Simple would have liked to have been considered for the Pontiac store. In any event, Walgreens was "unable to give a coherent reason" for appointing Jonland, who had two years' less experience, rather than Simple.

Palmer gave inconsistent explanations, saying on one occasion that Jonland "outshines [Simple] in market appeal." On another occasion he stated that she would be better at improving "employee morale." The inconsistency, the court said, was suggestive of pretext ― a lie to mask Walgreens' true discriminatory intent ― and reinforced other evidence of a racial motive.

According to the court, a reasonable jury could find that Simple was passed over to manage the Pontiac store because he is black. "The evidence suggests that Palmer wanted to steer his highly regarded black assistant manager to a store in a predominantly black, low-income neighborhood; when [Simple] balked, Palmer suggested that he might prefer to move to a big city, where there are more Walgreens stores," said the court.

The court found no evidence that Jonland was more qualified to manage the store in Pontiac. She and Simple were both highly qualified, and only experience ― which favored Simple ― seems to have distinguished them. "But she is white, and the store is in a predominantly white neighborhood, while [Simple] is black and so was twice offered a 'black' store ― and when the store manager's job at the 'white' store fell vacant he was ignored," the court said.

Turley's comments to Simple about racism in the Pontiac area and that race played a factor in the decision to promote Jonland were considered admissions by Walgreens that Simple could introduce at trial. While Turley wasn't involved in promoting Jonland to the Pontiac store manager position, she was involved in the process that led up to that action by being consulted about the appointment. Simple v. Walgreen Co., No. 06-3990 (7th Cir., Dec. 26, 2007).

If only it was that Simple

It's possible that the managers at Walgreens believed they were truly looking out for Simple's best interests. According to Simple, Turley told him, "It's not that you're not ready for the Pontiac store; it's that Pontiac is not ready for you because, as a black male, you will surely fail in that store. Sales would suffer. . . . Walgreens is doing you a favor because with Walgreens you only get one shot, one opportunity."

But as the Seventh Circuit made clear, a comment that Simple would not be "happy" among Pontiac's supposed white racists is a "standard euphemism for refusing a job to someone of a different race from the people he would be associating with." And an employer that acts on that basis is engaging in racial segregation, a form of race discrimination. Walgreens must now explain those comments and defend its decision at trial.

Copyright 2008 M. Lee Smith Publishers LLC

ILLINOIS EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Illinois employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.