|Jottings By An Employer's Lawyer|
Wednesday, March 24, 2004
Why An Employer's Response to the EEOC Is Important - Hernandez Wins This Round with Raytheon
Further, a finder of fact could reasonably infer that Hernandez's history of addiction, not an oral policy, actually motivated Bockmiller's decision not to re-hire him. In Raytheon's written explanation to the EEOC of its reasons for refusing to consider Hernandez's application it admitted that the refusal to re-hire was based on Hernandez's history of substance abuse.4 See Position Statement, infra, p. 3581 ("[Hernandez's] application was rejected based on his demonstrated drug use while previously employed and the complete lack of evidence indicating successful drug rehabilitation.").Raytheon's first mention of its purported "unwritten policy" of uniformly refusing to re-hire individuals previously fired for misconduct occurred after EEOC reconciliation efforts had terminated, and Hernandez had brought this action against the company. From the fact that Raytheon has provided conflicting explanations of its conduct, a jury could reasonably conclude that its most recent explanation was pretextual. See E.E.O.C. v. Sears Roebuck & Co., 243 F.3d 846, 853 (4th Cir. 2001) ("[A] factfinder could infer from the late appearance of [the employer?s] current justification that it is a post-hoc rationale, not a legitimate explanation for [its] decision not to hire [the employee].") ... (emphasis added)Ouch! And the employer's attempts to lay the blame elsewhere met with little success as noted in footnote 4:
4 Raytheon now attempts to disavow its admission by asserting that it was drafted by an uninformed part-time employee and, therefore, Raytheon and Medina cannot be held accountable for its contents. The attempted disavowal serves at best to raise a question of fact, particularly as Medina testified in his deposition not only that he signed the statement after having read it, but that the information in it was correct.Ouch again. I have often said it is unfortunate but true, that you must present the same argument in your initial response to an EEOC charge, that you intend to present if the case ever goes to trial. And apparently that rule holds true, even if you manage to get the case to the Supreme Court.