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

When we last visited Hernandez v. Raytheon, we thought that even though the Supreme Court basically punted, and sent the case back, based on the evidence in the Court's opinion, the employer might have a good chance under the disparate treatment analysis. See our report here. This was the case where Raytheon (in its Hughes Missile division) had refused to rehire Hernandez because he had been terminated for having failed a drug test. The Company had argued in the Supreme Court that the termination was based on its unwritten policy of not re-hiring employees who had been terminated for violation of a company rule.

In an unhappy turnaround for the company, there was more to the evidence of the case. Yesterday the 9th Circuit reversed the summary judgment using a disparate treatment analysis, thus correcting the flaw that caused the temporary victory by the employer at the Supreme Court. Hernandez v. Hughes Missile Systems (9th Cir. 3/23/04) [pdf]. And to make matters worse, the Court found its evidence to deny the summary judgment and of possible pretext by comparing the company's EEOC position statement with the position it took in the course of litigation:
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.


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