## Facts

- Eric D. Simple, an African-American employee, worked for Walgreen Company, starting as a management trainee (1995) and later becoming an assistant store manager.
- Simple was offered store manager positions in Kankakee, Illinois, and later Normal, Illinois, by district manager Michael Palmer; Simple declined both.
- Simple sought a store manager position within Palmer’s district, which included the Pontiac, Illinois store.
- Palmer filled the Pontiac store manager position with a white employee, Melissa Jonland, without notifying Simple of the opening.
- Jonland had been an assistant manager for two years; Simple had held that role for four years. Only assistant store managers were eligible for promotion to store manager.
- The Pontiac store was viewed as more desirable than the earlier offered locations, in part because profitability affected store manager bonuses and some stores had higher “shrink” (losses attributed to theft and similar causes).
- Simple offered evidence of statements by Walgreen manager Leanne Turley that she was consulted about the promotion decision and that “Pontiac was not ready to have a Black manager.”
- The district court excluded Turley’s statements and granted summary judgment for Walgreen on Simple’s Title VII and 42 U.S.C. § 1981 claims.

## Issues

1. Whether Turley’s alleged statements were admissible against Walgreen as nonhearsay under Federal Rule of Evidence 801(d)(2)(D) (employee statements on matters within the scope of employment).
2. Whether, considering admissible evidence, Simple presented sufficient evidence of discriminatory failure to promote to defeat summary judgment under Title VII and § 1981.

## Decision

- The Seventh Circuit held Turley’s statements were admissible under Rule 801(d)(2)(D) as statements by an employee on a matter within the scope of her employment, made during the employment relationship.
- The court concluded the statements were probative of discriminatory intent because they directly linked the promotion decision for the Pontiac store to race and were attributed to a manager consulted on the decision.
- With Turley’s statements and the surrounding circumstances, a reasonable jury could find discriminatory intent; summary judgment was improper.
- The Seventh Circuit reversed the judgment and remanded for further proceedings.

## Legal Principles

- Under Fed. R. Evid. 801(d)(2)(D), a statement is not hearsay when offered against a party and made by the party’s agent or employee on a matter within the scope of that relationship while it existed.
- A managerial employee’s statement about a personnel decision can qualify as an opposing-party admission when the statement concerns the employer’s decisionmaking and falls within the speaker’s job responsibilities.
- At summary judgment in Title VII and § 1981 promotion cases, courts must determine whether the record would allow a reasonable jury to find intentional discrimination; credibility and competing inferences are for trial.
- Explicit race-based remarks tied to the challenged employment action and attributed to someone connected to the decision can be sufficient evidence to create a genuine dispute of material fact on discriminatory intent.

## Conclusion

The Seventh Circuit ruled that a manager’s statement that the store was “not ready” for a Black manager was admissible as an employee admission under Rule 801(d)(2)(D) and, combined with other evidence, required a trial on the employee’s Title VII and § 1981 failure-to-promote claims.


Simple v. Walgreen Co., 511 F.3d 668 (7th Cir. 2007)