All evidence is not created equal, and direct evidence precludes summary judgment in an employment case, at least according to the Eleventh Circuit. In Jefferson v. Sewon America, Inc., the court made clear that the traditional McDonnell Douglas burden-shifting framework is inapplicable to discrimination claims where there is direct evidence of discrimination, even if the plaintiff characterized the evidence as “circumstantial.”

Whose Burden Is It Anyway? Evidentiary Concerns for Title VII CasesJust to refresh everyone’s recollection, direct evidence, if believed, proves the existence of discriminatory intent without inference or presumption. Only the most blatant remarks qualify and if they are present, summary judgment is never appropriate. On the other hand, circumstantial evidence suggests, but does not prove, discriminatory intent, so courts use the McDonnell Douglas framework to evaluate whether summary judgment is due.

The Details

Jerberee Jefferson, who is African American, worked as a clerk in Sewon America’s finance department. In June or July 2013, while she was still in her probationary period, Jefferson discovered an open position in the IT department. Jefferson had been taking technology classes and ultimately wanted to work in the IT field. Seeing an opportunity, Jefferson approached Gene Chung, the department manager, who interviewed her, encouraged her interest, and said he was willing to transition her to the IT department. The next steps, according to Chung, were a test of her skills and approval from a higher-level manager, Nate Jung.

In August, Jefferson took the basic knowledge test but did not do well. Chung informed her that her transition to IT wasn’t dependent on her test performance, went over the results with her, and allowed Jefferson to take the test home, review it, and learn from her incorrect answers.

On August 20, Jenny Hong, who was in Jefferson’s chain of command, completed a bad performance evaluation on Jefferson (giving her 64 out of 200 possible points).

On August 23, Chung informed Jefferson, for the first time, that she would not be able to transfer to the IT department. In his explanation, he said that the job required five years of experience, and Jung wanted a “Korean in the position.” After this interaction, Jefferson complained to HR that the denial of her transfer was race discrimination. According to Jefferson, HR told her not to take it personally and to “brush it off.”

On the same day Jefferson complained to HR, Esther Kim, her direct supervisor, filled out a performance evaluation, giving Jefferson poor marks (68 out of a possible 200). HR averaged Hong’s and Kim’s evaluations and determined that Jefferson’s average scores were below a pre-established minimum threshold.

On August 30, Sewon terminated Jefferson for failing her evaluations. Jefferson reports that she did not receive any type of warning prior to her dismissal, even though Sewon uses a progressive discipline policy.

Jefferson sued, claiming that Sewon discriminated against her on the basis of race and national origin when it denied her transfer to IT. Sewon said Jefferson’s race had nothing to do with the decision—she was not qualified because she lacked the required experience for the IT job. Jefferson also claimed that Sewon terminated her because of her race and national origin and in retaliation for her complaint to HR. Sewon said it terminated her because of her poor evaluation, not because of her race, national origin, or complaint.

The District Court Grants Summary Judgment

The lower court granted summary judgment in Sewon’s favor. The court applied the McDonnell Douglas framework and found that (1) Jefferson had not established a prima facie case for discrimination because the IT job was not a promotion, so the transfer denial was not an adverse employment action; (2) Sewon had a legitimate, non-discriminatory reason for denying her the transfer (i.e., she was not qualified); (3) Jefferson had not proven pretext; (4) her retaliation claim failed because her complaint to HR was not protected activity (because she was not qualified for the IT job); and (5) Sewon terminated her for the poor performance evaluations, which were unrelated to her race, national origin, or complaint.

The Bigger Picture

The Eleventh Circuit reversed the lower court on the transfer claim, ruling that the denied transfer was an adverse employment action and the McDonnell Douglas framework could not apply in this case since Jefferson presented direct, testimonial evidence that Sewon wanted a “a Korean in that position.” That Jefferson consistently called her evidence circumstantial did not matter—the court had to recognize it as direct evidence even though Jefferson did not. Although Sewon denied Jefferson’s testimony, at the summary judgment phase the court must view the evidence in the light most favorable to Jefferson and credit her testimony. The court found that Jefferson’s direct evidence of racially motivated discrimination made Sewon’s reasoning, though legitimate and nondiscriminatory, irrelevant at this stage of the case.

The court also overturned the lower court’s decision granting summary judgment on the retaliation claim, finding that not only was Jefferson’s complaint to HR protected activity, Sewon’s termination of Jefferson just a week after her complaint might convince a reasonable jury that her complaint was the real reason.

What Does This Mean for Employers?

For lawyers, the court’s ruling is important not only because it is from an appellate court, but because even though Jefferson characterized her evidence as circumstantial and voluntarily applied the McDonnell Douglas framework, the court did not. It is rare for a court to make an argument for a party.  Beyond that legal tidbit, however, the Eleventh Circuit’s holding provides several lessons for employers:

  • First, notwithstanding a lack of increase in compensation or benefits, the court found Sewon’s refusal to transfer Jefferson to the IT job to be an adverse employment action. In so doing, the Eleventh Circuit held that the prospect of training, education and experience is a material benefit.
  • Second, although Sewon articulated reasons for the decision that were unrelated to race and national origin, the one alleged comment about wanting “a Korean in the position” was sufficient to derail summary judgment. Employers should caution their management as to their previously established nondiscrimination policies. It is one thing to take action or deny a transfer due to lack of qualification, but race should never be cited as a reason.
  • Third, the court found that Jefferson’s complaint to HR was protected activity. The court noted that even if Jefferson was not qualified for the job and the job did not pay any more, as long as she had a reasonable, good faith belief that she had been discriminated against, her complaint was protected activity.
  • Fourth, the court found that terminating an employee a week after she complained about discrimination was “suspicious timing” and a jury might conclude that the complaint was the reason for the termination. Once someone has raised a complaint, employers should be careful that any subsequent actions don’t look like retaliation.
  • Finally, the court noted that Sewon terminated Jefferson without following its progressive discipline policy, which perhaps suggested that Sewon’s reasons for the termination were a pretext for retaliation. If you have a policy, follow it. If an employee’s performance or behavior is such that termination is warranted, you do not want to face liability just because you didn’t keep the proper records and follow your own policies.

Voluntarily Sharing Family’s Cancer History Bars GINA Claims, Court HoldsGINA—that elusive law about employers collecting genetic information that rarely comes up. What if an employee voluntarily shares his genetic history—can he turn around and claim his employer improperly acquired the genetic information? Fortunately, in Williams v. Graphic Packaging International, Inc., the U.S. District Court for the Middle District of Tennessee, provides some guidance and says no.

GINA Refresher

The Genetic Information Non-Discrimination Act (GINA) prohibits employers with 15 or more employees from discriminating against an employee on the basis of “genetic information.” Under GINA, it is “an unlawful employment practice” for an employer to “request, require, or purchase genetic information” concerning an employee or an employee’s family member (unless an exception applies). If an employee voluntarily discloses his family’s medical history, then the employer arguably did not violate GINA because it did not request, require, or purchase the genetic information.

The Williams Case

Williams was diagnosed with prostate cancer and requested medical leave from his supervisor. He claimed that his supervisor “repeatedly questioned” him about his cancer, the doctor’s opinions concerning his cancer, and the treatment options. During at least one communication, Williams told his supervisor that cancer ran in his family.

Graphic Packaging later terminated Williams, and he filed suit, bringing multiple claims including that it violated GINA because the company became aware of his family’s medical history with cancer. Graphic Packaging moved for summary judgment, and in May 2018, the court granted its motion and dismissed the case in its entirety.

In dismissing the GINA claim, the court held that because Williams voluntarily informed his supervisor (and two other people) that cancer ran in his family, his GINA claim failed. Furthermore, the court noted that Graphic Packaging never required him or any of his family members to submit to a genetic test. Williams has since appealed the dismissal of his case to the Sixth Circuit Court of Appeals.


Although Graphic Packaging was ultimately successful in Williams (at least pending the results of the appeal), employers should not forget about GINA. Among other prohibitions, the act bars employers from discriminating against an employee based on an employee’s genetic information. It also prohibits employers from requesting, requiring, or purchasing an employee’s or family members’ genetic information, unless one of the statute’s expressed exceptions applies. Those exceptions include when an employer inadvertently requests or requires an employee to provide his or her medical history or family medical history. If an employee voluntarily discloses that medical history, however, the employer can successfully argue – as it did in Williams – that it did not request or require the disclosure of the family’s medical history, inadvertently or otherwise, and that the GINA claim should be dismissed. It is probably safest, however, to train supervisors to not ask about an employee’s medical condition (to comply with the ADA) and also avoid asking about things such as family medical history (to comply with GINA).

 The Continuing “Trans-formation” of Title VII: Texas Federal Court Holds Transgender People Have Title VII ProtectionA Texas district court recently held, for the first time in the Fifth Circuit, that transgender people are a protected class under Title VII—but the plaintiff still lost her case. In Wittmer v. Phillips 66 Company, the Houston-based federal court relied on recent opinions from the Second and Sixth Circuits to hold that the plaintiff’s “status as a transgender woman places her under the protections of Title VII.” Despite that protection, the court ultimately concluded that Phillips did not treat her differently based on that protected status.


Nicole Wittmer had a successful interview for a position as an engineer at a Phillips refinery. During the interview, Wittmer explained that she was interested in a new position because of the travel requirements of her current job. Phillips offered Wittmer the position, conditioned on the satisfactory completion of a background check. The background check revealed that, contrary to Wittmer’s representations in the interview, she had already been terminated by her prior employer. When Phillips asked her to explain this discrepancy, Wittmer began an aggressive email campaign claiming Phillips had discovered after her interview that she was transgender, and was changing its hiring decision for that reason. Phillips ultimately rescinded its offer of employment, and Wittmer sued for transgender discrimination under Title VII. At the close of discovery, Phillips moved for summary judgment on the grounds that transgender status is not protected under Title VII but even if it was, Phillips had a legitimate, nondiscriminatory reason for the decision—Wittmer’s apparent lie during the interview.

The District Court’s Decision

The district court recognized that, while it has long been the law that Title VII protects against discrimination based on a person’s failure to conform to traditional gender stereotypes, the Fifth Circuit has not yet extended Title VII to protect transgender persons. But the court noted that, over the last years, several other courts have broadened Title VII’s protections to include discrimination based on both transgender status and sexual orientation. The Texas court stated that these opinions from other courts — “applying the long-recognized protections against gender- or sex-based stereotyping” to transgender and sexual orientation discrimination — were persuasive and chose to follow that lead.

Although Wittmer won that battle, she lost the war. While the court held that her transgender status entitled her to protection under Title VII, it found no evidence that Phillips actually discriminated against Wittmer based on it. Instead, the court held that there was no evidence Phillips even knew that Wittmer was a transgender woman until after it had come to the conclusion that she had lied about her employment status during the interview. On that basis, the court granted summary judgment to Phillips. Wittmer is now appealing this decision to the Fifth Circuit.


This latest opinion continues a steady trend in favor of expanding Title VII to protect against discrimination based on sexual orientation and transgender status. While it is not yet the law of the land everywhere, many courts, states, and localities are making it the law. Cautious employers would be wise to acknowledge this trend and ignore LGBTQ status when making employment decisions. It is much easier to defend a claim based on a legitimate, nondiscriminatory reason (such as Phillips did in this case) than making decisions based on LGBTQ status and risk becoming the next test case.