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.”
Just 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.
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.