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.

Winning Harassment Claims in the #MeToo EraIn this #MeToo era, employers are, understandably, a little sensitive when someone raises a claim of harassment. Even with the heightened sense of peril, companies should remember that if they are doing the right thing—having effective policies in place and handling complaints appropriately—they can still prevail. A recent decision, Peebles v. Greene County Hospital Board and Elmore Patterson, makes this abundantly clear.

The Facts

Elmore Patterson was the CEO of Greene County Hospital’s (GCH) residential care facility. Beginning in November 2013, Wennoa Peebles was his executive assistant, as well as an accounts payable clerk in the business office. According to Peebles, Patterson created a hostile work environment in a number of ways, including his use of profanity, demeaning comments (telling Peebles she was “just part of the room” and “not to speak,” referring to female employees as “opossums” and that he would not sleep with the “opossums”), and occasional, off-handed sexual comments (such as comments about paddling a female employee’s rear end and bosom).

Peebles, who was not the only employee who raised concerns about Patterson, complained to a number of GCH board members about his behavior. In October 2015, GCH got a letter from Peebles’ lawyer noting that Peebles’ had complained about her work environment, was experiencing discrimination and retaliation, and was filing an EEOC charge. She filed the charge on November 4, 2015, alleging sex discrimination, retaliation, and a hostile work environment. About 10 days later, GCH told Peebles she should submit any complaints about her work environment to a designated board member. GCH also gave Peebles the option of transferring to her prior position (certified nursing assistant) at no loss of pay.

In January 2016, Patterson suspected that Peebles had disclosed board member email addresses. When he asked Peebles about it, she denied doing so. Patterson did some additional digging and concluded that not only had she disclosed the emails, she had lied to him about it and terminated her. Not surprisingly, Peebles believed that GCH terminated her not because of her disclosure of the email addresses but because of her protected activity.

Summary Judgment for the Employer

The district court granted summary judgment to GCH on both the harassment and retaliation claims. With regard to Peebles’ harassment claim, GCH apparently conceded that Peebles had established that she belonged to a protected group, that she was the subject of unwelcome harassment, and that the harassment was based on her sex. The court found, however, that Peebles had not established that the harassment was sufficiently severe or pervasive enough to alter the terms and conditions of employment to create a discriminatory or abusive working environment. The court explained that there are four factors to consider in determining whether conduct is severe or pervasive enough to permeate a workplace:

  • The frequency of the conduct
  • The severity of the conduct
  • Whether the conduct is physically threatening or humiliating, or a mere offensive utterance
  • Whether the conduct unreasonably interferes with the employee’s job performance

On balance, the court found that Patterson’s conduct over the two-year period, which was described in the opinion as hardly “boss of the year” material, was not sufficiently severe or pervasive. Accordingly, the court granted summary judgment in favor of GCH.

The court went on to find that Peebles failed to establish a case of retaliation, and GCH’s reasons for terminating her employment were legitimate and had nothing to do with her complaints about Patterson.

Takeaways

So, what can we learn? GCH did a lot of things right and still ended up getting sued—but they won. Here are a few things that employers should consider when a harassment complaint (or something that could be a harassment complaint) arises:

  • Effectively manage the complaints immediately. As soon as Peebles made complaints about Patterson, GCH addressed them, going so far as to designate a board member as a contact. GCH did this even though at least some of Peebles’ concerns were about bad behavior that did not clearly fall in the sexual harassment realm.
  • Take steps to stop any alleged harassment. In addition to a complaint procedure, GCH offered Peebles a transfer so she would not have to work with Patterson. While this is not always appropriate, employers should consider whether it is a viable option. You would not want to involuntarily transfer someone who complained, but giving them the option of getting away from the alleged harasser may be a good option to retain an employee and prevent a retaliation complaint. Of course, that is not what happened in this case, but it is still a good idea.
  • Don’t limit the assessment to the legal standard. Although the court relied on whether the behavior was sufficiently severe and pervasive enough to create a hostile work environment, employers should not limit their internal assessment to this legal standard. Behavior may not rise to the level of legal harassment but it can still violate a company’s harassment policy.

Employee Handbook Leads to Dismissal of FMLA Claims against Tennessee EmployerMost, if not all, employers provide their employees with handbooks that explain the policies and procedures that govern the employment relationship. Because this practice is standard, many employers likely forget how critical it is to have clear, well-known policies that are consistently followed. The recent decision in Everson v. SCI Tennessee Funeral Services, LLC reminds employers of the significance of employee handbooks and how they can prevent extensive litigation.

Background

Ommer Everson worked as a funeral director for SCI Tennessee Funeral Services (SCI). Although Everson was diagnosed with Meniere’s disease during his employment, it did not affect his work until he needed some time off for outpatient ear procedures. Before his procedure in 2010, Everson requested a week to 10 days off, which his supervisor granted. In 2014, Everson requested an afternoon off for another procedure and his supervisor again granted the request. On January 9, 2015, he requested a week off for a third procedure and his supervisor responded that it was fine—“whatever time you need.”

However, Everson never took that week off because he was terminated two days later for violating SCI’s refrigeration policy. Specifically, SCI determined that Everson left an unembalmed body overnight without refrigeration.

Everson sued SCI alleging violations of the Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA). Regarding the FMLA, Everson specifically alleged that SCI had retaliated against him for requesting FMLA leave and interfered with the exercise of his rights.

Middle District of Tennessee Grants Summary Judgment to SCI on FMLA Claims

SCI moved for summary judgment, arguing that it did not interfere with Everson’s FMLA rights because Everson failed to follow SCI’s notice requirements in requesting leave. SCI’s employee handbook outlined the procedure—employees needing leave were to contact the SCI Leave and Disability Center. In response, Everson asserted that the FMLA did not require him to invoke the FMLA by name. Providing notice to his supervisor for a procedure related to Meniere’s disease was sufficient to notify SCI that Everson was invoking FMLA protection.

Siding with SCI, the Middle District of Tennessee granted summary judgment, holding that the 2009 amendment to 29 C.F.R. § 825.302(d) “explicitly permit[ted] employers to condition FMLA-protected leave upon an employee’s compliance with the employer’s usual notice and procedural requirements, absent unusual circumstances.” The court explained that despite the fact that Everson had received, read, and signed SCI’s employee handbook, he never requested FMLA leave or asked anyone at SCI for FMLA leave. He also did not identify any unusual circumstances that would have prevented him from complying with SCI’s notice requirement. Because Everson failed to comply with SCI’s policy for requesting FMLA leave, the court ruled that he could not establish a prima facie case for FMLA interference. Additionally, the court ruled that Everson’s claim of FMLA retaliation failed because his anticipated leave was not a protected activity under the FMLA. Since SCI did not have proper notice of Everson’s intent to take FMLA leave, Everson never actually engaged in an activity protected by the FMLA.

The court went on to deny summary judgment to SCI regarding Everson’s ADA claim, but that is a much longer story for a different post.

Takeaways

Never forget the power of the employee handbook and other well-crafted policies. In this case, the employer set out a clear path to request FMLA leave, and the court determined that the plaintiff did not use it. To get the most from those policies, you need to be sure that you can prove that your employees know about them. Here are some ideas:

  • Make sure that every employee receives a copy of your employee handbook and acknowledges in writing that they have both read the handbook and addressed any questions or concerns that they may have.
  • For policies regarding employment laws that may be more complex (g., requesting FMLA leave, requesting reasonable accommodations, requesting or reporting overtime, etc.), consider having employees read, acknowledge, and sign a separate document in addition to the handbook acknowledgement to ensure that they understand their responsibilities, as well as your responsibilities as their employer.
  • Send periodic messages or post reminders about more complicated policies—such as requesting FMLA leave or reporting harassment. This will give you another way to prove that employees understand how the policies work.