Jefferson v. Sewon America, Inc., No. 17-11802 (11th Cir. June 1, 2018)

| Jun 1, 2018 | Daily Developments in EEO Law |

A Black employee who is denied a transfer and told by her supervisor that another manager “wanted a Korean in that position” – and is then fired a week after complaining about race discrimination – presents a triable case of Title VII discrimination and retaliation, so holds the Eleventh Circuit.

Jefferson v. Sewon America, Inc., No. 17-11802 (11th Cir. June 1, 2018): Plaintiff Jefferson was a full-time, probationary clerk. She “had the ‘career goal’ of working in information technology.” Jefferson approached the department manager, named Chung, who said that “he wanted [her] to transition to the department.” He interviewed Jefferson and told her that “he was willing to transition [her] over” to the information technology department and that he liked her “work ethic[.]” Although she admitted that she “didn’t do so [well] on [the computer-knowledge test],” Chung continued to want to work with her.

Nonetheless, she was eventually turned down for the transfer:

“On August 23, [2013,] Chung met with Jefferson and told her, for the first time, that she could not transfer to the information technology department. He explained that the open position required ‘five years of experience’ and that ‘[manager] Jung said that he wanted a Korean in that position.’ Jefferson immediately complained about this alleged racial discrimination to Horton, the human resources manager. Horton told her not to ‘take it personal[ly]’ and to ‘brush it off.'”

One week later, Sewon fired Jefferson after an allegedly poor performance evaluation – without notice or progressive discipline – despite testimony by Horton that it was unusual to do so except for egregious misconduct.

The district court granted summary judgment on Jefferson’s Title VII and section 1981 denial of transfer and termination claims. It held that the denial of transfer was not an “adverse employment action,” that there was insufficient evidence of pretext, and that the complaint to human resources was not a protected activity for purposes of retaliation.

The Eleventh Circuit reverses in part. After dispensing with a constitutional argument that summary judgment violates the Seventh Amendment, it addressed the merits of each respective claim.

On the discrimination claim, the court finds that the denial of transfer could be found an adverse employment action. It is a commonplace in Title VII decisions that denial of a transfer that otherwise leaves terms and conditions unaffected is not an “adverse employment action.” But as the Eleventh Circuit holds:

“For example, Jefferson explained that the new job included ‘responsibilities and duties’ such as ‘setting up new hardware,’ ‘problem-solving with respect to software glitches,’ and ‘working with the network server.’ Indeed, that Chung administered a preliminary test and that Sewon later insisted that the job required five years of experience and that Jefferson was unqualified for the new work-even though she was qualified for her old job-suggests that the position in the information technology department had special responsibilities and carried additional ‘prestige.'”

Moreover, the “promise of education and experience in a specific skilled position is a material benefit.”

The panel also holds that the alleged statement that “Jung said that he wanted a Korean in that position” constituted direct evidence that without more warranted a trial, and thus the district court erred by demanding additional evidence of pretext. Although “at least some of the blame for this error lies with Jefferson because she repeatedly described her evidence as circumstantial, not as direct evidence of discrimination,” the court held this did not matter on appeal: “parties cannot waive the application of the correct law or stipulate to an incorrect legal test.”

The panel also reverses summary judgment on the retaliation claim. A complaint about discrimination is protected if the plaintiff could “reasonably form a good faith belief that the alleged discrimination existed,” and “Chung’s report that Jung stated an intent to hire a Korean could have reasonably led Jefferson to conclude that racial discrimination was at play.”

The panel holds, in addition, that there was a genuine dispute of material fact about causation, based on (1) “the suspicious timing of the termination” (a week after the complaint); (2) the manager’s testimony that testified that she had never “filled out this type of [evaluation] for anyone else” or “reprimanded anyone else for” the same kinds of issues cited in her evaluation of Jefferson; and (3) the testimony that terminating an employee without warning or progressive discipline was the unusual exception.

Finally, the panel affirms summary judgment on the termination claim based on race. Jefferson was fired in substantial part for “going outside the chain of command,” which the plaintiff alleged was shorthand for not abiding by Korean values (and that Korean employees could violate this standard). The panel holds that “[w]e see nothing inherently discriminatory about a policy that requires employees to respect corporate hierarchy, and we are not in the business of determining, without more, whether facially legitimate company practices are subtly linked to ethnic or racial groups.”

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