Court Revives Suit Against Employer that Allegedly Denied Woman Promotion for Not Being Korean

The Eleventh Circuit recently gave new life to a plaintiff’s claims of employment discrimination in Jefferson v. Sewon America, Inc., 2018 WL 2449228 (11th Cir. June 1, 2018). Jerberee Jefferson, an African-American woman, filed suit against her former employer, Sewon America, Inc., for racial discrimination and retaliatory termination.  Although Jefferson began her career at Sewon working in finance, she desired to transfer to the information technology department.  To achieve this goal, she took classes at a local college and, when a position opened up in IT, she requested a transfer.

Thereafter, Sewon tested Jefferson’s knowledge of computers and she admittedly performed poorly.  Even so, management assured Jefferson that a transfer was still a possibility.  Ultimately, however, Sewon denied the transfer, and a manager purportedly told Jefferson that it was because she lacked experience and a higher ranked manager “wanted a Korean in that position.” Jefferson immediately brought these discriminatory comments to the attention of someone in human resources who told her to brush the matter off.  That same day, Jefferson’s manager filled out a performance evaluation giving her poor markings. One week later, Sewon fired Jefferson without any written warning, and Jefferson subsequently filed suit in the Northern District of Georgia.  Sewon denied Jefferson’s allegations of discrimination and argued she was terminated after receiving poor performance evaluations.

Following discovery, the district court awarded summary judgment in Sewon’s favor on each of Jefferson’s claims. Concerning the claim arising from Sewon’s alleged refusal to transfer Jefferson for discriminatory reasons, the district court held that Jefferson failed to establish that she suffered an “adverse employment action” and, further, that she failed to show Sewon’s reasons for denying the transfer were pretextual. With respect to Jefferson’s retaliation claim, the court reasoned that the complaint Jefferson filed with human resources was not protected conduct and that Jefferson failed to show Sewon’s proffered reasons for her termination were pretextual.

On appeal, the Eleventh Circuit disagreed with the lower court on numerous grounds.  Concerning Jefferson’s discrimination claim arising from her request to transfer to the IT department, the court concluded that Jefferson had presented sufficient evidence that she suffered an adverse employment action and further that Sewon declined to transfer her for discriminatory reasons. Notably, the Eleventh Circuit held that the lower court erred in applying the McDonnell Douglas burden-shifting framework applicable to cases involving circumstantial evidence of employment discrimination because Jefferson had offered direct evidence of discrimination.  Slip. Op. 15 (“Direct evidence is evidence, that, if believed, proves [the] existence of [discriminatory intent] without inference or presumption.”). Specifically, Jefferson testified that she had been told her transfer request was denied because management wanted “a Korean in that position.”  Crediting this statement as true for purposes of summary judgment, the appeals court held questions of fact remain as to whether Sewon denied Jefferson’s transfer request for discriminatory reasons.

Similarly, with respect to Jefferson’s retaliation claim, the Eleventh Circuit held that the district court erred in awarding summary judgment in Sewon’s favor because a reasonable jury could conclude that Sewon terminated Jefferson for complaining to human resources about the perceived discrimination.  Further, the Eleventh Circuit fundamentally disagreed with the district court’s finding that Jefferson’s complaint was not protected conduct.

The court’s decision serves as a reminder to employers to carefully follow their written discipline policies and procedures. In reviving Jefferson’s retaliation claim, the court concluded that Jefferson had submitted evidence supporting her claim that Sewon’s stated reason for termination (poor performance) was pretextual, noting that “Sewon failed to follow its ‘progressive discipline policy’ that affords employees several warnings, including a ‘written warning’ and ‘final warning’ before termination.”  Slip. Op. 25.

John E. Sharpe

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