Labor & Employment Law Daily Black employee advances transfer refusal, retaliation claims after manager ‘wanted a Korean’ in job
Tuesday, June 5, 2018

Black employee advances transfer refusal, retaliation claims after manager ‘wanted a Korean’ in job

By Kathleen Kapusta, J.D.

Reviving in part the claims of an African-America employee who was fired one week after complaining that she was denied a transfer because a high-ranking manager “wanted a Korean in that position,” the Eleventh Circuit found she presented direct evidence that the company failed to transfer her based on her race and nationality and circumstantial evidence that she was fired in retaliation for her complaint. She failed, however, to show she was fired based on her race or national origin so summary judgment was affirmed on her discriminatory termination claim (Jefferson v. Sewon America, Inc., June 1, 2018, Pryor, W.).

Hired as a temporary clerk in the company’s finance department, the employee was soon promoted to full-time but probationary status in the same position. Upon learning a month later about a job opening in the information technology department, the employee approached the IT department manager, who told her he liked her work ethic and he was willing to transition her over.

Testing and evaluation woes. The next month, she took a basic knowledge test about computers and although she did poorly, the IT manager purportedly told her the job was not dependent on the test. Around this same time, her managers in the finance department expressed disappointment that the employee had not come to them first about the transfer. Soon after, one of the managers completed a negative performance evaluation of the employee, underscoring that she disregarded policies and procedures that required her to report to her direct supervisor.

Wants a Korean. Three days later, the IT manager told the employee she could not transfer to his department because she lacked the required five years of experience and a higher-ranking manager had said he “wanted a Korean in that position.” The employee immediately complained to HR about this statement. On that same day, her second manager filed out a performance evaluation on the employee, giving her a score of 68 out of 200. The employee was fired a week later, purportedly based on the two evaluations.

She sued under Title VII and Section 1981, alleging race and national origin discrimination and retaliation and the district court granted summary judgment as to all claims.

Seventh Amendment no bar. On appeal, the court quickly disposed of the employee’s claim the Seventh Amendment to the Constitution bars a district court from granting summary judgment against an employment discrimination claim. The Supreme Court made clear long ago that summary judgment does not violate the Seventh Amendment and settled precedent foreclosed any argument to the contrary.

Transfer. Turning to the employee’s disparate treatment claim based on the transfer denial, although the district court ruled that she failed to establish an adverse employment action, the appeals court disagreed. The finance department job had significantly different responsibilities from the IT job, said the court, noting the employee’s testimony 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.” Further, the employee was required to test for the job and the company later insisted that it required five years of experience and the employee was unqualified for it, even though she was qualified for her old job. Observing that the employee was enrolled in IT classes, she repeatedly expressed interest in that career path, and the manager promised to provide her with additional training, the court noted that “the promise of education and experience in a specific skilled position is a material benefit.”

Comment was direct evidence. And even though the employee repeatedly described her evidence as circumstantial, the high-ranking manager’s comment was direct evidence of discrimination, said the appeals court, finding that the court below erred when it evaluated this evidence under the burden-shifting test for circumstantial evidence. The employee presented the statement as a basis of her claim and the district court was “obliged to heed our repeated admonitions that ‘application of McDonnell Douglas is inappropriate’ in the light of this direct evidence.”

Retaliatory termination. As to the employee’s retaliatory termination claim, the court found no abuse of discretion in the lower court’s exclusion of an HR specialist’s affidavit statement that the employee was fired because of her discrimination complaint. There was no evidence he had any personal knowledge of or involvement in the termination decision. The lower court erred, however, when it found that her complaint was not protected conduct. Although the district court reasoned that it was baseless because she was not qualified for the position, the appeals court pointed out that the IT manager’s comment could have reasonably led the employee to conclude that racial discrimination was at play. Thus, she had a reasonable basis for her complaint.

The district court also erred when it found she failed to show the company’s reason for firing her—her failing scores on two employment evaluations—was pretextual. The second evaluation was filled out on the same day the employee complained of discrimination and she was fired exactly one week later. In addition, the supervisor who filled out the second evaluation 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 the employee’s evaluation. And the evaluation also stated that the employee was “work[ing] well and complet[ing] her tasks in a timely manner.” Further, the company failed to follow its progressive discipline policy before terminating the employee. In short, said the court, taking all the circumstances together, the question of whether the company fired the employee to retaliate for her complaint about perceived racial discrimination was a question for a jury.

Discriminatory termination. Finally, in affirming summary judgment against the employee’s discriminatory termination claim, the court rejected her contention that when her managers gave her low evaluation scores for “going outside the chain of command,” they were actually punishing her for failing to conform to “Korean culture” because “the chain of command” is inherent to “Korean cultural norms.” An employer’s neutral policy that has adverse consequences, without more, is not enough to state a claim for disparate treatment, said the court, noting that “We 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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