Jerberee Jefferson v. Sewon America, Inc.
Opinion
This appeal presents the question whether the district court erred when it granted summary judgment in favor of Sewon America, Inc., and against Jerberee Jefferson's complaint of employment discrimination on the basis of race and national origin and of retaliatory termination, 42 U.S.C. § 2000e
et seq.
;
I. BACKGROUND
We divide the background in two parts. First, we describe the facts by viewing the evidence, as we must, in the light most favorable to Jefferson.
See
Jones v. UPS Ground Freight
,
A. The Facts
In March 2013, Sewon hired Jefferson as a temporary clerk in its finance department.
In June 2013, Sewon promoted Jefferson to full-time, but probationary, status in the same position. The next month, Jefferson learned of an open position in the information technology department.
Jefferson had been taking technology classes at a local college and had the "career goal" of working in information technology. She approached the department manager, Gene Chung, who told her that "he wanted [her] to transition to the department." Chung 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[.]" He also encouraged her to continue her coursework and told her that "he would train [her in] anything [that she] didn't know [from school] if it was related to the job." Chung explained that "the next steps" were for Jefferson to "take a test" and for Nate Jung, a high-level manager, to approve the transition, and Chung told Jefferson that she "would be transferred over to the [information technology] department by the end of the week." After meeting with Chung, Jefferson also spoke to Ken Horton, Sewon's human resources manager, who told her that "he would talk to [Chung] and work something out" so that Jefferson could switch departments.
In August, Chung gave Jefferson a "basic knowledge" test about computers. Jefferson admitted that she "didn't do so [well] on [the test]," and Chung averred that she "performed so poorly on [the] test that [he] had no interest in employing her in the [information technology] [d]epartment." But Chung told her that the job was not "dependent on" the test and, after Jefferson finished the test, Chung went "over the results with [her]," told her "to take it home, research it, [and] correct [her] wrong answers," and later reviewed her new research and responses. Jefferson testified that it remained her "understanding that [Chung] still was going to talk to ... Jung about [the transfer]."
Around the same time, Jefferson had some difficulty with her managers in the finance department: Esther Kim and Jenny Hong. Kim was Jefferson's immediate supervisor and Kim reported to Hong. Both supervisors told Jefferson that "they wished [that Jefferson] had come to them first [about the transfer] as opposed to going to ... Chung." But Jefferson explained that the managers "didn't seem mad" and that there was "mutual[ ] agreement" that she could transfer. Jefferson also had irritated the managers by "coming back [late] from lunch several times" and failing to silence her phone at work. Despite these issues, on August 16, the managers decided to "figure out a way to make [Jefferson] continue working for the company in a more productive way."
Soon afterward, Jefferson's employment took a turn for the worse. On August 20, Hong completed a negative performance evaluation that awarded Jefferson a total of 64 out of 200 possible points. Notwithstanding Hong's earlier assurance to Jefferson that she would not stand in the way of a transfer, even though Jefferson had not first asked her permission, the evaluation underscored that Jefferson "disregard[ed] policies and procedures" that required her to report to "her direct supervisor" and that Jefferson did not "want to work with her direct supervisor."
On August 23, 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 "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."
On the same day that Jefferson complained about racial discrimination underlying the denial of her request to transfer, Kim filled out a performance evaluation that gave Jefferson a score of 68 out of 200. The evaluation underscored that Jefferson "disregard[ed] policies and procedures and d[id] not inform her direct supervisor [of problems]," and it concluded that "there [was] no room for improvement." Despite these deficiencies, the review also stated that Jefferson "c[a]me to work on time every day" and "work[ed] well and complete[d] her tasks in a timely manner." Kim 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.
Horton collected Hong's and Kim's evaluations, averaged the scores, and "applied a pre-established minimum threshold number." Jefferson received a score of 32.5, "below the pre-established threshold [for termination] of 35." Horton averred that this method "was used for other introductory employee evaluations in the past and was not a threshold applied only to ... Jefferson's average score" and that he "never advised ... Kim or ... Hong of this pre-established score before they completed [the] evaluations."
One week later, on August 30, Sewon fired Jefferson. Jefferson received no written warning or final warning before her dismissal, despite a "progressive discipline policy" that uses a system of "verbal warnings, ... [a] written warning," and a "final warning" before an employee is terminated. At a later deposition, Horton testified that "it [was] important to follow that [particular discipline] policy at [Sewon]," but that the company might depart from the policy in cases of sexual harassment, violence, illegal conduct, or other egregious misconduct. James Dye, a human resources specialist, met with Jefferson after she was fired. He told her that "[she] didn't pass [her evaluations]" but that "[h]e didn't know [why]" she had failed. Dye later represented Sewon in state-level unemployment proceedings regarding Jefferson's termination.
B. The Proceedings in the District Court
Jefferson filed a complaint that Sewon discriminated against her on the basis of race and national origin when it refused to transfer and later fired her and that Sewon fired her in retaliation for her complaint to Horton, 42 U.S.C. § 2000e
et seq.
;
Sewon moved for summary judgment and objected to the paragraph of Dye's declaration that alleged retaliation. A magistrate judge issued a report and recommendation that granted the objection to this paragraph on the ground that a declaration must be based on "a witness's personal knowledge" and that "no portion of the declaration establishe[d] the foundation for Dye's opinion." The magistrate judge then recommended granting summary judgment in favor of Sewon.
The district court agreed with the magistrate judge's recommendation and granted summary judgment in favor of Sewon. With respect to Jefferson's claim that Sewon refused to transfer her for discriminatory reasons, the district court reasoned that Jefferson failed to establish a prima facie case of discrimination because she did not suffer an "adverse employment action" when Sewon refused to transfer her to the information technology department. In the alternative, the district court ruled that Jefferson failed to establish that the job qualifications for the information-technology position cited by Sewon were pretextual. With respect to Jefferson's claim that Sewon fired her for discriminatory reasons, the district court concluded that the termination was not discriminatory "under a holistic view of the evidence." Finally, it determined that Jefferson could not establish that Sewon fired her in retaliation for her complaint: it approved the exclusion of Dye's allegation, ruled that Jefferson's complaint was not "protected conduct," and ruled that Jefferson failed to establish that retaliation was the but-for cause of her termination because she "failed to rebut Sewon's proffered reasons for her termination."
II. STANDARDS OF REVIEW
"We review an entry of summary judgment
de novo
, construing all facts and drawing all reasonable inferences in favor of the nonmoving party."
Jones
,
III. DISCUSSION
We divide our discussion in four parts. First, we reject Jefferson's argument that the Seventh Amendment to the Constitution bars a district court from granting summary judgment against a claim of employment discrimination. Second, we explain that the district court erred when it granted summary judgment against Jefferson's claim that Sewon refused to transfer her for discriminatory reasons. Third, we explain that the district court erred when it granted summary judgment against Jefferson's claim of retaliatory termination. Fourth, we explain that the district court committed no error when it granted summary judgment against Jefferson's claim of discriminatory termination.
A. Summary Judgment Is Constitutional.
Jefferson contends that "summary judgment, as applied to discrimination cases, violates the Seventh Amendment," and an
amicus curiae
, Professor Suja Thomas, advances the radical argument that summary judgment is always unconstitutional. Nonsense. The Supreme Court made clear long ago that "summary judgment does not violate the Seventh Amendment."
Parklane Hosiery Co. v. Shore
,
Federal Rule of Civil Procedure 56, which governs summary judgment, applies with equal force to claims of employment discrimination. We have repeatedly rejected arguments that "summary judgment is especially questionable and should seldom be used in employment discrimination cases because they involve examination of motivation and intent,"
Wilson v. B/E Aerospace, Inc.
,
B. The District Court Erred when It Granted Summary Judgment Against Jefferson's Claim of Disparate Treatment that Sewon Refused To Transfer Her.
Section 2000e-2(a)(1) establishes that "[i]t shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race ... or national origin." 42 U.S.C. § 2000e-2(a)(1). This provision forbids "disparate treatment" of, or "intentional discrimination" against, employees on the basis of race or national origin.
Equal Emp't Opportunity Comm'n v. Abercrombie & Fitch Stores, Inc.
, --- U.S. ----,
The district court erred in two ways in its evaluation of Jefferson's claim about her transfer. The district court ruled that Jefferson failed to establish that she suffered an adverse employment action and that she failed to present substantial evidence that Sewon declined to transfer her for discriminatory reasons. We disagree with both rulings.
1. Jefferson Suffered an Adverse Employment Action.
An employee must establish an "adverse employment action" by proving that a decision of the employer "impact[ed]
the terms, conditions, or privileges of [her] job in a real and demonstrable way."
Davis
,
The district court ruled that Jefferson failed to offer evidence that "the [new] position ... would have entailed greater skill and provided more specialized experience, on-the-job education, and greater potential for career advancement," but we disagree. The position in the finance department had "significantly different responsibilities" from the position in the information technology department.
Kidd
,
Jefferson also articulated a strong basis for preferring a transfer. She explained that she was enrolled in "[information technology] classes" at the time, repeatedly expressed interest in this career path, and testified that Chung told her that "he would train [her in] anything [that she] didn't know [from school] if it was related to the job." This promise of education and experience in a specific skilled position is a material benefit. And, again, Jefferson must show only that "a reasonable person faced with a choice [between the positions] ... would prefer being transferred to [the new] position."
Webb-Edwards
,
2. Jefferson Offered Direct Evidence of Discriminatory Intent.
An employee who alleges discriminatory treatment also must show "through either direct evidence or circumstantial evidence" that her employer acted with discriminatory intent.
Wilson
,
Because Jefferson presented
direct
evidence of discrimination, the district court erred when it evaluated this evidence under the burden-shifting test for
circumstantial
evidence established in
McDonnell Douglas
. We have explained that " 'only the most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of' some impermissible factor constitute direct evidence of discrimination."
Wilson
,
To be sure, 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. For example, her response in opposition to summary judgment presented her allegation of discrimination using the test for circumstantial established in McDonnell Douglas , even though she asserted in the same filing that a plaintiff can establish a separate claim for retaliation "through either direct evidence or circumstantial evidence." Only in her objection to the report and recommendation did she dispute the "fixed formula or framework" of McDonnell Douglas . But, even then, she presented her facts as "a convincing mosaic of circumstantial evidence" and insisted that the district court should not distinguish between "direct or indirect" evidence. On appeal, she advanced a similar theory about circumstantial evidence. For example, she explained that "evidence should [not] be treated differently from other evidence because it can be labeled direct or indirect" and that this Court should weigh "the totality of the evidence" as " circumstantial evidence that creates a triable issue concerning the discriminatory intent."
Despite Jefferson's failure to appreciate the difference between direct and circumstantial evidence, we must reverse this legal error. Although we ordinarily will not "second guess the litigants before us and grant them relief they did not request, pursuant to legal theories
they did not outline, based on facts they did not relate,"
United States v. Pielago
,
3. Jefferson Cannot Invoke Section 2000e-2(a)(2) for Her Claim of Disparate Treatment.
Jefferson also urges us to examine her allegation of disparate treatment under section 2000e-2(a)(2), but that provision, in contrast with section 2000e-2(a)(1), applies not to discrete decisions made by an employer directed at an individual employee, but to categorical policies that have a discriminatory purpose or effect. The whole text of the statute supports this distinction.
See
Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts
167 (2012) ("The text must be construed as a whole."). Section 2000e-2(a)(1) forbids an employer from discriminating against individual employees, such as by "fail[ing] or refus[ing] to hire or ... discharg[ing]
any individual
" or by "discriminat[ing] against
any individual
with respect to
his
compensation, terms, conditions, or privileges of employment." 42 U.S.C. § 2000e-2(a)(1) (emphases added). In contrast, section 2000e-2(a)(2) takes aim at discriminatory policies of general application when it prohibits an employer from "limit[ing], segregat[ing], or classify[ing] his
employees
or
applicants
for employment in any way which would deprive or tend to deprive any individual of employment opportunities."
The Supreme Court acknowledged this difference in
Connecticut v. Teal
,
In short, section 2000e-2(a)(1) covers individual decisions, such as the alleged decision not to transfer Jefferson on the basis of her race and national origin, and section 2000e-2(a)(2) covers policies of general applicability. Because Jefferson's complaint concerns an individual employment decision, it may proceed under only section 2000e-2(a)(1).
C. The District Court Erred when It Granted Summary Judgment Against Jefferson's Claim of Retaliatory Termination.
To establish a claim of retaliation, Jefferson must prove that she engaged in statutorily protected activity, that she suffered an adverse action, and that the adverse action was causally related to the protected activity.
Trask v. Sec
'
y
,
Dep
'
t of Veterans Affairs
,
The district court made three rulings when it granted summary judgment against Jefferson's claim of retaliatory termination. First, it approved the exclusion of a paragraph of Dye's affidavit that alleged that Jefferson was fired in retaliation for her complaint. Second, it determined that Jefferson's complaint was not protected conduct. Third, it determined that Jefferson had failed to produce sufficient evidence that Sewon's purported reasons for terminating her were actually a pretext for Sewon's retaliatory motives. The last two rulings were erroneous.
1. The District Court Did Not Abuse Its Discretion when It Excluded the Paragraph of Dye's Affidavit that Alleged Retaliation.
Jefferson contends that the district court should have admitted a paragraph of Dye's affidavit that stated that "Jefferson was terminated because of her complaint of discrimination," but the district court did not abuse its discretion. Federal Rule of Civil Procedure 56(c)(4) demands that an affidavit "be made on personal knowledge." And the district court determined that Dye's affidavit did "not provide any facts from which to conclude that Dye had personal knowledge about the reasons for her termination." Jefferson offered no evidence that Dye controlled or participated in the termination decision, and we have explained that statements of "non-decisionmakers" ordinarily are inadmissible unless the record "reflect[s] some kind of participation [by the affiant] in the employment decision or policy of the employer."
Kidd
,
Jefferson responds that, because Dye was a human resources specialist who handled Jefferson's state-level unemployment proceedings, he presumably would have had insight into why Jefferson was fired, but the scant facts in Dye's affidavit entitled the district court to reject this presumption. Dye failed to identify the source of his information or explain what facts led him to make this accusation.
2. The District Court Erred when It Determined that Jefferson's Complaint Was Not Protected Conduct.
The district court reasoned that Jefferson's complaint about Jung's alleged statement was not "protected activity" because Jefferson could not have "reasonabl[y] believe[d] that Sewon engaged in [discrimination]," but we disagree. A complaint about discrimination is protected if the plaintiff could "reasonably form a good faith belief that the alleged discrimination existed."
Taylor
,
3. The District Court Erred when It Ruled that Jefferson Failed To Produce Sufficient Evidence that Sewon's Reasons for Terminating Her Were a Pretext for Retaliation.
Sewon asserts that it fired Jefferson because she received failing scores on a pair of employment evaluations, and it contends Jefferson has offered no evidence to undercut this neutral rationale. It points out that these evaluations were tied to Jefferson's probationary status, that Jefferson knew she was "subject to termination at any time during this [period]," and that Jefferson has not produced evidence that other employees kept their jobs after receiving failing scores. And Sewon highlights that Horton testified that neither evaluator knew what number constituted a passing score, so neither evaluator could have intentionally issued a failing report.
Although the above explanation and supporting evidence support Sewon's assertion that it had a non-retaliatory basis for firing Jefferson, we agree with Jefferson that a reasonable jury could nevertheless find that Sewon's explanation was pretextual and that Jefferson's complaint was the "but-for cause" of her termination.
Trask
,
Jefferson also offered evidence supporting her allegation of pretext. Kim, who was Jefferson's immediate supervisor, 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 Kim's evaluation also stated that Jefferson was "work[ing] well and complet[ing] her tasks in a timely manner." Sewon also failed to follow its "progressive discipline policy" that affords employees several warnings, including a "written warning" and "final warning," before termination. In short, and taking all the circumstances together, the question whether Sewon fired Jefferson to retaliate for her complaint about perceived racial discrimination, is a question for a jury.
D. The District Court Committed No Error when It Granted Summary Judgment Against Jefferson's Claim of Discriminatory Termination.
Jefferson also contends that Sewon terminated her for racially discriminatory reasons, but she offers no substantial evidence in support of this allegation. Instead, she reasons 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." Jefferson also points out that a portion of Dye's affidavit that the magistrate judge left intact alleged "that non-Koreans were targeted for reprimands and harsher discipline than Korean employees." She concludes that this evidence supports both a claim of disparate treatment, 42 U.S.C. § 2000e-2(a)(1), and disparate impact,
We reject Jefferson's reasoning. With respect to the allegation that Sewon subjected Jefferson to disparate treatment when it insisted that she follow the "chain of command," we have explained "that an employer's neutral policy" that has "adverse consequences, without more, is not sufficient to state a claim for disparate treatment."
Equal Emp't Opportunity Comm'n v. Catastrophe Mgmt. Solutions
,
Jefferson also contends that Sewon enforced this policy against non-Koreans in a discriminatory manner, and she points out that Dye's affidavit alleges that unspecified "American employees" were subject to stricter discipline than unspecified "Korean employees" at unspecified times. But Dye's affidavit says nothing about the particular policy at issue-the "chain of command." And even if it did, the vagueness of his accusations prevents them from establishing that Korean employees received lesser discipline for "
nearly identical
" behavior.
Flowers v. Troup Cty., Ga., Sch. Dist.
,
Nor can Dye's allegations that nameless Korean employees received favorable treatment in unspecified scenarios support a claim of disparate impact. His vague accusations come nowhere close to establishing that the specific practice at issue-the chain of command-had a "significantly discriminatory impact" on non-Korean employees.
In re Emp't Discrimination Litig. Against State of Ala.
,
IV. CONCLUSION
We REVERSE in part, AFFIRM in part, and REMAND for further proceedings in accordance with this opinion.
Reference
- Full Case Name
- Jerberee JEFFERSON, Plaintiff-Appellant, v. SEWON AMERICA, INC., Defendant-Appellee.
- Cited By
- 325 cases
- Status
- Published