CASES
Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253 (11th Cir. 2010)........... 25
Crawford v. Metro. Gov’t of Nashville & Davidson Cty.,
555 U.S. 271 (2009)....................................................................................... 18
Farley v. Nationwide
Mut. Ins. Co., 197
F.3d 1322 (11th Cir. 1999)........ 21, 23
Fine v. Ryan Int’l Airlines, 305 F.3d 746 (7th Cir. 2002)................................ 18
Goldsmith v. Bagby
Elevator Co., 513
F.3d 1261 (11th Cir. 2008)................. 14
Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913 (11th Cir. 1993).............. 23
Hinson v. Clinch Cty. Georgia Bd. of Educ.,
231 F.3d 821 (11th Cir. 2000)................................................................... 21
Hulbert v. St. Mary’s Health Care Sys., Inc.,
439 F.3d 1286 (11th Cir. 2006)................................................................. 22
Keene v. Prine, 477 F. App’x. 575 (11th Cir. 2012)....................................... 26
Payne v. McLemore’s
Wholesale & Retail Stores, 654 F.2d 1130
(5th Cir. 1981)................................................................................................ 14
*Taylor v. Runyon, 175 F.3d 861 (11th Cir. 1999).................................... 15-18
Thompkins v. Morris Brown Coll., 752 F.2d 558 (11th Cir. 1985).................. 17
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013)........................ 14
Weeks v. Harden Mfg. Corp., 291 F.3d 1307 (11th Cir. 2002)................... 14-15
*Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453 (11th Cir. 1998).. 15-18, 20
STATUTES
42 U.S.C. § 2000e-2(a)(1)......................................................................... 12, 16
42
U.S.C. § 2000e-2(m)...................................................................... 12, 16, 20
42 U.S.C. § 2000e-3(a).............................................................................. 14-16
RULES
Federal
Rule of Appellate Procedure Rule 29(a)............................................... 1
OTHER AUTHORITY
EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004, §II(A)(2)(c) Ex. 1 (2016)............................................................................ 18
The U.S. Equal Employment Opportunity
Commission (“EEOC”) is charged by Congress with interpreting, administering,
and enforcing various federal laws against employment discrimination, including
Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e et seq. At issue in this appeal is whether an
individual who complains about possible discrimination is protected under Title
VII’s antiretaliation provision when the complaint is prompted by a manager’s
statement indicating race and national origin bias in an employment decision. The
Commission has a strong interest in ensuring that district courts properly
analyze such complaints when determining coverage under the statute. This
appeal also raises an issue concerning the evidence sufficient to establish a
jury question as to pretext in a retaliation case. The Commission offers its
views to the Court pursuant to Rule 29(a)
of the Federal Rules of Appellate Procedure.
I.
Whether the
district court erred in holding that Jefferson’s complaint to Human Resources was
not protected activity under Title VII
because she lacked a good faith, reasonable belief she was opposing unlawful
conduct, when the conduct she reported was a manager’s statements that he was
denying her a transfer because of her race and national origin.
II.
Whether a
reasonable factfinder could conclude that Sewon fired Jefferson in retaliation
for her complaint, where the record includes evidence that Sewon issued a
negative evaluation the same day as her complaint, though her manager testified
that Jefferson was performing her job well, and then fired her seven days later.
A.
Statement of
the Facts
On March 4, 2013,
Jerberee Jefferson began working as a temporary employee at Sewon America, Inc.
(“Sewon”) (D38-4, P46-47, P65)[2], an automotive parts manufacturer and supplier.
D35, P42. Jefferson performed
clerical work in the Finance Department, acting as a secretary to the Finance
team. D38-4, P47-48. She reported to manager Esther Kim, who in turn reported
to manager Jenny Hong, who reported to Nate Jung, Sewon’s
general manager. D38-4, P49-50; D38-6, P7.
After a 90-day period,
Sewon hired Jefferson as a permanent employee on June 13, 2013. D37-3 ¶ 5;
D38-4, P92-93. Sewon’s “Temporary to
Full Time Employment Evaluation” forms for Jefferson noted her
“attendance/break time (perfect)” and her good work attitude. D38-5, P48-49.
At this time, she also received a salary raise, from $8.50 to $10.50. D38-4,
P93-94. Sewon’s Employee Handbook reflects that employees must be employed for
a minimum of 90 days and successfully pass the introduction period to be
eligible to apply for other positions. D38-5, P67. James Dye, an HR
Specialist at Sewon from 2012 to 2015, stated that once Jefferson came off of
temporary status, she was eligible to transfer to any position for which she
was qualified. D37-3 ¶¶ 1, 2, 6.
In July 2013, Jefferson
learned about an opening in Sewon’s IT Department for an IT support system
position. D38-4, P86-87. Around this time, an online job posting
advertised for an IT specialist at Sewon. D36-1, P14 (posting dated July 13,
2013). The ad listed certain responsibilities, did not state a requirement for
minimum years of IT experience, and provided instructions to contact Nate Jung
with a resume and cover letter. Id.
As it was her career goal
to work in IT, she spoke to Gene Chung, manager of the IT Department, about the
opening. D38-4, P87-88; D37-3 ¶ 9. She gave him her resume and told Chung she
had taken computer courses and was willing to take additional courses. D38-4,
P84-85, P106; D38-5. Chung said he had observed she was a good worker and that
he was willing to transfer her. D38-4, P106. He explained the job duties,
such as working with the network server and logging employees into the system (D38-4,
P99, P108), and said he would train her on tasks that her classes had not
covered. D38-5. Chung also sent her to the Quality Department to pick up
a hardware device, had her bring it to him, and had her explain what it was and
what it did. D38-4, P197. Jefferson did the task well. Id. Chung said the task was
“basically what you will be doing while you are working in IT.” Id. He told her the next steps would
include taking a test and getting final approval from Jung. D38-5; D38-4, P106.
At some point in July,
Jefferson spoke to Chung again about the position. He told her it was “still
in process,” D38-5, meaning “he was waiting to get the okay from Mr. Nate
[Jung].” D38-4, P110. After a month passed with no news, Jefferson spoke in
mid-August to Ken Horton, Sewon’s manager of Human Resources (HR). D38-4, P114-15.
Horton said he would speak to Chung and work something out. D38-4, P115.
Around this time, Chung
gave Jefferson a test he pulled offline “to see where [she was] at,” although
he said it would not have any impact. D38-4, P109; D38-4, P115
(reflecting that she took the test after meeting with Horton in mid-August).
Jefferson did not pass the test (D38-4, P128), but Chung told her to review it
and learn the material she had answered incorrectly. Id. at P110. Jefferson later showed
him her research, which he said was good. D38-5. By August
2013, Jefferson had also completed around 35 to 40 hours of IT courses. D38-4,
P28.
On August 16, Kim and
Hong met with HR concerning Jefferson. D38-6, P52-53. Leading up to that
time, Kim had concerns about Jefferson, such as her returning late from lunch (D38-6,
P26, P30-31) and her phone vibrating, which bothered Hong. Id. at P55-6. When asked whether the
consensus on August 16 was nevertheless to “give [Jefferson] something in
writing and figure out a way to make her continue working for the company in a
more productive way,” Kim testified, “Yes.” Id.
at P55.
During the week of August
19, Chung told Jefferson she would be transferred to IT by the end of the week.
D38-4, P148. Around this time (D38-4, P148), Kim and Hong told Jefferson
they would have preferred she had told them first about her interest in
transferring. Id. at P121.
Jefferson apologized. Id. On
a “Probation Evaluation” form dated August 20, 2013, Hong wrote that Jefferson
sought a “transfer to IT Department. She doesn’t look like [stet] to work
continuously as a Finance department team member. For this reason, Finance
department has decided to let her leave.” D38-19. Out of a possible
200 points, Hong scored Jefferson an overall 64. Id.
On August 23, Jefferson
met with Chung. D38-4, P135. He said he could not offer her the job because
Jung “wanted a Korean in that position,” which Jefferson found “hurt[ful].” Id. at P143-44. Chung also said, for the
first time, that she lacked five years of IT experience necessary for the
position. Id. at P136-37. After
this meeting, Jefferson went directly to HR manager Horton’s office. Id. at P147. She reported what had
happened—that “Mr. Nate [Jung] wanted a Korean in that position and I didn’t
understand why.” Id. Horton
told her not to take it personally and “just, you know, brush it off.” Id. Horton denies Jefferson complained
about discrimination. D35, P94, P102.
That same day, August 23,
Kim completed another “Probation Evaluation” for Jefferson at Hong’s request. D38-7.
It is unclear why Kim prepared a second evaluation (following Hong’s evaluation
days earlier); Kim testified she had never before completed a probation
evaluation form. D38-6, P34. Kim
also testified that thereafter, through the date of her deposition in 2016, she
did not fill out that form for any other employee. Id. Kim scored Jefferson 68 points (out
of 200). D38-7. Kim testified that she assigned low scores to Jefferson
in at least one, if not more, categories because she went straight to HR rather
than speaking with her supervisors. D38-6, P32. In the narrative section, Kim
wrote of Jefferson that “Currently, there is no room for improvement.” D38-7.
Despite the low overall score, Kim testified that on August 23, Jefferson was
performing her job well. D38-6, P58.
On August 30, Jefferson
was fired. D38-4, P163. Prior to her termination, Jefferson had received no
written or verbal warnings that she was going to be fired for her performance
or behavior. D35, P95-97. Jefferson testified that she never saw the
probation evaluations until months later at her November unemployment hearing. D38-17, P19-20. Sewon’s
progressive discipline policy, however, sets out verbal warnings, followed by
written warnings, a final warning or suspension, and then termination. D35, P46-47.
According to Horton, Sewon departs from that policy when an employee engages in
illegal or violent conduct. Id. at
P47-48.
HR Specialist Dye met
with Jefferson and told her she was fired because she failed her evaluations.
D38-4, P155, P166. Jefferson asked Dye for more detail, but Dye said he
did not know. Id. at 166.
According to Horton, because Jefferson’s average score was 32.5, which
was below the cut-off of 35, Jefferson was fired. D38-20 ¶ 12. Kim and Hong had given
their scored evaluations to Horton, who compared Jefferson’s average score to
the minimum threshold. Id. at ¶¶
10-11. Thus, Horton was involved in the final decision to fire her. D35, P87.
As for the open IT position, Dye
stated that Sewon sought and hired a Korean male. D37-3 ¶ 11. Kim testified
that there were two hires for the IT position—two Korean men. D38-6, P64-65. Horton,
however, stated that Sewon hired an African-American contract employee in May
2014. D38-20 ¶ 7.
Jefferson filed suit alleging, inter
alia, retaliatory discharge in
violation of Title VII. D1, P11-12. Sewon filed a motion for summary judgment, D38-1, which was referred to the
magistrate.
B.
Magistrate
Report and District Court Decision
The magistrate held that Jefferson’s report of discrimination
was not protected activity under Title VII’s antiretaliation provision because
“Jefferson could not have reasonably believed that the decision not to transfer
her to the IT position constituted an adverse employment action . . . and she
has presented no evidence that she was qualified, or even eligible, for the IT
position.” D57, P68-69. The magistrate found that “the circumstances forming
the basis of Jefferson’s complaint were not sufficiently close to actionable
misconduct under Title VII to warrant an objectively
reasonable belief, measured against existing substantive law, that Sewon”
violated the statute. Id. at P69.
Even if Jefferson could establish a
prima facie case, the magistrate held that she failed to produce evidence to create
a triable issue of pretext. Id. at
P71. Sewon asserted that it fired Jefferson when she failed to meet the
minimum score on her evaluations. Id.
at P70. The magistrate rejected Jefferson’s contention that she had been given
low scores on her evaluations because of her complaint, emphasizing that Hong
had completed her evaluation before Jefferson’s complaint, that Kim’s scoring
on August 23 (the day Jefferson complained) was higher than Hong’s, and that
Horton had never told the supervisors what the minimum score required for
retention was. Id. at P71. The
magistrate noted that Jefferson had provided no evidence that the scores and
evaluations were unjustified, given evidence that her supervisors had concerns
about her “tardiness issues, among other things.” Id. at P71-72, n.45. The magistrate further
noted that Jefferson’s supervisors had been unhappy about her inquiring about a
transfer and characterized her statements at an unemployment proceeding as
admitting that was the reason for her termination. Id. at P72, n.45. The magistrate
acknowledged the close timing of Jefferson’s complaint, the evaluation, and her
termination, but stated that this did not undermine Sewon’s stated reason for
firing her. Id. at 72.
The district court agreed with the
magistrate, stating that the denial of the IT position was not “‘close enough
to actionable misconduct under Title VII
to warrant an objectively reasonable belie[f] that Sewon engaged in activity in
violation of that statute.’” D66, P17 (quoting D57, P68). Because “[e]xisting
Title VII law requires a plaintiff to
prove she was qualified for the IT position and that the denial of that
position constituted an adverse action,” the district court held Jefferson did
not engage in protected activity, as she failed to show “any evidence” that
would support either. Id. The
district court cited no legal authority for this point and did not analyze any
other prima facie element. Id. As
to pretext, the district court agreed that Jefferson had failed to present
sufficient evidence for “all the reasons set forth in the R&R.” Id. at P18. The court therefore granted
summary judgment. Id. at P18-19.
Jerberee Jefferson, who is African-American, alleged
that Sewon violated Title VII’s antiretaliation provision when it fired her
just seven days after she complained to the company’s HR department that she
was denied an IT position because the general manager “wanted a Korean in that
position.” The district court granted summary judgment, holding that Jefferson
could not have had a good faith, reasonable belief that she was opposing
unlawful conduct and, alternatively, that she failed to submit sufficient
evidence of pretext. The court erred, requiring reversal of summary judgment.
Title VII makes it unlawful for
employers to discriminate against their employees based on a protected
characteristic, including race or national origin. See 42 U.S.C.
§§ 2000e-2(a)(1); 2000e-2(m). Accordingly, when there is evidence that a
manager expressly indicates discriminatory bias in an employment decision with
respect to a protected characteristic, this Court has held an employee is
reasonable to believe her employer is acting unlawfully under the statute. Despite
such evidence in this case, the district court omitted it entirely from its
analysis, and instead held that Jefferson lacked a good faith, reasonable
belief because she could not have reasonably believed she was qualified for the
IT position or had suffered an adverse action. This was error. Jefferson’s
qualifications are immaterial to the determination of objective reasonableness
here, where a Sewon official told her she did not receive the transfer because
she is not Korean. Moreover, a jury could find that Jefferson reasonably
believed that she was qualified and that the denial of the IT position
constituted an adverse action.
In addition, the pretext evidence
warrants submission of Jefferson’s retaliation claim to a jury. The record
reflects that prior to her complaint, Sewon had appraised Jefferson’s
performance positively and had issued no written warnings to Jefferson about her
performance jeopardizing her continued employment. The same day that she
complained to Human Resources, however, Sewon issued her a negative evaluation,
and fired her seven days later. A reasonable jury could thus find that Sewon
fired Jefferson in retaliation for her complaint, and not because of purported
performance issues.
Title VII’s antiretaliation provision
makes it unlawful to discriminate against any individual for reporting conduct
he or she reasonably believes to be unlawful under Title VII. See 42
U.S.C. § 2000e-3(a); Payne v. McLemore’s Wholesale & Retail Stores,
654 F.2d 1130, 1140 (5th Cir. 1981). The evidence in this case is sufficient
to show that Jefferson’s report to Human Resources—about the denial of a
transfer because she was not Korean—was protected activity under the statute.
More specifically, under this Court’s precedent the evidence is sufficient to
show Jefferson had a good faith, reasonable belief that prompted her
complaint. The evidence also creates a triable issue as to whether Sewon would
not have fired Jefferson but for her complaint. This Court should reverse the
grant of summary judgment on Jefferson’s retaliation claim, applying a de
novo standard of review. See Weeks v. Harden Mfg. Corp, 291 F.3d
1307, 1312 (11th Cir. 2002) (“We review the
district court’s grant or denial of a motion for summary judgment de novo,
viewing the record and drawing all reasonable inferences in the light most favorable
to the non-moving party.”).
To establish a prima facie case of retaliation, “a plaintiff must prove that he engaged in statutorily
protected activity, he suffered a materially adverse action, and there was some
causal relation between the two events.” Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th
Cir. 2008). Ultimately, the plaintiff must show that “his or her protected
activity was a but-for cause of the alleged adverse action by the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133
S. Ct. 2517, 2534 (2013). In this case, Jefferson produced sufficient evidence
to meet these standards.
Title VII’s antiretaliation provision
makes it unlawful to discriminate against any individual who, inter alia,
“has opposed any practice made an unlawful employment practice” under the
statute. 42 U.S.C. § 2000e-3(a). In evaluating a plaintiff’s opposition
conduct, it is well-established that the action(s) that an employee reports
need not constitute an actual Title VII
violation for the opposition conduct to be protected under Title VII’s
antiretaliation provision. See, e.g., Taylor v. Runyon, 175 F.3d 861, 869 (11th
Cir. 1999). Rather, a plaintiff need only show that she had a “‘good faith,
reasonable belief that the employer was engaged in unlawful employment
practices.’” Weeks, 291 F.3d at
1311.
Under this Court’s precedent, when an
employee’s complaint is prompted by a manager’s statements showing
discriminatory bias in an employment decision, the reasonable belief standard
is satisfied. In Wideman v. Wal-Mart
Stores, Inc., 141 F.3d 1453, 1455 (11th Cir. 1998), for example, this Court
held that a jury could find that the plaintiff, who was black, had a good
faith, reasonable belief that her employer was engaging in unlawful
discrimination where her manager “told her that the craft instructor position
would not be filled by a black person.” Id.
This Court explained, “[b]ecause refusing to fill a position based on race is
illegal discrimination under Title VII, if
Wideman’s testimony is true, she had a good faith, reasonable basis for filing
an EEOC charge.” Id.
at 1455. See also Taylor, 175
F.3d at 869 (holding that plaintiff’s complaint was “protected because she
filed it in good faith believing that the discrimination actually existed,”
where her manager said he chose a male employee for a
promotion because of his “family man” status, and because he needed the money
more than she did).
Here, Jefferson testified that Chung
told her Sewon would not offer her the IT position because Jung wanted it to be
filled by a Korean. This evidence, standing alone, establishes Jefferson’s
objectively reasonable belief that she was discriminated against in violation
of Title VII.
Indeed, being told by a manager that
race or national origin was a factor in an employment
decision would provide any employee with an objectively reasonable basis to
believe an unlawful action under Title VII
was occurring—it is precisely such conduct that the statute prohibits. See
42 U.S.C. §§ 2000e-2(a)(1) (unlawful
to discriminate because of an individual’s race or national origin), 2000e-2(m)
(“[A]n unlawful employment practice is established when the complaining
party demonstrates that race, color, religion, sex, or national origin was a
motivating factor for any employment practice.”). Furthermore, “when there is direct evidence ‘that the defendant acted
with a discriminatory motive, and the trier of fact accepts this testimony, the
ultimate issue of discrimination is proved.’” Thompkins v. Morris Brown Coll., 752 F.2d
558, 563 (11th Cir. 1985). Here, of course, the record contains such direct
evidence—Jefferson’s testimony that the IT manager told her that she was not
selected because she was not Korean.
In light of this Court’s
analyses in Wideman and Taylor, the district court plainly erred
by failing to mention, let alone address, this critical evidence when it held that
the conduct of which Jefferson complained “was not ‘close enough to actionable
misconduct under Title VII to warrant an
objectively reasonable belie[f] that Sewon engaged in activity in violation of
that statute.’” D66, P17.
Rather, the district
court focused exclusively on whether the evidence showed that Jefferson could
have reasonably believed she was qualified for the transfer itself or that the
denial of the transfer was an adverse action. Id. This too was error. As already
discussed, Wideman and Taylor both instruct that where there is
direct evidence of discrimination in an employment decision, such evidence establishes
the plaintiff’s objective reasonableness in believing that conduct to be unlawful
under Title VII. Accordingly, in neither Wideman
nor Taylor did this Court discuss, or even suggest, that any additional evidence
was required to show the plaintiff had a good-faith, reasonable belief she was
qualified for the position she was denied, as the district court did here. See
Wideman, 141 F.3d at 1455; Taylor, 175 F.3d at 869.
The magistrate and
district court’s probing examination of Jefferson’s qualifications for the IT
position is also at odds with the expansive protection that Title VII’s
antiretaliation provision is intended to provide. See, e.g., Crawford
v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 276 (2009) (explaining
that when an employee reports the belief that the employer has engaged in a
form of employment discrimination, that communication “virtually always”
constitutes protected opposition). Placing undue weight and emphasis on job
criteria and the plaintiff’s qualifications is thus improper for the simple
determination of whether a plaintiff had a good faith, reasonable belief to
support her discrimination complaint. See EEOC Enforcement Guidance
on Retaliation and Related Issues, No. 915.004, §II(A)(2)(c) Ex. 1 (2016), available
at https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm#fig1 (stating that an
employee’s complaint that her supervisor failed to promote her because of her sex
“after an apparently less qualified man was selected” is an example showing
that the employee had a good faith, reasonable belief that discrimination had
occurred). See also, e.g., Fine v. Ryan Int’l Airlines,
305 F.3d 746, 752-53 (7th Cir. 2002) (plaintiff had good faith, objectively
reasonable belief in reporting discrimination, as the report was not
“groundless”).
Even considering the record evidence
with respect to qualifications, however, a jury could find that Jefferson
reasonably believed she was qualified for the IT position, and accordingly, that
the only reason Sewon failed to transfer her was because she is not Korean. The
record reflects that Jefferson had taken 35-40 hours of IT courses, that Chung
said he was willing to transfer her, and that he told her she did well on the
IT task that was representative of the work she would do in the IT position. Jefferson
also testified that Chung never told her she lacked the requisite
qualifications for the transfer during their multiple discussions before August
23. Based on this evidence, a jury could easily find that Jefferson was
reasonable to think she was qualified for the IT position.
In addition, Sewon
offered no evidence that the applicants it selected for the IT position had the
five years of experience that Chung belatedly indicated Sewon required. Aside
from undermining the legitimacy of that criterion, the absence of such evidence
also suggests that it would not have been unreasonable for Jefferson, or
any applicant lacking that requirement but satisfying other criteria,
nonetheless to apply. Indeed, common-sense experience teaches that even when
an employer states a preference or minimum experience level, it may not receive applications from any applicants meeting
its exact qualifications but can nonetheless hire one of those applicants based
on other strengths.
Nor does Jefferson’s testimony—that Chung told her another reason for her non-selection was her
lack of IT experience—negate her reasonableness in believing Sewon had acted
unlawfully. Title VII prohibits employers
from making an employment decision where a protected characteristic is a
motivating factor in that decision, “even though other factors also motivated
the practice.” 42 U.S.C. § 2000e-2(m).
Thus, Jefferson could have a reasonable, good faith belief that Sewon
discriminated against her when it failed to select her because she is
non-Korean, even if another reason for her non-selection was her lack of five
years of experience. See also Wideman,
141 F.3d at 1455 (stating that “refusing to fill a position based on race is
illegal discrimination under Title VII”
and holding that plaintiff had a good faith belief when she filed a charge
alleging racial discrimination after being told her race was the reason for her
non-selection).
A jury could also find that
Jefferson reasonably believed that the denial of the IT position was an adverse
action. Jefferson had
been working in a secretarial role, and the transfer she requested would have
involved specialized IT tasks such as assisting others with logging into the
system, working with the network server, and hardware issues. Because the
evidence allows the reasonable inference that the positions involved altogether
different sets of job duties, this evidence shows that Jefferson was
objectively reasonable to believe that the employment action at issue —the
denial of this IT position—was adverse. See, e.g., Hinson v. Clinch Cty. Georgia Bd. of Educ.,
231 F.3d 821, 829 (11th Cir. 2000) (comparing plaintiff’s original position
with the administrative position that the employer proposed to transfer her to,
and assessing whether the transfer was adverse based on a significant change in
“pay, prestige, or responsibility”).
The record evidence thus creates a triable
issue that Jefferson had an objectively reasonable basis to believe she was
reporting unlawful conduct under Title VII,
rendering her complaint protected opposition under the statute. Though neither
the magistrate nor the district court analyzed the remaining elements of the
prima facie case (adverse action and causation), the evidence satisfies the
remaining elements. A termination, of course, is an adverse action. See
Farley v. Nationwide Mut. Ins. Co.,
197 F.3d 1322, 1337 (11th Cir. 1999). As for causation, Horton knew about Jefferson’s
complaint—indeed, he was the one to whom she complained—and was involved in the
decision to fire her, which he did seven days later. This evidence is
sufficient to show causation. See id. (causation
element of prima facie case satisfied by evidence that supervisors were aware
of plaintiff’s protected activity, and evidence of close temporal
proximity—seven weeks—between her protected activity and termination).
To create a triable issue
of pretext, the evidence must “‘permit a reasonable factfinder to conclude that
the reasons given by the employer were not the real reasons for the adverse
employment decision.’” Hulbert v. St.
Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006). Here,
Sewon asserted that it fired Jefferson on August 30 because of the combined low
score on the August 20 and August 23 evaluations. D38-1, P18-19. Sewon also
argued that Jefferson herself believed she was fired because her supervisors
disapproved of her efforts to transfer, and not in retaliation for her
complaint. Id. at P22. The evidence in this case, however, would allow
a reasonable juror to reject Sewon’s asserted rationale and instead infer that
retaliation was the real reason for Jefferson’s termination.
The close temporal
proximity between Jefferson’s August 23rd complaint and her second
negative evaluation on the very same day, and her termination seven days later,
would allow a reasonable factfinder to conclude that her report prompted Sewon
to fire her. See Hulbert,
439 F.3d at 1298 (close temporal proximity between plaintiff’s protected
activity and his termination—two weeks—was evidence of pretext).
The evidence also allows
the reasonable inference that before August 23, Sewon had no intention of
firing Jefferson. Just two months earlier, in June, evaluations for Jefferson
noted, inter alia, her “attendance/break time (perfect),” her good work
attitude, her good relationship with team members, her “keeping deadlines for
given tasks,” and “following company rules/regulations.” D38-5, P49. The
record reflects she received a raise at that time as well. See Farley,
197 F.3d at 1337 (evidence in retaliation case, including plaintiff’s previous
performance evaluations reflecting “his professional competence,” created
genuine issue of fact as to whether defendant’s assertion that it fired
plaintiff for poor work performance was pretext for retaliation). Though Kim
and Hong had expressed some concerns about Jefferson, Kim testified that on
August 16 they agreed only to issue Jefferson a written warning that she needed
to improve. Consistent with Kim’s testimony, Hong’s August 20 evaluation of
Jefferson does not mention firing her or warn that her performance constituted
grounds for termination. Rather, Hong referred to Jefferson’s request to
transfer to the IT Department and wrote that the Finance Department had
“decided to let [Jefferson] leave” because she did not want to stay in the
Finance Department.
That circumstances
changed immediately after Jefferson complained on August 23 would allow a jury
to find that it was Jefferson’s complaint of race and national origin
discrimination that caused Sewon to issue her another negative evaluation that
very day and fire her seven days later. See, e.g., Hairston v. Gainesville Sun Publ’g Co., 9
F.3d 913, 921 (11th Cir. 1993) (as evidence of pretext, emphasizing that
“[i]mmediately preceding and following [plaintiff’s] filing of his
administrative complaints,” employer’s actions toward plaintiff changed by way
of unfavorable evaluations and increased scrutiny from his supervisors). Kim,
who had never before completed a probation evaluation form, completed one on August
23rd at Hong’s request. The low scores Kim gave Jefferson are at odds with
Kim’s testimony that at this time, Jefferson continued to perform her job
duties well. Kim also admitted that she gave Jefferson a low score in at least
one category for going to HR rather than to her supervisors—evidence
permitting the reasonable inference that Kim’s low scoring was, at least in
part, because she had complained to HR. Kim also wrote that there was “no room
for improvement,” although just seven days earlier she and Hong had agreed to
issue a warning to improve Jefferson’s performance.
Although the magistrate
emphasized that Sewon issued one of the two evaluations prior to Jefferson’s
complaint, it was the combined score of both evaluations that formed the purported
basis for Sewon’s termination. Because there is evidence permitting the
inference that the low scores on the second evaluation were retaliatorily low,
in response to Jefferson’s complaint, a reasonable jury could find that Sewon’s
reliance on the combined score as a basis for firing Jefferson was also
retaliatory. Indeed, even assuming an employer has a legitimate basis to fire
an employee before her complaint, evidence that the employer expedited its
termination because of that complaint constitutes a violation of Title VII’s
antiretaliation provision. See Alvarez
v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1270 (11th Cir. 2010)
(where employer had legitimate non-discriminatory reasons for firing plaintiff
before her complaints, and the employer “remained free to act on those reasons
afterward,” the “one thing [defendant] could not lawfully do is fire her
earlier than it otherwise would have because she complained about
discrimination”).
The magistrate also
stated that Jefferson “acknowledged” at her unemployment hearing that she was
fired for seeking a transfer and because her supervisors no longer believed she
was dedicated to the Finance Department. D57,
P72. That is incorrect. Jefferson’s testimony at the hearing reflects only
that she believed those factors affected her supervisors’ scoring of her
evaluation “as well.” D38-5, P122-23. This evidence would not preclude a
reasonable jury from finding that though Jefferson’s supervisors were
displeased with her attempts to transfer, and Jefferson knew this, Sewon would
not have fired her but for her complaint to HR.
Finally, by not issuing
any written warnings or a final warning or suspension before firing Jefferson,
Sewon departed from its progressive discipline policy, which is further evidence
of pretext. See Keene v. Prine,
477 F. App’x. 575, 582 (11th Cir. 2012) (defendant’s departure from its
progressive discipline policy, by “firing her without first taking any less
drastic disciplinary step,” would allow a reasonable juror to doubt its stated
reason for firing her).
For the foregoing reasons, this Court
should reverse the district court’s grant of summary judgment on Jefferson’s Title
VII retaliation claim.
Respectfully submitted,
JAMES
L. LEE
Deputy
General Counsel
JENNIFER
S. GOLDSTEIN
Associate General Counsel
ANNE NOEL OCCHIALINO
Senior
Appellate Attorney
s/ Christine Back
Christine J.
Back
Attorney
U.S. EQUAL
EMPLOYMENT
OPPORTUNITY
COMMISSION
Office of
General Counsel
131 M Street,
N.E., 5th Floor
Room 5NW14P
Washington, D.C.
20507
(202) 663-4734
(phone)
(202) 663-4196 (fax)
christine.back@eeoc.gov
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief
complies with the type-volume requirements set forth in Federal Rules of
Appellate Procedure Rules 29(a)(5) and 32(a)(7)(B). This brief contains 5,302 words,
from the Statement of Interest through the Conclusion, as determined by the
Microsoft Word 2016 word processing program, with 14-point proportionally
spaced type for text and 14-point proportionally spaced type for footnotes.
s/ Christine Back
CHRISTINE J. BACK Attorney
U.S.
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office
of General Counsel
131
M St. N.E., 5th Floor
Washington,
D.C. 20507
(202)
663-4734
christine.back@eeoc.gov
CERTIFICATE OF SERVICE
I hereby
certify that on August 3, 2017, I electronically filed the foregoing brief with
the Clerk of the Court for the United States Court of Appeals for the Eleventh
Circuit by using the appellate CM/ECF system. I further certify that all
counsel of record in the case are registered CM/ECF users and that service will
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accomplished by e-mail
sent by the appellate CM/ECF system.
s/ Christine J. Back____________
CHRISTINE
J. BACK Attorney
EQUAL
EMPLOYMENT
OPPORTUNITY COMMISSION
Office
of General Counsel
131
M Street, NE, 5th Floor
Washington,
DC 20507
(202)
663-4734 (phone)
christine.back@eeoc.gov
