Executive Summary: On June 1, 2018, the U.S. Court of Appeals for the Eleventh Circuit in Jefferson v. Sewon America, Inc., No. 17-11802, held that the McDonnell Douglas burden-shifting framework does not apply to discrimination claims where the plaintiff offered direct evidence of discrimination, even though the plaintiff herself called her evidence circumstantial and analyzed her claims under that framework. Jefferson is part of the Eleventh Circuit’s recent trend of reducing the burden on employment discrimination plaintiffs at the summary judgment stage, making it easier for them to proceed to trial before a jury.
Background
In Jefferson, an African American finance clerk claimed Sewon America, Inc. (“Sewon”) denied her a job transfer to an IT position because she was not Korean, in violation of Title VII. In support of her claim, she testified that the manager of the IT Department told her she was ineligible for the transfer because she lacked experience and because a higher-ranked manager “wanted a Korean in the position.” The lower court ruled in favor of the employer on Jefferson’s failure-to-transfer claim, finding the claim failed under the McDonnell Douglas burden-shifting framework. The court first found Jefferson failed to establish a prima facie case, as she could not prove the denial of her request to transfer constituted an adverse employment action. The lower court further found: (1) the employer had a legitimate, non-discriminatory reason for denying Jefferson the transfer (she was not qualified); and (2) Jefferson did not prove that reason was pretext for discrimination.
The Eleventh Circuit’s Decision
The Eleventh Circuit reversed the lower court, concluding it should not have applied the McDonnell Douglas test because Jefferson’s testimony that Sewon wanted a Korean in the position constituted direct evidence of discrimination. Because of that direct evidence, whether Sewon could show that it had a legitimate, non-discriminatory reason for not transferring her (she was not qualified for the position) was irrelevant. The Eleventh Circuit thus remanded to the lower court for further proceedings consistent with its opinion.
The Eleventh Circuit’s reversal is noteworthy because Jefferson had consistently referred to her evidence as circumstantial—even on appeal—and had not objected to the application of the McDonnell Douglas test until after the magistrate judge in the district court had recommended granting the employer’s summary judgment motion. The Eleventh Circuit found that a plaintiff cannot waive the application of the correct legal test to a claim.
In addition, the Eleventh Circuit indicated its willingness to find an adverse employment action based on a refusal to transfer even where the desired position would not involve an increase in wages or other benefits. The court found Jefferson established she was subjected to an adverse employment action when she was denied a transfer to the IT position, in part, because Jefferson “preferred” the position and would have received training related to the job if transferred. The Eleventh Circuit held that the “promise of education and experience” in a specific skilled position constituted a material benefit.
The Eleventh Circuit previously limited the applicability of the McDonnell Douglas framework in a February 2016 case, Quigg v. Thomas County School District, 814 F.3d 1227 (11th Cir. 2016), and in a January 2016 unpublished case, Chavez v. Credit Nation Auto Sales, LLC, 641 F. App’x 883 (11th Cir. 2016). In Quigg, the Eleventh Circuit articulated a new test for Title VII mixed-motive claims, holding that, to survive summary judgment, a plaintiff need only provide evidence sufficient to show that discrimination was a reason (among others, including legitimate reasons). The Eleventh Circuit concluded the plaintiff—a female school superintendent—had presented sufficient evidence under this test to proceed to trial on her claim that she was not renewed by the school board because of her gender due to certain statements by board members showing that they preferred men for the position at issue. Similarly, in Chavez, the Eleventh Circuit held that the McDonnell Douglas framework was not appropriate for analyzing mixed motive claims.
Employers’ Bottom Line:
Following Sewon, Quigg, and Chavez, evidence of discriminatory remarks that would not have been sufficient under the Eleventh Circuit’s prior case law may now be sufficient for the employee’s claim to reach a jury. Moreover, because plaintiffs cannot waive the application of the correct legal test to their claims, courts may reject the more burdensome McDonnell Douglas framework when analyzing a plaintiff’s claims at the summary judgment stage, even where the plaintiff herself urges the court for its application. Employers in Florida, Georgia, and Alabama should ensure they are evaluating potential discrimination claims in light of the Eleventh Circuit’s recent case law.
If you have any questions regarding this decision or other labor or employment issues, please feel free to contact the author, Jessica Asbridge, jasbridge@fordharrison.com, a counsel in our Atlanta office. You may also contact the FordHarrison attorney with whom you usually work.