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Jefferson v. Sewon America, Inc.

United States Court of Appeals, Eleventh Circuit

June 1, 2018

JERBEREE JEFFERSON, Plaintiff - Appellant,
v.
SEWON AMERICA, INC., Defendant-Appellee.

          Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 3:15-cv-00078-TCB

          Before WILLIAM PRYOR and JULIE CARNES, Circuit Judges, and CORRIGAN, [*] District Judge.

          WILLIAM PRYOR, Circuit Judge

         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.; 42 U.S.C. § 1981. Jefferson, an African American, worked for Sewon as a clerk in its finance department. While Jefferson was still in her probationary period of employment, she approached a manager in the information technology department, Gene Chung, and expressed interest in transferring to his department. Chung told Jefferson that he supported the transfer and that Jefferson could soon switch departments. But he later informed her that she was ineligible for the transfer because she lacked experience and because a higher-ranked manager "wanted a Korean in that position." Jefferson immediately reported this statement to the human resources department, and a week later, Sewon fired Jefferson. Jefferson then sued, and the district court granted summary judgment in favor of Sewon. We reverse in part because Jefferson presented direct evidence that Sewon failed to transfer her on the basis of her race and nationality and circumstantial evidence that Sewon fired her in retaliation for her complaint, and we affirm in part because Jefferson failed to present substantial evidence that Sewon fired her on the basis of race or national origin. And we remand for further proceedings.

         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, 683 F.3d 1283, 1291-92 (11th Cir. 2012). Second, we describe the proceedings in the district court.

         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.; 42 U.S.C. § 1981. During discovery, Jefferson submitted an affidavit from Dye, the human resources specialist. One paragraph of the affidavit stated that "Jefferson was terminated because of her complaint of discrimination." But Dye's affidavit failed to describe a basis for any personal knowledge of this fact. Indeed, other portions of the affidavit took the contrary position that "Jefferson was terminated after failing to score high enough on her 60-day evaluation" and stated that Dye specifically recalled that Jefferson fell "just short of the minimum requirement." Dye's affidavit also asserted that Sewon subjected "American employees" to stricter discipline than "Korean employees, " but it again failed to offer specific examples of this disparity or to explain how Dye formed this knowledge.

         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 ...


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