At the risk of being accused of understatement, we would put forth that management team members do not always agree. Differences in perspective and opinion are what make collaborative decision making useful. But sometimes managers’ divergent opinions may be not only wrongheaded but also downright illegal. And when one team member bases his input on impermissible reasons, that one voice can infect the ultimate decision even though others may have legitimate business reasons for being in favor of the very same result. The following case exemplifies how one manager’s improper motive overtook the legitimate business judgments of the other team members.
A New Hire with Ambition
Jerberee Jefferson, an African American, worked as a clerk in a company’s finance department. While she was still in her probationary period, she approached Gene Chung, a manager in the IT department, and expressed interest in transferring to his area. Chung told her he supported the transfer and she could soon switch departments.
Jefferson had been taking technology classes at a local college and had the “career goal” of working in IT. Chung interviewed her and told her that he liked her “work ethic” and was willing to transition her to the IT department. He also encouraged her to continue her coursework and told her he would train her in anything she didn’t learn in school if it was job-related.
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. He told her that she would be transferred over to the IT department by the end of the week. After meeting with Chung, Jefferson also spoke to his firm’s HR manager, who told her that “he would talk to Chung and work something out” so she could switch departments.
Ambition Doesn’t Necessarily Equal Competence
In August, Chung gave Jefferson a “basic knowledge” test about computers. Jefferson admitted she didn’t do very well on the test. Chung claimed she performed so poorly that he was no longer interested in employing her in the IT department. However, he told her the job wasn’t “dependent on” the test. After she 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 research and her new responses. Jefferson testified that she believed he was still 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, who reported to Hong, was Jefferson’s immediate supervisor. Both supervisors told Jefferson they wished she had come to them first about the transfer rather than going to Chung. But Jefferson explained that the managers “didn’t seem mad” and there was “mutual agreement” that she could transfer.
Jefferson also had irritated her managers by coming back late from lunch several times and failing to silence her personal phone at work. Despite those issues, the managers decided on August 16 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. The evaluation underscored that Jefferson “disregarded policies and procedures” requiring her to report to “her direct supervisor” and that she did not “want to work with her direct supervisor.”
And Then the Goalpost Moves
On August 23, Chung met with Jefferson and told her, for the first time, that she couldn’t transfer to the IT 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 alleged race discrimination to Horton, the HR manager, who told her not to “take it personally” and to “brush it off.”
On the same day Jefferson complained about race discrimination, Kim filled out a performance evaluation that gave Jefferson a score of 68 out of 200. The evaluation stated that she “disregarded policies and procedures and did not inform her direct supervisor of problems.” Kim concluded that “there was no room for improvement.” Despite those deficiencies, the review also stated that Jefferson “came to work on time every day” and “worked well and completed 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 issues cited in her evaluation of Jefferson.
Horton collected Hong’s and Kim’s evaluations, averaged the scores, and applied a pre-established minimum baseline. Jefferson received a score of 32.5, below the pre-established threshold for termination, which was 35. Horton explained that the same method had been used for other introductory employee evaluations (i.e., it wasn’t a threshold applied only to Jefferson’s average score) and claimed he “never advised Kim or Hong of this pre-established score before they completed the evaluations.”
One week later, on August 30, the company fired Jefferson. She received no written or final warning before her dismissal despite the company’s “progressive discipline policy,” which calls for oral warnings, a written warning, and a final warning before an employee is terminated. Horton later testified that it was important to follow the progressive discipline policy, but the company might depart from it in cases of sexual harassment, violence, illegal conduct, or other egregious misconduct.
Jefferson sued, claiming that her company (1) discriminated against her on the basis of her race and national origin when it refused to transfer her and later fired her and (2) fired her in retaliation for her complaint to Horton. After the case was thrown out by the trial court, she appealed.
Is Transfer Really That Big a Deal?
Our court of appeals began with the question of whether the denial of the transfer was really an adverse employment action since there was no difference in pay between the IT job and Jefferson’s clerk position. The court found that Jefferson preferred the IT position because she was enrolled in IT classes at the time and repeatedly expressed interest in that career path. Moreover, she testified that Chung told her “he would train her in anything that she didn’t know from school if it was related to the job.” The promise of education and experience in a specific skilled position is a material benefit sufficient to make the denial of the job an adverse action.
Next, the court addressed the direct statement of discriminatory preference for the candidate who would fill the position. Jefferson claimed that Chung told her he couldn’t offer her the job because Jung, a higher-ranking manager, said he wanted a Korean in the position. That statement by a company executive was sufficient by itself to get Jefferson’s case to a jury—no matter how good the company’s other explanations (including the poor evaluation) might be.
Timing Is Everything—Or at Least It Can Be
The court of appeals also reviewed Jefferson’s claim that she was fired in retaliation for complaining to HR. Her company claimed it fired her because she received failing scores on a pair of employment evaluations. The company pointed out that the evaluations were tied to her probationary status and that no other employees kept their jobs after receiving failing scores. Further, the two evaluators didn’t know the number that constituted a passing score, so neither could have intentionally issued a failing report, according to the company.
The timing was too suspicious, however. On August 23, Jefferson complained about Jung’s alleged remark that he wanted to fill the open position with a Korean. On the same day, Kim filled out an evaluation of Jefferson, and the company fired her exactly one week later. In addition, Kim testified that she had never filled out the same type of evaluation for any other employee or reprimanded anyone else for the same kinds of issues cited in the evaluation. And Kim’s evaluation also stated that Jefferson was “working well and completing her tasks in a timely manner.” In addition, the court noted that her company failed to follow its progressive discipline policy, which provided for several warnings before termination.
As a result, the court of appeals sent Jefferson’s retaliation claim back for a jury to decide as well. Jefferson v. Sewon America, Inc. (11th Cir., 2018).
What’s a Manager to Do?
You hope that through education and training, your managers gain the understanding that they can’t make decisions based on illegal motives like race and national origin. This case illustrates why top managers need to be included in your educational initiatives. But what do you do when managers still say dumb things? You take them out of the decision-making process. Once someone utters discriminatory statements, his input is tainted, and you must rely on other management team members (who hopefully haven’t voiced dumb comments) to make the decision based on legitimate business criteria.