The 4th Circuit CoA Reversed the Granting of Summary Judgment to the employer, Finding Merit in a Claim of Discriminatory Discharge

In Burgess v. Bowen, Denise Burgess, an African American female, worked as an executive for the Special Inspector General for Iraq Reconstruction (“SIGIR”).  Burgess had requested an administrative assistant be hired for her and another African American woman, Patricia Redmon, was hired.  Ginger Cruz a former employee of SIGIR came back to the agency and was installed in a director position directly supervising Burgess in June 2007.  Cruz immediately took a disliking towards Burgess and made comments like “people who file discrimination complaints are weak links in the chain . . . looking to excuse their own personal failing.”  In July 2007, Cruz fired Redmon.  Burgess sent an email to Cruz questioning the “fairness and equality” of the termination.  Later that day Cruz called Burgess into a meeting and announced that her position was being eliminated because of budget constraints.  Cruz put Burgess on administrative leave.  Separately, she began the process of drafting a job description for a new, but very similar job.  This job was given to a white woman who had previously worked at SIGIR, but was terminated in part for performance.  It is typical for terminated or laid off employees of SIGIR to receive other jobs within the agency.  Despite records of Burgess’s laudable performance, she was not given another position.  Burgess was the only African American member of SIGIR’s senior management at the time, the only member of senior management to be involuntarily terminated, and the only SIGIR employee terminated as part of the agency’s reorganization.

Burgess claimed Title VII violations of discriminatory discharge, failure to transfer, and retaliation.  The district court granted summary judgment to the defendant on all claims.  The Fourth Circuit unanimously reversed as to all claims.  Burgess first argued that she suffered racial discrimination when her position was terminated and when a less qualified white woman was selected for the new position created in its place.  Unlike the district court, the Court found Burgess had made out her prima facie case because she had presented sufficient evidence that the new position was functionally equivalent to her old one.  The Court also found “significant inconsistencies” in the purported rationale that budget cuts necessitated Burgess’s termination, and held that “such evidence standing alone was sufficient to show pretext after SIGIR proffered its nondiscriminatory explanation.”

With regard to the denial of transfer claim, the defendant’s purported rationale was that Burgess “was not the person for the job,” and was unwilling to do low-level tasks.  On this point, Burgess pointed to evidence showing that she was awarded a bonus for exemplary performance and that she routinely worked late hours to execute the functions of the Public Affairs office.  Also, her replacement had previously been fired for poor performance.  And, SIGIR’s rationale was so vague that it could conceal racial animus.  Crediting this evidence, the Court found it showed “inconsistencies undermining the credibility of SIGIR’s proffered explanation,” and under Reeves, Burgess was required to do no more to survive a motion for summary judgment.

On the retaliation claim, the Court found that Burgess’s complaint regarding Redmon, namely the email to Cruz, constituted protected activity.  With causation, as in Okoli, the Court found it “deeply suspicious” that Cruz took all of her actions against Burgess only after Burgess challenged the fairness and equality of the decision to terminate Redmon.  Notably, Cruz admitted that she would have considered offering Burgess another position had the conversation during Burgess’s termination meeting gone differently.  And, as with the discrimination claims, the evidence of pretext was sufficient to overcome summary judgment.