John Bryan, who is black, filed a disparate treatment race discrimination claim against McKinsey & Company, Inc. (“McKinsey”). In a 2-1 opinion, the Fifth Circuit Court of Appeals affirmed the district court’s summary judgment granted in favor of McKinsey. Brian v. McKinsey & Company, Inc.
McKinsey hired Bryan in 1996 to an entry-level associates position. He was promoted to engagement manager in 1999, and then in 2000, he was elected by the partnership to associate principal. An associate principal (“AP”) is assigned a development group leader (“DGL”), who is responsible for assessing the progress of a particular AP and determining whether the AP is prepared to advance to a higher position. Five months after being elected to AP, in December 2000, Bryan’s performance review by his DGL highlighted some trouble points, specifically regarding client development. Bryan was terminated in April 2001. In the months between his December performance review and his termination, Bryan’s client situation worsened. One of his two existing clients asked that he no longer work on its projects.
The Fifth Circuit concluded that Bryan failed to establish a prima facie case of intentional discrimination and, even if he had established a prima facie case of intentional discrimination, he failed to submit evidence establishing either intentional discrimination by McKinsey or that its explanation for his termination was false. With respect to the first prong, Bryan contended that he was counseled to leave McKinsey after a shorter tenure in the AP position than his similarly situated non-black counterparts. Bryan pointed to evidence relating to sixteen similarly situated non-black employees from McKinsey’s Texas offices during the relevant time frame. The court pointed out, however, that the record only contained evaluations of six of the sixteen APs. The court also found the evidence to be unpersuasive because Bryan’s tenure was not the shortest of the APs terminated. A white AP was terminated after less time at the AP level than Bryan. Two others were terminated within two additional months, including one who was the only other AP from the same office as Bryan. A third was terminated within five additional months.
One of the more interesting aspects of this opinion is the Fifth
Circuit’s rejection of Bryan’s argument that he established a prima
facie case of intentional discrimination by showing that the other APs, in addition
to having longer tenure as APs, were given more feedback before being terminated.
The court concluded that, even assuming the truth of Bryan’s allegations,
these employment decisions would only have had a tangential effect upon the
ultimate decision. Both Bryan and his white counterparts were eventually terminated.
The court reasoned that the fact that all of the other APs were terminated or
promoted at different times reflected the “uniqueness of each employee’s
situation.” With respect to McKinsey’s reason for firing Bryan,
the court noted that Bryan admitted that he knew McKinsey was concerned about
his failure to bring in new clients and that one of his existing clients became
dissatisfied with his work.
In his dissenting opinion, Judge Stewart cited to a 1990 opinion of the court,
Vaughn v. Edel, for the proposition that a plaintiff can establish
a prima facie case of intentional discrimination by showing that he was not
given the same opportunity provided to other employees, which in Vaughn
was the chance to improve her performance and avoid termination. Judge Stewart
pointed out record evidence that reflected Bryan’s DGL did not meet with
him on more than one occasion and, in fact, provided little feedback to Bryan.
In contrast, Bryan showed that some white APs were given more feedback. Judge
Stewart was persuaded that Bryan’s evidence—namely, some white APs
promoted at the time same time as he were retained or had longer tenures before
being terminated—raised a fact question that Bryan was treated differently
because of his race.
Submitted by Bill Fisher, a partner in the Texas firm of THOMPSON, COE, COUSINS & IRON LLP. You can reach Bill at 713-403-8210 or via email at bfisher@thompsoncoe.com.
This article appears in Council’s September 2004 Preventing Employment Law Problems in the Texas Workplace newsletter. Click here to subscribe or order a free trial.
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