Criticism of Work, Failure to Provide Desired Schedule (Etc.) Were Not “Adverse Employment Actions”

In Green v. Avis Budget Grp., Inc., No. 11-CV-00269V(F), 2017 WL 35452 (W.D.N.Y. Jan. 4, 2017), the court dismissed plaintiff’s employment discrimination (disparate treatment), hostile work environment, and retaliation claims.

Here I’ll discuss the court’s evaluation of the “adverse employment action” element of the prima facie case^[1]“To establish a prima facie case of employment discrimination based on disparate treatment, Plaintiff must demonstrate (1) she belonged to a protected class; (2) she was qualified for the position she held; (3) she was subjected to an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination.” (Emphasis added) of plaintiff’s disparate treatment claim.

The law, as summarized by the court:

A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment. Examples of a change include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices … unique to a particular situation. An adverse employment action is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities.

The court agreed with defendants that, other than plaintiff’s termination, plaintiff did not suffer any “adverse employment action.”^[2]The court concluded that plaintiff “fails to point to any evidence that … the termination of Plaintiff’s employment[] occurred under circumstances giving rise to an inference of racial discrimination.” In reaching this conclusion, the court explained, inter alia, that “Plaintiff points to no Caucasian employees who were not disciplined for engaging conduct similar to that for which Plaintiff’s employment was terminated” and that plaintiff “fails to point to any evidence of racially derogatory comments aside from a single comment” (which it characterized as a “stray remark”)

For example, plaintiff asserted that she received excessive scrutiny and criticism of her work. However:

[C]ourts in th[e Second C]ircuit have found that reprimands … and excessive scrutiny do not constitute adverse employment actions in the absence of other negative results such as a decrease in pay or being placed on probation. … [C]riticism of an employee (which is part of training and necessary to allow employees to develop, improve and avoid discipline) is not an adverse employment action. … Nor does rudeness, including being yelled at, constitute an adverse employment action.

Here, plaintiff “makes no claim, nor does the record contain any evidence, that the alleged criticism by Defendants resulted in any negative employment action.”

Nor did defendants’ failure to provide plaintiff with her desired work schedule constitute an adverse employment action. “A work schedule amounts to an adverse employment action for purposes of establishing disparate treatment only where the schedule change implicates a change in duties, compensation, or benefits.” Plaintiff did “not assert, nor point to any evidence, that such scheduling constituted a demotion, required Plaintiff to perform an inordinate amount of work, or resulted in more job duties, less pay, or fewer benefits.”