Gender & Disability Discrimination Claims Dismissed; Denial of Training Was Not “Adverse Action” and Reduction-in-Force Termination Was Not Pretext

In Koss v. Strippit, Inc., No. 12-CV-486, 2016 WL 3963204 (W.D.N.Y. July 22, 2016), the U.S. District Court for the Western District of New York upheld the Magistrate Judge’s Report and Recommendation that defendant’s motion for summary judgment be granted and that plaintiff’s gender and disability discrimination claims be dismissed.

This decision is instructive on how courts apply the McDonnell Douglas burden-shifting framework for analyzing such claims.

For example, the court held that the denial of plaintiff’s request for training was not an “adverse employment action.” While denial of training can, under some circumstances, constitute an adverse employment action (specifically, where the employee can show a “loss of career advancement opportunities”), those circumstances were not present here. The court noted that it was “undisputed that (1) her then-current employment did not change in any way as a result of the denial of training, (2) no positions requiring the training were available at that time, and (3) Strippit nevertheless was amenable to considering her for the position to which she aspired without the training.”

The court also rejected plaintiff’s attempt to establish an inference of discrimination by comparing herself to a male colleague to whom defendant offered additional training. Plaintiff was required to “show that she was treated less favorably than comparable male employees in circumstances from which a gender-based motive could be inferred.” The law provides that “[w]hether two employees are similarly situated ordinarily presents a question of fact for the jury … but a comparator must be similarly situated in all material respects.” Here, the male employee’s “education and background in computer programming, which was ‘very attractive’ to Strippit, distinguished him from Koss in a material and significant way.” Specifically, while defendant believed the male employee “had the capacity to make a significant contribution to our engineering team by designing … software”, plaintiff “had no such education or background and sought training in a new field, which had become increasingly integrated into the tasks performed directly by Strippit’s engineers.”

There was also insufficient evidence that the legitimate, nondiscriminatory reason for plaintiff’s termination – a reduction in force – was a pretext for unlawful discrimination. This decision illustrates, once again, that bad employment decisions are not necessarily unlawful/discriminatory:

[E]ven if Strippit did not actually save money by terminating Koss’s employment, that would not suggest that the termination was pretextual. Sometimes, employers make decisions designed to save money that simply do not work. An employee might be fired or furloughed as a cost-saving measure, and the employer might find that it actually lost money as a result. That would make the termination a bad decision, not a discriminatory one. Here, Koss’s job was terminated along with the jobs of five others, all men. At around the same time, nearly one quarter of Strippit’s nonunion employees lost their jobs. To suggest that all that was a pretext to get rid of Koss defies credulity.

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