Virginia Lawyers Weekly VA Lawyers Weekly
An African-American female security engineer’s complaint that a new white male chief information security officer under whom she worked on a Bureau of Indian Affairs contract did not like working with a woman in a managerial position, is not enough to show she engaged in protected activity, and her transfer to another federal contract with no change in pay or benefits, was not a pretext for discrimination; the Alexandria U.S. District Court grants summary judgment to defendant contractor.
No adverse action
Plaintiff cannot prove she suffered adverse action because of her race or sex. She attempts to compare herself to two Caucasian men, to argue that she was treated worse because she is an African-American woman and that the new chief information security officer under whom she worked on the BIA contract did not like working with a woman in a managerial position.
This argument is unpersuasive because the two men she initially cited are not similarly situated comparator-employees. For a comparison to be meaningful, it must clearly show the similarity in misconduct but dissimilarity in consequences between plaintiff and the comparator-employee. M. Teal is not similarly situated for multiple reasons. First, he is employed by SeNet, not by defendant Tikras. An employee of a different company cannot be a comparator-employee. Second, even if defendant employed Teal, Teal was a junior level employee who reported to plaintiff while she worked on the BIA contract. Third, the criticisms against Teal are not similar to the criticisms against plaintiff.
Likewise, J. Sand is not similarly situated. While he was employed by defendant, he was employed at a far more junior level than plaintiff. More importantly, he was terminated for his poor performance, indicating that he received harsher treatment than plaintiff or his misconduct was not similar. In either situation, he is not a meaningful comparator-employee.
Plaintiff also cannot present a prima facie case on her 42 U.S.C. § 1981 claim. Despite her comparisons to Teal and Sand, plaintiff cannot prove that she was treated less favorably than similarly situated employee outside of the protected class. Defendant is entitled to summary judgment on this claim.
Retaliation charge
Plaintiff also has failed to present a prima facie case that defendant retaliated against her for engaging in protected activity. She asserts she engaged in protected activity when she spoke with J. Shlikas about the new security officer’s treatment of her. Plaintiff states she told Shlikas that she believed the new security officer had a problem with her being a black woman in a managerial position. Plaintiff presented no evidence to support her opinion – at the time or now. In contrast, defendant argues that plaintiff did not engage in protected activity until Oct. 28, 2015, when she filed a discrimination charge with the EEOC, a fact of which defendant was unaware until later. Arguably, neither of these actions placed defendant on notice that plaintiff was opposing discriminatory conduct such that plaintiff’s actions constituted protected activity.
Even if plaintiff did engage in protected activity, she still has not satisfied her burden to prove a causal connection between the protected activity and her transfer to another federal agency contract. Further, defendant has provided a legitimate business reason for its action and plaintiff has not proven that the reason given is pretextual. Plaintiff agreed to the transfer and retained the same pay and benefits, including additional incentives to compensate for a change in her commute.
Summary judgment for defendant contractor.
Sanders v. Tikras Technology Solutions Corp. (Hilton) No. 1:16cv985, July 21, 2017; USDC at Alexandria, Va.; Monique A. Miles for plaintiff; Richard D. Kelley for defendant. VLW 017-3-373, 11 pp.
