Change from full-time to part-time not an adverse action

Where an employee voluntarily left her employment after her position was downgraded from full-time to part time, she was not constructively discharged. and the change did not constitute an adverse employment action sufficient to establish a prima facie case of discrimination or retaliation.

Background

Kenya Brown is an African American woman who was employed by Akima LLC as an independent contractor in November 2014. In May 2015, she was offered full-time employment as an IT solutions analyst. She initially worked in the finance department, supervised by Scott Bohnic. When she was transferred to the IT department, Navid Falconer became her supervisor. Falconer often failed to respond to Brown’s emails in a timely manner. Although Brown received positive performance reviews, she never received a pay raise. Other Akima employees did receive pay raises, but those employees did not report to Falconer and did not hold the position of IT solutions analyst.

In May 2017, Brown requested permission to attend the annual Deltek Users Conference that she had attended while working for the finance department. Her request was denied on Sept. 30, 2017. Another employee that reported to Falconer, Ms. Quam, was allowed to attend. Quam held a higher-level manager position than Brown, and Brown occasionally assisted Quam with her work. Three other employees, all of whom held higher-level positions than Brown and one of whom was African American, were also allowed to attend the conference.

Brown complained to Bohnic that she was not allowed to attend the conference. She reported that she felt like she was being treated differently than other employees, but she did indicate any concerns that the treatment was due to her race.

At some point during her tenure, Brown’s colleagues, two of whom were African American, made unfavorable comments to her. The comments were not race-based but suggested a level of disrespect toward Brown.

In the summer of 2017, Akima began looking for ways to become more cost-effective. As part of this effort, Falconer spoke with the Human Resources Department about changing Brown’s position to part-time. On Oct. 6, 2017, Brown was notified that the position was no longer needed as a full-time role. She was offered a part-time, on-call position but turned down the offer because it did not include benefits. Her employee separation agreement stated that the parties agreed to mutually sever the employment relationship effective Oct. 20, 2017.

Brown’s duties were initially assumed by a team that included one African American employee and two other individuals. Currently, Akima contracts with an African-American to do the work previously performed by Brown.

On Feb. 20, 2018, Brown filed a complaint against Akima for discrimination, retaliation, and hostile work environment. Defendant now moves for summary judgment.

Analysis

Brown fails to establish a prima facie case for discrimination because she cannot demonstrate the existence of any adverse employment action. The termination of her employment is insufficient because the employee separation agreement clearly demonstrates that Brown left Akima voluntarily. Her supervisor’s delay in responding to her emails and the denial of permission to attend a conference cannot be considered adverse employment actions as they did not affect the terms, conditions, or benefits of Brown’s employment.

In addition, after leaving her employment, Brown was not replaced by someone outside of her protective class. Brown also fails to demonstrate that similarly situated employees received more favorable treatment as the employees permitted to attend the conference were all in different, higher-level positions than she was, and one of those employees was also African American. Similarly, the employees who received pay raises when Brown did not all held different positions and did not report to the same supervisor as Brown.

As Brown has failed to demonstrate the existence of an adverse employment action, she is unable to establish a prima facie case for retaliation. In addition, Brown’s informal complaint to her former supervisor that she was not allowed to attend a conference did not constitute a protected activity as Brown never voiced any concerns that the denial was due to her race.

Finally, the negative comments by Brown’s coworkers did not create a hostile work environment. There is no indication that these comments were based on her race and the comments were not sufficiently severe and pervasive that they altered the terms and conditions of her employment and created an abusive working environment.

Motion granted.

Brown v. Akima LLC, Case No. 1:18-cv-186, April 4, 2019. EDVA at Alexandria (Hilton). VLW 019-3-175. 15 pp.