11th Circuit Concludes: Denial of Equipment, Training, and Opportunities to Attend Meetings May Not Rise to the Level of an Adverse Employment Action for Purposes of Title VII and ADEA Disparate Treatment Claims
ROSSI V. FULTON COUNTY BOARD OF ASSESSORS
U.S. District Court for the Northern District of Georgia; Atlanta Division
Civil Action No. 1:10-CV-4254-RWS
In Rossi v. Fulton County Board of Assessors, six plaintiffs filed suit in the Northern District of Atlanta for various discrimination and retaliation against Fulton County Board of Assessors. Among them was Rebecca Canada, a white female and who was born on March 17, 1958, became employed with Fulton County Board of Assessors as a Residential Appraiser in September 2000. The Fulton County Tax Assessor’s office is responsible for valuing the properties in over 2700 residential neighborhoods in Fulton County, and Ms. Canada’s duties as a Property Appraiser included appraising properties based on mass appraisal using sales and sales ratios.
In January 2007, Ms. Canada was passed over for a promotion, and a younger African-American male co-worker was promoted instead. As a result of the promotion which Ms. Canada believed was discriminatory, she filed a grievance with Fulton County Board of Assessors in February 2007.
Subsequent to her complaint, Ms. Canada was denied (1) training for a mapping class on a new computer system that the appraisers were expected to use, (2) new IAAO appraisal books that set forth standard operating procedure for appraisers and that appraisers consulted regularly to do their jobs, (3) a new Hewlett-Packard calculators, and (4) a new camera. On the other hand, other co-workers who were of a different race, gender, or age were allowed these benefits.
Ms. Canada’s Complaint alleged, among other claims, disparate treatment because of her age, race, and gender, because of the denial of the equipment, training, and opportunities to attend meetings. Other Plaintiff’s also made disparate treatment claims against Fulton County Board of Assessors in regard to denial of the same privileges that Ms. Canada was denied.
District Court Opinion
Fulton County Board of Assessors moved for summary judgment as to all six Plaintiffs, including Ms. Canada. On Ms. Canada’s disparate-treatment claims arising from age, race, or gender discrimination Fulton County Board of Assessors argued that Plaintiff could not establish a prima facie case of discrimination. Specifically, Fulton County Board of Assessors argued that there was no evidence that Ms. Canada was subjected to an adverse employment action. Fulton County Board of Assessors also moved for summary judgment on these same grounds for the other Plaintiffs who asserted disparate treatment based on the denial of equipment, training, and opportunities to attend meetings.
In opposition, Ms. Canada asserted that Hishon v. King & Spalding, 467 U.S. 69 (1984) was controlling. In Hishon, the Plaintiff argued partnership consideration was a term, condition, or privilege of an associate’s employment, and a denial of that benefit was sufficient to state a Title VII claim for disparate treatment. The U.S. Supreme Court agreed, finding that becoming a partner was part and parcel of an associate’s status as an employee because, “the benefit of partnership consideration was allegedly linked directly with an associate’s status as an employee.” This prospect was underscored by the facts that the company explicitly used the prospect of ultimate partnership to induce young lawyers to join the firm and associates’ employment was terminated if they were not elected to become partners. Id. at 76. Ms. Canada reasoned that denial of certain items, such as equipment, training opportunities, and opportunities to attend meetings, constituted denial of “terms and conditions of employment” as proscribed in Hishon.
The District Court disagreed with the analogy, and found that, “To analogize Hishon to the case at hand, the Court would have to find that the promise of receiving new equipment was a primary factor inducing Plaintiff to work for Defendant, such that it became “a term, condition, or privilege of her employment.” The Court found that the Plaintiff had not offered facts that would support such a conclusion. The Court also noted that Ms. Canada failed to cite any cases in which a court found that a plaintiff provided with tools adequate to do her work suffered an adverse employment action by being denied newer tools.
The District Court agreed with Fulton County Board of Assessors, and found that denial the privileges that Ms. Canada cited did not rise to the level of an adverse employment action. In so holding, the District Court cited Davis v. Town of Lake Park, 245 F.3d 1232 (11th Cir. 2001), which held,
Whatever the benchmark, it is clear that to support a claim under Title VII’s anti-discrimination clause the employer’s action must impact the ‘terms, conditions, or privileges’ of the plaintiff’s job in a real and demonstrable way. Although the statute does not require proof of direct economic consequences in all cases, the asserted impact cannot be speculative and must at least have a tangible adverse effect on the plaintiff’s employment. We therefore hold that, to prove adverse employment action in a case under Title VII’s anti-discrimination clause, an employee must show a serious and material change in the terms, conditions, or privileges of employment. Moreover, the employee’s subjective view of the significance and adversity of the employer’s action is not controlling: the employment action must be materially adverse as viewed by a reasonable person in the circumstances.
Id. at 1239 (emphasis in original).
In addition to granting summary judgment to the defense on Ms. Canada’s disparate treatment claims based on denial of equipment, training, and opportunities to attend meetings, the Court also found for the defense on these same grounds as to the other Plaintiffs who asserted disparate treatment on account of denial of these privileges.
11th Circuit’s Opinion
Ms. Canada and all of the other Plaintiffs who asserted claims of disparate treatment based on denial of equipment, training, and opportunities to attend meetings appealed the District Court’s decision. On appeal, the Plaintiffs objected to the conclusion that denial of these privileges did not rise to the level of an adverse employment action. The Plaintiffs again relied heavily on Hishon, and asserted that, under Hishon equipment, training opportunities, and opportunities to attend meetings are benefits or privileges of employment that cannot be distributed in a discriminatory manner.
Like the District Court, the 11th Circuit disagreed with the Plaintiffs’ reliance to Hishon, and found that Hishon provided a weak analogy to their claims in the case at hand. The Court simply stated that the conduct complained about was “not such that the denial of such matters resulted in a material alteration of the terms of employment,” and filed to provide further guidance on that would constitute a material alteration of the terms of employment.
The 11th Circuit issues little guidance on what will constitute an adverse employment action for purposes of a disparate treatment claim under Title VII or the ADEA. What is clear is that a Plaintiff does not suffer an adverse employment action where the Plaintiff is provided with tools adequate to do her work and is denied newer tools. On the other hand, as in Hishon, it is clear that a Plaintiff does suffer an adverse employment action when she is denied partnership that is linked directly with the Plaintiff’s status as an employee. There may be a situation where denial of equipment, training, and opportunities to attend meetings are linked more closely with the Plaintiff’s status as an employee, and thus constitute an adverse employment action, but for now, the question of where that line can be drawn goes unanswered.
Author: Rachel H. Smith, Esq.