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Torrey Terrial Townsend was employed by First Student as a bus driver. After Townsend was fired for leaving keys in an unattended school bus, First Student fired him.

Townsend, who is Black, sued her former employer for  race discrimination and wrongful termination under Title VII of the Civil Rights Act of 1964. Specifically, she alleged that she was denied air brake training and that the employer rejected her request for a morning only shift. The  United States District Court for the District of Connecticut dismissed the claims and, in Townsend v. First Student, No. 21-2901-CV, 2023 WL 1807719, at *1 (2d Cir. Feb. 8, 2023), the United States Court of Appeals for the Second Circuit affirmed the dismissal. Let’s break down what happened.

Can an employer not providing training be considered an adverse employment action under Title VII?

Yes, failure to provide training could potentially be considered an adverse action under Title VII of the Civil Rights Act of 1964. Title VII prohibits employment discrimination on the basis of race, color, religion, gender/sex, pregnancy, LGBTQ+ status, national origin. This includes denying equal opportunities for training and development to employees based on any of these protected characteristics. The same would hold true for disability and age discrimination under the Americans with Disabilities Act (“ADA”) and Age Discrimination in Employment Act of 1967 (“ADEA”).

If an employer fails to provide training to employees in a discriminatory manner and this results in negative consequences for certain employees, such as being unable to perform their job duties effectively or being passed over for promotions, this could be considered an adverse action under Title VII.

It is important to note that for an action to be considered adverse under Title VII, it must be serious enough to alter the terms and conditions of employment. Therefore, not all instances of a lack of training would necessarily be considered adverse actions. However, if the lack of training has a significant impact on an employee’s job performance or future employment opportunities, it may be considered an adverse action and in violation of Title VII.

The problem for Townsend, however, is that she admitted during her deposition that the training at issue was only available to trainers and that she was not a trainer. Thus, she admitted that she was not denied the training based on her race, but on her position.

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Can preferential scheduling form the basis of a race discrimination claim under Title VII?

Yes, preferential scheduling can potentially form the basis of a race discrimination claim under Title VII. Because giving certain employees more favorable work schedules can negatively impact their employment opportunities and conditions, it may be considered discriminatory and a violation of Title VII.

For example, if an employer assigns more desirable or higher-paying shifts to employees of a particular race, while giving less desirable or lower-paying shifts to employees of another race, this could be considered discriminatory and in violation of Title VII.

It’s important to note that in order to be considered discriminatory, the preferential scheduling must be based on an employee’s race and must have a negative impact on the terms and conditions of employment. If an employer can demonstrate that the scheduling is based on non-discriminatory factors, such as seniority or skills, then it may not be considered discriminatory under Title VII.

And that was the problem for Townsend. As the United States Court of Appeals for the Second Circuit held that “as for the morning only-schedule, Townsend conceded in her statement filed under Federal Rule of Civil Procedure 56.1 that well before she requested a morning-only schedule, First Student put in place a policy of not granting morning-only schedules to any employees (aside from two employees who were grandfathered into such schedules) because ‘the drivers had to both bring the children to school and bring them back home.’” Id. at *1. Thus, Townsend conceded that the denial of her requested schedule was a uniform policy applied regardless of raced.

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How do you prove pretext in a Title VII case?

In a Title VII case, pretext refers to when an employer’s stated reason for an employment action, such as termination or demotion, is not the true reason, but rather a cover-up for discrimination based on a protected characteristic, such as gender, national origin, religion, race, or color. To prove pretext, an employee needs to show that the employer’s reason for the employment action is false and that the true reason was discrimination.

As reported in more detail by the District Court opinion, Townsend left the keys in an unlocked school bus and twice failed to do a “child check” before exiting the vehicle – while ignoring alarms specifically designed to prompt the driver to do a “child check.” As the District Court held: “Plaintiff did not directly respond to the allegations that she twice failed to remove the keys from the ignition and failed to conduct a child safety check before exiting the vehicle. Plaintiff also did not directly respond to the allegations that she backed the vehicle up without honking her horn. … Plaintiff’s union grieved her termination, but subsequently withdrew the grievance after determining that there was no merit to Plaintiff’s claim.” Townsend v. First Student, No. 3:18-CV-1684(VLB), 2021 WL 4798825, at *6 (D. Conn. Oct. 14, 2021). There also was a video of Townsend leaving the key in the ignition and not performing the “child check.”

Therefore, Townsend could not meet her burden to show that the employer’s reason was false, dooming any claim for wrongful termination.

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Why is it important to have a skilled race discrimination law firm to represent you?

Best Race Discrimination Attorney Answer: Townsend’s attorney should have evaluated these claims in advance and certainly before the deposition. Then after losing in the District Court, Townsend’s attorney backed out of the case, leaving her to pursue the appeal on her own – which is never a good thing. If you feel that you are being discriminated based on your race, whatever race that may be, then call the right attorney. When you call the right attorney to schedule a free and confidential consultation, you will meet with a race discrimination lawyer from Spitz, The Employee’s Law Firm who will help you determine the best way to pursue your legal claims. (Read: What is the Spitz No Fee Guarantee?). Our Ohio, Kentucky, Michigan, and North Carolina race discrimination attorneys are here to fight for your rights to be free from discrimination and harassment.

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The race discrimination and wrongful termination materials available at the top of this employment discrimination page and on this employee’s workplace rights website are for informational purposes only and not for the purpose of providing legal advice. The best course of action to get direct advice regarding your particular set of circumstance is to contact an employee’s rights law firm. Use and access to this employment discrimination and wrongful termination website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, attorney Brian Spitz, or any individual attorney.

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