such intricacies at this time nor must it delve into the issue of whether the new or the old standard properly applies to plaintiff's case. This is because under either standard, plaintiff has failed to establish a prima facie case on his claims and, even if he has, he has failed to rebut or disprove the defendants non-discriminatory reason for discharge. Indeed, plaintiff has offered little proof of the existence of unlawful discrimination other than the allegations contained in the complaint. The proof at trial showed, almost without contradiction, that plaintiff was discharged because he could not adequately perform the functions and duties of his position. While the plaintiff attempted to show otherwise, there was little to indicate that such a specifically articulated reason for his discharge was a pre-text for discrimination. On this claim as on the ones above, plaintiff has failed to carry his burden of proof.
D. Retaliatory Discharge
Where, as in the case at bar, plaintiff alleges that his termination was motivated by the employer's retaliation for protected Title VII activity, the shifting burden is essentially the same as in the discriminatory discharge context, although the prima facie case contains somewhat different elements. Cosgrove v. Sears Roebuck & Co., 1992 U.S. Dist. LEXIS 185, 1992 WL 8718 (S.D.N.Y. 1992). "To make out a prima facie case of retaliation, a plaintiff must show participation in protected activity known to the defendant, an employment action disadvantaging the person engaged in the protected activity, and a causal connection between the protected activity and the adverse employment action." Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991); See also, Sumner v. United States Postal Service, 899 F.2d 203, 208-09 (2d Cir. 1990).
To establish that activity is protected under Title VII, a plaintiff need not prove the merit of the underlying discrimination complaint, but only that plaintiff "was acting under a good faith, reasonable belief that a violation existed." Sumner, 899 F.2d at 209. Here, there is no doubt that plaintiff's complaint to the NYSDHR was protected activity and that the employer knew of such action. Further, there can be little doubt that the eventual employment decision made by the employer, namely, the discharge of the plaintiff, was disadvantaging to the plaintiff. However, there is little evidence, if any, that there existed a causal connection between the protected activity and the eventual discharge.
While the law holds that the causal connection between the protected activity and the adverse employment action may be proved in various ways,
plaintiff has failed to show any connection between the two events other than the bald assertions made in the complaint. On the contrary, the overwhelming weight of the evidence showed that the plaintiff's discharge had no connection to the earlier filed NYSDHR complaint but rather that it was based on plaintiff's poor work performance.
Even assuming (once again) for purposes of argument that plaintiff has established a prima facie case of discriminatory retaliation, the defendant has articulated a precise, non-discriminatory reason for the discharge which remained un-rebutted by the plaintiff.
While the Second Circuit has said that "Title VII is violated if a retaliatory motive played a part in the adverse employment actions even if it was not the sole cause, and if the employer was motivated by retaliatory animus, Title VII is violated even if there were objectively valid grounds for the discharge," Sumner 899 F.2d at 209 (citations omitted), the evidence has shown that retaliatory animus played no role in the discharge.
Consequently, the court must find that plaintiff has failed to establish a prima facie case of discriminatory retaliation and has failed to rebut the defendant's non-discriminatory basis for discharge. Therefore the retaliation claim must be dismissed.
The court concludes that plaintiff has failed totally to make out a prima facie case with respect to any of his Title VII claims. Plaintiff has certainly established that he is in a protected class and demonstrated that at least at the time he was hired his qualifications matched those required by the defendant employer. However, the proof was uniform that his performance during the course of his employment with the defendant was sub-par and inadequate. Additionally, it was abundantly clear that the reasons defendant's employees gave for firing him were for legitimate non-discriminatory reasons. Plaintiff failed entirely to submit any proof that the reasons articulated by defendant's employees were pre-textual in nature and for these reasons plaintiff's Title VII claim is dismissed. Therefore, it is hereby ORDERED that the Clerk of the Court is to enter judgment in favor of the defendant on all remaining claims and to close both files.
IT IS SO ORDERED.
Dated at Binghamton, New York
July 10, 1993
Thomas J. McAvoy
Chief U.S. District Judge