"logical relationship" between the claims. Accordingly, I conclude that the first counterclaim is compulsory and not permissive.
The same cannot be said for the second counterclaim. Defendant's allegations with regard to plaintiff's failure to adequately perform after her illness do not relate to the same facts that are essential to plaintiff's claims. Rather, the sole connection is that the counterclaim relates to plaintiff's employment. As discussed above, such a loose relationship, absent more, does not suffice to establish that the counterclaim arises out of the same "transaction or occurrence" as plaintiff's claims. Kolta, 1975 U.S. Dist. LEXIS 16723, 1975 WL 271 (counterclaim alleging poor performance not compulsory in discrimination case). I therefore conclude that the second counterclaim is permissive. As there is no independent basis for federal jurisdiction, it must be dismissed.
B. Failure to State a Claim
Plaintiff also moves to dismiss the first counterclaim for failure to state a claim. The first counterclaim seeks reimbursement for (i) salary paid to plaintiff from May 12, 1995 (when she began her maternity leave) through May 31, 1995 and (ii) benefits (presumably health care coverage) for the period from May 12, 1995 through November 1, 1995. The gist of plaintiff's argument is that there was never an agreement that expressly conditioned plaintiff's receipt of salary and benefits while on leave on her return to work. While defendant admits that plaintiff was never expressly told that the payments were conditioned on her return, it is clear that both sides anticipated plaintiff's return when she first began her maternity leave. Whether defendant paid the benefits at issue on the basis of that understanding, as defendant contends, and whether plaintiff accepted them on that basis, as is reasonable, are questions of fact. Furthermore, even if there was no "meeting of the minds" as plaintiff contends, defendant may have a claim for unjust enrichment based on the payments, as plaintiff was paid salary and provided benefits for a period when she did not work. Plaintiff's motion to dismiss the first counterclaim is therefore denied.
Plaintiff also moves for summary judgment on her retaliation claim, in which she alleges that defendant asserted its counterclaims solely in retaliation for plaintiff having brought this lawsuit. The elements of a Title VII retaliation claim are well known. Plaintiff must prove i) that she engaged in a protected activity, ii) that an adverse "employment action" was taken by defendant, and iii) a causal connection between the protected activity and the adverse employment action. See Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995). Here, there is no dispute that plaintiff's filing of this lawsuit constitutes a protected activity.
Plaintiff, however, has failed to allege an adverse "employment action" as a result of the counterclaims. An adverse employment action must "affect[ ] 'the terms, privileges, duration, or conditions of the plaintiff's employment.'" Yankelevitz v. Cornell University, 1996 U.S. Dist. LEXIS 11298, No. 95 Civ. 4593 (PKL), 1996 WL 447749 at *5 (S.D.N.Y. Aug. 7, 1996) (citations omitted), modified on other grounds, 1997 WL 115651. While this Court has recognized that claims of retaliation are not limited "'only to acts of retaliation that take the form of cognizable "employment actions" such as discharge, transfer or demotion,'" id. at (quoting Passer v. American Chemical Soc., 290 U.S. App. D.C. 156, 935 F.2d 322, 331 (D.C. Cir. 1991)), there must be some impact on plaintiff's employment or prospective employment for the counterclaims to constitute an 'employment action'. Thus, in Yankelevitz the counterclaims related to an audit of plaintiff that had been conducted by the defendant. Judge Leisure found that "the allegations and implications of the counterclaims shed a negative light on plaintiff's professionalism and ethics" and that plaintiff had therefore stated a claim for retaliation. Id. He analogized such negative professional aspersions to giving negative recommendations to a former employee, which other courts have held to constitute actionable "employment action" for purposes of a retaliation claim. See id. (citing cases). This case does not fit that bill. Here, for defendant's counterclaims relate to a simple breach of contract that does not reflect negatively on plaintiff's ethical or professional reputation. Accordingly, this aspect of plaintiff's claim for retaliation must be dismissed insofar as it is based on the filing of the counterclaims, as it fails to state a claim.
III. Benefits Information
Plaintiff also moves for summary judgment on her claims that defendant wrongfully withheld information regarding her 401(k) and pension plans after she requested it, in violation of ERISA. See 29 U.S.C. § 1024(b)(4) (requiring plan administrator to furnish plan information upon a written request from beneficiary). Plaintiff requested such information in a letter dated October 11, 1995. The letter, in its entirety, reads as follows:
Ms. Marisol Rodriguez