retaliation. The burden then shifts to defendant to articulate a legitimate reason for its actions, whereupon plaintiff bears the burden of proving that defendant's proffered reason is a pretext for retaliation. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996).
To establish a prima facie case of retaliation, plaintiff must show (1) protected activity that is known by defendant; (2) an employment action disadvantaging plaintiff; and (3) a causal connection between the protected activity and the disadvantageous employment action. Id. ; Tomka, 66 F.3d at 1308. "Proof of a causal connection can be established indirectly by showing that the protected activity was followed closely by discriminatory treatment, ... or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, ... or directly through evidence of retaliatory animus directed against a plaintiff by the defendant." DeCintio v. Westchester County Medical Center, 821 F.2d 111, 115 (2d Cir.), cert. denied, 484 U.S. 965, 98 L. Ed. 2d 395, 108 S. Ct. 455 (1987) (citations omitted).
In the case at bar, the protected activity that plaintiff alleges she engaged in was her submission of a written response to Lazarek's performance appraisal of plaintiff that Lazarek signed on January 31, 1994. In her response, which is dated February 6, 1994, plaintiff stated, inter alia, that "for some reason, perhaps, gender or age, [Lazarek] wanted me out of his department." T. Andrew Brown Affirmation Ex. Q. Aside from noting that she was the oldest woman in Lazarek's department, however, plaintiff did not state the basis for this assertion. Plaintiff also alleges that after submitting this response, she met with two members of RTC's Human Resources Department to discuss her complaints about Lazarek, although plaintiff does not expressly allege that she raised the issues of sex or age discrimination at that meeting; see Plaintiff's Affidavit P 46.
One of the alleged retaliatory actions relied upon by plaintiff is RTC's alleged interference with her attempt to obtain employment with Volt. Volt allegedly made her a job offer, and plaintiff countered with a higher salary demand. Volt told her that someone would get back to her with a response, but the response never came and she did not receive another offer from Volt.
The basis for plaintiff's allegation that RTC had anything this matter is a conversation she allegedly had with a friend, Todd Barber, who was employed at Volt during the time that plaintiff was applying for a job there. Plaintiff alleges that Barber told her that he had spoken to Rick Kurtz, the Volt employee who made the job offer to plaintiff. According to Barber, Kurtz had stated that he was having daily conversations about plaintiff with Mike Henderson, Kurtz's supervisor at Volt, who was at that time in the process of leaving Volt to take employment with RTC. Plaintiff alleges that Barber told her that Kurtz told Barber that Henderson had told Kurtz that after an upcoming restructuring at RTC, plaintiff would probably no longer have a job there.
Aside from the obvious multiple-hearsay problems with this evidence, it is not in the least indicative of any interference by RTC with plaintiff's dealings with Volt. To infer from this evidence that RTC somehow "badmouthed" plaintiff to Volt would be nothing but sheer speculation. As plaintiff herself has quite accurately put it, she "really do[es]n't know why" Volt never got back to her as promised. Plaintiff's Deposition at 81.
Another instance of alleged retaliation is Lois Bradley's request that plaintiff drop her EEOC charge in December 1994. Plaintiff testified that at Bradley's request, she met with her for about ten minutes. Plaintiff testified that Bradley said to her, "We would like you to consider you [sic] to drop your claim," because at that time plaintiff had been reassigned to her former position. Plaintiff's Deposition Vol. III at 109. Bradley did not tell plaintiff to drop the claim, nor did she indicate that plaintiff would harmed in any way if she refused. Id. at 110.
These allegations clearly are insufficient to state a prima facie case of retaliation. In Torres v. Pisano, 116 F.3d 625, 1997 U.S. App. LEXIS 12805, 1997 WL 290196 (2d Cir. 1997), the Second Circuit addressed a nearly identical allegation. In Torres, the plaintiff, who was employed by a university, was asked on separate occasions by two university officials to drop her EEOC charge alleging harassment by her supervisor. Rejecting the plaintiff's allegation that this constituted unlawful retaliation, the Second Circuit stated that although the plaintiff claimed that the requests to drop her charge "left her feeling 'frightened' and 'intimidated,' ... she has not shown, as she must, that she suffered 'a materially adverse change in the terms and conditions of employment.'" Id., 1997 U.S. App. LEXIS 12805, *32, 1997 WL 290196 *12 (quoting McKenney v. New York City Off-Track Betting Corp., 903 F. Supp. 619, 623 (S.D.N.Y. 1995)). The court added that although "it is conceivable that a demand to withdraw an EEOC charge could constitute retaliation, if it truly had so great an effect on the plaintiff as to alter the conditions of her employment in a material way," such as by veiled threats of adverse actions, such circumstances were not present here, since the plaintiff admitted that she suffered no harm as a result of her refusal of the officials' requests. Id.
The same is true here. Although plaintiff stated that she "absolutely" felt that she was being pressured by Bradley to drop her EEOC complaint, she could offer no logical basis for that belief. Plaintiff's Deposition Vol. III at 110. By plaintiff's own admission, Bradley neither explicitly nor implicitly threatened her with any adverse consequences, and plaintiff does not allege that any action was taken against her as a result of her continued pursuit of her EEOC charge. The instant case therefore falls squarely within the principle set forth in Torres that a simple request to drop a claim does not amount to adverse action for purposes of establishing a retaliation claim.
Another alleged act of retaliation is plaintiff's alleged "demotion" from the Channel Consultant II position to a technical position. The obvious flaw in this allegation is that plaintiff left the Channel Consultant II position several weeks before her first act of protected activity, i.e., her submission of response to Lazarek's January 31, 1994 performance review. Lazarek's review stated that plaintiff had been "recently moved" to a different position, and it was that review that prompted plaintiff to complain in the first place.
Next, plaintiff alleges that about two months after she began work in the technical position, the position was transferred to another department, but plaintiff was not transferred with it. She states that in March 1994, she inquired about a "coaching" position that she had heard was available, but RTC told her that there was no opening for a coaching position. She further alleges that less than two months later, an opening for a coaching position was posted, but she did not apply for it at that time. Plaintiff's Deposition Vol. III at 117. Plaintiff was, however, able to secure a position at her former job of Marketing Manager for Health Care, this time reporting to Randal Simonetti.
It is unclear how any of these acts constituted retaliation. Although plaintiff states that by not being transferred with the technical position, she was left "susceptible to termination," Plaintiff's Affidavit P 50, the fact is that she was not terminated, nor does she allege that anyone threatened her with termination. Likewise, the fact that a coaching position may have been posted in May 1994, nearly two months after plaintiff was told that there was no opening for a coaching job does not support an inference that defendant lied to plaintiff about the coaching position in March. Like plaintiff's other retaliation claims, this claim is based on nothing but speculation.
Defendant's motion for summary judgment (Item 16) is granted, and the complaint is dismissed.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
July 25, 1997.