found also by EEOC and could be corrected by a change of work hours. Three days later, Gutierrez voluntarily left the practice; she was not discharged.
In order to make out a prima facie case of retaliation, a plaintiff must show "by a preponderance of the evidence I) participation in a protected activity known to the defendant; ii) an employment action disadvantaging the plaintiff; and iii) a causal connection between the protected activity and the adverse employment action." Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995).
If the plaintiff satisfies this burden, the defendant may rebut the prima facie case by "articulating a valid legitimate nondiscriminatory reason for its actions." Id. (citations omitted). If the defendant meets its burden of production, the plaintiff has the opportunity "to prove that the proffered reason was merely pretext for retaliation and that the employer's action was prompted by an impermissible motive." Id.
Gutierrez's complaint misrepresents the factual circumstances surrounding her departure and has failed to satisfy her burden of establishing a credible prima facie case of retaliation. First, the Record indicates that Gutierrez was not terminated by Henoch, but rather that she voluntarily left her employment. Although Henoch was not fully satisfied with Gutierrez's performance, he indicated that she could remain on the job in the hope that she might improve. In addition, Henoch offered to help her secure other employment if she chose to leave. Henoch's payment of severance pay does not warrant a different conclusion. It simply is evidence of Henoch's desire to position Gutierrez in good standing prior to her departure from the practice.
Henoch articulated valid, nondiscriminatory reasons for Gutierrez's departure which Gutierrez failed to establish were merely pretextual. Gutierrez cites a letter of recommendation written by Henoch on her behalf as evidence she was a good worker. She was not terminated for cause or as retaliation for events that occurred in the workplace. This letter makes no mention of Gutierrez's actual on-the-job performance about which there were statistical grounds for criticism and was merely intended to assist Gutierrez in her pursuit of a physician assistant license.
The Court resolves the issues of credibility herein in favor of the defendant and against the plaintiff. Based on the evidence in the Record, the circumstances existing in the offices and the reasonable inferences to be drawn therefrom, it is determined that Gutierrez's claims of sexual harassment and retaliation were without merit.
The Complaint is dismissed on the merits, with costs to the defendants.
The foregoing shall constitute the Court's Findings of Fact and Conclusions of Law required by Fed. R. Civ. P. 52(a).
March 24, 1998
Senior United States District Judge
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