services to him. Defendant's motion for summary judgment on this
claim is granted.
The ADEA also prohibits retaliation for complaints of age
discrimination. See 29 U.S.C. § 629(d). In order to prevail on
a retaliation claim, plaintiff must demonstrate: (1) that he was
engaged in protected activity, (2) that the employer was aware
of the activity, (3) that the employer took an employment action
adverse to plaintiff, and (4) that the adverse action was
causally connected to the protected activity. See Hollander v.
American Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 1990) (listing
elements of an ADEA retaliation claim). There is no doubt that
plaintiff was engaged in protected activity which was known to
defendant; he made a complaint to the EEOC on March 26, 1996.
See Deft. Mem., Exh. C, at 81. However, the record does not
support a finding that defendant BTA took any adverse employment
action against Elliott.
The record is quite clear that BTA had made an offer of
consultancy to Elliott upon his termination. Documents provided
by defendant, most notable a letter from Hamblin to Elliott, go
so far as to detail the number of weeks that Elliott would be
spending in each location. However, that letter also stated
quite clearly that "[T]hese opportunities would be based upon
you establishing yourself as a company whose services we would
be able to access. In speaking to our Accountant, I am sure that
he will be able to advise you of the processes involved." Deft.
Mem., Exh. C, at 87.
As this language makes clear, the offer of consultancy was a
contingent one that depended upon plaintiff taking affirmative
steps to organize an appropriate corporate form and contact
defendant's agents to arrange the logistics. BTA asserts in its
moving papers that Elliott never took those simple steps, and
thus it should not be held liable for retaliation when it never
in fact took an adverse employment action against plaintiff. The
ball, BTA argues, was entirely in Elliott's court and his
failure to return it should not constitute an ADEA claim.
Elliott offers no evidence in response to these arguments. His
affidavit on this point is entirely conclusory and offers no
more detail: "[T]he adverse action taken against me by refusing
to give me consulting assignments and the resulting connection
between that refusal was in retaliation to [sic] the fact that I
had filed charges of discrimination as is my statutory right.
BTA refused to extend those consulting assignments to me because
of my filing the discriminatory [sic] charges." This is the
total sum of plaintiffs evidence on this issue.
The failure of BTA and Elliott to consummate the consulting
relationship, in conjunction with Elliott's EEOC complaint, does
state a prima facie case of retaliation that would survive a
motion to dismiss under Rule 12(b). However, at this stage in
the litigation plaintiff must be able to offer more than mere
conclusory statements where it is reasonable to do so. Having
offered no evidence that he took any steps to follow up on
defendant's contingent offer of a consultancy, no reasonable
jury could find defendant liable for retaliation.
D. State Law Claims
Plaintiffs federal claims all having been dismissed, we
decline to exercise our supplemental jurisdiction over
plaintiffs remaining state law claims.
For the above reasons, defendant's motion is granted, and all
dismissed. The Clerk of the Court is respectfully directed to
close this case.
IT IS SO ORDERED.