First, Plaintiff alleges that he engaged in the protected
activity of filing a Notice of Claim of Discrimination with the
County in May of 1998. One month after engaging in that
activity, Plaintiff received a poor performance evaluation.
Second, Plaintiff alleges engaging in the protected activity of
filing charges with the EEOC in September of 1998 and April of
1999. He alleges that he thereafter received unfavorable
"selective discipline." According to Plaintiff, the timing of
these events establishes the causal connection necessary to
support a retaliation claim.
Defendants argue that Plaintiffs retaliation claim must be
dismissed because: (1) he did not suffer adverse employment
action and, (2) he cannot establish the required causal
connection between any protected activity and adverse employment
It is anything but clear that adverse performance reviews,
standing alone, can support a claim for retaliation. See
Simmons v. New York City Health and Hosp. Corp., 2001 WL 483675
*5-6 (E.D.N.Y. March 30, 2001). The court assumes, however, for
purposes of this motion, that adverse performance reviews and
selective discipline, when coupled with a claim of failure to
promote, are sufficient to overcome summary judgment on the
issue of adverse employment action.
Despite the court's acceptance that Plaintiff has properly
alleged adverse employment action, the County is nonetheless
entitled to summary judgment on the retaliation claim. A review
of the record reveals that employment decisions concerning
Plaintiffs placement were made prior to Plaintiffs talking any
action protected by the ADA. Plaintiff was twice denied the
promotion to the Caseworker Trainee position — once in November
of 1997 and once in March of 1998. Both of these rejections took
place months before Plaintiff ever filed a Notice of Claim of
Discrimination with the County.
It matters not that Plaintiff is of the opinion that he was
passed over for the promotion in favor of a less qualified
applicant. The issue is not whether Defendants made the right
choice for the position, the issue is whether there is any
evidence of discrimination in the decision to pass over
Plaintiff. There is none.
As to adverse performance reviews, a review of Plaintiffs
employment record reveals that performance reviews issued after
the filing of his notice of claim are consistent with those
filed before Plaintiff engaged in this protected activity and
therefore, cannot support a claim of retaliation. Indeed,
records reveal negative comments in Plaintiffs performance
evaluations in July of 1995 and in March of 1996, years before
the making of any claim of discrimination.
For the foregoing reasons, the court holds that Plaintiff has
failed to allege facts sufficient to support a claim that there
is any causal connection between Plaintiff engaging in protected
activity and any act of Defendants. Accordingly, the court
grants Defendant' motion for summary judgment as to Plaintiffs
claims of retaliation.
D. State Law Claims
In light of the dismissal of all of Plaintiffs federal claims,
it would be inappropriate to exercise supplemental jurisdiction
over the claims asserted pursuant to, New York State Law.
Giordano v. City of New York, 274 F.3d 740, 754-55 (2d Cir.
2001) (error for district court to exercise supplemental
jurisdiction over plaintiffs state law claims where federal
disability claims were dismissed). Accordingly, the court
dismisses Plaintiffs claims pursuant to
New York State Law without prejudice to pursuing those claims in
For the foregoing reasons, Defendants motion for summary
judgment is granted. The Clerk of the Court is directed to
terminate the motion for summary judgment and to close the file
in this matter.
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