Wednesday Federal Employment Law Update- ADEA and Retaliation

Welcome to Round 2 of today’s blog doubleheader!  Today on the federal employment law blog, we review a case involving a disgruntled U.S. Marshal.  Since the early 90’s, have you ever heard the term U.S. Marshal without immediately thinking of Tommy Lee Jones’s oscar-winning role as Deputy Sam Gerrard in The Fugitive?  Me neither.

In Witkovich v. U.S. Marshals Service, 2011 WL 2117614 (2d Cir. May 27, 2011), former U.S. Marshal Michael F. Witkowich fares about as well in court as Deputy Gerrard did for the first 2 1/2 hours in The Fugitive.  Plaintiff originally sued under the Age Discrimination in Employment Act (“ADEA”) due to the alleged denial of promotions based on his age.  After summary judgment was entered for the government on the discrimination claim due to the lack of specificity in Plaintiff’s allegations and the failure to tie his lack of promotions to his age, the lower court permitted Plaintiff to amend his complaint to add a claim for retaliation (i.e., “I’ve been mistreated since my age-based lawsuit in retaliation for suing my employer”).  

In his Amended Complaint, Plaintiff claims that the government continued to deny him further career advancement opportunities in retaliation, depriving him of benefits to which he was otherwise entitled, demeaning him in the workplace and with his peers, and forcing him to retire early as he had no reasonable alternative but to leave the job.  The lower court again granted summary judgment for the defense.  In a rather under-developed opinion, the Second Circuit affirmed, finding that Plaintiff’s allegations did not rise to the level of adverse action necessary to trigger a retaliation claim. 

While not surprised with the ultimate outcome, I was a little surprised that the Second Circuit stopped the analysis at the prima facie stage.  In 2006, the U.S. Supreme Court substantially lightened the threshold for a prima facie case in retaliation claims in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), finding that the employee must simply show that “a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  The Second Circuit cited the correct standard but quickly dismissed the allegations as not meeting it. 



THE COMMENTS ON THIS BLOG DO NOT CONSTITUTE LEGAL ADVICE.  NOR DO THEY CREATE AN ATTORNEY-CLIENT RELATIONSHIP.  They are provided for informational purposes only.  Actual legal advice can only be provided after consultation with an attorney licensed in your jurisdiction.



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