Absent Adverse Action, Retaliation Claim (Based on Age Discrimination Complaint) Dismissed

In Farid v. City of New York et al, No. 19-3463, 2021 WL 2012425 (EDNY May 20, 2021), the court, inter alia, dismissed plaintiff’s claim of retaliation under the Age Discrimination in Employment Act (ADEA).

Specifically, the absence of any “adverse action” following plaintiff’s complaint of age discrimination doomed his claim:

Plaintiff alleges that he was subjected to retaliation in that “negative actions were taken against him as a result of his participation in protected activity.” Am. Compl. ¶ 95. In or about 2016, Plaintiff complained to Lieutenant Gonzalez and the EEO-NYPD about Defendant Tuscano’s comment that he was “too old.” Id. ¶ 22; EEOC Charge at 1. His complaint went to mediation, though Plaintiff claims he was not informed of the result. Id. As stated previously, Plaintiff did not allege that Defendant Noonan knew of this complaint when he changed Plaintiff’s shifts nearly two years later. Plaintiff also does not claim that his employer was aware he was claiming age discrimination under the ADEA when he made his complaint.

Plaintiff engaged in protected activity when he complained of age discrimination in the EEOC complaint he filed on January 29, 2019 and reported Sergeant Faljean’s “insulting text messages based on his age” to the IAB in or about April 2019. Am. Compl. ¶¶ 5, 27; See, Jones v. Target Corp., 2016 WL 50779, at *7 (E.D.N.Y. Jan. 4, 2016) (“Filing either a formal or informal complaint challenging discrimination is considered protected activity for purposes of retaliation claims” under the ADEA.). Plaintiff does not allege that any adverse action was taken against him for making these complaints. Accordingly, Plaintiff’s retaliation claim premised on his reports of age discrimination against Defendant City of New York is dismissed.

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