In this appeal, plaintiff-appellant Thomas Welsh challenges the district court's determination that he had not suffered retaliation actionable under the Age Discrimination in Employment Act ("ADEA"). We affirm.
In 1987, plaintiff became coordinator of the Brockton-West Roxbury Veterans Administration Medical Center's ("VA Medical Center's") Key Club, an outpatient recreational therapy program. His job classification at that time was General Service ("GS") level 6. In February 1989, believing that he was performing
Meanwhile, in March 1989, maintaining that he was being denied an upgrade because of age and disability discrimination
In addition to granting summary judgment on plaintiff's non-retaliation discrimination claims, see supra note 3, the district court also ruled, at the summary judgment stage, that the first four of the above-named incidents did not give rise to a retaliation claim under the ADEA. However, the court found that the issue of whether the reduction in plaintiff's duties prior to the desk audit violated the ADEA's retaliation provision, 29 U.S.C. § 623(d),
We consider only this last claim to be raised.
The Secretary points to the letters "i.e." and reads into them a ruling that only discharge, demotion, or failure to promote can constitute an adverse employment action within the Act. We do not agree. Concededly, not every unpleasant matter short of those listed in Connell, supra creates a cause of action, but many things, such as constant rudeness, conspicuous discriminatory acts, etc., could have an adverse effect upon employment. Within reasonable limits, in order to arrive at a determination, a case by case review is necessary. With respect, we take the court's "i.e." as an inadvertency for "e.g.", or, at most, dictum far beyond the opinion that, after consideration, we feel we
The fact, however, that the action taken in this case could survive a motion for summary judgment does not mean that the court could not thereafter weigh it. Plaintiff's complaint was that the reduction in his duties meant that he would not be eligible for an upgrade in his status. As to this claim, the court made a finding, not here challenged, that plaintiff would not have received such an upgrade in any event. On this basis the court's finding that plaintiff failed to make a prima facie showing of adverse employment action must stand. And, as we have made clear, plaintiff cannot make out a prima facie case of retaliation without showing such adverse action. See Connell, 924 F.2d at 1179.
Accordingly, we affirm the court's entry of judgment against plaintiff on his retaliation claim.