Id. Here, EEOC’s retaliation claim is premised on the Participation Clause of the anti-retaliation provision of the ADEA, 29 U.S.C. § 623(d), which mirrors the Participation Clause in Title VII, 42 U.S.C. §2000e-3(a). The EEOC claims Ms. Potts participated in a statutorily-established right to file a charge of discrimination, and that Defendant retaliated against her for doing so by filing and continuing to litigate the State Lawsuit against her.

Section 704(a) establishes a claim under Title VII for retaliation: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees”because that individual “opposed any practice”made unlawful by Title VII or “made a charge, testified, assisted, or participated in” a Title VII proceeding or investigation. 42 U.S.C. § 2000e-3(a) (2000). The United States Court of Appeals for the Sixth Circuit concluded that § 704 retaliation claims should be read in pari materia 13 with § 703 discrimination claims.

The statute does not apply to disability discrimination. To the extent that plaintiff bases her 42 U.S.C. § 2000e-3(a) claim on any alleged disability discrimination, the claim should be dismissed. F. Disability Discrimination Cannot Be the Basis of an Equal Protection Claim.

Failure to comply with the work rules of the Revenue Department is not an impermissible reason. The Plaintiff is asserting in his Amended Complaint that the reason provided by the Revenue Department for terminating his employment prior to acquiring permanent status was a pretext for the “real” reason he was terminated; the filing of his discrimination/retaliation charges against the ADPH with the Equal Employment Opportunity Commission (EEOC) in violation of 42 U.S.C. § 2000e-3(a). (Doc.

32 p. 5] The retaliation provision of Title VII only relates to protected activity under that statute, and not protected activity under a CBA, the LMRA, the Fair Labor Standards Act, or any other statute, so the filing of the employment discrimination charge with the EEOC is the only protected activity alleged under Title VII. See 42 U.S.C. § 2000e-3(a). However, Smith alleges that he was suspended by Lear on September 14, 2015 and that he was terminated sometime before November 2, 2015.

In Nassar the United States Supreme Court clarified the causation rule of the third element and held that a plaintiff 1 Congress has enunciated that protected activity consists of (a) opposing an employment practice prohibited by Title VII, or (b) filing a charge, testifying, assisting or otherwise participating in an investigation, proceeding, or hearing pursuant to Title VII. 42 U.S.C. § 2000e-3(a); See, Fogleman, v. Mercy Hosp., Inc., 283 F.3d 561, 567-70 (3d Cir. 2002). Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 19 of 25 19 “making a retaliation claim under § 2000e-3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.” Nassar, 133 S.Ct. at 2534.

Protected activity includes: (1) the filing of a charge or a complaint; (2) providing testimony regarding an employer's alleged unlawful practices, and; (3) engaging in other activity intended to “oppose[ ]” an employer's discriminatory practices. 42 U.S.C. § 2000e–3(a). To make a prima facie case of retaliation under Title VII, plaintiff must demonstrate that (1) he engaged in a protected activity, (2) he suffered an adverse employment action, and (3) there was a causal link between his activity and the employment decision.

Burlington Northern & Santa Fe Ry. v. White, 548 Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 23 of 33 PageID: 606 19 U.S. 53, 56, 126 S. Ct. 2405, 2408, 165 L. Ed. 2d 345, 353 (2006) (quoting 42 U.S.C.A. § 2000e-3(a)). In order for a plaintiff to establish a prima facie Title VII retaliation claim, a plaintiff must show that: (1) he engaged in protected activity, (2) the employer took a materially adverse action against him, and (3) there was a causal connection between the protected activity and the employer's action.” LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 231 (3d Cir. 2007). Once again, courts apply the McDonnell-Douglass analysis for Title VII retaliation, requiring the employer to articulate a legitimate, non-retaliatory reason for its adverse employment action, which the plaintiff can try to rebut by showing the employer’s stated legitimate business reason is pretext for a retaliatory act. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500-01 (3d Cir. 1997). Plaintiff cannot make a prima facie retaliation claim under Title VII because he cannot meet the second and third prong of the retaliation standard.

39. Defendant’s conduct and actions against the plaintiff constitute violations of federal law, specifically 29 U.S.C § 791, et seq. and 42 U.S.C. § 2000e-3 and § 12203. 40.

Title VII makes it unlawful “for an employer to discriminate against any of his employees … because [s]he has opposed any practice made an unlawful employment practice by this title … or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title … .” 42 U.S.C. § 2000e-3(a). Employees may engage in protected activity if they (1) participate in the “machinery set up by Title VII to enforce its provisions” or (2) oppose conduct made unlawful by Title VII.