If employment action that allegedly qualifies as adverse employment action takes place prior to "retaliation," a worker may not be able to prove employment retaliation. The plaintiff, Jason Cutler, alleged that the defendant, Stop & Shop, discriminated and retaliated on the basis of sexual orientation and religion, in violation of Title VII and the Connecticut Fair Employment Practices Act. Allegedly, non-Jewish and heterosexual workers were allowed to work fewer hours and were not reprimanded, if they did not work 40 hours per five-day workweek. To prove a prima facie Title VII case, a plaintiff must establish: 1.) he belongs to a protected class; 2.) he was qualified; and 3.) he suffered an adverse employment action in circumstances that led to an inference of discriminatory intent. "[E]ach employee identified by Cutler," wrote the 2nd Circuit, "worked an average of more than forty hours per seven-day" workweek. Cutler, in contrast, worked an average of 32.25 hours per seven-day workweek. As a result, Cutler did not prove that his co-workers were similarly situated. To establish a prima facie case of retaliation, in violation of Title VII, a worker must prove: 1.) protected activity; 2.) the defendant knew about the protected activity; and 3.) a causal connection exists between protected activity and the adverse employment action. Cutler, who filed a complaint with the Commission on Human Rights and Opportunities, did not prove a prima facie case of retaliation. "Even assuming arguendo that Cutler suffered an adverse employment action," wrote the 2nd Circuit, "the undisputed evidence is that Stop & Shop first insisted that Cutler work forty hours per week several months before Cutler filed his complaint." The 2nd Circuit affirmed the judgment of the District Court, Chatigny, J., and questioned whether Cutler's attorney might have advised Cutler to withdraw his legal claims. "We would be remiss," wrote the 2nd Circuit, "if we did not comment on how the paucity of evidence supporting Cutler's claims in this case reflects upon the poor quality of the advice given by his attorney." Attorney John Williams represented the plaintiff, and Glenn W. Dowd and Howard Fetner represented the employer.

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