1997); Jackson v. Lyons Falls Pulp Paper, Inc., 865 F.Supp. 87, 94-95 (N.D.N.Y. 1994). See also Miller v. Eby Realty Group, 241 F.Supp.2d 1247, 1255-57 (D.Kan. 2003) (employer's withdrawal of offer of severance payments beyond those to which employee already due, after employee informed employee he had hired an attorney to investigate age discrimination, was not an adverse action). Cf. Flannery v. Recording Industry Ass'n of America, 354 F.3d 632, 641-43 (7th Cir. 2004) (holding that former employer's denial of consulting work to former employee after former employee filed charge with EEOC, where that work had been promised him in severance package agreed to by parties, sufficient to state retaliation claim under ADA and ADEA); Bernstein v. The St. Paul Cos., Inc., 134 F.Supp.2d 730, 733-34, 741 (D.Md. 2001) (holding that a jury could find retaliation where the employee had been unconditionally promised a certain amount of severance pay but was then told that he could only receive the pay if he withdrew his charge filed with the EEOC and released the employer from other claims, which he refused to do).

Dkt. # 28, at 15. Plaintiff cites to Miller v. Eby Realty Grp., 241 F. Supp. 2d 1247, 1253 (D. Kan. 2003), for support; however, that case is not persuasive here. In Miller, plaintiff alleged retaliation occurred under the Age Discrimination in Employment Act (ADEA) "after plaintiff informed defendant he was hiring legal counsel to pursue his discrimination claim."

94-95 (N.D.N.Y. 1994). See also Miller v. Eby Realty Group, 241 F.Supp.2d 1247, 1255-57 (D. Kan. 2003) (employer's withdrawal of offer of severance payments beyond those to which employee already due, after employee informed employee he had hired an attorney to investigate age discrimination, was not an adverse action). Cf. Flannery v. Recording Industry Ass'n of America, 354 F.3d 632, 641-43 (7th Cir. 2004) (holding that former employer's denial of consulting work to former employee after former employee filed charge with EEOC, where that work had been promised him in severance package agreed to by parties, sufficient to state retaliation claim under ADA and ADEA); Bernstein v. The St. Paul Cos., Inc., 134 F.Supp.2d 730, 733-34, 741 (D. Md. 2001) (holding that a jury could find retaliation where the employee had been unconditionally promised a certain amount of severance pay but was then told that he could only receive the pay if he withdrew his charge filed with the EEOC and released the employer from other claims, which he refused to do).

Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d 1232, 1241 (10th Cir. 2002). See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-49 (2000) and Miller v. Eby Realty Group, 2003 WL 22102137 (D. Kan. Aug 20, 2003) aff'd, 296 F.3d 1105 (10th Cir. 2005). The issue presented to the jury, therefore, and for which Plaintiff bore the ultimate burden of proof, was Plaintiff's claim that she was fired because Defendant did not want a pregnant employee in the position and it therefore took steps motivated by its unlawful discrimination against her pregnancy to manufacture a pretense for firing her; versus Defendant's assertion that she was fired for failing to master her training after having been given similar training (indeed, an extended period of training) to others who had mastered it. For Plaintiff to prevail, she had to sustain her burden of persuading the jury from sufficient, competent evidence either that Plaintiff's claim was believable, or that Defendant's claim was unbelievable.

Consequently, Plaintiff failed to allege sufficient facts to support a causal connection between Plaintiff's protected activity and Defendant's actions. Second, Defendant's revocation/denial of the severance package does not constitute an adverse employment action. See Miller v. Eby Realty Group, 241 F. Supp. 2d 1247, 1255-57 (D. Kan. 2003) (the defendant's revocation of offered severance benefits did not alter the terms and conditions of plaintiff's employment). In other words, offers of severance benefits beyond the terms of the employment agreement and in exchange for the employer's release from all liability, without an employee's guarantee of such release, are offers of benefits not otherwise promised or owed. Accordingly, the withdrawal of such enhanced benefits does not alter the terms, conditions, or benefits of the plaintiff's employment and, therefore, is not an adverse employment action.