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Zhao v. Time

August 24, 2010


The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge


Pro se Plaintiff Guangyu Zhao ("Zhao") brings this action against her former employer, Defendant Time, Inc. ("Time"), asserting claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the New York State Human Rights Law ("NYHRL"), N.Y. Exec. Law § 290 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y. City Admin. Code § 8-101 et seq. Zhao claims that Time discriminated against her in the terms and conditions of her employment, exposed her to a hostile work environment, and ultimately terminated her based on her sex, race and nation origin. For these alleged wrongs, Zhao seeks back pay, compensatory damages, reinstatement and various other relief.

After she was fired, Zhao filed a charge of discrimination against Time with the United States Equal Employment Opportunity Commission ("EEOC"). The EEOC issued Zhao a right-to-sue letter on May 30, 2008, and she commenced this action on October 16, 2008. The Court referred the general pretrial matters and dispositive motions in the case to Magistrate Judge Michael Dolinger on November 11, 2008. On October 9, 2009, after the conclusion of discovery, Time moved for summary judgment on all of Zhao's claims. Time maintains that Zhao was fired for poor performance, not because of her sex, race or national origin, and that the workplace events and conditions Zhao relies on do not amount to adverse employment actions or show a hostile work environment.

On May 26, 2010, Magistrate Judge Dolinger issued a ninety-page Report and Recommendation ("R&R") recommending that the Court grant Time's motion for summary judgment. Magistrate Judge Dolinger concluded that: (1) Zhao's discriminatory termination claim fails because, even assuming Zhao made out a prima facie case of discrimination, she did not offer sufficient evidence for a reasonable trier of fact to conclude that Time's non-discriminatory reason for terminating her -- poor job performance -- is pretextual; (2) Zhao's discrimination claim based on the terms and conditions of her employment before she was fired fails because Zhao has not shown that she was subject to any adverse employment actions before she was terminated and, in any event, failed to show that Time's actions were motivated by her race, sex or national origin; and (3) Zhao's hostile work environment claim fails because the evidence does not provide a basis for a reasonable trier of fact to conclude that Zhao's work environment was hostile or abusive or that her treatment was motivated by discriminatory animus.

After three extensions of time, Zhao filed timely objections of 17 pages, plus 6 pages of exhibits on August 5, 2010. The Court has reviewed the R&R and Zhao's objections. For the reasons that follow, the Court adopts the R&R in substantial part. More specifically, the Court adopts Magistrate Judge Dolinger's analysis regarding the Title VII and NYSHRL claims and his conclusion that Time is entitled to summary judgment on all of Zhao's claims. In assessing Zhao's claims under the NYCHRL, it was incorrect to apply Title VII's standards. But application of the correct NYCHRL standards does not change the result: Zhao's claims fail. Zhao was fired for bona fide reasons, such as refusing to follow her supervisors' directions, failing to complete assignments, missing meetings, neglecting her duties and being generally a rude and substandard employee. While Zhao maintains that she was an effective employee, and none of her employer's explanations are credible, her sole evidence of discrimination is the fact she is a female of Chinese origin. Gender, race and national origin by themselves, or even with Zhao's say-so, do not establish that she was fired because of her gender, race or national origin. Time's motion for summary judgment is accordingly GRANTED.


I. Facts*fn1

Zhao, who is an Asian woman and citizen of the People's Republic of China, was employed by Time from July 31, 2006 until she was fired on October 31, 2007. She was initially hired as a consultant by Amanda Hanes ("Hanes"), the director of Time's Web Operations and Support Group. Throughout her tenure at Time, Zhao worked in the Application Support Group, which is a subpart of the Web Operations and Support Group. When she was first hired, Zhao was one of three employees in the Application Support Group. Hanes added another employee to the group in October, 2006, when she hired Matthew Miritello ("Miritello") as a senior systems developer. The ranks of the Application Support Group had risen to five when Hanes hired Zhao as a full-time systems engineer on December 11, 2006. While the Application Support Group did not have a manager for the first eight months of Zhao's employment, Hanes promoted Miritello to manager in March, 2007.

Zhao's work at Time centered around Verity, a search technology that Time used in connection with the various websites it owns and operates. Before Miritello became her supervisor, Zhao participated in meetings relating to Verity application-support issues, which allowed her to understand her clients' needs and to resolve problems more effectively. Zhao was not, however, required to participate in meetings that did not relate to her assignments. At some point during Zhao's employment, Time decided to transition off Verity to a new search technology called Endeca. After Time made the decision to transition off Verity, Zhao was required to learn about Endeca and to use her knowledge of Verity to ensure a successful transition to Endeca.

Zhoa's responsibilities at Time also included "cross-training" her colleagues. But according to Zhao, she was not required to cross-train her colleagues to perform her job until after Miritello became her supervisor in March, 2007. Zhao also claims that Miritello did not require a white male employee named John Neilson ("Neilson") to cross-train other employees. According to Hanes, cross-training was vital because it enabled employees to perform more than one job, which in turn protected Time against "dangerous knowledge or support gap[s]" in the event an employee was not at work. Until Miritello became the Application Support Group manager, however, cross-training was not feasible because the group had so few employees. Hanes explains that when Miritello became manager, there were more employees in the group and "we were prepared to accelerate cross training for the unit." (Hanes. Aff. ¶ 14.) Hanes denies that Neilson was not required to cross-train his fellow employees, and points out that she listed "cross training" as a goal in Neilson's February, 2007 performance review. (Performance Review, Hanes Aff., Ex. E.)

For the four months after she became a full-time employee and before Miritello became her supervisor (December, 2006 - March, 2007), Zhao's job performance was deemed "satisfactory or better" and she did not receive any negative feed back from her supervisors or complaints from her colleagues. In a performance evaluation for this period, Hanes commended Zhao for her hard work, independence and ability to meet deadlines. Hanes noted that Zhao needed to learn more about Endeca and improve her ability to communicate technical issues to lay persons, but generally had nothing but praise for Zhao.

Things changed, however, when Miritello became manager of the Application Support Group in March, 2007. According to Zhao, Miritello "basically terminated all female employees, but hired all males." In her affidavit, Zhao explains that when she started as a full-time employee, an Indian woman named Sara Ghasletwala ("Ghasletwala") was the only other women in the Application Support Group. Ghasletwala was a contractor, and Zhao asserts -- without any support -- that Miritello was responsible for the decision not to renew Ghasletwala's contract once it expired. Miritello replaced Ghasletwala with three male contractors, which left Zhao as the lone woman in the Application Support Group.

Contrary to Zhao's version of events, Hanes testified that she and Miritello were both involved in the May, 2007 decision not to renew Ghasletwala's contract, and that the decision was made because Ghasletwala had trouble working independently. Moreover, Miritello helped Ghasletwala obtain a full-time position in web production at one of Time's magazines. According to Hanes, the position in web production better suited Ghasletwala's skill set.

Zhao and Miritello, her supervisor, exchanged a series of emails relating to a project on August 15, 2007. Zhao responded to an email forwarded by the Miritello by stating, "Please ask clarence to open a rms ticket to use for future communication. I do not understand why he always emailed you and you forward to me. It is weird since it is not good for communications, it should not be encouraged." Miritello wrote back, "How is this going? Do you need any additional information from them?" Zhao's response to her supervisor's query was, "PLEASE ASK THEM TO OPEN A RMS TICKET AS A PLACE HOLDER FOR FUTURE COMMINCATION. THAT IS ALWAYS THE FIRST STEP IN THE PROCESS. It is my fault if I did not make this clear before." Miritello replied, "So you haven't checked to see if what they've sent is complete?" Zhao ended the email exchange by stating, "Further future communication is a sure thing. Any other questions?"

Zhao offers this interpretation: Miritello was trying to prevent her from communicating directly with clients, which in turn hindered her ability to perform as an employee. She used capital letters to "reiterate and emphasize my proposal which needed to be addressed in a timely fashion." Miritello saw things differently, however, and later in the day he met with Zhao to discuss the emails -- which he considered "inappropriate and rude" -- as well as complaints he had received from other employees about Zhao's lack of respect for her colleagues. What exactly happened during the meeting is disputed, but the meeting clearly did not go well. According to Miritello, he asked Zhao "to be mindful of her tone in emails and to willingly cooperate with her colleagues." Zhao claims that Miritello "accused her of being harsh to him," and "asked [her] to be nice to him so that he would address and discuss [her] business proposal." Zhao says that when she told Miritello "that he could not accuse [her] without evidence," he started yelling, "yes, I can, because I am your boss." According to Miritello, the meeting came to an end when Zhao stormed out of his office, but Zhao recalls the meeting ending after she suggested that they take time to calm down and resume the discussion later.

Miritello considered Zhao's tone in the emails, and her behavior during the meeting, to be grounds enough for termination. After discussing Zhao's behavior with human resources, however, Miritello decided to give Zhao a few weeks to "cool off" before resuming their discussion about her performance and insubordination.

In early September, 2007, Zhao asked Miritello about taking three weeks of paid vacation. According to Zhao, Miritello refused to grant her request unless she completed a "knowledge transfer" to a white male contractor named Matthew Merkelson ("Merkelson"). Miritello testified that he met with Zhao on September 6, 2007 to discuss her vacation and insubordination. He told Zhao that "if she wanted to take an extended vacation, her technology platform would need coverage during her absence and, therefore, she would need to cross-train her colleague Matthew Merkelson." Zhao, however, refused to cross-train "any of her colleagues because she did not want anyone else to learn her job." Zhao concedes that she refused to comply with Miritello's request to "do a cross-training to each everything I knew about my work to Matthew Merkelson." (Zhao Aff. 3 ¶ B7.) Instead, she proposed a more limited approach: to "teach Matthew Merkelson everything he needed to cover me when I was on vacation." (Id.) Zhao also told Miritello that there were detailed documents explaining how to do her job, and that he could call her if a problem arose when she was on vacation. (Id.)

Miritello reported Zhao's refusal to cross-train Merkelson to Hanes, who met with Zhao to explain the importance of cross-training. In Zhao's words, she told Hanes that "I would teach Matthew Merkelson everything he needed to cover me when I was on vacation. I did not agree to teach everything I knew about my work to Matthew Merkelson." (Id. at 3 ¶ B8.) Exasperated by Zhao's unwillingness to cross-train Merkelson, Hanes and Miritello spoke with Dennis Brito ("Brito") in Human Resources. Brito suggested that Miritello meet with Zhao to make clear that her refusal to participate in cross-training was unacceptable and could lead to disciplinary action. Brito, however, agrees with Miritello that Zhao's continued insubordination and refusal to cross-train Merkelson were further grounds for termination. (Brito Aff. ¶ 6; Miritello Aff. ¶ 8.)

Miritello followed Brito's suggestion and scheduled a meeting with Zhao and Hanes for September 26, 2007. According to Zhao, she was unaware that the Hanes was to attend the meeting; she asserts that "[t]he 1 on 1 was supposed to have only Miritello and me as attendances." (Zhao Aff. at 3 ¶ B9.) Time, however, submitted an electronic calendar invitation that Miritello sent to Zhao on September 25, 2007, which lists Hanes and Zhao as required attendees. But regardless of whether Hanes was to attend the meeting, Hanes and Miritello both testified that Zhao did not show up at the September 26th meeting. Miritello scheduled another meeting for September 28, 2007, which Zhao also failed to attend. In her affidavit, Zhao concedes that the two meetings never took place, but she speculates that "[i]t could be the case that I went to Miritello's office at the exact meeting time, but Miritello was not in his office." (Zhao Afff. At 4 ¶ B9.)

In his affidavit, Miritello states that after Zhao failed to show up at the September 28th meeting, he contacted her by instant messenger and she claimed to have forgotten the meeting and "gone to lunch." (Miritello Aff. ¶ 9.) But in an email Miritello sent to human resources regarding Zhao in late October, 2007, he indicates that Zhao used her "forgot" and "went to lunch" excuse after the September 26th meeting, as opposed to the meeting scheduled for October 28th. (Email dated October 29, 2007, Miritello Aff., Ex. G.) Miritello copied his instant message exchange with Zhao in the email, but as Zhao points out, the instant messages are not in chronological order. (Id.) Despite Zhao's unwillingness to cross-train Merkelson, at some point Miritello approved her request for three weeks of vacation, but in October, 2007, Zhao apparently informed Miritello that her vacation would actually be for a month.

Paul da Silveira ("da Silveira") worked in the Project Management Group at Time and was responsible for managing the transition from Verity to Endeca. In late September, 2007, he asked Zhao to provide him with a list of all systems and databases using Verity. According to da Silveira, Zhao's response to his request was incomplete. On September 28, 2007, da Silveira sent Zhao an email expressing his dissatisfaction and outlining the work she needed to do by October 1, 2007 in order to provide a complete response to his request. Zhao wrote back, "[y]ou have to give me a week to . . . update the document with accurate info. I already told you this last time I sent you the doc. When I asked you if you wanted me to start the monitoring then to speed up thing[s]. You said nothing. I need a week from now."

Given Zhao's refusal to compile the information he requested in a timely fashion, da Silveira spoke with Miritello and voiced his concerns about Zhao's participation in the Endeca transition project. After speaking with da Silveira, Mititello forwarded the email exchange between da Silveira and Zhao to Hanes who was shocked by Zhao's claimed inability to complete the task by October 1. October 1 passed without Zhao's compliance with da Silveira's request, and on October 2, 2007, Miritello sent an email to Hanes that reads, "Paul [da Silveira] continues to try to get the stats from her for Verity but she will not provide what he's asking for because she doesn't feel it's necessary (I do feel it's necessary). When he pressed her to still provide the stats, she told him no and that he should get more resources to do it." According to Zhao, she did not complete the assignment because she was waiting to hear from Miritello and da Silveira regarding her concern that the requested statistics might be misleading.

Da Silveira held a series of daily meetings with the Endeca project team in order to manage the significant amount of work involved in transitioning from Verity to Endeca. In her affidavit, Zhao claims da Silveira required her to attend the meetings even though they did not implicate her work, but he did not require Matt Eng ("Eng") to attend the meetings. Eng was not required to attend the meetings, according to Zhao, despite the fact that she and Eng "were involved in the project in [a] similar way."

Without any prior notice, Zhao failed to attend an Endeca project team meeting held at 10:00 a.m. on October 1, 2007. Zhao claims she was home sick that morning, but in an email she sent to Miritello at 10:18 a.m. the morning of the meeting, Zhao wrote that she would be in at 1 p.m. and did not offer a reason for her late arrival. Zhao arrived at work at 2:00 p.m. and either asked or told da Silveira to move subsequent Endeca project meetings to the afternoon in order to accommodate her commute from New Jersey. According to Miritello, when da Silveira told Zhao that the meetings could not be moved, Zhao said that she would no longer attend Endeca project meetings.

On October 5, 2007, Miritello met with Zhao to discuss her performance issues and to warn her that she would be put on formal written warning if she did not change her behavior. Miritello told Zhao that he expected her to attend all morning project meetings, perform assigned tasks, create a training document, spend three hours a week cross-training Merkelson, and supply comprehensive weekly written reports of her activities. Zhao replied that she would only attend meetings she considered necessary, that she did not know what tasks Miritello was referring to, that the training document already existed, and that she disagreed with having to write weekly reports.

After Miritello warned Zhao about the prospect of a formal warning, Zhao attended two Endeca project team meetings concerning on October 8 and 9, 2007. According to da Silveira, Zhao disrupted the October 9 meeting by repeatedly raising an objection to a decision that had been made prior to the meeting. Despite being told that the meeting was not the appropriate place to voice her objection, Zhao "insisted on continuing the discussion, took a stand and created a scene." (da Silveira Aff. ¶ 7.) In her affidavit, Zhao does not challenge da Silveira's description of her behavior at the October 9 meeting. Instead, she focuses on explaining why her objection was valid. (Zhao Aff. 5 ¶ B10(4).)

On October 10, 2007, da Silveira sent Zhao an email and asked her not attend a meeting regarding scheduled for the following day. When Zhao went to the meeting to ask da Silveira why he did not want her to attend, she discovered that "Miritello and Matthew Merkelson replaced me to attend the meeting." (Id.) Da Silveira told Zhao that the reason he had asked her not to attend the meeting was because he needed her to work on another assignment. When Zhao explained that she had completed the assignment, da Silveira let her attend the meeting.

At some point after Zhao disrupted the October 9 meeting, Miritello, Hanes and Brito decided to place Zhao on "formal written warning." On October 18, 2007, Miritello met with Zhao and gave her a letter ("warning letter") which reads:

This is to confirm our conversation where I put you on a final written warning for failure to execute your ...

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