FOR THE PLAINTIFF: Smith, Hoke Law Firm, JOHN J. HOKE, ESQ., Albany, NY.
FOR THE DEFENDANTS: HON. ERIC T. SCHNEIDERMAN, Assistant Attorney General, KRISTEN M. QUARESIMO, New York State Attorney General, Albany, NY.
MEMORANDUM-DECISION AND ORDER
GARY L. SHARPE, Chief Judge.
Plaintiff Hua Lin commenced this action against defendants New York State Department of Labor (DOL) and Jackie Simmons, alleging employment discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII") and New York Executive Law § 296 ("Human Rights Law"). (Compl., Dkt. No. 1.) Pending before the court is defendants' motion for summary judgment, (Dkt. No. 24), on the grounds that Lin's termination was based on permissible criteria, and that Lin cannot state claims of hostile work environment discrimination or retaliation. ( Id., Attach. 2 at 5-25.) For the reasons that follow, defendants' motion is granted.
Lin was employed as a Senior Employment Security Clerk (SESC) at DOL's Unemployment Insurance Telephone Claim Center (TCC) beginning in August 2008. (Defs.' Statement of Material Facts (SMF) ¶ 2, Dkt. No. 24, Attach. 1.) As an SESC, Lin was responsible for performing administrative tasks related to claims for unemployment insurance, and speaking with claimants over the telephone, particularly Chinese-speaking callers, as Lin was of Chinese national origin and could speak Chinese. ( Id. ¶¶ 3, 9.) During Lin's employment, she was directly supervised by Simmons. ( Id. ¶ 8.)
Beginning in September 2008, Lin received several monthly and annual performance evaluations. ( Id. ¶ 17.) Monthly evaluations were issued to Lin for her performance in the months of September 2008, October 2008, November 2008, February 2009, March 2009, April 2009, May 2009, June 2009, and July 2009. ( Id. ¶¶ 17-44, 52-56; Dkt. No. 24, Attach. 15 at 12-32.) Lin and defendants disagree on their characterizations of these evaluations. Defendants note that these evaluations indicate that Lin required a high amount of supervision and needed improvement in several areas. (Defs.' SMF ¶¶ 18-29.) Lin concedes that these evaluations contained both positive and negative comments regarding her work performance, but asserts that they reflect a generally satisfactory evaluation of her performance. ( Id. ) Lin also received an annual evaluation covering her full first year of employment, in which she was rated overall "satisfactory." (Dkt. No. 27, Attach. 10 at 1-3.)
In January 2010, Lin became a probationary employee, and she was issued three probationary period performance evaluations in June 2010, July 2010, and September 2010. (Dkt. No. 24, Attach. 16 at 2-3, 7-8, 10-11.) These reviews indicated that Lin's work performance had not improved, and in fact had worsened. ( Id. ) The "summary rating" in each of Lin's three probationary period performance evaluations was either "needs improvement" or "unsatisfactory." ( Id. ) Lin was found to be making an "unacceptabley [sic] high rate of errors and frequently giv[ing] inaccurate information to claimants, " "fail[ing] to follow policy and procedure when dealing with claimants, " and "not demonstrat[ing] the type of concentration and focus that is needed to complete her work accurately and efficiently." ( Id. at 10.) In response to the June 2010 evaluation, Lin wrote a letter to her supervisor(s) in which she noted "[i]t was true recently I couldn't concentrate well on my job and lacked some patience towards claimants, " and that she would "keep working on improving [her] quality of work." ( Id. at 4-5.)
During roughly this same time period, Lin alleges that Simmons began engaging in abusive and harassing conduct towards her. (Pl.'s Statement of Material Facts (SMF), Dkt. No. 27, Attach. 20 ¶¶ 4-10.) Lin alleges that Simmons routinely commented on and mocked her use of the English language and her accent, screamed at Lin while she was on telephone calls with claimants, and told Lin that she expected her to work harder because "she understood that the Chinese are hard workers." ( Id. ¶¶ 5, 8-10, 14.) Lin asserts that, prior to her June 2010 evaluation, she had orally requested that Simmons refrain from speaking to her using a mocking tone and using stereotypes. (Defs.' SMF ¶ 46.)
Shortly after Lin's 2010 work evaluations, management at DOL began discussing terminating Lin's employment; specifically, an August 6, 2010 email from Diane Taylor to Simmons, Theodore Yankovich, and Charles Fusco indicates that they "will recommend termination if there's no improvement, " and also includes a request for the paperwork that will be needed "when requesting [Lin's] termination." (Dkt. No. 27, Attach. 7 at 1-2.) Lin does not contest that the decision to terminate her was made on August 6. (Defs.' SMF ¶ 51; Pl.'s SMF ¶ 27.)
On August 12, 2010, Lin wrote a letter to Yankovich and Fusco, in which she claimed that her recent evaluations were "unfair, " and asserted that Simmons "discriminates against me of [sic] my part time work status and my English." (Defs.' SMF ¶ 45; Dkt. No. 24, Attach. 12 at 1-3.). On August 18, Lin sent an email to the TCC supervisors in which she again stated that Simmons' behavior was "unfair, " and that she would "keep looking into [sic] next level to solve the problem, " but that she was not filing "a complaint." (Dkt. No. 24, Attach. 11 at 7.) The supervisors subsequently held a meeting with Lin to discuss her concerns, at which time Lin stated that she did not blame Simmons, but simply felt that her evaluations were unfair. ( Id. at 14.) On August 23, 2010, Lin sent an email to Fusco, Yankovich, and Taylor, in which she notified them that she had spoken to the New York State Division of Human Rights (DHR) and "was informed that [Simmons] discriminated against [her on account of] race and national origin, " and that this would be her "last attempt to resolve this problem internally." ( Id. at 16.)
In September 2010, Lin was terminated, the stated basis being her poor work performance. (Defs.' SMF ¶ 57.) Thereafter, Lin filed written charges of employment discrimination with the Equal Employment Opportunity Commission (EEOC) and was issued a "Right to Sue" letter by the EEOC. (Compl. ¶ 24.) Lin commenced this action on October 4, 2011. ( See generally Compl.) Following joinder of issue, (Dkt. No. ...