Cao-Bossa v. New York State Department of Labor

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

___________________________________________

WEILI CAO-BOSSA,

Plaintiff,

v. 1:18-CV-0509

(GTS/TWD)

NEW YORK STATE DEPARTMENT OF

LABOR,

Defendant.

___________________________________________

APPEARANCES: OF COUNSEL:

WEILI CAO-BOSSA

Plaintiff, Pro Se

1912 East Country Club Drive

Schenectady, NY 12309

HON. LETITIA JAMES AIMEE COWAN, ESQ.

Attorney General for the State of New York Assistant Attorney General

Counsel for Defendant

300 South State Street, Suite 300

Syracuse, NY 13202

GLENN T. SUDDABY, Chief United States District Judge

DECISION and ORDER

Currently before the Court, in this employment discrimination action filed by Weili Cao-

Bossa (“Plaintiff”) against the New York State Department of Labor (“Defendant”), are the

following two motions: (1) Defendant’s motion for summary judgment; and (2) Defendant’s

letter-motion to strike Plaintiff’s sur-reply. (Dkt. Nos. 58, 70.) For the reasons set forth below,

Defendant’s motion for summary judgment is granted, and its motion to strike Plaintiff’s sur-

reply is denied.

I. RELEVANT BACKGROUND

Generally, in her Second Amended Complaint, Plaintiff claims that Defendant

discriminated against her based on her national origin and age in violation of Title VII of the

Civil Rights Act of 1964 and the Age Discrimination in Employment Act (“ADEA”). (Dkt. No.

25 [Pl.’s Second Am. Compl.].) In support of her claims, Plaintiff alleges that Defendant

discriminated against her by (a) refusing to hire her for a position for which she interviewed in

March 2016, and (b) terminating her employment in another position after six months. (Id.)

More specifically, Plaintiff, who is Chinese and was 45 years old at the time of her termination,

alleges that she received unfairly poor performance reviews based on a few sporadic mistakes

that resulted in her termination, but that other American and/or younger employees did not

receive similar negative performance reviews and were not terminated. (Id.)

B. Undisputed Material Facts on Defendant’s Motion for Summary Judgment

Under N.D.N.Y. Local Rule 56.1 (formerly Local Rule 7.1[a][3]), a party opposing

summary judgment must file a response to the moving party’s Statement of Material Facts that

“shall mirror the movant’s Statement of Material Facts by admitting and/or denying each of the

movant’s assertions in a short and concise statement, in matching numbered paragraphs,”

supported by “a specific citation to the record where the factual issue arises.” N.D.N.Y. Local R.

56.1(b). This requirement is not a mere formality; rather “this and other local rules governing

summary judgment are essential tools intended to relieve the district court of the onerous task of

hunting through voluminous records without guidance from the parties.” LaFever v. Clarke, 17-

CV-1206, 2021 WL 921688, at *6 (N.D.N.Y. Mar. 11, 2021) (Hurd, J.) (quoting Frantti v. New

York, 414 F. Supp. 3d 257, 284 [N.D.N.Y. 2019] [Hurd, J.]). Indeed, “[a] proper response to a

movant’s statement of material facts streamlines the summary judgment analysis ‘by allocating

responsibility for flagging genuine factual disputes on the participants ostensibly in the best

position to do so: the litigants themselves.’” LaFever, 2021 WL 921688, at *7 (quoting Alke v.

Adams, 16-CV-0845, 2018 WL 5297809, at *2 [N.D.N.Y. Oct. 25, 2018] [Hurd, J.]). “The

Court may deem admitted any properly supported facts set forth in the Statement of Material

Facts that the opposing party does not specifically controvert.” N.D.N.Y. Local R. 56.1(b).

In this case, Plaintiff entirely failed to provide any response to Defendant’s Statement of

Material Facts, much less one that complies with Local Rule 56.1. Where a party has failed to

respond to the movant’s statement of material facts in the manner required under Local Rule

56.1, the facts in the movant’s statement will be accepted as true (1) to the extent that they are

supported by evidence in the record, and (2) provided that the nonmovant, if proceeding pro se,

has been specifically advised of the possible consequences of failing to respond to the motion.

Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).1 Here, Defendant served on Plaintiff the

standard form for this District entitled “Notification of the Consequences of Failing to Respond

to a Summary Judgment Motion,” which includes a specific notification of the requirement to

respond to the defendant’s statement of material facts in matching numbered paragraphs with

citation to supporting evidence as well as a warning that failure to do so could result in the Court

deeming facts to be true that are not properly disputed. (Dkt. No. 58, Attach. 2.) Moreover, four

days later, the Court served Plaintiff with a duplicate copy of that Notification. (Dkt. No. 59.)

Eight days later, Plaintiff requested an extension of the response deadline. (Dkt. No. 60.)

Plaintiff has therefore received sufficient notice of the possible consequences of her failure to

respond to Defendant’s Statement of Material Facts.

1 Notably, although “courts are required to give due deference to a plaintiff’s pro se status,

that status ‘does not relieve [a pro se] plaintiff of his duty to meet the requirements necessary to

defeat a motion for summary judgment.’” Salaam v. Stock, 19-CV-0689, 2021 WL 2367123, at

*2 (N.D.N.Y. May 12, 2021) (Dancks, M.J.) (quoting Jorgensen v. Epic/Sony Records, 351 F.3d

46, 50 [2d Cir. 2003]), report-recommendation adopted by 2021 WL 2102242 (N.D.N.Y. May

24, 2021) (Sannes, J.).

Although the Court has ensured that Defendant’s asserted facts are supported by the cited

record evidence, it does not have the duty to scour the record for any and all evidence that may

contradict those asserted facts. See Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d

Cir.2002) (“We agree with those circuits that have held that Fed. R. Civ. P. 56 does not impose

an obligation on a district court to perform an independent review of the record to find proof of a

factual dispute.”); Monahan v. New York City Dep't of Corr., 214 F.3d 275, 291 (2d Cir. 2000)

(noting that the Local Rules require the parties “to clarify the elements of the substantive law

which remain at issue because they turn on contested facts” and the Court “is not required to

consider what the parties fail to point out”) (internal quotation marks and citations omitted). As

a result, the following facts were asserted and supported with accurate record citations by

Defendant in its Statement of Material Facts and deemed admitted by Plaintiff due to her failure

to respond and failure to provide any evidence to dispute the asserted facts. (Dkt. No. 66 [Def.’s

Rule 56.1 Statement].)

1. Plaintiff was born on September 21, 1972.

2. Plaintiff is of Chinese national origin.

3. Plaintiff obtained a bachelor’s degree in Agriculture in 1996 from Ocean

University of China.

4. Plaintiff also received a certificate from Austin Community College in Austin,

Texas, in 2012 for “professional accountant with high technology.”

5. Plaintiff did not have her Certified Public Accountant (“CPA”) license at the time

of her deposition.

6. In 2016, Plaintiff did not have the requisite one year of accounting experience,

supervised by a CPA, required for CPA licensing.

7. Plaintiff testified that she passed her CPA examinations in 2014.

8. Plaintiff did not have any formal accounting experience before she immigrated

from China to the United States in 2008.

9. The first accounting position Plaintiff held after arriving in the United States in

2008 was her position with Defendant in 2016.

10. Defendant is an executive agency of the State of New York, established pursuant

to Article 2 of the New York State Labor Law.

11. Defendant’s Administrative Finance Bureau (“AFB”) is responsible for the

budgeting, fiscal management, accounting, and expenditure of all department funds.

12. The AFB also maintains and ensures the accuracy of Defendant’s payroll system,

provides support operations services, including all procurement and payment activities, and

provides property management services covering leasing, space planning, project oversight, and

building maintenance.

13. Additionally, the AFB is responsible for the management of Defendant’s federal

grant funding and ensuring compliance with state and federal reporting requirements.

14. The AFB is divided into multiple sub-units, each with managers who reported to

Kathleen Elfeldt when she was the Director of Finance from 2014 until January 2018.

15. The Financial Management Unit (“FMU”) is one of the sub-units of the AFB.

16. In March 2016, Defendant posted a job vacancy announcement for an Accountant

Trainee 1 & 2 (Grades 14 and 16) and Senior Accountant (Grade 18) position within the AFB’s

FMU.

17. In order to be eligible for the Accountant Trainee position, a candidate must pass

a Civil Service examination and possess a bachelor’s degree in accounting, auditing or taxation,

or a bachelor’s degree or higher degree with 24 semester credit hours of accounting, auditing or

taxation courses.

18. A list of candidates who meet these requirements is provided to Defendant by the

New York State Department of Civil Service.

19. Plaintiff was the fourth candidate on the Accountant Trainee list, with a score of

90, and thus she was eligible for an interview.

20. On July 12, 2016, Plaintiff was interviewed for the open Accountant Trainee

position, and then was interviewed by Director Elfeldt the following day.

21. During the second interview, Director Elfeldt explained that the position for

which Plaintiff was interviewing was within the AFB’s FMU, which manages Defendant’s

finances related to federal grants and federal programs.

22. Director Elfeldt informed Plaintiff that federal requirements made the FMU

position unique, but that in the future she expected that there would be open positions in the

Accounting Office that could be a better fit for Plaintiff’s skills and experience.

23. At the time of her interview, Plaintiff did not have any experience reviewing

federal guidance or regulations and was not familiar with federal grant funding and guidance

requirements.

24. Plaintiff emailed Director Elfeldt after the interview, asking “[W]hy you set such

an interview if government working experience is a necessity to this job?”

25. Director Elfeldt responded that government work experience was not a job

requirement for the position, but that the federal grant funding and reporting requirements made

the Department of Labor different than a typical state agency, and the position Plaintiff

interviewed for was not in the accounting office and would not be entering data into an

accounting system.

26. Director Elfeldt indicated that Plaintiff’s work experience did not make her a

good fit for the position.

27. Plaintiff alleges that she did not receive this position because she was

discriminated against based on her age and national origin.

28. Plaintiff does not know the basis for her belief that Director Elfeldt

discriminatorily denied her the position based on her age and national origin, other than that

“there is no other explanation.”

29. Plaintiff admitted at her deposition that she did not have the right experience for

this position.

30. On July 15, 2016, Defendant posted another job vacancy for an Accountant

Trainee 1 & 2 and Senior Accountant, this one in the Accounting Unit.

31. Plaintiff was again reachable for this position on the Civil Service list.

32. Plaintiff claims that Director Elfeldt had her assistant call Plaintiff to let her know

that there was another position open.

33. On July 19, 2016, Plaintiff interviewed for the position in the Accounting Unit.

34. On September 13, 2016, Margaret “Peg” Farrell, the Project Director for the State

Financial System (“SFS”) Project in the Accounting Unit at the time, requested that Plaintiff be

hired for a Senior Accountant Trainee position.

35. Plaintiff’s hiring was approved by Michelle Daly, the Director of the Accounting

Office, and Director Elfeldt.

36. Plaintiff accepted the offer, and her employment began on October 6, 2016.

37. Plaintiff was hired as a trainee on a probationary basis and her salary grade was

equivalent to a Grade 14.

38. Plaintiff’s probationary period was to run concurrently with her two-year

traineeship.

39. After she was hired, Plaintiff was assigned to the Accounting Office’s SFS

Project Team.

40. Plaintiff’s direct supervisor was Project Assistant Lindsay Pulcher and the team

manager was Ms. Farrell.

41. Ms. Farrell was Ms. Pulcher’s direct supervisor.

42. Ms. Pulcher was the Project Assistant for the SFS Project Team from April 2014

to April 2017.

43. Supervisors for probationary trainees such as Plaintiff are required to present

trainees with an Individual Development Plan and quarterly probationary evaluations, as well as

traineeship evaluations at six-month intervals during the traineeship.

44. On October 26, 2016, Plaintiff met with Ms. Pulcher and was provided an

Individual Development Plan that listed the activities, tasks, and performance standards that

were expected of her in her position.

45. However, during the month of November 2016, Plaintiff had many issues

completing basic tasks and assignments that were required in her position.

46. On or about December 5, 2016, Ms. Pulcher and Ms. Farrell met with Plaintiff to

review her Individual Development Plan to ensure that Plaintiff understood the requirements of

her position and what was expected of her.

47. During the meeting, Plaintiff was reminded about the tasks she needed to

complete as part of her position and she was reminded as to how she should be completing her

assignments.

48. Plaintiff was also reminded during this meeting that her position was a two-year

traineeship during which she was on probation and could be terminated for poor performance.

49. Plaintiff recalled at her deposition that Ms. Pulcher and Ms. Farrell discussed

during this meeting that she needed to choose her wording carefully in emails and on the

telephone.

50. Plaintiff recalled at her deposition that Ms. Pulcher and Ms. Farrell discussed that

she is not entitled to “flex time” and was not allowed to leave early if she arrived to work early.

51. Plaintiff recalled at her deposition that Ms. Pulcher and Ms. Farrell discussed that

she needed to complete her assignments in the format that her supervisor had requested.

52. At no point during the meeting did either Ms. Pulcher or Ms. Farrell discuss

Plaintiff’s age or national origin.

53. At no point during the meeting did Plaintiff raise any concerns about

discrimination.

54. However, following the meeting of December 5, 2016, Plaintiff continued to have

issues with her job performance.

55. On January 6, 2017, Plaintiff received a three-month performance evaluation

which indicated that she needed to improve in almost all aspects of her job performance.

56. The three-month evaluation was completed by Ms. Pulcher and reviewed by Ms.

Farrell.

57. A meeting was held with Plaintiff on January 6, 2017, in which Ms. Pulcher and

Ms. Farrell gave the three-month evaluation to Plaintiff.

58. Ms. Pulcher took notes of the meeting, indicating what was reviewed with

Plaintiff and Plaintiff’s responses.

59. Plaintiff admits that she made mistakes during the first three months of her

probationary term.

60. During the meeting, Ms. Pulcher showed Plaintiff an example of an email in

which Plaintiff used a harsh, inappropriate tone.

61. Plaintiff testified at her deposition that she disagrees with Ms. Pulcher’s

assessment of her performance.

62. Following receipt of her three-month evaluation, Plaintiff met with Lin Arbab, a

Human Resources Specialist for Defendant.

63. During this meeting, Ms. Arbab explained to Plaintiff that managers and

supervisors may appropriately issue evaluations that accurately reflect the quality of an

employee’s performance.

64. Ms. Arbab explained that sometimes an employee’s performance will be rated as

“needs improvement” in certain areas, and that it is not unusual for an employee to receive an

evaluation that indicates performance areas that need improvement.

65. Ms. Arbab explained that Plaintiff’s three-month evaluation reflected her

supervisor’s assessment of her performance and included examples of the noted performance

deficiencies.

66. At the time, Plaintiff did not express to Ms. Arbab any belief that the three-month

evaluation was the result of discrimination.

67. On January 12, 2017, Plaintiff wrote an email to Ms. Pulcher and Ms. Farrell, in

which she stated that she “appreciate[d] you letting me know your concerns about my

performance in the first quarter evaluation,” and that she “enjoys very much working” with Ms.

Pulcher and Ms. Farrell and “can learn something new every day with [their] help.”

68. In the email of January 12, 2017, Plaintiff also listed her plans to improve her

performance, including promising to review her emails before sending them to other people, pay

attention to formatting details for biweekly downloading and monthly queries, submit a

summary of the work she performed that day before she left work every day, take notes so she

can stop “asking the same stupid questions,” and charge personal time whenever she has to use

work time.

69. Plaintiff also asked Ms. Pulcher to remind her if she asks the “same stupid

questions” and stated, “Please help me improve my management skills of work assignments. I

will improve my quality of work and other virtues required for my work.”

70. In the email of January 12, 2017, Plaintiff did not complain about feeling like she

was being discriminated against, and did not express disagreement with the three-month

performance evaluation.

71. Following the three-month performance evaluation, Plaintiff continued to have

job performance issues.

72. Ms. Farrell kept a log of some of the performance issues that Plaintiff exhibited

for approximately nine weeks after her three-month evaluation:

a. On January 23, 2017, Ms. Pulcher noted that Plaintiff downloaded the

wrong NHRP files.

b. On February 1, 2017, Plaintiff’s Monthly Mod Accrual and Stat Ledger

queries were for December 2015 rather than December 2016.

c. On February 6, 2017, Ms. Farrell notified Plaintiff that she had made

mistakes on the monthly query, to which Plaintiff responded, “[S]orry for

the negligence. Will be more careful in the future.”

d. Also on February 6, 2017, Ms. Pulcher was forced to remind Plaintiff to

download the NHRP522 and NHRP530 files despite the fact that this had

been a recurring task for several pay periods.

e. On February 22, 2017, Ms. Pulcher spoke with Plaintiff about her failure

to prioritize assignments correctly.

f. On February 27, 2017, Ms. Pulcher emailed Plaintiff to inform her that

she

was enrolled in mandatory training courses, but that those courses were

not a priority since they did not need to be completed for eight months,

and to identify which assignments were a priority. However, Plaintiff

completed these training courses before the priority assignments despite

Ms. Pulcher’s directions.

g. On March 1, 2017, Ms. Farrell asked Plaintiff to complete an assignment

immediately, but Plaintiff submitted the assignment the following day,

incorrectly. The assignment was still incorrect the second time Plaintiff

submitted it.

h. On March 3, 2017, Ms. Farrell asked Plaintiff to create a tab with a pivot

table for each ledger on an Excel spreadsheet. Plaintiff submitted the

assignment incorrectly and Ms. Farrell was forced to follow up.

i. Also on March 3, 2017, Ms. Pulcher contacted Plaintiff regarding an

assignment that she submitted incorrectly the previous day. Plaintiff

responded, “You are right . . . I guess I was kind of in a hurry. Sorry for

the abbreviation.”

j. On March 8, 2017, Ms. Pulcher requested that Plaintiff provide a

summary of an accounting training class Plaintiff had attended; however,

Plaintiff did not provide that summary and Ms. Pulcher was forced to

follow up on March 21, 2017, at which time Plaintiff still had not

completed the assignment.

73. Ms. Farrell recorded at least 13 separate instances between January 11, 2017, and

March 20, 2017, on which Plaintiff submitted an incorrect or incomplete assignment or needed

to be reminded to complete an assignment.

74. On April 3, 2017, Plaintiff received a six-month evaluation from Ms. Pulcher.

75. Ms. Pulcher recommended that Plaintiff be terminated based on her

unsatisfactory performance.

76. Ms. Farrell approved Ms. Pulcher’s recommendation for Plaintiff’s termination.

77. Director Elfeldt also agreed with the recommendation for termination.

78. Ultimately, termination decisions are made by the Personnel Department.

79. The recommendation was forwarded to Lisa Burrell, Associate Director of

Human Resources for Defendant, who made the final determination approving Plaintiff’s

termination.

80. Plaintiff was presented with the six-month evaluation at a meeting, during which

Ms. Pulcher indicated the main reasons why her employment was being terminated, including

the fact that her assignments were often not completed per instructions and follow-up was often

required, the fact that she needed to be reminded of the same issues repeatedly, and the fact that

she did not make the best use of her time or exert a consistent effort.

81. Plaintiff signed the evaluation that recommended her termination.

82. When she received her six-month evaluation, Plaintiff did not complain that her

evaluation was the result of discrimination.

83. On April 13, 2017, Plaintiff emailed Director Elfeldt, stating “[T]here were errors

in my work because of careless [sic] and inexperience, but they had nothing to do with working

abilities.”

84. At her deposition, Plaintiff acknowledged that she admitted she was careless and

inexperienced during her six months working for Defendant.

85. Plaintiff did not allege in her email of April 13, 2017, that she felt discriminated

against.

86. She did, however, thank Director Elfeldt for giving her a chance “to see how

unique and complicated the DOL accounting could be.”

87. The first time Plaintiff ever expressed that she felt discriminated against while

working for Defendant was in an email to Ms. Arbab on April 10, 2017.

88. At no point during her employment with Defendant did anyone make any remarks

about Plaintiff’s national origin or age.

89. There were “many” employees in Plaintiff’s specific unit who were Plaintiff’s age

or older.

90. On July 17, 2017, Plaintiff filed a complaint with the New York State Division of

Human Rights (“NYSDHR”).

91. Her complaint was amended on or about August 2, 2017, and in it she alleged that

she was subjected to discrimination based on her age and national origin in violation of the New

York State Human Rights Law, Title VII, and the ADEA.

92. On December 20, 2017, the NYSDHR issued a Determination and Order After

Investigation, in which it determined that there was no probable cause to believe that Defendant

engaged in or was engaging in the unlawful discriminatory practices Plaintiff alleged.

93. On January 26, 2018, the Equal Employment Opportunity Commission (“EEOC”)

adopted the findings of the NYSDHR.

94. Plaintiff alleges in her Second Amended Complaint that two or three other

employees were treated more favorably than her because of their national origin.

95. Specifically, Plaintiff alleges that Richard Deitz was treated more favorably than

her because of his national origin. However, Plaintiff does not know what position Mr. Dietz

held or who he is, and she admits that his job responsibilities were different than her job

responsibilities. She also “guesses” that he is “American.”

96. According to Mr. Deitz’s evaluation in the record, his supervisor was Michelle

Daly, not Ms. Pulcher, and Ms. Pulcher has never supervised or evaluated Mr. Deitz.

97. The basis for Plaintiff’s belief that Mr. Deitz was treated differently than her is

that he was praised for “taking initiative” while she was not.

98. Plaintiff also alleges that Frank Shavel was treated more favorably than her

because of his national origin. However, Plaintiff is unaware of where Mr. Shavel worked

within Defendant’s organization, she did not know what position he held, she did not know who

supervised him, she has never worked with him and has never seen him in person, she does not

know what his salary grade is, and she does not know whether he was a permanent or

probationary employee. Plaintiff also does not know his ethnic background.

99. The only basis for Plaintiff’s belief that Mr. Shavel was treated more favorably

than her is that he was given a counseling memorandum about failing to complete a mandatory

training rather than being terminated, while she did not receive any memoranda before her

termination.

100. However, Plaintiff does not know whether Mr. Shavel failed to complete other

tasks or training beyond the one related to the counseling memorandum.

101. Plaintiff also alleges that Kayla O’Hara was treated more favorably than her

because of her national origin. However, Plaintiff admitted that she does not know Ms.

O’Hara’s national origin (but she guesses that it is American), she has never worked with Ms.

O’Hara or observed her work performance, she has never spoken with anyone who worked with

or supervised Ms. O’Hara, she does not know whether Ms. O’Hara made similar mistakes to the

ones that are detailed in Plaintiff’s own evaluations, and she does not know whether Ms. O’Hara

was ever counseled about her time or attendance. Additionally, unlike Plaintiff, who was hired

as a Grade 14 Accountant Trainee, Ms. O’Hara was hired as a Grade 18 Senior Budget Analyst

effective September 21, 2017.

102. The only basis for Plaintiff’s belief that Ms. O’Hara was treated differently than

her is because there is no mention of “one-time incident[s]” or “learning process” on Ms.

O’Hara’s evaluation. Ms. O’Hara’s performance evaluation shows that she met performance

expectations for her position.

103. Plaintiff also alleges that these employees were treated more favorably than her

based on her age.

104. However, Plaintiff admits that Mr. Shavel and Mr. Deitz are both as old or older

than her: Mr. Deitz was 45 years old in 2017, and Plaintiff testified that Mr. Shavel is “older than

sixty, in his sixties or something . . . . He’s older than me.” Mr. Shavel was in fact 61 years old

in 2017.

105. Ms. O’Hara was 27 years old in 2017.

106. Ms. Pulcher was not aware of either Ms. O’Hara’s or Plaintiff’s ages in 2017.

107. The basis for Plaintiff’s belief that she was treated differently because of her age

was “some clues from [Ms. Pulcher],” such as when Ms. Pulcher “mentioned something about

older people. She just didn’t believe older people could do good job.”

108. Specifically, Plaintiff alleges that Ms. Pulcher commented that a receptionist,

Donna, who is around retirement age, “didn’t know what she was doing.”

109. Plaintiff also alleges that Ms. Pulcher made a comment about a “guy who’s doing

payroll” and how he needs to retire.

110. Ms. Pulcher denies ever making any comments about “Donna” or “a guy who’s

doing payroll” with respect to their age or ability to perform their job, and denies making any

comments to Plaintiff during her employment about any employees’ ages or how their ages

impact their ability to perform their jobs.

111. Director Elfeldt was 57 years old at the time of Plaintiff’s termination.

112. Assistant Director Cathryn Piccirillo was 51 years old at the time of Plaintiff’s

termination.

113. Ms. Farrell was 50 years old at the time of Plaintiff’s termination.

114. Associate Director of Human Resources Ms. Burrell was 48 years old at the time

of Plaintiff’s termination.

115. Plaintiff was not the only employee of Asian descent in the AFB at the time

Plaintiff was employed there, and there are currently employees of Asian descent employed in

Defendant’s Finance Bureau.

116. On April 7, 2017, Ms. Burrell sent a letter to Plaintiff indicating that she

concurred with the termination recommendation effective close of business April 14, 2017.

117. On April 10, 2017, Plaintiff emailed Ms. Burrell and stated that she felt Ms.

Pulcher was an “inexperienced and inapt [sic] supervisor” who was not qualified and who did

not provide her with proper training and help, as well as that she felt that Ms. Pulcher was mean

to her and that she had been discriminated against.

118. Nowhere in the email of April 10, 2017, does Plaintiff mention that she felt

discriminated against specifically based on her age or national origin.

119. At no point during her employment with Defendant did Plaintiff ever complain to

Director Elfeldt that she believed she was being discriminated against in any way.

C. Parties’ Briefing on Defendant’s Motion for Summary Judgment

1. Defendant’s Memorandum of Law

Generally, in its motion for summary judgment, Defendant makes three arguments. (Dkt.

No. 58, Attach. 1, at 12-43 [Def.’s Mem. of Law].) First, Defendant argues that Plaintiff’s

discrimination claims should be dismissed as untimely to the extent they are based on

Defendant’s failure to hire her for a position with the FMU in July 2016. (Id. at 12-15.)

Specifically, Defendant argues that this alleged act of discrimination occurred more than 300

days before Plaintiff filed her complaint with the NYSDHR on July 17, 2017, and thus any

portion of her claims based on that alleged act of discrimination must be dismissed. (Id.)

Defendant additionally argues that, timeliness notwithstanding, Defendant’s actions in not hiring

her for that position in July 2016 were not based on discrimination, but rather because she lacked

experience with federal grants and other regulatory considerations that were a feature of that

specific position. (Id.)

Second, Defendant argues that Plaintiff’s national origin discrimination claim pursuant to

Title VII should be dismissed. (Id. at 15-33.) Specifically, Defendant argues as follows: (a)

Plaintiff cannot establish a prima facie case of discrimination regarding her termination because

(i) she was not qualified for her position in that she did not meet legitimate employer

expectations of job performance as evidenced by the job evaluations showing unsatisfactory

performance, and (ii) the circumstances of her termination do not give rise to an inference of

discriminatory intent given that there was evidence that Plaintiff did many things wrong and

there have been no comments alleged to have been made about her ethnic group, and, in

particular, the other employees identified by Plaintiff are not sufficiently similarly situated to her

to raise such an inference; (b) even if Plaintiff can show a prima facie case, Defendant had a

legitimate reason for terminating her employment, namely her repeated poor performance

despite having meetings and reviews in which she was informed of the ways in which she was

not meeting expectations; and (c) Plaintiff cannot show that Defendant’s legitimate reason for

terminating her employment was a pretext for discrimination because she has no evidence that

her national origin was even a factor in that decision, and her own subjective belief that it was is

not sufficient to sustain her claim. (Id.)

Third, Defendant argues that Plaintiff’s age discrimination claim pursuant to the ADEA

should be dismissed. (Id. at 33-43.) Specifically, Defendant argues as follows: (a) Plaintiff

cannot establish a prima facie case of discrimination regarding her termination because (i) she

cannot show that she was performing her job satisfactorily (as already discussed), and (ii) she

cannot show that her termination occurred under circumstance giving rise to an inference of

discrimination based on her age given that the only alleged co-employee who was younger than

her is not sufficiently comparable, and any comments that may have been made by Ms. Pulcher

about the ages of other employees were merely stray remarks and Ms. Pulcher was nonetheless

not the ultimate decisionmaker as to Plaintiff’s termination; (b) even if Plaintiff can show a

prima facie case, Defendant had a legitimate reason for terminating her employment (as

discussed above); and (c) Plaintiff cannot show that Defendant’s legitimate reason for

terminating her employment was a pretext for discrimination because her subjective belief that

she was discriminated against and a few stray remarks about employees other than Plaintiff do

not show that her age was the but-for cause of her termination. (Id.)

2. Plaintiff’s Opposition Memorandum of Law

In her response to Defendant’s motion, Plaintiff requests that the Court deny that

motion, noting the reasons she had needed to request an extension in the past to file her response,

and noting that, “[w]hile preparing Plaintiff’s Memorandum of Law, I found out Defendant’s

Memorandum of Law did not follow L.R. 7.1. It was 36 pages in length, and it was 45 pages in

total with Table of Contents and the cover page.” (Dkt. No. 67, at 1-2 [Pl.’s Opp’n Mem. of

Law].) Plaintiff does not address any of the substantive arguments made by Defendant, nor does

she submit any response to Defendant’s Statement of Material Facts, as already discussed above

in Part I.B. of this Decision and Order.

3. Defendant’s Reply Memorandum of Law

Generally, in its reply, Defendant makes three arguments. (Dkt. No. 68 [Def.’s Reply].)

First, Defendant argues that it did not violate the Local Rules of Practice for this Court by filing

an overlong brief because the pages for the cover page, the table of contents, and the signature

block do not count toward the overall page count, and Defendant’s substantive brief was 35

pages as allowed by this Court’s Text Order of December 21, 2020. (Id. at 4.)

Second, Defendant argues that the Court should accept its asserted facts as true due to

Plaintiff’s failure to respond to its Statement of Material Facts as required by Local Rule 56.1

because, even though Plaintiff is pro se, she was twice provided notice of the consequences of

failing to do so. (Id. at 5-6.)

Third, Defendant argues that Plaintiff’s claims should be deemed to have been

abandoned because Plaintiff failed to address or oppose any of Defendant’s legal arguments.

(Id. at 6-7.)

4. Plaintiff’s Sur-Reply

Plaintiff also submitted a sur-reply without the permission of the Court. (Dkt. No. 69

[Pl.’s Sur-Reply].) In this sur-reply, Plaintiff asserts that she was not informed that Defendant

had requested or been granted permission to file an overlong brief with 10 additional pages, and

that, because she was not aware of this, she “filed the motion of rejection and was waiting for the

Judge’s further directions about the allowable length.” (Id. at 1.) She argues that Defendant’s

brief exceeds the extended page limit because the Conclusion section was on page 36 of that

brief and that Conclusion section is “substantive enough to be counted.” (Id. at 2.) Plaintiff

again requests that the Court deny Defendant’s motion for being improperly overlong, noting

that she “completed [her] response to Defendant’s Material Facts Not in Dispute before [she]

filed [her] rejection” and indicating that “I will submit my response in whole when Defendant

submit [sic] proper memorandum of law or as further directed by the court if otherwise.” (Id.)

5. Defendant’s Letter-Motion to Strike Plaintiff’s Sur-Reply

Defendant filed a motion to strike Plaintiff’s sur-reply because such responses are not

permitted without permission under the Local Rules of this Court, but that, even if the Court

considers the sur-reply, Plaintiff was provided with a copy of Defendant’s request for additional

pages for its memorandum and the Court’s order granting that request was served on Plaintiff by

regular mail, and thus she has no basis for claiming she was not reasonably made aware of

Defendant’s increased page limit. (Dkt. No. 70.)

II. LEGAL STANDARD GOVERNING A MOTION FOR SUMMARY JUDGMENT

Under Fed. R. Civ. P. 56, summary judgment is warranted if "the movant shows that

there is no genuine dispute as to any material fact and that the movant is entitled to a judgment

as a matter of law." Fed. R. Civ. P. 56(a). A dispute of fact is "genuine" if "the [record]

evidence is such that a reasonable jury could return a verdict for the [non-movant]." Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).2 As for the materiality requirement, a dispute of

fact is "material" if it "might affect the outcome of the suit under the governing law . . . . Factual

disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.

In determining whether a genuine issue of material fact exists, the Court must resolve all

ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255.

In addition, "[the movant] bears the initial responsibility of informing the district court of the

basis for its motion, and identifying those portions of the . . . [record] which it believes

demonstrate[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S.

317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must

2 As a result, “[c]onclusory allegations, conjecture and speculation . . . are insufficient to

create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) [citation

omitted]. As the Supreme Court has explained, “[The non-movant] must do more than simply

show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).

come forward with specific facts showing a genuine issue of material fact for trial. Fed. R. Civ.

P. 56(a), (c), (e).3

Implied in the above-stated burden-shifting standard is the fact that, where a non-movant

willfully fails to respond to a motion for summary judgment, a district court has no duty to

perform an independent review of the record to find proof of a factual dispute–even if that non-

movant is proceeding pro se.255 (This is because the Court extends special solicitude to the pro

se litigant by ensuring that he or she has received notice of the consequences of failing to

properly respond to the motion for summary judgment.).4 As has often been recognized by both

the Supreme Court and Second Circuit, even pro se litigant must obey a district court’s

procedural rules.5

Of course, when a non-movant willfully fails to respond to a motion for summary

judgment, "[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that

the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).

Rather, as indicated above, the Court must assure itself that, based on the undisputed material

facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v.

Comprehensive Analytical Group, Inc., 140 F. Supp.2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.);

N.D.N.Y. L.R. 7.1(b)(3). What the non-movant's failure to respond to the motion does is lighten

the movant's burden.

3 Among other things, Local Rule 7.1(a)(3) requires that the non-movant file a response to

the movant's Statement of Material Facts, which admits or denies each of the movant's factual

assertions in matching number paragraphs, and supports any denials with a specific citation to

the record where the factual issue arises. N.D.N.Y. L. R. 7.1(a)(3).

5

4 Cusamano v. Sobek, 604 F. Supp. 2d 416, 426 & n.2 (N.D.N.Y. 209) (Suddaby, J.) (citing

cases).

5 Cusamano, 604 F. Supp. 2d at 426-27 & n.4 (citing cases).

For these reasons, this Court has often enforced Local Rule 56.1 by deeming facts set

forth in a movant's statement of material facts to be admitted, where (1) those facts are supported

by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that

statement6–even where the non-movant was proceeding pro se.7

Similarly, in this District, where a non-movant has willfully failed to respond to a

movant’s properly filed and facially meritorious memorandum of law, the non-movant is deemed

to have “consented” to the legal arguments contained in that memorandum of law under Local

Rule 7.1(a)(3).8 Stated another way, when a non-movant fails to oppose a legal argument

asserted by a movant, the movant may succeed on the argument by showing that the argument

possess facial merit, which has appropriately been characterized as a “modest” burden. See

N.D.N.Y. L.R. 7.1(a)(3) (“Where a properly filed motion is unopposed and the Court determined

that the moving party has met its burden to demonstrate entitlement to the relief requested

therein . . . .”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct.

30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL

2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).

III. ANALYSIS

6 Among other things, Local Rule 56.1(b) requires that the non-movant file a response to

the movant's Statement of Material Facts, which admits or denies each of the movant's factual

assertions in matching numbered paragraphs, and supports any denials with a specific citation to

the record where the factual issue arises. N.D.N.Y. L. R. 56.1(b).

7 Cusamano, 604 F. Supp. 2d at 427 & n.6 (citing cases).

8 See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31

(N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff’s failure, in his opposition papers, to

oppose several arguments by defendants in their motion for summary judgment as consent by

plaintiff to the granting of summary judgment for defendants with regard to the claims that the

arguments regarded, under Local Rule 7.1[b][3]; Devito v. Smithkline Beecham Corp., 02-CV-

0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff’s

failure to respond to “aspect” of defendant’s motion to exclude expert testimony as “a

concession by plaintiff that the court should exclude [the expert’s] testimony” on that ground).

A. Whether Plaintiff’s Sur-Reply Should Be Stricken

Although Defendant is correct that sur-replies are not permitted under Local Rule 56.1

without permission from the Court, the Court finds that whether or not it considers Plaintiff’s

sur-reply is immaterial to the ultimate outcome of Defendant’s motion because the arguments

Plaintiff makes within that sur-reply are not meritorious.

Plaintiff’s argument that she never received the Court’s Text Order of December 21,

2020, is unpersuasive. As Defendant argues, there is sufficient evidence that Plaintiff was

reasonably apprised of the Court’s Text Order granting Defendant’s request for 10 additional

pages for its memorandum. (Dkt. No. 48 [noting specifically that a copy of the Text Order was

served upon Plaintiff via regular mail].) There is no indication that Plaintiff had changed

mailing addresses, that the Text Order had been returned as undeliverable, or that there has been

any difficulty with her receiving mail throughout the course of this litigation. (See Dkt. No. 1

[Pl.’s Comp.] [listing her address at the time of filing in April 2018 as the same address on file

with the Court as her current address].) As a result, there is no reason that Plaintiff should not

have reasonably known about the request for (and grant of) the additional pages.

Similarly, Plaintiff’s argument that Defendant’s motion should be denied because the

non-substantive portions of Defendant’s memorandum were in excess of 35 pages is unavailing.

Non-substantive matter such as cover page, table of contents, and signature block do not count

toward the substantive page limit. See Moore v. Syracuse City Sch. Dist., 05-CV-0005, 2009

WL 890576, at *2 n.8 (N.D.N.Y. Mar. 31, 2009) (Scullin, J.) (noting that it repaginated

plaintiff’s memorandum by starting page one following the Table of Contents and Authorities);

In re Marina Dev., Inc., 05-CV-1349, 2007 WL 9752855, at *1-2 (N.D.N.Y. Jan. 11, 2007)

(Hurd, J.) (noting that the Local Rules applied to brief format in bankruptcy cases, and

concluding that the appellees’ briefs should therefore not exceed 25 pages, “exclusive of pages

containing the table of contents, table of citations or similar material”). Additionally, although

Plaintiff argues that Defendant’s one-sentence conclusion is “substantive enough to be counted,”

the Court disagrees because that conclusion is merely a brief restatement of Defendant’s request

that the Court grant its motion to dismiss Plaintiff’s Second Amended Complaint that contains

no additional substantive argument. (Dkt. No. 58, Attach. 1, at 44 [Def.’s Mem. of Law].) Even

if the conclusion were considered to be substantive, the proper course of action in this case

would be to merely not consider any pages beyond the allowed amount, not to strike the entire

motion as Plaintiff requests. See Helen Cross v. Colvin, 16-CV-0111, 2016 WL 7011477, at *4

n.3 (N.D.N.Y. Dec. 1, 2016) (Suddaby, C.J.) (noting that, “[b]ecause Plaintiff has exceeded the

page limit, the Court will not consider the arguments contained in pages eleven through fifteen

of her counsel’s reply affidavit”). The Court therefore finds that there is no basis for Plaintiff’s

arguments that Defendant’s motion should be denied based on the length of its memorandum of

law.

Also unpersuasive is Plaintiff’s argument that she has prepared a more detailed

substantive response to Defendant’s motion (including a response to Defendant’s Statement of

Material Facts), but has not yet filed her “response in whole” because she has been waiting for

this Court’s “further directions about the allowable length” of Defendant’s memorandum of law.

(Dkt. No. 69 [Pl.’s Sur-Reply].) Even considering Plaintiff’s pro se status, there is no

justification for Plaintiff’s blatant failure to comply with the Local Rules by essentially ignoring

the Court’s imposed deadlines and manufacturing her own procedure that she now expects the

Court to follow. Plaintiff was provided with notice that her response to Defendant’s motion for

summary judgment was due by February 19, 2021, a notice that she received because she

subsequently requested (and was granted) two separate 60-day extensions of time on that

deadline, such that her response was not ultimately due until June 21, 2021. (Dkt. Nos. 59, 60,

61, 62, 64.) The Notification of the Consequences of Failing to Respond to a Summary

Judgment form that was filed along with Defendant’s motion clearly states that a failure to file a

proper response to the motion including a response to the Statement of Material Facts, copies of

all pertinent record evidence, and a response memorandum containing legal arguments could

result in dismissal of some or all of the claims. (Dkt. No. 58, Attach. 2.)

Despite being made aware of the need to respond fully and despite being granted multiple

lengthy extensions to do so, Plaintiff, without any permission or direction from the Court, chose

to instead file a brief “motion” to dismiss Defendant’s memorandum due to an alleged failure to

comply with the page limits in the Local Rules and seemingly expected (again, without any

permission or direction from the Court) that such counter-motion held the deadline for

submitting a substantive response to Defendant’s motion in abeyance. However, Plaintiff’s

misunderstanding of the rules of procedure based on her pro se status do not excuse her failure to

comply with those rules of procedure. See Alzawahra v. Albany Medical Ctr., 546 F. App’x 53,

54 (2d Cir. 2013) (noting that, “[a]lthough a pro se litigant is entitled to a liberal construction of

his filings, . . . his pro se status does not relieve him of his obligation to comply with the relevant

procedural rules”). This is particularly so given that Plaintiff was informed of what she was

required to submit in response to Defendant’s motion, and the consequences for failing to do so.

Finally, the Court finds that it would not serve the interests of judicial efficiency to allow

Plaintiff to submit any further substantive filings in response to Defendant’s motion for summary

judgment at this point. As already noted, Plaintiff was granted an additional 120 days in which

to file her response. In granting her second request to extend that deadline, the Court stated that

no more extensions would be granted without documentary evidence that extension was

warranted due to medical issues, and noted that this case has been pending for more than three

years. (Dkt. No. 64 [Text Order filed Apr. 19, 2021].) Because Plaintiff’s response and sur-

reply indicate that her failure to file a full response by the deadline was due to her decision to

wait to see what the Court ruled as to the propriety of the length of Defendant’s memorandum

rather than due to any medical or other issue, there is no basis for allowing Plaintiff additional

time to submit a full and proper response. Notably, allowing Plaintiff to do so would require

Defendant to expend additional time and effort to prepare yet another reply memorandum

despite having already filed a reply and a motion to strike in response to Plaintiff’s sur-reply.

Lastly, the Court notes that, having reviewed the record on this motion, it is unlikely that

providing Plaintiff with additional opportunity to respond to Defendant’s motion would result in

a different outcome on that motion.

As a result, the Court denies Defendant’s motion to strike the sur-reply because the sur-

reply offers Plaintiff no relief even if considered.

B. Whether Plaintiff’s Discrimination Claim Based on the July 2016 Failure to

Hire Must Be Dismissed as Untimely

After careful consideration, the Court answers this question in the affirmative for the

reasons stated in Defendant’s memorandum of law. (Dkt. No. 58, Attach. 1 [Def.’s Mem. of

Law].) To those reasons, the Court adds the following analysis.

“To sustain Title VII or ADEA claims, a plaintiff must file administrative charges with

the EEOC within 300 days of the alleged act of discrimination.” Betterson v. HSBC Bank USA,

N.A., 661 F. App’x 87, 89 (2d Cir. 2016) (citing Van Zant v. KLM Royal Dutch Airlines, 80 F.3d

708, 712 [2d Cir. 1996]; Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 328 [2d Cir. 1999]).

Thus, any conduct that occurred more than 300 days before the charge is filed is barred in a

federal lawsuit unless an exception applies. Betterson, 661 F. App’x at 89.

Here, Plaintiff filed her complaint with the NYSDHR on July 14, 2017. (Dkt. No. 58,

Attach. 12, at 1, 23.) As a result, only alleged acts of discrimination that occurred on or after

September 17, 2016, are covered under that complaint. Because the failure to hire that Plaintiff

alleges occurred in July 2016, any claim related to that alleged action is barred unless Plaintiff

meets one of the defined exceptions to the 300-day requirement.

Recognized exceptions to the 300-day requirement include waiver, estoppel, equitable

tolling, or the existence of a continuing violation. Barr v. Bass Pro Outdoor World, LLC, 17-

CV-0378, 2019 WL 6828987, at *9 (N.D.N.Y. Dec. 13, 2019) (Sannes, J.). None of these

exceptions are applicable here. There is no apparent basis for applying waiver or estoppel.

As to equitable tolling, a plaintiff must show that (1) she has been pursuing her rights

diligently, but (2) some extraordinary circumstance stood in the way and prevented timely filing.

Barr, 2019 WL 6828987, at *9 (citing Bolarinwa v. Williams, 593 F.3d 226, 231 [2d Cir. 2010]).

There is no indication of any circumstances between July 2016 and September 2016 that would

have prevented her from filing a charge as to the allegedly discriminatory failure to hire in July

2016, much less an extraordinary one.

There is also no basis for applying the continuing violation doctrine here. “Under the

continuing violation exception to the . . . limitations period, if a . . . plaintiff files an EEOC

charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of

discrimination, all claims of discrimination under the policy would be timely even if they would

be untimely standing alone.” Chin v. Port Auth. Of New York & New Jersey, 685 F.3d 135, 156

(2d Cir. 2012). However, “discrete discriminatory acts are not actionable if time barred, even

when they are related to acts alleged in timely filed charges.” Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 113 (2002). A discrete act is one that “necessarily ‘constitutes a separate

actionable unlawful employment practice’” that would be individually actionable, such as

“termination, failure to promote, denial of transfer, or refusal to hire.” Chin, 685 F.3d at 157

(citing Morgan, 536 U.S. at 114). It is well recognized that discrete acts that fall outside the

limitations period “cannot be brought within it, even when undertaken pursuant to a general

policy that results in other discrete acts occurring within the limitations period.” Chin, 685 F.3d

at 157). Because the alleged failure to hire is a discrete act that was actionable in its own right,

the continuing violation doctrine cannot be used to make it timely.

For all of the above stated reasons, the Court finds that the portions of Plaintiff’s

discrimination claims that are based on the failure to hire her in July 2016 are barred due to her

failure to file a timely charge as to that act and must be dismissed.

C. Whether Defendant’s Motion Should Be Granted as to Plaintiff’s Title VII

Claim

After careful consideration, the Court answers this question in the affirmative for the

reasons stated in Defendant’s memorandum of law. (Dkt. No. 58, Attach. 1 [Def.’s Mem. of

Law].) To those reasons, the Court adds the following analysis.

Claims for discrimination under Title VII are subject to the McDonnell Douglas burden-

shifting standard. Kirkland v. Cablevision Systems, 760 F.3d 223, 225 (2d Cir. 2014). As an

initial matter, the plaintiff must proffer sufficient evidence to state a prima facie case of

discrimination. Kirkland, 760 F.3d at 225. If the plaintiff can make a prima facie case of

discrimination, the burden shifts to the defendant to provide a legitimate, non-discriminatory

reason for its actions. Id. If the defendant does so, the burden shift back to the plaintiff to show

that the defendant’s explanation is a pretext for discrimination. Id. As to this last step, “once the

[defendant] has made a showing of a neutral reason for the complained of action, to defeat

summary judgment . . . the [plaintiff’s] admissible evidence must show circumstances that would

be sufficient to permit a rational finder of fact to infer that the [defendant’s] employment

decision was more likely than not based in whole or in part on discrimination.” Id. (quoting

Terry v. Ashcroft, 336 F.3d 128, 137 [2d Cir. 2003]).

“To establish a prima facie case of discrimination under Title VII, a plaintiff must

demonstrate [the following four elements]: (1) membership in a protected class; (2) satisfactory

job performance; (3) an adverse employment action; and (4) circumstances surrounding the

employment action give rise to an inference of discrimination.” Fahrenkrug v. Verizon Servs.

Corp., 652 F. App.’x 54, 56 (2d Cir. 2016). In this case, Defendant concedes that Plaintiff has

established the first and third of these requirements, but disputes that Plaintiff can show that (a)

she had satisfactory job performance, and (b) her termination occurred under circumstances

giving rise to an inference of discrimination.

As to the second element, “[i]n determining whether an employee’s job performance is

satisfactory, courts may—as they often must—rely on the evaluations rendered by supervisors,”

because “job performance cannot be assessed in a vacuum” and “the ultimate inquiry is whether

an employee’s performance ‘meets his employer’s legitimate expectations.’” Meiri v. Dacon,

759 F.2d 989, 995 (2d Cir. 1985); see Manko v. Deutsche Bank, 554 F. Supp. 2d 467, 477

(S.D.N.Y. 2008) (noting that “courts routinely rely on evaluations from the plaintiff’s

supervisors in determining satisfactory job performance”). Whether performance is satisfactory

“depends on the employer’s criteria for the performance of the job—not the standards that may

seem reasonable to the jury or judge.” Thornley v. Penton Publishers, 104 F.3d 26, 29 (2d Cir.

1997). “Although courts must refrain from intruding into an employer’s policy apparatus or

second-guessing a business’s decisionmaking process, . . . they must also allow employees ‘to

show that the employer’s demands were illegitimate or arbitrary.’” Meiri, 759 F.2d at 995.

Here, it is undisputed that Plaintiff was a probationary trainee employee during the

relevant time period, and thus subject to termination if she did not meet employer expectations.

(Dkt. No. 58, Attach. 3, at ¶ 5 [Arbab Decl.]; Dkt. No. 58, Attach. 9.) Under the terms of this

probationary trainee employment, her supervisors were required to provide an Individual

Development Plan and quarterly probationary evaluations as well as traineeship evaluations at

six-month intervals during the traineeship period. (Dkt. No. 58, Attach. 3, at ¶ 6 [Arbab Decl.].)

Plaintiff was provided with her Individual Development Plan (which she acknowledged with a

signature) on October 25, 2016; this document outlined activities and performance standards for

her Grade 14 position. (Dkt. No. 58, Attach. 5.) On January 6, 2017, Plaintiff was provided

with a three-month probation evaluation signed by Ms. Pulcher and Ms. Farrell, in which

Plaintiff was rated as “needs improvement” in all listed areas except “relationships,” with details

related to those areas written in the comments section that highlight the specific tasks and ways

in which Plaintiff was noted to not be performing up to expected standards. (Dkt. No. 58,

Attach. 6.) On April 3, 2017, Plaintiff was provided with a six-month probation evaluation

signed by Ms. Pulcher and Ms. Farrell, in which it was noted that Plaintiff was rated as

“unsatisfactory” in the areas of management of work assignments, quality of work, productivity,

personal work characteristics, and problem solving/decision-making, “needs improvement” in

the areas of attendance and communications, and “meets expectations” in the area of

relationships; again, the evaluation includes written comments regarding the specific tasks and

ways in which Plaintiff was not performing up to specific expectations. (Dkt. No. 58, Attach. 7.)

Plaintiff was also provided with a six-month performance evaluation, in which concerns about

her performance as to the activities and tasks outlined in the Individual Development Plan were

noted. (Dkt. No. 58, Attach. 8.)

Based on the evidence, it is clear both what the standards of Plaintiff’s position were and

the reasons that Plaintiff’s performance did not meet those standards. As discussed above in Part

I.B. of this Decision and Order, Plaintiff herself acknowledged that she made some mistakes in

the course of her performance of her duties, and additional evidence from Ms. Pulcher and Ms.

Farrell substantiates multiple specific mistakes. (Dkt. No. 58, Attachs. 28-33, 44, 47-54.)

Additionally, there is nothing in the record to show that these expectations were in any way

illegitimate or arbitrary. Plaintiff has offered no evidence to support her claim but her own

subjective belief that her performance was not as bad as her supervisors stated. In an email to

Ms. Arbab on April 10, 2017, Plaintiff stated that she believed Ms. Pulcher provided inadequate

training or communication to her; however, there is no evidence to substantiate this subjective

belief and the undisputed record reflects that both Ms. Pulcher and Ms. Farrell provided fairly

significant feedback and reminders to Plaintiff about her tasks and duties. (Dkt. No. 58, Attachs.

28-33, 39-41, 43, 45-54.) Based on the record before the Court, no reasonable factfinder could

conclude that Plaintiff performed her job satisfactorily.

In the alternative, the Court finds that Plaintiff also has not shown that the circumstances

surrounding her termination give rise to an inference of discrimination. Notably, the record is

devoid of any indication that any of Defendant’s employees ever referenced Plaintiff’s national

origin during her employment or made any kind of disparaging remarks about her national

origin. Additionally, the three employees that Plaintiff holds out as comparators who received

better treatment because they were not terminated are not sufficiently similar to her to give rise

to an inference of discrimination based on national origin for two reasons. First, Plaintiff’s

deposition makes clear that she is not even certain what the national origins of these individuals

are, but she merely assumes that they are “American.” (Dkt. No. 58, Attach. 15, at 102-03, 105-

06, 109 [Pl.’s Dep.].) Second, there is no evidence to show that these individuals were in

comparable positions with comparable responsibilities and that they made comparable mistakes

to those made by Plaintiff. To raise an inference of discrimination from more favorable

treatment towards similarly situated individuals outside of the protected group, “a plaintiff ‘must

show she was similarly situated in all material respects to the individuals with whom she seeks

to compare herself.’” De Jesus-Hall v. New York Unified Court Sys., 2021 WL 1259581, at *1

(2d Cir. 2021) (quoting Graham v. Long Island R.R., 230 F.3d 34, 39 [2d Cir. 2000]).

As to Ms. O’Hara, although her job tasks and objectives are similar to Plaintiff’s, the

evidence shows that Ms. O’Hara was hired as Grade 18 Senior Budget Analyst/Senior

Accountant (while Plaintiff was a Grade 14 Senior Accountant Trainee) and her performance

reviews show that she overwhelmingly performed tasks up to expectations, with the exception of

“needs improvement” on her three-month probation evaluation in the areas of managing work

assignments and problem solving/decision-making, where it was noted that she needed to

improve on working more efficiently to complete her assignments in a timely manner and in

completing analyses and problem solving more independently, and “needs improvement” on her

six-month probation evaluation in the area of problem solving/decision-making, where it was

noted she needed to improve on completing analyses and problem solving more independently; it

was noted that she had improved in these areas and was meeting expectations by the time of her

nine-month probation evaluation. (Dkt. No. 58, Attach. 58.) The evidence therefore shows that,

even if Plaintiff and Ms. O’Hara performed the same or similar jobs, Ms. O’Hara did so with

fewer mistakes and she gradually improved her performance over the course of the documented

time, whereas Plaintiff’s evaluations showed that she made far more extensive mistakes and did

not show improvement. As a result, the Court finds that Ms. O’Hara is not sufficiently similar

and thus the disparate treatment between her and Plaintiff would not allow a reasonable fact

finder to infer discrimination.

As to Mr. Deitz, he was a Grade 18 Senior Accountant in a different section or unit than

Plaintiff, and his listed tasks and objectives are not similar to those listed in Plaintiff’s Individual

Development Plan. (Compare Dkt. No. 25, at 21-24 with Dkt. No. 58, Attach. 5, at 1-2; see Dkt.

No. 58, Attach. 15, at 111-12 [Pl.’s Dep.] [testifying that she did not do many of the tasks listed

on Mr. Deitz’s tasks and objectives list and admitting that his responsibilities were “different”

than hers].) Additionally, Mr. Deitz was supervised by Melinda Hansen and Michelle Daly, not

Ms. Pulcher and Ms. Farrell, and a summary of his performance completed by Ms. Daly

indicates that Mr. Deitz performed his job satisfactorily in all noted respects. (Dkt. No. 25, at

24, 26-27.) Because there is no evidence that Mr. Deitz was a trainee, the evidence shows that

he had different job responsibilities and different supervisors than Plaintiff, and there is no

evidence of ongoing job performance issues, the Court finds that no reasonable fact finder could

conclude that the treatment Mr. Deitz received raises an inference of discrimination.

As to Mr. Shavel, there is little evidence about the details of his employment. Plaintiff’s

only allegation regarding Mr. Shavel is that he was given a counseling memorandum for failing

to complete mandatory training, but did not have his employment terminated. (Dkt. No. 25, at

31.) However, there is no evidence to suggest that Mr. Shavel had engaged in any other actions

that made his job performance unsatisfactory, much less that he committed mistakes similar to

those documented related to Plaintiff’s job performance. Additionally, there is no evidence to

suggest that Mr. Shavel was a trainee employee or that he worked in a similar position or with

similar tasks and objectives as Plaintiff’s position, and the counseling memorandum suggests

that Mr. Shavel was supervised in some way by Ms. Hansen, not Ms. Pulcher or Ms. Farrell.

(Dkt. No. 25, at 31.) Based on the evidence, the Court finds that no reasonable fact finder could

conclude that the treatment Mr. Shavel received raises an inference of discrimination.

Because Plaintiff has not provided evidence which can prove a prima facie case of

national origin discrimination under Title VII and because there is no outstanding issue of

material fact evident from the parties’ submissions, the Court grants Defendant’s motion for

summary judgment on this claim.

D. Whether Defendant’s Motion Should Be Granted as to Plaintiff’s ADEA

Claim

After careful consideration, the Court answers this question in the affirmative for the

reasons stated in Defendant’s memorandum of law. (Dkt. No. 58, Attach. 1 [Def.’s Mem. of

Law].) To those reasons, the Court adds the following analysis.

“‘In order to establish a prima facie case of age discrimination,’ the plaintiff ‘must show

(1) that she was within the protected age group, (2) that she was qualified for the position, (3)

that she experienced adverse employment action, and (4) that such action occurred under

circumstances giving rise to an inference of discrimination.’” Green v. Town of East Haven, 952

F.3d 394, 403 (2d Cir. 2020) (quoting Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 107 [2d

Cir. 2010]). In this case, Defendant concedes that Plaintiff has established the first and third of

these requirements, but disputes that Plaintiff can show that she (a) was qualified for the

position, and (b) her termination occurred under circumstances giving rise to an inference of

discrimination.

Regarding whether Plaintiff was qualified, under the law of this Circuit, “a plaintiff only

needs to demonstrate that she possesses the basic skills necessary for performance of the job.”

Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 171 (2d Cir. 2006) (quoting Owens v. New York

City Housing Auth., 934 F.2d 405, 409 [2d Cir 1991]). Notably, although misconduct is not a

basis for finding an employee lacks the basic qualifications for a position, evidence of

performance based on evaluations of an employee’s work is appropriate evidence for making

that determination. Owens, 934 F.2d at 409 (clarifying that it is the ability to perform job duties

that is important, not whether the conduct is inappropriate or offensive); Ralkin v. New York City

Transit Auth., 62 F. Supp. 2d 989, 998 (E.D.N.Y. 1999) (finding summary judgment appropriate

on the issue of whether the plaintiff was qualified for the position because there was no

“competing evidence” against the unsatisfactory performance evaluations to create an issue of

fact about the plaintiff’s performance, and no evidence that the negative evaluations were unfair

or incorrect). Here, Plaintiff has offered no evidence that the performance evaluations were

inaccurate other than her own general assertions at her deposition that she does not believe they

accurately reflect her performance. Because her unsubstantiated assertions and beliefs cannot

outweigh the other evidence, the Court finds that Plaintiff has not sufficiently shown that there is

a genuine dispute of material fact about whether she was qualified for her position as that term is

defined by the law.

Regarding whether Plaintiff has raised an inference of discrimination, as already

discussed above in Part III.C. of this Decision and Order, Plaintiff’s attempt to show that she was

treated less favorably than younger similarly situated individuals is unavailing. Notably, it is

undisputed that Ms. O’Hara was the only individual of the three named that was not as old or

older than Plaintiff. However, as discussed previously, Ms. O’Hara is nonetheless not

sufficiently similarly situated to Plaintiff because there is no evidence that Ms. O’Hara made the

same or similar mistakes as Plaintiff did at the level and frequency at which Plaintiff made those

mistakes. Rather, the evidence shows that Ms. O’Hara was reported to have made fewer overall

mistakes and that she improved with each probation evaluation that was conducted. It is

undisputed that Plaintiff is not personally familiar with Ms. O’Hara or her work abilities, and

that Plaintiff has no knowledge as to how well or not Ms. O’Hara performed her job on a day-to-

day basis. As a result, disparate treatment here does not give rise to an inference of

discrimination based on Plaintiff’s age any more than it does related to her national origin.

The Court also acknowledges Defendant’s correct argument that many courts recognize

that “an allegation that a decision is motivated by age animus is weakened when the

decisionmakers are of the protected class,” and also where “Plaintiff was well within the

protected age group when she was hired.” Ehrbar v. Forest Hills Hosp., 131 F. Supp. 3d 5, 25

(E.D.N.Y. 2015) (collecting cases). However, these factors are not dispositive. Ehrbar, 131 F.

Supp. 3d at 26. Here, Plaintiff was within the protected age group when she was hired, and Ms.

Farrell, who was 50 at the relevant time, approved her termination, as did Ms. Burrell, who was

48 at the relevant time. (Dkt. No. 58, Attach. 3, at ¶ 13 [Arbab Decl.]; Dkt. No. 58, Attach. 25,

at ¶¶ 5, 29 [Farrell Decl.].) Ms. Pulcher, however, was not in the protected age group. (Dkt. No.

58, Attach. 3, at ¶ 13 [Arbab Decl.].) Additionally, “where the person who made the decision to

fire was the same person who made the decision to hire, it is difficult to impute to her an

invidious motivation that would be inconsistent with the decision to hire.” Schnabel v.

Abramson, 232 F.3d 83, 91 (2d Cir. 2000) (quoting Grady v. Affiliated Cent., Inc., 130 F.3d 553,

560 [2d Cir. 1997]); see also Downey v. Adloox, Inc., 789 F. App’x 903, 907 (2d Cir. 2019)

(affirming district court’s dismissal of age discrimination claim based in part on the fact that

plaintiffs were hired and fired by the same executives within a short period of time). Here,

Plaintiff’s hiring was prompted by a request from Ms. Farrell, and Ms. Farrell also was one of

the persons who approved her termination approximately six months later. (Dkt. No. 58, Attach.

25, at ¶¶ 5, 27 [Farrell Decl.].) Although it is unclear who precisely had the last authoritative say

about Plaintiff’s termination, Ms. Farrell’s involvement in both Plaintiff’s hiring and firing is a

factor to consider in determining whether the evidence can be reasonably interpreted as raising

an inference of discrimination based on age.

Unlike the national origin claim, which is unsupported by any evidence of statements

made by Plaintiff’s supervisors about her or other employee’s national origins, there is a genuine

dispute of material fact as to whether Ms. Pulcher made comments to Plaintiff about certain

other employees being too old to do their jobs effectively. Plaintiff asserts that Ms. Pulcher

made such comments, while Ms. Pulcher denies making such comments. It is undisputed that

the two employees about whom Ms. Pulcher allegedly made the comments were at, near, or

beyond retirement age, while Plaintiff was 45 at the time she was employed by Defendant. (Dkt.

No. 58, Attach. 15, at 114-18 [Pl.’s Dep.] [testifying that Ms. Pulcher said that the employees in

question did not know what they were doing and should have retired].) However, even if a fact

finder were to accept Plaintiff’s testimony that Ms. Pulcher made these comments, it would be

insufficient to raise an inference of discrimination in light of all of the other evidence, including

the fact that Ms. Farrell (who was not alleged to have made any comments about age) was

personally aware of Plaintiff’s work performance through working directly with her, and also

signed Plaintiff’s probationary evaluations and recommended her termination. Put another way,

even if Ms. Pulcher had made comments suggesting possible age bias, those comments and any

inference of discrimination on her part cannot be imputed to Ms. Farrell in the absence of

evidence she was aware of any bias Ms. Pulcher may have held, particularly given that Ms.

Farrell was directly and independently familiar with Plaintiff’s performance issues. As a result,

the Court finds that Plaintiff has not established that a reasonable fact finder could conclude

there was an inference of discrimination even if they resolved the issue about Ms. Pulcher’s

comments in Plaintiff’s favor.

In the alternative, even if a reasonable fact finder could conclude that Plaintiff was

qualified and Ms. Pulcher’s statements raised an inference of discrimination, denial of summary

judgment is inappropriate here because Plaintiff cannot meet her ultimate burden to show that

Defendant’s proffered non-discriminatory explanation (i.e., that Plaintiff’s performance was

poor) was a pretext for discrimination. To establish a claim for discrimination under the ADEA,

the plaintiff “must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of

the challenged adverse employment action and not just a contributing or motivating factor.”

Green, 952 F.3d at 403 (citing Gorzynski, 596 F.3d at 106). In other words, Plaintiff’s age does

not need to have been the only consideration, but rather she still must show that she would not

have been terminated without her age being considered. Perez v. Cnty of Rensselaer, New York,

14-CV-0950, 2018 WL 3420014, at *4 (N.D.N.Y. July 13, 2018) (Sharpe, J.) (citing Delaney v.

Bank of Am. Corp., 766 F.3d 163, 169 [2d Cir. 2014]). A few isolated comments that were not

even directed at Plaintiff are insufficient to allow a reasonable fact finder to conclude that

Plaintiff’s age was the but-for cause of her termination in light of all of the evidence discussed

above related to Plaintiff’s failure to show an inference of discrimination. No reasonable fact

finder could conclude that Plaintiff would not have been terminated despite her performance

reviews if not for her age.

Because Plaintiff cannot establish a prima facie case and cannot show that her age was

the but-for cause of her termination, the Court grants Defendant’s motion for summary judgment

on this claim.

ACCORDINGLY, it is

ORDERED that Defendant’s motion for summary judgment (Dkt. No. 58) is

GRANTED; and it is further

ORDERED that Plaintiff's claims for national origin and age discrimination pursuant to

Title VII and the ADEA are DISMISSED; and it is further

ORDERED that Plaintiff's Second Amended Complaint (Dkt. No. 25) is DISMISSED.

Dated: August 19, 2021

Syracuse, NY

Hon. Glenn T.

Chief U.S. District Judg

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