The case is Lin v. New York State Department of Labor, a summary order decided on April 25. This is a retaliation case. Plaintiff says DOL did not consider her for a new position because she had previously complained about discrimination. But, as the Court of Appeals points out, poor performance is the tried and true justification that management offers in cases like this. We did not consider you for the position because you were not good enough. Many plaintiffs do not want to hear this, but sometimes management is able to back up this argument. The Court says management did so here, offering a "well-documented . . . series of performance reviews, which reflect a steady increase in both Lin's error rate and need for supervisor intervention, well exceeding the needs of peer employees."
Plaintiff tries to get around this by noting that a former supervisor "may have harbored retaliatory animus and sought to prevent Lin's consideration for a new position." While the impermissible bias of one individual at any stage of the process is enough to taint the process, plaintiff did not show that this individual played a meaningful role in the process. And the emails were sent two years before plaintiff became eligible for the position. The emails do not help plaintiff.
Plaintiff also argues that defendant offered shifting explanations for the position denial. That can be evidence of pretext, and the Court of Appeals sometimes credits that argument. But here the Court does not. The two separate explanation were not entirely consistent, but they were close enough. Here is the analysis:
DOL first reported to the EEOC that Lin was not considered because she was not legally eligible for a position, and made no reference to Lin’s poor performance. This was true, but only in part: several positions arose after Lin’s firing that she was not legally eligible for, but ultimately she was eligible for one. Though DOL’s failure to provide a full accounting in its response to the EEOC is troublesome, this incomplete explanation is in no way incompatible with the explanation that DOL urges here—that it did not consider Lin for a specific position because of her prior history as an employee. Further, Lin’s poor performance and ultimate firing are well documented, and thus do not evince similar “implausibilities” and “inconsistencies” to those we have previously found to raise a triable issue of fact.