In HUA LIN, Plaintiff-Appellant, v. NEW YORK STATE DEPARTMENT OF LABOR, Defendant-Appellee., 2018 WL 1940394, at *2 (C.A.2 (N.Y.), 2018) (Summary Order), the court affirmed the dismissal of plaintiff’s Title VII retaliation claim.
In resisting dismissal, plaintiff argued, inter alia, that the employer’s explanation for its failure to hire her shifted, justifying a finding of “but for causation.”
Generally, the court explained, “[a] plaintiff may prove that retaliation was a but-for cause of an adverse employment action by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate, nonretaliatory reasons for its action.”
It then explained why that rule was not applied in plaintiff’s favor:
Here, 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.
The court distinguished this case from Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013), where the court found a triable issue of fact where the employer first claimed that the employee was fired because of changes in business operations, then later adopted the view that the reason for the firing was poor performance.