Fu v. Consolidated Edison Company of New York, Inc.

Background

Anna Fu brought claims against Consolidated Edison Company of New York, Inc. ("Con Edison") for race discrimination under Title VII and the New York State Human Rights Law; age discrimination under the Age Discrimination in Employment Act and the New York State Human Rights Law; retaliation under those laws; interference with rights under the Family and Medical Leave Act; and claims under the New York City Human Rights Law. Fu was an Asian American woman over 40 who worked for Con Edison from 1982 until her termination in May 2015.

Fu had received generally positive performance reviews before she began working on Edwin Thompson’s team in 2013. Her later reviews rated her performance as "Needs Some Improvement" and then "Unsatisfactory." Con Edison placed her on a performance improvement notice and asserted that her work on the assignments was late and contained errors. Fu disputed those assessments and claimed that she was given changing instructions, inadequate training, unreasonable deadlines, and discriminatory treatment.

Fu complained internally about unfair treatment and later complained to the company’s equal-employment office that she faced race and age discrimination. She took Family and Medical Leave Act leave in 2015. Con Edison terminated her employment on May 19, 2015, stating that she had failed to meet the requirements of the performance improvement notice. Fu proceeded without a lawyer after her counsel withdrew in September 2017.

Court’s analysis

The court applied the burden-shifting framework used for employment discrimination and retaliation claims. Under that framework, an employee must first present evidence supporting the claim; the employer may then provide a legitimate, nondiscriminatory reason for its action; and the employee must present evidence that the stated reason was a pretext, meaning a cover for unlawful discrimination or retaliation.

For the race-discrimination claims, the court held that Fu offered no evidence that the decision-makers considered her race. The court noted that the performance ratings given during the relevant period varied among white and Asian employees, which weighed against an inference that Fu was singled out because of race. The court also found that Con Edison had presented substantial evidence of performance problems and that Fu had not raised a triable issue—an issue a reasonable jury could decide in her favor—showing that poor performance was a pretext.

For the age-discrimination claims, the court assumed without deciding that Fu could satisfy some initial requirements of her claim. It held, however, that Con Edison presented a legitimate reason for the termination: Fu’s performance problems documented in reviews and performance-improvement assignments. The court considered Fu’s allegation that Martin Paszek called her "too old and too slow," but concluded that this single remark, made by a supervisor who did not make the termination decision, could not overcome the documented performance evidence. The court also noted evidence that some employees and supervisors were older than Fu.

For retaliation, the court found that Fu’s complaints to the company’s equal-employment office could qualify as protected activity, meaning activity the law protects from retaliation. It assumed that the close timing between those complaints and her termination could establish the initial causal connection. Nevertheless, it held that Fu did not present enough evidence that retaliation was the but-for cause of her termination—that the termination would not have occurred without a retaliatory motive. The court emphasized that concerns about Fu’s performance and workplace communication began before her equal-employment complaints, and that timing alone was insufficient to show pretext.

For Family and Medical Leave Act interference, the court held that no reasonable jury could find that Fu was fired for taking leave or that her leave was a negative factor in the decision. The court relied on the performance concerns that preceded her leave and Fu’s deposition testimony that no one had said her leave caused her termination.

Disposition

Judge Ronnie Abrams granted Con Edison’s motion for summary judgment on Fu’s federal discrimination, age-discrimination, retaliation, and Family and Medical Leave Act claims, as well as her New York State Human Rights Law claims. The court declined to exercise supplemental jurisdiction, meaning jurisdiction over related state-law claims after the federal claims were resolved, over Fu’s New York City Human Rights Law claims. It dismissed those claims without prejudice. The court directed the Clerk to terminate the motion and close the case.