20-1301 

Perez v. City of New York, et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

1 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

2 SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY 

3 FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN 

4 CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE 

5 EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 

6 “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON 

7 ANY PARTY NOT REPRESENTED BY COUNSEL. 

8 At a stated term of the United States Court of Appeals for the Second Circuit, held at 

9 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

10 on the 13th day of April, two thousand twenty-one.

11

12 PRESENT:

13 RICHARD C. WESLEY,

14 SUSAN L. CARNEY,

15 WILLIAM J. NARDINI,

16 Circuit Judges.

17

18 _________________________________________

19

20 GIL V. PEREZ, 21

22 Plaintiff-Appellant,

23

24 v. No. 20-1301

25

26 CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF 

27 CITYWIDE ADMINISTRATIVE SERVICES,

28

29 Defendants-Appellees.

30 _________________________________________

31

32 FOR PLAINTIFF-APPELLANT: STEPHEN BERGSTEIN, Bergstein & 

33 Ullrich, New Paltz, NY. 

34

35

36 FOR DEFENDANTS-APPELLEES: CLAIBOURNE HENRY (Richard Dearing 

37 Scott Shorr, on the brief), for James E. 
 

2

1 Johnson, Corporation Counsel of the City 

2 of New York, New York, NY.

3

4 Appeal from a judgment of the United States District Court for the Southern District 

5 of New York (Gardephe, J.).

6 UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

7 ADJUDGED, AND DECREED that the judgment entered on March 18, 2020, is 

8 AFFIRMED.

9 In August 2016, Plaintiff-Appellant Gil Perez sued his former employer, the City of 

10 New York and its Department of Citywide Administrative Services (“DCAS,” together with 

11 the City, “Defendants”), alleging various claims of discrimination and retaliation. Here, Perez 

12 appeals part of an order and the judgment of the United States District Court for the 

13 Southern District of New York (Gardephe, J.), dismissing Perez’s claim that the Defendants 

14 retaliated against him in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. 

15 § 12101 et seq. We assume the parties’ familiarity with the underlying facts, procedural 

16 history, and arguments on appeal, to which we refer only as necessary to explain our decision 

17 to affirm.

18 We analyze ADA retaliation claims under the familiar three-part burden shifting 

19 analysis first set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The District 

20 Court dismissed Perez’s claim at the first step of this inquiry, which requires a plaintiff to 

21 establish a prima facie retaliation claim by showing “(1) participation in a protected activity; 

22 (2) that the defendant knew of the protected activity; (3) an adverse employment action; and 

23 (4) a causal connection between the protected activity and the adverse employment action.”

Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010). 24 1 A plaintiff bears only a minimal burden in 

25 making this prima facie showing. See id.; see also Treglia v. Town of Manlius, 313 F.3d 713, 719 

26 (2d Cir. 2002) (“A plaintiff’s burden at this prima facie stage is de minimis.”).

1 Unless otherwise noted, in quoting caselaw this Order omits all alterations, citations, footnotes, and 

internal quotation marks.
 

3

1 No party disputes that Perez established the first three elements of the prima facie

2 claim. The District Court granted summary judgment to Defendants and dismissed Perez’s 

3 claim based on the fourth element alone: No reasonable jury could find the requisite causal 

4 connection between Perez’s protected activity and Defendants’ decision to terminate his

5 employment. Perez v. City of New York, No. 16-CV-7050, 2020 WL 1272530, at *17 (S.D.N.Y. 

6 Mar. 16, 2020).

7 Courts should exercise “caution about granting summary judgment to an employer in 

8 a discrimination case where . . . the merits turn on a dispute as to the employer’s intent.” 

9 Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008). Although we review the grant de novo, 

10 Hicks, 593 F.3d at 166, our role is limited: We “determine only whether proffered admissible 

11 evidence would be sufficient to permit a rational finder of fact to infer a retaliatory motive.”

12 Id. at 164.

13 On such review, we agree with the District Court’s analysis. Perez has failed to 

14 adduce sufficient evidence for a jury to infer causation. To show causation, he relies on the 

15 temporal proximity of his protected activity—his accommodation request on October 15,

16 2015—and his termination approximately six months later, in April 2016. But as we 

17 explained in Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87 (2d Cir. 2001), temporal 

18 proximity between a plaintiff’s protected activity and a defendant’s adverse employment 

19 determination will not suffice as a basis for inferring causation if the adverse employment 

20 determination was “both part, and the ultimate product, of an extensive period of 

21 progressive discipline” that began before the plaintiff’s protected activity. Id. at 95. Here, the 

22 record shows that since June 2015, Defendants had been moving towards terminating 

23 Perez’s employment in response to the litany of complaints made about his job performance: 

24 his “repeated failure to perform [his] duties,” his “disturbing” behavior, and his 

“incompetence.” Joint App’x 904-39. 25 2 Defendants ultimately terminated Perez in April 2016, 

26 citing fraud—his denial and nondisclosure of past employment issues—that they alleged he 

2 Perez acknowledges that issues related to his job performance at DCAS had been raised as early as 

September 2014 and were ongoing through October 2015, when he made his reasonable accommodation 

request. 
 

4

1 committed while applying for employment with DCAS. See id. 158-60, 162; see generally

2 N.Y. Civ. Serv. § 50(4)(h). The record leaves no doubt that his termination grew out of the

3 ongoing disciplinary investigation that Defendants initiated regarding Perez in June 2015, 

4 four months before Perez made his reasonable accommodation request, and of which the 

5 fraud issue was only the most recent component. Consequently, the mere temporal 

6 proximity of Perez’s protected activity and his termination cannot support an inference of 

7 the requisite causal connection. See Slattery, 248 F.3d at 95. 

8 On appeal, Perez argues principally that the Slattery principle does not apply because 

9 (in his view) Defendants’ discovery of the job-application issue is unrelated to the

10 disciplinary investigation. He thus charges the District Court with error in resolving disputed 

11 facts against him as to this issue at summary judgment, asserting that a jury could have found 

12 retaliation based on temporal proximity and the delay before DCAS made a decision on his 

13 accommodation request. We are not persuaded. 

14 The record evidence of complaints about Perez’s behavior and management’s related 

15 concerns is overwhelming, and the fraud investigation was part and parcel of the disciplinary 

16 process: Perez has not adduced sufficient evidence to allow a reasonable jury to decide that 

17 retaliation for his ADA accommodation led to his termination. See, e.g., Joint App’x 397, 

18 786-88; see also id. 567 (Defendants’ October 7, 2015 memorandum to Perez, issued before

19 the October 15, 2015 accommodation request, directing him to appear before the Office of 

20 Disciplinary Proceedings). As discussed above, Defendants’ decision to fire Perez for 

21 application fraud was “both part, and the ultimate product, of” the proceedings that began

22 before Perez’s October 2015 accommodation request, and the entry of summary judgment 

23 for Defendants was therefore not error. Slattery, 248 F.3d at 95.

24 * * *

25 We have considered Perez’s remaining arguments and find in them no basis for 

26 reversal. For the foroing reasons, the decision of the District Court is AFFIRMED. 

27 FOR THE COURT: 

28 Catherine O’Hagan Wolfe, Clerk of Court