20

- 1301 Perez v. City of New York, et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT



### SUMMARY ORDER

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

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

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

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

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

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

ANY PARTY NOT REPRESENTED BY COUNSEL. 7

At a stated term of the United States Court of Appeals for the Second Circuit, held at 8 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 9

on the 13 th d ay of April, two thousand twenty

- one

. 10

11

PRESENT: 12

R ICHARD C. W ESLEY

, 13

S USAN L. C ARNEY

, 14

W ILLIAM J. N ARDINI

, 15 Circuit Judges

. 16

17

_________________________________________ 18

19

G IL V. P EREZ

, 20

21 Plaintiff

- Appellant

, 22

23

v. No. 20

- 1301 24

25

C ITY O F N EW Y ORK

, N EW Y ORK C ITY D EPARTMENT O F 26

C ITYWIDE A DMINISTRATIVE S ERVICES

, 27

28 Defendants

- Appellees

. 29

_________________________________________ 30

31

FOR PLAINTIFF

- APPELLANT : S TEPHEN B ERGSTEIN

, Bergstein & 32

Ullrich , New Paltz, NY

. 33

34

35

FOR DEFENDANTS

- APPELLEES : C LAIBOURNE H ENRY ( Richard Dearing 36

Scott Shorr, on the brief ), for James E. 372 Johnson, Corporation Counsel of the City 1

of New York

, New York, NY

. 2

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

of New York ( Gardephe

, J. ). 5

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 6

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

AFFIRMED

. 8

In August 2016, Plaintiff

- Appellant Gil Perez sued his former employer, the City of 9

New York and its Department of Citywide Administrative Services (“DCAS

, ” together with 10

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

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

Southern District of New York ( Gardephe

, J. ) , dismiss ing Pe rez’s claim that the Defendants 13

retaliat ed against him in violation of the Americans with Disabilities Act (“ADA”)

, 42 U.S.C. 14

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

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

to affirm

. 17

W e analyze ADA retaliation claims under the familiar three

- part burden shifting 18

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

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

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

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

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

Hicks v. Baines , 593 F.3d 159 , 164 (2d Cir. 2010)

. 1 A plaintiff bears only a minimal burden in 24

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

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

. 26

1 Unless otherwise noted, in quoting caselaw this Order omits all alterations, citations, footnotes, and internal quotation marks.3 N o party disputes that Perez established the first three elements of the prima facie 1

claim

. T he District Court granted summary judgment to Defendants and dismissed Perez’s 2

claim based on the fourth element alone: N o reasonable jury could find the requisite causal 3

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

employment. Perez v. City of New York

, No. 16

- C V

- 7050, 2020 WL 1272530, at *17 (S.D.N.Y. 5

Mar. 16, 2020)

. 6

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

a discrimination case where

. . . the merits turn on a dispute as to the employer ’ s intent

. ” 8

Holcomb v. Iona Coll. , 521 F.3d 130, 137 (2d Cir. 2008)

. Although we review the grant de novo

, 9

Hicks , 593 F.3d at 166, o ur role is limited: W e “ determine only whether proffered admissible 10

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

. ” 11

Id. at 164

. 12

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

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

tem poral proximity of his protected activity

— his accommodation request on October 15, 15

2015

— and his termination approximately six months later, in April 2016

. But as we 16

explained in Slattery v. Swiss Reinsurance Am erica Corp

. , 248 F.3d 87 (2d Cir. 2001)

, tempo ral 17

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

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

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

progressive discipline” that began before the plaintiff’s protected activity

. Id. at 95. Here, the 21

record shows that since June 2 015

, Defendants had been moving towards terminating 22

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

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

“incompetence

. ” Joint App’x 904

- 39

. 2 Defendants ultimately terminated Perez in April 2016

, 25

citing fraud

— his denial and nondisclosure of past employment issues

— that they alleged he 26

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 committed while applying for employment with DCAS. See id. 158

- 60, 162; see generally 1

N.Y. Civ. Serv. § 50(4)(h)

. T he record leaves no doubt that his termination grew out of the 2

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

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

fraud issue was only the most recent component

. Consequently, the mere temporal 5

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

the requisite causal connection

. See Slattery , 248 F.3d at 95

. 7

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

(in his view) Defendants’ discovery of the job

- application issue is unrelated to the 9

disciplinary investigation

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

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

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

accommodation request. We are not persuaded. 13

T he record evidence of complaints about Perez’s behavior and management’s related 14

concerns is overwhelming

, and the fraud investigation was part and parcel of the disciplinary 15

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

retalia tion for his ADA accommodation led to his termination. See, e.g.

, Joint App’x 397, 17

786

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

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

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

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

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

for Defendants was therefore not error

. Slattery

, 248 F.3d at 95. 23

* * * 24

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

reversal. For the foroing rea sons, the decision of the D istrict C ourt is AFFIRMED

. 26

FOR THE COURT: 27

Catherine O’Hagan Wolfe, Clerk of Court 28