Pena-Barrero v. The City of New York et al

Filing 77

MEMORANDUM OPINION & ORDER re: 58 MOTION for Summary Judgment . filed by The City of New York, Steve Weir, Keith Kerman, Frank Dazzo. For the foregoing reasons, Defendants' motion for summary judgment is GRANTED. The Clerk of Court is directed to enter judgment for the Defendants, terminate the open motion at docket entry 58, and close the case. (Signed by Judge Valerie E. Caproni on 3/30/2017) (kgo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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LUIS F. PENA-BARRERO,
:
:
:
Plaintiff,
:
:
-against:
THE CITY OF NEW YORK, KEITH KERMAN, :
:
STEVE WEIR, FRANK DAZZO,
:
Defendants. :
-------------------------------------------------------------- X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 3/30/17

14-CV-9550 (VEC)
MEMORANDUM
OPINION & ORDER

VALERIE CAPRONI, United States District Judge:
Plaintiff Luis Pena-Barrero, a former provisional employee of the New York City
Department of Citywide Administrative Services (“DCAS”), brings this suit against his former
employers, the City of New York, Keith Kerman, Steve Weir, and Frank Dazzo (collectively,
“Defendants”). Plaintiff alleges that Defendants discriminated against him—and ultimately
terminated him—on the basis of his race, national origin, and disability and retaliated against
him for complaining about discrimination and for exercising his rights under the Family Medical
Leave Act.1 Defendants’ motion for summary judgment is GRANTED, and the case is
DISMISSED.
BACKGROUND
Plaintiff was a difficult employee who was hypersensitive to criticism, who had
significant attendance issues, who wasted time and resources, and who never took the necessary
civil service test for his position; he also is an Hispanic of Colombian heritage who has a

1

Plaintiff asserts violations of 42 U.S.C. § 1981, as amended by the Civil Rights Act of 1991, 42 U.S.C. §
1983, the Family and Medical Leave Act, 29 U.S.C. § 2610 et seq. (“FMLA”), New York State Human Rights Law,
N.Y. Exec. Law § 296 et seq. (“NYSHRL”), and New York City Human Rights Law, N.Y.C. Admin. Code § 8-107
et seq. (“NYCHRL”).

disability. This case presents the question—in broad brush—why he was terminated from his
job. As explained more fully below, Plaintiff has failed to adduce evidence that creates a
genuine dispute of material fact regarding whether discrimination or retaliation played a role in
his termination and whether he was subjected to a hostile work environment.
A. Plaintiff’s Protected Characteristics and Employment with the City
Plaintiff is an Hispanic male of Colombian national origin. Pl. 56.1 Stmt. ¶ 3.2 In 1997,
he was diagnosed with Bipolar Affective Disorder, and he began taking medication that
generated side effects that interfered with daily living. Id. ¶ 9. Plaintiff has on occasion been
hospitalized on account of his Bipolar Affective Disorder. Defs. 56.1 Stmt. Response ¶ 114.
Plaintiff began his employment with the City of New York on March 29, 1994, and held
a variety of positions. Pl. 56.1 Stmt. ¶¶ 6-8, 10-12. From 2001 to 2011, Plaintiff worked in the
Information Technology Management Information Systems Office, id. ¶ 13, which was
subsequently merged with Citywide Fleet Services (“Fleet”) at DCAS, id. ¶ 45.
After the merger, Plaintiff was an Associate Staff Analyst in Fleet, responsible for data
entry related to DCAS’s fleet of vehicles. Id. ¶¶ 48-51. Plaintiff reported to Defendant Steve
Weir, Deputy Chief of Fleet, and Defendant Frank Dazzo, Deputy Director of Operations at
Fleet. Id. ¶ 46. At all relevant times, Defendant Keith Kerman was the Chief of Fleet and
Deputy Commissioner at DCAS. Id. ¶ 47.

2

The Court cites to Defendants’ 56.1 Statement of Undisputed Facts (Dkt. 59) as “Defs. 56.1 Stmt.,” to
Plaintiff’s 56.1 Statement in Opposition to Defendants’ Motion for Summary Judgment (Dkt. 68) as “Pl. 56.1
Stmt.,” and to Defendants’ Responses to Plaintiff’s 56.1 Statement of Undisputed Facts (Dkt. 70) as “Defs. 56.1
Stmt. Response.”
Where the facts are undisputed and the Plaintiff explicitly admits in his 56.1 Statement facts stated in
Defendants’ 56.1 Statement, the Court cites to Plaintiff’s 56.1 Statement to reflect Plaintiff’s admission to the fact.
Likewise, if Defendants admit in their Responses to Plaintiff’s 56.1 Statement facts stated in Plaintiff’s 56.1
Statement, the Court cites to Defendants’ Responses.

2

B. Civil Service List and Section 55-a Status
1. Civil Service List
Plaintiff was a “pure provisional” Associate Staff Analyst at DCAS, which means he did
not have a permanent civil service title. Pl. 56.1 Stmt. ¶¶ 19, 21. Following the New York Court
of Appeals decision in City of Long Beach v. Civil Service Employees Association, Inc., 8 N.Y.
3d 465 (2007), New York amended Civil Service Law Section 65 (“CSL § 65) to require the City
to hire from a list of civil service candidates—generated by a merit examination—if such a list
exists for a given position. Id. ¶ 23; see also N.Y. Civ. Serv. Law § 65(5). Put differently,
following the change in law, the City can only fill a position with a provisional appointment if
there is no civil service list for that position. In addition, CSL § 65 limits the duration of all
provisional appointments, mandates that a civil service exam be given for competitive positions
held by provisional employees, and requires that all provisional appointments be terminated
within four months following the establishment of a civil service list for a given position. N.Y.
Civ. Serv. Law § 65(2)-(4). The changes to the law had the effect of prohibiting the permanent
hire of a provisional employee in a given position.
As required by the New York State Civil Service Commission, DCAS prepared a plan to
come into compliance with New York law regarding provisional appointments. Pl. 56.1 Stmt.
¶¶ 23-24. Pursuant to the plan (and the legal requirements), no provisional employee could be
hired if there was a civil service list for the position, and all provisional employees were to be
terminated once a civil service list had been generated and certified. Defs. 56.1 Stmt. ¶ 25
(citing Canfield Decl. Ex. G Tr. 56:16-57:10, 58:20-59:16 (Dkt. 62-7)).3

3

Plaintiff notes, however, that the number of provisional appointments at DCAS increased, despite DCAS’s
plan. Defs. 56.1 Stmt. Response ¶ 321.

3

In late 2009, DCAS issued a Notice of Examination for the Associate Staff Analyst
position, and the test was scheduled for February 19 or 20, 2010. Pl. 56.1 Stmt. ¶¶ 27, 29.
Applicants could request an alternate test date to accommodate a disability or religious
observance. Id. ¶ 28. Plaintiff met the education and experience requirements and was
otherwise qualified to take the Associate Staff Analyst exam, but he neither applied for nor took
the exam nor sought an accommodation to take the exam on some other date.4 Id. ¶¶ 30-31.
Plaintiff concedes that he learned in 2010 that his employment was at risk if he did not take the
required civil service exam. Maduegbuna Decl. Ex. 3 Tr. 86:19-87:1. On March 28, 2012, the
civil service list for the Associate Staff Analyst position was established, and it was certified on
April 2, 2012; Plaintiff knew the list was certified before he went on medical leave during the
summer of 2012.5 Pl. 56.1 Stmt. ¶¶ 35-36.
2. Section 55-a Status
Section 55-a of the New York Civil Service Law provides an exception to the normal rule
regarding provisional employees. Section 55-a allows the City to employ individuals who have
been certified as mentally or physically disabled on a non-competitive basis in civil service

4

As with many issues, Plaintiff has a number of excuses for his failure to take the exam necessary for him to
keep his job. In 2009, he was ill when the application was due. Defs. 56.1 Stmt. Response ¶ 113-14. In terms of
seeking an accommodation to take it on a later date in light of his illness, Plaintiff asserts that he wanted to seek an
accommodation but was precluded from doing so by his superiors. According to Plaintiff, the Deputy
Commissioner of Administration stated that Plaintiff would never be selected for a position off of a civil service list
so long as he (the Deputy Commissioner) was at DCAS. Pl. 56.1 Stmt. ¶¶ 118-19. The evidence cited in Plaintiff’s
56.1 Statement—Plaintiff’s own deposition testimony—does not support the assertion that anyone ever precluded
Plaintiff from seeking an accommodation. Maduegbuna Decl. Ex. 3 Tr. 88:8-89:2, 90:6-92:8, 94:8-95:2, 97:7-10,
117:7-121:22 (Dkt. 67-3).
5

There can be no dispute that Plaintiff was well aware that a list had been certified and that his days as a
provision Associate Staff Analyst were numbered. As established at the very outset of this case, in April 2012,
Plaintiff’s attorney wrote to the City’s attorney asking as part of the settlement of prior litigation, discussed infra,
that Plaintiff be allowed to take the Civil Service Exam in light of the fact that “DCAS recently certified a list for the
position of Associate Staff Analyst.” Decl. of Samuel O. Maduegbuna in Supp. of Pl. Opp. to Defs. Mot. for
Sanctions under Fed. R. Civ. P. 11 Ex. 1, at 4 (Dkt. 38-1). As discussed infra, any claim based on the Defendants’
rejection of Plaintiff’s attorney’s request that he belatedly be permitted to take the civil service examination was
extinguished in connection with the settlement of the prior litigation.

4

positions so long as they are otherwise qualified to perform the duties of the position. Pl. 56.1
Stmt. ¶ 37. Thus, a qualified person with a disability may be appointed through the Section 55-a
program without taking the civil service examination that would otherwise be required. Id. ¶ 39.
The Civil Service Law provides that employees should direct inquiries regarding Section
55-a certification to the Personnel Officer or Section 55-a Coordinator at any City agency or to
the Citywide Section 55-a Coordinator. Id. ¶ 42. Throughout his employment, Plaintiff
discussed his interest in the Section 55-a program with a number of supervisors and City
employees. Id. ¶ 43; Defs. 56.1 Stmt. Response ¶¶ 233-36, 238, 242, 244-45. On September 8,
2011 and March 16, 2012, Plaintiff sent letters and medical documentation to the Citywide EEO
Coordinator in support of his formal request to be certified for the position of Associate Staff
Analyst under Section 55-a.6 Pl. 56.1 Stmt. ¶ 44.
C. Plaintiff’s First Lawsuit
On January 25, 2010, Plaintiff filed a federal lawsuit against the City and certain
individual defendants, alleging employment discrimination and a hostile work environment on
the basis of race, national origin, and disability and retaliation. Id. ¶ 14. Plaintiff alleged that the
Defendants: (1) failed to reassign him to positions for which he was suited and well-qualified;
(2) failed to provide him with a reasonable accommodation for his disability and failed to engage
in the interactive process; (3) incessantly harassed and excessively criticized him; and (4)
retaliated against him. Id. ¶ 15.

6

Plaintiff claims that Defendants refused to certify Plaintiff under Section 55-a, but the evidence cited by
Plaintiff does not support that assertion—it shows only that Plaintiff received no response to his expressions of
interest in the Section 55-a program. Maduegbuna Decl. Ex. 46 (Dkt. 67-46); id. Ex. 3 Tr. 105:1-15, 108:13-109:19,
110:8-111:18, 146:16-150:25, 168:25-176:12, 181:1-183:21, 188:24-190:23, 192:13-196:23, 198:1-25.

5

On May 3, 2012, the parties executed a settlement agreement that included a waiver and
release (collectively, the “Settlement Agreement”). Id. ¶ 17. Defendants paid Plaintiff $600,000
in consideration for dismissing with prejudice
any and all claims, liabilities and/or causes of action which plaintiff has or may have
against any of the Released Parties based on any act, omission, event or occurrence
occurring from the beginning of the world up through and including the date hereof,
including, without limitation, any and all claims which were or could have been alleged
by plaintiff in this action.
Id. ¶ 17 (quoting Canfield Decl. Ex. F (Dkt. 62-6)).
D. Plaintiff’s Attendance
By fall 2011, Plaintiff had been granted a reasonable accommodation in the form of a
flexible start time, although he was required to be at work by 11:00 a.m. Maduegbuna Decl. Exs.
17 (Dkt. 67-17), 18 (Dkt. 67-18), 38 (Dkt. 67-38); Canfield Decl. Ex. AA (Dkt. 62-17). Plaintiff
had trouble getting to work in the mornings because he would still feel the effect of his evening
medications.7 Maduegbuna Decl. Exs. 17, 26 (Dkt. 67-26), 38.
Notwithstanding the accommodation, while his prior lawsuit was ongoing and after it had
been settled, Plaintiff was frequently absent from or late to work. In the one year period from
June 2011 through June 2012, Plaintiff was absent for a total of 512 hours (or roughly three
months of work days). Pl. 56.1 Stmt. ¶ 61. On March 12, 2012, Kerman put Plaintiff on written
notice that in the previous six months, he had fifty-six instances of lateness and unscheduled
leave without pay. Id. ¶ 59; Defs. 56.1 Stmt. Response ¶ 164.
The lateness and unexcused absences were an obvious cause for concern for Plaintiff’s
supervisors. In March 2012, Kerman’s executive assistant expressed discomfort in being asked

7

Plaintiff claims that he was denied a reasonable accommodation to come into work at 11:30 a.m. and that
Weir threatened discipline in response to his request for a more generous accommodation, but the cited evidence
does not support those claims. Pl. 56.1 Stmt. ¶ 213. There is no evidence that Plaintiff ever requested an
accommodation beyond a flexible start time that allowed him to begin work any time in the window from 9:00 a.m.
to 11:00 a.m.

6

to approve Plaintiff’s timesheets and leave requests because she was uncertain about the validity
of his requests based on purported transit delays. Maduegbuna Decl. Ex. 20, at 3 (Dk. 67-20). In
that same email chain, Weir explained his concern to Kerman:
If we charge him with an AWOL, he is going to go to EEO and say we are not allowing
him to deal with emergencies. Then if he is able to document that he had a bona-fide
emergency and we denied him the opportunity to address it, he is going to press a lawsuit.
We need to be clear what our strategy is.
Id. at 1. Kerman responded, “We need to start by documenting the issue and asking him to take
steps to improve it.” Id. Over the following months, Plaintiff continued to be tardy and absent
on a regular basis, which was documented. Maduegbuna Decl. Exs. 4 Tr. 283:12-285:8 (Dkt.
67-4), 25 (Dkt. 67-25), 26 (Dkt. 67-26), 32 (Dkt. 67-32); 36 (Dkt. 67-36).
From June 8, 2012 through October 1, 2012, Plaintiff was absent on approved medical
leave. Pl. 56.1 Stmt. ¶ 88. Weir issued an AWOL memorandum for Plaintiff covering the dates
July 19, 20, and 23, 2012, Defs. 56.1 Stmt. Response ¶ 225, and as of September 24, 2012,
Plaintiff had not submitted required FMLA paperwork for leave approval, Canfield Decl. Ex. JJ
(Dkt. 62-19). Human resources nevertheless retroactively approved his absence from June 8
through August 30, 2012, as FMLA leave. Id. Plaintiff returned to work in early October. Pl.
56.1 Stmt. ¶ 90.
When Plaintiff returned to work, he was unable to log into his computer and various
programs. Defs. 56.1 Stmt. Response ¶¶ 278-79. Although he points to this situation as
evidence of discrimination by his bosses, in his deposition he acknowledged that logins can
automatically expire after a certain period of time. Maduegbuna Decl. Ex. 3 Tr. 184:17-22,
232:15-233:3, 257:21-258:19; see also id. Ex. 59 (Dkt. 67-59) (stating in an email while he
attempted to regain login access, “Is it possible that my profile expired (or was deleted, maybe
changed) due to non-use?”).

7

E. Plaintiff’s Photocopying
In addition to concerns about Plaintiff’s attendance, there were concerns that Plaintiff
was wasting time and City resources on personal and unnecessary photocopying. For example,
on May 16, 2012, Kerman observed Plaintiff making a large number of photocopies after
Plaintiff’s shift had ended. Defs. 56.1 Stmt. ¶ 64. When Weir asked Plaintiff to explain what he
was doing, Plaintiff said that he was making copies of the work he had done in order to
document his work8 and that he had done so for the eighteen years he had worked for the City.
Canfield Decl. Ex. CC; id. Ex. B Tr. 212:1-8, 230:19-231:16 (Dkt. 62-2). The conversation
between Weir and Plaintiff, which took place in Weir’s office, did not go well. When Plaintiff
asked for training on a particular function, Weir, who was working on a tight deadline, asked
Plaintiff to talk to Dazzo instead, and when Plaintiff persisted, Weir raised his voice and told
Plaintiff to leave his office or he would call security to remove him. Canfield Decl. Ex. CC;
Maduegbuna Decl. Ex. 5 Tr. 169:14-170:20 (Dkt. 67-5).
Several other incidents of suspected wasteful activity came to Plaintiff’s supervisors’
attention. On May 29, 2012, during the workday, Kerman observed Plaintiff collecting from the
photocopier “ten or more copies of self-help books and other private (non-work related) prints
from the internet.” Maduegbuna Decl. Ex. 36, at 1. The Director of Fleet noticed “unit by unit
printouts on the printer” after he had asked Plaintiff “to help with marking units to be deleted” in
the computer system. Id. at 2. The Director thought the printing was unnecessary inasmuch as
the relevant computer system “has audit functionality.” 9 Id.

8

Plaintiff’s explanation makes no sense. His job was to enter data into a computer system. The best
evidence whether he had done his job was, of course, the data that was in the system.

9

In addition, Kerman described the situation in a contemporaneous email that Plaintiff had a:
time-consuming and paper wasting practice of making a paper copy of apparently every piece of data he
enters into [the Maintenance Control Management System (“MCMS”)] and every screen he works with on

8

F. Plaintiff’s Complaints of Hostility at the Workplace
After Plaintiff’s prior lawsuit settled, his supervisors continued to address his attendance
issues and his wasteful use of city resources. Plaintiff viewed those actions as harassment and
hostility. Plaintiff complained via email to the highest levels in the office, including to Kerman’s
Chief of Staff, the General Counsel of DCAS, and the DCAS Commissioner’s Chief of Staff.
Canfield Decl. Ex. CC at 2, 3; id. Ex. DD (Dkt. 62-18). The General Counsel informed Plaintiff
that his email had been forwarded to the DCAS EEO Officer and Deputy General Counsel for
Operations. Canfield Decl. Ex. EE (Dkt. 62-18). The same day that Plaintiff emailed his
concerns to the General Counsel, he reiterated many of his complaints directly to the EEO
Officer by separate email. Canfield Decl. Ex. FF (Dkt. 62-19). A few days later, the EEO
officer responded, inter alia, that Plaintiff’s concerns about his coworkers and supervisors would
be brought to the attention of Kerman, Kerman’s Chief of Staff, and human resources.10 Id.
Among other things, Plaintiff complained in these emails to the senior members of his office
that: “the hostility of this work is increasing,” Canfield Decl. Ex. CC at 2; limited access to Weir
impairs his “efficiency and hurts [his] morale, id. at 3; he was “accused of not doing a thorough

his computer. I have personally seen reams of paper on his desk that are copies of MCMS and he is
constantly at the printer even though he has no work assignments that require this type of copying.
Maduegbuna Decl. Ex. 36, at 1.
10

In his May 18, 2012 email to the EEO Officer, Plaintiff referenced an incident that had occurred on an
unspecified date between him and Kerman involving an office chair. Canfield Decl. Ex. FF, at 1. Kerman
acknowledges the incident, although the two have different versions of what happened—one totally innocuous and
the other only somewhat less so. According to Plaintiff, the only time Kerman ever spoke to him, Kerman accused
him of stealing Kerman’s office chair, even though DCAS had provided Plaintiff with the chair in 2006 after
cervical spine surgery. Id. Plaintiff claims he offered the chair to Kerman, and Kerman responded, “We will see
how things work out.” Id.; Canfield Decl. Ex. GG (Dkt. 62-19). In contrast, in his deposition, Plaintiff claims
Kerman responded, “We will see who wins in the end.” Maduegbuna Decl. Ex. 3 Tr. 199:8-15. According to
Kerman, the exchange was “civil” and lasted no more than twenty seconds; he asked Plaintiff if he had gotten a new
chair, Plaintiff responded that he had had the chair for a while as an accommodation, and Kerman responded “ok.”
Canfield Decl. Ex. HH (Dkt. 62-19).

9

job,” Canfield Decl. Ex. DD, at 1; he did “99% data entry,” id.; and he was subject to “a carousel
of retaliatory behavior designed to make [him] quit or end up in the hospital once again,” id.
On May 31, 2012, in response to a May 30 email from Weir stating that Plaintiff needed
to exercise initiative to handle an assignment, Plaintiff took offense and responded with a litany
of grievances. Maduegbuna Decl. Ex. 37 (Dkt. 67-37). Weir forwarded Plaintiff’s email to
Kerman, stating “FYI. I asked him to take some initiative and solve problems concurrent with
his civil service title, and I get this. We have to end this.” Id. at 1. Kerman responded, “Please
do not email him at all until we speak on this topic.” Id.
Plaintiff asserts that various Defendants made discriminatory or hostile statements. For
example, Plaintiff testified that he heard Weir say—at some unspecified time and place—“that
he doesn’t like spics,” “that he doesn’t like people of Hispanic origin,” and “that Colombians, all
they do is bring drugs to the United States.”11 Canfield Decl. Ex. B Tr. 176:13-177:6. Plaintiff
claims that he orally reported the comments to the EEO Officer.12 Id. Tr. 177:7-13. Plaintiff
also testified that—at some unspecified time and place—Dazzo said to him: “you don’t come
here on time and we have no reason to accommodate you because you don’t come here on time.”
Id. Tr. 234:2-13. In May or June 2012, according to Plaintiff, Weir told Plaintiff that “he did not

11

Plaintiff was not consistent in describing this incident. In addition to the description in text, describing the
same incident, he stated that he heard Frank Dazzo and Weir say to each other—somewhere in the Fleet Services
Unit in May or June of 2012—that “all Colombians are bringing drugs to this country.” Canfield Decl. Ex. B
Tr. 225:23-228:12. Another version of the last statement provided by Plaintiff is: “All Colombians have guns which
brings drugs to the United States.” Id. Tr. 178:6-9.
Weir did not know that Plaintiff is Colombian. Canfield Decl. Ex. P Tr. 79:16-24 (Dkt. 62-12). Plaintiff’s
evidence does not contradict this factual assertion. Pl. 56.1 Stmt. ¶¶ 137-38. Dazzo also did not believe he had
known that Plaintiff was Colombian at the time he worked with him. Canfield Decl. Ex. Q Tr. 101:7-21 (Dkt. 6213).
12

Plaintiff also testified that he orally told Weir, Kerman’s Chief of Staff, and the EEO Officer that he
thought Weir was treating him differently because of his national origin. Maduegbuna Decl. Ex. 3 Tr. 176:13-20.

10

believe that [plaintiff] was as sick as [plaintiff] pretended to be and . . . [that] he thought
[plaintiff] was trying to skate.” 13 Id. Tr. 235:2-236:4.
Plaintiff believes that Defendants were looking to terminate his employment for
discriminatory reasons. In addition to Weir’s statement to Kerman that “[w]e have to end this,”
Maduegbuna Decl. Ex. 37, Plaintiff asserts that Weir and Dazzo, at some point between May and
October 2012, said that Plaintiff “wouldn’t be there for long” and that they “just have to deal
with him for a little while,” Canfield Decl. Ex. B Tr. 210:15-211:17. Additionally, according to
Plaintiff, Weir told him that Kerman had told Weir that Kerman wanted Plaintiff “out of the
unit” and that Plaintiff “was a worthless piece of—equipment.” Maduegbuna Decl. Ex. 3 Tr.
242:7-243:2. According to the Assistant Commissioner of Human Resources, at some point
between May and October 2012, she “possibly” received a request from Fleet to terminate
Plaintiff due to his tardiness and absences. Maduegbuna Decl. Ex. 10 Tr. 41:23-42:8 (Dkt. 6710). Kerman does not recall or believe that he requested to terminate Plaintiff during that time
period.14 Maduegbuna Decl. Ex. 4 Tr. 144:24-145:24.
Plaintiff also testified that others accused him of not doing his work, and the evidence
shows that at times he raised similar complaints to various supervisors while employed at Fleet.
Canfield Decl. Exs. FF, II (Dkt. 62-19); Maduegbuna Decl. Ex. 3 Tr. 238:12:-239:15. Plaintiff
was never written up or reprimanded formally for failing to perform his duties. Canfield Decl.

13

In support of his allegation that he was subject to a hostile work environment, Plaintiff, who had served in
the Marines, Defs. 56.1 Stmt. Response ¶ 110, also claims that Kerman took the U.S. Marines photo that had been
on Plaintiff’s desk, Pl. 56.1 Stmt. ¶ 202, but the evidence cited by Plaintiff does not support the assertion that
Kerman removed the photo or even that the photo was on Plaintiff’s desk (as opposed to facing the common area),
see Maduegbuna Decl. Ex. 4. Tr. 187:11-190:23, 282:20-285:12; id. Ex. 36.

14

Plaintiff also testified that Weir said to him the following in May or June 2012: he was very angry about
Plaintiff’s first lawsuit, he did not believe Plaintiff should have been paid anything, he was upset that Plaintiff
received a six-figure settlement, and he did not believe the individual defendants in the first lawsuit had done
anything wrong. Maduegbuna Decl. Ex. 3 Tr. 236:10--237:14.

11

Ex. B Tr. 211:18-25. In his deposition, Plaintiff complained that he was denied training
necessary to enable him to succeed at his job,15 Maduegbuna Decl. Ex. 3 Tr. 246:11-248:24,
252:10-255:2, but Plaintiff admits that he was offered training in Excel, Pl. 56.1 Stmt. ¶¶ 54-58.
Although he was not always able to complete the training he was offered, whether due to illness
or a class cancellation for an insufficient number of participants, there is no evidence that he was
denied needed training.16 Id. ¶¶ 54-58; Canfield Decl. Exs. S (Dkt. 62-15), T (Dkt. 62-15), U
(Dkt. 62-15), W (Dkt. 62-16), X (Dkt. 62-16). In fact, as late as May 23, 2012, the evidence
shows that the EEO Officer directed Plaintiff to resources for computer training, but Plaintiff
rejected the suggestion because he did not think the available training would be useful to him.
Canfield Decl. Ex. GG.
G. Plaintiff’s Termination
While Plaintiff was out of work on medical leave, in the summer and fall of 2012, DCAS
took the steps required to replace its provisional Associate Staff Analysts. On September 13,
2012, human resources for DCAS notified Fleet that: “[p]rovisional employees serving in the
title of Associate Staff Analyst have to be replaced by a probable permanent from the list in this
title;” they “ha[d] submitted a request to hire one (1) Associate Staff Analyst who will replace
Luis Pena Barrero;” and a list call would be scheduled “to interview candidates for the position
being vacated by Mr. Pena Barrero.” Canfield Decl. Ex. PP (Dkt. 62-20). (A list call is a hiring
pool—candidates from the eligible civil service list are called in list order for an interview for a

15

Plaintiff asserts in his 56.1 Statement that he was denied training in various computer programs, but the
evidence he cites does not support his assertion. Pl. 56.1 Stmt. ¶¶ 177-82 (citing record). The only statement in
Plaintiff’s own deposition testimony that at all supports the assertion that Plaintiff was denied training—in contrast
with the fact that he did not receive training—is that Weir “told him [he] was not trained because [he] didn’t need to
know.” Maduegbua Decl. Ex. 3 Tr. 252:13-16.
16

Moreover, to the extent Plaintiff claims he was denied training prior to the Settlement Agreement because
of discrimination or retaliation, those claims are barred by the Settlement Agreement, as discussed infra.

12

probable permanent appointment title. Pl. 56.1 Stmt. ¶ 98.) That same day, human resources
sent a virtually identical email regarding Joann George and Marvin Schneider, two other
provisional Assistant Staff Analysts. Canfield Decl. Ex. QQ (Dkt. 62-20). On September 18,
2012, human resources notified hiring managers that the list call for the Associate Staff Analyst
title would take place on October 3, 2012. Pl. 56.1 Stmt. ¶ 97.
At around the same time, the New York City Office of Management and Budget
(“OMB”) required all City agencies to reduce spending. Specifically, on September 14, 2012,
OMB directed all City agencies to reduce spending in fiscal years 2013 and 2014 due to budget
gaps—also known as the program to eliminate the gap or “PEG.” Pl. 56.1 Stmt. ¶ 95. Fleet’s
portion of DCAS’ budget reducing effort was $260,726 for fiscal year 2013 and $397,906 for
fiscal year 2014. Id. ¶ 96. On September 24, 2012, Kerman notified the DCAS Deputy
Commissioner for Fiscal and Business Management that he would achieve his PEG goals via two
internal attritions in fiscal year 2013—“one mechanic inspector and one analyst (Luis)”—and
one internal attrition in fiscal year 2014—“loss of an ASA due to retirement.”17 Id. ¶ 99;
Canfield Decl. Ex. UU (Dkt. 62-20).
On September 26, 2012, two days after Kerman submitted his PEG proposal, Fleet
notified human resources that it would not hire from the call list to fill the Associate Staff
Analyst title to be vacated by Plaintiff. Canfield Decl. Ex. VV (Dkt. 62-21). Fleet gave up that
position to satisfy its PEG goals. Canfield Decl. Ex. WW (Dkt. 62-21). Plaintiff’s employment
was terminated on October 5, 2012, without advance notice that October 5 specifically would be

17

Also on September 24, 2012 but earlier in the day, in response to an email from human resources sharing a
letter that had been sent to Plaintiff regarding his long-overdue FMLA paperwork, Kerman responded, “I believe
there is also an issue with this employee not being on the ASA list.” Defs. 56.1 Stmt. Response ¶ 257. This was
four days before Plaintiff’s doctor cleared him to return to work on October 1, 2012, on a modified schedule. Pl.
56.1 Stmt. ¶ 89.

13

his last day. Canfield Decl. Ex. YY (Dkt. 62-21). None of the three provisional DCAS
Associate Staff Analysts who had been listed for replacement in Fleet’s September 13 emails
continued as a provisional Associate Staff Analyst for DCAS. On October 18, 2012, provisional
Associate Staff Analyst Joann George submitted her retirement papers, effective November 1,
2012. Pl. 56.1 Stmt. ¶ 106. On November 5, 2012, provisional Associate Staff Analyst Marvin
Schneider, who was employed part time by DCAS as Clock Master and who had been appointed
as the Official New York City Clock Master by Mayor Dinkins in 1992, had his title changed to
Clock Repairer.18 Id. ¶¶ 107-08. On November 9, 2012, the last provisional Associate Staff
Analyst, Mirlene Delpeche, was terminated effective November 25, 2012. Id. ¶ 105.
Sometime in 2012 or 2013, Kerman hired three new provisional Administrative Staff
Analysts for Fleet. Defs. 56.1 Stmt. Response ¶ 290. These employees were not selected from a
civil service list because there was no such list for the Administrative Staff Analyst title at the
time. Id. ¶ 291. As of January 15, 2013, the City employed 138 provisional Associate Staff
Analysts, but there is no evidence that DCAS continued to employ any provisional Associate
Staff Analysts after the terminations discussed above. Id. ¶ 322.
DISCUSSION
I.

Legal Standard
Summary judgment is appropriate when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Where the record
taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no

18

For the uninitiated, the New York City Clock Master keeps, inter alia, the mechanical clocks at City Hall
wound. See Christopher Gray, Streetscapes/Marvin Schneider; The Man Who Makes the City’s Clocks Run on
Time, N.Y. Times (Jan. 24, 1999), http://www.nytimes.com/1999/01/24/realestate/streetscapes-marvin-schneiderthe-man-who-makes-the-city-s-clocks-run-on-time.html.

14

‘genuine issue for trial.’” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). “The Court must ‘construe the
facts in the light most favorable to the non-moving party and must resolve all ambiguities and
draw all reasonable inferences against the movant.’” Pandora Media, Inc. v. Am. Soc’y of
Composers, Authors and Publishers, 785 F.3d 73, 77 (2d Cir. 2015) (per curiam) (quoting Beyer
v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008)). Nevertheless, “to defeat summary
judgment, ‘a nonmoving party must offer some hard evidence showing that its version of the
events is not wholly fanciful.’” Chabad Lubavitch of Litchfield Cnty., Inc. v. Litchfield Historic
Dist. Comm’n, 768 F.3d 183, 197 n.10 (2d Cir. 2014) (quoting Jeffreys v. City of N.Y., 426 F.3d
549, 554 (2d Cir. 2005)).
In the context of employment discrimination cases, the Second Circuit has noted that “an
extra measure of caution is merited” when considering a motion for summary judgment “because
direct evidence of discriminatory intent is rare and such intent often must be inferred from
circumstantial evidence found in affidavits and depositions.” Schiano v. Quality Payroll Sys.,
Inc., 445 F.3d 597, 603 (2d Cir. 2006). Nonetheless, it is “beyond cavil that summary judgment
may be appropriate even in the fact-intensive context of discrimination cases,” Abdu–Brisson v.
Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001), and “trial courts should not ‘treat
discrimination differently from other ultimate questions of fact,’” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 148 (2000) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
524 (1993)). Thus, summary judgment remains available in employment discrimination cases if
there is no genuine issue of material fact. Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 40
(2d Cir. 1994). And, even in the employment discrimination context, a plaintiff must do more
than advance conclusory allegations to defeat a motion for summary judgment. Aspilaire v.

15

Wyeth Pharm., Inc., 612 F. Supp. 2d 289, 302 (S.D.N.Y. 2009) (citing Schwapp v. Town of Avon,
118 F.3d 106, 110 (2d Cir. 1997)).
II.

The Settlement Agreement Does Not Bar Consideration of Pre-May 3, 2012
Events
Defendants argue that because Plaintiff executed the Settlement Agreement, including the

waiver on May 3, 2012, the actionable allegations in his Complaint are limited to those that
occurred after May 3, 2012, and Plaintiff may not rely in any way on events allegedly occurring
before May 3, 2012, to support his current claims. Defs. Mem. 2-6; Defs. Reply 1-3.19 In
support of their argument, Defendants point to the broad language of the Settlement Agreement
and the doctrine of res judicata. Defs. Mem. 2-3; Defs. Reply 2-3. In opposition, Plaintiff
contends that he may rely on events occurring before May 3, 2012, as evidence of discriminatory
or retaliatory intent for claims that arise after May 3, 2012. Pl. Opp. 9-10.
“[A] dismissal, with prejudice, arising out of a settlement agreement operates as a final
judgment for res judicata purposes.” Marvel Characters, Inc. v. Simon, 310 F.3d 280, 287 (2d
Cir. 2002). One of the elements of res judicata is that “the claims asserted in the subsequent
action were, or could have been, raised in the prior action.” Monahan v. N.Y. City Dep’t of
Corr., 214 F.3d 275, 285 (2d Cir. 2000). Plaintiff’s claims in this lawsuit are based on his
termination and alleged hostile treatment and retaliation that took place after the Settlement
Agreement was executed. Thus, res judicata does not apply because Plaintiff is now raising
claims that were not and could not have been raised in the prior action. But, to the extent
Plaintiff attempts to bring claims for alleged discriminatory actions that arose prior to the

19

The Court cites to Defendants’ Memorandum of Law in Support of their Motion for Summary Judgment
(Dkt. 60) as “Defs. Mem.,” to Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion for Summary
Judgment (Dkt. 69) as “Pl. Opp.,” to Defendants’ Reply Memorandum of Law in Further Support of their Motion
for Summary Judgment (Dkt. 72) as “Defs. Reply,” and to Plaintiff’s Sur-Reply in Opposition to Defendants’
Motion for Summary Judgment (Dkt. 76) as “Pl. Sur-Reply.”

16

Settlement Agreement and could have been brought at that time, the Settlement Agreement
precludes those claims.
“A claim ‘arising subsequent to a prior action . . . [is] not barred by res judicata’ even if
the new claim is ‘premised on facts representing a continuance of the same course of conduct.’”
TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 499 (2d Cir. 2014) (quoting Storey v. Cello
Holdings, L.L.C., 347 F.3d 370, 383 (2d Cir. 2003)). As the Supreme Court has explained:
That both suits involved ‘essentially the same course of wrongful conduct’ is not
decisive. Such a course of conduct . . . may frequently give rise to more than a single
cause of action. . . .While the [prior] judgment precludes recovery on claims arising prior
to its entry, it cannot be given the effect of extinguishing claims which did not even then
exist and which could not possibly have been sued upon in the previous case.
Lawlor v. Nat’l Screen Serv. Corp., 349 U.S. 322, 327-28 (1955).
Plaintiff essentially alleges that the discriminatory conduct that was the basis for his first
lawsuit continued after the Settlement Agreement, resulting in new claims for discrimination, a
hostile work environment, and retaliation that did not previously exist. In addition, although the
Settlement Agreement broadly precludes Plaintiff from raising any claims he could have brought
up to May 3, 2012, see Pl. 56.1 Stmt. ¶ 17, that prohibition does not prohibit Plaintiff from
relying on events occurring before May 3, 2012, as evidentiary support for claims arising after
May 3, 2012. Accordingly, neither res judicata nor the Settlement Agreement bars Plaintiff from
pointing to pre-settlement events as evidence to support his post-settlement claims.

17

III.

Discrimination Based on Race, National Origin, and Disability
A. Plaintiff Has Not Created a Genuine Dispute of Material Fact That He Was
Discriminated Against in Violation of Federal and State Law
Plaintiff claims he has been discriminated against on the basis of his race and national

origin in violation of 42 U.S.C. §§ 198120 and 1983 and NYSHRL and on the basis of his
disability in violation of NYSHRL. Courts analyze Section 1981 and 1983 and NYSHRL claims
under the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-03 (1973). Camarda v. Selover, No. 15-3262 (CV), 2016 WL 7234686, at *1
(2d Cir. Dec. 14, 2016) (summary order); Guzman v. City of N.Y., 93 F. Supp. 3d 248, 256
(S.D.N.Y. 2015); Sotomayor v. City of N.Y., 862 F. Supp. 2d 226, 251 (E.D.N.Y. 2012), aff’d,
713 F.3d 163 (2d Cir. 2013). “Under McDonnell Douglas, a plaintiff bears the initial burden of
proving by a preponderance of the evidence a prima facie case of discrimination; it is then the
defendant’s burden to proffer a legitimate non-discriminatory reason for its actions; the final and
ultimate burden is on the plaintiff to establish that the defendant’s reason is in fact pretext for

20

The Supreme Court previously clarified that, with respect to Defendants who are state actors, Section 1983
is the exclusive remedy for violations of rights guaranteed under Section 1981. Jett v. Dallas Indep. Sch. Dist., 491
U.S. 701, 731-34 (1989) The Second Circuit has not decided whether 42 U.S.C. § 1981(c), an amendment added as
part of the Civil Rights Act of 1991, overrules Jett and creates a private right of action against state actors under
Section 1981. See Anderson v. Conboy, 156 F.3d 167, 169 n.19 (2d Cir. 1998); Howard v. City of N.Y., 602 Fed.
App’x 545, 546 n.1 (2d Cir. 2015) (summary order); see also Underwood v. Roswell Park Cancer Inst., No. 15-CV684-] (FPG), 2017 WL 131740, at *15 n.10 (W.D.N.Y. Jan. 13, 2017). “In light of the uncertainty in this area, the
majority of the district courts have declined to deviate from the Supreme Court’s analysis of § 1981 in Jett, and have
dismissed § 1981 claims which encompass the same substantive right encompassed in the § 1983 claim.” Griffith v.
N.Y. State Dep’t of Health, No. 1:14-CV-1128, 2015 WL 4545991, at *3 (N.D.N.Y. July 28, 2015) (citation and
quotation marks omitted) (collecting cases). This Court, however, need not resolve the issue. “Because § 1981 and
§ 1983 claims are each analyzed under McDonnell Douglas and [the Court] conclude[s] that [Plaintiff’s]
discrimination [and retaliation] claims fail under this framework, [the Court] need not here decide whether
independent recovery for discrimination by state actors is available under § 1981.” Howard v. City of N.Y., 602 F.
App’x at 547.

18

unlawful discrimination.” Abrams v. Dep’t of Pub. Safety, 764 F.3d 244, 251 (2d Cir. 2014); see
also Littlejohn v. City of N.Y., 795 F.3d 297, 307-08 (2d Cir. 2015).
1. Plaintiff Cannot Establish a Prima Facie Case of Discrimination
To establish a prima facie case of discrimination, a “plaintiff does not need substantial
evidence of discriminatory intent.” Littlejohn, 795 F.3d at 311. For claims of race and national
origin discrimination, if a plaintiff adduces evidence to show:
(1) that [he] is a member of a protected class, (2) that [he] was qualified for the position
[he] sought, (3) that [he] suffered an adverse employment action, and (4) can sustain a
minimal burden of showing facts suggesting an inference of discriminatory motivation,
then [he] has satisfied the prima facie requirements and a presumption of discriminatory
intent arises in h[is] favor, at which point the burden of production shifts to the employer,
requiring that the employer furnish evidence of reasons for the adverse action.
Id.; see also Bucalo v. Shelter Island Union Free School Dist., 691 F.3d 119, 128 (2d Cir. 2012)
(“The requirements to establish a prima facie case are minimal . . . and a plaintiff’s burden is
therefore not onerous.” (citation and quotation marks omitted)). For claims of disability
discrimination, a plaintiff makes a prima facie case if he adduces evidence to show that:
(1) his employer is subject to the [NYSHRL]; (2) he was disabled within the meaning of
the [NYSHRL]; (3) he was otherwise qualified to perform the essential functions of the
job, with or without reasonable accommodation; and (4) he suffered an adverse
employment action because of his disability.
McMillan v. City of N.Y., 711 F.3d 120, 125 (2d Cir. 2013); see also Kemp v. Metro-N. R.R., 316
F. App’x 25, 26 (2d Cir. 2009) (summary order) (stating disability claims under the NYSHRL
are analyzed using the same standards that apply to the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq.). “At this stage, a plaintiff seeking to defeat a defendant’s
motion for summary judgment would not need evidence sufficient to sustain h[is] ultimate
burden of showing discriminatory motivation, but could get by with the benefit of the
presumption if [he] has shown evidence of the factors entitling h[im] to the presumption.”
Littlejohn, 795 F.3d at 311.
19

The parties dispute whether Plaintiff was qualified to continue as an Associate Staff
Analyst at the time of his termination inasmuch as he was not on the certified civil service list.
With respect to Plaintiff’s claims that he was discriminated against on the basis of race and
national origin, Plaintiff was “qualified” for the Associate Staff Analyst position if he satisfied
the criteria DCAS specified for the position. Thornley v. Penton Pub., Inc., 104 F.3d 26, 29 (2d
Cir. 1997). Absent a showing by the Plaintiff that DCAS’s job requirements were set in bad
faith, the fact finder does not examine the reasonableness vel non of the Defendants’
employment criteria. Id.
At the time of his termination, Plaintiff was not qualified for the Associate Staff Analyst
position because he did not satisfy DCAS criteria for the position—namely, having failed to sit
for and pass the merit examination, he was not a civil servant. Plaintiff knew at the time the
examination was offered that his employment was at risk because he was a provisional
employee. Maduegbuna Decl. Ex. 3 Tr. 86:19-87:1. Plaintiff would have been qualified for the
Associate Staff Analyst position if he had taken and passed the civil service examination for that
position in 2010, which he was eligible to do. Pl. 56.1 Stmt. ¶ 30. Plaintiff attempts to excuse
his failure to take or even apply to take the test because he was ill at the time. Id. ¶ 113. Plaintiff
could have sought an accommodation to take the exam on another date, but he never made
arrangements to do so. Id. ¶¶ 28, 31. As explained supra at note 4, Plaintiff presents no
evidence that anyone ever precluded him from seeking an accommodation to take the exam.
Plaintiff also would have been qualified for the Associate Staff Analyst position if he had
been certified under Section 55-a of the New York Civil Service Law as mentally disabled but
otherwise capable of performing the duties of the position. Although Plaintiff orally and
informally expressed interest in Section 55-a certification to various supervisors, id. ¶ 43; Defs.
56.1 Stmt. Response ¶¶ 233, 236, 238, 242, 244-45, and made two formal requests by letter to
20

the Citywide EEO Coordinator, Pl. 56.1 Stmt. ¶ 44, there is no evidence that Plaintiff applied for
certification to the proper person as required by New York Civil Service Law, id. ¶ 42. Plaintiff
argues that his expressions of interest in the program were ignored, thus effectively denying him
certification. But even if Plaintiff’s requests were denied—and the denial was discriminatory—
those claims arose prior to the May 3, 2012 Settlement Agreement and are, therefore, precluded.
With respect to Plaintiff’s claim that he was discriminated against on the basis of his
disability, Plaintiff was “otherwise qualified” for the Associate Staff Analyst position if he
“satisfie[d] the requisite skill, experience, education and other job-related requirements of the
employment position [he] h[eld] or desire[d],” Rowe v. AAA W. & Cent. N.Y., Inc., No. 515-CV00063 (LEK) (TWD), 2016 WL 7442656, at *4 (N.D.N.Y. Dec. 27, 2016) (quoting 29 C.F.R. §
1630.2(m)), and if he was able to perform the “fundamental duties” of the position, Shannon v.
N.Y. City Transit Auth., 332 F.3d 95, 100 (2d Cir. 2003) (citation omitted). To determine
whether a plaintiff is “otherwise qualified,” a court must first determine whether the plaintiff
fulfills the position’s prerequisites, including the appropriate education, employment experience,
skills, or license. Rowe, 2016 WL 7442656, at *4; see also Mark v. Burke Rehab. Hosp., No. 94CV-3596, 1997 WL 189124, at *4 (S.D.N.Y. Apr. 17, 1997) (“According to EEOC guidelines on
the ADA, the determination of whether an individual with a disability is qualified should be
made in two steps.” (quotation marks and citation omitted)).
As just discussed, Plaintiff was not qualified for the Associate Staff Analyst position
because he failed to obtain the necessary certification—whether by merit examination or under
Section 55-a. See Kinneary v. City of N.Y., 601 F.3d 151, 156-57 (2d Cir. 2010) (plaintiff not
qualified for job as boat captain because he did not hold the proper license); Rowe, 2016 WL
7442656, at *5-6 (plaintiff not qualified for position because he did not prove that he had passed
a required test, even if he otherwise could perform the essential functions of the job); Dancause
21

v. Mount Morris Cent. Sch. Dist., No. 13-CV-6019, 2013 WL 2946063, at *3 (W.D.N.Y. June
14, 2013) (plaintiff not able to perform duties as an English as a Second Language Teacher
because she failed to prove she held the professional accreditation required by New York, even
though plaintiff was competent to teach the subject), aff’d, 590 F. App’x 27 (2d Cir. 2014).
Although it is true that an employer cannot “terminat[e] a disabled employee . . . who can
perform the essential functions of the job but cannot return to work because the employer has
denied his request for a reasonable accommodation,” Kinneary, 601 F.3d at 156 (citation
omitted), Plaintiff has presented no evidence that, after the settlement of his prior lawsuit, he
requested an accommodation to take the merit examination or that he properly applied for and
was denied Section 55-a status.
In short, Plaintiff has failed to make a prima facie case of race, national origin, or
disability discrimination because he has not established that he was qualified for the Associate
Staff Analyst position.
2. Plaintiff Has Not Shown Defendants’ Legitimate Non-Discriminatory Reasons to
Be Pretextual
Even assuming, arguendo, Plaintiff has established a prima facie case of discrimination,
he has not shown that Defendants’ legitimate non-discriminatory reasons for terminating him are
pretextual. Defendants have offered clear evidence that they terminated Plaintiff’s employment
because they were legally required to replace all provisional Associate Staff Analysts with
candidates from the civil service list. Pl. 56.1 Stmt. ¶¶ 23-24; Canfield Decl. Ex. G., Tr. 56:16572:10, 58:20-59:16. There is no dispute that Plaintiff was a provisional employee, Pl. 56.1
Stmt. ¶¶ 19, 21, and that he neither took the civil service examination nor sought an
accommodation to take the exam on another date, id. ¶¶ 27-31, 113-114, nor obtained Section
55-a status. In addition, Defendants have adduced evidence that they terminated Plaintiff’s

22

employment as part of a City-wide requirement to reduce spending. Because DCAS was
required to replace Plaintiff with a non-provisional civil servant anyway, DCAS took the
opportunity to “kill two birds with one stone:” it partially met its budget reduction goals by
eliminating Plaintiff’s position in lieu of terminating him and filling his position with someone
from the civil service list. Id. ¶¶ 95-96, 99; Canfield Decl. Exs. UU, VV, WW.
Plaintiff has not adduced evidence from which a jury could reasonably conclude that
Defendants’ explanation for Plaintiff’s termination is pretextual. In an attempt to create a
question of fact regarding pretext, Plaintiff argues that: Defendants had been trying to terminate
him on account of his attendance issues before they knew he could be terminated based on his
provisional status in September 2012; Defendants made discriminatory statements; Defendants
made a hodgepodge of statements reflecting frustration with Plaintiff; and one provisional
Associate Staff Analyst was not terminated. Pl. Opp. 13-17. Plaintiff produces no evidence to
support his first argument, and none of his other arguments, taken separately or collectively,
creates a genuine dispute of fact as to whether Defendants’ proffered reasons for terminating
Plaintiff’s employment are pretext for discriminatory animus.
Plaintiff was on notice since at least 2010 that his employment as a provisional Associate
Staff Analyst was at risk because DCAS was required to replace all provisional Associate Staff
Analysts with civil servants. Maduegbuna Decl. Ex. 3 Tr. 86:19-87:1. He also knew before he
went out on FMLA leave on about June 8, 2012, that the civil service list for the Associate Staff
Analyst position had been certified. Pl. 56.1 Stmt. ¶ 36. Although there is plenty of evidence
that Defendants were concerned about Plaintiff’s attendance, there is no evidence that
Defendants terminated him because of his absences and tardiness, regardless of whether his poor

23

attendance was due to his disability.21 There is ample evidence that Defendants encouraged
Plaintiff to improve his attendance, an entirely reasonable step for any employee, disabled or not.
Maduegbuna Decl. Ex. 20. Because Plaintiff had long been granted the reasonable
accommodation to start work at 11:00 a.m., see Maduegnua Decl. Exs. 17, 18, 38; Canfield Decl.
AA, any argument that Defendants’ complaints about Plaintiff’s poor attendance are a proxy for
discriminatory animus regarding his disability fails. See, e.g., Jackson v. Nor Loch Manor
Healthcare Facility, 297 F. Supp. 2d 633, 636 (W.D.N.Y 2004) (holding an employer is entitled
to discharge an employee for failing to appear for work without notification, even if the absences
are due to a disability). Moreover, despite his argument to the contrary, as discussed supra at
note 7, there is no evidence that Plaintiff sought or was denied the additional accommodation to
arrive at work at 11:30 a.m. Evidence showing that Defendants were frustrated with Plaintiff’s
lack of productivity and reliability does not support an inference that Defendants sought to
terminate him due to his disability, race, or national origin.
Plaintiff points to a myriad of alleged statements in an effort to demonstrate that
Defendants’ non-discriminatory reasons for terminating his employment were pretextual.22
Specifically, as to race and national origin, Plaintiff testified that he heard Weir say “that he
doesn’t like spics,” that he doesn’t like people of Hispanic origin,” “that Colombians, all they do
is bring drugs to the United States,” and that he heard Dazzo and Weir say to each other that “all
Colombians are bringing drugs to this country.” Canfield Decl. Ex. B Tr. 176:13-177:6, 178:6-9,

21

The Assistant Commissioner of Human Resources testified at her deposition that, at some point between
May and October 2012, she “possibly” received a request from Fleet to terminate Plaintiff due to his tardiness and
absences, Maduegbuna Decl. Ex. 10 Tr. 41:23-42:8, but given the speculative nature of the statement and the lack of
any other supporting evidence that the request was acted on, this statement does not show that Defendants’ proffered
reasons for terminating Plaintiff’s employment were pretextual.
22

In addition to the statements discussed in the text, Plaintiff points to the silly “we’ll see who wins in the
end” alleged statement by Kerman, see supra at note 10.

24

225:23-228:12. Because Plaintiff cannot provide any specifics regarding when, where, or in
what context Weir made these statements, and because it is undisputed that Dazzo and Weir did
not know Plaintiff was Colombian when Plaintiff worked for them, Canfield Decl. Ex. P Tr.
79:16-24; id. Ex. Q Tr. 101:7-21, these statements do not suffice to show that Defendants’
reasons for terminating Plaintiff were pretext for race or national origin discrimination. Those
alleged statements are the only evidence Plaintiff presents that even remotely hint at race or
national origin discrimination—nothing else in the record does.
As to his disability, Plaintiff points to an alleged statement Dazzo made to him: “You
don’t come here on time and we have no reason to accommodate you because you don’t come
here on time,” Canfield Decl. Ex. B. Tr. 234:2-13; he also points to an alleged statement by Weir
in May or June 2012 that “he did not believe that [plaintiff] was as sick as [plaintiff] pretended to
be and . . . [that] he thought [plaintiff] was trying to skate,” id. Tr. 235:23-25. Plaintiff does not
provide any information regarding time, place, or context for the first statement. Moreover, it is
undisputed that Defendants provided Plaintiff with a reasonable accommodation of an 11:00 a.m.
start time, Pl. 56.1 Stmt. ¶ 60; Maduegbuna Decl. Exs. 17, 18, 38; Canfield Decl. Ex. AA, and
that Plaintiff did not request further accommodation, as discussed supra at note 7. The second
statement does not evidence discriminatory animus; it merely shows that Weir believed Plaintiff
was malingering.
Plaintiff also argues that the following statements create a question of fact relative to
pretext: (1) Weir’s statement in response to a long, complaining email from Plaintiff to Kerman:
“We have to end this,” Maduegbuna Decl. Ex. 37; and (2) a statement by Weir and Dazzo that
Plaintiff “wouldn’t be there for long” and that they “just have to deal with him for a little while,”
Canfield Decl. Ex. B Tr. 210:15-211:10. Even if Defendants were hoping to terminate Plaintiff’s
employment, these statements do not show that their hope rested on discriminatory animus;
25

indeed, as described above, it is undisputed that Plaintiff’s conduct was a cause for concern in
light of his frequent lateness, absences, and unproductive use of City time and equipment.
Moreover, although the evidence does not show exactly when Defendants learned that the
DCAS’s provisional employees would be terminated in fall 2012, the changes to the civil service
law were not secret—Plaintiff had been notified in 2010 that his job was in jeopardy if he did get
on the civil service list.23 Maduegbuna Decl. Ex. 3 Tr. 86:19-87:1.
Finally, Plaintiff argues that Defendants’ non-discriminatory reasons are pretextual
because at least one provisional Associate Staff Analyst, Schneider, was not terminated.
Schneider, however, was in a unique position as Mayor Dinkins had appointed him as the
Official New York City Clock Master in 1992, and thus, on November 5, 2012, the City changed
his title to Clock Repairer to reflect his true role and responsibilities. Pl. 56.1 Stmt. ¶¶ 107-08.
Neither does the fact that DCAS later hired provisional employees show that Defendants’ nondiscriminatory reasons are pretextual. Even if some of the responsibilities of the three
provisional employees hired in 2012 or 2013 may have been similar to Plaintiff’s
responsibilities, they were hired for a different position than the one held by Plaintiff, and it was
a position that did not have a civil service list. Defs. 56.1 Stmt. Response ¶¶ 290-92, 294, 32122.
Accordingly, Defendants are entitled to summary judgment on Plaintiff’s Section 1981
and 1983 claims for race and national origin discrimination and Plaintiff’s NYSHRL claims for
race, national, origin, and disability discrimination.

23

For the same reasons, Kerman’s alleged statement to Weir that he wanted Plaintiff “out of the unit” and that
Plaintiff “was a worthless piece of—equipment,” Maduegbuna Decl. Ex. 3 Tr. 242:7-243:2, does not show that
Defendants’ non-discriminatory rationale for Plaintiff’s termination is pretextual.

26

B. Plaintiff Has Not Created a Genuine Dispute of Material Fact Regarding
Whether Defendants Discriminated Against Him in Violation of NYCHRL
Plaintiff alleges he has been discriminated against on the basis of his disability in
violation of NYCHRL. Although the text of the NYCHRL mirrors the NYSHRL, compare
N.Y.C. Admin. Code § 8–107 with N.Y. Exec. Law § 296, in 2005, the New York City Council
broadened the protection of the NYCHRL, see Local Civil Rights Restoration Act of 2005,
N.Y.C. Local L. No. 85. The Second Circuit therefore requires “‘courts [to] analyze NYCHRL
claims separately and independently from any federal and state law claims.’” Velazco v.
Columbus Citizens Found., 778 F.3d 409, 411 (2d Cir. 2015) (per curiam) (quoting Mihalik v.
Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013)).
Under the NYCHRL, claims are construed “broadly in favor of discrimination plaintiffs,
to the extent that such a construction is reasonably possible.” Mihalik, 715 F.3d at 109 (internal
quotation marks and citation omitted). NYCHRL “does not require ‘a connection between the
discriminatory conduct and a materially adverse employment action.’” Garrigan v. Ruby
Tuesday, Inc., No. 14–CV–155 (LGS), 2014 WL 2134613, at *3 (S.D.N.Y. May 22, 2014)
(quoting Mihalik, 715 F.3d at 114). The proper inquiry under the NYCHRL is whether a
plaintiff “was treated ‘less well’ because of her [membership in a protected class].” Mihalik, 715
F.3d at 111 (quoting Williams v. N.Y. City Hous. Auth., 872 N.Y.S.2d 27, 36 (1st Dep’t 2009)
(alteration omitted)). Although “a jury is often best suited to make this determination, . . .
summary judgment still can be an appropriate mechanism for resolving NYCHRL claims.” Id.
A defendant is entitled to summary judgment “if the record establishes as a matter of law that
discrimination played no role in its actions.” Id. at 110 n.8 (citing Williams, 872 N.Y.S.2d at 840
n.27) (alteration omitted).

27

“Claims under the NYCHRL are subject to McDonnell Douglas burden-shifting.” Hill v.
N.Y. City Hous. Auth., No. 15 CIV. 8663 (CM), 2016 WL 6820759, at *8 (S.D.N.Y. Nov. 14,
2016). Even under NYCHRL’s more liberal standards, Plaintiff’s race, national origin, and
disability discrimination claims fail as a matter of law because Plaintiff has not shown “that the
conduct [complained of wa]s caused by a discriminatory motive,” even in part. Mihalik, 715
F.3d at 110. Plaintiff was not treated “less well” than the other provisional Associate Staff
Analysts who were also required to be replaced by individuals from the civil service list, Pl. 56.1
Stmt. ¶¶ 105-06, nor was Plaintiff treated “less well” than Schneider, who, although in a unique
position, was terminated as a provisional Associate Staff Analyst, id. ¶¶ 107-08. The fact that
Defendants were concerned about Plaintiff’s attendance and absenteeism after Plaintiff had
already been granted a reasonable accommodation—and failed to request additional
accommodation—does not raise an issue of fact regarding whether Defendants’ proffered reason
for Plaintiff’s termination was pretext for discrimination. Moreover, for the reasons provided
above, the single incident described by Plaintiff in which Weir and Dazzo made disparaging
remarks regarding Hispanics and Colombians also does not raise an issue of fact regarding
whether Defendants’ proffered reason for Plaintiff’s termination was pretext for discrimination.
Defendants are, therefore, entitled to summary judgment on Plaintiff’s NYCHRL claims for race,
national origin, and disability discrimination. See Hill, 2016 WL 6820759, at *8 (granting
summary judgment on NYCHRL disability claim because plaintiff failed to rebut defendant’s
non-discriminatory reason for adverse actions); Doe v. Major Model Mgmt. Inc., No. 11 CIV.
6182 (KBF), 2012 WL 763556, at *10 (S.D.N.Y. Mar. 9, 2012) (same).

28

IV.

Hostile Work Environment
A. Plaintiff Has Failed to Create a Genuine Dispute of Material Fact Regarding
Whether He Was Subjected to a Hostile Work Environment in Violation of
Federal and State Law
For a hostile work environment claim, a plaintiff must demonstrate that the conduct

complained of “(1) is objectively severe or pervasive—that is, creates an environment that a
reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff
subjectively perceives as hostile or abusive; and (3) creates such an environment because of the
plaintiff’s [protected status].” Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (quoting
Gregory v. Daly, 243 F.3d 687, 691-92 (2d Cir. 2001)) (quotations and internal alterations
omitted). The same standard is used for evaluating hostile work environment claims under
Section 1981 and 1983 and the NYSHRL. See Smith v. Town of Hempstead Dep’t of Sanitation
Sanitary Dist. No. 2, 798 F. Supp. 2d 443, 451 (E.D.N.Y. 2011); Bermudez v. City of N.Y., 783 F.
Supp. 2d 560, 578 (S.D.N.Y. 2011). In evaluating hostile work environment claims, courts
consider “the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.” Harris v. Forklift Sys., 510 U.S. 17, 23 (1993). While
the Second Circuit has “often noted that even a single episode of harassment can establish a
hostile work environment if the incident is sufficiently ‘severe,’” Redd v. N.Y. Div. of Parole,
678 F.3d 166, 176 (2d Cir. 2012) (citing cases), in most cases, “[t]he incidents complained of
must be more than episodic; they must be sufficiently continuous and concerted in order to be
deemed pervasive,” Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014) (citation omitted).
Plaintiff asserts that the following establish a hostile work environment: (1) Weir
threatened to have security escort Plaintiff out of his office; (2) Weir and Dazzo made derogatory
statements regarding “spics” and Colombians; (3) Weir said that Plaintiff exaggerated his illness;
29

(4) Kerman said “we’ll see who wins in the end” during a dispute over an office chair; (5)
Kerman blocked Plaintiff’s attempts to transfer to a different job while simultaneously trying to
terminate Plaintiff for his poor attendance record; (6) the EEO Officer and General Counsel
worked with Defendants to thwart any investigation of Plaintiff’s complaints of harassment and
hostile work environment; and (7) Kerman removed a U.S. Marines photograph that had been
hanging in Plaintiff’s general workspace. Pl. Opp. 25. Plaintiff has established that he
subjectively perceived his work environment to be hostile; the numerous emails sent to his
various supervisors in May 2012 confirm as much. Canfield Decl. Exs. CC, DD, FF;
Maduegbuna Decl. Exs. 34, 37. But perceived hostility is not the same as objective hostility, and
Plaintiff has failed to show that “his work environment was objectively hostile and abusive.”
Richards v. N.Y.C. Dep’t of Educ., No. 13-CV-16 (VEC), 2015 WL 4164746, at *11 (S.D.N.Y.
July 10, 2015) (citation and quotation marks omitted); see also Bickerstaff v. Vassar Coll., 196
F.3d 435, 456 (2d Cir. 1999) (“[F]eelings and perceptions of being discriminated against are not
evidence of discrimination.”), as amended on denial of reh’g (Dec. 22, 1999).
Plaintiff has adduced no evidence in support of his fifth through seventh asserted bases
for a hostile work environment claim. As to his other arguments, a single incident of disparaging
remarks regarding Hispanics and Colombians does not suffice to establish a hostile work
environment on the basis of race or national origin, nor does Weir’s comment that he believed
Plaintiff exaggerated his illness suffice to establish a hostile work environment on the basis of
disability. Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (“For racist comments,
slurs, and jokes to constitute a hostile work environment, there must be ‘more than a few isolated
incidents of racial enmity.’” (citation omitted)); see also Kotcher v. Rosa and Sullivan Appliance
Ctr., 957 F.2d 59, 62 (2d Cir. 1992) (“The incidents must be repeated and continuous; isolated
acts or occasional episodes will not merit relief.” (citation omitted)). As explained supra at note
30

10, Kerman’s alleged “we’ll see who wins” statement, purportedly made during an incident
involving a desk chair, is contradicted by Plaintiff’s own account of the incident at the time,
which was that Kerman said “we’ll see how things work out.”24 Moreover, although Weir’s
threat to have security escort Plaintiff out was, undoubtedly, not Weir’s finest moment as a
manager, “[a]ntidiscrimination statutes are not general codes of civility and do not provide
redress for abusive conduct not occurring because of Plaintiff’s membership in a protected
class.” Brutus v. Silverseal Corp., No. 06 CIV. 15298 (LAP), 2009 WL 4277077, at *5
(S.D.N.Y. Nov. 24, 2009), aff’d, 439 F. App’x 28 (2d Cir. 2011). Even if Plaintiff had
demonstrated that his work environment was in some sense hostile—and he has not—for the
reasons previously discussed, Plaintiff has not adduced evidence to connect the hostile work
environment to his membership in a protected class. Brennan v. Metro. Opera Ass’n, Inc., 192
F.3d 310, 318 (2d Cir. 1999) (“A plaintiff must also demonstrate that she was subjected to the
hostility because of her membership in a protected class.”).
B. Plaintiff Has Failed to Create a Genuine Dispute of Material Fact Regarding
Whether He Was Subjected to a Hostile Work Environment in Violation of
NYCHRL
As with discrimination claims generally, the NYCHRL permits hostile work environment
claims based on a lesser showing than is required by federal or state law. See Mihalik, 715 F.3d
at 112–13; Gonzalez v. EVG, Inc., 999 N.Y.S. 2d 16, 17 (1st Dep’t 2014). “Under the
[NY]CHRL’s more liberal standard, a plaintiff must ‘show that her employer treated her less
well than other similarly situated employees, at least in part for discriminatory reasons.’” Bright
v. Coca Cola Refreshments USA, Inc., No. 12–CV–234 (BMC), 2014 WL 5587349, at *2

24

In any event, it takes two to get into a dispute over a chair, and this particular dispute—whichever version
of Kerman’s statement is accurate—does not rise to the level of creating a hostile work environment.

31

(E.D.N.Y. Nov. 3, 2014) (quoting Fenner v. News Corp., No. 09–CV–9832 (LGS), 2013 WL
6244156, at *13 (S.D.N.Y. Dec. 2, 2013)).
As discussed supra, because Plaintiff has adduced no evidence that Defendants’ behavior
was motivated by “discriminatory animus,” his NYCHRL hostile work environment claim fails.
Askin v. Dep’t of Educ. of City of N.Y., 973 N.Y.S.2d 629, 630 (1st Dep’t 2013). Even if
Plaintiff had established discriminatory animus, he has not put forward evidence that would
elevate his claim above “petty slights” and into the realm of cases that are actionable under the
NYCHRL. See, e.g., Gonzalez, 999 N.Y.S.2d at 17 (describing defendants’ “constant use of
language degrading women, telling of sexually explicit jokes, and overt viewing of pornography
in the workplace” as hostile under the NYCHRL but not the NYSHRL).
Because Plaintiff has failed to create a genuine dispute of material fact regarding his
hostile work environment claims under Sections 1981 and 1983, NYSHRL, and NYCHRL,
Defendants are entitled to summary judgment on those claims.
V.

Retaliation
A. Plaintiff Has Failed to Create a Genuine Dispute of Material Fact Regarding
Whether Defendants Retaliated Against Him in Violation of Federal and State
Law
Plaintiff also alleges retaliation under Sections 1981 and 1983, NYSHRL, and NYCHRL.

Retaliation claims brought pursuant to NYSHRL and Sections 1981 and 1983 are treated the
same, and Courts analyze them under the burden-shifting McDonnell Douglas framework. Hicks
v. Baines, 593 F.3d 159, 164 (2d Cir. 2010); see also Guzman v. City of N.Y., 93 F. Supp. 3d 248,
261 (S.D.N.Y. 2015). First, the plaintiff must make out a prima facie case of retaliation. Hicks,
593 F.3d at 164. To make out a prima facie case, a plaintiff “must demonstrate that ‘(1) [he]
engaged in protected activity; (2) the employer was aware of that activity; (3) the employee
suffered a materially adverse action; and (4) there was a causal connection between the protected
32

activity and that adverse action.’” Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs,
P.C., 716 F.3d 10, 14 (2d Cir. 2013) (per curiam) (quoting Lore v. City of Syracuse, 670 F.3d
127, 157 (2d Cir. 2012)); see also Littlejohn, 795 F.3d at 316.
If the plaintiff makes out a prima facie case, the defendants “must then ‘articulate a
legitimate, non-retaliatory reason’” for the materially adverse action. Hicks, 593 F.3d at 164.
(quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005)). Finally, the
plaintiff must prove “that ‘a retaliatory motive played a part’” in the adverse action. Id. (quoting
Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990)). To do so, the plaintiff must
“establish that his or her protected activity was a but-for cause of the alleged adverse action by
the employer.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013); see also
Shein v. N.Y. City Dep’t of Educ., No. 15CV4236 (DLC), 2016 WL 676458, at *7 (S.D.N.Y.
Feb. 18, 2016) (applying but-for causation to Section 1983 first amendment retaliation claim);
Bowen-Hooks v. City of N.Y., 13 F. Supp. 3d 179, 221 n.25 (E.D.N.Y. 2014) (applying but-for
causation to NYSHRL retaliation claim). “‘[B]ut-for’ causation does not require proof that
retaliation was the only cause of the employer’s action, but only that the adverse action would
not have occurred in the absence of the retaliatory motive.” Zann Kwan v. Andalex Group LLC,
737 F.3d 834, 846 (2d Cir. 2013). In addition, temporal proximity, without more, does not
satisfy a plaintiff’s burden to bring forward evidence showing that a defendant’s proffered
reasons for the adverse action are pretextual. El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933
(2d Cir. 2010).
The parties dispute whether Plaintiff has established a prima facie case of retaliation.
Among other things, the parties dispute whether certain acts qualify as adverse actions and
whether Plaintiff has shown a causal connection between the protected activity and those acts.
Plaintiff argues that he was subject to a “campaign” of retaliatory actions, including: (1)
33

terminating Plaintiff without advance notice; (2) disabling his computer logins; (3) refusing to
provide training and purposefully evading his requests for help; (4) refusing to assign him
anything other than basic data entry work; (5) refusing to investigate his EEO complaints; (6)
refusing to consider or process his Section 55-a requests; (7) refusing to extend Plaintiff further
accommodation on his start time; (8) issuing an AWOL memo for three days of absences in July
2012; (9) yelling and threatening to have Plaintiff removed by security; and (10) refusing to
transfer Plaintiff to another position. Pl. Opp. 19-20.
Other than his termination, however, Plaintiff, either fails to adduce evidence that the
alleged adverse action took place or that his engagement in protected activity was the but-for
cause for the adverse action.25 There is no evidence that Plaintiff’s computer logins were
intentionally disabled upon his return from approximately four months of leave but only that he
was unable to log in, and Plaintiff concedes that logins expire after a period of time. Canfield
Decl. Ex. B Tr. 257:21-258:19; Maduegbuna Decl. Ex. 59. Plaintiff testified that he was denied
training, but he could point to only a single incident when he requested training that was denied,
and he has presented no evidence to refute Defendants’ explanation at the time that the training
was not necessary for his job. Madueguba Decl. Ex. 3 Tr. 246:11-255:2. Moreover, the
evidence shows that Plaintiff was offered training in Excel on multiple occasions and refused to
take other training because he deemed it not useful. Pl. 56.1 Stmt. ¶¶ 54-58; Canfield Decl. Exs.
S, T, U, W, X, GG. Similarly, Plaintiff requested a transfer in part because his assignments were
chiefly data entry, Maduegbuna Decl. Exs. 24, 26, but the Associate Staff Analyst position was
primarily responsible for data entry, see Maduegbuna Decl. Ex. 27; Pl. 56.1 Stmt. ¶¶ 48-51. The

25

Because Plaintiff either fails to present evidence of the alleged adverse act or fails to causally connect them
to any protected activity, the Court does not address whether these acts qualify as materially adverse for the purpose
of a retaliation claim, which is an issue the parties dispute.

34

evidence cited by Plaintiff does not demonstrate that Defendants refused to investigate Plaintiff’s
complaints about harassment and hostility, Maduegbuna Decl. Ex. 7 Tr. 42:6-43:11; on the
contrary, the EEO Officer told Plaintiff that his “concerns about relationships with [his]
coworkers and supervisors w[ould] be brought to the attention of” upper management at Fleet
and human resources, Canfield Decl. Ex. FF, and the DCAS Commissioner’s office asked for “a
review and report of the matter,” Maduegbuna Decl. Ex. 34. As to his Section 55-a requests, as
explained above, the Settlement Agreement precludes any claims arising from those requests.
Finally, as discussed supra at note 7, Plaintiff presents no evidence that he ever actually sought
an accommodation to start later than 11:00 a.m.
As to the remaining alleged adverse actions, Plaintiff fails to connect them causally to
any protected activity. Weir issued an AWOL memo for Plaintiff for July 19, 20, and 23, 2012
because Plaintiff had not submitted the paperwork necessary for FMLA leave, but human
resources—still without the requisite paperwork—retroactively approved Plaintiff’s FMLA leave
on September 24, 2012. Canfield Decl. Ex. JJ. Weir yelled at and threatened Plaintiff in the
context of discussing Plaintiff wasting time and city equipment by making unnecessary
photocopies and in the context of Plaintiff insisting on immediate attention when Weir was busy,
not in connection to Plaintiff engaging in protected activity. Canfield Decl. Ex. CC;
Maduegbuna Decl. Ex. 3 Tr. 230:19-231:16; id. Ex. 5 169:14-170:20. Finally, Plaintiff’s
complaint about Defendants’ refusal to transfer Plaintiff to another position also has no causal
connection to protected activity. Plaintiff requested a transfer when he was in a snit because his
boss refused to excuse a late arrival, explaining to Plaintiff that his data entry assignments are
important and consistent with his position. Maduegbuna Decl. Ex. 26. In any event, Plaintiff
has presented no evidence that any other employee was transferred out of Fleet, on request of the

35

employee, because the employee did not want to enter data. Accordingly, the only remaining
adverse action is Plaintiff’s termination.
Assuming, without deciding, that Plaintiff has established a prima facie case of
retaliation, Defendants have provided legitimate, non-discriminatory reasons for Plaintiff’s
termination, just as they did in response to Plaintiff’s discrimination claims. As he did for his
discrimination claims, Plaintiff argues those reasons are pretextual because Defendants sought to
terminate him before they knew about his provisional status and because Kerman later hired new
replacement employees. Pl. Opp. 21-22. But the Court rejects those arguments for the same
reasons they were rejected with respect to Plaintiff’s discrimination claims. In addition, Plaintiff
argues Defendants’ reasons for Plaintiff’s termination are pretextual because Defendants could
have chosen to keep Plaintiff, and Defendants did not provide Plaintiff with any warning that he
was about to be terminated in order to allow him time to find another job. Id. The Court rejects
these arguments, too. There is no evidence that Defendants could have kept Plaintiff as a
provisional Associate Staff Analyst, unless he had Section 55-a certification, which he did not.
Because Plaintiff was on notice since 2010 that his employment was at risk if he did not take and
pass the civil service examination, Maduegbuna Decl. Ex. 3 Tr. 86:19-87:1, and because he
knew before taking FMLA leave in June 2012 that a civil service list had been certified for his
position, Pl. 56.1 ¶ 36, the fact that Defendants failed to provide Plaintiff with advance warning
that October 5, 2012, would be his last day does not establish that retaliation was the but-for
cause of Plaintiff’s termination.26 In any event, although failure to warn an employee that

26

For the same reason—namely, it was public knowledge at DCAS that provisional employees were legally
required to be replaced with candidates from the civil service list—Kerman’s alleged statement that he was angry
about the settlement of Plaintiff’s prior lawsuit, see supra note 14, does not establish that Plaintiff’s prior lawsuit
was the but-for cause of his termination.

36

termination is imminent may be less than ideal from a human relations perspective, it does not
tend to prove that the termination itself was retaliatory.
In sum, Plaintiff has not adduced any evidence to show that Defendants’ reasons for
terminating him were pretext for retaliation.
B. Plaintiff Has Failed to Create a Genuine Dispute of Material Fact Regarding
Whether Defendants Retaliated Against Him in Violation of NYCHRL
“As is the case with NYCHRL discrimination claims, NYCHRL retaliation claims are to
be construed more broadly than Title VII and NYSHRL retaliation claims.” Goonewardena v.
N.Y. State Workers’ Comp. Bd., No. 09CIV8244 (RA) (HBP), 2016 WL 7439414, at *19
(S.D.N.Y. Feb. 9, 2016) (citing Mihalik, 715 F.3d at 112), report and recommendation adopted
sub nom. Goonewardena v. State of N.Y. Workers Comp. Bd., No. 09-CV-8244 (RA), 2016 WL
7441695 (S.D.N.Y. Dec. 22, 2016). “[T]o prevail on a retaliation claim under the NYCHRL, the
plaintiff must show that she took an action opposing her employer’s discrimination . . . and that,
as a result, the employer engaged in conduct that was reasonably likely to deter a person from
engaging in such action.” Mihalik, 715 F.3d at 112 (internal citations omitted). In analyzing a
NYCHRL retaliation claim, “the totality of the circumstances must be considered because ‘the
overall context in which the challenged conduct occurs cannot be ignored.’” Id. at 113 (quoting
Hernandez v. Kaisman, 957 N.Y.2d 53, 59 (1st Dep’t 2012)). Although the but-for causation
standard applicable to state and federal retaliation claims does not apply to NYCHRL, “a
plaintiff must still establish that there was a causal connection between her protected activity and
the employer’s subsequent action, and must show that a defendant’s legitimate reason for her
termination was pretextual or ‘motivated at least in part by an impermissible motive.’” Russo v.
N.Y. Presbyterian Hosp., 972 F. Supp. 2d 429, 456 (E.D.N.Y. 2013) (quoting Brightman v.
Prison Health Serv., Inc., 970 N.Y.S.2d 789, 792 (2d Dep’t 2013)).

37

Plaintiff’s retaliation claim fails even under the more generous NYCHRL standard.
Taking into account the totality of the circumstances, the only evidence of a possible causal
connection between Plaintiff’s termination and his engagement in protected activity is the fivemonth period between the settlement of his lawsuit and his termination. That alone is
insufficient to suggest a causal connection. There is no causal connection between Plaintiff’s
termination and his lawsuit or any post-settlement protected activity in which he may have
engaged because Plaintiff was destined for termination as an Associate Staff Analyst since 2010
when he failed to take or seek an accommodation to take the civil service exam. Plaintiff settled
his prior lawsuit despite the Defendants refusing to include in the Settlement Agreement a
provision allowing Plaintiff to take the required civil service exam belatedly. Decl. of Samuel O.
Maduegbuna in Supp. of Pl. Opp. to Defs. Mot. for Sanctions under Fed. R. Civ. P. 11 Ex. 1, at
4. Having done so, it strains credulity to argue that the very termination that he acknowledged
would follow from the fact he had neither taken the civil service test nor obtained Section 55-a
certification is retaliatory. Moreover, the Court’s prior analysis concluding that Plaintiff has not
adduced evidence that rebuts Defendants’ non-discriminatory reasons as pretext likewise applies
under the more liberal NYCHRL standard. Accordingly, Defendants are entitled to summary
judgment on Plaintiff’s retaliation claims brought under federal, state, and municipal law.
C. Plaintiff Has Failed to Create a Genuine Dispute of Material Fact Regarding
Whether Defendants Retaliated Against Him in Violation of the FMLA
Finally, Plaintiff alleges that Defendants terminated him in retaliation for exercising his
rights under the FMLA. The McDonnell Douglas burden-shifting framework also applies to
retaliation claims brought pursuant to the FMLA. Graziadio v. Culinary Inst. of Am., 817 F.3d
415, 429 (2d Cir. 2016). In order to make out a prima facie case for FMLA retaliation, the
plaintiff must establish that: “1) he exercised rights protected under the FMLA; 2) he was

38

qualified for his position; 3) he suffered an adverse employment action; and 4) the adverse
employment action occurred under circumstances giving rise to an inference of retaliatory
intent.” Potenza v. City of N.Y., 365 F.3d 165, 168 (2d Cir. 2004). “If the plaintiff makes out a
prima facie case, the defendant must demonstrate a legitimate, non-discriminatory reason for its
actions; if the defendant does so, the plaintiff must then show that defendant’s proffered
explanation is pretextual.” Graziadio, 817 F.3d at 429.
As with his other claims that require proof that he was qualified for his position, his
FMLA retaliation claim founders on the shoals of the prima facie case because he was not
qualified for the position from which he was terminated. But, even if Plaintiff had established a
prima facie case, he has not shown that Defendants’ proffered explanation that Plaintiff was
terminated because of the change in civil service rules and DCAS’s PEG goals is pretextual.
Plaintiff argues that Defendants’ reasons are too vague and are pretextual because Defendants
have not demonstrated: (1) why Plaintiff could not be certified under Section 55-a or transferred
to a different title; (2) why the City strayed from its practice of advanced notice of termination to
provisional employees; and (3) why his computer and voicemail were disabled upon his return
from FMLA leave. Pl. Opp. 23.
Defendants have, however provided a “clear and specific” legitimate nondiscriminatory
reason for Plaintiff’s termination, Mandell v. Cty. of Suffolk, 316 F.3d 368, 381 (2d Cir. 2003)—
in order to comply with the most recent change in the law, DCAS was required to replace all
provisional Associate Staff Analysts with individuals who were on the civil service list. In
addition, there is no evidence that Plaintiff was ever denied Section 55-a certification, and any
claims arising from his formal requests for Section 55-a certification that were not responded to
are barred by the Settlement Agreement. There is no evidence that Plaintiff ever applied for
another City job or that failure to provide advance notice of the termination (other than the notice
39

he received in 2010) had any connection to Plaintiff’s use of FMLA leave. The evidence is also
clear that Plaintiff knew his time as a provisional Associate Staff Analyst was soon coming to an
end because he knew a civil service list had been certified prior to the time he signed the
Settlement Agreement. Pl. 56.1 Stmt. ¶ 36; Decl. of Samuel O. Maduegbuna in Supp. of Pl.
Opp. to Defs. Mot. for Sanctions under Fed. R. Civ. P. 11 Ex. 1, at 4. For that reason, the fact
that Plaintiff was terminated almost immediately after his return from FMLA leave does not
rebut Defendants’ proffered reason for his termination. Finally, Plaintiff acknowledges that
computer logins can expire after a certain period of time, Canfield Decl. Ex. B Tr. 257:21258:19—and even wondered at the time his login was disabled whether that was the case,
Maduegbuna Decl. Ex. 59—and there is no evidence in the record to suggest that Defendants
intentionally denied Plaintiff computer access upon his return from FMLA leave.
Because Plaintiff has failed to establish a prima facie case and to rebut Defendants’ nondiscriminatory reason for terminating Plaintiff, Defendants are entitled to summary judgment on
Plaintiff’s FMLA retaliation claim.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED.
The Clerk of Court is directed to enter judgment for the Defendants, terminate the open motion
at docket entry 58, and close the case.

_________________________________
___________________________
__
CAPRONI
VALERIE CAPRONI
N
United States District Judge

Date: March 30, 2017
New York, New York

40