Perez v. City Of New York et al

Filing 97

ORDER denying 62 Motion for Partial Summary Judgment; granting 68 Motion for Summary Judgment. For the reasons stated above, Defendants' motion for summary judgment (Dkt. No. 68) is granted as to Plaintiff's claims under the America ns with Disabilities Act, and Plaintiff's cross-motion for summary judgment on these claims (Dkt. No. 62) is denied. The Clerk of Court is directed to close this case and return the matter to the Clerk of the Supreme Court of the State of New York, New York County. (Signed by Judge Paul G. Gardephe on 3/16/2020) (rj) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
GIL V. PEREZ,
Plaintiff,
ORDER
- against 16 Civ. 7050 (PGG)
THE CITY OF NEW YORK and
DEPARTMENT OF CITYWIDE
ADMINISTRATIVE SERVICES,
Defendants.

PAUL G. GARDEPHE, U.S.D.J.:
Plaintiff Gil Perez claims that Defendants Department of Citywide Administrative
Services ("DCAS") and the City of New York discriminated and retaliated against him on the
basis of his disability, ethnicity, national origin, and sexual orientation in violation of the
Americans with Disabilities Act (the "ADA"), the New York State Human Rights Law (the
"NYSHRL"), and the New York City Human Rights Law (the "NYCHRL"). Defendants
removed the action to this District, and have now moved for summary judgment on all claims
(Def. Br. (Dkt. No. 71)), and Perez has moved for summary judgment with respect to his hostile
work environment and retaliation claims under the ADA. 1 (Pltf. Notice of Mot. (Dkt. No. 62))
For the reasons set forth below, Defendants' motion will be granted with respect to Plaintiff's

1

As noted above, the Complaint pleads ADA claims for hostile work environment and
retaliation. Perez also seeks summary judgment as to certain ADA claims not pled in the
Complaint, however, including claims for failure to offer a reasonable accommodation, and
discriminatory termination. As discussed in more detail below, because these latter claims are
not asserted in the Complaint, they cannot be considered here. See Bal v. Manhattan Democratic
Party, No. 16-CV-2416 (PKC), 2018 WL 6528766, at *2 (S.D.N.Y. Dec. 12, 2018),
reconsideration denied, 2019 WL 1789586 (S.D.N.Y. Apr. 23, 2019) ("[C]ourts in this District
have consistently ruled that it is inappropriate to raise new claims for the first time in
submissions at the summary judgment stage.") (internal quotation marks omitted).

ADA claims, and Perez's motion will be denied. The Court declines to exercise supplemental
jurisdiction over Plaintiff's remaining NYSHRL and NYCHRL claims, which will be remanded
to Supreme Court of the State of New York, New York County.

BACKGROUND
I.

FACTS 2
A.

Perez's Separation from the New York City Housing Authority
In 1994, Perez - a homosexual Hispanic-American of Cuban national origin who

suffers from sleep apnea - started working at the New York City Housing Authority (the
"Housing Authority") as a "contract administrator." (Def. R. 56.1 Stmt. (Dkt. No. 70) ,r,r 2-3,
61) On April 30, 2003, after a disciplinary hearing, the Housing Authority terminated Perez's
employment. (Id.

,r 62)

Later that year, Perez challenged his termination in New York County Supreme
Court. (Id.
(Id.

,r 66)

,r,r 64-65)

On November 18, 2003, the parties entered into a settlement agreement.

Under the settlement agreement, the Housing Authority rescinded Perez's termination

and permitted him to retroactively resign. (Id.

,r 67)

The parties agreed that disciplinary charges

brought against Perez and his termination were to be "expunge[ d]" from his personnel folder,
and the agency's human resources records were to "indicate that Perez resigned, without any

2

To the extent that this Court relies on facts drawn from a pmiy's Local Rule 56.1 statement, it
has done so because the opposing party has either not disputed those facts or has not done so
with citations to admissible evidence. See Giannullo v. City of New York, 322 F.3d 139, 140
(2d Cir. 2003) ("If the opposing party ... fails to controve1i a fact so set fo1ih in the moving
pmiy's Rule 56.1 statement, that fact will be deemed admitted.") (citations omitted). With
respect to the cross-motions, where a non-movant disputes a movant's characterization of cited
evidence, and has presented an evidentiary basis for doing so, the Comi relies on the nonmovant' s characterization of the evidence for purposes ofresolving the motion. See Cifra v.
Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001) (comi must draw all rational factual inferences
in non-movant's favor in deciding summary judgment motion). Unless otherwise indicated, the
facts cited by the Court are undisputed.

2

reference to ... disciplinary charges ... or termination." (Pltf. R. 56.1 Stmt. (Dkt. No. 62-37)

,r 1)
B.

Perez's Separation from the New York City Department of Sanitation
In March 2009, Perez began working for the New York City Department of

Sanitation (the "Sanitation Department") as a mechanical engineer. (Def. R. 56.1 Stmt. (Dkt.
No. 70) ,r 69; Def. Ex. HH (Dkt. No. 69-34) at 2) In a Probation Report dated October 8, 2009,
Sanitation Depaiiment personnel recommended that Perez's employment be terminated. (Def. R.
56.1 Stmt. (Dkt. No. 70)

,r 71; Def. Ex. FF (Dkt. No. 69-32))

The 28-page report asse1is, among

other things, that Perez was unable to perform basic tasks, that he fell asleep on the job, and that
he insulted his colleagues (including by calling some of them "disabled"). (Def. Ex. FF (Dkt.
No. 69-32)) The report concludes as follows:
[I]t has become abundantly clear that Mr. Perez does not possess the core
competencies needed to fulfill the entry level requirements of a Mechanical
Engineer I position. Further, he lacks the desire to apply the training he has
received in order to achieve any improvement in his performance. Additionally,
Mr. Perez' behavior and treatment of others has caused us to have additional
significant concerns. As such, in conjunction with this Probation Report, we are
recommending that Mr. Perez be separated from service with the Department of
Sanitation.
(Id. at 28-29)
In an October 9, 2009 letter to the Sanitation Department, Perez acknowledged
receipt of the Probation Repo1i and requested time to respond to it. (Def. R. 56.1 Stmt. (Dkt. No.
70) ,r,r 72-73; Def. Ex. GG (Dkt. No. 69-33) at 5) In an October 20, 2009 letter, Perez resigned
from the Sanitation Department, effective October 19, 2009. (Def. R. 56.1 Stmt. (Dkt. No. 70)

,r 76)

Because of Perez's resignation, the agency's Employee Review Board never acted on the

recommendation to terminate Perez. (Id.

,r 77)

3

On March 15, 2013, Perez sued the Sanitation Depmiment in New York County
Supreme Court, alleging that he was terminated because of his race, national origin, or perceived
sexual orientation in violation of federal, state, and city law. 3 (Id.

,r 78; Pltf. Ex. 7 (Dkt. No. 62-

9)) In the Complaint, Perez asse1ied that he had been constructively discharged:
Effective October 19, 2009, plaintiff resigned from his employment with
defendant under threat that his employment would be terminated. He resigned as
a "probationary employee," knowing he had no job security, wanting to avoid
having an (unwarranted and unlawful) termination in his employment record. The
resignation, under threat of termination was a constructive termination.
(Def. R. 56.1 Stmt. (Dkt. No. 70) ,r 79 (emphasis omitted); see also Pltf. Ex. 7 (Dkt. No.
62-9) ,r 6) Perez settled his action against the Sanitation Department on March 31, 2014.
(Def. R. 56.1 Stmt. (Dkt. No. 70) ,r 80) There is no evidence in the record suggesting
that, as part of the settlement, the Sanitation Depmiment agreed to purge any of its
records concerning Perez's employment. (Def. Ex. KK (Dkt. No. 69-37))
C.

Perez's DCAS Employment

1.

Application, Hiring, and Background Investigation

In February 2013, Perez began employment as a Stationary Engineer with
defendant DCAS. (Def. R. 56.1 Stmt. (Dkt. No. 70) if 4; Perez Aff., Ex. 32 (Dkt. No. 72) at 12
(listing Perez's "Stmi Date" as "2/10/2013")) Perez's duties and responsibilities included
operating mechanical equipment, such as boilers, air conditioning systems, and fans. (Def. R.
56.1 Stmt. (Dkt. No. 70) if 8)
In connection with his application to DCAS, Perez completed, under oath, a
Comprehensive Personnel Document dated December 12, 2012. (Id.

,r 5)

In completing that

application, Perez answered "No" to the following two questions: (1) "Did you ever resign from
3

Perez's March 15, 2013 lawsuit against the Sanitation Depmiment was filed shmily after he
began employment with DCAS in February 2013.
4

a job while disciplinary action was pending against you?" and (2) "Have you ever resigned from
a job to avoid termination or disciplinary action?" (Def. R. 56.1 Stmt. (Dkt. No. 70) ,r 6; Pltf. R.
56.1 Stmt. (Dkt. No. 62-37) ,r 5; Pltf. Ex. 5 (Dkt. No. 62-7))
DCAS investigator John Boughner conducted a background investigation of
Perez. (Def. R. 56.1 Stmt. (Dkt. No. 70) ,r,r 82-83) On April 15, 2013, Boughner contacted
Nancy Reilly, the Sanitation Department's human resources director, because PRISE- a New
York City electronic database - disclosed that Perez had '"resigned [from the Sanitation
Depaiiment] under charges.'" (Pltf. R. 56.1 Stmt. (Dkt. No. 62-3 7) ,r 7) Boughner asked Reilly
to send him "the charge package and any union stipulation that may have settled the case." (Id.)
Reilly forwarded Boughner's message to her colleague Matthew Hunter, who informed
Boughner that "Perez ... 'resigned under charges' in consequence of violations of the
Department Code of Conduct. ... [H]e also received an overall rating of Unsatisfactory on his
probation report." (Id.

,r 9; Pltf. Ex. 8 (Dkt. No. 62-10))

On April 16, 2013, Boughner responded as follows to Reilly: "Thank you and
your staff for the assistance on Gil Perez. I received the paperwork from Matthew Hunter. In
the 11-pages it appears Mr. Perez was not served official charges before his resignation." (Pltf.
R. 56.1 Stmt. (Dkt. No. 62-37) ,r,r 10, 52; see Def. Ex. JJ (Dkt. No. 63-36) (11-page fax from
Hunter to Boughner)) In an April 23, 2013 letter to Boughner, Perez states: "I was never served
with any charges during or after my employment [with the Sanitation Department], which ended
10-20-2009. Fmiher, to my knowledge, no charges were pending." (Pltf. R. 56.1 Stmt. (Dkt.
No. 62-37) ,r 13; Pltf. Ex. 9 (Dkt. No. 62-11)) At the time, Boughner did not have Perez's
October 9, 2009 letter to the Sanitation Department, in which he acknowledges receipt of the
Probation Rep01i. (Def. R. 56.1 (Dkt. No. 70) ,r 74)

5

On May 6, 2013, DCAS issued a Notice of Personnel Action certifying Perez as
"qualified" for the position of Stationary Engineer. (Id.

~

7) Boughner testified that DCAS

certified Perez because the Sanitation Depaiiment had "not serve[d] a charge packet" on him.
(Id.~ 8; Boughner Dep. (Dkt. No. 69-31) at 12) Because no charges had been served, Boughner
reasoned that Perez had answered the first question truthfully: "Did you ever resign from a job
while disciplinary action was pending against you?" (Boughner Dep. (Dkt. No. 69-31) at 14-15;
Def. R. 56.1 Stmt. (Dkt. No. 70)

~

88; see also Pltf. R. 56.1 Stmt. (Dkt. No. 62-37)

~

12 (Citing

handwritten notation stating that the Sanitation Department "verified candidate resigned under
charges. However, no charges were served."))
There is no evidence that Boughner addressed the truthfulness of Perez's answer
to the second question ("Have you ever resigned from a job to avoid termination or disciplinary
action?") during the 2013 background investigation. For example, Boughner never asked Reilly
or Hunter whether Perez had resigned in lieu of termination. (Pltf. R. 56.1 Stmt. (Dkt. No. 6237)

~~

7, 10 (noting Boughner' s request to Reilly for the "charge package" and Boughner' s

belief that "Mr. Perez was not served official charges before his resignation")) However, the
documents that Hunter sent to Boughner include a two-page Sanitation Department
memorandum stating that Perez had been informed on October 8, 2009 - twelve days before he
submitted his resignation letter - that the Probation Report recommended his termination. (Def.
Ex. JJ (Dkt. No. 63-36))
In conducting his investigation of Perez in 2013, Boughner never learned about
the circumstances of Perez's separation from the Housing Authority and the subsequent lawsuit
that permitted him to resign in lieu of termination. (Def. R. 56.1 Stmt. (Dkt. No. 70)

6

~

68)

2.

Discipline and Transfers at DCAS
Between September 2014 and October 2015

Between September 2014 and October 2015, Perez was issued numerous
disciplinary letters for insubordination and poor performance, and his shifts and assigned
worksites were repeatedly changed. (Def. R. 56.1 Stmt. (Dkt. No. 70) ,r,r 20, 22, 24, 27, 37; Def.
Ex. M (Dkt. No. 69-13)) Defendants maintain that DCAS transfened Perez because of
complaints about his performance and attitude. (Def. R. 56.1 Stmt. (Dkt. No. 70) ,r,r 22-23, 37)
Perez contends that the transfers were the product of unlawful discrimination.
As of September 2014, Perez reported to Senior Stationary Engineer Ricardo
Carone at 2 Lafayette Street in Manhattan. (Def. Ex. M (69-13) at 2) In a September 2, 2014
disciplinary memorandum, Carone states that on August 21, 2014, Perez was "rude" and
"expressed no interest" in helping to resolve a water leak reported by a tenant. (Id.) According
to Carone, "this type of problem should have been easy to determine and assess" and it fell
"within [Perez's] job description." (Id.) "[Perez's] failure to assess the problem and implement
corrective measures, in addition to [his] unprofessional interaction with a client," resulted in the
issuance of the disciplinary memorandum. (Id. at 3)
In a November 17, 2014 disciplinary memorandum, Carone states that Perez did
not obey his instruction to install certain boiler equipment and then refused to answer Carone's
questions about why he had not installed this equipment. (Id. at 4-6) Carone's memorandum
reads as follows:
On 11/12/14 at approximately 2:30 pm, I delivered two Fire Eye Sensor Controls
to Gil Perez. I instructed Mr. Perez to install one Fire Eye Sensor Control for
boiler #2 and to store the second sensor control on the shelf for future use. I
placed both controls on the table directly in front of Mr. Perez. When I returned,
2 1/2 hours later ... both controls were still on the table where I had placed them.
Mr. Perez was in the room typing on his personal laptop. Plugged into his laptop
was an external printer which was plugged into the electrical outlet in the room.

7

Obviously, Mr. Perez was performing personal work during work hours which is
not permissible. I asked him if he had installed the controls to which he answered
that he had not. ... The following day, 11/13/14, at 7:30 am I noticed that the Fire
Eye Sensor Control was not installed nor was the second control put away. Both
units were still on the table where I had placed them the day before. Mr. Perez
failed to follow a direct order to install the sensor.
On the morning of 11/14/14 ... I asked ... whether during his rounds last night
he shut off the lights of any unoccupied rooms and areas throughout the building
as he had been instructed to on 11/03/14 (for energy conservation purposes.) He
responded that he was able to shut off some of the lights but not all them. . .. I
asked him was why he was unable to complete this task. I did not receive a
response. I repeated my question; Mr. Perez responded by saying my name out
loud over the phone, (Richie) and then hung up the phone on me. Immediately
after I went to 2 Lafayette Street. I asked him if he had hung up the phone on me
or whether communication was lost. He did not respond. I repeated the question;
again he did not respond. I then asked if he understood my question and repeated
the question. He again failed to respond. Mr. Perez's failure to respond to me,
his direct supervisor, is insubordination.
I then asked him if he had installed the fire eye sensor control; he did not respond.
I then explained that I needed an answer about the controls. He replied that an
entry was placed in the Log Book and that I would need to read the Log Book for
an answer to my question. I replied that he needed to respond to my question ....
Instead, Mr. Perez stared at me blankly ....
While at 2 Lafayette Street I went to read the Log Book. In the Log Book entry
for November 13, 2014, Mr. Perez wrote that he had "began to install Fire Eye on
#2 boiler and need wiring diagram. Notified Chief." ... Obviously, he had never
contacted me on 11/13/14, and in fact, he didn't answer me when I had asked him
about the fire eye sensor control installation the morning of 11/14/14. His entry
about contacting me is False ....
Mr. Perez is disrespectful. He does not take any initiative with respect to the
work in the mechanical plant, as his title requires ....
(Id. at 4-6) Perez was presented with a copy of this disciplinary memorandum but refused to
sign for it. (Id. at 6)
In about September 2014, DCAS's Director of Discipline Eric Hicks -who
advises supervisors on disciplinary matters - began discussing Perez's "misconduct and
incompetence" with DCAS Deputy Commissioner for Administration Shameka Boyer Overton.

8

(Boyer Overton Deel. (Dkt. No. 75-1) ,r,r 7, 9) Hicks had received complaints from multiple
supervisors about Perez's "performance" and inability to complete "basic station engineering"
tasks, and in "late 2014, early 2015" he began investigating these complaints about Perez's work
performance. (Hicks Dep. (Dkt. No. 62-33) at 6)
In about April 2015, Perez was transferred to the New York State courthouse at
60 Centre Street, where he rep01ied to Senior Stationary Engineer Daniel Maloney. (Perez Aff.
(Dkt. No. 72) ,r 23) In a May 12, 2015 disciplinary memorandum, Maloney complains that Perez
failed to respond to tenant calls the previous day, even though sixteen voicemails had been left
for him. (Def. Ex. M (Dkt. No. 69-13) at 7) In a May 12, 2015 disciplinary memorandum,
Maloney states that Perez refused to turn on lights in his work area, despite being warned that
this presented a safety issue:
As I have informed you part of your duties as the Engineer when entering the
work area is to turn the lights on. You responded to me 2 weeks ago that "you
don't turn lights on and off' .... I informed you of this and told you this was not
only part of your job but a safety concern. By not performing this task you are
not only neglect[ing] your duties but have made the work area ... less safe not
only for yourself but for the subordinates for whom you are responsible.
(Id. at 8)
In a May 13, 2015 disciplinary memorandum, Maloney complains that Perez
refused to respond to a tenant call because of a concern that - if he responded to the call - he
would not be able to clock out on time:
May 12th at approximately 1:05 PM I instructed you to respond to a house call in
room 212 here at 60 Centre Street. You refused stating that "you did not have
sufficient time to answer the call and sign out at 2 PM". There was plenty of time
to go [assess] the situation and repo1i back. Your refusal to answer the call after
being told directly by me to do so is insubordinate.
(Id. at 9)

9

In a May 29, 2015 email to DCAS's Executive Director of Mechanical Operations
Edward O'Donnell, Maloney complains about Perez's poor attitude and refusal to work:
The situation with Gil Perez, is quickly becoming unworkable ....
. . . He rarely resolves anything, rarely picks up the phone and as far as house
calls go he does record them in the log book but only actually goes to 1 or 2 or 3 a
day and most require follow up by others. He is disrespectful to me in front of the
other staff members and today in front of two staff members accused me of
calling him a liar .... I repeatedly have to explain how to operate the equipment
and he always says I never showed him.
Given the amount of equipment in this building and that we are understaffed I
don't see how I can get the job done with this individual.
(Id. at 10-11)
In a June 1, 2015 email to O'Donnell, Maloney again complains about Perez,
stating, inter alia, that Perez had turned off a building's chiller (despite being told to leave it on)
and that Perez's whereabouts were unknown for two hours. (Id. at 12)
In a June 11, 2015 disciplinary memorandum, Maloney states that Perez refused
to answer Maloney's question about his movements:
On Tuesday June 9th while returning to 60 Centre I encountered you coming out
New York, NY 10007 of the Pearl Street entrance with a hand truck. When I
asked you where you were going you did not respond[.] [Y]ou simply pointed
toward Centre Street. Not responding to a direct question from your supervisor is
insubordinate.
(Id. at 14; see also id. at 12 (Maloney's June 1, 2015 email to O'Donnell about this incident, and
O'Donnell's response that Perez "does not appear to be improving"))
On June 11, 2015, Maloney issued three disciplinary letters regarding Perez. The
letters addressed a series of incidents that had occurred over the previous two weeks. (Id. at 1417)

10

On June 1, 2015, Perez had injured himself as a result of his refusal to turn on the
lights:
On Monday June 1 you said you injured yourself tripping in the unlit hallway
between the boiler room entrance and the rotunda area in the sub basement. I
have told you in person and in writing that you should turn the lights on before
entering an area .... [Y]ou are not only behaving unsafely but disregarding my
direct instructions, which is insubordinate.
(Id. at 15)
On May 28, 2015, Perez was not able to adjust a thermostat:
On Thursday May 28th I sent you on a call to room 119. I explained that they
were waim and asked you to adjust the thermostat. A while later you returned to
the chiller room and asked me which way to tum the thermostat to make it
colder. As a Stationary Engineer you are required to operate, maintain and
adjust air conditioning equipment. Adjusting a thermostat is a simple task of
which you should be capable.
However the fact that you were asking how to adjust the Barbara Coleman
thermostat which controls only the steam radiators instead of the distinctly
different Johnson Controls thermostat which I had told you controls the HV AC
shows you are putting no effort into understanding the equipment in this
building.
(Id. at 16)
On May 28, 2015, Perez "failed to take readings on the chiller," even though
Maloney had "explained to [him] the importance of taking the readings." (Id. at 17)
In a June 12, 2015 disciplinary memorandum, Maloney states that Perez failed to
diagnose a simple cooling problem, which Maloney resolved in 10 minutes:
Yesterday I sent you on a house call to room 422; the complaint was "no ac."
When I later asked you if you had resolved the issue you replied that the unit was
on but you didn't know why it wasn't getting cool in the room.
When a second call came in from the same room about an hour and a half later I
responded. The conditions were no ac in either the robing room or the comiroom.
The problem in the robing room was the belt on the supply fan was broken and in
the courtroom the thermostat was not functioning. I diagnosed these two
problems and provided cool air to the courtroom in less than ten minutes. As a

11

Stationary Engineer you should have been able to easily and quickly identify
these problems, as I did.
(Id. at 18)
On June 9, 2009, Director of Discipline Hicks asked O'Donnell to confirm that
Perez had received disciplinary letters concerning his job performance. (Perez Aff. (Dkt. No. 72)
at 96) O'Donnell responded by saying that "all letters were emailed to Mr. Perez." (Id.) "We
need to make sure he received them," Hicks said. "They will not count as prior disciplinary
action unless we can prove he received them." (Id.)
In a June 25, 2015 disciplinary memorandum to Perez, O'Donnell recounts
several performance issues that Maloney had documented over the past several weeks. (Id. at
19-20) O'Donnell warns Perez that continued misconduct will result in disciplinary action:
The aforementioned conduct will not be tolerated by the agency. Your past
actions displayed a lack of judgment and an inability to perform the basic
functions of your job. You received an updated Tasks and Standards on June 1,
2015 to ensure that you are aware of your duties. If anything is unclear or you
need any additional training in performing your duties, you need to notify me as
soon as possible. If you do not contact me, I will assume that you understand
what is required of a Stationary Engineer.
This letter is a warning, and it will be placed in your personnel folder. You are
allowed to respond to it. Any response you submit will also be placed in your
personnel folder.
A repeat of the abovementioned behavior or any misconduct will result in
disciplinary action. If you have any questions or concerns, I am more than willing
to discuss them with you.
(Id. at 20 (emphasis omitted)) When presented with this disciplinary memorandum, Perez
refused to sign for it. (Id.) 4

4

Perez asse1is that disciplinary letters issued to him in or about June 2015 were "a way to
terminate [him] without any form of due process." (Perez Aff. (Dkt. No. 72) ,i,i 54-58)
12

On June 22, 2015, Perez was transferred, and he began reporting to Senior
Stationary Engineer Frank Salzillo. Perez's work sites were 18 Richmond Terrace and 130
Stuyvesant Place in Staten Island. (Perez Aff., Ex. 32 (Dkt. No. 72) at 91) On June 26, 2015,
Salzillo issued the following disciplinary memorandum:
On Tuesday June 23, 2015 I asked you to check an A/C unit at 18 Richmond
Terrace. I asked you to put refrigerant gauges on the unit to determine if it was
low on refrigerant and you never did. This is a failure to perform your duties.
On Tuesday June 23, 2015 I asked Ed Mallien to ask you to inventory the fuses in
the storage room and make a list of each size and how many we have. Later you
informed me that I should contact you directly with any requests .... Ed Mallien
my day engineer can and will be passing messages on to you and I expect you to
respond accordingly. I expect Ed Mallien to do the same ifl ask you to give a
message to him.
On Thursday June 25, 2015 I asked you to check a fan coil unit in room 811. You
informed me that you would gladly go when I give you a key. I explained to you
that this is a secure area of the District Attorney's Office and there is a N.Y.P.D.
Officer on the 7th Fl. 24 hours a day, 7 days a week, that would let you into any
area that requires your access. Again I gave you a direct order to go check this
unit and you refused. The next time you refuse a direct order I will refer you for
disciplinary action.
This letter is a warning, and it will be placed in your personnel folder. You
are allowed to respond to it. Any response you submit will also be placed in
your personnel folder.
A repeat of the abovementioned behavior or any misconduct will result in
disciplinary action. If you have any questions or concerns, I am more than
willing to discuss them with you.

(Def. Ex. M (Dkt. No. 69-13) at 21-22 (emphasis in original)) Perez was presented with a copy
of this document but refused to sign for it. (Id. at 22)
In a September 16, 2015 email to Salzillo, Staten Island Borough Supervisor
Yuen Lee rep01is three other acts of misconduct by Perez. First, Perez had been "sarcastic and
disrespectful" toward Commissioner of Buildings Frank Marchiano when checking the radiator
in his office. (Id. at 30) Second, when a security guard at 130 Stuyvesant Place asked Perez to

13

lower the air conditioning, he replied, "Ifl don't get a parking spot here ... , I'm not lowering
the air conditioning." (Id. at 31) And on September 9, 2019, Perez's conduct was "so disturbing
that it prompted" a city council member's chief of staff to ask Perez to leave the premises, which
he initially refused to do. (Id. at 29) The council member reported to Lee that Perez "was very
rude, had a bad attitude and a nasty mouth." (Id. at 30)
On September 24, 2015, Salzillo directed Perez to no longer report to a floor at
130 Stuyvesant Place occupied by the Richmond County District Attorney's Office due to
complaints about him from the District Attorney's Office Director of Facilities Management and
Security. (Id. at 32; Boyer Overton Deel. (Dkt. No. 75-1)

~

12) Salzillo presented Perez with a

copy of the directive banning him from this area of the building, but Perez refused to sign for it.
(Def. Ex. M (Dkt. No. 69-13) at 32)
In an October 13, 2015 disciplinary memorandum, Salzillo notes that on October
9, 2015, Perez had waited hours before acting on a request to turn on air conditioning, and had
only did so after Salzillo instructed him on how to complete the task:
On Friday October 9, 2015[,] I received a call from Mr. Lee ... at 3:10 PM,
informing me that 130 Stuyvesant Place was ve1y warm and needed the A/C
turned on. He said he called your phone in the engineer's office and left a
message that the building was warm at about 11 :45. I called you (Gill Perez) and
asked you to put the A/C on. You told me that you did not feel comfortable
putting the A/Con, that in the 4 months that you have been there[,] you have
never put the A/C on. You asked me if I could send another Engineer there to put
it on. After coaching you on how to put the A/C on you finally did.
When you were hired[,] you were given a Task and Standards Form to read and
sign. Task# 3 states (Operates, Maintains, and [A]djusts Air Conditioning
equipment) When the tenants in the building [s]tarted calling or when you
noticed the building was warm[,] you should have acted on your own and started
the equipment.
(Id. at 35) Salzillo presented Perez with a copy of the memorandum, but he refused to sign for it.
(Id.)

14

On October 7, 2015, Perez was directed to appear on October 20, 2015, at the
Office of Disciplinary Proceedings at 1 Centre Street in Manhattan. (Def. Ex. M (Dkt. No. 6913) at 33) Salzillo presented Perez with a notice to appear, but he refused to sign for it. (Id.) As
discussed below, although disciplinary charges were drafted against Perez, DCAS Deputy
Commissioner Shamika Ovington informed Director of Discipline Hicks that it might not be
necessary to pursue the disciplinary charges against Perez, because he might be "disqualified." 5
(Hicks Dep. (Dkt. No. 62-33) at 11)
On October 8, 2015, Perez was advised that, effective October 11, 2015, he would
be transferred to another City-owned building in Staten Island. (Def. Ex. I (Dkt. No. 69-9) at 2;
Boyer Overton Deel. (Dkt. No. 75-1)

~

12)

On October 16, 2015, Assistant Director of Facility Operations Daniel Donovan
informed Perez that he had received a complaint that 130 Stuyvesant was "extremely hot." (Def.
Ex. M (Dkt. No. 69-13) at 39) Perez told Donovan that he was having "an extremely stressful
day" given the number of temperature complaints that he had received. (Id.) Donovan asked
Perez "why he did not turn on the absorption system to cool the building." (Id.) Perez said that
"the chillers were turned off several days ago," and he did not know how to turn them on. (Id.)
Donovan responded, "You are telling me that as a two ticket stationary engineer you need to be
shown how to turn on a chiller? You did not turn on the chiller so you neglected your duties."
(Id.)

5

New York State Civil Service Law § 50(4) provides that employees with civil service
protections may be disqualified from their appointment "upon a finding of illegality, irregularity
or fraud of a substantial nature in [their] application." N.Y. Civ. Serv. § 50(4)(h).
15

3.

Alleged Discriminatory Remarks and Conduct

According to Perez, DCAS supervisors discriminated against him on account of
his ethnicity and sexual orientation by repeatedly issuing disciplinary letters to him, and by
changing his shifts and work location. (Perez Dep. (Dkt. No. 69-2) at 12-13; Pltf. Counter R.
56.1 Stmt. (Dkt. No. 74) 124) In support of these allegations, Perez asserts that Carone and
Maloney once called him a "dumb Hispanic." (Pltf. Counter R. 56.1 Stmt. (Dkt. No. 74) 115)
Perez also asserts that on December 10, 2014, Maloney directed him to "stand near a live steam
hose that was caused to burst. It burned [him] and as it burned [him, Maloney] said that was for
... Carone." (Id. 114; Perez Aff. (Dkt. No. 72) 140) Perez claims that Maloney targeted him
because of his ethnicity and sexual orientation. (Pltf. Counter R. 56.1 Stmt. (Dkt. No. 74) 1114,
16)
As evidence of sexual orientation discrimination, Perez claims that Carone once
wrote "derogatory and diminutive" emails about him that "refer[red] to [his] sexual preference"
and accused him of ""acting up."' (Id.

1 17)

Perez also notes that he and a gay colleague (who

staiied work at DCAS on the same day) were transferred more than their colleagues. (Perez Aff.
(Dkt. No. 72) 119, 13) Like Perez, the gay colleague faced disciplinary charges and termination.
(Id. at

81 IV)

demotion. (Id.

Perez also claims that a black co-worker was subjected to multiple transfers and a

117, 9-10, 12, 51; Pltf. Counter R. 56.1
4.

Stmt. (Dkt. No. 74) 15)

Reasonable Accommodation Request

In an October 15, 2015 letter - submitted one week after he was notified of a shift
change - Perez asked DCAS to give him six weeks' notice before any future shift changes on
account of his sleep apnea. (Def. R. 56.1 Stmt. (Dkt. No. 70) 120) Perez's letter states:
I was advised that I would be transferring to a different location with different
work hours .... The advice of transfer was the third in 8 months, without writing,

16

with less than 48 hours notice and to a different shift (time) .... I believe six
weeks advance notice of future transfers would be reasonable ... .
(Def. Ex. I (Dkt. No. 69-9)) Perez included the following note from a physician's assistant:
Mr. Gil Perez suffers from Sleep Apnea. He has had several changes made to his
work shift over the past few months. The constant change is having a deleterious
affect on his sleep cycle and is aggravating his Sleep Apnea. He would benefit
most from no further shift changes. Thank you for your help.
(Pltf. R. 56.1 Stmt. (Dkt. No. 62-37) 122; Pltf. Ex. 14 (Dkt. No. 62-16) at 3) On November 8,
2015, Perez submitted a Reasonable Accommodation Request form, supplementing his request.
(Def. R. 56.1 Stmt. (Dkt. No. 70) 126) 6
DCAS's Diversity and Equal Employment Opp01iunity Officer Belinda French
was initially assigned to address Perez's reasonable accommodation request. (Def. R. 56.1 Stmt.
(Dkt. No. 70) 1~ 31, 44) However, French was then responsible investigating an equal
employment opportunity ("EEO") complaint filed against Perez. (Id.~ 40) Accordingly, in
November 2015, Danielle Banett- DCAS's Executive Director for Training and Diversity
Management- assumed responsibility for addressing Perez's reasonable accommodation
request. (Id.

~~

31, 41-43) Barrett spoke with Perez multiple times, requested follow-up medical

information, and discussed Perez's responsibilities with his supervisors (Salzillo and possibly
O'Donnell). (Id.~~ 46-56; Def. Ex. N (Dkt. No. 69-14); Barrett Dep. (Dkt. No. 69-22) at 9-10)
Perez's doctor submitted a letter on March 16, 2016, and Perez submitted a supplemental letter
on March 31, 2016. (Def. Ex. N (Dkt. No. 69-14))
6

Contrary to Perez's argument, DCAS did not change Perez's shift or work location during the
pendency of his reasonable accommodation request. (Def. R. 56.1 Stmt. (Dkt. No. 70) ~ 30)
Perez argues that his shift changed at one point (Pltf. Opp. (Dkt. No. 73) at 8), but the November
24, 2015 email that he cites for this proposition shows only that his supervisor (Salzillo) planned
to change his shift for two days in early December. (Pltf. Ex. 19 (Dkt. No. 62-21)) There is no
evidence that Perez worked those shifts. In his affidavit opposing Defendants' motion for
summary judgment, Perez makes no reference to any shift change after October 15, 2015. (Perez
Aff. (Dkt. No. 72))
17

On April 26, 2016, Barrett issued a decision granting Perez's reasonable
accommodation request to the extent that Perez would be "afforded no less than two (2) weeks
written notice of any shift change, excluding requests for overtime." (Id.)
Defendants contend that Perez's request for six weeks' notice of any shift change
was not reasonable. They note that Perez was responsible for "maintain[ing] cooling systems,"
and that six weeks "constitutes approximately half the cooling season." (O'Donnell Aff. (Dkt.
No. 69-10)

~~

15-16) Moreover, retirements and resignations - which create vacancies that

necessitate shift changes - "are rarely provided with (6) weeks' notice." (Id.~~ 18-19)
O'Donnell asse1is that six weeks' notice of any shift change would have been "unreasonable
given the operational needs of the Mechanical Operations Division and the responsibilities ofa
stationary engineer." (Id.~ 20) Defendants further note that during Perez's employment with
DCAS, three days' notice for shift and work location changes was standard for Stationary
Engineers. (Def. R. 56.1 Stmt. (Dkt. No. 70)

5.

~

21)

Perez's Decertification and Termination

In November 2015, Director of Discipline Hicks informed Deputy Commissioner
Boyer Ove1ion that Perez's "electronic employment record reflected that in 2009 [he] had
resigned from his position at the Department of Sanitation while under disciplinary charges," and
that Perez had not disclosed this information on his Comprehensive Personnel Document.
(Boyer Overton Deel. (Dkt. No. 75-1)

~

14) In late November 2015, Boyer Overton shared this

information with DCAS' s Deputy General Counsel Sanford Cohen and asked whether Perez
could be "decertified" on this basis. (Def. R. 56.1 Stmt. (Dkt. No. 70) ~~ 92-93) Boyer Overton
was not aware of Perez's reasonable accommodation request. (Boyer Overton Deel. (Dkt. No.

18

75-1) ,i,i 21-23) Cohen suggested that Boyer Overton collect all information concerning Perez's
separation from the Sanitation Department. (Def. R. 56.1 Stmt. (Dkt. No. 70) ,i 94)
DCAS's files contain an unsigned draft document dated November 20, 2015,
entitled "Notice oflnformal Conference [-] Charges and Specifications," with a December 3,
2015 disciplinary hearing date for Perez. (Pltf. Ex. 17 (Dkt. No. 62-19; Pltf. R. 56.1 Stmt. (Dkt.
No. 62-17) ,i 34) DCAS's files also contain an unsigned draft document dated December 20,
2015, entitled "Statement of Charges." (Pltf. Ex. 18 (Dkt. No. 62-20; Pltf. R. 56.1 Stmt. (Dkt.
No. 62-17) ,i 35) Hicks testified that disciplinary charges were not served on Perez because
Hicks learned that he "was going to possibly be disqualified." 7 (Hicks Dep. (Dkt. No. 62-33) at
11, 14; see also Pltf. R. 56.1 Stmt. (Dkt. No. 62-37) ,i,i 37-38)
In December 2015, Boyer Ove1ion received 34 pages of documents from the

Sanitation Depaiiment concerning Perez, which she provided to Cohen. (Def. R. 56.1 Stmt.
(Dkt. No. 70) ,i,i 95-96; Def. Ex. GG (Dkt. No. 69-33)) Included in this package was the 28page Probation Repo1i recommending that Perez be terminated and the October 9, 2009 letter
from Perez confirming receipt of the Probation Report. (Def. R. 56.1 Stmt. (Dkt. No. 70) ,i 97;
Def. Ex. GG (Dkt. No. 69-33)) Neither of these documents was part of the package that Hunter
had provided to Boughner in 2013. (Pltf. R. 56.1 Stmt. (Dkt. No. 62-37) ,i,i 10, 52; Def. Ex. JJ
(Dkt. No. 63-36))
Cohen asked DCAS 's Senior Director of Investigations Kevin Williams to
investigate whether Perez's "No" answer to the question, "Have you every resigned from a job to
avoid termination or disciplinary action?" constituted "fraud of a substantial nature." (Def. R.

7

As noted above, under New York State Civil Service Law § 50(4), employees with civil
service protections may be disqualified from their appointment "upon a finding of illegality,
irregularity or fraud of a substantial nature in [their] application." N.Y. Civ. Serv. § 50(4)(h)
(see also Pltf. Opp. (Dkt. No. 73) at 11; Pltf. Counter R. 56.1 Stmt. (Dkt. No. 74) at 2 n.3)
19

56.1 Stmt. (Dkt. No. 70) 199; Pltf. Ex. 16 (Dkt. No. 62-18)) In a December 21, 2015 email to
Williams, Cohen attached the 34 pages of Sanitation Department documents and stated that she
believed the material showed that Perez had committed "fraud of a substantial nature" when he
answered "No" to the aforementioned question. (Def. Ex. MM (Dkt. No. 69-39); see also Pltf.
R. 56.1 Stmt. (Dkt. No. 62-37) 132)
Boughner was assigned to investigate the issue. (Def. R. 56.1 Stmt. (Dkt. No. 70)

1 100)

During the investigation, Boughner concluded that - based on the Probation Report and

Perez's October 9, 2009 letter acknowledging receipt of the report- Perez had resigned from the
Sanitation Depaiiment in order to avoid termination. (Boughner Dep. (Dkt. No. 69-31) at 25, 2930) DCAS did not have Perez's October 9, 2009 letter when it originally ce1iified Perez in 2013.
(Id. at 29; Def. Ex. JJ (Dkt. No. 63-36)) As a result of Boughner's investigation, DCAS also
learned for the first time that Perez had been terminated by the Housing Authority but was
permitted to resign as part of a settlement agreement. (Def. R. 56.1 Stmt. (Dkt. No. 74) 1168,
104)
DCAS sought an explanation from Perez for the discrepancy between his "No"
response to the question, "Have you ever resigned from a job to avoid termination or disciplinary
action?" and the documents DCAS had recently received from the Housing Authority and the
Sanitation Department. (Id.

11 9, 106, 117)

Perez, through counsel, attempted to explain the

discrepancies in letters dated March 2, 2016 and April 4, 2016, but DCAS did not find his
explanations persuasive. (Id. 11 109-14, 118) DCAS concluded that Perez's settlement with the
Housing Authority permitted him to resign in lieu of termination, and that Perez's October 9,
2009 letter demonstrated that Perez was aware that the Sanitation Department was about to
terminate him at the time he submitted his resignation. (Id. 11 113, 116)

20

On April 26, 2016, DCAS issued a Notice of Personnel Action stating that Perez
was not qualified for the Stationary Engineer position, given that he had obtained the position
through "fraud" and by "falsifl:ying] official NYC employment documents" and "omitt[ing]
pertinent fact(s)." (Id.~ 119; Def. Ex. F (Dkt. No. 69-6)) In a May 2, 2016 letter, DCAS
informed Perez that his employment was terminated effective April 29, 2016. (Def. R. 56.1
Stmt. (Dkt. No. 74)

~

11)

On May 16, 2016, Perez appealed his termination to the New York City Civil
Service Commission. (Id.~ 122) In a September 21, 2016 decision, the Commission affirmed
DCAS's disqualification of Perez based on fraud in the application process. The Commission
concluded that Perez had omitted material facts on the Comprehensive Persom1el Document
when he answered "No" to the question, "Have you ever resigned from a job to avoid
termination or disciplinary action?" (Id. 123) The Commission's decision states:
[Perez's] settlement with [the Housing Authority] permitted him to resign instead
of being terminated, but did not absolve him of the obligation to provide an
affirmative response to the ... question, "Have you ever resigned from a job to
avoid termination or disciplinary action?" His failure to do so supports a
disqualification ... for intentionally making a false statement of a material fact.
Fmiher, the record is clear that there was no settlement in place with [the
Sanitation Depaiiment] when he completed his [Comprehensive Personnel
Document] form for the position of Stationary Engineer on December 12, 2012.
There is no dispute that the October 8, 2009 [Sanitation Department] probation
rep01i recommended termination, that [Perez] received a copy of the report and
had ample time to review it, and that [Perez] resigned on October 20, 2009, the
same day that [the Sanitation Department's] Employee Review Board was to meet
to consider the recommendation. [Perez] did not enter into a stipulation with [the
Sanitation Department] until March 31, 2014, and his failure on December 12,
2012, to report his resignation in lieu of termination in 2009 further supp01is a
disqualification ... for intentionally making a false statement of a material fact.
(Ex. RR (Dkt. No. 69-44) at 5)

21

II.

PROCEDURAL HISTORY
The Complaint was filed on August 25, 2016, in Supreme Cami of the State of

New York, New York County. (Notice of Removal (Dkt. No. 1) ~ 1) The Complaint asserts
causes of action for (1) hostile work environment on the basis of disability, ethnicity, national
origin, and sexual orientation in violation of the NYSHRL and the NYCHRL; (2) unlawful
termination on the basis of disability, ethnicity, national origin, and sexual orientation in
violation of the NYSHRL and the NYCHRL; (3) hostile work environment on the basis of
disability in violation of the ADA; (4) retaliation in violation of the ADA; and (5) breach of
contract based on Defendants' failure to award Perez.certain pension credits. (Cmplt. (Dkt. No.
1-1) ~~ 44-63)
On September 9, 2016, Defendants removed the case to this District. (Notice of
Removal (Dkt. No. 1)) On February 4, 2017, this Court granted Perez's request to sever and
remand the contract claim to state comi. (Order (Dkt. No. 13)) The paiiies then completed
discove1y on Perez's remaining claims. (Dkt. No. 51)
Defendants have moved for summary judgment on all of Perez's claims (Def. Br.
(Dkt. No. 71)), and Perez has cross-moved for summaiy judgment on his ADA claims. 8 (Pltf.
Br. (Dkt. No. 62-34))

8

As noted earlier, Perez asks this Cami to grant him summary judgment based on ADA claims
not pled in the Complaint, including that Defendants discriminated against him by failing to offer
him a reasonable accommodation, and terminating him because of his disability. (Pltf. Br. (Dkt.
No. 62-34) at 14, 18) Because the ADA claims pled in the Complaint do not include claims for
failure to provide a reasonable accommodation and discriminat01y termination, Perez cannot
raise these claims at summaiy judgment. See Byrd v. KTB Capital LLC, No. 6:16-CV-06017
(MAT), 2019 WL 652529, at *4 (W.D.N.Y. Feb. 15, 2019) (in case premised on violations of the
Fair Housing Act ("FHA"), declining to consider new theories of liability under the FHA at
summary judgment; "[i]t is clearly improper for a litigant to assert new claims for the first time
at the summaiy judgment stage"); Bal, 2018 WL 6528766 (noting that it is "inappropriate to
raise new claims for the first time in submissions at the summaiy judgment stage") (internal
22

DISCUSSION
I.

LEGAL STANDARD
Summary judgment is wananted where the moving paiiy shows that "there is no

genuine dispute as to any material fact" and that it "is entitled to judgment as a matter oflaw."
Fed. R. Civ. P. 56(a). "A dispute about a 'genuine issue' exists for summaiy judgment purposes
where the evidence is such that a reasonable jury could decide in the non-movant's favor."
Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008) (quoting Guilbert v. Gardner, 480
F.3d 140, 145 (2d Cir. 2007)). "When no rationaljmy could find in favor of the nonmoving
party because the evidence to support its case is so slight, there is no genuine issue of material
fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd.
P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994) (citing Dister v. Cont'l Grp., Inc., 859 F.2d 1108, 1114
(2d Cir. 1988)). "'[T]hat opposing paiiies assert competing versions of the same event is not in
itself sufficient to preclude summaiy judgment,' in that contradictory testimony only establishes
a 'genuine' issue for trial if it 'lead[ s] to a different legal outcome."' Yi Fu Chen v. Spring

quotation marks omitted); Sec. & Exch. Comm'n v. Yorkville Advisors, LLC, 305 F. Supp.3d
486, 531 (S.D.N.Y. 2018) (ruling that plaintiff "cannot now amend [its] complaint merely by
raising new facts or theories in [its] briefs"); Kizer v. Abercrombie & Fitch Co., No. 12-CV5387 (JS) (AKT), 2018 WL 6106853, at *2 (E.D.N.Y. Nov. 20, 2018) (a "paiiy cannot amend
their complaint simply by alleging new facts and theories in their [summary judgment]
memoranda"); Toussaint v. NY Dialysis Servs., Inc., 230 F. Supp. 3d 198, 214 (S.D.N.Y. 2017),
aff d, 706 F. App'x 44 (2d Cir. 2017) ("'Allowing [plaintiff] to proceed on this new theory of
liability would effectively amend the complaint at the summaiy judgment stage.'") (quoting
Seeman v. Gracie Gardens Owners Corp., 794 F. Supp. 2d 476,482 (S.D.N.Y. 2011));.
Rao v. Rodriguez, No. 14 Civ. 1936 (NGG) (ST), 2017 WL 1214437, at *5 n.8 (E.D.N.Y. Mar.
31, 201 7) (in discrimination action, declining to consider constructive discharge claim raised for
the first time at summary judgment); Alexander v. City of New York, No. 11-CV4638(NG)(MDG), 2014 WL 12829215, at *1, *9 n.12 (E.D.N.Y. Dec. 30, 2014) (in case alleging
race and gender based discrimination and retaliation in violation of federal and state law,
refusing to consider at summary judgment new claim that plaintiff was terminated because of her
race).
23

Tailor, LLC, No. 14 Civ. 218 (PAE), 2015 WL 3953532, at *4 (S.D.N.Y. June 29, 2015) (quoting
K.1ynski v. Chase, 707 F. Supp. 2d 318,322 (E.D.N.Y. 2009)).
In deciding a summary judgment motion, the Court "'resolve[s] all ambiguities,
and credit[ s] all factual inferences that could rationally be drawn, in favor of the party opposing
summary judgment."' Spinelli v. City ofNewYork, 579 F.3d 160, 166 (2d Cir. 2009) (quoting
Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (internal quotation marks and citation
omitted)). However, a "'party may not rely on mere speculation or conjecture as to the true
nature of the facts to overcome a motion for summary judgment. ... [M]ere conclusory
allegations or denials ... cannot by themselves create a genuine issue of material fact where
none would otherwise exist.'" Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (alterations in
original) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)).
"The same standard[s] appl[y] where, as here, the paiiies file[] cross-motions for
summary judgment. ... " Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001).
"[W]hen both parties move for summary judgment, asserting the absence of any genuine issues
of material fact, a comi need not enter judgment for either party. Rather, each party's motion
must be examined on its own merits, and in each case all reasonable inferences must be drawn
against the paiiy whose motion is under consideration." Id. (internal citations omitted).
"In cases based on allegations of [discrimination and] discriminatory retaliation,

courts must use 'an extra measure of caution' in determining whether to grant summary
judgment[,] 'because direct evidence of discriminatory intent is rare and such intent often must
be infe1Ted from circumstantial evidence.'" Thompson v. Morris Heights Health Ctr., No. 09
Civ. 7239 (PAE) (THK), 2012 WL 1145964, at *4 (S.D.N.Y. Apr. 6, 2012) (quoting Schiano v.
Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006)).

24

However, '"the salutary purposes of summary judgment - avoiding protracted,
expensive and harassing trials - apply no less to discrimination [and retaliation] cases than to ...
other areas of litigation."' Abdu-Brisson,v. Delta Air Lines, Inc., 239 F.3d 456,466 (2d Cir.
2001) (quoting Meiri v. Dacon, 759 F.2d 989,998 (2d Cir. 1985)). 'As in any other case, a
plaintiff in a discrimination or retaliation case "must 'do more than simply show that there is
some metaphysical doubt as to the material facts.' [H]e must come forth with evidence sufficient
to allow a reasonable jury to find in [his] favor." Brown, 257 F.3d at 252 (quoting Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,586 (1986)) (internal citations omitted).
"Mere conclusory statements, conjecture or speculation" by the plaintiff will not defeat a
summaiy judgment motion. Gross v. Nat'l Broad. Co., 232 F. Supp. 2d 58, 67 (S.D.N.Y. 2002);
see also Risco v. McHugh, 868 F. Supp. 2d 75, 98 (S.D.N.Y. 2012) ("'[E]ven in the
discrimination context, ... a plaintiff must provide more than conclusory allegations to resist a
motion for summary judgment' ... [and] 'must offer some hard evidence showing that [his]
version of the events is not wholly fanciful."' (quoting Holcomb v. Iona College, 521 F.3d 130,
137 (2d Cir. 2008); Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005))).

II.

ANALYSIS
A.

ADA Hostile Work Environment Claim

1.

Applicable Law

To establish a hostile work environment claim under the ADA, "'a plaintiff must
show that "the workplace is permeated with discriminatmy intimidation, ridicule, and insult that
is sufficiently severe or pervasive to alter the conditions of the victim's employment and create
an abusive working environment.""' Grewal v. Cuneo Gilbert & LaDuca LLP, No. 13 Civ. 6836
(RA), 2017 WL 1215752, at* 11 (S.D.N.Y. Mar. 31, 2017) (quoting Littlejohn v. City of New

25

York, 795 F.3d 297, 320-21 (2d Cir. 2015) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993))); see Fox v. Costco Wholesale Corp., 918 F.3d 65 (2d Cir. 2019) (holding that the
disabled can "assert hostile work environment claims under the ADA"). "' [I]t is axiomatic,"'
however, "'that the plaintiff must show that the hostile conduct occurred because of [his
disability].'" Grewal, 2017 WL 1215752, at *11 (quoting Tolbert v. Smith, 790 F.3d 427,439
(2d Cir. 2015)).

2.

Application

As an initial matter, Perez's hostile work environment claim cannot be premised
on conduct that occurred before October 15, 2015. DCAS first learned of Perez's sleep apnea
when he sought a reasonable accommodation on that date, and submitted a note from a
physician's assistant stating that he suffered from that condition. (Def. R. 56.1 Stmt. (Dkt. No.
70) ~ 20) Accordingly, the numerous disciplinary letters and memoranda that were issued to
Perez between September 2014 and October 2015 for his poor work performance and job-related
misconduct are not evidence of a hostile work environment. 9 See Williams v. New York City

9

One performance-related memorandum is dated October 16, 2015 - a day after Perez's
reasonable accommodation request - but there is no evidence that this memorandum was ever
shown to Perez. (Def. Ex. M (Dtk. No. 69-13) at 38-40) This letter therefore cannot support a
hostile work environment claim. See Davis v. New York Dep't of Corr., 256 F. Supp. 3d 343,
3 54 n. 7 (S .D .N. Y. 2017) ("harassment of which plaintiff was unaware cannot support hostile
work environment") (citing Cestone v. Gen. Cigar Holdings, Inc., No. 00-CV-3686 (RCC) (DF),
2002 WL 424654, at *3 (S.D.N.Y. Mar. 18, 2002)). Moreover, given the countless disciplinary
memoranda and letters issued to Perez before he disclosed his sleep apnea condition, there is no
reason to believe that the October 16, 2015 memorandum was prepared because of Perez's
disability. See Wilkinson v. Nord Anglia Educ. Ltd., No. 17 CIV. 7421 (PAE), 2019 WL
3430662, at *10 (S.D.N.Y. July 30, 2019) ("'[B]ecause the record is replete with undisputed
evidence that Defendant imposed progressive discipline against [plaintiff] well before
September, an inference of discrimination will not arise based solely on the proximity between
her complaint and termination."') (quoting Tomasino v. St. John's Univ., 476 F. App'x. 923, 925
(2d Cir. 2012)); Lee v. Colvin, No. 15 Civ. 1472, 2017 WL 486944, at *15 (S.D.N.Y. Feb. 6,
2017) ("Plaintiffs hostile work environment claim ... fail[s] because he has not shown any
26

Dep't of Educ., No. 18-CV-11621 (RA), 2020 WL 906386, at *6 (S.D.N.Y. Feb. 25, 2020) ("'It
is, of course, elemental that an employer could not have discriminated against a plaintiff because
of her disability if it was unaware that the plaintiff was, in fact, disabled.'") (quoting Cozzi v.
Great Neck Union Free Sch. Dist., No. 05-CV-1389, 2009 WL 2602462, at *14 (E.D.N.Y. Aug.
21, 2009)) (emphasis omitted).
Moreover, none of the alleged post-October 2015 disability-related conduct is
sufficiently severe to constitute a hostile work enviromnent. Perez asserts that DCAS assigned
someone with "a conflict of interest" - an apparent reference to French - to investigate his
reasonable accommodation request. (Pltf. Opp. (Dkt. No. 73) at 20) Although French- who
was investigating an EEO complaint filed against Perez - was briefly responsible for Perez's
reasonable accommodation request, Barrett quickly took over responsibility for Perez's request.
(Def. R. 56.1 Stmt. (Dkt. No. 70)

~~

39, 42-43) And while Perez complains about the delay in

processing his reasonable accommodation request, his shift and worksite were not changed
during the pendency of his request. In sum, nothing in the handling of Perez's reasonable
accommodation request supports his hostile work enviromnent claim. 10 See Dechbeny v. New
York City Fire Dep't, 124 F. Supp. 3d 131, 147 (E.D.N.Y. 2015) ("Comis in this circuit have
found that a delay in the administrative processing of benefits [and paperwork] does not

'linkage or correlation' between the conduct, on the one hand, and a protected characteristic, on
the other.").
10
As noted above, Perez contends - without evidentiary support - that his shift was changed for
two days in early December. (See supra n.6) Even assuming the truth of this unsupported
allegation, it would not suppmi a hostile work enviromnent claim. See Guerrero Toro v.
NmihStar Demolition & Remediation, 366 F. Supp. 3d 449,467 (W.D.N.Y. 2019) ("Work
reassigmnents and rescheduling 'do not rise to the level of an actionable hostile work
enviromnent claim.'") (quoting De la Cruz v. City of New York, 783 F.Supp.2d 622, 644
(S.D.N.Y. 2011)); Smalls v. Allstate Ins. Co., 396 F. Supp. 2d 364, 371 (S.D.N.Y. 2005)
("[R]eceiving unfavorable schedules or work assigmnents ... do not rise to the level of adverse
.
emp 1
oyment act10ns.... ") .
27

generally constitute an adverse employment action.") (collecting cases); Williams v. New York
City Hous. Auth., No. 03-CV-7764, 2008 WL 2695139, at *3 (S.D.N.Y. June 29, 2008), aff'd,
361 F. App'x 220 (2d Cir. 2010) ("A delay in processing paperwork that does not materially
change the terms and conditions of a plaintiff's employment is not an adverse employment
action.").
The Court concludes that Perez has not proffered evidence sufficient to create a
genuine issue of material fact with respect to his ADA hostile work environment claim.
Accordingly, Defendants will be granted summary judgment on that claim.
B.

ADA Retaliation Claim

1.

Applicable Law

Retaliation claims under the ADA are "analyzed under the three-step burdenshifting scheme aiiiculated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973)." Nieblas-Love, 165 F. Supp. 3d at 65-66, 74-75. "First, the plaintiff must
establish a prima facie case of retaliation by showing: '(1) paiiicipation in a protected activity;
(2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a
causal connection between the protected activity and the adverse employment action."' Hicks,
593 F.3d at 164 (quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005)).
"A causal connection in retaliation claims can be shown either '(1) indirectly, by showing that
the protected activity was followed closely by discriminatory treatment, or through other
circumstantial evidence such as disparate treatment of fellow employees who engaged in similar
conduct; or (2) directly, through evidence ofretaliatory animus directed against the plaintiff by
the defendant."' Littlejohn, 795 F.3d at 319 (quoting Gordon v. N.Y.C. Bd. of Educ., 232 F.3d
111, 117 (2d Cir. 2000)).

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Plaintiffs burden in establishing a prima facie case ofretaliation is '" de minimis, '
and 'the comi's role in evaluating a summary judgment request is to determine only whether
proffered admissible evidence would be sufficient to permit a rational finder of fact to infer a
retaliatory motive."' Hicks, 593 F.3d at 164 (quoting Jute, 420 F.3d at 173). "If the plaintiff
sustains this initial burden, 'a presumption ofretaliation arises."' Id. (quoting Jute, 420 F.3d at
173).
At the second step of the McDonnell Douglas analysis, the burden shifts to the
defendant to rebut the presumption ofretaliation "by 'aiiiculat[ing] a legitimate, non-retaliatory
reason for the adverse employment action.'" Ya-Chen Chen v. City Univ. of New York, 805
F.3d 59, 70 (2d Cir. 2015). "If the defendant provides such an explanation, 'the presumption of
retaliation dissipates."' Id. (quoting Jute, 420 F.3d at 173).
At the third and final step of the analysis, "[t]he plaintiff must ... come forward
with [proof that the] non-retaliatory reason is a mere pretext for retaliation." Misas v. N. ShoreLong Island Jewish Health Sys., No. 14 Civ. 08787 (ALC) (DCF), 2017 WL 1535112, at *9
(S.D.N.Y. Apr. 27, 2017) (citation and internal quotation marks omitted). To satisfy this burden,
"the plaintiff must prove 'that the desire to retaliate was the but-for cause of the challenged
employment action,"' Ya-Chen Chen, 805 F.3d at 70 (quoting Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2528 (2013)), and "not simply a 'substantial' or 'motivating' factor in
the employer's decision." See Zann Kwan v. Andalex Grp. LLC. 737 F.3d 834, 846 (2d Cir.
2013) (citing Nassar, 133 S. Ct. at 2526, 2533). "'[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 occun-ed in the absence of the retaliatmy motive." Id. "A plaintiff may prove
that retaliation was a but-for cause of an adverse employment action by demonstrating

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weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered
legitimate, nonretaliatory reasons for its action. From such discrepancies, a reasonable juror
could conclude that the explanations were a pretext for a prohibited reason." Id. (citations
omitted). At the same time, "' [a] reason cannot be proved to be a pretext ... unless it is shown
both that the reason was false, and that discrimination [or retaliation] was the real reason."'
Galimore v. City Univ. of New York Bronx Cmty. Coll., 641 F. Supp. 2d 269, 288-89 (S.D.N.Y.
2009) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,515 (1993)) (alterations in
Galimore).

2.

Application

Defendants concede (see Def. Br. (Dkt. No. 71) at 26), and the Court finds, that
Perez has established the first three elements of a prima facie case: the October 15, 2015
reasonable accommodation request constitutes a protected activity; Defendants knew about that
protected activity; and Perez's termination constitutes an adverse employment action.
As to the fomih element, Perez contends that he was terminated in retaliation for
making his October 15, 2015 reasonable accommodation request. (Pltf. Br. (Dkt. No. 62-34) at
36-37; Pltf. Opp. (Dkt. No. 72) at 7, 10) No reasonable jury could make that finding.
Between September 2014 and October 15, 2015 -when Perez filed his reasonable
accommodation request - multiple DCAS managers at different DCAS locations issued
countless disciplinaiy memoranda and letters to Perez documenting his utter incompetence and
work misconduct. (Def. Ex. M (Dkt. No. 69-13)) Indeed, according to Perez, DCAS was- as
early of June 2015 - creating a paper record that would justify his termination. (Perez Aff. (Dkt.
No. 72) ,i,i 54-58) Consistent with Perez's understanding, in a June 9, 2015 email, Director of
Discipline Hicks asked Director of Mechanical Operations O'Donnell to confirm that Perez had

30

received all disciplinary memoranda and letters up to that point, stating that "[t]hey will not
count as prior disciplinary action unless we can prove he received them." (Perez Aff. (Dkt. No.
72) at 96)
On October 7, 2015, Perez was directed to appear at the Office of Disciplinary
Proceedings in Manhattan on October 20, 2015. (Def. Ex. M (Dkt. No. 69-13) at 33) As
discussed above, disciplinary charges against Perez were ultimately not pursued, because DCAS
managers learned that Perez could be "disqualified" as a result of his lie on the Comprehensive
Personnel Document that he completed when he applied for his DCAS position. (Hicks Dep.
(Dkt. No. 62-33) at 11)
Because Perez was subject to extensive, progressive counseling and discipline
before he filed his reasonable accommodation request on October 15, 2015, he cannot show that
his request for a reasonable accommodation and his termination are causally linl<:ed. Slattery v.
Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001) (no causation where "progressive
discipline" began prior to plaintiffs filing of EEOC charge); Wilkinson, 2019 WL 3430662, at
* 10 ("It is well established that an adverse employment action cannot serve as the basis for a
retaliation claim if the action was set in motion before a plaintiff engaged in protected activity.");
Betterson v. HSBC Bank, USA, N.A., 139 F. Supp. 3d 572,594 (W.D.N.Y. 2015), affd, 661 F.
App'x 87 (2d Cir. 2016) ("As the Second Circuit has made clear, when an adverse employment
action is 'part of an extensive period of progressive discipline,' and "gradual adverse job actions
began well before the plaintiff had ever engaged in any protected activity, an inference of
retaliation does not arise."') (quoting Chinnery v. N.Y.S. Office of Children & Family Servs.,
No. 10 Civ. 882, 2014 WL 1651950, at *12 (S.D.N.Y. Apr. 25, 2014) (citing Slattery, 248 F.3d
at 95)).

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Because Perez has failed to establish a prima facie case, Defendants are entitled to
summary judgment on his retaliation claim. See Williams v. Saint-Gobain Corp., No. 00-CV0502E(SC), 2001 WL 392035, at *2 (W.D.N.Y. Apr. 12, 2001) ("[L]ack of causation is fatal to
establishing a prima facie case of retaliation and, insofar as there can be no genuine issue as to
any material fact with regard to such issue, these claims will be dismissed.").

III.

WHETHER SUPPLEMENTAL JURISDICTION SHOULD
BE EXERCISED OVER PLAINTIFF'S NON-FEDERAL CLAIMS
Federal district courts have supplemental jurisdiction over state and city law

claims "that are so related to claims in the action within such original jurisdiction that they form
pmi of the same case or controversy under Article III of the United States Constitution." 28
U.S.C. § 1367(a). However, "such jurisdiction is discretionary," Vuona v. Merrill Lynch & Co.,
919 F. Supp. 2d 359,393 (S.D.N.Y. 2013) (citing City of Chicago v. Int'l Coll. of Surgeons, 522
U.S. 156, 173 (1997)), and "a district comi 'may decline to exercise supplemental jurisdiction' if
it 'has dismissed all claims over which it has original jurisdiction."' Id. (quoting 28 U.S.C.

§ 1367(c)(3)). "' [I]n the usual case in which all federal-law claims are eliminated before trial,
the balance of factors to be considered under the pendent jurisdiction doctrine - judicial
economy, convenience, fairness, and comity - will point toward declining to exercise jurisdiction
over the remaining state-law claims."' Sefovic v. Mem'l Sloan Kettering Cancer Ctr., No. 15
Civ. 5792 (PAC), 2017 WL 3668845, at *8 (S.D.N.Y. Aug. 23, 2017) (quoting Carnegie-Mellon
Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)) (alterations omitted).
Federal courts often decline to exercise supplemental jurisdiction over NYSHRL
and NYCHRL discrimination claims where, as here, a motion for summmy judgment is granted
as to all federal claims. See,~ Booker v. Soho Studio Corp., No. 17CV5426 (PKC) (SMG),
2020 WL 363912, at *8 (E.D.N.Y. Jan. 22, 2020) ("[I]n light of the Court's dismissal of all of

32

Plaintiffs federal claims in this action, the Comi declines to exercise supplemental jurisdiction
over Plaintiffs remaining NYSHRL and NYCHRL claims, which are dismissed without
prejudice to renew in state court."); Rogers v. Fashion Inst. of Tech., No. 14-CV-6420 (AJN),
2019 WL 4749850, at *1 (S.D.N.Y. Sept. 30, 2019) ("Defendants move for summary judgment
and ... the Court GRANTS Defendants' motion as to all federal claims, and DECLINES to
exercise supplemental jurisdiction over the remaining NYSHRL and NYCHRL claims.")
(emphasis in original); Triana v. Sodexo, Inc., No. 15 Civ. 5895 (RA), 2018 WL 6413151, at *8
(S.D.N.Y. Dec. 5, 2018) (declining to exercise supplemental jurisdiction over NYCHRL claims
after granting defendants summary judgment on federal claims).
Here, "because discovery is complete and because the parties have already briefed
the NYCHRL" and NYSHRL claims, "the parties are 'equipped to present those claims to a state
comi expeditiously"' on remand. Fletcher v. ABM Bldg. Value, No. 14 CIV. 4712 (NRB), 2018
WL 1801310, at *24 (S.D.N.Y. Mar. 28, 2018), affd, 775 F. App'x 8 (2d Cir. 2019) (quoting 28
Mmiin v. Sprint United Mgmt. Co., No. 15 Civ. 5237 (PAE), 2017 WL 5028621, at *4
(S.D.N.Y. Oct. 31, 2017)). Accordingly, the Cami declines to exercise supplementaljurisdiction
over Perez's NYSHRL and NYCHRL claims and remands the case to the state court from which
it was removed.

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CONCLUSION
For the reasons stated above, Defendants' motion for summary judgment (Dkt.
No. 68) is granted as to Plaintiffs claims under the Americans with Disabilities Act, and
Plaintiffs cross-motion for summaiy judgment on these claims (Dkt. No. 62) is denied. The
Clerk of Comi is directed to close this case and return the matter to the Clerk of the Supreme
Comi of the State of New York, New York County.
Dated: New York, New York
March 16, 2020
SO ORDERED.

Paul G. Gardephe
United States District Judge

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