Perez v. City of New York

GIL V. PEREZ, Plaintiff, v. THE CITY OF NEW YORKand DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, Defendants.

16 Civ. 7050 (PGG)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 16, 2020

ORDER

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'sADA 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. FACTS²

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) ¶¶ 2-3, 61) On April 30, 2003, after a disciplinary hearing, the Housing Authority terminated Perez's employment. (Id. ¶ 62)

Later that year, Perez challenged his termination in New York County Supreme Court. (Id. ¶¶ 64-65) On November 18, 2003, the parties entered into a settlement agreement. (Id. ¶ 66) Under the settlement agreement, the Housing Authority rescinded Perez's termination and permitted him to retroactively resign. (Id. ¶ 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 anyreference to . . . disciplinary charges . . . or termination." (Pltf. R. 56.1 Stmt. (Dkt. No. 62-37) ¶ 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) ¶ 69; Def. Ex. HH (Dkt. No. 69-34) at 2) In a Probation Report dated October 8, 2009, Sanitation Department personnel recommended that Perez's employment be terminated. (Def. R. 56.1 Stmt. (Dkt. No. 70) ¶ 71; Def. Ex. FF (Dkt. No. 69-32)) The 28-page report asserts, 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 Report and requested time to respond to it. (Def. R. 56.1 Stmt. (Dkt. No. 70) ¶¶ 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) ¶ 76) Because of Perez's resignation, the agency's Employee Review Board never acted on the recommendation to terminate Perez. (Id. ¶ 77)

On March 15, 2013, Perez sued the Sanitation Department 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. ¶ 78; Pltf. Ex. 7 (Dkt. No. 62-9)) In the Complaint, Perez asserted 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) ¶ 79 (emphasis omitted); see also Pltf. Ex. 7 (Dkt. No. 62-9) ¶ 6) Perez settled his action against the Sanitation Department on March 31, 2014. (Def. R. 56.1 Stmt. (Dkt. No. 70) ¶ 80) There is no evidence in the record suggesting that, as part of the settlement, the Sanitation Department 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) ¶ 4; Perez Aff., Ex. 32 (Dkt. No. 72) at 12 (listing Perez's "Start 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) ¶ 8)

In connection with his application to DCAS, Perez completed, under oath, a Comprehensive Personnel Document dated December 12, 2012. (Id. ¶ 5) In completing that application, Perez answered "No" to the following two questions: (1) "Did you ever resign froma 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) ¶ 6; Pltf. R. 56.1 Stmt. (Dkt. No. 62-37) ¶ 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) ¶¶ 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 Department] under charges.'" (Pltf. R. 56.1 Stmt. (Dkt. No. 62-37) ¶ 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. ¶ 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) ¶¶ 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. Further, to my knowledge, no charges were pending." (Pltf. R. 56.1 Stmt. (Dkt. No. 62-37) ¶ 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 Report. (Def. R. 56.1 (Dkt. No. 70) ¶ 74)

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 Department 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. 62-37) ¶¶ 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) ¶ 68)

2. Discipline and Transfers...