Employer's prior concerns about a plaintiff's job performance can undermine the inference of retaliation

A well-known principle guiding retaliation claims under the anti-discrimination laws goes something like this: if the employer has been thinking of terminating the plaintiff even before the plaintiff engages in protected activity, and the employer then fires the employee shortly after he engages in that protected activity, there is no prima facie case of retaliation because the plaintiff was on the way out the door anyway. That principle kills off this case.

The case is Perez v. City of New York, issued on April 15. The principal Second Circuit case on the issue of pre- and post-protected activity motives is Slattery v. Swiss Reinsurance, 248 F.3d 87 (2d Cir. 2001). The Court in Slattery stated that temporal proximity between a plaintiff’s protected activity and a defendant’s adverse employment determination will not prove causation if the adverse employment determination (such as the termination or demotion) was “both part, and the ultimate product, of an extensive period of progressive discipline” that began before the plaintiff’s protected activity. 

In Slattery, the progressive discipline and the reason for the plaintiff's termination related to the same  performance issues. In Perez, the pre- and post-protected activity related to different issues. Prior to Perez's request for a reasonable accommodation, management has issued him a series of negative performance memos. Following the accommodation request, management conducted an investigation into Perez's job application and determined that he had engaged in fraud. Management said it conducted the fraud investigation after looking into Perez's performance issues, triggering questions about the possible fraud. 

I represented Perez on this appeal. I argued that the fraud was unrelated to the prior performance issues such that plaintiff's termination did not grow out of the prior issues but a new concern, the alleged fraud (which plaintiff disputed in any event). The Court of Appeals disagreed, holding that the fraud investigation grew out of the unrelated performance issues and that plaintiff therefore could not make out a prima facie case of retaliation. The Court (Carney, Wesley and Nardini) writes:

1. the record shows that since June 2015, Defendants had been moving towards terminating Perez’s employment in response to the litany of complaints made about his job performance: his “repeated failure to perform [his] duties,” his “disturbing” behavior, and his “incompetence.” Defendants ultimately terminated Perez in April 2016, citing fraud—his denial and nondisclosure of past employment issues—that they alleged he committed while applying for employment with DCAS. The record leaves no doubt that his termination grew out of the ongoing disciplinary investigation that Defendants initiated regarding Perez in June 2015, four months before Perez made his reasonable accommodation request, and of which the fraud issue was only the most recent component. Consequently, the mere temporal proximity of Perez’s protected activity and his termination cannot support an inference of the requisite causal connection.

This case extends the Slattery reasoning, or at least that is how I argued it. The Court of Appeals did not see it that way. Below is the Law 360 write-up on the case: 

2nd Circ. Topples NYC Engineer's ADA Case

APRIL 16, 2020

Law360 (April 13, 2021, 7:13 PM EDT) -- The Second Circuit on Tuesday tossed a former New York City engineer's suit accusing a city agency of wrongly firing him a few months after he requested a disability accommodation, saying the worker couldn't disprove the city's claim it terminated him for misconduct.

A three-judge panel affirmed a March 2020 summary judgment ruling in favor of New York and its Department of Citywide Administrative Services, saying former employee Gil Perez was clearly fired for poor performance and fraud. The panel further affirmed the firing was not because of his request for a few weeks' notice of schedule changes to help deal with his sleep apnea.

"The record leaves no doubt that his termination grew out of the ongoing disciplinary investigation that defendants initiated regarding Perez in June 2015, four months before Perez made his reasonable accommodation request, and of which the fraud issue was only the most recent component," the panel said in a Tuesday summary order.

Perez sued the city and DCAS in August 2016 claiming discrimination and retaliation under the Americans with Disabilities Act and state law. He appealed only his retaliation claim in April 2020.

But the six months between Perez's disability accommodation request and his firing alone weren't enough to suggest that the request caused him to lose his job, the court found.

The decision turned on the Second Circuit's 2001 ruling in Slattery v. Swiss Reinsurance America Corp. In Slattery, the court held that close timing between protected activity and a negative employment action isn't enough to suggest retaliation if the adverse action was linked to discipline that predated the protected activity.

New York, meanwhile, showed it had been inching toward firing Perez since June 2015 based on problems with his job performance — and an investigation that revealed Perez had failed to disclose previous employment issues when he applied for his DCAS job.

"Perez has failed to adduce sufficient evidence for a jury to infer causation," the panel said, adding, "The record evidence of complaints about Perez's behavior and management's related concerns is overwhelming."

But Stephen Bergstein, partner at Bergstein & Ullrich and an attorney for Perez, told Law360 Tuesday the court took the Slattery standard too far.

Bergstein noted that the DCAS discipline that began before Perez sought a disability accommodation wasn't the root of his firing. Rather, his termination was for something completely different: the city's investigation, which took place later.

"That investigation had nothing to do with negative write-ups. That [investigation] didn't arise prior to the protected activity," Bergstein said. "I'm surprised by this because they're really stretching Slattery beyond what I think is reasonable."

Perez started working for DCAS in November 2012 after resigning from the city's sanitation department. He was disciplined starting in fall 2014 for poor performance and insubordination, according to court filings.

Perez had sleep apnea and his doctor said a more regular schedule would help, so in October 2015 he requested six weeks' advance notice for future shift changes, according to his brief. He was granted a version of the accommodation six months later, in April 2016, according to court filings.

Meanwhile, the city had begun investigating Perez's departure from the sanitation department and found he had resigned to avoid getting fired, according to the city's appellate brief. However, Perez hadn't disclosed that issue when he applied to DCAS — giving the city reason to fire him, the court found.

A spokesperson for the New York City Law Department did not immediately respond Tuesday to a request for comment.

Judges Richard Wesley, Susan Carney and William Nardini sat on the panel.

Perez is represented by Stephen Bergstein of Bergstein & Ullrich.

New York is represented by Richard Dearing, Claibourne Henry and Scott Shorr of the New York City Law Department.

The case is Perez v. City of New York et al., case number 20-1301, in the U.S. Court of Appeals for the Second Circuit.