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Perez v. New York State Office of Temporary and Disability Assistance

United States District Court, S.D. New York

June 30, 2015

RAFAEL PEREZ, Plaintiff,

Fausto E. Zapata, Jr., Esq., Kelly Ann Taddonio, Esq., The Law Offices of Fausto E. Zapata, Jr., P.C., New York, New York, for Plaintiff.

Linda Fang, Assistant Attorney General, Office of the Attorney General, New York, New York, for Defendant.


SHIRA A. SCHEINDLIN, District Judge.


Rafael Perez brings suit against the New York State Office of Temporary and Disability Assistance ("OTDA"), alleging discrimination, hostile work environment, and retaliation pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"). [1]OTDA now moves for summary judgment under Rule 56(c) of the Federal Rules of Civil Procedure on the following groU11ds: (1) failure to establish a prima facie case of discrimination; (2) failure to establish that the OTDA's nondiscriminatory reason for termination was pretextual; (3) failure to establish a hostile work environment claim; (4) failure to establish a prima facie case of retaliation; and (5) failure to establish that OTDA's legitimate nonretaliatory justification for termination was pretextual. For the reasons set forth below, OTDA's motion is GRANTED.


For the purposes of this action, Perez identifies as a black and darkskinned male from the Dominican Republic.[2] Perez was employed by OTDA from May 29, 2012 to March 25, 2013 as a probationary Management Specialist Trainee, Level II in the Quality Control Unit ("QC Unit").[3] OTDA's QC Unit is responsible for reviewing and auditing benefit determinations made by the New York City Human Resources Administration for the Supplemental Nutrition Assistance Program.[4] Perez was supervised by Hassan Arshad from May 29, 2012 to early December 2012[5] and by Akoue Ajavon from December 7, 2012 until his termination on March 25, 2013.[6] Mildred Bonilla was the manager to whom Arshad and Ajavon reported during this period.[7]

A. Allegations of Discrimination and Hostile Work Environment

Perez contends that disparate treatment and discrimination by Arshad began during his training session.[8] Perez was hired in a group of five employees, [9] all of whom were subjected to the same probationary period.[10] Upon hire, the new employees were required to participate in a week-long training class led by Arshad, [11] followed by on-the-job training.[12] Perez contends that Arshad did not properly distribute training materials to him during the initial training.[13] Perez alleges that, unlike the other new hires, he was not given an organized binder, and that this contributed to his appearance of disorganization.[14] As a result, Arshad became frustrated with Perez during training.[15] Perez claims that Arshad's frustration toward him contributed to his belief that he was being mistreated.[16]

Perez further alleges that both Arshad and Ajavon created new rules that only applied to him.[17] Beginning with the second set of cases assigned to him, Perez fell behind in submitting his work.[18] As completion of his cases became increasingly delayed, Perez was told by Arshad that he could not go into the field until he finished his current cases.[19] Perez claims that this restriction prohibited him from finishing his work in a timely manner.[20] When Ajavon was made Perez's supervisor in December of 2012, he scheduled weekly meetings to supervise Perez's work.[21] Perez was forbidden from working late and required to report when he arrived, departed, and took breaks.[22] Perez alleges, based on these facts, that he was treated differently than other OTDA employees.

In addition to his claims that Arshad and Ajavon singled him out, Perez also asserts that Bonilla was hostile to him based on a discriminatory comment she made in June 2012.[23] When Perez asked her how she enjoyed her recent visit to the Dominican Republic, she replied, "too many Haitian waiters for my taste."[24] Because Perez is from the Dominican Republic, he found this comment to be "distress[ing]."[25] However, at no point during his employment did Bonilla, Arshad or Ajavon make any comments about Perez's race, color or national origin.[26] Perez concedes that Bonilla, Arshad, and Ajavon did not know that Perez identified as black and that neither Arshad nor Ajavon knew of his Dominican ethnicity.[27]

B. Plaintiff's Internal Complaints to the Office of Equal Opportunity and Diversity

On three separate occasions during his employment, Perez made complaints to Helen Torres, OTDA's Director of Equal Opportunity and Diversity ("EOD"), about alleged harassing behavior and discriminatory conduct on the part of his supervisors.[28] These meetings took place in July 2012, December 2012, and late January 2013.[29] During the first two meetings, Perez made no allegations of discrimination based on color, race, and national origin, but instead complained of conduct that he perceived to be discriminatory based on his age.[30] During his last meeting with Torres, Perez told her that he was being discriminated against and subjected to a hostile work environment based on his national origin.[31] Torres asked Perez to provide additional information to substantiate his claims and Perez failed to do so.[32] Torres conducted an investigation and wrote a report concluding that Perez's allegations were unfounded.[33] Torres only reported the first complaint to Bonilla.[34] The two later complaints were not shared with Bonilla, Arshad or Ajavon.[35]

C. Plaintiff's Negative Performance Evaluations

During this period, no other probationary employee or QC Unit reviewer made errors to the same extent or submitted cases as late as Perez did.[36] OTDA offers two examples. On one occasion, six months after he began working, Perez created his own letterhead, and distributed a request, providing inaccurate contact information and mislabeling OTDA as "New York State Office of Disability and Temporary Assistance."[37] Later, Perez conducted an interview during which he referred to the client by the incorrect surname.[38]

Perez received two negative performance evaluations. The first reflected the period May 29, 2012 to October 30, 2012, in which Perez's performance was listed as "need[ing] improvement."[39] Perez's second and final evaluation on March 8, 2013[40] was similarly negative and recommended his termination, [41] effective March 25, 2013.[42] The evaluations outlined Perez's problems with "keeping organized, following directions..., and completing assignments on time and without making frequent errors."[43] OTDA proffered the negative performance evaluations, in addition to the aforementioned work errors, as justifications for Perez's termination.[44]

D. Procedural History

In December 2013, Perez received a Notice of Right to Sue letter from the Equal Employment Opportunity Commission ("EEOC").[45] This action was brought within ...

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