Petition for Writ of Certiorari — Roberto Corral, Petitioner v. Arrow Electronics, Inc.

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APPENDIX A

Docket No.24-2574

United States Court of Appeals for the Second District

APPENNXA

UNITED STATES COURT OF APPEALS

FOR THE

second circuit

At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the

22nd day of July, two thousand twenty-five.

Before:

Eunice C. Lee,

Circuit Judge.

Roberto Corral,

Plaintiff - Appellant,

ORDER

Docket No. 24-2574

vArrow Electronics, Inc.,

Defendant - Appellee.

Appellant, pro se, moves for reinstatement of this appeal which was dismissed on a

briefing default. Appellee opposes the motion.

IT IS HEREBY ORDERED that the motion is DENIED.

For the Court:

Catherine O’Hagan Wolfe,

Clerk of Court

f*/SECOND

APPENDIX B

United States Eastern District of New York. 2:16-cv-04636-JMA-JMW

Case 2:16-cv-04636-JMA-JMW Document 163 Filed 08/15/24 Page 1 of 7 PagelD #: 1990

APPENDIX B

For Online Publication Only

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

------------------------------------------------x

ROBERTO CORRAL,

MEMORANDUM & ORDER

16-CV-04636 (JMA) (JMW)

Plaintiff,

FILED

CLERK

-agamst-

ARROW ELECTRONICS, INC.,

Defendant.

.AZ'I^A.dC} United States District Jud^e*

2:12 pm, Aug 15, 2024

u,s. DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

LONG ISLAND OFFICE

Presently before the Court is the motion for summary judgment by Defendant Arrow

Electronics, Inc., and nro se Plaintiff Roberto Corral’s motion for a third extension oftime to object

to Magistrate Judge James M. Wicks’s May 9,2024, Report and Recommendation (“R&R”) that

the Court grant Defendant’s summary judgment motion. (See Def’s Mot. Summ. J., ECF No. 145;

R&R, ECF No. 157; Pl.’s Mot. Exten. Time, ECF No. 162.) For the reasons explained below, the

Court DENIES Plaintiffs motion, ADOPTS the unopposed R&R, and GRANTS Defendant’s

summary judgment motion. Accordingly, this case is DISMISSED.

BACKGROUND

The Court presumes familiarity with the background of this case as it relates to the merits

of the summary judgment motion. (See R&R, ECF No. 157 at 2-14.) The Court addresses here

the inordinate delays Plaintiff caused with respect to adjudicating the summary judgment motion,

and the repeated extensions of time the Court afforded Plaintiff to file his submissions concerning

that motion.

Plaintiff’s Delays Opposing the Summary Judgment Motion

Defendant served its summary judgment motion on September 1, 2022. (See Def.’s Nov.

7, 2023, Letter Regard. Opp. Summ. J.; ECF No. 140.) The briefing schedule in effect at that time

required Plaintiff to oppose the motion by October 3, 2022. (See Aug. 15, 2022 Order.) Due to

reported health issues, however, Plaintiff received fifteen extensions of time to oppose the motion

Case 2:16-cv-04636-JMA-JMW Document 163 Filed 08/15/24 Page 2 of 7 PagelD #: 1991

over the following thirteen months.1 (See Orders dated Oct. 3,2022, Nov. 23,2022, Dec. 14,2022,

Jan. 25, 2023, Feb. 24, 2023, Mar. 3, 2023, Mar. 23,2023, Apr. 20, 2023, May 11, 2023, May 30,

2023, June 23, 2023, July 30, 2023, Sept. 19, 2023, Oct. 6, 2023, and Oct. 13, 2023.) Those

extensions culminated in an opposition due date of October 31,2023. (See Oct. 13,2023 Order.)

Plaintiff failed to meet that deadline. Instead, at 10:49 PM on the day the opposition was

due, Plaintiff emailed defense counsel that he was “having computer problems.” (ECF No. 140-

8). The next day, defense counsel arranged for Plaintiff to serve his opposition using a file transfer

platform. (Id.) Plaintiff responded that he was unable to upload the opposition due to his computer

issues. (Id.) The following day, defense counsel asked Plaintiff to send a hard copy of the

opposition to defense counsel’s office; Plaintiff declined that request. (Id.) The next day, Plaintiff

assured defense counsel that he “should be able to upload [his opposition] today....” (Id.) Again,

Plaintiff failed to do so.

Seven days after Plaintiff’s opposition was due, and four days after Plaintiff last

communicated with defense counsel, Defendants informed the Court of these circumstances and

requested that the Court deem the motion unopposed. (ECF No. 140). Despite his reported

computer issues, Plaintiff uploaded a responsive letter in which he reported that he “has not been

feeling well” and asked the Court to not yet decide the summary judgment motion. (ECF No.

141.) The Court directed Plaintiff to serve his opposition. (Nov. 17, 2023, Order to Show Cause.)

Plaintiff did so but reported that, due to computer issues, the opposition he served was a draft from

three months earlier. (ECF No. 144.) The Court granted Plaintiff another thirty days to serve an

updated opposition and instructed Defendants to reply to the already-served opposition if Plaintiff

In granting the twelfth extension, the Court ordered that “no further extensions will be granted absent good

cause.” (July 30, 2023, Order.) Plaintiff nonetheless received three more extensions. (See Orders dated Sept. 19,

2023, Oct. 6, 2023, and Oct. 13, 2023.)

Case 2:16-cv-04636-JMA-JMW Document 163 Filed 08/15/24 Page 3 of 7 PagelD #: 1992

failed to comply with the extended deadline. (Nov. 27, 2023, Order.) All told, Plaintiff delayed

opposing the summary judgment motion by over fourteen months.

Plaintiff’s Delays Objecting to the R&R

Judge Wicks specified in the R&R that objections must be filed within fourteen days or

objections would be waived. (See ECF No. 157 at 39-40; see also Pl.’s Consent Receive Electr.

Notif. Filings, ECF No. 126); accord 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2).

On the due date for objections, Plaintiff requested (among other things) additional time to

object to the R&R.2 (ECF No. 159.) The Court granted Plaintiff thirty-one additional days to

object to the R&R. (May 23, 2024, Order.) But as that deadline approached, Plaintiff reported

that he “is not feeling well” due to ongoing difficulties from a medical event that occurred over

two years ago. (ECF No. 160.) Plaintiff requested an extension until August 14, 2024, to object

to the R&R and confirmed that he will “get thejob done” by that date. (ECFNo. 161.) The Court

granted Plaintiff the additional forty-nine days he sought to object to the R&R. (See June 26,

2024, Order.) In doing so, the Court warned that it was granting the “FINAL extension of time to

object to the R&R” and stated that “Plaintiff is warned that the Court will not grant a further

extension of time to object to the R&R. The Court will deem the R&R unopposed absent timely

objections.” (Id.)

One day before the final deadline to object to the R&R, Plaintiff requested a seven-day or

“preferred” fourteen-day extension of time to object to the R&R due to “medical problems” and

because his doctors advised him—at an unspecified time—to obtain medical care. (ECF No. 167

at 1.) Plaintiff’s request attached a doctor’s note dated twelve days earlier. (Id. at 2.) Plaintiff

Plaintiff also requested leave to file, in three months, an additional Local Civil Rule 56.1 statement of material

facts, opposition brief, and sur-reply brief for the summary judgment motion that was already the subject of the R&R.

(ECFNo. 159.) The Court denied those requests. (May 23, 2024, Order.)

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had the R&R for ninety-six days when he filed that request for a further extension of time. (See

R&R, ECF No. 157; Pl.’s Consent Receive Electr. Notif. Filings, ECF No. 126.)

II.

LEGAL STANDARDS

Extending Time to Object to the R&R

Litigants must comply with the Court’s scheduling orders. See Maye v. City of New

Haven, 89 F.4th 403, 408 (2d Cir. 2023) (“[P]arties are not generally free to [submit

filings] . .. whenever or however they please, in direct contravention of a district court’s

scheduling orders.”). “To hold otherwise would undermine the ‘inherent power and responsibility

of district courts to manage their dockets so as to achieve the orderly and expeditious disposition

of cases.’” Id. (quoting In re World Trade Ctr. Disaster Site Litig.. 722 F.3d 483, 487 (2d Cir.

2013)) (brackets omitted).

Parties desiring an extension of time must seek to modify the

scheduling order. To do so, they need to show “good cause” for the extension and obtain “the

judge’s consent.” Fed. R. Civ. P. 16(b)(4).

Reviewing the R&R

The Court “may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see Fed. R. Civ. P.

72(b)(3) (similar). In the absence of any objections, “the district court need only satisfy itself that

there is no clear error on the face of the record.” Estate of Ellington ex rel. Ellington v. Harbrew

Imports Ltd., 812 F. Supp. 2d 186, 189 (E.D.N.Y. 2011) (internal citations omitted). Clear error

lies only where, after examining the record, the Court is “left with the definite and firm conviction

that a mistake has been committed.” Cooper v. Harris, 581 U.S. 285, 309 (2017) (internal

quotation marks omitted). Relatedly, “[w]here parties receive clear notice of the consequences,

failure to timely object to a magistrate’s report and recommendation operates as a waiver of further

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judicial review of the magistrate’s decision.” Smith v. Campbell, 782 F.3d 93, 102 (2d Cir.

2015) (internal citation and quotation marks omitted); see Phillips v. Long Island R.R. Co.. 832 F.

App’x 99,100 (2d Cir. 2021) (same).

Plaintiff’s Pro Se Status

Given his pro se status, the Court construes Plaintiff’s submissions liberally and interprets

them “to raise the strongest arguments that they suggest.” McLeod v. Jewish Guild for the Blind,

864 F.3d 154, 156 (2d Cir. 2017) (per curiam) (quoting Bertin v. United States, 478 F.3d 489, 491

(2d Cir. 2007)). This policy is “driven by the understanding that implicit in the right to self

representation is an obligation on the part of the court to make reasonable allowances to protect

pro se litigants from inadvertent forfeiture of important rights because of their lack of legal

training.”

Id. (quoting Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007)).

This liberal

interpretation of Plaintiff’s submissions, however, “does not exempt [Plaintiff] from compliance

with relevant rules of procedural and substantive law.” E.g„ United States v. Starling, 76 F.4th 92,

99 (2d Cir. 2023) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)); see Faretta v.

California, 422 U.S. 806, 834 n.46 (1975) (similar).

III.

DISCUSSION

Plaintiff’s Motion for a Further Extension of Time to Object to the R&R is Denied

Plaintiffmust show “good cause” to obtain a further extension of time to object to the R&R.

Fed. R. Civ. P. 16(b)(4). “A finding of ‘good cause’ depends on the diligence of the moving party.”

Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 267 (2d Cir. 2009) (quoting

Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000)) (brackets omitted); see

Grochowski v, Phx. Constr., 318 F.3d 80, 86 (2d Cir. 2003). This requires Plaintiff to “show that,

despite [his] having exercised diligence, the applicable deadline could not have been reasonably

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met.” EMA Fin., LLC v. NFusz, Inc., 509 F. Supp. 3d 18, 35 (S.D.N.Y. 2020) (internal quotation

marks omitted); Enzymotec Ltd, v. NBTY, Inc., 754 F. Supp. 2d 527,536 (E.D.N.Y. 2010) (internal

quotation marks omitted).

Plaintiff fails to make that showing. Plaintiff contends that—at an unspecified time—his

doctors advised him to obtain medical care. (ECF No. 167 at 1.) The submitted doctor’s note

reflects a lack of diligence by Plaintiff given that it predates Plaintiffs extension request by twelve

days. (Id. at 2.) In any event, Plaintiff already received two extensions of time that afforded

Plaintiff ninety-seven days to object to the R&R. See supra Section LB. Plaintiff confirmed forty-

nine days before his most recent extension request that he would “get the job done” by the current

objection deadline—which the Court imposed at Plaintiffs request. (ECF No. 161; see June 26,

2024, Order.) The Court made clear that the current deadline is “FINAL” and warned Plaintiff

that “the Court will not grant a further extension of time to object to the R&R, The Court will deem

the R&R unopposed absent timely objections.” (June 26,2024, Order.) “[A]ll litigants, including

pro ses, have an obligation to comply with court orders. When they flout that obligation^] they

must suffer the consequences of their actions.” Baba v. Japan Travel Bureau Inf 1, 111 F.3d 2, 5

(2d Cir. 1997) (quoting McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124

(2d Cir. 1988)) (ellipsis omitted; emphasis added).

Plaintiffs excessive delays end now. See supra Part I. Plaintiffs motion for a further

extension of time to object to the R&R is DENIED. Given Plaintiffs failure to timely file

objections, the R&R is unopposed. See Lue v. JPMorgan Chase & Co., 768 F. App’x 7,9 (2d Cir.

2019) (affirming district court’s treatment of a motion as unopposed due to the pro se plaintiffs

failure to oppose it following repeated extensions of time); see also Dietz v. Bouldin., 579 U.S.

40, 47 (2016) (“[District courts have the inherent authority to manage their dockets ... with a

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APPENDIX B

view toward the efficient and expedient resolution of cases.”); Fed. R. Civ. P. 1 (directing that the

federal rules of civil procedure be “construed, administered, and employed... to secure the

just, speedy, and inexpensive determination of every action and proceeding” (emphasis added)).

The Court Adopts the R&R

The Court has reviewed the record and the unopposed R&R for clear error and, finding

none, adopts the R&R in its entirety as the opinion of the Court.

IV.

CONCLUSION

Plaintiffs motion for an extension of time to object to the R&R is DENIED. The Court

adopts Judge Wicks’s analysis and recommendations set forth in the unopposed R&R.

Accordingly, Defendant’s motion for summary judgment is GRANTED and this case is

DISMISSED. The Clerk of the Court is respectfully directed to close this case.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this

Memorandum & Order would not be taken in good faith and therefore in forma pauperis status is

denied for the purpose of any appeal. See Coppedgev. United States, 369 U. S. 43 8,444-45 (1962).

SO ORDERED.

Dated: August 15, 2024

Central Islip, New York

___________ (Zs/JMA)_____________

JOAN M. AZRACK

UNITED STATES DISTRICT JUDGE

APPENDIX C

Case 2:16-ev-04636-JMA-JMW Document 157

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APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

------------------------------------------------------------------ X

ROBERTO CORRAL,

Plaintiff,

REPORT AND

RECOMMENDATION

-against16-CV-04636 (JMA) (JMW)

ARROW ELECTRONICS, INC.,

Defendant.

-------- ------------------------ --------------------------------- X

APPEARANCES:

Roberto Corral

181 Lakebridge Drive N

Kings Park, NY 11754

PlaintiffAppearing Pro Se

Adam Granek Guttell, Esq.

John J. Porta, Esq.

Henry Scott Shapiro, Esq.

Jackson Lewis P.C.

58 South Service Road, Suite 250

Melville, NY 11747

Attorneysfor Defendant

Jennifer Y. Davis, Esq.

Jackson Lewis P.C.

666 Third Avenue, 29th Floor

New York, NY 10017

Attorneyfor Defendant

WICKS, Magistrate Judge:

Plaintiff Roberto Corral (“Plaintiff” or “Corral”) commenced this action against his

former employer Arrow Electronics, Inc. (“Defendant” or “Arrow”), alleging violations under

Title VII of the Civil Rights Act of 1964,42 U.S.C. §§ 2000e-2000e-17 and the Americans with

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Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12112-12117. (See ECF No. 1.) Specifically,

he alleges claims that: (1) he was discriminated against based upon his national origin

(Ecuadorian) and purported disability (occasional breathing problems and acid reflux); (2) that

Defendant failed to accommodate his claimed disability; and (3) retaliated against him. (AZ);

(see also ECF No. 152.)

Discovery is now complete and before the Court on referral from the Hon. Joan M.

Azrack (see Electronic Order dated Feb. 28,2024) is Defendant’s motion for summary judgment

pursuant to Federal Rule of Civil Procedure 56 (ECF No. 145), which is opposed by Plaintiff

(ECF No. 151).1 For the reasons stated herein, the undersigned respectfully recommends that

Defendant’s motion for summary judgment be GRANTED.

BACKGROUND

A. Factual Background

The following facts are drawn from the parties’ Local Rule 56.1(a) Statements (ECF No.

152) and are uncontested unless otherwise noted.2

1 Although Plaintiff did not file a memorandum in opposition to Defendant’s motion, he filed a 121-page

counterstatement to Defendant’s 56.1 statement and attached various documents as support for his

position. (ECF No. 151.) Plaintiff also did not refute 115 out of the 185 statements in Defendant’s 56.1

statement of undisputed material facts. (See generally ECF No. 151.) In accordance with EDNY Local

Rule 56.2, the required notice to pro se Plaintiff was served (ECF No. 150).

2 Unless otherwise noted, a standalone citation to a party’s Rule 56.1 statement throughout this Report

and Recommendation means that the Court has deemed the underlying factual allegation undisputed. Any

citation to a Rule 56.1 statement incorporates by reference the documents cited in it. Where relevant,

however, the Court may cite directly to an underlying document. The Court has deemed true undisputed

facts averred in a party’s Rule 56.1 statement to which the opposing party cites no admissible evidence in

rebuttal. See Stewart v. Fashion Inst, of Tech., No. 18-cv-12297 (LJL), 2020 WL 6712267, at *8

(S.D.N. Y. Nov. 16,2020) (“‘[P]ursuant to Local Civil Rule 56.1 [the movant’s] statements are deemed to

be admitted where [the non-moving party] has failed to specifically controvert them with citations to the

record.’”) (quotingKnight v. N.Y.C. Hous. Auth., No. 03-cv-2746 (DAB), 2007 WL 313435, at *1

(S.D.N.Y. Feb. 2, 2007)); Lumbermens Mut. Cas. Co. v. Dinow, No. 06-CV-3881 (TCP), 2012 WL

4498827, at *2 n.2 (E.D.N.Y. Sept. 28,2012) (“Local Rule 56.1 requires ... that disputed facts

be specifically controverted by admissible evidence. Mere denial of an opposing party’s statement or

denial by general reference to an exhibit or affidavit does not specifically controvert anything.”). Further,

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1. Defendant’s Place ofEmployment and Plaintiff’s Supervisor

Arrow is “a global provider of products and services to both industrial and commercial

users of electronics, and provides innovative technology solutions to medical transportation, and

telecommunications markets among a range of others.” (ECF No. 148 at 1) (“D’Alessandro

Declaration”).

In June 2013, Richard D’Alessandro assumed the title of Senior Manager of the

Collaboration Infrastructure & Unified Communications Team at Arrow and supervised Plaintiff

around June of 2013. (AZ); (ECF No. 147-3 at 25) (“Pltf. Dep. Tr.”).

2. Plaintiff’s Position with Defendant and Tasks

Plaintiff began working for Arrow as a Network Security Engineer on November 15,

2004. (ECF No. 152 at 17.) He was responsible for “supporting the development of certain

infrastructures and technologies supported by the Collaboration team.” (Id. at 9.)

Among Plaintiff’s day-to-day duties was to manage the CA Service Desk tickets3 to

“ensure[] Arrow’s internal customers have the support they need to complete their job functions

effectively and efficiently.” (D’Alessandro’s Declaration at 1.) The CA Service Desk tickets

were generated by internal employees who submitted incident reports to the Helpdesk for

assistance. (ECF No. 152 at

11.) The Helpdesk was then responsible for distributing the

tickets to Arrow’s departments, including the Collaboration Team, so they can resolve the

to the extent a party improperly interjects arguments and/or immaterial facts in response to facts asserted

by the opposing party, and does not specifically controvert such facts, the Court disregards those

statements. See McFarlane v. Harry’s Nurses Registry, No. 17-CV-06350 (PKC) (PK), 2020 WL

1643781, at *1 n.l (E.D.N.Y. Apr. 2, 2020) (quotingRisco v. McHugh, 868 F. Supp. 2d 75, 85 n.2

(S.D.N.Y. 2012)).

3 CA Service Desk tickets “are cases that the helpdesk receive[s] from customers or other Arrow

employees. They are entered into a system that keeps track of the.. .case number, the username, and the

program.” (Pltf s Dep. Tr. at 7-8.)

3 -

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respective issues. (Id.; see also Pltfs Dep. Tr. at 8.) There were also non-CA requests which

did not get documented but employees like Plaintiff would still be required to resolve those

issues. (ECFNo. 152 at

12.)

Plaintiff was also responsible for other administrative tasks like timely submitting his

own summary of time spent on projects or tasks from week to week into the system known as

Clarity. (Id. at

10.) Inputting this information was necessary for the Team to allocate

resources and costs accordingly. (Id.) When an employee wanted to take time off from work, he

would have to track it in the Defendant’s payroll software. (Id. at

13.)

3. Complaint Against Russo

Plaintiff reached out to his Human Resources (“HR”) representative Christopher Gray to

complain about Collaboration Team Director, Robert Russo’s behavior, stating that his “conduct

was not appropriate.” (Pltf s Dep. Tr. at 12.) In a meeting on May 10,2013, Russo and Plaintiff

discussed the timeliness of certain tasks which Plaintiff attributed to technical difficulties. (Id. at

13.) Plaintiff described Russo’s conduct as “overly offensive and disregarded the quality,

detailed and dedicated work” that he performed. (ECF No. 147-10 at 2) (email between Plaintiff

and Christopher Gray).

4. Treatment While Employed -with Defendant

While working at Arrow, Plaintiff alleges that he was forbidden from:

•

Speaking with executives which affected his performance because at times he needed to

speak with them:

•

Bringing his work laptop to work meetings; and

•

Leaving his home or office unless there were extenuating circumstances when he was oncall, even if there was no work to be done.

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(ECF No. 1.) He states that his other co-workers who performed equivalent functions were not

treated in this manner.

According to Plaintiff, there are several employees that enjoyed more favorable treatment

than he did. First, David Neese and Brian Black, both Infrastructure Engineer Ils, from the

“USA” and do not have a disability were able to take sick days off, communicate with

executives, bring their work laptops in to meetings, transfer projects to others, and go out for

lunch while on-call. (ECF No. 1 at 10.) In addition, John Butera, Principal Engineer from the

“USA” and does not have a disability allegedly received more flexible deadlines for the same

project Plaintiff was working on. (Id.)

Defendant, however, sharply disputes that any other employees were given “favorable

deadlines,” since “timelines are set by business needs and deliverables.” (D’Alessandro

Declaration at 3.)

5. National Origin Discrimination

Plaintiff seemingly points to a few instances of discrimination based on his Ecuadorian

National Heritage. First, he states that Bob Ragusa, another employee under D’Alessandro,

directed a “gross Mexican word with sexual connotations” at Plaintiff each time he saw him.

(ECF No. 152 at 8.) Second, he states that Russo compared him to another employee. (Id.)

And finally, Russo mocked Plaintiff in a congested voice and D’Alessandro sometimes laughed

along. (Id.)

6. Disability Discrimination

Plaintiff states that Defendant discriminated against him based on his “nasal congestion,

acid reflux, asthma and related time off.” (ECF No. 1 at 10.) D’Alessandro in turn states that it

was only in August 2014 that Plaintiff disclosed that acid reflux impacted his job performance.

Case 2.16-CV-04636-JMA-JMW Document 157 Filed 05/09/24 Page 6 of 40 PagelD #: 1941

(D’Alessandro Declaration at 3); (see also ECF No. 147-28 at 2-3) (email exchange between

Steven Vogel from HR and Plaintiff regarding his inability to complete a task due to his acid

reflux and requesting supporting documentation).

7. Failure to Accommodate

Per the Employee Handbook (ECF No. 147-5 at 5), Arrow was to “provide reasonable

accommodations as required by [the ADA] to any qualified employee with a disability.” Further,

the handbook states:

Qualified employees with disabilities may continue in their positions as long as they are

able to perform the essential functions of their job with or without reasonable

accommodations, as denied by state and federal laws, medical evidence indicates the

condition is not a direct threat to themselves or to others, and there is not otherwise an

undue hardship on the business.

(Id.)

Plaintiff alleges that he asked his employer for changes due to his disability on September

3,2014. (ECF No. 1 at 11.) Specifically, he states that he requested to Steven Vogel, Manager

of HR, and D’ Alessandro that he get:

•

Clean air

Reduce the number of work alerts he received at night which disrupted his sleep and

Allow one to two hours for health symptoms to subside related to acid reflux, sinus, and

asthma

(Id.) As a result he received FMLA leave approval for one year from September 3,2014 to

September 2, 2015 for one day per week. (Id.); (see also ECF No. 1 at 15) (FMLA approval

letter).

Overall, Defendant claims that it made accommodations for Plaintiff every time he

requested one. He had first asked to take some time off to take his son to the doctor. (Pltf. Dep.

Tr. at 71.) He was told by D’Alessandro to request the time from HR. (Id.) Plaintiff

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acknowledged that he cancelled his son’s appointment after D’Alessandro did not approve it

although he was to go to HR as instructed. (Id.)

In a second instance, on Thursday, September 11, 2014, Plaintiff emailed D’ Alessandro

informing him of a doctor’s appointment on Monday, September 15,2014 in which he would be

leaving by 8:00 AM and returning by 3:00 PM. (ECF No. 151-38.) He asked D’Alessandro

whether he could work from home or take the day off. (ECF No. 1 at 17.)

D’Alessandro responded:

Does this mean you will be coming into the office and working for 2 hours at the end of

the day only?

fETF No. 151 -38.) Plaintiff1 repfiecH

j~7n Monday I have a procedure, I have checked again with the Doctor s ottice. Preferably]

fstay at home but 1 can definitely work from home. I ll be back home trom the Hospital]

I U:3U am. So, it is up to you it 1 work (Preferred) or it you want me to take the

Thankj

Plaintiff did not receive a response from D’ Alessandro, so he opted to work from home,

and worked for 5 hours between 7:30 AM to 6:30 PM and for 3 hours from 8:00 PM to 11:00

PM. (ECF No. 1 at 17.) His only opposition is that he was denied the ability to start his day

later, i.e., after he returned home from the procedure. (Pltf. Dep. Tr. at 76-77.) According to

Plaintiff, he was still expected to complete his standard duties despite his medical procedure. He

says however D’Alessandro told him to remove his time worked in the evening and he was

essentially not paid for those hours. (ECF No. 152 at

15.)

Defendant alleges that Plaintiff did not take off for the hours he was out of the office for

the surgery and worked past his daily end time for the day. D’ Alessandro informed Plaintiff that

“the fact that you worked late that night is not at your discretion to offset the time during the day

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that you were unavailable. That would have to be a discussion during which we would have to

mutually agree on the approach.” The three hours he worked past 5:00 PM was converted to

three hours of vacation. (ECF No. 152 at 118.); (see also ECF No. 147-19 at 2) (emails

between Plaintiff and D’ Alessandro on October 7, 2014); (ECF No. 147-4 at 8, 11)

(“D’ Alessandro Dep. Tr.”) (stating that only the work from after the procedure was approved,

‘not to adjust the start and end[] time of [his] work day”).

for his back pain on January 2,

2015 and could not commute to work. (Pltf. Dep. Tr. at 79.) These issues were not the basis for

his FMLA approved leave he initially received. (Id.) Defendant gave him the option to take a

sick day but he chose to work from home to appease management. (Id. at 80.)

8. Plaintiff’s Work Performance

Defendant cites Plaintiff’s continued failure to improve especially given the comments in

his past evaluations4 and his Performance Improvement Plans (“PIPs”). Plaintiff claims that he

received scores of “Met Expectations Successfully” or “Exceeded Expectations” from 2005 to

2012. (ECF No. 152 at 14.) However, it was only when D’Alessandro became his manager,

that his scores dropped below average in 2013 and 2014. (Id.) Below is a summary of Plaintiff’s

Employee Performance Reviews (“EPRs”) and PIPs from 2011 to 2014:

Document

2011

Rating

3.3 out of 5.0

Areas for Improvement

Plaintiff needed to be more flexible about non-engineering assignments and be open to

understanding management decisionmaking. He was encouraged to better prioritize

and pace out his assigned tasks accordingly in order to meet the committed deadlines

and “have more of a sense of urgency for certain types of requests and service-related

issues including the management for the Collaboration CA Service Desk queue.”

(ECF No. 152 at 19,21.)

4 Notwithstanding, Plaintiff was often credited for positive work conduct too. (See e.g. ECF No. 151-28)

(comment from Russo); (ECF No. 151-29) (comment from Guy Gordon, another employee); (ECF No.

151-30) (positive comments from other employees); (ECF Nos. 151-31, 151-32,151-33) (statements from

Sebastian Karg, Frank Petereins, and Chris Warne commenting on Plaintiff’s work); (ECF No. 151-48)

(commendations from D’Alessandro in November 2013).

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20125

Achieved

Expectations

2013 PIP

2013

Achieved

Expectations

2014 PIP

Plaintiffs time management skills and completion of required administrative tasks

including the management of CA Service Desk tickets and timely submission of his

time sheets—both issues mentioned in 2011. (ECF No. 152 at Tf 28.) Other issues

included his inability to multi-task and parallel process, tracking deadlines, and the

need to take responsibility for his actions. (Id. at 1 35.)

Defendant even followed up to discuss Plaintiffs failure to meet deadlines and

ultimately put Plaintiff on a PIP in May 2013. (Id. at 1 39.) His 2013 PIP areas for

improvement included: multitasking, meeting deadlines, CA service desk and time

sheets, and inability to follow management’s directives. (Id. at 1 45.) The PIP even

recommended a “bi-weekly check in with Russo” to evaluate whether Plaintiff

progressed. (Id. at 1 51.) If Plaintiff failed to improve however, he was on notice that

his employment cold be terminated. (Id. at 1 52.)

The same issues were noted as in the 2011-2012 EPRs and his 2013 PIP—time

management/ability to multitask, following management’s directions, completion of

administrative tasks, including addressing CA tickets timely and closing his

projects/tasks before a deadline (Id. at H 56, 68).

This March 2014 PIP reiterated all the same issues from his 2011, 2012, 2013 EPRs

and his May 2013 PIP: time off and time management6; CA Service Desk and Clarity

Time Sheets; inability to follow managerial direction; and timesheets. (Id. at 1 72.)

He was again put on notice that if he failed to improve, he could be terminated. (Id. at

1171.)

2014

His 2014 performance goals were the same as prior years and included: management

of CA Service Desk Tickets, timely submission of timesheets; and meeting deadlines.

(Id. at 86-87.) Indeed on July 10, 2014 D’Alessandro emailed Plaintiff informing

him that he had 54 open CA tickets but Plaintiff did not respond. (Id. at 188).

D’ Alessandro described Plaintiff’s skill level as “adequate” and stated he had

performance issues in areas such as “time management skills, inability to follow management’s

directives,” “meeting deadlines, managing more than one project at a time, and completing

administrative tasks.” (D’Alessandro Declaration at 2); (ECF No. 152 at 144.) Plaintiff,

however, disputes this stating that he had “excellent technical skills,” was able to multitask on

various things, and often completed projects on or before the deadline. (ECF No. 152 at 1 17.)

5 Arrow changed its EPR software from numerical points in 2012. (ECF No. 152 at 1 25.)

6 Plaintiff failed to submit a status update regarding an IronPort replacement which involved the “remote

installation of a device to process emails” for a Mexican company. (ECF No. 152 at 1 60.) Instead, he

submitted the project plan eight days after the deadline. (Id. at 1 61.) He could not explain why he

missed the deadline. (Id.)

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He further states that he worked more hours on average than any other employee that reported to

D’Alessandro and Russo. (Id.)

Plaintiff did not seek approval for a production change for a “Mobile Iron” project.

(D’Alessandro Declaration at 2.) He further failed to follow managerial instructions and

“applied a security policy change without first testing it,” which prompted users to re-enter their

passwords for their devices to sync to emails calendars, and contacts. (Id. at 2-3.) This was

especially harmful for Arrow because it resulted in a significant amount of CA Service Desk

tickets. (Id. at 3.) Plaintiff, however, states that he followed all of D’Alessandro’s directions on

this and was told there were no downsides or negative impacts for users. (ECF No. 152 at 97.)

Indeed, he says that re-entering the user’s passwords is not unusual. (Id. at 98.)

On December 2, 2014, Plaintiff was instructed to work on open service desk tickets. (Id.

at U 122.) The following events occurred:

•

Plaintiff met with D’ Alessandro around 9:00 AM and discussed his work on the

following priority issues: email delays; digital certificates; Mobilelron administrative

access; and the need for Plaintiff to car pool with a co-worker so he can get his car from

the mechanic (Id.);

•

D’Alessandro sends an email to the Collaboration Team at 10:28 AM instructing them to

work on service desk tickets, although the email arguably did not include a priority label

(AZ);

•

Plaintiff met with Russo to discuss his current tasks and assigned him an additional task

to reboot two failing servers, but Russo did not mention making the CA ticket task a

priority (Id.);

•

Russo sends an email with the priority label at 2:21 PM, while Plaintiff is away from his

desk, stating that working on the CA tickets must be closed out by 5:00 PM (Id. at 51123);

(Pltf. Dep. Tr. at 63);

•

Russo sent a follow up email at 4:50 PM with the priority label further advising the Team

of the CA service desk tickets task. (ECF No. 152 at 124.)

•

Plaintiff left at 5:02 PM to pick up his car at the mechanic and informed D’Alessandro

that most of the tickets assigned to him were “not found” (Id. at 1125);

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•

Plaintiff worked on his tasks, including the CA service tickets, later that evening. (Id. at

II127.)

Plaintiff states that neither D’ Alessandro nor Russo indicated to him in their meetings

that the CA service desk tickets were priority for the day. (Id. at

123.) Further, he states that

Russo did not send the priority email to his paging Collaboration account which was set up for

priority situations like this one. (Id.) He says that the fact that he was away from his desk for a

meeting with Russo coupled with the fact that he was working on other priority tasks, he did not

receive the email regarding the CA service tickets. (Id.) Plaintiff further maintains that if the

matter were a priority and sent via the correct Collaboration email, he would have switched gears

and worked on the CA service tickets. (Id. at

128.)

Defendant alleges that Plaintiff was “the only member of the Collaboration team who

failed to comply with [D’ Alessandro’s] directions and address [Plaintiff’s] CA Service Desk

tickets.” (D’Alessandro Declaration at 3.) Notably, in an email from D’Alessandro to Corral at

8:21 PM on December, 2,2014, D’Alessandro states “[i]n our conversation this morning we

agreed that the tickets should be your priority today and I gave you guidance on the pattern of

issues we experienced yesterday to help you efficiently work on these tickets.” (ECF No. 147-24

at 2) (email exchange between plaintiff and D’Alessandro concerning CA Service Desk Tickets).

Plaintiff responded that he “understood.” (Id.) This means that D’Alessandro did in fact

emphasize the importance of prioritizing the CA Service Desk ticket task.

9. Plaintiff’s Final Warning and Subsequent Termination

Plaintiff was issued a final warning on October 28, 20147 based on his underperformance

and failure to improve. (ECF No. 152 at 99.) All of the issues from his 2011,2012, and 2013

7 One comment that is particularly questionable but has minimal bearing on this case is Russo’s comment

that he did not want to give Plaintiff advanced notice to prepare or create a rebuttal case in relation to his

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EPRs as well as his 2013 and 2014 PIPs and 2014 performance goals were mentioned in this

final warning letter. (Id. at 5 100.) The issues mentioned included: failure to meet deadlines,

failure to follow management’s directives; untimely submission8 and falsification of timesheets.

(Id. at 51101.) Further, Plaintiff failed to meet three deadlines including: testing on a feature by

August 29, 2014; failing to take the lead on a delayed email issue which led to D’Alessandro’s

prompting for a status update nearly a month later (ECF No. 151-9) (email exchange between

D’Alessandro and Corral dated September 19,2014); and failing to test a Mobile Iron upgrade in

September 2014 which resulted in mobile device registration failures. (ECF No. 152 at 1102);

(Pltf. Dep. Tr. at 50.) Plaintiff however, states that the email delays were resolved by the end of

August and the delays occurring in September were because of a separate issue even after the

servers were rebooted. (ECF No. 152 at 5 102.) According to Plaintiff, the delays only recurred

as a result of his not getting to the “root cause” of the problem as he had promised. (Id.); (see

also ECF No. 151-5) (email exchange between D’Alessandro and Corral regarding root cause of

email delays). He states that he provided sound recommendations to D’Alessandro to offset

these delays but management did not heed his advice. (ECF No. 152 at 1102.)

When Plaintiff requested a follow-up meeting to discuss the letter’s contents, he says that

D’ Alessandro told him not to send Pete Crescenzo, the Vice President of Arrow, a meeting invite

final warning letter. (ECF No. 152 at 141); (see also ECF No. 151-45 at 2) (email exchange between

Russo and DeVilliers regarding not giving Plaintiff advance notice). Nor does Defendant dispute the

statement itself. Defendant only opposes the statement asking the Court to find that Russo was not

concealing facts. (ECF No. 152 at 141.) Nonetheless, Russo’s comments do not change the outcome of

this case.

8 Plaintiff states that D’Alessandro agreed to allow Plaintiff to submit his timesheets on Monday instead

of Friday’s afternoon. (ECF No. 152 at 5 104.) He says D’Alessandro wanted to “break this

arrangement” and Plaintiff reverted back to submitting his timesheets Friday afternoon. (Id.); (ECF No.

151-40 at 2) (email exchange between D’Alessandro and Plaintiff in which D’ Alessandro states that it

was a “onetime exception” to allow Plaintiff to submit his timesheet on a Monday rather than a Friday).

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and D’ Alessandro told Plaintiff to stop talking during a meeting when Plaintiff wanted to clarify

the statements. (Id. at 1111.) He was later told not to speak with any executive in Arrow. (Id.)

Plaintiff had until November 4,2014 to state how he planned to resolve these

deficiencies. (ECF No. 154-2 at 4.) He was warned that failure to correct these deficiencies

would result in termination. (ECF No. 152 at |107.) However, Plaintiff only submitted a

response to the final warning letter on November 5,2024. (Id. at

108); (ECF No. 147-22 at 3)

(plaintiff’s response to the final written warning letter). In fact Plaintiff did not refute majority

of D’Alessandro’s comments. (ECF No. 152 at

112, 114.) Notably, Plaintiff did not raise any

issues of discrimination in his November 5th response. (Id. at 1121); (Pltf. Dep. Tr. at 57) (Q:

“Did you send a separate communication to human resources after you received this final written

warning about discrimination and/or retaliation?” A: I don’t recall.”).

On December 5,2014, D’Alessandro recommended to HR that Plaintiff be terminated

upon review of his performance history and PIPs. (D’ Alessandro Declaration at 3); (ECF No.

147-25 at 2) (email from D’Alessandro to DeVilliers regarding Plaintiff’s termination). In

making this decision, D’Alessandro cited Plaintiff’s failure to prioritize CA help desk tickets.

(ECF No. 152 at

131.) HR agreed with D’Alessandro’s recommendation and Plaintiff was

subsequently fired on January 8, 2015 while holding the position of Senior Infrastructure

Engineer III. (D’ Alessandro Declaration at 3.); (ECF No. 1 at 9.)

B. Relevant Procedural Background

On November 3, 2015, Plaintiff filed a Charge of Discrimination with the Equal

Employment Opportunities Commission (“EEOC”) alleging that Defendant discriminated and

retaliated against him based on his national origin and disability in violation of Title VII and the

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ADA. (ECF No. 152 at *[[ 137.) On May 11,2016, the EEOC stated that it was “unable to

conclude that the information obtained establishes violations of the statutes.” (ECF No. 1 at 6.)

Plaintiff commenced this suit on August 10,2016 (ECF No. 1). Magistrate Judge Steven

I. Locke9 held an initial conference with the parties and entered into a scheduling order (ECF No.

16.) Following this, the parties entered mediation (Electronic Order dated Oct. 24, 2018), which

was ultimately unsuccessful in resolving the dispute. (Electronic Order dated Mar. 14,2019.)

Throughout, the Court ruled on several motions to compel (ECF Nos. 56, 57, and 63) as

well as several motions to extend the discovery deadline (ECF Nos. 67, 69, 70, 72, 75, 77,91).

This summary judgment motion followed. Both parties requested several extensions of the

briefing schedule which the Court graciously granted sixteen times—with majority of these

extensions coming from Plaintiff and Defendant requesting an extension for their reply given

Plaintiff’s extension to serve the opposition.10 On February 5,2024, the parties finally bundle-

filed their summary judgment motion papers. (ECF Nos. 145-155.) On February 28, 2024,

Judge Azrack referred the motion to the undersigned for a report and recommendation.

(Electronic Order dated Feb. 28,2024.)

C. The Parties’ Contentions

As can be gleaned from Plaintiff’s counterstatement, he alleges that his purported bad job

performance was a pretext to terminate him based on his national origin and discrimination.

(ECF No. 152 at 2.) Per the Complaint, he claims that he was (1) discriminated against based

9 The case was transferred to the undersigned on May 13,2021. (See Electronic Order dated May 13,

2021.)

10 (See Electronic Orders dated Oct. 3, 2022, Nov. 23, 2022, Dec. 14, 2022, Jan. 25,2023, Feb. 24, 2023,

Mar. 3, 2023, Mar. 23,2023, Apr. 20,2023, May 11, 2023, May 30,2023, June 23,2023, July 30, 2023,

Sept. 19, 2023, Oct. 6, 2023, Oct. 13,2023, and Nov. 27, 2023.)

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on his national origin and disability; (2) not accommodated for his disability; and (3) retaliated

against in response to past complaints.11 The national origin discrimination is based on Ragusa’s

statements to Plaintiff; Russo’s comparison of Plaintiff to another Hispanic employee; and

Russo’s mocking of Plaintiff’s accent and his nasal congestion. (Id. at

140-142); (see also

Pltf. Dep. Tr. At 29-30.)

Defendant however, states that Plaintiffs Title VII discrimination claim based on his

national origin fails because Plaintiff has not established that Defendant’s reason to terminate

Plaintiff was discriminatory. (ECF No. 146 at 8.) Furthermore, Defendant has proffered a

legitimate, non-pretextual reason for terminating Plaintiff—his poor performance which was

emphasized to him in several EPRs and PIPs. (Id.)

Plaintiff also alleges that Defendant violated the ADA when they failed to provide him

with a work-schedule accommodation for his hand surgery or otherwise failed to prove that

making such an accommodation would result in a hardship to Arrow. (ECF No. 152 at 104.)

However, Defendant argues that Plaintiffs other claims fail because he only generally states that

he was terminated based on his purported disability. (ECF No. 146 at 24-25.) His failure to

accommodate claim fails because his purported disability is not recognized under the ADA;

accommodations for his son’s appointment are not covered under the ADA; and Defendant

provided Plaintiff with all reasonable accommodations he sought. (Id. at 25-28.)

Plaintiff alleges he was retaliated against based on a complaint he made combating

Russo’s tight deadlines. Defendant states that Plaintiffs retaliation claim under Title VII and the

ADA likewise fail because there is no protected activity and even if there were, it is too remote

11 Plaintiff also alleged a failure to promote and unequal terms and conditions of his employment but

neither of these were detailed in his counterstatement to Defendant’s 56.1 statement and are not analyzed

by the undersigned. (See generally ECF No. 151.)

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in time to constitute evidence of retaliation; the protected activity was made after Defendant had

placed him on the first PIP; and Plaintiff does not provide controverting evidence regarding

Defendant’s reasons for termination. (ECF No. 146 at 28-30.)

THE LEGAL FRAMEWORK

In order to obtain summary judgment, the movant must demonstrate there is “no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a); see also Radwan v. Manuel, 55 F.4th 101, 113 (2d Cir. 2022). A genuine

dispute of material fact exists “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986).

The initial burden is on the movant to demonstrate the absence of a genuine issue of material

fact, which can be met by pointing to a lack of evidence supporting the nonmovant’s claim.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986); Feingoldv. New York, 366 F.3d 138,

148 (2d Cir. 2004). Once the movant meets its initial burden, the burden shifts and the

nonmovant may defeat the motion only by adducing evidence of specific facts that raise a

genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 250; Davis v. New York, 316

F.3d 93, 100 (2d Cir. 2002).

“The Court is to believe the evidence of the non-movant and draw all justifiable

inferences in her favor, but the non-movant must still do more than merely assert conclusions

that are unsupported by arguments or facts.” Sosa v. New York City Dep’t ofEduc., 406 F. Supp.

3d 266,268 (E.D.N.Y. 2019) (internal citations omitted). The role of the court at the summary

judgment stage is not to resolve disputed issues of fact, but merely undertake an analysis to

identify whether triable issue of fact exist. See Kee v. City ofNew York, 12 F.4th 150, 167 (2d

Cir. 2021). That is, the court’s function is “issue-finding,” not “issue-resolution.” Carolina Cas.

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Ins. Co. v. Cap. Trucking Inc., 523 F. Supp.3d 661, 668 (S.D.N.Y. 2021) (citing Gallo v.

Prudential Residential Servs., Ltd. P’ship 22 F.3d 1219, 1224 (2d. Cir. 1994)). Au fond, the

court’s role is to decide whether, “after resolving all ambiguities and drawing all inferences in

favor of the nonmovant, a reasonable jury could return a verdict for the nonmovant.” Miller v.

N.Y. State Police, No. 20-3976, 2022 WL 1133010, at *1 (2d Cir. Apr. 18, 2022) (citing

Anderson, Ml U.S. at 248 and Garcia v. Hartford Police Dep’t, 706 F.3d 120, 127, 129 (2d Cir.

2013)).

Where, as here, “apro se litigant is involved, although the same standards for summary

judgment apply, the pro se litigant should be given special latitude in responding to a summary

judgment motion.” Laster v. Mancini, No. 07-CV-8265 (DAB), 2013 WL 5405468, at *2

(S.D.N.Y. Sep. 25,2013) (internal quotation marks omitted). It is well settled that pro se papers

are held “to less stringent standards” than those applied to papers drafted by lawyers. See Haines

v. Kerner, 404 U.S. 519, 520 (1972) (applying a less stringent standard to a pro se pleading); see

also Bertin v. United States, 478 F.3d 489,491 (2d Cir. 2007) (“We liberally construe pleadings

and briefs submitted by pro se litigants, reading such submissions to raise the strongest

arguments they suggest.” (internal quotation marks and citations omitted)).

Nonetheless, a pro se party is required to follow the requisites of Rule 56.1. Id. at 2; see

also U.S. v. Pugh, 717 F. Supp. 2d 271, 284 (E.D.N.Y. 2010) (“Nevertheless, proceeding pro se

does not relieve the non-movant from the usual requirements of summary judgment.”). Simply

proceeding pro se “does not exempt a party from compliance with relevant rules of procedural

and substantive law” nor does it “vitiate the requirement that triable issues of fact must be raised

in order to defeat a summary judgment motion.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)

(quotation marks and citation omitted); Miller v. New York City Health Hosp. Corp., No. 00-CV-

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140 (PKC), 2005 WL 2022016, at *3 (S.D.N.Y. Aug. 22, 2005) (citation omitted). Thus, “apro

se party’s ‘bald assertion,’ completely unsupported by evidence, is not sufficient to overcome a

motion for summary judgment.” Lee v. Coughlin, 902 F. Supp. 424,429 (S.D.N.Y. 1995)

(quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991)).

It is within this framework, that the undersigned considers the parties’ submissions.

DISCUSSION

A. Plaintiffs Claim of Discrimination under Title VII

Plaintiff alleges that he experienced discriminatory treatment based on his Ecuadorian

nationality. “Title VII prohibits an employer from discriminating against any individual with

respect to ‘compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex or national origin.’” Haggoodv. Rubin & Rothman, LLC,

No. 14-cv-34L (SJF) (AKT), 2014 WL 6473527, at *7 (E.D.N.Y. Nov. 17, 2014) (citing 42

U.S.C. § 2000e-2(a)(l)). Employment discrimination cases brought under Title VII - where a

plaintiff alleges disparate treatment without direct evidence of discrimination - are analyzed

under the McDonnell Douglas three stage, burden shifting framework. Vega v. Hempstead

Union Free School Dist., 801 F.3d 72, 82-83 (2d Cir. 2015) (citation omitted). A plaintiff

establishes aprima facie discrimination case by showing that “(1) []he is a member of a

protected class; (2) []he is qualified for h[is] position; (3) []he suffered an adverse employment

action; and (4) the circumstances give rise to an inference of discrimination.” Id. (citations

omitted). The defendant-employer then has the burden to show a legitimate, nondiscriminatoiy

reason for the disparate treatment, and if articulated, the burden shifts back to plaintiff to show

the employer’s reason was pretext for discrimination. Id. “Theprima facie case under

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McDonnell Douglas, however, is an evidentiary standard, not a pleading requirement.” LeFrak

Org., Inc., 987 F. Supp. 2d 391, 401 (S.D.N.Y. 2013) (internal quotation and citation omitted).

Here, Arrow states that Plaintiff cannot establish the second and fourth prongs of

discrimination—that he was qualified for his position and that the circumstances demonstrate an

inference of discrimination. Both prongs are analyzed below.

1. Prong Two: Qualification for the Position

The “ultimate inquiry [for the second prong for a discrimination claim] is whether the

performance meets his employer’s legitimate expectations.” Williams v. Alliance Nat’I, No. 98-

CV-7984 (RCC), 2001 U.S. Dist. LEXIS 2904, at *14 (S.D.N.Y. Mar. 19, 2001) (internal

citations omitted). To be qualified for a position, a plaintiff must satisfy the “criteria the

employer has specified for the position.” See v. City ofNew York, No. 20-cv-3954, 2022 U.S.

App. LEXIS 5352 (2d Cir. Mar. 1,2022). Courts typically look to whether the plaintiff shows

“satisfactory job performance at the time of discharge.” Kelepecz v. Child, ’s Learning Ctrs. of

Fairfield Cnty., Inc., No. 21-cv-136 (OAW), 2024 U.S. Dist. LEXIS 45939, at *19 (D. Conn.

Mar. 15, 2024) (citing Thornley v. Penton Publ. Inc, 104 F.3d 26, 30 (2d Cir. 1997)). “The

rationale...is that the employee must demonstrate that his performance warranted continued

employment, thereby raising an inference that some other factor was involved in the decision to

discharge him ....” Stein v. McGraw-Hill, 782 F. Supp. 207, 211 (S.D.N.Y. 1992) (quoting

Powell v. Syracuse Univ., 580 F.2d 1150, 1155 (2d Cir. 1978)). “[C]ourts will rely on the

evaluations the plaintiff received from his or her supervisors in determining satisfactory job

performance.” Williams, 2001 U.S. Dist. LEXIS 2904 at *14. Notably, “a plaintiffs subjective

belief he is qualified will not suffice.” Hamilton v. Elrac, LLC, No. 22-CV-10860 (PGG)

(BCM), 2024 U.S. Dist. LEXIS 18199, at *14 (S.D.N.Y. Jan. 31, 2024).

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In McLee v. Chrysler Corp., 109 F.3d 130 (2d Cir. 1997), the court found that plaintiff

McLee could not establish that his performance was satisfactory because he was deficient in 13

of 22 areas in his 120-day review. Some of those deficiencies included “failure to submit audits

and other paperwork on time” and “inability to solve operational problems.” Id. at 135. Further

and of relevance here, McLee did not dispute the majority of the supervisors’ comments and

offered excuses for his tardiness. Id.

And, in Williams, the court reviewed Alliance’s eight-page job description for the

Operations Manager position and concluded that Williams was not qualified for the position.

Williams, 2001 U.S. Dist. LEXIS 2904 at *14-15. Plaintiff received two warning memos while

employed which put her on notice of her deficiencies and her supervisors further warned her that

she could be terminated if she did not cure these issues. Id. at *15. The court ultimately granted

summary judgment in defendant’s favor in part because plaintiff could not demonstrate she was

qualified for the position. Id. at * 18.

Plaintiff has rated himself as exceeding expectations in several of the EPRs—but this is

not enough to demonstrate he was qualified for the position. Hamilton, 2024 U.S. Dist. LEXIS

18199 at * 14. Here, even viewing the evidence in the light most favorable to pro se Plaintiff, the

undersigned finds that there are several reasons to support a conclusion that Plaintiff did not

possess the basic qualifications for the job at the time of his termination. First, Plaintiff does not

offer any evidence of the criteria Arrow uses for the position he had been hired for (Network

Security Engineer) or the position that he was fired from (Senior Infrastructure Engineer III).

{See generally ECF No. 151); cfKelepecz, 2024 U.S. Dist. LEXIS 45939 at *20 (finding that

according to the submitted job description, plaintiff had the basic skills necessary to perform her

duties as director of development which did not include specific technological skills as defendant

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alleged). Thus, the Court is unable to give credence to Plaintiff’s assessments that he often

exceeded expectations. Second and like McLee, Plaintiff consistently received average

evaluations which identified the same areas of improvement in 2011,2012, and 2013 as well as

his 2013 and 2014 PIPs. (ECF No. 152 at 71.) Further and similar to Williams, Plaintiff was

on notice and even acknowledged that if he did not improve his performance, he would be

terminated. (Id. at^[ 52, 107.)

Plaintiff’s evaluations and subsequent failures to improve are extensive. He has not

created any issues of act as to those, leading to the inescapable conclusion that he was not

qualified for his position at the time he was terminated. No triable issues of fact have been

articulated by Plaintiff, even construing his submissions in the most favorable light.

2. Prong F our: Inference ofDiscrimination

Having found that Plaintiff was not qualified, the Court next turns to whether there is an

inference of discrimination. Plaintiff states that he was discriminated based on his national

origin because (1) a co-worker named Robert Ragusa made dirty comments to him; (2) Russo

compared him to another Hispanic employee; and (3) Russo mimicked his accent. (ECF No. 152

aH 142.)

To establish an inference of discrimination, a plaintiff can show disparate treatment, that

is, when “the employer treated plaintiff less favorably than a similarly situated employee in all

material respects outside his protected group.” Memisevich v. St. Elizabeth’s Med. Ctr., 443 F.

Supp. 2d 276, 286 (N.D.N.Y. 2006). The other employees must be “sufficiently similar to

support at least a minimal inference that the difference of treatment may be attributable to

discrimination.” Anoop M. Tolani v. Carl C. Burnett Funeral Home, Inc., No. 20-CV-2169

(JS)(JMW), 2022 U.S. Dist. LEXIS 142024, at *28 (E.D.N.Y. Aug. 9, 2022).

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An inference of discrimination can also arise from “the employer’s criticism of the

plaintiff s performance in ethnically degrading terms; or its invidious comments about others in

the employee's protected group” or “the sequence of events leading to the plaintiff’s discharge.”

Stewart v. City ofNew York, No. 22-2775,2023 U.S. App. LEXIS 28048 (2d Cir. Oct. 23,2023)

(citing Littlejohn v. City ofNew York, 795 F.3d 297,312 (2d Cir. 2015)). “Actions or remarks

made by decisionmakers that could be viewed as reflecting a discriminatory animus” can also

support this prong. Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996).

Courts consider the following factors when analyzing whether a comment is probative of

discriminatory animus or a mere stray remark: “(1) who made the remark, i.e., a decisionmaker,

a supervisor, or a low-level co-worker; (2) when the remark was made in relation to the

employment decision at issue; (3) the content of the remark...; and (4) the context in which the

remark was made, i.e., whether it was related to the decisionmaking process.” Schreiber v.

Worldco, LLC, 324 F. Supp. 2d 512, 519 (S.D.N.Y. 2004).

Plaintiff has not and cannot point to any similarly situated employees that were treated

more favorably than he was. For example, he makes very attenuated assertions that certain

employees submitted tardy timesheets but were not reprimanded; were allowed to go to Church

before beginning their workday; and were able to take sick days off, communicate freely with

executives, bring their work laptop to meetings, and receive more flexible task deadlines. (ECF

No. 152 at

153-155). However, there is no indication that any of the employees had received

similar comments in their EPRs or were placed on two PIPs. Further, Plaintiff submits

timesheets for several other employees but failed to state what their positions are and whether

their national origins (aside from the fact that they are “American”) compare or contrast to

Plaintiffs. (ECF No. 151-39) (timesheet data); see Tolani, 2022 U.S. Dist. LEXIS 142024 at

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*28 (stating that comparators, or similarly situated employees of a difference race but treated

more favorable, must be similar in in all material respects). Perhaps more critical is the fact that

he submits these hours worked to support his allegation that they too submitted late timesheets

but were never disciplined. However, Plaintiff fails to include any information of these

employees’ timesheet submission dates. (See generally id.)

Further, none of the above circumstances described in Stewart or Schreiber are present

here. Plaintiff has not alleged that D’Alessandro, the author of the EPRs that were allegedly a

pretext for his termination, made any discriminatory comments. (See ECF No. 152 at 9)

(stating that “D’Alessandro maliciously gave to Plaintiff [perverse rates] on [a] pretext basis in

the 2013 and 2014 EPRs”). Indeed, Plaintiff admitted this in his deposition. (Pltf. Dep. Tr. at

35) (Q: “And during that period of time when you reported to Mr. [D’Alessandro] at that point,

were there any comments that he made to you that you believed related to your national]

origin?” A: “No.”). Further, Ragusa—the employee that made the discriminatory comments—

was not in a supervisory role to have made any impact on Plaintiffs continued employment with

Arrow. Finally, Plaintiffs own opposition alludes to Russo’s mimicking because of his nasal

congestion, not because of his Ecuadorian national origin. (ECF No. 152 at 5[ 8.) Even if the

mimicking was based on Plaintiffs Ecuadorian accent, “courts have found the mimicking of a

plaintiffs accent on a random occasion insufficient to support an inference of discrimination

under the McDonnell framework.” Palak v. St. Francis Hosp., No. 14-CV-4383,2015 U.S. Dist.

LEXIS 76511, at *29 (E.D.N.Y. June 12,2015). As a result, these statements are insufficient to

establish a discriminatory intent under Title VII. See Salas v. New York City Dep’t of

Investigation, 298 F. Supp. 3d 676, 687 (S.D.N.Y. 2018) (finding no inference of discrimination

pled where plaintiff did not allege that her supervisors or other management made any statements

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about her religion or disability, or statements indicating such characteristics played a role in

decisions to give plaintiff a warning or deny her a pay raise); Abada v. Delta Air Lines, Inc., Nos.

19-CV-3903 (KAM) (VMS); 19-CV-3904 (KAM) (VMS); 19-CV-3962 (KAM) (VMS), 2020

WL 7481326, at *4 (E.D.N.Y. Dec. 18,2020) (finding that although employees’ derogatory

remarks were disturbing and appeared to “reflect a significant animus on the part of certain...

employees[,]” plaintiff failed to allege that the specific employees were the individuals involved

in the termination of plaintiffs).

Perhaps most notable is that Plaintiff never reported these incidents to HR and did not

come forward with any supporting information or documentation that he did in fact report them.

(ECF No. 152 at

143). Plaintiff’s mere tacking the word of “discrimination” here falls far short

of the mark to support a claim. See Williams, 2001 U.S. Dist. LEXIS 2904 at *17 (finding that

nothing in the record linked the supervisor’s treatment of plaintiff to her race); Kajoshaj v.

N.Y.C. Dept. ofEduc., 543 Fed. App’x. 11, 14 (2d Cir. 2013) (dismissing a complaint that

repeatedly asserted defendants took certain actions based on plaintiffs’ religion and national

origin, because complaint was devoid of factual allegations that would reasonably give rise to

such an inference, as there was nothing asserting that any defendant referenced religion or

national origin); see also Little v. State ofN.Y., No. 96-CV-5132 (SJ), 1998 WL 306545, at *6

(E.D.N.Y. June 8, 1998) (“It is well settled that a plaintiffs speculations, generalities, and gut

feelings, however genuine, when they are not supported by specific facts, do not allow for an

inference of discrimination to be drawn.”).

Finally, all three comments occurred remotely in time, namely, months to years prior to

Plaintiffs termination on January 8, 2015. First, Ragusa’s comments occurred in 2005, second,

Russo’s comparison comment occurred in 2010, and the third incident’s occurrence is unknown.

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(ECF No. 152 at

142.) Courts in this Circuit have found that such comments or circumstances

are insufficient to establish an inference of discriminatory intent. See Hasemann v. United

Parcel Serv. ofAm., Inc., No. 1 l-CV-554,2013 U.S. Dist. LEXIS 25704, 2013 WL 696424, at

*7 (D. Conn. Feb. 26,2013) (“Comments too remote in time and context cannot support an

inference of discriminatory intent.”); Dotson v. New York State Workers Comp. Bd, No. 16-CV-

0580 (MAD) (CFH), 2018 U.S. Dist. LEXIS 35828, at *15 (N.D.N.Y. Mar. 6, 2018) (finding the

alleged discriminatory statement occurred seventeen years prior to the employment actions at

issue and were thus too remote in time).

Therefore, because Plaintiff fails to demonstrate an inference of discriminatory intent, his

Title VII claim based on national origin fails.

3. Defendant Has Established Non-Pretextual Reasons for the Termination and

Plaintiff Has Not Controverted This Evidence

Even if the District Judge disagrees with the undersigned and finds that Plaintiff has

established prongs two and four for his Title VII claim, Defendant has fully supported its nonpre-textual reasons for terminating Plaintiff based on the decline in his work performance over a

series of years. This was evidenced in his 2011,2012,2013 EPRs, and his Final Written

Warning Letter issued on October 28, 2014. (ECF No. 152 at 171); (see also ECF Nos. 147-7,

147-8, 147-9, 147-11,147-13,147-16, and 147-21) (EPRs, PIPs, final warning letter). Further,

Defendant invested time into improving Plaintiff’s performance by placing him on not one, but

two PIPs on May 6,2013 and March 27, 2014 to ensure he would be able to get back on track.

The EPRs and PIPs detailed the same recurring issues: failure to complete administrative tasks

such as CA Service Desk tickets and timesheets, inability to follow management’s directions,

44, 72.) However, Plaintiff failed to

and failure to meet deadlines. (ECF No. 152 at

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demonstrate progress and his supervisors were often faced with Plaintiffs excuses as to why he

was unable to complete tasks as directed.

Indeed, the court in Kennebrew v. N.Y. City Hous. Auth.,Y\o. 01-cv-1654 (JSR) (AJP),

2022 U.S. Dist. LEXIS 3038, at *51 (S.D.N.Y. Feb. 26, 2002) found that plaintiffs poor work

performance which included “unsatisfactory Quarterly Evaluation Reports and four counseling

memos” was a legitimate non-discriminatoiy reason for firing plaintiff. Like the court in

Kennebrew, the court here finds that it cannot “second-guess an employer’s non-discriminatory

business decisions” to fire plaintiff. Id.; see also Young v. Ltd. Brands, No. 1 l-cv-2927 (KBF),

2013 U.S. Dist. LEXIS 144112, at *25 (S.D.N.Y. Sept. 25, 2013) (finding that plaintiffs history

of poor performance and violation of supervisory instructions was a legitimate non-pretextual

reason for her termination and her claim under the Age Discrimination in Employment Act

failed); Govori v. Goat Fifty, L.L.C., 519 Fed. Appx. 732, 734 (2d Cir. 2013) (noting that

plaintiffs “sub-par customer service” was a legitimate reason for her termination).

With regard to the CA Service Desk Tickets specifically, in March 2014, D’Alessandro

emailed Plaintiff about his failure to address CA tickets and Plaintiff responded that there were

“non-stop, time consuming important requests that needed attention.” (ECFNo. 147-14). In

August 2014, D’ Alessandro again emailed Plaintiff about 81 CA Service Desk Tickets that he

had opened. (ECF No. 147-17.) He attributed the delay in completing these tickets to his

multitasking on another project. (Id.) Finally, on December 2, 2014, Plaintiff ignored several

emails between D’Alessandro and Russo about prioritizing CA tickets. (ECF No. 147-24) (CA

Service Desk Ticket emails). Although Plaintiff states some emails either did not have the

“priority label,” were not sent to a certain inbox for escalated tasks, or were otherwise sent when

he was away from his computer, D’ Alessandro spoke with Plaintiff earlier that morning and

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informed him of the importance of closing out the CA Tickets for the day. (See id. at 2.)

(D’Alessandro: “In our conversation this morning we agreed that the tickets should be your

priority today and I gave you guidance on the pattern of issues we experienced yesterday to help

you efficiently work on these tickets.” Plaintiff: “Understood.”). Notwithstanding the emails to

prioritize this task, Plaintiff only began working on the CA Tickets later that evening at 7:50 PM.

(ECFNo. 152 at 127.)

While commendable that Plaintiff would volunteer for projects that were complex, he

often missed deadlines and his manager would often have to follow up with him via email for a

status update. (See e.g., ECF No. 147-12 at 2-3) (emails between Plaintiff, D’Alessandro and

Russo from September 5, 2013). Emails between D’Alessandro and Russo in October 2014 are

particularly relevant here:

Email from Russo to Corral on October 22.2014 at 9:58 AM: “I understand that you are

remote at this point working with Mobileiron. I had a deliverable yesterday to provide an

update on this. My ask to Rick was since you had the device to work with Dave to

facilitate the test before the end of the day. Since that did not happen, I need you to please

test this ASAP with Dave this morning.

Email from D’Alessandro to Corral on October 22.2014 at 10:11 AM: “I called you

yesterday around 3pm and asked you to power on the Widows test device so Dave can

apply the test policy. This was not a time consuming request and should have easily been

accomplished in parallel to your Sentry build activity. It wasn’t until 9pm last night after

a reminder email that you confirmed it was ready to test.”

(ECFNo. 147-20.)

Further, Plaintiff repeatedly claims that he worked more hours than any other employee

reporting to D’Alessandro and Russo. (ECF No. 152 at

120.) But simply working more hours

does not equate to efficiency—in fact, they indicate that he was inefficient at his job. On many

occasions, he also offered excuses for failure to perform and failed to take accountability. (Id. at

^24, 34,40,64,69.)

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Upon Plaintiff s continued failure to improve despite his chances to do so and, most

significantly, the events on December 2, 2014, D’Alessandro emailed HR stating that he wanted

to move forward with his recommendation to terminate Plaintiff. (ECF No. 147-25 at 2.) HR, a

neutral third-party, reviewed Plaintiffs disciplinary history and concurred in the decision to

terminate Plaintiff on January 8,2015.

In short, Plaintiff failed to come forward on his burden to put forth evidence

demonstrating that his termination was pretextual. Failure to do so is fatal to his Title VII claim.

See Jimenez v. Delta Airlines, No. 18-CV-6448 (WFK) (VMS), 2021 U.S. Dist. LEXIS 233004,

at *12 (E.D.N.Y. Oct. 29, 2021) (finding that plaintiff did not rebut defendant’s non-pretextual

reason for his termination and dismissing plaintiffs disparate treatment claim); Kemmott v. N. Y.

City Health & Hosps. Corp., No. 19-CV-989 (RPK) (ST), 2022 U.S. Dist. LEXIS 173654, at

*17-18 (E.D.N.Y. Sept. 26, 2022) (granting summary judgment on plaintiff’s religious

discrimination claim because plaintiff proffered no reasons for the court to find that the

termination based on her insubordination and interpersonal issues was pretextual).

Also significant is that Plaintiff fails to refute 115 out of the 185 statements in

Defendant’s 56.1 statement of undisputed material facts. (See ECF No. 152 at

25-33, 39-84,

135-149,154-185.) Relatedly, Plaintiff either makes blanket statements without support or cites

to documents not turned over in discovery.12 (See e.g., id. at

3, 8, 34, 91, 112) (examples in

which Plaintiff makes blanket statements without support); (see id. at^J 12, 87, 107,153)

(examples in which Plaintiff cites documents that were not exchanged).

12 In fact, Defendant states that Plaintiff improperly downloaded his email server to a personal storage

device and has not returned these files to Defendant. Defendant objects to their admissibility. (ECF No.

152 an 12n.3.)

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Thus, the undersigned finds that Plaintiff has failed to establish his Title VII

discrimination claim and even if he did, Defendant has provided a legitimate, non-pretext reason

for his termination.

B. Plaintiff’s Claim of Discrimination under the ADA

Next, Plaintiff alleges he was discriminated based on his purported disability of breathing

problems, acid reflux and nasal congestion.

Under the ADA, “[n]o covered entity shall discriminate against a qualified individual on

the basis of disability in regard to job application procedures, the hiring, advancement, or

discharge of employees, employee compensationjob training, and other terms, conditions, and

privileges of employment.” 42 U.S.C. § 12112(a). For a plaintiff to prevail on a claim under the

ADA for discrimination, “a plaintiff must demonstrate that (1) [Jhe is a qualified individual with

a disability, (2) the defendant is subject to the ADA, and (3) []he was denied the opportunity to

participate in or benefit from the defendant’s services, programs, or activities, or was otherwise

discriminated against by the defendant because of h[is] disability.” GLD v. City ofNew York,

No. 19-cv-4314 (AT), 2020 U.S. Dist. LEXIS 158432, at *5-6 (S.D.N.Y. Aug. 27, 2020) (citing

McElwee v. Cty. of Orange, 700 F.3d 635, 640 (2d Cir. 2012)). Here, the second element is

undisputed, therefore, the Court analyzes whether there is a genuine dispute of material facts

concerning the first and third elements.

Under the ADA, a disability is defined as: “(1) a physical or mental impairment that

substantially limits one or more major life activities, (2) a record of such an impairment, or (3)

being regarding as having such an impairment.” Quintero v. Rite Aid ofN.Y., Inc., No. 09-cv6084 (JLC), 2011 U.S. Dist. LEXIS 130920, at *24 (S.D.N.Y. Nov. 10, 2011).

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Plaintiff cannot establish any of the foregoing circumstances for his ADA claim. There

was only a single episode in which he was unable to address a CA Service Desk Ticket in July

2014 because of his acid reflux. (ECF No. 152 at

accommodations for this “disability.” (Id. at

159.) However, he had not requested any

160.); see Floden v. Des Moines Indep. Cmty.

Sch. Dist., No. 07-cv-00177 (JAJ), 2008 U.S. Dist. LEXIS 65982, at *17 (S.D. Iowa Aug. 27,

2008) (granting defendant’s motion for summary judgment on plaintiff’s claim in part because

plaintiff never asked defendant “for anything that could have helped [her] do [her] job better

because of problems [she was] having with asthma or acid reflux”). Indeed, this was the first

time that Arrow was apprised that his acid reflux had any impact on his job. (ECF No. 152 at ^[

161.) Aside from the incident in July 2014, Plaintiff has failed to show that his acid reflux

“substantially limits” any major life activity. See 42 U.S.C. § 12102(1); see also Szabo v. City of

New York, No. 16-cv-4268 (LAP), 2017 U.S. Dist. LEXIS 115082, at *12-13 (S.D.N.Y. July 21,

2017) (finding that plaintiff that alleged acid reflux as a disability among others was unable to

show that she was “a qualified person with a disability because she has failed to allege facts

showing that any of her alleged conditions limited a major life activity”); Fisher v. Walt Disney

World Swan & Dolphin, No. 09-cv-719-Orl-31 (DAB), 2010 U.S. Dist. LEXIS 118272, at *20

(M.D. Fla. Oct. 28, 2010) (“Plaintiff is unable to make out aprima facie case under the ADA.

Although Plaintiff alleges that he suffers from “acid reflux and ulcers,” he fails to allege, and the

evidence does not substantiate, that either of these conditions substantially limited a major life

activity. Rather, the record evidence indicates that Plaintiff was able to perform all normal daily

functions and was able to work at all times.”). And, similarly absent from Plaintiffs

counterstatement to the 56.1 statement is any indication that his nasal congestion impacted his

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life to qualify as a disability. Thus, Plaintiff fails to satisfy the first element of his ADA

discrimination claim for either claimed disability.

Nor can Plaintiff establish that he was discriminated against because o/his disability.

And even if Russo’s alleged mimicking of his nasal congestion described above was

discriminatory (ECF No. 152 at 8), “[a] single comment is insufficient to present a triable issue

as to discriminatory motive.” Herron v. New York City Transit, No. 15-CV-4842 (EK) (CLP),

2022 U.S. Dist. LEXIS 63238, at *23 (E.D.N.Y. Apr. 5, 2022) (citing Benson v. Fam. Dollar

Operations, Inc., 755 F. App’x 52, 56 (2d Cir. 2018)). And as Defendant points out, Plaintiff

had been receiving negative comments in his EPRs and PIPs as early as 2011 and he disclosed

his acid reflux to HR in July 2014. Thus, D’Alessandro could not discriminate against Plaintiff

for a disability that was never disclosed to him.

Finally, Plaintiff never alleged that he was terminated because of his disability. (ECF

No. 152 at

146.) See Atkins v. Cnty. of Orange, 251 F. Supp. 2d 1225, 1232 (S.D.N.Y. 2003)

(explaining that where there is no disparate treatment, there is no claim for discrimination under

the ADA); Mines v. City ofNew York/DHS, No. 1 l-CV-7886 (JGK), 2013 U.S. Dist. LEXIS

157782, at *31 (S.D.N.Y. Nov. 1, 2013) (finding that plaintiff could not establish her ADA

discrimination claim because she failed to show that her termination “occurred under

circumstances giving rise to an inference of discriminatory intent”); Schlosser v. Elzea, No. 19cv-1380 (SRU), 2020 U.S. Dist. LEXIS 30910, at *10-12 (D. Conn Feb. 24,2020) (discussing

that plaintiff has failed to allege any facts suggesting that he was discriminated against for his

disability regarding his mental health). And, as with his Title VII claim, there was a legitimate,

non-pretextual reason for his termination.

For these reasons, Plaintiff’s ADA claim fails.

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C. Plaintiff’s Failure to Accommodate Claim Under the ADA

Plaintiff claims that Defendant failed to accommodate his various requests to take his son

to the doctor’s office for an appointment, for Plaintiff’s medical procedure on his hand, and for

his back pain. (ECF No. 152 at JU 162,172,176.)

“An employer may ... violate the ADA by failing to provide a reasonable

accommodation.” McMillan v. City ofN. Y.,l\ \ F.3d 120, 125 (2d Cir. 2013). “A plaintiff states

a primafacie failure to accommodate claim by demonstrating that (1) plaintiff is a person with a

disability under the meaning of the ADA; (2) an employer covered by the statute had notice of

his disability; (3) with reasonable accommodation, plaintiff could perform the essential functions

of the job at issue; and (4) the employer has refused to make such accommodations.” Id. at 125—

26. Once a plaintiff established aprima facie case, the burden shifts to the defendant employer

to demonstrate that the plaintiff’s proposed accommodation would result in an undue hardship.

Scalera v. Electrograph Sys., Inc., 848 F. Supp. 2d 352, 360 (E.D.N.Y. 2012).

To show that a defendant refused to provide reasonable accommodations, a plaintiff

“bears only a burden of production.” Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d

Cir. 1995) (citing Gilbert v. Frank, 949 F.2d 637, 642 (2d Cir. 1991)). The Second Circuit has

made clear that this burden “is not a heavy one” and that “[i]t is enough for the plaintiff to

suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly

exceed its benefits.” Id. The issue of whether an accommodation is reasonable is normally a

question of fact best left for determination by jury. See Canales-Jacobs v. N.Y. State Off. of Ct.

Admin., 640 F. Supp. 2d 482, 500 (S.D.N.Y. 2009) (citing Borkowski, 63 F.3d at 138). Although

the ADA “does not require the employer to provide every accommodation a disabled employee

may request,” it does require that “the accommodation provided is reasonable.” D ’Eredita v. ITT

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Corp., 370 F. App’x 139,141 (2d Cir. 2010) (summary order) (internal quotation marks and

citation omitted). The phrase “reasonable accommodation” is defined as “[m]odifications or

adjustments to the work environment... that enable an individual with a disability who is

qualified to perform the essential functions of that position” as well as “(m]odifications or

adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and

privileges of employment as are enjoyed by its other similarly situated employees without

disabilities.” 29 C.F.R. §§ 1630.2(o)(l)(ii)-(iii).

First andforemost, although the undersigned has already found that Plaintiff’s congestion

and acid reflux do not constitute disabilities, the undersigned also notes that none of the alleged

accommodations were for Plaintiff’s congestion or acid reflux. Notably, on September 3, 2014,

Plaintiff asked for work changes due to his disability. (ECF No. 1 at 11.) He requested (i) clean

air; (2) to reduce the number of work alerts he received at night to minimize sleep disruption;

and (3) to allow one to two hours to alleviate acid reflux, sinus, and asthma symptoms. (Id.) As

a result of his request, Plaintiff received FMLA leave for one day a week for the next year. (Id.);

(see also ECF No. 1 at 15) (FMLA approval letter). This accommodation is not at issue here.

Nonetheless, Defendant accommodated all of Plaintiffs above requests. When Plaintiff

requested time off to take his son to the doctor, D’Alessandro referred him to HR. It was then

Plaintiff’s burden to go to HR to request the appropriate accommodations. See Bost v. Nassau

Cnty. Dep’t ofSoc. Servs., No. 22-2547, 2023 U.S. App. LEXIS 25802, at *4 (2d Cir. Sept. 29,

2023) (finding that plaintiff failed to follow up on her accommodation request with her employer

because she did not provide adequate documentation). However, notwithstanding this directive,

Plaintiff complained that Defendant did not grant the accommodation and Plaintiff cancelled the

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appointment. (ECFNo. 152at^ 162, 164.) Notably, Plaintiff does not allege that

D’Alessandro denied him the accommodation.

Regarding his request to take off for his medical procedure in September 2015 and

subsequently work from home the remainder of the workday. D’Alessandro granted this request.

(Id. at

173-74.) However, Plaintiff took it upon himself to begin his workday when he

returned from the surgery—an accommodation that D’ Alessandro did not approve.

D’ Alessandro asked Plaintiff to correct his timesheet multiple times to reflect the hours worked

during business hours only. (See id. at

175.)

Finally, on January 2,2015, he stated he had back pain and could not get to work and he

was granted the option to drive into work or take a sick day. (Id. at 1176.) Even though

D’ Alessandro told him to work from home that day, Plaintiff elected to work from home. (Id. at

1[178.)

Accordingly, because all accommodations were provided, Plaintiff cannot succeed on his

failure to accommodate claim. Sosa v. N. Y.C. Dep't ofEduc., 368 F. Supp. 3d 489, 524

(E.D.N.Y. 2019) (“Because [the] [defendants did attempt to, and did, accommodate [the]

[p]laintiff, she fails to state a plausible failure to accommodate claim under the ADA.”).

D. Plaintiffs Retaliation Claim Under Title VII and the ADA

Plaintiff claims he was retaliated against and ultimately fired after filing a complaint

against Russo in 2014. Title VII of the Civil Rights Act of 1964 “prohibits an employer from

‘discriminating] against’ an employee or job applicant because that individual ‘opposed any

practice’ made unlawful by Title VII or ‘made a charge, testified, assisted, or participated in’ a

Title VII proceeding or investigation.” Burlington Northern and Sante Fe Ry. Co. v. White, 548

U.S. 53, 56 (2006) (quoting 42 U.S.C. § 2000e—3(a)). Under this section of Title VII, referred to

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as the antiretaliation provision, “discriminate against” has been interpreted to mean that an

“employer’s actions must be harmful to the point that they could well dissuade a reasonable

worker from making or supporting a charge of discrimination.” Id. at 57. Similarly, the ADA

prohibits discrimination “against any individual because such individual has opposed any act or

practice made unlawful by this [Act].” 42 U.S.C. § 12203(a).

Unlawful retaliation claims under Title VII are analyzed using the burden-shifting

McDonnell Douglas framework. Eustache v. Home Depot U.S.A., Inc., No. 13-CV-42L

(SJF)(AKT), 2014 WL 4374588, at *31 (E.D.N.Y. Sep. 2, 2014) adopting report and

recommendation, affd, 621 Fed. App'x. 86 (2d Cir. 2015) (citation omitted); Brown v. Northrop

Grumman Corp., No. 12-CV-1488 (JS) (GRB), 2014 WL 4175795, at *5 (E.D.N.Y. Aug. 19,

2014) (citation omitted).

The elements for retaliation under Title VII and ADA are the same. Rajcoomar v. Bd. of

Educ., No. 16-CV-1682 (VB), 2017 U.S. Dist. LEXIS 35813, at *15 (S.D.N.Y. Mar. 13, 2017).

To make out aprimafacie retaliation claim under Title VII or the ADA, a plaintiff must

demonstrate that “(1) []he was engaged in protected activity; (2) the employer was aware of that

activity; (3) the employee suffered a materially adverse action; and (4) there was a causal

connection between the protected activity and that adverse action.” Lore v. City ofSyracuse, 670

F.3d 127,157 (2d Cir. 2012). “To prove the required causal link, [plaintiff] must establish that

the employer’s retaliatory motive was a but-for cause of the adverse action." Husser v. N.Y.C.

Dep't ofEduc., 137 F. Supp. 3d 253, 271-72 (E.D.N.Y. 2015) (adopting report and

recommendation) (internal quotation marks and citations omitted). When determining whether

summary judgment is appropriate, the court must only determine “whether proffered admissible

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evidence would be sufficient to permit a rational finder of fact to infer a retaliatory motive.” Id.

at 272 (citation omitted).

Here, Defendant only seems to dispute whether the activity was protected under Title VII

or the ADA and whether there was a causal connection between the complaint and his

termination. The Court analyzes both elements below.

1. Protected Activity

Plaintiff seems to argue that his email to Russo, D’ Alessandro, and others regarding the

timeline for a particular project was a protected activity. In an email on January 28,2014, he

states: “It is interesting though that Robfert Russo’s] timeline is very generous with a TBD for

John [Butera’s] tasks who need access to resources.. .but very tight for me that need access to a

subset of the same resources.” (ECF No. 147-27 at 2.)

‘“Protected activity’ consists of filing a formal or informal complaint, including an

EEOC charge, challenging discriminatory conduct.” Separ v. Cty. ofNassau, No. 21-CV-00010

(DRH) (JMW, 2022 U.S. Dist. LEXIS 17394, at *20 (E.D.N.Y. Jan. 28, 2022).

Here, Plaintiffs email does not constitute a protected activity. The email described made

no mention of discrimination nor did D’ Alessandro (the decisionmaker in this instance) make

any discriminatory remarks toward Plaintiff. (ECF No. 152 at 135); see Murphy v. City of

Newburgh, 785 F. App’x 900, 902 (2d Cir. 2019) (plaintiffs complaint failed to qualify as a

“protected activity” because she did not allege that her supervisor “treated her poorly based on

her gender or any other protected class status”); Romano v. A360 Media, LLC, No. 20-CV-08988

(LTS) (OTW), 2023 U.S. Dist. LEXIS 10355, at *32-33 (S.D.N.Y. Jan. 20,2023) (finding that a

“general complaint about management style is insufficient to qualify as protected activity”); cf.

Salas v. New York City Dep’t ofInvestigation, 298 F. Supp. 3d 676, 686-87 (S.D.N.Y. 2018)

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(finding that plaintiff pled a plausible ADA retaliation claim when she complained that personnel

mocked her stutter which led to the denial of her raise less than three months later).13

2. Causal Connection Between the Complaint and Plaintiffs Termination

Plaintiffs retaliation claim also fails for failure to demonstrate a causal connection

between the 2014 complaint and his termination in 2015. First, courts in this Circuit tend to look

at the temporal proximity or other connections between the protected activity, here the filing of

the purported complaint, and the alleged acts of discrimination or retaliation. See Fukelman v.

Delta Air Lines, No. 18-CV-2 (PKC) (PK), 2020 U.S. Dist. LEXIS 66410, at *58 (E.D.N.Y. Apr.

13, 2020). That is, the closer in time and more evident the connection is between the filing of the

complaint and the alleged termination, the more a court is likely to find that plaintiff pled a

credible retaliation claim. Dhar v. City ofN.Y., 655 Fed. App'x. 864, 865-66 (2d Cir. 2016)

(Summaiy Order) (noting that although "temporal proximity can support an inference of

retaliation for purposes of establishing a prima facie case, the proximity must be very close”)

(internal quotation marks and citation omitted).

Here, Plaintiffs complaint was made on January 28,2014 about a deadline that Russo

gave and Plaintiffs termination occurred a year later on January 8, 2015 stemming from a

recommendation from D ’Alessandro. Courts have found that the time frame of more than a

couple of months between the protected activity and the termination to be too attenuated to

constitute causation. See Chang v. Safe Horizons, 254 Fed. App'x. 838, 839 (2d Cir. 2007)

(Summary Order) (finding that termination occurring almost one year after complaint of

discrimination undermined any causal nexus based on temporal proximity); Yarde v. Good

13 To the extent that Plaintiff complains that his complaint to HR about Russo’s behavior was a “protected

activity,” this too fails for failure to allege any discriminatory conduct. In that complaint, Plaintiff merely

stated that Russo’s conduct was inappropriate and was solely based on Plaintiffs work performance and

not his national origin or disability. (Pltf s Dep. Tr. at 12-13); (ECF No. 147-10 at 2.)

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Samaritan Hosp., 360 F. Supp. 2d 552, 562 (S.D.N.Y. 2005) (“Three months is on the outer edge

of what courts in this circuit recognize as sufficiently proximate to admit of an inference of

causation... six months between protected activity and discharge is well beyond the time frame

for inferring retaliatory causation” (internal citation and citation omitted)); Chamberlin v.

Principi, TAI Fed. App’x 251,254 (2d Cir. 2007) (five month gap between protected activity and

alleged adverse job action insufficient to show a causal connection); Nicastro v. Runyon, 60 F.

Supp. 2d 181, 185 (S.D.N.Y. 1999) (“Claims of retaliation are routinely dismissed when as few

as three months elapse between the protected EEO activity and the alleged act of retaliation.”).

Second, with respect to the causal connection, a plaintiff establishes a causal connection

between the protected activity and the adverse employment action either by “(1) indirectly

[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 of retaliatory animus directed

against the plaintiff by the defendant.” Liang v Cafe Spice SB, Inc., 911 F. Supp. 2d 184, 211

(E.D.N.Y. 2012). A “plaintiff alleging retaliation in violation of Title VII must show that

retaliation was a ‘but-for’ cause of the adverse action, and not simply a ‘substantial’ or

‘motivating’ factor in the employer’s decision.” Toombs v. N.Y.C. Hous. Auth., 830 F. App’x

665, 668 (2d Cir. 2020) (citing Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013)).

Here, there is ample support to demonstrate that Plaintiff’s poor performance had been an

ongoing problem long before his termination. His performance was supported by multiple EPRs,

PIPs, and a Final Written Warning dating as far back as 2011. Further, and as mentioned above,

Plaintiff failed to allege any discriminatory treatment in the 2014 complaint based on his alleged

disability or national origin. See Holcomb v. Optumhealth, Inc., No. 20-cv-9043 (AKH), 2023

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U.S. Dist. LEXIS 178830, at *4 (S.D.N.Y. Oct. 4, 2023) (granting defendants’ motion for

summary judgment where plaintiff “failed to offer any evidence that her termination was a result

of her complaint regarding race discrimination”). Therefore, Plaintiffs generalized assertion

that the 2014 complaint about project deadlines impacted his termination does not hold any

water. See DiStiso v. Cook, 691 F.3d 226,230 (2d Cir. 2012) (finding that while considering

summary judgment the court must view the evidence in the light most favorable to plaintiff, a

“court cannot credit a plaintiffs merely speculative or conclusory assertions”) (internal quotation

marks and citations omitted).

Accordingly, Plaintiff s claim for retaliation fails for failure to establish a protected

activity and a causal connection.

CONCLUSION

For the foregoing reasons, the undersigned respectfully recommends that Defendant’s

motion for summary judgment (ECF No. 145) be granted in its entirety.

OBJECTIONS

A copy of this Report and Recommendation is being electronically served on Defendant’s

counsel. Defendant is directed to serve a copy of this Report and Recommendation upon pro se

Plaintiff and file proof of service within two business days of the date of this Report and

Recommendation. Any written objections to this Report and Recommendation must be filed

with the Clerk of the Court within fourteen (14) days of service of this Report. 28 U.S.C. §

636(b)(1) (2006 & Supp. 2011); Fed. R. Civ. P. 6(a), 72(b). Any requests for an extension of

time for filing objections must be directed to the district judge assigned to this action prior to the

expiration of the fourteen (14) day period for filing objections. Failure to file objections within

fourteen (14) days will preclude further review of this Report and Recommendation either by the

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District Court or the Court of Appeals. Thomas v. Arn, 474 U.S. 140,145 (1985) (“a party shall

file objections with the district court or else waive right to appeal”); Caidor v. Onondaga Cnty.,

517 F.3d 601,604 (2d Cir. 2008) (“failure to object timely to a magistrate's report operates as a

waiver of any further judicial review of the magistrate’s decision”); see Monroe v. Hyundai of

Manhattan & Westchester, 372 F. App’x 147, 147-48 (2d Cir. 2010) (summaiy order) (same).

Dated: Central Islip, New York.

May 9, 2024

RESPECTFULLY RECOMMENDED,

/sflames fM. *Mc£s

JAMES M. WICKS

United States Magistrate Judge

APPENDIX C

Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.