2 2

- 2973 Hale v. Vidal



## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “ SUMMARY ORDER ” ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 2 n d d a y of N o v e m b e r , two thousand twenty

- three

. 3 4 PRESENT: 5 ROBERT D. SACK, 6 GERARD E. LYNCH , 7 MICHAEL H. PARK , 8 Circuit Judges

. 9

_____________________________________ 10 11 Timothy Hale , 12 13 Plaintiff

- Appellant , 14 15

v. 2 2

- 2 973 16 17 Kathi Vidal, Director of the United States 18 Patent and Trademark Office , 19 20 Defendant

- Appellee. 21

_____________________________________ 22 23 FO R PLAINTIFF

- APPELL ANT : Stephen Bergstein, Bergstein & Ullrich
, New 24 Paltz , NY

. 25 26 FOR DEFENDANT

- APPELL EE : Jillian Rose Orticelli, Conor M. Reardon, 27 Assistant United States Attorneys for 28 Vanessa Roberts Avery , United States 29 Attorney for the District of Connecticut , New 30 Haven
, CT

. 31 322 Appeal from a judgment of the United States District Court for the District of Connecticut 1

( Williams
, J

. ). 2

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3

DECREED that the judgment of the district court is AFFIRMED

. 4

Timothy Hale sued his former employer

— the Director of the United States Patent and 5

Trademark Office (the “ PTO ”)

— alleging discrimination on the basis of his religious beliefs
, 6

including a failure to accommodate those beliefs, and retaliation for complaining about that 7

allegedly discriminatory treatment. Hale brought his claims under the federal sector provision of 8

Title VII of the Civil Rights Act of 1964
, 42 U.S.C. § 2000e

- 16(a), which applies to federal 9

employees. Following discovery, the PTO moved for summary judgment on all of Hale’s claims

. 10

T he district court granted the motion and entered judgment against Hale. Hale timely appealed

, 11

challenging the district court’s d ismissal of his retaliation and failure to accommodate claims

. 12

We assume the parties ’ familiarity with the underlying facts, procedural history of the case , and 13

issues on appeal. 14

“We review the district court’s grant of summary judgment de novo , construing the facts 15

in the light most favorable to the non

- moving party and drawing all reasonable inferences in its 16

favor.” Ashley v. City of N ew Y ork , 992 F.3d 128, 136 (2d Cir. 2021)

. 17

I. Retaliation Claim 18

The parties agree that Hale’s retaliation claim is evaluated under the burden

- shifting 19

framework set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973)

. Under that 20

framework, i f a plaintiff establishes a prima facie case, the defendant must articulate a legitimate, 213 non

- retaliatory reason for its challenged action s

. Lenzi v. Systemax, Inc.
, 944 F.3d 97, 107

– 08
, 1

112 (2d Cir 2019)

. If the defendant meets her burden, the plaintiff must then show that the offered 2

justification is pretext for retaliation. Id. at 108
, 112

. 3

The district court required Hale to show at the third step that retaliatory intent was a “but

4

for” cause of the PTO ’s actions. Hale argues that this was an error because the Supreme Court’s 5

decision in Babb v. Wilkie
, 140 S. Ct. 1168 (2020), an age

- discrimination case, required the court 6

to apply a lower, “ motivating factor” standard. 1 We need not resolve this issue, because Hale’s 7

claim fail s under any standard. Hale relies almost entirely on his own affidavit to establish the 8

PTO ’s motive in taking any action against him, but that affidavit is too conclusory to create a 9

genuine issue of material fact

. See Hicks v. Baines , 593 F.3d 159, 167

– 68 (2d Cir. 2010). And 10

temporal proximity between Hale’s protected activity and the PTO ’s adverse actions , without 11

more, is also insufficient to survive summary judgment

. See El Sayed v. Hilton Hotels Corp.
, 12

627 F.3d 931, 933 (2d Cir. 2010), abrogated in part on other grounds by Univ. of Tex. S w . Med. 13

Ctr. v. Nassar , 570 U.S. 338 (2013 ). The other evidence to which Hale points, such as documents 14

demonstrating that he was subject to disciplinary action, does not support Hale’s conclusory claim 15

that retaliation was a motivation for , or in any way caused, such action. The district court thus 16

correctly granted summary judgment on Hale’s retaliation claim. 17

II. Religious Accommodation Claim 18

To succeed on a religious accommodation claim, plaintiff s must first establish a prima facie 19

1 Babb held that discrimination claims brought under 29 U.S.C. § 633a(a) require a showing that “age [is] a but

- for cause of discrimination

— that is, of differential treatment” and that differential treatment “plays any part in the way a decision is made.” 140 S. Ct. at 1173

– 74.4 case by showing that “(1) they held a bona fide religious belief conflicting with an employment 1

requirement; (2) they informed their employers of this belief; and (3) they were disciplined for 2

failure to comply with the conflicting employment requirement.” Knight v. Conn. Dep ’ t of Pub. 3

Health , 275 F.3d 156, 167 (2d Cir. 2001)

. “Once a prima facie case is established by the 4

employee, the employer must offer him or her a reasonable accommodation, unless doing so would 5

cause the employer to suffer an undue hardship.” Baker v. The Home Depot , 445 F.3d 541, 546 6

(2d Cir. 2006) ( internal quotation marks , brackets, and citation omitted ). Employees “ are not 7

entitled to hold out for the most beneficial accommodation ,” id. at 548 (internal quotation marks 8

omitted), or a preferred accommodation
, Cosme v. Henderson , 287 F.3d 152, 158 (2d Cir. 2002)

. 9

Rather, “ when any reasonable accommodation is provided by the employer, the statutory inquiry 10

ends.” Cosme , 287 F.3d at 158

. 11

Hale’s religious accommodation claim fails because the PTO offered him a reasonable 12

accommodation. When a religious retreat conflicted with Hale’s deadline to file a rebuttal to the 13

bases for an adverse employment decision, the PTO allowed him to file an appeal of that decision. 14

No evidence indicates that the PTO otherwise allowed appeals

. Hale argues that the PTO should 15

have extended his deadline to file a rebuttal instead. But he presents no evidence that a rebuttal 16

would have been more advantageous than an appeal, and Hale is not entitled to his preferred 17

accommodation. Id. 18

We have considered the remainder of Hale’s arguments and find them to be without merit. 19

For the foregoing reasons, we AFFIRM the judgment of the district court. 20

FOR THE COURT: 21 Catherine O ’ Hagan Wolfe, Clerk of Court 22 23