22-2973

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. 

1 At a stated term of the United States Court of Appeals for the Second Circuit, 

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 2nd 3 day of November, two thousand twenty-three.

4

5 PRESENT:

6 ROBERT D. SACK,

7 GERARD E. LYNCH,

8 MICHAEL H. PARK,

9 Circuit Judges.

10 _____________________________________

11

12 Timothy Hale,

13

14 Plaintiff-Appellant,

15

16 v. 22-2973

17

18 Kathi Vidal, Director of the United States 

19 Patent and Trademark Office,

20

21 Defendant-Appellee.

22 _____________________________________

23

24 FOR PLAINTIFF-APPELLANT: Stephen Bergstein, Bergstein & Ullrich, New 

25 Paltz, NY.

26

27 FOR DEFENDANT-APPELLEE: Jillian Rose Orticelli, Conor M. Reardon, 

28 Assistant United States Attorneys for 

29 Vanessa Roberts Avery, United States 

30 Attorney for the District of Connecticut, New 

31 Haven, CT.

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

2 (Williams, J.).

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

4 DECREED that the judgment of the district court is AFFIRMED.

5 Timothy Hale sued his former employer—the Director of the United States Patent and 

6 Trademark Office (the “PTO”)—alleging discrimination on the basis of his religious beliefs, 

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

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

9 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(a), which applies to federal 

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

11 The district court granted the motion and entered judgment against Hale. Hale timely appealed, 

12 challenging the district court’s dismissal of his retaliation and failure to accommodate claims. 

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

14 issues on appeal. 

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

16 in the light most favorable to the non-moving party and drawing all reasonable inferences in its 

17 favor.” Ashley v. City of New York, 992 F.3d 128, 136 (2d Cir. 2021). 

18 I. Retaliation Claim

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

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

21 framework, if a plaintiff establishes a prima facie case, the defendant must articulate a legitimate,
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1 non-retaliatory reason for its challenged actions. Lenzi v. Systemax, Inc., 944 F.3d 97, 107–08,

2 112 (2d Cir 2019). If the defendant meets her burden, the plaintiff must then show that the offered

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

4 The district court required Hale to show at the third step that retaliatory intent was a “but5 for” cause of the PTO’s actions. Hale argues that this was an error because the Supreme Court’s

6 decision in Babb v. Wilkie, 140 S. Ct. 1168 (2020), an age-discrimination case, required the court

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

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

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

10 genuine issue of material fact. See Hicks v. Baines, 593 F.3d 159, 167–68 (2d Cir. 2010). And 

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

12 more, is also insufficient to survive summary judgment. See El Sayed v. Hilton Hotels Corp., 

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

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

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

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

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

18 II. Religious Accommodation Claim

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

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

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

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

4 Health, 275 F.3d 156, 167 (2d Cir. 2001). “Once a prima facie case is established by the 

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

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

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

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

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

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

11 ends.” Cosme, 287 F.3d at 158.

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

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

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

15 No evidence indicates that the PTO otherwise allowed appeals. Hale argues that the PTO should 

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

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

18 accommodation. Id. 

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

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

21 FOR THE COURT: 

22 Catherine O’Hagan Wolfe, Clerk of Court

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