Knope v. Garland

20-3274-cv
Knope v. Garland

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 TO 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,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 9th day of November, two thousand twenty-one.

PRESENT:
JOSEPH F. BIANCO,
MICHAEL H. PARK,
WILLIAM J. NARDINI,
Circuit Judges.

Sharon M. Knope,

Plaintiff-Appellant,

v. 20-3274-cv

Merrick B. Garland, in his official capacity as
Attorney General of the United States,

Defendant-Appellee,

Attorney General Loretta E. Lynch, United States
Department of Justice,

Defendant.

FOR PLAINTIFF-APPELLANT: LINDY KORN (Charles L. Miller, II, on the brief),
The Law Office of Lindy Korn PLLC, Buffalo, NY.
FOR DEFENDANT-APPELLEE: KAREN F. LESPERANCE (Carina H. Schoenberger, on
the brief), Assistant United States Attorneys for
Carla B. Freedman, United States Attorney,
Northern District of New York, Syracuse, NY.

Appeal from a decision and order of the United States District Court for the Western

District of New York (Sinatra, J.).

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

DECREED that the decision and order of the district court are AFFIRMED.

Plaintiff-Appellant Sharon Knope appeals from the United States District Court for the

Western District of New York’s September 2, 2020 decision and order dismissing her employment

discrimination claims against the United States Attorney’s Office for the Western District of New

York (“USAO WDNY”) pursuant to Federal Rule of Civil Procedure 56(a). 1 Knope challenges

the dismissal of her accommodation, hostile work environment, and retaliation claims under the

Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 701 et seq., 2 as well as her hostile

work environment, retaliation, and sex discrimination claims under Title VII of the Civil Rights

1
The district court did not set out its judgment in a separate document as required by Federal Rule of Civil
Procedure 58(a). “Despite the lack of a judgment, this Court has jurisdiction to hear the appeal of the
opinion and order, which was a ‘final decision’ within the meaning of 28 U.S.C. § 1291.” Hamilton v.
Westchester County, 3 F.4th 86, 90 n.2 (2d Cir. 2021); see also In re Time Warner Inc. Sec. Litig., 9 F.3d
259, 263 n.1 (2d Cir. 1993) (“[W]e can treat the dismissal order as a final decision for purposes of 28 U.S.C.
§ 1291, since lack of compliance with the separate document rule is a waivable defect, and no party has
complained.”).
2
The district court constructively amended Knope’s accommodation, hostile work environment, and
retaliation claims arising under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.,
to be brought under the Rehabilitation Act. Although the ADA does not apply to federal employers, the
Rehabilitation Act provides federal employees with an essentially identical remedy for employment
discrimination based on disability. See 29 U.S.C. § 791(f); Henrietta D. v. Bloomberg, 331 F.3d 261, 272
(2d Cir. 2003).

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Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. 3 We assume the parties’ familiarity with the

underlying facts, procedural history, and issues on appeal, which we reference only as necessary

to explain our decision to affirm.

Knope worked as a Victim Witness Coordinator in the USAO WDNY from 1996 until

2016. Her responsibilities included managing the victim witness program, handling witness

management for trials, making witness travel arrangements, answering victim questions, notifying

victims of case status and rights, accompanying victims to court proceedings, and making referrals

to victim assistance agencies. Since approximately 2005, Knope has suffered from celiac disease

and irritable bowel syndrome, and she has undergone frequent treatment for kidney stones, which

required surgical intervention. As Knope’s condition worsened, a series of incidents occurred

during which the USAO WDNY attorneys were unable to reach Knope after hours. On June 24

2015, Knope filed a request for accommodation seeking “[r]emoval from on call” due to the

worsening of her celiac disease. App’x at 608. The parties then began discussions regarding

whether after-hours on-call availability was an essential function of Knope’s position and whether

a reasonable accommodation could be provided. On September 18, 2015, before the parties

resolved the accommodation request and on-call availability issues, Knope applied for leave under

the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., stating that she would be

unable to work for an indefinite period of time. Before her FMLA leave was set to expire, she

3
Knope also brought an age discrimination claim under the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq., which the district court also dismissed on summary judgment. Because
Knope did not challenge the dismissal of the ADEA claim in her briefing on appeal, we deem it abandoned.
See Lore v. City of Syracuse, 670 F.3d 127, 149 (2d Cir. 2012).

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submitted a new FMLA form on December 8, 2015, seeking to continue her leave. Her medical

certification included a letter from her treatment provider stating that Knope could perform “[n]o

work of any kind.” App’x at 690. The provider’s letter also explained that “[t]hese conditions are

NOT expected to improve and the date of possible partial recovery is 12 months from 12/7/2015.”

Id. A few days later, the USAO WDNY informed Knope that her extended absence “had a

significant impact on the office” and that her taking an additional six-month absence “without any

indication of a possible return date” could warrant action. Id. at 694. Knope subsequently applied

for disability retirement. Ultimately, the USAO WDNY denied Knope additional leave without

pay. Approximately seven months after taking what had become indefinite leave, Knope was

terminated.

Knope claims that the USAO WDNY’s insistence on continued after-hours availability

represented a failure to accommodate her medical conditions, created a hostile work environment,

and demonstrated that the USAO WDNY was targeting her for removal because she is a woman

and in retaliation for her Equal Employment Opportunity (“EEO”) complaint with the Department

of Justice and related activity. In response, the USAO WDNY contends that after-hours

availability was always an essential function of Knope’s position and the process of finding

reasonable accommodations for Knope was cut short by the escalating symptoms of her disability,

which ultimately resulted in her treatment provider certifying that she could no longer perform

work of any kind, even with an accommodation. The USAO WDNY similarly contends that her

professed inability to work at all, not her gender, disability, or any retaliatory motive, led to her

termination, and that no hostile work environment existed.

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 I. Standard of Review

We review a grant of summary judgment de novo, “construing the evidence in the light

most favorable to the nonmoving party and drawing all reasonable inferences in his

favor.” McElwee v. County of Orange, 700 F.3d 635, 640 (2d Cir. 2012). A moving party is

entitled to summary judgment where the record reveals “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). A factual dispute

is genuine “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).

II. Reasonable Accommodation Claim

“To establish a prima facie case of discrimination based on an employer’s failure to

accommodate a disability, under either the ADA or the Rehabilitation Act, a plaintiff must

demonstrate that (1) the plaintiff is a person with a disability under the meaning of the statute in

question; (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.” Natofsky v. City of New York, 921 F.3d

337, 352 (2d Cir. 2019) (internal quotation marks and alterations omitted). The plaintiff must also

show the connections between the failure to accommodate her disability, the performance

deficiencies, and the adverse employment action. Id.

We do not reach the question of whether after-hours on-call availability was an essential

function of Knope’s position because, while Knope’s request for a reasonable accommodation was

under consideration in September 2015, her treatment provider declared her medically unfit for

any work. On September 21, 2015, Knope began an indefinite leave of absence because she could

5
not work at all even with an accommodation. In light of the change to her medical condition,

Knope’s attorney agreed that the USAO WDNY should hold the accommodation discussions in

abeyance until closer to Knope’s return. Given the uncontroverted fact that Knope could not

perform the job at all – even with an accommodation – her accommodation claim fails as a matter

of law. 4 See Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 100 (2d Cir. 2004) (“A reasonable

accommodation can never involve the elimination of an essential function of a job.”); see also

McBride v. BIC Consumer Prods Mfg. Co., 583 F.3d 92, 97 (2d Cir. 2009) (summary judgment

warranted on reasonable accommodation claim where “[plaintiff] provided no evidence that there

existed any potential accommodation that would have allowed her to continue to work, regardless

of the form such an accommodation would have taken”). Accordingly, the district court properly

granted summary judgment on this claim.

III. Sex Discrimination Claim

Knope asserted a sex discrimination claim under Title VII, alleging that the purported

adverse actions she suffered – namely, the requirement that she be available to work after hours,

the failure to accommodate her disability, and her termination – were because she was a woman.

As set forth below, we agree with the district court’s conclusion that this claim cannot survive

summary judgment.

4
To the extent Knope seeks to base her accommodation claim on the USAO WDNY’s failure to provide
reasonable accommodation in 2013, it is undisputed that after she made the request, the USAO WDNY
asked for additional documentation, which Knope did not provide, and she did not pursue the request
further. Therefore, this claim also fails to survive summary judgment.

6
 We analyze Knope’s sex discrimination claim according to the familiar burden-shifting

framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Walsh v. N.Y.C.

Hous. Auth., 828 F.3d 70, 74–75 (2d Cir. 2016) (applying McDonnell Douglas framework to Title

VII and New York state sex discrimination claims). Under this framework, the plaintiff must first

“establish a prima facie case [of discrimination]; the employer must offer through the introduction

of admissible evidence a legitimate non-discriminatory reason for the discharge; and the plaintiff

must then produce evidence and carry the burden of persuasion that the proffered reason is a

pretext.” Cortes v. MTA N.Y.C. Transit, 802 F.3d 226, 231 (2d Cir. 2015) (internal quotation

marks omitted). A plaintiff establishes a prima facie case of sex discrimination by demonstrating

that: “(1) she was within the protected class; (2) she was qualified for the position; (3) she was

subject to an adverse employment action; and (4) the adverse action occurred under circumstances

giving rise to an inference of discrimination.” Walsh, 828 F.3d at 75 (internal quotation marks

omitted).

Knope attempts to support her sex discrimination claim by noting that there is evidence

that the USAO WDNY allowed one male employee “with a very serious non-physical condition”

to stay home for “quite a period of time.” Appellant Br. 25. “A showing of disparate treatment –

that is, a showing that the employer treated plaintiff ‘less favorably than a similarly situated

employee outside his protected group’ – is a recognized method of raising an inference of

discrimination for purposes of making out a prima facie case.” Mandell v. County of Suffolk, 316

F.3d 368, 379 (2d Cir. 2003) (quoting Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)).

However, a plaintiff “must show she was ‘similarly situated in all material respects’ to the

individuals with whom she seeks to compare herself” in order to raise an inference of

7
discrimination. Graham, 230 F.3d at 39 (quoting Shumway v. United Parcel Serv., Inc., 118 F.3d

60, 64 (2d Cir. 1997)).

Here, Knope provides no evidence regarding the circumstances surrounding the

accommodation provided to the male employee, such that the difference in treatment “support[s]

at least a minimal inference that the difference in treatment may be attributable to discrimination.”

McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001). In any event, even if the prima facie

burden was met, the USAO WDNY has articulated a legitimate, non-discriminatory reason for her

termination – namely, that she was medically unable to perform her job at all for an unknown

period of time.

Knope has failed to put forth evidence from which a rational jury could find sex-

discrimination based on this record. Accordingly, we agree with the district court’s grant of

summary judgment on the sex discrimination claim.

IV. Hostile Work Environment Claims

Knope brings her hostile work environment claims based upon disability and sex pursuant

to the Rehabilitation Act and Title VII, respectively.

To prevail on a hostile environment claim under Title VII, a plaintiff must show that “a

workplace is so severely permeated with discriminatory intimidation, ridicule, and insult that the

terms and conditions of her employment were thereby altered,” Desardouin v. City of

Rochester, 708 F.3d 102, 105 (2d Cir. 2013) (internal quotation marks omitted), as well as a

“specific basis” for imputing the challenged conduct to the employer, Duch v. Jakubek, 588 F.3d

757, 762 (2d Cir. 2009) (internal quotation marks omitted). The elements of a hostile work

environment claim are the same under the ADA, and thus, the Rehabilitation Act. See Fox v.

8
Costco Wholesale Corp., 918 F.3d 65, 74 (2d Cir. 2019) (establishing the elements of an ADA

hostile work environment claim); see also 29 U.S.C. § 791(f) (“The standards used to determine

whether this section has been violated in a complaint alleging nonaffirmative action employment

discrimination under this section shall be the standards applied under [the ADA] . . . .”). An

employee must prove both objective and subjective elements of her claim. First, the employee

must prove the objective requirement, i.e., that the employer created an environment that a

reasonable person would find hostile or abusive. Brown v. Henderson, 257 F.3d 246, 252 (2d Cir.

2001). Second, the employee must prove the subjective requirement, i.e., that the employee

subjectively perceived the employer’s conduct as hostile or abusive. Id. Finally, the employee

must demonstrate a causal element: that the employer created a hostile environment because of a

protected characteristic. See id.

Knope’s sporadic conflicts over nearly four years with her supervisors about her hours and

work responsibilities are insufficient under the circumstances present here, even if true, to establish

a hostile work environment. See Alfano v. Costello, 294 F.3d. 365, 374 (2d. Cir. 2002) (“As a

general rule, incidents must be more than episodic; they must be sufficiently continuous and

concerted in order to be deemed pervasive,” although “even a single act can meet the threshold if,

by itself, it can and does work a transformation of the plaintiff's workplace.” (internal quotation

marks omitted)). To the extent that Knope also alleges that the reasonable accommodation process

with the USAO WDNY was itself hostile such that she was “subjected to intimidation on a daily

basis,” Appellant Br. at 24–25, this also fails to establish a hostile work environment because no

rational jury could find that the accommodation negotiations were of such a hostile nature that they

9
altered the conditions of Knope’s work environment, see Desardouin, 708 F.3d at 105.

Accordingly, summary judgment was warranted on the hostile work environment claims.

V. Retaliation Claims

Knope alleges that the USAO WDNY retaliated against her under both the Rehabilitation

Act and Title VII. Under the Rehabilitation Act, a plaintiff must show that she “(i) . . . was engaged

in protected activity; (ii) the alleged retaliator knew that [she] was involved in protected activity;

(iii) an adverse decision or course of action was taken against [her]; and (iv) a causal connection

exists between the protected activity and the adverse action.” Natofsky, 921 F.3d at 353 (internal

quotation marks omitted). A causal connection may be shown either “(1) indirectly, by 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.” Id. (internal quotation marks omitted).

Under Title VII, to establish a prima facie case of retaliation, a plaintiff must show “(1)

participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an

adverse employment action; and (4) a causal connection between the protected activity and the

adverse employment action.” Shultz v. Congregation Shearith Israel of City of New York, 867

F.3d 298, 309 (2d Cir. 2017) (internal quotation marks omitted). Although private-sector Title VII

retaliation claims “require proof that the desire to retaliate was the but-for cause of the challenged

employment action,” Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 304 (2d Cir. 2021)

(internal quotation marks omitted), and we have applied that same causation standard in a non-

precedential summary order to retaliation claims against the federal government, see D’Andrea v.

10
Nielsen, 765 F. App’x 602, 605 (2d Cir. 2019), we do not address that issue here because Knope

is unable to show the causal element under any standard.

When termination proceedings were initiated in February 2016, Knope had already

exhausted all of her leave and been out of the office for months with no indication of if, or when,

she would be able to return to work. Indeed, as noted above, her treatment provider submitted a

letter indicating that she would be “unable to work any job for at least 12 months starting

12/7/2015.” App’x at 691. Her excessive and indefinite absence serves as a legitimate,

nondiscriminatory basis for termination. See Parker v. Columbia Pictures Indus., 204 F.3d 326,

338 (2d Cir. 2000) (“The duty to make reasonable accommodations does not, of course, require an

employer to hold an injured employee’s position open indefinitely while the employee attempts to

recover, nor does it force an employer to investigate every aspect of an employee's condition before

terminating him based on his inability to work.”).

Knope points to insufficient evidence from which a reasonable jury could conclude that the

decision to remove her from employment was motivated by her requests for an accommodation or

her EEO activity related to her disability. 5 Accordingly, summary judgment was warranted on

Knope’s retaliation claims.

* * *

5
Knope’s claim that the USAO WDNY retaliated against her even after her termination by causing
problems with her employer health coverage and benefits fails because she provides no evidence that the
USAO WDNY caused those problems in retaliation for protected activity.

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 We have considered all of Knope’s remaining arguments and conclude that they are

without merit. Accordingly, we AFFIRM the decision and order of the district court.

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

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