18-2387
Hatch & Henderson v. Brennan

                         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
22nd day of November, two thousand nineteen.

Present:
            PIERRE N. LEVAL
            DEBRA ANN LIVINGSTON,
            JOSEPH F. BIANCO,
                   Circuit Judges.
_____________________________________

MARY HATCH, KEITH HENDERSON,

                       Plaintiffs-Appellants,

               v.                                                  18-2387

POSTMASTER GENERAL MEGAN J. BRENNAN,

                  Defendant-Appellee.
_____________________________________

For Plaintiffs-Appellants:                 W. MARTYN PHILPOT, JR., Law Office of W. Martyn
                                           Philpot, Jr., New Haven, CT

For Defendant-Appellee:                    CAROLYN A. IKARI (Sandra S. Glover, on the brief),
                                           Assistant United States Attorneys, for John H.
                                           Durham, United States Attorney for the District of
                                           Connecticut, New Haven, CT




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

Connecticut (Arterton, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

         Plaintiffs-Appellants Mary Hatch (“Hatch”) and Keith Henderson (“Henderson”)

(together, “Plaintiffs-Appellants”) appeal from a July 13, 2018 ruling of the U.S. District Court

for the District of Connecticut (Arterton, J.) granting summary judgment in favor of

Defendant-Appellee as to their employment discrimination and retaliation claims under the

Rehabilitation Act, 29 U.S.C. § 701 et seq., and the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 621 et seq.          We review grants of summary judgment de novo,

“construing the facts in the light most favorable to the non-moving party and drawing all

reasonable inferences in that party’s favor.”   Burns v. Martuscello, 890 F.3d 77, 83 (2d Cir.

2018).    We assume the parties’ familiarity with the underlying facts, the procedural history of

the case, and the issues on appeal.

         Plaintiffs-Appellants brought suit against their longtime employer, the U.S. Postal

Service (the “Postal Service”), alleging that Postal Service management, including Catherine

Litke (“Litke”), Theresa Bruso (“Bruso”), and Andrew Cullen (“Cullen”), discriminated against

them due to their disability and age and retaliated against them for their complaints about the

resulting hostile work environment.        Plaintiffs-Appellants worked as human resources

specialists in the Postal Service’s Connecticut Valley District. Hatch, who was 66 years old in

early 2015, had thirty years of work experience with the Postal Service, while Henderson, then

age 59, had thirty-five years of experience. Beginning in 2014, their department was managed

by Litke.


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       Plaintiffs-Appellants testified that Litke created a difficult, combative working

environment and was frequently rude, insulting, and berating.      They also stated that Litke

imposed unreasonable deadlines for the projects she assigned to Plaintiffs-Appellants and

constantly threatened them with discipline. Plaintiffs-Appellants expressed their concerns on

several occasions.     Hatch noted that she was experiencing stress and a hostile work

environment on a Request for Absence Form (the “Form 3971”) and described chaos, bullying,

and harassment in a response she wrote to Litke after receiving a Letter of Warning regarding a

missed deadline.     Plaintiffs-Appellants also co-authored a letter of complaint (the “Joint

Complaint”), which notified management about a wide range of grievances regarding working

conditions under Litke. Cullen undertook an informal investigation of the Joint Complaint, but

ultimately concluded that Litke had not harassed Plaintiffs-Appellants and did not inform

Plaintiffs-Appellants of the outcome of the investigation.

       After Litke became their manager, Hatch experienced symptoms such as severe

headaches, anxiety, and depression, while Henderson was diagnosed with general anxiety

disorder. Hatch went out on sick leave on January 21, 2015, and Henderson went on sick leave

the following day. Neither ultimately returned to work. Hatch officially retired, on advice of

her doctor, effective April 30, 2015, although she had planned on working until June 2018.

Henderson remained on sick leave and, upon exhausting his leave, retired on May 31, 2016.

       1. Disability Discrimination under the Rehabilitation Act

       In evaluating an employment discrimination claim under the Rehabilitation Act, this

Court applies the standards set forth in the Americans with Disabilities Act of 1990 (“ADA”).

29 U.S.C. §§ 791(f), 794(d). The elements of a prima facie case are: “(1) the employer is

subject to the [Rehabilitation Act]; (2) the plaintiff is disabled within the meaning of the


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[Rehabilitation Act] or perceived to be so by her employer; (3) she was otherwise qualified to

perform the essential functions of the job with or without reasonable accommodation; (4) she

suffered an adverse employment action; and (5) the adverse action was imposed because of her

disability.” Davis v. N.Y.C. Dep’t of Educ., 804 F.3d 231, 235 (2d Cir. 2015) (per curiam).

To establish a hostile work environment on the basis of disability, a plaintiff must show “(1) that

the harassment was sufficiently severe or pervasive to alter the conditions of [his] employment

and create an abusive working environment, and (2) that a specific basis exists for imputing the

objectionable conduct to the employer.” Fox v. Costco Wholesale Corp., 918 F.3d 65, 74 (2d

Cir. 2019) (internal quotation marks and citation omitted).           “It is axiomatic that the plaintiff

also must show that the hostile conduct occurred because of a protected characteristic”—namely,

in the Rehabilitation Act context, perceived or actual disability.1       Tolbert v. Smith, 790 F.3d 427

(2d Cir. 2015).

        Plaintiffs-Appellants argue that the district court erred in granting summary judgment by

failing to construe the record in the light most favorable to them.                We disagree.       While

Plaintiffs-Appellants’ burden at the prima facie stage is “minimal,” Bucalo v. Shelter Island

Union Free Sch. Dist., 691 F.3d 119, 128 (2d Cir. 2012), even assuming that

Plaintiffs-Appellants satisfied the first four elements of the prima facie case, there is insufficient

evidence in the record to permit a reasonable factfinder to find that they have carried their burden

as to the final factor—that any adverse employment action occurred because of disability.




1
  Plaintiffs-Appellants primarily set forth arguments based on a perceived disability theory. Any
arguments based on actual disability were waived due to Plaintiffs-Appellants’ representations at oral
argument before the district court that they intended to proceed solely on the basis of perceived disability.
See United States v. Spruill, 808 F.3d 585, 587 (2d Cir. 2015).


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        Plaintiffs-Appellants point to Litke’s communication to Hatch regarding insufficiencies

in FMLA paperwork and Cullen’s adjournment of a meeting with Henderson regarding a

reasonable accommodation as circumstantial evidence suggesting that the Postal Service was

motivated by anti-disability animus.        Yet neither of these events supports that inference.

Litke’s letter informed Hatch that paperwork for her FMLA leave was deficient, causing her to

be designated AWOL.        Plaintiffs-Appellants put forth no evidence to support their conjecture

that the steps taken by Litke to address the fact that an employee was absent without properly

documented leave—an ordinary job responsibility for a supervisor—pertained to any perceived

disability, let alone that it was discriminatory.

        Likewise, no inference of discriminatory motivation can be drawn from Cullen’s

adjournment of Henderson’s reasonable accommodation meeting.         Under Plaintiffs-Appellants’

own version of events, Henderson stated that he could not make a determination as to whether

any accommodation could permit him to return to work until he found out the results of his Joint

Complaint. Cullen responded that he had not been aware that Henderson had been part of the

Joint Complaint, that he would have to conduct an investigation, and there was no sense in

continuing the meeting at that time. Nothing about this decision to adjourn the meeting based

on Henderson’s representations supports the inference that Cullen was motivated by

anti-disability animus.

        Plaintiffs-Appellants also cite the Postal Service’s failure to properly investigate and

follow up on the Joint Complaint as relevant circumstantial evidence; however, that alleged

deficiency does not suggest any causal connection between their disability and the Postal

Service’s actions.        The Joint Complaint contained no reference to disability, and




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Plaintiffs-Appellants establish no link between any perceived disability and the lack of response

or remedial action by Bruso or Cullen to the Joint Complaint.

        Thus, because the evidence in the record is insufficient to demonstrate any connection

between the Postal Service’s actions and its perception of the Plaintiffs-Appellants as disabled, a

rational jury could not conclude that Plaintiffs-Appellants satisfied the elements of a prima facie

case of disability discrimination or demonstrated a hostile work environment based on disability.

        2. Retaliation Under the Rehabilitation Act

        Retaliation under the Rehabilitation Act is governed under ADA standards and “analyzed

under the same burden-shifting framework established for Title VII cases.” Treglia v. Town of

Manlius, 313 F.3d 713, 719 (2d Cir. 2002).2             In order to establish a prima facie case of

retaliation, a plaintiff must show that he “(i) . . . was engaged in protected activity; (ii) the alleged

retaliator knew that plaintiff was involved in protected activity; (iii) an adverse decision or course

of action was taken against plaintiff; and (iv) a causal connection exists between the protected

activity and the adverse action.” Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d 138, 148 (2d Cir.

2002). “Protected activity” refers to a plaintiff’s action “taken to protest or oppose statutorily

prohibited discrimination.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000).

        Plaintiffs-Appellants argue that the district court erroneously granted summary judgment

as to their retaliation claims by adopting an overly formalistic approach in determining that the

communications made by Plaintiffs-Appellants were insufficient to place the Postal Service on

notice of protected activity.       This argument has no merit.          Indeed, as the district court

2
  The retaliation claims were originally pleaded as arising under Title VII; however, at oral argument
before the district court, Plaintiffs-Appellants clarified that these claims arose under the Rehabilitation
Act. To the extent Plaintiffs-Appellants also intended to plead retaliation under the ADEA, any such
claims were waived on appeal and, in any case, summary judgment in favor of the Postal Service would
be appropriate as to those claims for the reasons set forth below.


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acknowledged, protected activity may consist of informal actions such as “making complaints to

management.” Littlejohn v. City of New York, 795 F.3d 297, 317 (2d Cir. 2015) (quoting Sumner

v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990)). Yet “implicit in the requirement that the

employer have been aware of the protected activity is the requirement that it understood, or could

reasonably have understood, that the plaintiff’s opposition was directed at conduct prohibited by

[the Rehabilitation Act].” Galdieri–Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 292

(2d Cir. 1998). None of Plaintiffs-Appellants’ communications could conceivably have alerted

the Postal Service to the fact that their grievances pertained to treatment based on a protected class.

       The three communications on which Plaintiffs-Appellants rely—Hatch’s Form 3971, the

Joint Complaint, and Hatch’s response to Litke’s Letter of Warning—fail to mention a protected

class or in any way imply that Plaintiffs-Appellants were protesting discrimination based on such a

protected class. Hatch’s Form 3971 referred to “STRESS/HARASSMENT/HOSTILE WORK

ENVIRONMENT FOR THE PAST YEAR.”                       J.A. 897.    But mentioning a “hostile work

environment” without more, under the circumstances of this case, could not put the Postal Service

on notice that Plaintiffs-Appellants were protesting a hostile work environment based on a

protected class such as disability. See Alfano v. Costello, 294 F.3d 365, 375 (2d Cir. 2002)

(“Everyone can be characterized by sex, race, ethnicity, or (real or perceived) disability; and many

bosses are harsh, unjust, and rude. It is therefore important in hostile work environment cases to

exclude from consideration personnel decisions that lack a linkage or correlation to the claimed

ground of discrimination.”) As to the Joint Complaint, Plaintiffs-Appellants themselves admitted

in their testimony that this document contained no language regarding age or disability-based

discrimination. While the Joint Complaint vividly sets forth Plaintiffs-Appellants’ grievances

regarding an environment of bullying and harassment, given the lack of any linkage to their


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membership in a protected class, the Joint Complaint could not have put the Postal Service on

notice of any protected activity.   Absent any implied or express connection to protected status,

the fact that this document was labeled a “Hostile Work Environment Compliant” [sic] when it

was transmitted to Plaintiffs-Appellants’ managers could not provide the requisite notice. J.A.

903.     To the contrary, the Joint Complaint’s statement that “it would be fair to say that Keith

and I are not the only victims of [Litke’s] wrath but that everyone in the department, and well

beyond, have suffered from her irrational and hostile behavior as well,” J.A. 252, expressly

contradicts the notion that Plaintiffs-Appellants were being singled out, let alone on a protected

basis.    Likewise, Hatch’s response to Litke’s Letter of Warning refers to a chaotic environment

of bullying and harassment without implying that this atmosphere could be related to protected

status. Because none of Plaintiffs-Appellants’ communications could have alerted the Postal

Service that their grievances related to their membership in a protected class, they cannot

establish a prima facie case of retaliation.

         3. Age Discrimination under ADEA

         A plaintiff establishes a prima facie case of discrimination under ADEA by showing that

“(i) at the relevant time the plaintiff was a member of the protected class; (ii) the plaintiff was

qualified for the job; (iii) the plaintiff suffered an adverse employment action; and (iv) the

adverse employment action occurred under circumstances giving rise to an inference of

discrimination, such as the fact that the plaintiff was replaced by someone ‘substantially

younger.’” Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001) (quoting O’Connor

v. Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996)).        “Under the ADEA, individuals

ages forty and over are members of the protected class.” Id. (citing 29 U.S.C. § 631(a)).      The




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elements of an age-based hostile work environment claim are the same as those for a

disability-based hostile work environment claim, described above.

       The district court correctly granted summary judgment to the Postal Service because the

record is insufficient to permit a rational factfinder to conclude that Plaintiffs-Appellants

established a prima facie case of age discrimination.     There is no evidence giving rise to an

inference that any Postal Service employees were motivated by age-based discrimination or

subjected Plaintiffs-Appellants to a hostile work environment on the basis of age. As an initial

matter, none of the Plaintiffs-Appellants’ evidence based on the treatment of comparator

employees is sufficient to withstand summary judgment. Plaintiffs-Appellants claim that the

other employees in the department, all of whom were younger than Plaintiffs-Appellants,

received various forms of preferential treatment. As to the claim that other employees were not

detained by Litke after their departure time to answer questions, this assertion is wholly

speculative, as Henderson conceded that neither he nor Hatch were present at the end of other

employees’ shifts.    Similarly, Plaintiffs-Appellants’ theory that younger employees were

permitted to more liberally take annual leave is based on speculation, given the absence of any

evidence regarding the leave records of other employees or Litke’s response to any leave

requests by other employees.   This conjecture does not create a triable issue of fact.

       As to Plaintiffs-Appellants’ assertion that Litke treated younger employees more

favorably by giving them a lighter workload, Plaintiffs-Appellants have not established that the

more junior employees were sufficiently similarly situated to them such that any differences in

workload expectations could support an inference of age discrimination.                   Henderson

acknowledged that “we had the bulk of the knowledge at the time,” J.A. 650, and that they were

designated as “management employees or supervisory employees,” J.A. 599.            As the district


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court observed, there is nothing unlawful about an employer imposing higher expectations on

more senior employees than on those who are less senior.

          The other circumstantial evidence on which Plaintiffs-Appellants rely is likewise

insufficient. As to the fact that Cullen mentioned Henderson’s potential retirement to Litke,

Cullen’s awareness of Henderson’s retirement eligibility does not support an inference of age

discrimination, particularly in light of the Supreme Court’s recognition that “an employee’s age

is analytically distinct from his years of service.” Hazen Paper Co. v. Biggins, 507 U.S. 604,

611 (1993).     Even if construed as evidencing an awareness of Henderson’s age, this testimony

does not support an inference of discriminatory intent on that basis, given that Cullen made the

statement in the course of attempting to dissuade Litke from issuing additional discipline to

Henderson.      As to the Postal Service’s failure to follow up on the Joint Complaint,

Plaintiffs-Appellants have shown nothing in the record that draws a link between

Plaintiffs-Appellants’ age and any deficiencies in the Postal Service’s response to their

grievance. Indeed, Henderson admitted that any such link was purely speculative, stating “I

can’t sit here right now and say definitely that was age discrimination, but why else wouldn’t

they respond? . . . I don’t want to speculate, because I don’t know.”     J.A. 601.   Similarly,

Hatch’s allegation that Bruso decided not to publish a photograph of Plaintiffs-Appellants in a

newsletter and thereby “implied we looked old” is based entirely on speculation.      J.A. 582.

Finally, Plaintiffs-Appellants’ theory that Litke wanted to rid her department of older workers

and replace them with younger workers with lower salaries was without any support in the

record.    Henderson acknowledged as much, testifying that “it seemed like they just wanted to

get rid of the two older people in the department and maybe get somebody a little younger.”

J.A. 599 (emphasis added).     He stated that this impression “was just based on the way [Litke]


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treated us. If she . . . valued our service and wanted us to stay, she wouldn’t have treated us the

way she did and we were the two oldest.”             J.A. 602.   Plaintiffs-Appellants’ conjecture

provides no basis for drawing a rational inference of age-based animus and is insufficient to

withstand summary judgment.

       We have considered Plaintiffs-Appellants’ remaining arguments and find them to be

without merit.   Accordingly, we AFFIRM the judgment of the district court.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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