Knope v. Lynch et al

Filing 60

REPORT AND RECOMMENDATIONS RE: 45 MOTION for Summary Judgment filed by William P. Barr.Objections due per 28 U.S.C. § 636(b) and Fed. R. Civ. P. 6, 72.Signed by Hon. Hugh B. Scott on 10/8/2019. (GAI)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Sharon M. Knope,
Plaintiff,

Report and Recommendation
16-CV-809V

v.
William P. Barr, in his official capacity as
Attorney General of the United States,
Defendant.

I.

INTRODUCTION
Plaintiff Sharon Knope worked for about 20 years as a Victim Witness Coordinator in the
United States Attorney’s Office for the Western District of New York (“USAO”). Plaintiff received
positive evaluations for her work, even after she was diagnosed in 2005 with celiac disease, irritable
bowel syndrome, and frequent kidney stones. For about the last four years of her employment,
however, plaintiff’s worsening medical conditions, the USAO’s formal and informal expectations for
her job, and some possible personality conflicts came into tension with each other. The flashpoint
was after-hours availability. Simply put, plaintiff and the USAO never had a meeting of the minds as
to how essential after-hours availability was to plaintiff’s job. Some miscommunications resulted,
though the miscommunications never led to any disciplinary action. By the time the two sides began
communicating to reach a meeting of the minds, plaintiff’s health deteriorated to the point at which
she took indefinite leave, applied for disability retirement, and never worked again.
This litigation began because plaintiff believes that the issue of after-hours availability led to
more than ordinary office disputes and tensions—it led to a failure to accommodate her medical
conditions and to efforts to target her as a woman and as an older employee. After completing the
prerequisite administrative proceedings, plaintiff sued defendant—nominally the Attorney General,

but effectively the USAO—for violations of the Americans with Disabilities Act (“ADA”), 42
U.S.C. §§ 12101–12213; Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e
to 2000e-17; and the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621–
634. (Dkt. No. 28 (docket numbers hereafter in brackets).) Following discovery, defendant filed a
motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. [45.] The
USAO raises the procedural point that the ADA does not cover federal employees. On substance,
most of the USAO’s arguments flow from the issue of after-hours availability and the critical
contention that after-hours availability was an essential function of plaintiff’s job. If so then the
USAO could not grant plaintiff’s request to eliminate after-hours availability entirely as a reasonable
accommodation. Any events that occurred in connection with after-hours availability would not
have been discriminatory in nature. At most, many disagreements between the two sides would
have been ordinary office conflicts. Plaintiff opposes the pending motion, viewing the issue of
after-hours availability—particularly any suggestion of 24-hour availability—as a drastic and nonessential change in her employment that exacerbated her medical conditions. Plaintiff views the
issue along with other office conflicts as part of a larger campaign to drive her out of the office
because she was an older woman with a higher salary.
District Judge Lawrence J. Vilardo has referred this case to this Court under 28 U.S.C.
§ 636(b). [7.] The Court has deemed the motions submitted on papers under Rule 78(b). For the
reasons below, the Court respectfully recommends granting defendant’s motion.
II.

BACKGROUND
This case concerns allegations that the USAO pushed plaintiff out of her job by changing

the terms of her employment and then refusing to make any accommodation for her medical
conditions. Plaintiff began working for the USAO in 1996. From 1996 until her termination in
2

2016, plaintiff worked as the Victim Witness Coordinator in the USAO’s Buffalo office.1 The
parties dispute exactly what plaintiff’s job entailed, but the following description from plaintiff’s
second amended complaint is an undisputed summary of the job’s core responsibilities:
In this position Ms. Knope managed the district’s victim witness program; in
that she handled all the victim cases for the Buffalo Office, notified victims of case
status and their rights as victims, accompanied victims to court proceedings and
explained the criminal justice process, and provided referrals to victim assistance
agencies as needed, handled witness management for trials, including witness travel
arrangements for out of town witnesses, assisting any other local witnesses that may
need assistance in getting to court, answering their questions about the court process.
[28 at 4–5.] Around 2005, plaintiff was diagnosed with celiac disease, irritable bowel syndrome, and
frequent kidney stones. Nonetheless, plaintiff’s employment between 1996 and 2012 appears to
have been largely uneventful.
The events that led to plaintiff’s litigation began in 2012. Around May 2012, plaintiff learned
that her office would be moving within the USAO. [45-6 at 35.] The USAO occupies three floors
of the building in which it resides—the fourth, fifth, and sixth floors. Plaintiff had been located on
the fourth floor with the USAO’s administrative staff. Plaintiff now was moving to the fifth floor
with the criminal trial attorneys. The USAO justified the move based on plaintiff’s extensive work
in criminal cases, but plaintiff considered the move a demotion:
Q. What did you believe the intent was?
A. To—to demote me.
Q. Why would a move to the fifth floor be considered a demotion?
A. Because the fifth floor was mostly just drug/narcotics attorneys, and I didn’t
really—you know, they have a rare victim case, but my primary caseload
came from the criminal attorneys on the sixth floor. And because the U.S.
Attorney and the first assistant criminal chief were always on the sixth floor,

1

Early in plaintiff’s career with the USAO, she also handled duties related to grand jury logistics. [See 45-6 at
4.] This additional duty does not affect the Court’s analysis below but is noted for the sake of the record.

3

the perception is always, you know, that’s where the—the higher folks are.
Q. On the sixth floor?
A. Yeah. I mean, not—I mean, it wasn’t like it was a real, you know, big deal, but it
was definitely seen in the office as a punishment, demotion, because when I
was—when I was moving into my fifth floor office, everybody on the fifth
floor and people that were coming down from the sixth floor, every single
person said to me, who did you piss off, why are you being punished.
[45-6 at 39.] The move created a related issue about whether plaintiff had a nameplate outside her
office that would allow attorneys to find her easily. Around the same time, plaintiff had a meeting
with then-United States Attorney William Hochul. Plaintiff recalled the meeting as a confrontational
one that increased her stress and exacerbated her medical conditions:
He [Hochul] then went on to say [that] I “need to do more,” I “need to be
more involved,” [and] I’m “not doing enough” and when I tried to ask what he
meant he wouldn’t answer, kept cutting me off. He said, “Sharon, you’re one of the
highest paid people in this office.” My “salary and position are preventing him from
hiring more attorneys.” He “doesn’t know how I got to be a GS-13 [salary level].”
His tone of voice was scathing as he said all this. He reiterated that I don’t do enough,
that he wants me to do more, but still wouldn’t say what or give me any direction.
He wouldn’t answer my questions and then just dismissed me from his office.
[45-17 at 3.] The second amended complaint describes an incident in 2014 in which an apparent
miscommunication about providing trial support led to an angry verbal confrontation by one of the
trial attorneys. [28 at 7–8.] The confrontation exacerbated plaintiff’s stress. By 2015, plaintiff’s
supervisors developed an understanding that plaintiff had to be available after hours to address
victim witness issues that could not wait until the next business day. The understanding was that
availability after hours meant availability “24/7.” [55-7 at 2.]2 This understanding differed in degree,
though not in kind, from plaintiff’s experience up to that point. Plaintiff testified at her deposition
that phone calls after hours were “pretty rare” prior to 2012. [45-6 at 51.] Plaintiff did

2

Plaintiff cites the email chain in this portion of the record to claim that the expectation of 24-hour
availability began in 2013. [55 at 9.] The email messages themselves, though, appear to contain dates in 2015.

4

acknowledge, though, the significance of having an office-issued cellular phone:
Q. And, again, what’s your understanding as to why you were issued a government—
an office-issued cell phone?
A. It was to take the—replace the pager. We weren’t using pagers anymore, so we
were just—they had—technology had upgraded to a cell phone, so we were
given a cell phone and that’s all. And at the time I assumed that the
instructions for that were the same as they had been with the pager, that I
would just be responsible for any emergencies that may come up.
Q. So was it your understanding that in your position from time to time issues with
either victims or witnesses may arise outside of normal business hours and
someone may need to reach you?
A. For an emergency, yes, and it was primarily for—usually for trial situations.
Q. Okay. So a trial’s going on and a witness might need a last-minute reservation,
travel arrangements, or any other number of things that might come up while
a trial is happening?
A. Yes.
[Id. At 49.]
To the extent that the parties had different understandings of plaintiff’s availability after
hours, those differences came to the forefront during an incident in June 2015. In short, the
USAO’s Rochester office had a child pornography case that named a man and a woman as
defendants. A Rochester area radio station posted a photograph of the woman defendant on its
website. A school district in the Rochester area became concerned that the photograph could allow
viewers to realize that the woman defendant had children in that school district and could allow
viewers to identify who those children were. [45-15 at 5.] The USAO deliberated about whether
and how to approach the radio station about removing the photograph from its website. The
deliberations included contacting plaintiff to draw on her experience handling victim witnesses

5

including witnesses in child pornography cases.3 Due to medical illness, however, plaintiff did not
respond to any phone calls or email messages over an entire weekend when the deliberations
occurred. Members of the USAO were upset the following Monday morning and requested an
explanation when plaintiff finally checked in with them. Plaintiff explained that she had been sick all
weekend and was unable to check her phone for calls or messages. [45-29 at 2.] Some discussion
ensued about plaintiff’s responsibility to respond after hours, but the USAO attempted no
disciplinary action. The only action that the USAO took was a comment in plaintiff’s 2015 mid-year
review that “an issue” about availability had arisen that was being investigated. [45-27 at 9.] The
review otherwise contained positive comments that plaintiff earned praise for her work on several
occasions. [Id.]
The final events pertaining to the case and to the pending motion began after the June 2015
weekend incident. A few days later, on June 18, 2015, plaintiff obtained a medical note stating that
she “should not be on call until further notice.” [45-32 at 3.]4 A few days after obtaining the
medical note, on June 24, 2015, plaintiff submitted a DOJ Form 100A Request for Reasonable
Accommodation. [45-32 at 2.] Plaintiff requested the accommodation of being removed from all
on-call responsibilities. Plaintiff cited her medical note and “the worsening of my disability—celiac
disease” and offered that “my primary physician will provide more information if necessary.” [Id.]
Plaintiff’s request appears to have prompted a continuing conversation by email between her, her
supervisors at the USAO, and the General Counsel’s Office at the Department of Justice in
Washington, DC. [45-42 at 2–4.] The conversation centered around whether and to what extent

3

The record is not clear as to why the USAO needed to reach plaintiff when the case originated in the
Rochester office, and the Rochester office has its own Victim Witness Coordinator. [See 45-31 at 2.]
4
The medical note appears to have the mistaken date of June 18, 2017. The year 2015 likely was intended.

6

after-hours availability constituted an essential function of plaintiff’s job. The email thread ended
with an agreement that the General Counsel’s Office would continue the conversation with
plaintiff’s attorney. Meanwhile, on August 14, 2015, plaintiff obtained another medical note stating
that she was not “allowed to be on call 24/7 for work without exception. A copy of this letter is
being added to the patient’s medical chart. If you are in need of further information, it is advised
that you obtain proper release of information from Sharon and contact me directly regarding what
accommodations may be made for her since I am medically advising against call 24/7 for work.”
[45-42 at 5.] On August 28 and September 11, 2015, the General Counsel’s Office did in fact
resume the conversation with plaintiff’s attorney, asking whether plaintiff would consent to having
her doctors contacted. [45-43 at 2.] While these communications were pending, two more incidents
occurred regarding victim witnesses and communications with them. [45-44; 45-45.] Beyond some
discussion, the USAO took no formal action. When plaintiff’s counsel responded to the General
Counsel’s Office on September 14, 2015, permission to speak to plaintiff’s physicians was denied
despite the invitations in plaintiff’s request for accommodation and in her physician’s note. [45-46
at 2.] Counsel then reiterated the position that after-hours availability was not an essential function
of the Victim Witness Coordinator job; and that plaintiff could be accommodated either by
removing the need for availability or by moving her to another open position. [See generally 45-46.]
A few days later, on September 18, 2015, plaintiff provided medical documentation that she could
not perform any functions of her job at all. [45-51 at 2.] On September 21, 2015, plaintiff went on
indefinite leave under the Family and Medical Leave Act. On December 22, 2015, plaintiff’s medical
treatment providers furnished a letter explaining that plaintiff was “unable to work at any job for at
least 12 months starting 12/7/2015 due to the nature of stress it causes on her body, mind [sic] and
the myriad of exacerbations she is experiencing related to these known medical conditions.” [45-53
7

at 4.] As far as the Court can tell from the record, plaintiff did not appear at the USAO again after
September 18, 2015. [45-61 at 2.] With plaintiff now on record from her own medical providers
that she could not work any job for an indefinite time, the USAO served plaintiff on February 12,
2016 with a proposed removal from her position. [45-56.] The proposed removal cited medical
inability to perform duties and excessive absence. [Id. at 7.] Through counsel, plaintiff responded to
the proposed removal on March 11, 2016. [45-57.] Among other issues, the response continued to
press for a reasonable accommodation without directly addressing the remark from plaintiff’s own
medical providers that she was “unable to work at any job for at least 12 months.” In fact, the
response contained the following paragraph, which reads almost as if it blamed the USAO for
plaintiff’s deteriorating health by not finding a reasonable accommodation earlier:
In fact, by the Agency’s own admission in the proposed removal letter, Ms.
Knope has been threatened, since at least December 11, 2015, with termination. The
contention that the Agency cannot accommodate nor re-assign Ms. Knope now is
senseless. Had the Agency acted promptly and in good faith when Ms. Knope’s
reasonable accommodation request was submitted on June 24, 2015, before her
medical condition worsened and required medical leave, the issue would have been
resolved.
[45-57 at 13.] On April 4, 2016, the USAO formally terminated plaintiff. [45-58.]
Plaintiff’s legal efforts began with the filing of an Equal Employment Opportunity (“EEO”)
complaint with the Department of Justice on August 10, 2015. [45-33.] In the complaint, plaintiff
summarized events from the preceding two years that she believed constituted harassment and an
intentional effort to eliminate her from the office. Plaintiff filed a second EEO complaint on April
2, 2016 [45-59]; she did so because she believed that the USAO’s decision to proceed with the
proposed removal constituted retaliation for filing the first complaint. On September 9, 2016, the
Department of Justice found no discriminatory acts and dismissed plaintiff’s complaints. Plaintiff
then filed her original complaint on October 11, 2016 and her second amended complaint, the
8

current operative pleading, on September 26, 2017. The second amended complaint [28] contains a
total of seven claims: discrimination, hostile work environment, and retaliation in violation of the
ADA; discrimination, hostile work environment, and retaliation in violation of Title VII; and
discrimination in violation of the ADEA.
The USAO filed the pending motion on May 31, 2019. As a preliminary matter, the USAO
seeks summary judgment on all of the ADA claims because the ADA does not cover federal
employees. “The Rehabilitation Act is the sole and exclusive remedy for federal employees asserting
claims of employment discrimination.” [45-2 at 23.] As for substantive issues, the USAO argues
that after-hours availability was an essential function of plaintiff’s job and that her “inability to
perform that function is fatal to her claim.” [Id. at 25.] The USAO argues that it was not required
to hire additional employees or to change plaintiff’s responsibilities in response to her inability to
perform an essential function. The USAO argues further that it never reached a point at which it
actually denied plaintiff’s request for a reasonable accommodation. According to the USAO,
plaintiff made the request; the USAO requested additional information; and plaintiff declined to
provide that information while withdrawing from the interactive process and beginning what
became indefinite leave. With respect to plaintiff’s other allegations, the USAO argues that it had
legitimate, non-discriminatory reasons to terminate plaintiff. Plaintiff was unable to perform her
job, according to the USAO, and was absent from her job long enough to create a hardship on
others in the office. Plaintiff’s allegations of a hostile work environment, even if accepted as true,
do not meet the necessary legal thresholds because the alleged conduct never altered the conditions
of her employment.
Plaintiff opposes the USAO’s motion in all respects. Plaintiff argues that similarly situated
male employees were permitted to do a substantial amount of their work from home when they had
9

disabilities. Similarly situated male employees, according to plaintiff, also did not face questions
about their salary and were not subjected to verbal abuse or two false disciplinary issues. With
respect to the essential functions of her job, plaintiff argues that essential functions are questions for
jury, assuming that “there can ever be any reasonable accommodation when the demand is absolute
100% immediate availability.” [55 at 30.] Plaintiff argues that the USAO has not shown that her
requested accommodation would have caused an undue burden. Plaintiff implicitly concedes the
USAO’s argument that the ADA does not cover federal employees. Nonetheless, “Ms. Knope
asserts that, because the facts plead in her Complaint and revealed through discovery establish the
elements of a disability claim under the ADA, they similarly establish the elements of a disability
claim under the Rehabilitation Act. Accordingly, the Complaint should be read as having plead
claims under the Rehabilitation Act or Ms. Knope should be permitted to amend her complaint to
conform the causes of action to the facts already resolved through discovery.” [Id. at 32.] Plaintiff
believes that she has established age-related discrimination through the USAO’s complaints about
her salary. Finally, plaintiff argues that the USAO retaliated against her when it initiated removal
proceedings while her first EEO complaint was pending.
III.

DISCUSSION

A. Summary Judgment Generally
“The court shall grant summary judgment if the movant shows that 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). “As to materiality, the substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment . . . . More important for present purposes, summary
judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such
10

that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986) (citation omitted). “The party seeking summary judgment has the burden
to demonstrate that no genuine issue of material fact exists. In determining whether a genuine issue
of material fact exists, a court must examine the evidence in the light most favorable to, and draw all
inferences in favor of, the non-movant . . . . Summary judgment is improper if there is any evidence
in the record that could reasonably support a jury’s verdict for the non-moving party.” Marvel
Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002) (citations omitted). “Where, as here, the
nonmovant would bear the burden of proof at trial, the movant may show prima facie entitlement to
summary judgment by either (1) pointing to evidence that negates its opponent’s claims or (2)
identifying those portions of its opponent’s evidence that demonstrate the absence of a genuine
issue of material fact.” Barlow v. Male Geneva Police Officer who Arrested me on Jan. 2005, 434 F. App’x
22, 25 (2d Cir. 2011) (summary order) (internal quotation and editorial marks and citation omitted).

B. Constructive Amendment of Plaintiff’s ADA Claims
Before addressing the core of the pending motion, the Court needs to address a preliminary
matter concerning the form of the second amended complaint. Specifically, the Court needs to
decide what to do about the USAO’s argument that the ADA does not apply to federal employees.
Plaintiff does not contest the point directly. Plaintiff cannot contest the point because the USAO is
correct. See 42 U.S.C. § 12111(5)(B)(i) (“The term ‘employer’ does not include the United States
. . . .”); Johnson v. Dep’t of Interior, 189 F.3d 461, 1999 WL 710123, at *1 (2d Cir. Sep. 2, 1999) (table
case) (“As an initial matter, appellant’s ADA claim was properly dismissed because the ADA
expressly excludes the federal government from coverage.”) (citing Section 12111(5)(B)(i)). Federal
employees, however, have essentially identical protections by way of the Rehabilitation Act of 1973
(“Rehabilitation Act”), 29 U.S.C. §§ 701–796l. See Rivera v. Heyman, 157 F.3d 101, 103–04 (2d Cir.
11

1998) (citations omitted). Plaintiff has asked to have the first three claims in the second amended
complaint regarded as claims under the Rehabilitation Act. The USAO’s argument thus reduces to
whether summary judgment on an unusual technical basis best serves the interests of justice.
This legal error should not have occurred in the first place and should have been caught
earlier. If plaintiff were asking to place her claims under a substantively different statute then the
Court would be more inclined to deny the request. Switching to a substantively different statute
would have implications for discovery, and discovery for this case is closed. Plaintiff, though, is not
seeking to switch to a substantively different statute. In this unusual instance, plaintiff has available
to her a statute that offers essentially identical remedies without the need to change discovery or any
theories of the case. In that context, and considering the analysis that follows below, the Court will
make the constructive change for plaintiff. See In re Zweibon, 565 F.2d 742, 747 (D.C. Cir. 1977); In re
Bennett Funding Grp., Inc., 220 B.R. 743, 752 (Bankr. N.D.N.Y. 1997); Index Fund, Inc. v. Hagopian, 609
F. Supp. 499, 503 (S.D.N.Y. 1985) (“Despite the defendants’ argument that the plaintiff should not
be permitted to amend the complaint in the case at bar, the defendants have made no showing that
they would be unduly prejudiced by the proposed amendment.”). The Court will proceed
construing the first three claims in the second amended complaint as claims under 29 U.S.C.
§ 794(a).

C. Plaintiff’s Rehabilitation Act Claims (Counts 1–3)
Under the Rehabilitation Act, “No otherwise qualified individual with a disability in the
United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability,
be excluded from the participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance or under any program or activity
conducted by any Executive agency or by the United States Postal Service.” 29 U.S.C. § 794(a). The
12

Rehabilitation Act assesses non-affirmative action employment discrimination under the same
standards as Title I of the ADA. 29 U.S.C. § 791(f). “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. In addition, a
plaintiff must show the connections between (1) the failure to accommodate a disability, (2) the
performance deficiencies, and (3) the adverse employment action.” Natofsky v. City of New York, 921
F.3d 337, 352 (2d Cir. 2019) (internal quotation and editorial marks and citations omitted). “The
elements of a retaliation claim under either the Rehabilitation Act or the ADA are (i) a plaintiff 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. A causal connection in
retaliation claims can 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. at 353 (internal
quotation and editorial marks and citations omitted).
The Second Circuit has not yet decided whether plaintiffs can bring claims of a hostile work
environment under the Rehabilitation Act or the ADA. See Wesley-Dickson v. Warwick Valley Cent.
Sch. Dist., 586 F. App’x 739, 745 n.2 (2d Cir. 2014) (summary order). Assuming that such claims are
possible, “[a] hostile work environment claim requires a plaintiff to prove two principal elements.
13

First, she must show that the workplace is permeated with discriminatory intimidation, ridicule, and
insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and
create an abusive working environment. The complained-of conduct must be objectively hostile or
abusive; the plaintiff must subjectively perceive the conduct as hostile or abusive; and the conduct
must create the environment because of the plaintiff’s disability. If a plaintiff relies on multiple
events, the incidents must be more than episodic; they must be sufficiently continuous and
concerted in order to be deemed pervasive. Courts examine the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work performance. Second, a
plaintiff must show that a specific basis exists for imputing the conduct that created the hostile
environment to the employer. When harassment is perpetrated by the plaintiff’s coworkers, an
employer will be liable if the plaintiff demonstrates that the employer either provided no reasonable
avenue for complaint or knew of the harassment but did nothing about it. Where a low-level
supervisor does not rely on his supervisory authority to carry out the harassment, the situation will
generally be indistinguishable from cases in which the harassment is perpetrated by the plaintiff’s coworkers.” Kelly v. New York State Office of Mental Health, 200 F. Supp. 3d 378, 399 (E.D.N.Y. 2016)
(internal quotation and editorial marks and citations omitted).
Here, plaintiff’s medical treatment providers undermined her Rehabilitation Act claims when
they declared her unable to work at all for an indefinite period of time. In April 2013, the USAO
approved plaintiff’s request for a part-time schedule for several months. [45-22 at 2.] On
September 30, 2013, the USAO denied an initial request for removal from on-call status only
because of inadequate medical documentation. [45-24, 45-25.] Plaintiff renewed the request on
June 24, 2015. [45-32 at 2.] On August 14, 2015, plaintiff’s physician assistant supported plaintiff’s
14

request with a medical note that “Sharon Knope is NOT allowed to be on call 24/7 for work
without exception.” [45-42 at 5.] As of September 14, 2015, plaintiff’s counsel was expressing
gratitude to the General Counsel’s Office for its willingness “to explore a reasonable
accommodation for her work situation.” [45-46 at 2.] While the request was under consideration,
though, plaintiff’s situation changed quickly. Plaintiff never worked again at the USAO after
September 18, 2015; she began what became indefinite leave on September 21, 2015. [45-61 at 2.]
Around the same time, plaintiff provided the General Counsel’s Office with documentation “that
she was no longer able to perform any functions of her job.” [45-51 at 2.] Plaintiff subsequently
applied for disability retirement. [Id.] A few days later, plaintiff’s physician assistant furnished a
letter explaining plaintiff’s medical conditions and how “[t]hese conditions are NOT expected to
improve and the date of possible partial recovery is 12 months from 12/7/2015.” [45-53 at 3.]
Plaintiff’s physician assistant concluded that “[i]t is obvious to this provider that Sharon Knope is
unable to work any job for at least 12 months starting 12/7/2015 due to the nature of stress it causes
on her body, mind [sic] and the myriad of exacerbations she is experiencing related to these known
medical conditions.” [Id. at 4 (emphasis added).] Plaintiff’s treatment providers have created a
situation different than situations in which plaintiffs invoked the legal term “totally disabled” and
then had to explain why they did so. See, e.g., Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 807
(1999) (“When faced with a plaintiff’s previous sworn statement asserting ‘total disability’ or the like,
the court should require an explanation of any apparent inconsistency with the necessary elements
of an ADA claim. To defeat summary judgment, that explanation must be sufficient to warrant a
reasonable juror’s concluding that, assuming the truth of, or the plaintiff’s good-faith belief in, the
earlier statement, the plaintiff could nonetheless ‘perform the essential functions’ of her job, with or
without ‘reasonable accommodation.’”); Rodal v. Anesthesia Grp. of Onondaga, P.C., 369 F.3d 113, 119
15

(2d Cir. 2004) (summary judgment denied where “Dr. Rodal states that if his May 1999 request for a
scheduling accommodation had been granted, he could have continued to work as a Group
anesthesiologist, performing the essential duties of that job. But, as he stated in the New York
action, with no such accommodation having been granted by July 1999, he could no longer carry out
the duties of that position and, thus, found it necessary to take disability leave.”). Plaintiff’s
treatment providers have not suggested that plaintiff had to take indefinite leave and had to apply
for disability retirement solely because of the issue of after-hours availability. Instead, plaintiff’s
treatment providers diagnosed plaintiff with medical illnesses that soon worsened to the point at
which she could not work any job under any conditions. Cf. Vazquez v. Southside United Hous. Dev.
Fund Corp., No. 06-CV-5997(NGG)(LB), 2009 WL 2596490, at *11 (E.D.N.Y. Aug. 21, 2009) (“The
ADA does not require an employer to maintain an employee’s position while an employee
unilaterally takes an indefinite leave of absence.”). The final letter from plaintiff’s physician assistant
does not suggest in any way that removing after-hours availability from plaintiff’s job would improve
plaintiff’s situation at all, let alone within 12 months or any other definite time. Cf. Potter v. Xerox
Corp., 1 F. App’x 34, 36 (2d Cir. 2001) (summary order) (“If Potter is totally disabled, then he cannot
perform the essential functions of his job or any job.”); Clark v. New York State Elec. & Gas Corp., 67
F. Supp. 2d 63, 75 (N.D.N.Y. 1999) (“Plaintiff claims that she is permanently disabled and unable to
return to work, even with accommodations. Because Plaintiff is totally disabled, and cannot
perform her job with or without reasonable accommodation, she is not a ‘qualified individual with a
disability’ within the meaning of the ADA and, therefore, cannot succeed on her claim for
discrimination based on the ADA.”) (citations omitted).
The apparently rapid deterioration of plaintiff’s health is sad and worthy of sympathy, but
that same deterioration was independent of the ongoing discussion about reasonable
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accommodations and made the issue of reasonable accommodations irrelevant. Consequently, no
matter how a jury might have deliberated over other essential functions of the Victim Witness
Coordinator job, no reasonable jury could disagree that attendance was an essential function. No
reasonable jury thus could conclude that plaintiff is a qualified individual with a disability. At the
same time, plaintiff has not shown any material alteration in her conditions of employment while she
was still working. Because plaintiff’s indefinite absence forced the USAO to do something about
filling plaintiff’s role, the removal proceedings did not amount to retaliation. Under these
circumstances, summary judgment is appropriate for the first three claims in plaintiff’s second
amended complaint.

D. Plaintiff’s Title VII Claims (Counts 4–6)
The Court turns next to plaintiff’s three claims under Title VII. “Title VII applies to federal
government employment by way of 42 U.S.C. § 2000e-16. The Rehabilitation Act makes Title VII’s
rights and remedies available to federal employees by way of 29 U.S.C. § 794a.” DeMuth v. McMahon,
No. 16-CV-125A, 2019 WL 806898, at *5 (W.D.N.Y. Feb. 21, 2019), report and recommendation adopted,
No. 16-CV-125A, 2019 WL 1979704 (W.D.N.Y. May 3, 2019).
With respect to the discrimination claim, “plaintiff must establish 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. The burden of
establishing a prima facie case is not onerous, and has been frequently described as minimal. If the
plaintiff successfully establishes a prima facie case, the burden then must shift to the employer to
articulate some legitimate, nondiscriminatory reason for the adverse employment action. If the
employer carries that burden, the plaintiff’s admissible evidence must show circumstances that
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would be sufficient to permit a rational finder of fact to infer that the defendant’s employment
decision was more likely than not based in whole or in part on discrimination.” Walsh v. New York
City Hous. Auth., 828 F.3d 70, 75 (2d Cir. 2016) (internal quotation marks and citations omitted).
“Proving the existence of a hostile work environment involves showing both objective and
subjective elements: the misconduct shown must be severe or pervasive enough to create an
objectively hostile or abusive work environment, and the victim must also subjectively perceive that
environment to be abusive. Among the factors we consider are the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with the employee’s work performance. As a
general rule, incidents must be more than episodic; they must be sufficiently continuous and
concerted in order to be deemed pervasive. However, a single act can create a hostile work
environment if it in fact works a transformation of the plaintiff’s workplace.” Feingold v. New York,
366 F.3d 138, 150 (2d Cir. 2004) (internal quotation and editorial marks and citations omitted).
Finally, “[i]n order to establish a prima facie case of retaliation, an employee must show [1]
participation in a protected activity known to the defendant; [2] an employment action
disadvantaging the plaintiff; and [3] a causal connection between the protected activity and the
adverse employment action.” Id. at 156 (internal quotation marks and citations omitted).
Here, the record lacks enough information to allow plaintiff to make a prima facie case.
Plaintiff never experienced an adverse employment action. The closest that the record comes to
documenting an adverse employment action is in the 2015 mid-year progress review. [45-27 at 9.]
In that review, the USAO gave plaintiff generally positive remarks and stated only that “an issue
arose with after-hours communication which is being addressed.” [Id.] On other occasions, when
disputes arose about victim witness management, the USAO declined to pursue any kind of
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reprimand. [45-7 at 32; 45-19 at 14.] Cf. Sotomayor v. City of New York, 862 F. Supp. 2d 226, 255
(E.D.N.Y. 2012) (“Since neither the more frequent observations nor the negative reviews of the
plaintiff’s work had any material consequences on the terms and conditions of Sotomayor’s
employment, they are not adverse employment actions.”). For purposes of the pending motion, the
Court will give plaintiff the benefit of the doubt that her June 2012 meeting with Hochul was
confrontational and maybe even verbally abusive in a general sense. Plaintiff herself, though,
testified that Hochul made no comments about her as a woman. [45-6 at 28.] In the broader office
environment, plaintiff perceived that Hochul did not like to hire female attorneys but could not
support that perception with any first-hand knowledge. [45-6 at 29.] Other confrontations
described in the second amended complaint would fall into the same analysis: at most
unprofessional but not targeting plaintiff as a woman and not altering her terms of employment. Cf.
Martinez v. New York City Dep’t of Educ., No. 04 CIV. 2728 LTS DFE, 2008 WL 2220638, at *8
(S.D.N.Y. May 27, 2008) (“While the record certainly contains evidence suggesting that Sulner
disliked Plaintiff personally, there is nothing in the record from which it can be inferred that such
dislike was due to his sex and, if anything, Plaintiff’s own testimony regarding two female employees
who allegedly lived in constant fear of Sulner because they perceived that Sulner did not like them
undermines Plaintiff’s claim that Sulner was biased against men.”). Under these circumstances,
summary judgment is appropriate for the fourth, fifth, and sixth claims in the second amended
complaint.

E. Plaintiff’s ADEA Claim (Count 7)
Finally, the Court will address briefly plaintiff’s claim of discrimination under the ADEA.
“In order to establish a prima facie case of age discrimination, [plaintiff] must show (1) that she was
within the protected age group, (2) that she was qualified for the position, (3) that she experienced
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adverse employment action, and (4) that such action occurred under circumstances giving rise to an
inference of discrimination.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010)
(citation omitted). The first factor is not in dispute here; the second factor is not in dispute either, at
least up to the beginning of plaintiff’s indefinite absence. The problem for plaintiff is the third
factor. As with her Title VII claims, plaintiff has not shown that she ever suffered an adverse
employment action. Plaintiff’s title, salary, and benefits never changed. Other than the issue of
after-hours availability, plaintiff’s responsibilities never changed. Cf. Mabry v. Neighborhood Def. Serv.,
769 F. Supp. 2d 381, 399 (S.D.N.Y. 2011) (“Plaintiff’s allegation that he was excluded from
management meetings, when considered in context, does not constitute an adverse employment
action. As plaintiff alleged in his Complaint, he continues to maintain his position as the Computer
Services Director of NDS, he has not been put on a performance improvement plan and his role
and responsibilities have remained largely the same, with the exception that he is now supervised by
the COO, who also supervises the human resources department and facilities, rather than the
Executive Director.”); Kearney v. Cty. of Rockland, 373 F. Supp. 2d 434, 443 (S.D.N.Y. 2005) (“Plaintiff
has failed to proffer any evidence demonstrating that her reassignment to the Criminal Unit resulted
in a change in her job responsibilities ‘so significant as to constitute a setback’ to her career, or that
her chances for promotion were in any way affected by the transfer.”). With respect to after-hours
availability, plaintiff herself has acknowledged that some amount of availability always was part of
her job. [See 45-6 at 47, 49.] Even if the Court gave plaintiff the benefit of the doubt that the terms
of after-hours availability changed at some point, nothing in the record suggests that the changes
occurred to target older workers. Plaintiff testified that the increase in after-hours calls that she
experienced was attributable to the increase in the number of trials that the USAO had. [45-6 at 52.]
Most of the calls concerned last-minute changes in arrangements for victim witness travel. [Id.] In
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fact, the record indicates that any changes or clarifications about after-hours availability occurred in
consultation with the General Counsel’s Office [45-36 at 2]; plaintiff has not accused that office of
discriminating against her as well. Other issues failed to add support to plaintiff’s claim. Plaintiff
has testified that Hochul said nothing about her age during the June 2012 meeting. [45-6 at 31.]
Hochul allegedly made comments to the effect that plaintiff’s salary was out of proportion to the
substance of her job; plaintiff chose to interpret those comments as an indirect criticism of her age.
Plaintiff similarly chose to make negative inferences about the relocation of her office. [45-6 at 39.]
There might well be an internal office culture at the USAO that informally views certain office
locations as more prestigious than others. Informal office perceptions, however, do not by
themselves rise to the level of an adverse employment action. Cf. Williams v. R.H. Donnelley, Corp.,
368 F.3d 123, 128 (2d Cir. 2004) (“[S]ubjective, personal disappointments do not meet the objective
indicia of an adverse employment action.”) (citation omitted). The Court also keeps in mind that, as
with plaintiff’s claims under the Rehabilitation Act, any discussion of what plaintiff’s job was or was
not supposed to be became irrelevant once her own treatment providers declared her unable to
work any job under any circumstances, indefinitely. For these reasons, summary judgment is
appropriate for the seventh claim in the second amended complaint.
IV.

CONCLUSION
For all of the foregoing reasons, the Court respectfully recommends granting defendant’s

motion (Dkt. No. 45).
V.

OBJECTIONS
A copy of this Report and Recommendation will be sent to counsel for the parties by
electronic filing on the date below. “Within 14 days after being served with a copy of the
recommended disposition, a party may serve and file specific written objections to the proposed
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findings and recommendations.” Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1). Any
objections must be filed electronically with the Clerk of the Court through the CM/ECF system.
“As a rule, a party’s failure to object to any purported error or omission in a magistrate
judge’s report waives further judicial review of the point.” Cephas v. Nash, 328 F.3d 98, 107 (2d Cir.
2003) (citations omitted); see also Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)
(“Where parties receive clear notice of the consequences, failure timely to object to a magistrate’s
report and recommendation operates as a waiver of further judicial review of the magistrate’s
decision.”) (citation omitted). “We have adopted the rule that failure to object timely to a magistrate
judge’s report may operate as a waiver of any further judicial review of the decision, as long as the
parties receive clear notice of the consequences of their failure to object. The rule is
enforced under our supervisory powers and is a nonjurisdictional waiver provision whose violation
we may excuse in the interest of justice.” United States v. Male Juvenile (95-CR-1074), 121 F.3d 34,
38–39 (2d Cir. 1997) (internal quotation marks and citations omitted).
“Where a party only raises general objections, a district court need only satisfy itself there is
no clear error on the face of the record. Indeed, objections that are merely perfunctory responses
argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the
original papers will not suffice to invoke de novo review. Such objections would reduce the
magistrate’s work to something akin to a meaningless dress rehearsal.” Owusu v. N.Y. State Ins., 655 F.
Supp. 2d 308, 312–13 (S.D.N.Y. 2009) (internal quotation and editorial marks and citations omitted).
SO ORDERED.

__/s Hugh B. Scott________
DATED: October 8, 2019

Hon. Hugh B. Scott
United States Magistrate Judge

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