06-3133-cv

P l o u r d e v. Paulson

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

AMENDED SUMMARY ORDER

R U L I N G S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS

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A N D FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A

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A t a stated term of the United States Court of Appeals

f o r the Second Circuit, held at the Daniel Patrick Moynihan

U n i t e d States Courthouse, 500 Pearl Street, in the City of

N e w York, on the 6th day of June, two thousand seven.

P R E S E N T : H O N . DENNIS JACOBS,

C h i e f Judge,

H O N . CHESTER J. STRAUB,

H O N . BARRINGTON D. PARKER,

C i r c u i t Judges.

X

K A T H Y H. PLOURDE,

Plaintiff-Appellant,

-v.- 06-3133-cv

H E N R Y M. PAULSON, JR., Secretary of

T r e a s u r y , Internal Revenue Service, *

Defendant-Appellee.

X F O R PLAINTIFF-APPELLANT: F R A N K C. DELL'AMORE (Scott M i c h a e l Mishkin, on the brief), S c o t t Michael Mishkin, P.C., I s l a n d i a , New York.

F O R DEFENDANT-APPELLEES: C A T H E R I N E M. MIRABILE, Assistant U n i t e d States Attorney (Steven K i m , Assistant United States A t t o r n e y , on the brief), for R o s l y n n R. Mauskopf, United S t a t e s Attorney for the Eastern D i s t r i c t of New York, Brooklyn, N e w York.

U P O N DUE CONSIDERATION of this appeal from a judgment o f the United States District Court for the Eastern District IT IS HEREBY ORDERED, ADJUDGED o f New York (Feuerstein, J.), A N D DECREED that the judgment of the district court is AFFIRMED.

P l a i n t i f f Kathy H. Plourde appeals from a final j u d g m e n t entered on June 14, 2006 in the United States D i s t r i c t Court for the Eastern District of New York ( F e u e r s t e i n , J.), granting summary judgment in favor of d e f e n d a n t - a p p e l l e e on all claims. We assume the parties' f a m i l i a r i t y with the underlying facts, procedural history, a n d issues presented for review.

W e review de novo the district court's grant of summary j u d g m e n t , construing the facts in the light most favorable t o the non-moving party. Cioffi v. Averill Park Cent. Sch.

D i s t . Bd. of Educ., 444 F.3d 158, 162 (2d Cir. 2006).

Summary judgment is appropriate only where "there is no g e n u i n e issue as to any material fact and . . . the moving p a r t y is entitled to a judgment as a matter of law." Fed.

R . Civ. P. 56(c). "Conclusory allegations, conjecture, and s p e c u l a t i o n . . . are insufficient to create a genuine issue o f fact." Shannon v. N.Y. City Transit Auth., 332 F.3d 95, 9 9 (2d Cir. 2003) (internal quotation marks omitted).

[ A ] "Although part-time work constitutes a reasonable a c c o m m o d a t i o n . . ., an employee who proposes this a c c o m m o d a t i o n may only prevail . . . if he can demonstrate t h a t he could perform the essential functions of his job w h i l e working part-time." Parker v. Columbia Pictures I n d u s . , 204 F.3d 326, 336 n.5 (2d Cir. 2000). Thus, "a scheduling accommodation is not reasonable if it, in essence, requires an employer to eliminate an essential function of a job." Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 120 (2d Cir. 2004); see also Shannon, 332 F.3d at 100 ("A reasonable accommodation can never involve the elimination of an essential function of a job.").

V i e w i n g the facts in the light most favorable to P l o u r d e , she failed to demonstrate that her requested a c c o m m o d a t i o n (four-hour workdays) is reasonable on its f a c e . As noted by the district court, Plourde "alleges that s h e is capable of performing the essential functions on a p a r t time-basis of the Section Chief position because she ` w a s an extremely experienced and diligent Section Chief and s h e had even more experienced managers working underneath h e r ' " and because she "`worked 150 percent [sic] within her f o u r (4) hour work day.'" Plourde v. Snow, No. 02 Civ. 5532, 2006 WL 4510754, at *8 (E.D.N.Y. June 14, 2006). But the d i s t r i c t court marshaled the undisputed facts to the contrary: [ T ] h e ERRP Section Chief was responsible for s u p e r v i s i n g a large team of individuals [five m a n a g e r s who together supervised 150 employees in f i v e separate units]. The work performed by ERRP w a s time-sensitive, and the Section Chief was r e q u i r e d to closely monitor and control the w o r k f l o w and constantly monitor and reallocate r e s o u r c e s to meet the changing needs of the p r o g r a m . Furthermore, the Section Chief was r e q u i r e d to respond to and resolve resource m a n a g e m e n t issues quickly and undertake immediate e f f o r t s to correct problems with the computer s y s t e m s . . . . While [Plourde] claims she is c a p a b l e of performing the responsibilities of the S e c t i o n Chief position in a four-hour workday, t h i s claim is belied by the . . . fact that D e f e n d a n t double-encumbered the position while [ P l o u r d e ] was temporarily working part-time, r e q u i r i n g it to pay two employees at full-time s a l a r i e s to perform the duties of the position.

I d . at *8-*10 (internal quotation marks, emendations and c i t a t i o n s omitted). Plourde's assertion that other section c h i e f s were permitted to work part-time schedules does not c r e a t e an issue of fact. For one thing, her evidence does n o t support her contention that they were similarly situated t o her. In light of the foregoing, we affirm the district c o u r t ' s dismissal of Plourde's disability discrimination claims.

[ B ] We have considered Plourde's remaining arguments r e g a r d i n g her retaliation, hostile work environment, and s e x - d i s c r i m i n a t i o n claims and we affirm for substantially t h e reasons set forth in the district court's June 14, 2006 M e m o r a n d u m and Order. See id. at *10-*14.

F O R THE COURT: C A T H E R I N E O'HAGAN WOLFE, Clerk of Court By: L u c i l l e Carr, Deputy Clerk

* Pursuant to Federal Rule of Appellate Procedure 4 3 ( c S e c r e t a r y of the Treasury, Henry M. Paulson, Jr., for the n a m e d defendant, former Secretary John W. Snow.