Hostile Work Environment (Age/ADEA) Claim Insufficiently Alleged, Court Holds

In Murtha v. New York State Gaming Commission et al, 17-cv-10040, 2019 WL 4450687 (S.D.N.Y. Sept. 17, 2019), the court, inter alia, dismissed plaintiff’s claim of hostile work environment asserted under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (ADEA).

The court summarized the pertinent law:

The ADEA prohibits requiring people to work in a discriminatorily hostile or abusive environment. … The standards for assessing a hostile work environment claim under the ADEA are analogous to those utilized under [Title VII]. … Thus, the ADEA is violated when 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. Under the ADEA, [a] work environment will be considered hostile if a reasonable person would have found it to be so and if the plaintiff subjectively so perceived it because of conduct based on the plaintiff’s over-40 age. As a general rule, incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive. … To assess a hostile work environment claim, courts consider “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. Minor incidents do not merit relief. … Importantly, a plaintiff must demonstrate that she was subjected to the hostility because of her membership in a protected class. … Thus, to the extent Plaintiff relies on incidents of alleged hostility that have no connection to his age (i.e., his colleagues’ joking about his asthma, smoking, and shutting off the air conditioning), he does not state a claim for hostile work environment under the ADEA.

Here, the age-related conduct asserted by plaintiff was limited to “(1) one younger employee being given an easier job assignment over the Plaintiff, (2) younger employees committing workplace infractions, for which no employee was ever punished, without consequence, and (3) two older employees being demoted or fired without cause.”

This, held the court, was not sufficient:

Plaintiff does not allege that any of the foregoing conduct interfered with his work performance. Furthermore, the mere fact that one older employee was passed over for a promotion, and another demoted and then fired, over a period of three years, does not establish a systematic pattern of concerted ill-treatment of older … employees intended to encourage their resignation … as Plaintiff argues[.] In sum, the conduct alleged by Plaintiff lack[s] the pervasiveness, ridicule, or intimidation necessary to create a hostile work environment.

Based on this, the court held that plaintiff’s complaint failed to state a claim for hostile work environment.

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