In Bernstein v. New York City Department of Education, 2020 WL 6564809 (S.D.N.Y. Nov. 9, 2020), the court, inter alia, dismissed plaintiff’s age-based hostile work environment and (related) constructive discharge claims.
From the decision:
First, a school system is entitled to ask a teacher when she plans to retire without automatically creating an inference that it discriminates on the basis of age. With respect to every teacher, as with respect to virtually every employee, there may come a time when an employee considers retirement and there is no discriminatory intent reflected when a school planning for the future makes an inquiry as to when that time might come. See, e.g., Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cir. 1997) (“The ADEA does not make all discussion of age taboo. Nor does the fact that [plaintiff’s] eligibility for early retirement came up in a conversation about [plaintiff’s] qualifications for, and interest in, [a position].”). It is also not unreasonable for an employer to ask an employee, who has received negative evaluations, about her plans for retirement. See Molin v. Permafiber Corp., 2002 WL 31760215, at *6 (S.D.N.Y. Dec. 9, 2002) (no discrimination where employer asked plaintiff “about his retirement plans after looking into a possible replacement … given that [employer] was concerned about [plaintiff’s] work performance”); Lorans v. Crew, 2000 WL 1196745, at *4 (S.D.N.Y. Aug. 23, 2000) (“A discussion of possible retirement is in fact consistent with the idea that there had been difficulties with plaintiff and that the [employer] was seeking a way to resolve the situation.”).
Second, the type of actions that Plaintiff alleges constitute minor violations—negative evaluations, an incorrect docking for one day from sick leave, and denial of retroactive medical leave—on their own are neither “severe” nor “intolerable,” and indeed, these actions may in fact be endemic to certain workplaces. He has not pled sufficient factual allegations that would support an inference that he was discriminated against based on his age or that others similarly situated to him would not have suffered in the same way for the reasons more fully elaborated above. As such, without a finding of adverse action on the basis of age, Plaintiff cannot state a claim for a hostile work environment or constructive discharge. See George v. Pro. Disposables Int’l, Inc., 2016 WL 3648371, at *6 (S.D.N.Y. June 1, 2016) (“Plaintiff does not describe any comments, discriminatory or otherwise, about his age. There is no suggestion that plaintiff’s age was ever discussed in connection with his termination; that he was ever criticized based on his age; that he was treated less favorably than younger employees; that he was ultimately replaced with a younger person; or that any of the events leading to his termination involved his age in any way.”).
Third, and perhaps most important, Bernstein did not leave as a result of these events in 2015, and the events that transpired in the ensuing three years before he did leave were not linked—logically or based on age—to the events in 2015. His Complaint thus does not create the reasonable inference that Bernstein’s alleged constructive discharge in November 2018 was based on the cumulative effect of the events beginning in 2015 when he did not retire any time proximate to 2015 and the ensuing acts of which he complains were only sporadic thereafter. See Pfizenmayer v. Hicksville Pub. Schs., 2017 WL 5468319, at *9-10 (E.D.N.Y. Jan. 24, 2017) (dismissing constructive discharge claim where acts occurred sporadically over a short period of time and three months elapsed between act and retirement); see also Culmone-Simeti v. N.Y.C. Dep’t of Educ., 2019 WL 2409736, at *3-4 (S.D.N.Y. June 7, 2019) (dismissing constructive discharge where plaintiff chose not to seek redress through the disciplinary process or otherwise challenge the alleged unwarranted performance ratings). Moreover, criticism—here, in the form of disciplinary letters—is not enough to support a claim for constructive discharge. See, e.g., Miller v. Praxair, Inc., 408 F. App’x 408, 410 (2d Cir. 2010). Nor is the possibility of further discipline as a result of allegations of corporal punishment sufficient.
Based on this, the court concluded that “[p]laintiff’s allegations fall well below the level at which a reasonable person would feel compelled to resign” and therefore that his constructive discharge claim under the ADEA must fail.