Age-Based Hostile Work Environment Claim Dismissed; Age and Seniority Alone Sufficient

In Lewis v. Kaleida Health, No. 20-cv-1860, 2021 WL 2592341 (W.D.N.Y. June 24, 2021), the court granted defendant’s motion to dismiss plaintiff’s age discrimination claim, asserted under the Age Discrimination in Employment Act of 1967 (ADEA).

From the decision:

“While discrete claims of discrimination and retaliation must be brought within the 300-day limitations period to be actionable, a different rule applies with regard to hostile work environment claims.” Zoulas v. New York City Dep’t of Edu., 400 F. Supp. 3d 25, 50 (S.D.N.Y. 2019) (citation omitted). “Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct.” Morgan, 536 U.S. at 115. Therefore, “as long as any act contributing to the hostile work environment claim falls within the 300-day period, ‘the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.’ ” Zoulas, 400 F. Supp. 3d at 50 (citing Morgan, 536 U.S. at 117).

Lewis alleges that Kaleida created a “hostile work environment due to her age.” Docket 1 at ¶ 6. She certainly has satisfied the subjective prong: there is no question that Lewis “subjectively perceive[d her] environment [at Kaleida] to be abusive.” See Alfano, 294 F.3d at 374. Whether Lewis has pleaded facts sufficient to satisfy the objective prong is a more difficult question.

But all that is of no moment because Lewis has not tied any of Kaleida’s conduct to her age. In fact, the only non-conclusory statement regarding Lewis’s age in the complaint is that, at the time of her transfer to Gates Vascular, Lewis was the “third oldest [NP] in the department.” See Docket Item 1 at ¶ 12. Lewis has not pleaded any facts to suggest that Kaleida’s working environment was worse for older nurses than younger ones. See Brennan, 192 F.3d at 318 (“[A]n environment which is equally harsh for both…young and old does not constitute a hostile working environment.”). And the rest of her allegations center on her seniority, which, as previously explained, “is not a sufficiently accurate indicator of age” alone to plead an age-discrimination claim.

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