Hearing Disability Hostile Work Environment Claim Dismissed Against NYC Transit Authority

In Hawkins-El v. NYC Transit Authority, 18-cv-07167, 2021 WL 4222400 (EDNY Sept. 16, 2021), the court, inter alia, dismissed plaintiff’s disability-based hostile work environment claim (asserted under the Americans with Disabilities Act) against the New York City Transit Authority.

Plaintiff identified twelve incidents that he alleged created a hostile work environment, including plaintiff’s superintendent (Micelotta) repeated orders to plaintiff to get hearing tests, abusive yelling and cursing, defendant’s refusal to accommodate his request not to be tested in a subway tunnel, among others.

In reaching its determination, the court explained:

A determination as to whether these incidents created a hostile work environment “can be made only by carefully examining the circumstances in their totality, weighing the nature, severity, and frequency of the conduct.” Alfano, 294 F.3d at 376. The one alleged incident that stands out for its overtly abusive nature is when Micelotta purportedly yelled and cussed at Plaintiff. See, Pl.’s Opp’n at 2, 8. Plaintiff alleges that, during a March 17, 2017 phone call, Micelotta screamed at Plaintiff, “I don’t have to fucking call you,” “why should I fucking call you,” and “you just keep dragging your feet with this hearing thing, go down Monday and get tested.” March 21, 2017 Mem. at 1. Plaintiff did not receive any other derogatory statements about his hearing. Hawkins-El Dep. at 70. This isolated act is not severe enough to constitute a hostile work environment.

The only other potential[] instance of harassment is when Micelotta repeatedly required Plaintiff to get his hearing examined. See, Pl.’s Opp’n at 2, 8; See also, Hawkins-El Dep. at 65-69. Plaintiff alleges that, between March 7, 2017 and 2018, Micelotta sent him to the MAC for checkups “over 10 or 11 times.” See, Hawkins-El Dep. at 66-68. As an initial matter, there is no evidence in the record to support the alleged number and frequency of MAC visits. In addition, even if the allegation were true, requiring Plaintiff to attend medical appoints for his known hearing impairment cannot establish an objectively abusive work environment, particularly where, as here, Plaintiff’s safety was a concern. See, Fox, 918 F.3d at 74 (the record must support a finding that the workplace was both subjectively and objectively offensive). Micelotta knew Plaintiff suffered from hearing loss. See, Micelotta Dep. at 31-33. It was reasonable for Micelotta, as Plaintiff’s superintendent, to require Plaintiff to get his hearing examined, especially after the February 8, 2017 incident where Plaintiff nearly was injured by a forklift that he apparently did not hear coming and once Plaintiff failed his first practical field test. Id. at 31-33, 56-57.
*9 Moreover, there is no evidence that Micelotta acted with any discriminatory motive or animosity when he ordered Plaintiff to go to the MAC.

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