In Fisher v. N-Stock Box, Inc., Case No. 1:23-cv-15, 2025 WL 1141842 (S.D.Ohio April 16, 2025), an employment discrimination case, the court granted defendant’s motion for judgment on the pleadings as to plaintiff’s hostile work environment claims, on the ground that plaintiff did not exhaust his administrative remedies at the U.S. Equal Employment Opportunity Commission (EEOC).
From the decision:
In the case sub judice, N-Stock Box argues that Mr. Fisher failed to exhaust his administrative remedies with respect to his hostile work environment claims (Claims III and VIII). Doc. 6, PageID 80–82. The Court agrees. A hostile work environment claim may arise when an employee has been subjected to harassment based on a protected characteristic that has “the effect of unreasonably interfering with the employee’s work performance and creating an objectively intimidating, hostile or offensive work environment[.]” Crawford v. Medina Gen. Hosp., 96 F.3d 830, 834–35 (6th Cir. 1996). The standard for articulating such a claim is fairly stringent. In order to give rise to an actionable claim, the workplace must be “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.” Harris v. Forklift Sys., 510 U.S. 17, 21 (1993) (internal quotation marks and citation omitted). N-Stock Box contends that neither Fisher’s Charge nor the attached Notice of Claims discuss a hostile work environment or harassment theory or allege that Mr. Fisher was harassed to the point of interfering with his work performance. Doc. 6, generally.
Fisher argues, on the other hand, that he has properly exhausted all administrative remedies. First, Fisher contends that the EEOC would have been prompted to investigate whether the work environment was hostile because the Charge and Notice of Claims both state that Fisher experienced “harassment in the workplace.” Doc. 7, PageID 93. Second, Fisher urges this Court to “liberally” construe the Notice of Claims and to find that it sufficiently details the harassment he experienced. Id.
Namely, Fisher alleges that he
was subjected to comments such as that he “couldn’t keep up with his work,” “couldn’t keep his department clean,” “didn’t think [he] was intending to work much longer,” [and] was asked how old he was….
This Court finds that Fisher has failed to allege sufficient facts to satisfy the statutory preconditions with respect to his hostile work environment and harassment claims. Here, the charges of workplace harassment cannot be “reasonably expected” to grow out of the other charges as alleged in detail in the Notice of Claims. See Randolph, 453 F.3d at 732. While it is true that the Notice of Claims mentions harassment, the gravamen of the Charge concerns age discrimination, disability discrimination and failure to accommodate, and FMLA interference. Doc. 6, generally. As such, Mr. Fisher’s “harassment claim could not reasonably be expected to grow out of a charge of discrimination, which contains only factual allegations related to disparate treatment (or something similarly restrictive).” Berryman v. Supervalu Holdings, Inc., No. 3:05-cv-169, 2008 WL 696649, at *3 (S.D. Ohio Mar. 13, 2008); see also Lomax v. Sears, Roebuck & Co., 238 F.3d 422 (6th Cir. 2000) (finding that allegations of discrimination where a plaintiff’s “scheduled work hours were reduced, [where] he failed to receive a promotion, and [where] he was terminated on the basis of [being a member of a protected class]” were claims “relate[d] to job status, which involves discriminatory motives by the person responsible for the decision, while a [workplace] harassment claim focuses on the pervasiveness of the harassment and on the employer’s knowledge of the conduct and efforts to take remedial action”) (emphasis added); but see Sawyer v. Jeff Schmitt Auto Grp., No. 3:14-cv-436, 2015 WL 710434, at *1 (S.D. Ohio Feb. 18, 2015) (finding that allegations of race and age discrimination were reasonably related to “[p]laintiff’s claims of hostile work environment and retaliation” where there was “ongoing disparate treatment and stress” which culminated in a plaintiff being “constructively discharged”) (emphasis added). Sawyer v. Jeff Schmitt Auto Group is factually distinguishable from this case because unlike in that case, the Complaint in the instant action identifies an isolated job action taken by N-Stock Box against Fisher that largely gives rise to his age disparate treatment claim—and not any ongoing disparate treatment over an extended period that permeated the work environment.
Here, the Court is unconvinced by Fisher’s assertion that the statements Pennington made to him amount to a hostile work environment or harassment. The first two comments as listed above were reasons given for Fisher’s demotion in March 2021. The remaining two comments were made during a single conversation in January 2022. At most, these are “isolated discrete acts of discrimination” that are insufficient to prompt investigation of an uncharged hostile work environment claim. These comments were not “ongoing,” Sawyer, 2015 WL 710434, at *1, and do not “describe an escalating progression of harassment” that would constitute a hostile work environment on the basis of age or ability discrimination.
[Citations omitted.]
the court concluded that “[a]s such, even if the Charge is ‘liberally’ construed, Fisher has thus failed to exhaust his administrative remedies as to any such claim.”