In Warden v. Richard Fordyce et al, No. 6:25-CV-01467-MC, 2026 WL 735346 (D. Or. Mar. 16, 2026), the court, inter alia, granted defendant’s motion to dismiss plaintiff’s hostile work environment claim.
From the decision:
The sum of Plaintiff’s factual allegations is insufficient to state a claim based on a hostile work environment. First, Plaintiff attempts to incorporate the same discrete actions discussed above into his hostile work environment theory. Pl.’s Resp. 6. “Hostile environment claims are different in kind from discrete acts,” arising instead from “non-discrete acts” such as offensive comments, name-calling, and insults. A plaintiff alleging a hostile work environment can state a claim based on non-discrete acts beyond the 45-day statutory exhaustion period, so long as the same hostile work environment persists into, and “at least one act falls within,” the exhaustion period. See id. at 122; see also Farrens v. Esper, 806 F. App’x 539, 542 (9th Cir. 2020) (“[Plaintiff] does not point to any offensive actions [within 45 days of contacting EEOC Counselor], however, so this claim is untimely.”). Untimely discrete acts may not be considered to support an ongoing hostile work environment, except to contextualize timely non-discrete acts. Porter, 419 F.3d at 893 & n.4. Accordingly, Plaintiff cannot establish a hostile work environment based on the untimely alleged discrete actions. Instead, Plaintiff’s relevant allegations are those regarding Conrad’s comments to him occurring after November 5, 2023, and any preceding comments consistent with the same alleged hostile work environment.
Here, Plaintiff’s timely allegations include Plaintiff’s allegations of Conrad’s comments on November 17, 2023, when she said, “You’re middle aged. You’re not 20.”, and on December 5, 2023, when she said, “that’s something else you can’t follow through with,” in reference to Plaintiff’s grievances. One timely comment refers only to Plaintiff’s age and is therefore not relevant to his Rehabilitation Act claims here. Plaintiff also refers to comments on December 20, 2023, but does not specify their contents, stating only they were “inappropriate.” This allegation is not actionable, as a bare assertion of harassment and offense is insufficient. Baughn, 2025 WL 3653954, at *6–7 (explaining a plaintiff must allege “kind of harassment he experienced, when and how often it occurred, or how it affected his working conditions” beyond alleging he was “subject to incidents of harassment”). Moreover, merely “inappropriate” conduct does not rise to the level of a hostile work environment. See, e.g., Moore v. McCarthy, 2020 WL 836839, at *5 (W.D. Wash. Feb. 20, 2020) (“Although some of the conduct alleged by Plaintiff appears inappropriate, it does not describe extremely offensive conduct.”).
A close reading of Plaintiff’s single relevant timely allegation and remaining allegations of harassment by Conrad casts doubt on whether Conrad’s comments relate to his disability,4 but even assuming Conrad’s alleged comments share a causal nexus with Plaintiff’s disability, they do not reach a sufficient level of severity or pervasiveness to plausibly establish a hostile work environment. Plaintiff alleges at most five statements on approximately three occasions in May, October, and December 2023 when Conrad doubted his disability, doubted his motivation, or simply insulted him. Though understandably unpleasant and dispiriting for Plaintiff, his experience is not sufficient to state a claim here. A hostile work environment requires more than simply showing mistreatment because of disability. Vasquez v. County of Los Angeles, 349 F.3d 634, 643–44 (9th Cir. 2003). The Ninth Circuit has recognized pervasive and severe harassment when “objectively and subjectively offensive” statements occur “repeatedly” (Davis v. Team Elec. Co., 520 F.3d 1080, 1096 (9th Cir. 2008), Anderson v. Reno, 190 F.3d 930 (9th Cir. 1999)), “regularly” (Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000)), as frequently as “at least once a week and often several times a day” (Nichols v. Azteca Rest. Enters., 256 F.3d 864, 870 (9th Cir. 2001)), or resemble an extended campaign spanning a substantial portion of the plaintiff’s employment (see Draper v. Coeur Rochester, 147 F.3d 1104, 1105–06 (9th Cir. 1998)). Meanwhile, the instances of harassing insults Plaintiff alleges in the Complaint are stray, isolated comments that, though arguably repeated at least once, were few in number. Construed in the light most favorable to Plaintiff, the allegations of the Complaint are therefore insufficient to plausibly establish severe and pervasive conduct to support a hostile work environment claim.5 Moreover, no one instance of alleged harassment in this case is so “extremely serious” to support a claim standing alone.
(Cleaned up.)
The court further held that since amendment of the complaint would be futile, it dismissed plaintiff’s claims without leave to amend.