In Laface v. Eastern Suffolk BOCES et al, 2019 WL 1959489 (EDNY May 2, 2019), the court, inter alia, dismissed plaintiff’s claim of discrimination under the Age Discrimination in Employment Act (ADEA).
The court provides the following overview of the law:
To plausibly allege an actionable ADEA discrimination claim based on hostile work environment, the Plaintiff must contend that “the workplace is ‘permeated with discriminatory intimidation, ridicule, and insult that is sufficiently pervasive to alter the conditions of the victim’s employment.’ ” Brennan v. Metro. Opera Ass’n, 192 F.3d 310, 318 (2d Cir. 1999) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993)). These incidents must be “sufficiently continuous and concerted to be considered pervasive.” Id. (internal quotation marks omitted). This is because the ADEA does not set forth “a general civility code for the American workplace.” Almontaser v. N.Y.C. Dep’t of Educ., No. 13 Civ. 5621, 2014 WL 3110019, at *8 (E.D.N.Y. July 8, 2014). The determination of hostility depends on whether a reasonable person would find the work environment to be hostile and whether plaintiffs subjectively perceived it to be so.” Kassner v. 2nd Avenue Delicatessen Inc., 496 F.3d 229, 240 (2d Cir. 2007) (citing Brennan, 192 F.3d at 318). Further, “[a] plaintiff must also demonstrate that she was subjected to the hostility because of her membership in a protected class.”
Applying the law, the court explained:
Plaintiff fails to “provide … a short and plain statement of the claim that shows that plaintiff[ ] [is] entitled to relief and that gives the defendant fair notice of plaintiff[’s] claim.” Kassner, 496 F.3d at 241. The complaint alleges that “[BOCES] treated Plaintiff differently than younger individuals, under age 40 … who were treated more favorably in terms of their ability to work substantial overtime.” Compl. ¶ 83. This claim alleges no specific facts as to who was granted permission to work “substantial overtime” or the identities of these younger individuals. This vague, conclusory allegation does not provide BOCES with fair notice of the factual grounds of the claim.
Further, Laface contends that BOCES “refus[ed] to investigate his internal complaint of bullying[,] … refus[ed] to address his grievance, and … refus[ed] to place him back in his former position.” Compl. ¶ 80. These three incidents are insufficient to support a hostile work environment claim as they do not demonstrate that the Plaintiff was subjected to acts that were “sufficiently continuous and concerted to be considered pervasive.” Brennan, 192 F.3d at 318. The first of these contentions occurred in August 2014, when the Plaintiff’s union filed a grievance that cites a July 7, 2014 incident with Anderson. See Dkt. 10-8. The Plaintiff’s final occurrence, that BOCES refused his request to be reassigned back to the Gary D. Bixhorn Technical Center, did not take place until after he was notified of the impending transfer on October 17, 2016. It is unclear which of the Plaintiff’s numerous grievances he is referring to in the above-cited allegation. As his union notes in its charge before the Public Employment Relations Board, Laface has filed at least 15 separate grievances against BOCES since early 2013. He could have been referring to any of these, although its placement in the allegation likely implies that it occurred between the bullying incident in July 2014 and the receipt of the memo in October 2016. Regardless, these three incidents, which took place over a two-to-three-year period do not suggest harsh and persistent treatment that altered the terms and conditions of employment.
Finally, the court noted that even if plaintiff sufficiently alleged a hostile work environment, he failed to plead that he was “subjected to the hostility because of membership in a protected class.” Specifically, it found that plaintiff’s allegations did “not suggest any connection to age”, where plaintiff alleged in his complaint discriminatory treatment on account of his disability, and there were “no accusations of discriminatory comments or workplace interactions related to his age.”