In Edo v. Antika Pizzeria Astoria, Inc., 15-cv-5605, 2019 WL 4602799 (E.D.N.Y. Sept. 23, 2019), the court, inter alia, dismissed plaintiff’s race-based hostile work environment claim, finding that it was not administratively exhausted at the U.S. Equal Employment Opportunity Commission (EEOC).
From the decision:
The court agrees with defendant’s argument that plaintiff’s hostile work environment claim was not asserted in his EEOC charge and is not reasonably related to any claims asserted before the EEOC. The EEOC charge describes isolated incidents occurring on four different days. The descriptions of most of these events do not suggest that someone employed by Antika took action against plaintiff because of an unlawful motive in violation of Title VII or the ADEA. Plaintiff states that during one incident, a dishwasher said he “[was] too old.” Other than this incident, the other incidents described in the plaintiff’s EEOC charge generally appear to be job-related complaints regarding plaintiff’s view of how the pizzeria should have operated.
The only events that plaintiff alleges occurred with any frequency were physical altercations he had with one co-worker during Friday deliveries, but the EEOC charge did not assert a hostile work environment claim. … Plaintiff does not include any factual allegations explicitly stating, much less suggesting, that those altercations occurred because plaintiff was a member of a protected group, a necessary finding for a hostile work environment charge. The court is also reluctant to conclude that allegations of physical abuse by a co-worker would have given the EEOC adequate notice to investigate for a hostile working environment. Although referring to a singular incident, the Second Circuit has concluded that a plaintiff’s serious physical assault, while understandably upsetting, was not so severe as to alter materially the plaintiff’s working conditions—unlike, for example, a rape. [Citation omitted.]
Based on this, the court concluded that plaintiff’s hostile work environment claim was “not reasonably related to the claims in his EEOC charge and is barred.”