In Bernheim v. New York City Department of Education et al, 2021 WL 2619706 (S.D.N.Y. June 25, 2021), the court, inter alia, recommended the dismissal of plaintiff’s age- and disability-based hostile work environment claims asserted under the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the New York State Human Rights Law.
From the decision:
Finally, hostile work environment claims under the ADA, ADEA, and NYSHRL are analyzed under the Title VII standard. Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014).9 This standard requires a plaintiff to “produce enough evidence to show that the workplace is 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.” Sosa v. New York City Dep’t of Educ., 819 F. App’x 30, 35 (2d Cir. 2020) (quoting Rivera, 743 F.3d at 20). “In conducting this analysis, [courts] consider[ ]: ‘(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether the conduct was physically threatening or humiliating, or a mere offensive utterance; (4) whether the conduct unreasonably interfered with plaintiff’s work; and (5) what psychological harm, if any, resulted.’ ” Id. (quoting Aulicino v. N.Y.C. Dep’t of Homeless Servs., 580 F.3d 73, 82 (2d Cir. 2009).10
Bernheim argues that her allegations regarding the Section 3020-a charges “and the hostile events leading up to those charges, including disciplinary letters and poor observations,” support her claim. Amended Compl. ¶ 12. However, even assuming that the “hostile events,” amounted to a handful of events, Bernheim has not sufficiently pled that the events were “pervasive.” See, e.g., Littlejohn, 795 F.3d at 321 (plaintiff failed to allege hostile work environment based on allegations that her supervisor made negative comments about her, wrongfully reprimanded her, replaced her at meetings, and increased her reporting schedule); Varughese v. Mount Sinai Med. Ctr., No. 12-CV-8812 (CM) (JCF), 2015 WL 1499618, at *60 (S.D.N.Y. Mar. 27, 2015) (events “alleged to have occurred four times over the course of [plaintiff’s] employment” by definition not “pervasive”), aff’d, 693 F. App’x 41 (2d Cir. 2017). Nor has she pled how the alleged events were based on either her disability or age. See, e.g., Sealy v. State Univ. of New York at Stony Brook, 834 F. App’x 611, 615 (2d Cir. 2020) (plaintiff “failed to allege that the allegedly hostile conduct ‘occurred because of a protected characteristic.
The court did, however, grant plaintiff leave to further amend her complaint (one more chance, according to the court) to elaborate on the “hostile events” purportedly giving rise to these claims.