In Rettino v. New York City Department of Education et al, 19-cv-5326, 2021 WL 2987113 (S.D.N.Y. July 15, 2021), the court, inter alia, dismissed plaintiff’s age-based hostile work environment claim under the Age Discrimination in Employment Act of 1967.
The court outlined the elements of such a claim as follows:
The ADEA’s prohibition of a hostile work environment is violated when “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.” Davis-Garett v. Urb. Outfitters, Inc., 921 F.3d 30, 41 (2d Cir. 2019). To establish a prima facie case of a hostile work environment, a plaintiff must show: (1) discriminatory harassment that was “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,” and (2) a specific basis for imputing the objectionable conduct to the employer. Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997). A plaintiff alleging a hostile work environment “must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were ‘sufficiently continuous and concerted’ to have altered the conditions of [the plaintiff’s] working environment.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (Sotomayor, J.); Robins, 2010 WL 2507047, at *11. To decide whether conduct has reached this threshold, courts examine the case-specific circumstances in their totality and evaluate the severity, frequency, and degree of the abuse. Harris v. Forklift Sys. Inc., 510 U.S. 17, 23 (1993) (finding that relevant factors include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance”); see also Alfano v. Costello, 294 F.3d 365, 373-74 (2d Cir. 2002). Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness. Brennan v. Metro. Opera Ass’n, 192 F.3d 310, 318 (2d Cir. 1999); see also Grant v. Pathmark Stores, Inc., No. 06-cv-5755, 2009 WL 2263795, at *12 (S.D.N.Y. July 29, 2009).
Applying the law, the court held that plaintiff’s allegations of a hostile work environment that occurred in the relevant timeframe – here, after October 7, 2017, since allegations prior to that date were time barred in light of the date plaintiff filed his EEOC charge – were limited to an allegation of a failure to hire. Moreover, plaintiff merely made the “conclusory statement that his age ‘ruined [his] chances at obtaining’ a position with P.S. 481” and “alleges no discriminatory comments or other types of discriminatory behavior.”
Based on this, the court held that plaintiff did not sufficiently allege “a workplace permeated with discrimination sufficient for a showing of a hostile work environment under the ADEA.”