Disability Discrimination Claim Dismissed; “Piece of Shit” Comment Was “Neutral”

In White v. Aldridge Electric, Inc., 21-cv-01872, 2022 WL 1003765 (E.D.Pa. April 4, 2022), the court, inter alia, granted defendant’s motion for summary judgment on plaintiff’s claim of disability discrimination asserted under the Americans with Disabilities Act.

In sum, plaintiff alleged that he was treated differently, and fired, because of his medical conditions (chronic pain syndrome, fibromyalgia, and sleep apnea).

As to plaintiff’s hostile work environment claim, the court explained:

On their face, several of Kohout’s [plaintiff’s supervisor’s] allegedly discriminatory remarks—namely, Kohout calling White a “piece of shit” and saying “[i]t’s either you or me” (J.A. 71, 123)—are disability neutral on their face. See Ballard-Carter v. Vanguard Grp., Inc., No. 15-05370, 2016 WL 3997059, at *8 (E.D. Pa. July 26, 2016) (rejecting hostile work environment claim where, “[o]n their face, a number of [the] allegedly harassing comments were not attacks on [plaintiff’s] hearing impairment”), aff’d, 703 F. App’x 149 (3d Cir. 2017); cf. Bolton v. Bay Valley Foods, LLC, No. 3:17-cv-69, 2020 WL 1853505, at *14 (W.D. Pa. Apr. 13, 2020) (“A supervisor’s use of profanity … on multiple occasions is not severe or pervasive conduct sufficient to create a hostile work environment.” (citations omitted)). But even when viewed alongside the other comments and conduct attributed to Kohout, they do not “satisfy the ‘high’ threshold of the ‘severe or pervasive’ element.” Ballard-Carter, 2016 WL 3997059, at *8 (quoting Greer v. Mondelez Glob. Inc., 590 F. App’x 170, 173 (3d Cir. 2014)).

For example, telling White that he needed hearing aids and that he should “look into changing jobs,” though ill-mannered, does not create a hostile work environment. See Ballard-Carter, 703 F. App’x at 151–52 (concluding that “repeated comments about [plaintiff’s] hearing difficulty” were insufficient to sustain a hostile work environment claim); Perry-Hartman v. Prudential Ins. Co. of Am., No. 17-cv-4732, 2021 WL 3077551, at *20 (E.D. Pa. July 20, 2021) (finding insufficient evidence to support hostile work environment claim even where supervisor “effectively t[old] Plaintiff that if she exhibited signs of her disability she should consider finding another job”). The alleged remarks that White was “always out” or “always sick” also fail to establish a hostile work environment. See, e.g., Torres v. Cnty. of Berks, No. 5:17-cv-01890, 2018 WL 564406, at *11–12 (E.D. Pa. Jan. 26, 2018) (comments allegedly made by plaintiff’s coworkers, such as “oh, you’re here today,” “oh, you showed up today,” “wow, you actually work here,” “oh, you made it to work today,” and “I wish I had a doctor that would put me out of work for one month,” were insufficient to create hostile work environment); Walton v. Mental Health Ass’n of Se. Pa., No. 96-5682, 1997 WL 717053, at *13 (E.D. Pa. Nov. 17, 1997) (holding that alleged comments made by plaintiff’s supervisor, such as “you have to separate your problems, symptoms from the project,” “you have to learn to manage your illness,” “you have to make a decision of either you can work or you’re either too sick to work,” and “people with your symptoms are manic depressive,” were neither severe nor pervasive), aff’d, 168 F.3d 661 (3d Cir. 1999); Vanhook v. Cooper Health Sys., No. 19-14864, 2021 WL 2186989, at *9 (D.N.J. May 28, 2021) (Diamond, J.) (comments allegedly made by plaintiff’s supervisors and managers, such as “some people are always sick or some people have excuses” and “oh, you’re going to be out again,” did not make out a hostile work environment); cf. Barclay v. Amtrak, 240 F. App’x 505, 509 (3d Cir. 2007) (“[W]e have rejected a theory of harassment so broad as to dictate that any time a supervisor harasses an employee for absences the employee claims are due to a disability, that harassment is based on the employee’s disability under the ADA.” (emphasis in original)). And the allegations that Kohout “had very rude comments,” “would make faces,” and mocked White for soiling himself amount to offhand comments and isolated incidents that, while inappropriate for the workplace, are neither severe nor pervasive. See, e.g., Washington v. Se. Pa. Transp. Auth., No. 19-4213, 2021 WL 2649146, at *25 (E.D. Pa. June 28, 2021) (finding conduct insufficiently severe where “Plaintiff complained of [coworkers] embarrassing him, ‘setting him up for failure,’ acting ‘very rude’ towards him, alienating him, yelling in a ‘smug’ manner, … and ‘eye rolling, teeth sucking, [and] loud sighs’ when he talked to them”); cf. Ventura v. Montclair State Univ., No. 08-5792, 2011 WL 6339656, at *11 (D.N.J. Dec. 19, 2011) (holding that plaintiff “has not raised a genuine issue of material fact on his claim of severe or pervasive discriminatory harassment” where he “paint[ed] a picture of a supervisor who at times mocked him”).

Based on this, the court concluded that “even when taken together, Kohout’s conduct was insufficiently severe or pervasive to support White’s hostile work environment claim.”

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