In Milczak v. General Motors, LLC, Case No. 21-CV-11484, 2023 WL 3129473 (E.D.Mich. April 27, 2023), the court, inter alia, granted defendant’s motion for summary judgment on plaintiff’s age-based hostile work environment claim asserted under the Age Discrimination in Employment Act.
From the decision:
Even if plaintiff had exhausted his administrative remedies, the conduct he alleges is not so severe or pervasive that a reasonable person would find it abusive or hostile. Amini v. Rite Aid Corp., 819 F. App’x 344, 347 (6th Cir. 2020) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–22 (1993)). Courts consider “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.” Smith v. Rock-Tenn Servs., Inc., 813 F.3d 298, 309 (6th Cir. 2016) (citing Harris, 510 U.S. at 21-22). “[O]nly harassment based on the plaintiff’s [membership in a protected class] may be considered” in the analysis. Amini, 819 F. App’x at 374 (citing Williams v. CSX Transp. Co., 643 F.3d 502, 511 (6th Cir. 2011)).
Plaintiff’s claims of age-based harassment based on personnel actions “cannot support a hostile work environment claim because, discriminatory or not, by their nature they do not invoke the kind of acute intimidation, ridicule, abuse, or insult contemplated by a hostile work environment claim.” Shrivastava v. RBS Citizens, 227 F.Supp.3d 824, 847 (E.D. Mich. 2017). Furthermore, plaintiff’s various reassignments were made due to the shutdown status at DHAM and no evidence supports his claim that these actions were taken because of his age. The same is true for plaintiff’s allegations of a poor performance review and an attendance memo.
This leaves the three Lazaroff comments, two pictures, and a Michael Jackson CD. Lazaroff made three age related comments to plaintiff over a period of seven months. Lazaroff allegedly called Milczak an “old fart”, and “old fucker” and an “old motherfucker.” The mousetrap picture was clearly directed toward plaintiff, and is evidence of harassment, but there is no indication that it was based on his age, other than plaintiff’s subjective belief that he never shared with defendant. The picture of an old man with long hair and his eyes poked out theoretically could have been directed at plaintiff and could have been a statement about his age, but he never reported it to defendant. Nor did plaintiff report the CD, which lacks an obvious connection to plaintiff’s age. The Court accepts that plaintiff subjectively perceived his work environment to be hostile because of his age. However, discrimination must permeate the workplace to prevail on a hostile work environment claim, and Lazaroff’s three discrete comments do not clear the “relatively high bar for what amounts to actional discriminatory conduct under a hostile work environment theory.” Phillips v. UAW Int’l, 854 F.3d 323, 328 (6th Cir. 2017).
Accordingly, the court held that summary judgment in defendant’s favor was warranted.