“Cripple”, Other Comments Insufficient to Plausibly Allege Disability-Based Hostile Work Environment

In Collins v. Board of Cnty. Commissioners of Nowata Cnty., 2023 WL 3854085 (N.D.Okla. June 6, 2023), the court, inter alia, granted defendant’s motion to dismiss plaintiff’s disability-based hostile work environment claim asserted under the Americans with Disabilities Act.

Here, the alleged disability was plaintiff’s loss of his left hand in a childhood accident.

In dismissing plaintiff’s claim, the court explained why plaintiff did not sufficiently allege that the objectionable conduct – including references to him as a “cripple” and “right-hand man” – was “severe or pervasive.”

Initially, the court held that the alleged comments “were not physically threatening or violent and cannot objectively be considered ‘severe.'”

Therefore, plaintiff was required to establish that the alleged disability-related comments were sufficiently pervasive to alter the conditions of plaintiff’s employment.

From the decision:

To demonstrate a pervasively hostile environment, Mr. Collins is not required to plead a specific number of instances of harassing conduct. See Mitchem v. Sleepcair, Inc., 2021 WL 4439406, *7 (D.Kan. Sept. 28, 2021) (plaintiff is not required to “quantify exactly the number of times her supervisors touched her inappropriately” to assert a plausible claim for hostile work environment under Title VII). However, a plaintiff cannot demonstrate a pervasively hostile work environment by identifying a few isolated incidents of enmity or sporadic slurs made during his employment. Herrera v. Lufkin Industries, Inc., 474 F.3d 675, 680 (10th Cir. 2007). To this end, facts supporting the frequency and content of the alleged statements are generally helpful in analyzing whether the conduct was sufficiently pervasive to alter his employment conditions. See Garcia v. Denver Health Medical Center, 2023 WL 22186, *4 (D.Colo. Jan. 3, 2023) (“Considering the … frequency of the above instances of harassment, the Court finds that Plaintiff sufficiently pleaded a claim for hostile work environment …”). See also Morris v. City of Colorado Springs, 666 F.3d at 666 (frequency and social context of discriminatory conduct are relevant considerations when analyzing whether a workplace is objectively hostile).

Here, Mr. Collins’ limited allegations fail to identify with any specificity how often he was referred to as a “cripple,” “Right-Hand Man,” and other derogatory names by the Commissioner. Mr. Collins also fails to identify the context in which these allegedly discriminatory comments were made during the six months between June and December of 2021. Mr. Collins’ Amended Complaint includes only two sentences discussing the conduct forming the basis for his hostile work environment claim. Such limited factual support for this claim undercuts the alleged pervasive nature of the conduct directed toward him. As pled, the specific references to “cripple” and “Right-Hand Man” in the Amended Complaint can be considered little more than isolated incidents of disability-related slurs and are insufficient to state a claim for hostile work environment. Mr. Collins’ additional allegations regarding the “other derogatory names” he was called and “other derogatory comments” made by the Commissioner are too vague and ambiguous to nudge his hostile work environment claim across the line from possible to plausible. Without more, the Amended Complaint fails to allege facts to support a plausible inference of pervasive harassment that altered the terms of Mr. Collins’ employment.

Based on this, the court granted the motion to dismiss plaintiff’s hostile work environment claim pursuant to Federal Rule of Civil Procedure 12(b)(6).

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