Age-Related Comments Plausibly Support Hostile Work Environment Claim, Court Holds

In a recent case, Treadwell v. District of Columbia, Case No. 23-cv-03616 (CRC), 2023 WL 8764349 (D.D.C. Dec. 19, 2023), the court, inter alia, held that plaintiff plausibly alleged a claim of age discrimination arising from alleged offensive, age-related comments.

From the decision:

Though not by much, Treadwell has sufficiently pled that OAG subjected her to a hostile work environment in violation of the DCHRA. Her allegations fall into three categories: offensive comments, undesirable case assignments, and non-promotions. For the reasons described below, the Court finds that the offensive comments plausibly created a hostile work environment but the other alleged misconduct fails to state a claim.

Though the verbal abuse Treadwell alleges she suffered was not particularly severe, it was pervasive. She claims “she is greeted almost daily” with comments such as “Oh, you’re still here, you haven’t retired yet,” and “what’s up OG?” Am. Compl. ¶ 27. As other courts have recognized, these kinds of “daily” or “almost daily” comments can create a hostile work environment. In Dediol v. Best Chevrolet, Inc., the Fifth Circuit reversed a lower court’s grant of summary judgment on an ADEA hostile work environment claim where the plaintiff had offered evidence that, “a half-dozen times daily,” he was called “names like ‘old mother******,’ ‘old man,’ and ‘pops.’ ” 655 F.3d 435, 441 (5th Cir. 2011); see also Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1131 (4th Cir. 1995) (harassment was sufficiently severe and pervasive where plaintiff was called racially offensive names “almost daily”). And, the D.C. Circuit has held that sufficiently pervasive conduct, even if not severe, can establish a hostile work environment claim. See Brooks v. Grundmann, 748 F.3d 1273, 1276 (D.C. Cir. 2014) (“Severity and pervasiveness are complementary factors and often go hand-in-hand, but a hostile work environment claim could be satisfied with one or the other.”).

To be sure, other courts have rejected hostile work environment claims premised on the use of similar age-related names and comments.2 See Ware v. Hyatt Corp., 80 F. Supp. 3d 218, 227 (D.D.C. 2015) (supervisors referred to plaintiff as “old man” among other names); Bryant v. Leavitt, 475 F. Supp. 2d 15, 19, 28 (D.D.C. 2007) (plaintiff’s supervisor “made unwelcome comments about his age”); Fragola v. Kenific Grp., Inc., No 21-cv-1423, 2022 WL 1908824, at *6 (D.D.C. June 3, 2022) (co-worker told the plaintiff “[y]ou’re too old to be working, you should retire”). But those cases are distinguishable. There, the plaintiffs had failed to adduce evidence of the comments’ frequency and were opposing summary judgment motions, Ware, 80 F. Supp. 3d at 228; Bryant, 475 F. Supp. 2d at 28, or the comments were isolated, Fragola, 2022 WL 1908824, at *6 (“[T]he alleged incidents are too few, too isolated, and insufficiently extreme … to support a hostile work environment claim.”).

Given the pervasiveness of the comments, at least as alleged, Treadwell has stated a hostile work environment claim. The Court is mindful that the DCHRA “is not intended to function as a ‘general civility code’ that regulates the ‘ordinary tribulations of the workplace, such as the sporadic use of abusive language … and occasional teasing.’ ” Burrell v. Shepard, 321 F. Supp. 3d 1, 12 (D.D.C. 2018) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). But what Treadwell allegedly endured was not “sporadic” or “occasional.” At this stage, she has therefore alleged enough facts to “nudge[ ] [her] claim[ ] across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. Time may tell if Treadwell can substantiate her allegations with evidence at summary judgment or beyond.

However, the court held that plaintiff did not plausibly plead a hostile work environment based on assignment decisions and non-promotions, which “involve ordinary job decisions that generally are not actionable under a hostile work environment theory.”

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