In Stanley v. Elmer Phelon et al, 23-731-cv, 2024 WL 1453872 (2d Cir. April 4, 2024), the Second Circuit, inter alia, affirmed the lower court’s dismissal of plaintiff’s hostile work claim under the Rehabilitation Act.
From the decision:
Stanley argues that the district court erred by dismissing his hostile work environment claim under the Rehabilitation Act. Arguing that the SAC alleges sufficiently severe harassment, Stanley points to allegations that on many occasions, Phelon “expressed [ ] frustration to other managers … regarding Mr. Stanley’s medical conditions and physical impairments and his need for intermittent medical leave,” J. App’x at 25, ¶ 33, that “Phelon instructed another employee … to review [Stanley]’s medical records … without [his] authority or knowledge,” id. at 25, ¶ 34, and that Defendants “harass[ed] [Stanley] and scrutinize[d] him and continued to berate him for his medical absences” after November 2013, id. at 27, ¶ 57, in addition to the allegations of misconduct identified above.
“To prevail on a hostile work environment claim, [a plaintiff] must show (1) that the harassment was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment, and (2) that a specific basis exists for imputing the objectionable conduct to the employer.” Fox v. Costco Wholesale Corp., 918 F.3d 65, 74 (2d Cir. 2019) (establishing elements for a claim under the ADA); see 29 U.S.C. § 791(f) (providing that the Rehabilitation Act uses the same standards for employment discrimination claims as the ADA). “[T]he plaintiff also must show that the hostile conduct occurred because of a protected characteristic.” Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 2015).
In determining whether the “harassment was sufficiently severe,” “[c]ourts look to the totality of the circumstances to determine whether a plaintiff has met this burden, including proof of the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfered with the plaintiff’s work performance.” Fox, 918 F.3d at 74. “This test has objective and subjective elements: the misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002).We agree with the district court that the SAC fails to state a hostile work environment claim. Starting with the instances of misconduct identified above, the district court properly reasoned that the SAC fails to plead a connection between much of the misconduct and Stanley’s “protected characteristic,” Tolbert, 790 F.3d at 439, that is, his kidney disease. See Stanley, 2023 WL 2714181, at *18. The remaining allegations concerning Phelon’s statements, and efforts to review Stanley’s medical records without authorization—although inappropriate—were not “sufficiently severe or pervasive to alter the conditions of his employment.” Fox, 918 F.3d at 74. Moreover, the allegation regarding Defendants’ verbal harassment is somewhat vague as to frequency and therefore does not rise to the level of sufficiently severe. See Alfano, 294 F.3d at 374 (“[I]ncidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.”).
Based on this, the court concluded that “viewed in their totality, the alleged circumstances do not amount to a hostile work environment.”