In McCardle v. District of Columbia, Case No. 19-cv-3637 (JMC), 2025 WL 1167956 (D.D.C., 2025), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s claim of age-based hostile work environment asserted under the Age Discrimination in Employment Act (ADEA).
From the decision:
The District argues that McArdle cannot establish a hostile work environment on the basis of age. See ECF 36 at 2–5. McArdle disagrees, emphasizing that he was subjected to daily harassment about his age for several years. See ECF 34 at 8–9. The Court finds that although these comments, in isolation, were not necessarily severe, McArdle has pointed to record evidence establishing that they were pervasive. A reasonable jury could therefore conclude that McArdle was subjected to a hostile work environment in violation of the ADEA.
While “[s]everity and pervasiveness are complementary factors and often go hand-in-hand, [a] hostile work environment claim could be satisfied with one or the other.” Brooks, 748 F.3d at 1276; see Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 579 (D.C. Cir. 2013) (Kavanaugh, J., concurring) (“The test set forth by the Supreme Court is whether the alleged conduct is ‘sufficiently severe or pervasive’—written in the disjunctive—not whether the conduct is ‘sufficiently severe and pervasive.’ ”). Although there is no “mathematically precise test” to determine when conduct becomes sufficiently pervasive, Harris, 510 U.S. at 22, courts have found that near daily name-calling can rise to the requisite level of pervasiveness to establish a hostile work environment claim, even if an isolated comment standing on its own would not be particularly severe. See, e.g., Thomas v. Securiguard Inc., 412 F. Supp. 3d 62, 94 (D.D.C. 2019) (denying summary judgment where conduct “occurred approximately two to three times a week from November 2015 to June 2016, and from February to June 2016, [ ] increased in frequency”).
None of the comments that McArdle identifies as ageist are themselves “severe.” See George, 407 F.3d at 408. But McArdle identifies record evidence establishing that he experienced these comments on a near daily basis for years. See ECF 34 at 8. The name-calling started almost immediately upon rejoining the police force. McArdle testified that before starting at the Academy in August 2014, a member of MPD’s HR team told him that “he would probably not make it through training and would only get injured because he was ‘old.’ ” ECF 34 at 4 ¶ 13. During his roughly eight months in the Academy, McArdle’s fellow officers routinely called him “old” or “old man.” Id. at 5 ¶ 14. These comments came from both rank-and-file officers and higher-ranking police officers like sergeants and lieutenants. See id. And while McArdle’s own testimony about this would be enough, independent witnesses—officers who attended the Academy with McArdle—corroborated his claims in discovery. One witness testified that she heard officers call McArdle an old man “at least every other day” as a “form of hazing,” and described these comments as “malicious.” Id. The harassment did not stop after training. McArdle testified that when he began working at MPD’s Fifth District, his supervisor, Officer Stimmel, regularly called him “old.” Id. at 6 ¶ 19. And Officer Craig Boyd, McArdle avers, called him “old” “almost every morning.” Id. at 6 ¶ 21. McArdle reported the comments to a supervising lieutenant, who then warned staff to no longer “make jokes about Canadians” but did not address the age-related comments. Id. at 5 ¶ 17. According to McArdle, the comments about his age persist “[t]o this day.” Id. at 6 ¶ 21.
Based on this evidence, the Court cannot agree with the District that these comments were too “generic and sporadic” to give rise to a claim. ECF 36 at 4. Although the comments were not themselves severe, being subjected to daily, discriminatory comments for years is undoubtedly pervasive. See Thomas, 412 F. Supp. 3d at 94 (finding a hostile work environment where comments occurred twice a week or more for roughly a year and a half); Leftwich v. Gallaudet Univ., 878 F. Supp. 2d 81, 99–100 (D.D.C. 2012) (holding that plaintiff’s allegations that he was subjected to “pervasive, negative racial comments” that occurred “nearly every day for three years” were sufficient to state a hostile work environment claim); Tucker v. Howard Univ. Hosp., 764 F. Supp. 2d 1, 10 (D.D.C. 2011) (holding that a “reasonable person could plausibly find” that “discriminatory conduct [that] occurred nearly every day for over four years” was “sufficiently pervasive”).
Based on this, the court held that plaintiff “has identified enough evidence for the Court to allow his hostile work environment claim based on age discrimination to go to a jury.”