In Blanchard v. Kiewit Power Constructors Co., No. 1:25-CV-423, 2026 WL 587674 (N.D.N.Y. Mar. 3, 2026), the court, inter alia, dismissed plaintiff’s hostile work environment claim asserted under the Americans with Disabilities Act (ADA).
From the decision;
With respect to defendant’s exhaustion of administrative remedies argument, plaintiff indeed did not assert a hostile work environment claim in his EEOC charge. In his EEOC charge, plaintiff alleges that, in the Summer of 2023, he disclosed to Rojas that he suffered from PTSD and took medication to alleviate the symptoms related to his PTSD. EEOC Charge, Dkt. No. 12-2 at ¶ 35. According to plaintiff, Rojas responded to this disclosure in a manner that plaintiff perceived to suggest he was weak for taking medication to treat his PTSD symptoms. Id. at ¶¶ 36–37. After this incident, plaintiff alleges Rojas continued to make jokes regarding his PTSD including mocking his need for medication, jokingly warning co-workers to be careful how they spoke to plaintiff, and suggesting that he could be “a danger” due to this PTSD. Id. ¶ 38.
Plaintiff also alleged that on February 1, 2024, during a meeting with Rojas and other co-workers, Rojas remarked that if plaintiff failed to take his PTSD medication, “you do not know what kind of person you are going to get.” EEOC Charge, Dkt. No. 12-2, at ¶ 41. As a result of this meeting, one of plaintiff’s co-workers submitted a human resources complaint to Mackey. Id. at ¶ 43. Upon review, the Court finds plaintiff’s allegations provided the EEOC with sufficient notice to investigate a hostile work environment claim.
However, plaintiff has failed to plausibly allege a hostile work environment claim under the ADA. In addition to the fact that a plaintiff must show that he “subjectively perceiv[ed] the conduct as abusive, the misconduct shown also must be ‘severe or pervasive enough to create an objectively hostile or abusive work environment.’ ” Fox, 918 F.3d at 74 (quoting Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002)) (cleaned up). Accordingly, “[a] plaintiff bringing a hostile work environment claim under the ADA […] ‘must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment.’ ” Fox, 918 F.3d at 74 (quoting Harris, 510 U.S. at 20). “Courts 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 interfere[d] with [the plaintiff’s] work performance.”
In sum, the plaintiff has alleged two separate and discrete incidents where Rojas made offensive remarks on the basis of his disability. While these alleged incidents may constitute “offensive utterances[,]” the Court does not find that plaintiff has plausibly alleged that they were “extraordinarily severe.” Further, given the infrequent nature of Rojas’ remarks as to plaintiff’s disability, the Court does not find the comments to be sufficiently pervasive.
Based on this, the court held that dismissal was warranted.