Age harassment case is dismissed as Court finds allegations too conclusory

This hostile work environment claim alleges a series of hostile acts in the workplace. But that is not enough to sue for workplace harassment on the basis of age, gender, or race. You have to link the harassment to membership in these protected classes. The Court of Appeals says plaintiff failed to do so, and the case is dismissed.

The case is Antrobus v. New York City Health and Hospitals Corp., a summary order issued on October 13. Plaintiff alleges age discrimination. The case was dismissed under Rule 12, which means the trial court said that all the allegations in the complaint, if true, were not enough. You know, there was a time many years ago when fewer cases were dismissed under Rule 12, as "notice pleading" was the name of the game. But in 2009, the Supreme Court instituted "Iqbal pleading," which prohibits conclusory factual allegations. Now we see numerous Rule 12 dismissals.

The Court of Appeals (Robinson, Kahn and Robinson) holds that plaintiff has no hostile work environment case. Here are the plaintiff's allegations: "(1) Appellant received fewer assignments, had assignments taken away from her, was denied access to  critical information, and was isolated by her managers after filing her 2015 and 2016 complaints;  and (2) Appellant was subjected to unsolicited inquiries about her retirement after filing the 2019 complaint." These events may look like harassment to the average employee, but the court finds these allegations are not even enough to start discovery, which means the case is dismissed and the jury, which might also think this constitutes illegal harassment, will never hear the case.

As for the fewer assignments, "Appellant has failed to allege, for example, which or how many assignments were kept or taken away from her, what type of information was withheld from her, how
frequent those occurrences were, and whether her resulting workload was within the scope of
her job duties." Without that kind of detail, the complaint is conclusory under Iqbal pleading. As for the unsolicited inquiries about plaintiff's retirement, that does not support the claim either, as the Court holds that "these inquiries about Appellant’s retirement, which is a normal topic of conversation between an employer and an employee and are not sufficiently alleged to have 'discriminatory overtones' in this case."