Dollinger v. New York State Insurance Fund

Filing 10

MEMORANDUM-DECISION AND ORDER granting in part and denying in part 5 Motion to Dismiss for Failure to State a Claim; granting 8 Motion to Amend/Correct: The Court hereby ORDERS that Plaintiff's motion to amend the complaint is GRANTED; and the Court further ORDERS that Defendant's motion to dismiss is GRANTED in part and DENIED in part; and the Court further ORDERS that Plaintiff's Title VII discrimination, retaliation, and hostile workenvironment, as well as Plaintiff' s ADA discrimination claims, are DISMISSED; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules; and the Court further ORDERS that all further pretrial matters are referred to Magistrate Judge Peebles. Signed by U.S. District Judge Mae A. D'Agostino on 3/30/15. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ROBERT A. DOLLINGER
Plaintiff,
vs.

3:14-CV-00908
(MAD/DEP)

NEW YORK STATE INSURANCE FUND,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

ROBERT A. DOLLINGER
84 State Line Road
Vestal, New York 13850
Plaintiff, pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendant

JOSHUA L. FARRELL, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Pro se plaintiff, Robert Dollinger, brought this action against his employer, New York
State Insurance Fund ("NYSIF"), alleging discrimination, retaliation, and hostile work
environment based on his disability in violation of Title VII of the Civil Rights Act of 1964
("Title VII") and the Americans with Disabilities Act ("ADA"). See Dkt. No. 1. Defendant filed
a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt.
No. 5-1. Plaintiff responded, filed a cross-motion to amend his complaint, and submitted a
proposed amended complaint in support of his motion. See Dkt. No. 8-1. In the amended

complaint, Plaintiff alleges discrimination, retaliation, and hostile work environment based on his
sex and disability. See Dkt. No. 8-1 at 2. Currently before the Court is Defendant's motion to
dismiss Plaintiff's original complaint for failure to state a claim, as well as Plaintiff's motion to
amend the complaint.

II. BACKGROUND
A.

Plaintiff's Original Complaint
Plaintiff commenced this action on July 23, 2014, alleging discrimination based on his

disability, through Defendant's failure to promote him, unequal terms and conditions of
employment, and retaliation. See Dkt. No. 1. Plaintiff alleges that he is being discriminated
against because "[Plaintiff belongs] to a group associated with high risk for HIV/AIDS,
homosexual men living with HIV/AIDS." See Dkt. No. 1 at 3. Further, Plaintiff contends that he
has been "subjected to unwanted comments, received adverse personnel actions, and [has] been
subjected to this hostile . . . work environment because of [his] disability." See id. In regards to
retaliation, Plaintiff alleges that he was retaliated against for his participation in a 2012 New York
State Division of Human Rights proceeding in which a Sex Discrimination Complaint was
maliciously filed against Plaintiff. See id. During a review for promotion, "elements of
[Plaintiff's] personal life were disseminated in the workplace," and a "tyrannical atmosphere has
been established" as a result of Defendant's actions. See id. Plaintiff concludes that Defendant
has willfully acted in violation of Title VII and the ADA. See id.
Plaintiff filed charges with the Equal Employment Opportunity Commission ("EEOC")
regarding the alleged discriminatory acts on June 7, 2014. See id. at 4. The EEOC issued a
Notice-of-Right-to-Sue letter on June 25, 2014. See id. The letter issued by the EEOC declared
"[b]ased on its investigation, the EEOC is unable to conclude that the information obtained
2

establishes violation of the statutes . . . No finding is made as to any other issues that might be
construed as having been raised by this charge." See id. at 6.

B.

Defendant's 12(b)(6) Motion to Dismiss
On August 13, 2014, Defendant filed a motion to dismiss pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure, arguing that "Plaintiff's complaint states no facts to establish a
plausible [Title VII] or [ADA] claim." See Dkt. No. 5-1 at 3. Defendant argues that Plaintiff
failed to establish a retaliation claim under the ADA and Title VII because he alleges no facts
necessary to meet any of the elements of a retaliation claim. See Dkt. No. 5-1 at 5-6. Further,
Defendant argues that Plaintiff's discrimination claim under Title VII must fail because sexual
orientation is not a protected class under Title VII, and Plaintiff's claim under the ADA must fail
mainly because Plaintiff has not alleged an adverse employment action. See Dkt. No. 5-1 at 6-8.
Finally, Defendant argues that Plaintiff's hostile work environment claim must be dismissed
because his allegations are "wholly conclusory." See Dkt. No. 5-1 at 9.

C.

Plaintiff's Amended Complaint
On September 19, 2014, Plaintiff filed an amended complaint, in which he alleged

discrimination based on his sex and disability, through Defendant's failure to promote, unequal
terms and conditions of employment, and retaliation. See Dkt. No. 8-1 at 2. The amended
complaint alleges significantly more facts to support Plaintiff's allegations.
First, Plaintiff alleges that since 2010, co-workers have been disciplined for sending
emails that contain sexual content, profanity, and nudity. See Dkt. No. 8-1 at ¶ 3. Plaintiff has
frequently been the target of such improper computer use; for example, Plaintiff has received
unwanted emails of partially and fully nude men. See id. at ¶ 6. More specifically, Plaintiff
3

received an email portraying a male figure engaging in unsafe sex with a line drawn through it,
containing the text, "NO AIDS," as well as another email depicting a man dressed like a woman
containing the text, "Gay terrorist." Id. at ¶ 5. One day while working with a female co-worker,
Plaintiff opened an email "that immediately revealed a nude male graphic and began playing
related audio." Id. at ¶ 7. Plaintiff says that these emails make him feel "violated, degraded,
humiliated, unaccepted, and fearful in [his] workplace." Id. Plaintiff also alleges that he has had
unfounded and malicious workplace violence and other complaints filed against him, and that
NYSIF is aware of the frivolous filing of complaints. See id. at ¶¶ 18-19. According to Plaintiff,
since 2011, NYSIF has held meetings with the entire staff to address the misuse of internal
complaints. See id. at ¶ 21. Finally, on August 28, 2014, a harassing letter was mailed to
Plaintiff's home, and Plaintiff continues to experience hostility and intimidation from current
supervisors. See id. at ¶¶ 2, 45.
In response to what Plaintiff describes as a "discriminatory hostile atmosphere," id. at ¶ 1,
Plaintiff has participated in internal NYSIF sex discrimination interviews and New York State
Division of Human Rights ("DHR") investigations. See id. at ¶ 48. Plaintiff has reported the
unsolicited derogatory emails to the Affirmative Action Office at NYSIF. See id. at ¶ 9. Plaintiff
has also participated in NYSIF interviews involving disability and sexual harassment complaints
that were filed against NYSIF and "the then female Business Manager." Id. Plaintiff contends
that the "female Business Manager" was discriminated against because of her sex. See id. at ¶¶
12-18. Plaintiff alleges that, because he defended the female Business Manager, co-workers
retaliated by filing unfounded workplace violence and other complaints against him. Id. at ¶ 18.
For example, on March 16, 2012, a Human Rights Sex Discrimination Complaint named Plaintiff
as aider and abettor to NYSIF, alleging that Plaintiff was photographing females in the women's
4

bathroom to share with male co-workers. See id. at ¶¶ 3, 9, 18. Again Plaintiff alleges that
NYSIF is aware of the frivolous manipulation of internal complaints because the NYSIF
Affirmative Action intake procedures have been revised to include a disciplinary warning to those
who misuse the complaints; NYSIF has not, however, enforced the policy, and instead allows the
conduct to continue. See id. at ¶ 26.
Plaintiff alleges that he is being discriminated against because of his perceived disability,
as well as being subjected to "sexual harassment including gender stereotyping." Id. at ¶ 48. In
support of his sex discrimination claim, Plaintiff alleges that male co-workers often mock him for
being "overly sensitive" and "too emotional." Id. at ¶ 32. Also, a male co-worker has entered
Plaintiff's work area "wearing camouflage and hunting gear and talk[s] about guns and gutting
animals in the woods." See id. at ¶ 33. In addition, the new female Policy Holder Service
("PHS") manager talks about putting subordinates on meat hooks and tells male co-workers to
"cowboy up." Id. at ¶ 34. Plaintiff believes these comments are made "to portray [Plaintiff] as
lacking perceived needed stereotypical male 'aggression' and . . . [instead as] possessing perceived
negative stereotypical feminine attributes . . . therefore [making him] not capable of the PHS
manager title." Id.
Finally, Plaintiff alleges that Defendant failed to promote him to the position of PHS
manager, despite the fact that he is qualified for the position; Plaintiff has worked in the PHS
Department for 28 years as an Auditor, an Audit Supervisor, and a Team Leader. See id. at ¶ 39.
Plaintiff contends that similarly situated co-workers have been promoted to the PHS Manager
position. See id. In May 2013, NYSIF posted a vacancy notice for a PHS Manager position in
the Binghamton District Office, and Plaintiff applied for the position. See id. at ¶¶ 35-36.
Plaintiff alleges that he did not receive the promotion because a male co-worker sent an email to
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the NYSIF Executive Director including allegations that Plaintiff photographed women at work,
Plaintiff threw a hot cup of coffee at his nephew, and Plaintiff was feared because "[i]t is evident
that [Plaintiff's] domestic violence has spilled over into the workplace." See id. at ¶ 36. Plaintiff,
however, insists that his domestic partner was the one who threw the hot coffee at his runaway
nephew, and that the peace officer mistakenly wrote Plaintiff's name instead. See id. at ¶ 37. In
July 2013, another vacancy notice for the PHS Manager Position was posted; Plaintiff applied but
was never interviewed. See id. at ¶ 40. In August 2013, a co-worked informed Plaintiff that
family court documents, and the police report regarding the domestic dispute involving Plaintiff's
nephew, were made available to the entire PHS staff through the Outlook Email System. See id.
at ¶ 41. Plaintiff concludes that he was "deselected for a promotion" because of his sex and
disability. See Dkt. No. 8-1 at pg. 3-4.
III. DISCUSSION
A.

Standard of Review
Rule 15 of the Federal Rules of Civil Procedure addresses amended complaints: "A party

may amend its pleading only with the opposing party's written consent or the court's leave. The
court should freely give leave when justice so requires." Fed. R. Civ. P. 15(2). In general, a court
should not dismiss a pro se litigant's complaint without granting leave to amend at least once
"when a liberal reading of the complaint gives any indication that a valid claim might be stated."
Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009) (quotations and citation omitted).
Although "it is within the court's discretion to deny leave to amend . . . when leave is requested
informally in a brief filed in a motion to dismiss," In Re Ramoxifen Citrate Antitrust Litig., 466
F.3d 187, 220 (2d Cir. 2006), "a pro se litigant in particular should be afforded every reasonable
opportunity to demonstrate that he has a valid claim." Matima v. Celli, 228 F.3d 68, 81 (2d Cir.
6

2000) (quotations and citation omitted). As discussed above, Plaintiff's amended complaint
alleges considerably more facts than his original complaint, and therefore, Plaintiff's amended
complaint is accepted. Because Defendant has responded to the proposed amended complaint,
"the merits of the motion will be considered in light of the proposed amended complaint." Claes
v. Boyce Thompson Inst. for Plant Research, No. 5:14-CV-774, 2015 WL 831949, *3 (N.D.N.Y.
Feb. 27, 2015). "If the proposed amended complaint cannot survive the motion to dismiss, then
[P]laintiff's cross-motion to amend will be denied as futile." Id. (citing Dougherty v. Town of N.
Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002).
A motion to dismiss for failure to state a claim tests the legal sufficiency of the party's
claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citations omitted). In
considering a Rule 12(b)(6) motion to dismiss, a court should "draw all reasonable inferences in
[the plaintiff's] favor, assume all well-pleaded factual allegations to be true, and determine
whether they plausibly give rise to an entitlement for relief." Faber v. Metro Life Ins. Co., 648
F.3d 98, 104 (2d Cir. 2011) (quotation and citation omitted). Drawing inferences in the plaintiff's
favor does not, however, extend to bare legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) ("Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice") (citation omitted). Ultimately, a court should only grant a
Rule 12(b)(6) motion to dismiss if "it appears beyond doubt that the plaintiff can prove no set of
facts in support of the complaint which would entitle him to relief." Phelps v. Kapnolas, 308 F.3d
180, 184 (2d Cir. 2002) (citation omitted).
"[I]n a pro se case, the court must view the submissions by a more lenient standard than
that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F.Supp.2d 289,
295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations
7

omitted). See also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)) ("A pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers").
B.

Discrimination
1. Title VII Sex Discrimination
Title VII of the 1964 Civil Rights Act makes it unlawful for an employer to: "discriminate

against any individual with respect to compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C.
§ 2000e-2(a)(1). In order to establish a prima facie case of discrimination under Title VII, a
plaintiff must show that "(1) [he] is a member of a protected class; (2) [he] is qualified for [his]
position; (3) [there was] an adverse employment action; and (4) the circumstances give rise to an
inference of discrimination." Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000)
(citation omitted). As stated in the statute, protected classes include race, color, religion, sex, and
national origin. 42 U.S.C. § 2000e-2(a)(1). An adverse employment action includes any
"materially adverse change in the terms, privileges, duration, and conditions of employment."
Treglia v. Town of Manlius, 313 F.3d 717, 720 (2d Cir. 2002).
"Title VII does not, by its express terms, prohibit all arbitrary employment practices.
Rather, it is directed only at specific impermissible bases of discrimination such as race, color,
religion, sex, or national origin." Dollinger v. State Ins. Fund., F.Supp.2d 467, 475 (N.Y.N.D.
1999). Because "sexual orientation is not included in the statutory protected class," Kiley v.
American Soc. for Prevention of Cruelty to Animals, 296 Fed. Appx. 107, 109 (2d Cir. 2008),
Plaintiff attempts to proceed under a gender stereotyping theory of sex discrimination. See also
Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) ("The law is well-settled in this circuit . . . that
8

[the plaintiff] has no cause of action . . . because Title VII does not prohibit harassment or
discrimination because of sexual orientation"). Although it is uncommon, courts have recognized
the potential for a Title VII sex discrimination claim when the plaintiff has suffered an adverse
employment action due to impermissible gender stereotyping by the employer. See Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989) (female employee denied promotion to partner in an
accounting firm because of employer's negative perception of her "masculine" qualities, such as
her aggressiveness and use of profanity). However, the Second Circuit has made it clear that a
plaintiff may not utilize a gender stereotyping claim in an effort to "bootstrap protection for
sexual orientation into Title VII." Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir.
2005) (citing Simonton v. Runyon, 232 F.3d 33, 38 (2d Cir. 2000)).
Under the gender stereotyping theory of Title VII liability, "individuals who fail or refuse
to comply with socially accepted gender roles are members of a protected class." Dawson, 398
F.3d at 218. The gender stereotyping theory is grounded in the premise that "Congress intended
to strike at the entire spectrum of disparate treatment of men and women resulting from sex
stereotypes." Price, 490 U.S. at 251. The Second Circuit has drawn a strict distinction between
discrimination based on sexual orientation and discrimination based on failure to comply with
traditional gender roles. For instance, in Simonton v. Runyon, the Second Circuit related the facts
of the plaintiff's case "to identify the precise nature of the abuse so as to distinguish this case from
future cases as they arise." Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000). The harassment
that the plaintiff in Simonton endured included the following: notes containing the plaintiff's name
and celebrities who had died of AIDS, pornographic photographs in the plaintiff's work area, male
dolls in his vehicle, and copies of Playgirl magazine sent to his home. Id. Despite the moral
repugnancy of the harassment, the Second Circuit concluded that there is "[no basis in the record
9

to surmise that] the harassment he endured was, in fact, based on his non-conformity with gender
norms instead of his sexual orientation." Id. at 38; see also Martin v. New York State Dept. of
Correctional Services, 224 F. Supp. 2d 434 (N.D.N.Y. 2002). Therefore, "in order to avoid
bootstrapping sexual orientation claims under Title VII, a plaintiff must demonstrate that he does
not, or at the very least is not perceived to, act masculine." Martin, 224 F. Supp. 2d at 446.
Like the plaintiffs in Martin and Simonton, the basis of Plaintiff's claim for relief is largely
based on discriminatory conduct directed toward Plaintiff's sexual orientation, and not his failure
to conform to traditional masculine stereotypes. The few instances of potential sex discrimination
that Plaintiff alleges in the amended complaint are far too minor to permit the inference that sex
discrimination played a role in Defendant's failure to promote Plaintiff. The mere presence of a
male co-worker in Plaintiff's workspace "wearing camouflage . . . and talk[ing] about guns and
gutting animals in the woods," combined with trivial comments about Plaintiff being "too
sensitive," does not allow for the inference that Plaintiff's failure to conform to masculine
stereotypes is the true rationale for Defendant's denial of his promotion. See Dkt. No 8-1 at ¶¶
32-34. On the contrary, Plaintiff alleges that the male co-worker told other co-workers that he
was "fearful of [Plaintiff]," which is inconsistent with the perception Plaintiff has alleged others
have of him. See id. at ¶ 43. Finally, Plaintiff alleges that the main reason why he was not
promoted was allegedly the result of Defendants obtaining access to a Family Court case and
police report that involved Plaintiff, his domestic partner, and his runaway nephew. See Dkt. No.
8-1 at ¶ 37. There is no possible way that the Court can construe Plaintiff's amended complaint so
as to infer that Defendant's access to this information, albeit personal information, caused
Defendant to impermissibly perceive Plaintiff as failing to conform to "socially accepted gender
roles." Therefore, Plaintiff's Title VII discrimination claim is dismissed.
10

2. ADA Discrimination
The ADA prohibits "discrimination against a qualified individual on the basis of disability
in regard to job application procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions, and privileges of employment."
42 U.S.C. § 12112(a). To establish a prima facie case of discrimination under the ADA, a
plaintiff must show that: "(1) his employer is subject to the ADA; (2) he was disabled within the
meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job,
with or without reasonable accommodation; and (4) he suffered adverse employment action
because of his disability." Sista v. CDC Ixis North America, Inc., 445 F.3d 161, 169 (2d Cir.
2006) (citing Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001)).
Under the ADA, "disability" is defined as follows: (a) a physical or mental impairment
that substantially limits one or more of the major life activities of an individual; (b) a record of
such impairment; or, (c) being regarded as having such an impairment. See 42. U.S.C. §
12102(1). An individual meets the third, "regarded as," category if "the individual establishes
that he . . . has been subjected to an action prohibited under this chapter because of an actual or
perceived physical or mental impairment whether or not the impairment limits or is perceived to
limit a major life activity." 42 U.S.C. § 12102(3)(A). "A 'regarded as' claim turns on the
employer's perception of the employee and is therefore a question of intent, not whether the
employee has a disability." Capobianco v. City of New York, 422 F.3d 47, 57 (2d Cir. 2005)
(internal citations and quotations omitted). The Second Circuit explained in City of Meriden that
[a] plaintiff cannot state a claim under the "regarded as" prong of
the ADA . . . simply by alleging that the employer believes some
physical condition renders the plaintiff disabled. Rather, the
plaintiff must allege that the employer believed, however
erroneously, that the plaintiff suffered from an "impairment" that, if
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it truly existed, would be covered under the statute and that the
employer discriminated against the plaintiff on that basis.
Francis v. City of Meriden, 129 F.3d 281, 285 (2d Cir. 1997). Plaintiff is proceeding under the
"regarded as" category of a disability. See Dkt. No. 8-1 at ¶ 4 ("[Plaintiff is] regarded as
belonging to a group associated with high risk for HIV/AIDS; homosexual men living with
HIV/AIDS").
"An individual who can show that an employer made an employment decision because of
a perception of a disability based on myth, fear, or stereotype, will satisfy the regarded as part of
the definition of disability." Dollinger v. State Ins. Fund, 44 F. Supp. 2d 467, 479 (N.D.N.Y.
1999) (emphasis added) (internal quotations and citation omitted). A "disability" includes HIV
positive status. See Bragdon v. Abbot, 524 U.S. 624 (1998); see also Rivera v. Heyman, 157 F.3d
101, 103 (2d Cir. 1998) (confirming the Second Circuit's conclusion that HIV positive status
constitutes a disability). Plaintiff's allegations are sufficient to establish that Defendant knew of,
or at least perceived, Plaintiff's HIV/AIDS status based on the complaints Plaintiff made both
internally and with the EEOC. Plaintiff complained about offensive emails that literally
demonstrated such a perception, and in response to the emails, NYSIF held meetings with the
entire staff to address the issue. See Dkt. No. 8-1 at ¶¶ 5, 21. For these reasons, the Court finds
that Plaintiff has plausibly alleged that Defendant regarded him as having a disability.
Although Defendant contests all elements of Plaintiff's ADA discrimination claim,
Plaintiff's pro se amended complaint must be construed liberally at this early stage in the
proceedings. First, NYSIF meets the statutory definition of an employer. See 42 U.S.C. §
12111(5)(A). Second, as discussed, Plaintiff has plausibly alleged that he meets the "regarded as"
definition of a disability – i.e. Plaintiff is regarded as being HIV positive – regardless of whether
or not Plaintiff is HIV positive. As mentioned above, HIV positive status constitutes a disability.
12

Third, the fact that Plaintiff has worked at NYSIF for twenty-eight years and has been promoted
several times supports Plaintiff's conclusion that he is qualified to perform the essential functions
of the job. See Dkt. No. 8-1 at ¶ 39.
Plaintiff's ADA discrimination claim fails, however, on the fourth element of the claim –
i.e. that Plaintiff suffered adverse employment action because of his disability. As described
under the Title VII analysis, Plaintiff alleges that an email including "false negative information
relating to [Plaintiff's] personal life" is the reason why Plaintiff was not selected for the
promotion. See Dkt. No. 8-1 at ¶ 36. Again, the email contained a police report that stated that
Plaintiff threw a cup of hot coffee on his runaway nephew. Id. Plaintiff claims that his domestic
partner was actually the one who threw the coffee and that "[Plaintiff's] partner has never entered
the NYSIF workplace." Id. at ¶ 37. Therefore, as far as Defendant knows, Plaintiff was involved
in a domestic dispute with his minor nephew, and Plaintiff's partner was not present. These facts
do not support the conclusion that Plaintiff was not promoted because Defendant "regarded
Plaintiff" as having HIV/AIDS. In other words, Plaintiff's perceived disability was not plausibly
at issue during the selection process for PHS Manager. In fact, the co-worker also cited NYSIF's
domestic violence policy in the email, and violating the policy is a legitimate reason for denying
Plaintiff the promotion. Since the personal information about Plaintiff that was disseminated
throughout NYSIF made no reference to Plaintiff's actual or perceived disability, Defendant's
motion to dismiss Plaintiff's ADA Discrimination claim is granted.

C.

Retaliation
1. Title VII
Title VII makes it unlawful for "an employer to discriminate against any of his employees

. . . because he has opposed any practice made an unlawful employment practice by this
13

subchapter, or because he has made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3. To state a
prima facie case of retaliation under Title VII, a plaintiff must plausibly allege the following:
(1) that he engaged in protected participation or opposition under
Title VII . . . , (2) that the employer was aware of this activity, (3)
that the employer took adverse action against the plaintiff, and (4)
that a causal connection exists between the protected activity and
the adverse action, i.e., that a retaliatory motive played a part in the
adverse employment action.
Kessler v. Westchester County Dep't of Soc. Servs., 461 F.3d 199, 205-06 (2d Cir. 2006)
(quotation and other citations omitted). In other words, "the essence of a retaliation claim is that
the employer took adverse employment action against an employee motivated in part because the
employee engaged in protected activity by opposing an unlawful practice." Robinson v. Purcell
Const. Corp., 859 F. Supp. 2d 245, 261 (N.D.N.Y. 2012). The Supreme Court has held that "the
scope of Title VII's anti-retaliation provision is broader than that of its discriminatory action
provision . . . any action that could well dissuade a reasonable worker from making or supporting
a charge of discrimination could constitute retaliation." Patane v. Clark, 508 F.3d 106, 116 (2d
Cir. 2007) (internal quotations and citation omitted).
In his amended complaint, Plaintiff alleges that he participated in "internal NYSIF sex
discrimination complaints" and "NYS Division of Human Rights Investigations," on his own
behalf. See Dkt. No. 8-1 at ¶ 8. Although this Court has found that Plaintiff was not subjected to
sex discrimination, it is irrelevant whether the complained of conduct actually violated the law
"'so long as he can establish that he possessed a good faith, reasonable belief that the underlying
challenged actions of employer violated the law.'" Treglia v. Town of Manlius, 313 F.3d 713, 719
(2d Cir. 2002) (quotation and citation omitted). "The reasonableness of the plaintiff's belief is to

14

be assessed in light of the totality of the circumstances." Galdieri-Ambrosini v. Nat'l Realty &
Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998) (citation omitted).
In this case, when the totality of the circumstances are taken into consideration, the
discriminatory conduct was clearly directed at Plaintiff's sexual orientation, not Plaintiff's sex or
his failure to conform to masculine stereotypes. See Dkt. No. 8-1 at ¶¶ 5-7 (discussing offensive
emails which targeted Plaintiff's sexual orientation). Therefore, it was not objectively reasonable
for Plaintiff believe that he was opposing instances of sex discrimination. Plaintiff also
repeatedly refers to his involvement in a Division of Human Rights Sex Discrimination
Complaint that named Plaintiff as aider and abettor to NYSIF. See Dkt. No. 8-1 at ¶ 11. This Sex
Discrimination Complaint filed against Plaintiff does not qualify for purposes Title VII's
retaliation prohibition; Plaintiff was alleged to have violated the law, so it cannot logically follow
that he was engaged in protected participation or opposition. Rather, he was defending himself
against allegations that he engaged in prohibited conduct.
In Thompson, the Supreme Court held that the plaintiff had stated a claim for Title VII
retaliation when he was fired (an adverse employment action) after his fiancée filed a sex
discrimination (protected activity) charge against their employer. See Thompson v. North
American Stainless, LP, 562 U.S. 170 (2011). Plaintiff attempts to state a retaliation claim under
third-party opposition to sex discrimination, in saying that he participated in "NYSIF interviews
involv[ing] disability complaints and sexual harassment complaints levied against . . . the then
female Business Manager." See Dkt. No. 8-1 at ¶ 9. Plaintiff thoroughly recounts instances of
sex discrimination perpetrated against the female Business Manager, and then states that he
participated in internal investigations on her behalf. See id. at ¶¶ 12-18. In order to successfully
state a claim under Thompson, however, Plaintiff must allege that the female Business Manager
15

engaged in a protected activity under Title VII, and that Plaintiff suffered an adverse employment
action as a result.
A "protected activity" includes any "action taken to protest or oppose statutorily
prohibited discrimination." Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000)
(emphasis added). Plaintiff's attempt at using a third-party retaliation claim arising out of internal
investigations that he participated in on the female Business Manager's behalf when internal
complaints were filed against her, does not constitute protected activity. For example, Plaintiff
participated in a sexual harassment complaint investigation levied against the female Business
Manager, which involved an incident "where she had used the word testosterone in room full of
males." See id. at ¶13. In another instance, a female fieldworker filed a Workplace Violence
Complaint against the female Business Manager because "she felt intimidated when [the Business
Manager] called her directly as opposed to going through the field employee's male supervisor."
See id. at ¶ 14. Although Plaintiff's amended complaint is riddled with examples of allegedly
unfounded complaints being filed against the female Business Manager, he never alleges that she
opposed this discriminatory conduct formally through internal or external channels, such as the
EEOC. Therefore, because it was not objectively reasonable for Plaintiff to believe he was
opposing sex discrimination on his own behalf, and because Plaintiff fails to state a third-party
retaliation claim on the female Business Manager's behalf, Plaintiff's Title VII retaliation claim is
dismissed.

2. ADA
The ADA makes it unlawful for an employer to "discriminate against any individual
because such individual has opposed any act of practice made unlawful by this chapter or because
such individual made a charge, testified, assisted, or participated in any manner in an
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investigation, proceeding, or hearing under this chapter." 42 U.S.C. § 12203(a). A retaliation
case under the ADA requires "a showing that the employee was engaged in an activity protected
by the ADA." Gold v. Carus, 131 Fed. Appx. 748, 750 (2d Cir. 2005) (quotations and citation
omitted). ADA retaliation claims are analyzed under the same framework as Title VII retaliation
claims. See Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999)
("[The Second Circuit] conclude[s] that it is appropriate to apply the framework used in analyzing
retaliation claims under Title VII in analyzing a claim of retaliation under the ADA").
"[The ADA's] anti-retaliation provision must be construed to cover a broad range of
employer conduct." Thompson v. North American Stainless, LP, 562 U.S. 170, 173 (2011)
(citation omitted). Keeping that premise in mind, the Second Circuit has held that "retaliatory coworker harassment, if sufficiently severe, may constitute adverse employment action so as to
satisfy the second element of the retaliation prima facie case." Martin v. New York State Dep't of
Corr. Servs., 224 F. Supp. 2d 434, 448 (N.D.N.Y. 2002) (citing Richardson v. New York State
Dep't of Correctional Serv., 180 F.3d 426, 446 (2d Cir. 1999)). In determining whether the coworker harassment is "sufficiently severe," the court should consider whether the plaintiff has
"endure[d] a materially adverse change in the terms and conditions of employment." Martin, 224
F. Supp. 2d at 448 (quoting Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.
2000)) (citation omitted). Further, "material adversity is to be determined objectively, based on
the reactions of the reasonable employee." Rivera v. Rochester Genesse Regional Transp.
Authority, 743 F.3d 11, 25 (2d Cir. 2012).
Construing Plaintiff's amended complaint liberally, as is required on a Rule 12(b)(6)
motion to dismiss, Plaintiff has alleged sufficient facts to state a retaliation claim under the ADA.
Plaintiff alleges that he has participated in protected activity under the ADA, including NYSIF
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interviews "regarding discriminatory behavior with respect to [Plaintiff's] disability." See Dkt.
No. 8-1 at ¶ 9. Plaintiff has produced sufficient evidence to allege that his co-worker's retaliatory
harassment – i.e. the repeated filing of malicious and unfounded complaints against him – reaches
the level of an adverse employment action, especially because Defendant has failed to enforce
procedures designed to prevent the conduct from occurring. See Martin v. New York State Dept.
of Correctional Servs., 224 F. Supp. 2d 434, 449 (N.D.N.Y. 2002) (holding that other employees
handcuffing the plaintiff to the arsenal window is sufficiently severe to constitute materially
adverse employment action); see also Richardson, 180 F.3d at 446-47 (finding that sufficiently
severe co-worker retaliatory harassment included manure in the plaintiff's parking space, hair in
her food, a rubber band shot at her, and scratches on her car). Finally, Plaintiff alleges that a
causal connection exists between the protected activity and the adverse employment action
because "[t]he targeted individuals include the disabled, perceived lesbians and gay men . . . or
anyone who opposes or questions the targeted discriminatory activities." See Dkt. No. 8-1 at ¶
24. Plaintiff alleges that he is specifically targeted in unfounded Workplace Violence complaints,
Human Rights grievances, and Health Department complaints. See id. at ¶ 18. Finally, unlike
Plaintiff's Title VII sex discrimination retaliation claim, it was reasonable for Plaintiff to believe
that he was being discriminated against because of his perceived disability, as the harassing
emails literally referenced the perceived disability and Plaintiff complained of the emails to
Defendant. Therefore, Defendant's motion to dismiss Plaintiff's ADA retaliation claim is denied.
D.

Title VII and ADA Hostile Work Environment Claims
In order to state a Title VII claim of hostile work environment, a plaintiff must plausibly

allege that "the work place is permeated with discriminatory intimidation, ridicule, and insult, that
is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an
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abusive working environment." Gorzynski v. JetBlue Airways Co., 596 F.3d 93, 102 (2d Cir.
2010). Further, the conduct at issue must be "so severe and so pervasive as to create an
objectively hostile or abusive work environment, and where the victim subjectively perceives the
environment to be abusive." Robinson v. Purcell Const. Corp., 859 F.Supp.2d 245, 254
(N.D.N.Y. 2012) (citing Richardson v. N.Y. State Dep't of Correctional Serv., 180 F.3d 426, 436
(2d Cir. 1999) (internal quotations omitted). The incidents must be more than episodic; "[the
incidents] must be sufficiently continuous and concerted in order to be deemed pervasive."
Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002). Finally, "[b]eyond demonstrating a hostile
work environment, a plaintiff must show a basis for imputing the objectionable conduct to the
employer." Gorzynski, 596 F.3d at 103 (citation omitted).
In order to state a claim for hostile work environment under Title VII, the court must
consider the extent to which the discriminatory conduct occurred because of plaintiff's sex. See
Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) ("It is 'axiomatic' that in order to establish a
sex-based hostile work environment under Title VII, a plaintiff must demonstrate that the conduct
occurred because of [his] sex") (quotation and citation omitted). Plaintiff alleges very few
incidents of discriminatory conduct and sexual harassment that are based on his sex, rather than
his sexual orientation. The offensive emails Plaintiff has received, for example, involve explicit
images of individuals engaged in homosexual activity and derogatory text that were directed at
Plaintiff's sexual orientation. See Dkt. No. 8-1 at ¶ 5 ("[Plaintiff has] received unwanted emails . .
. [involving] derogatory stereotype characterizations of gay men and unsafe sex"). Again,
although Plaintiff alleges the conduct occurs because he is perceived as lacking masculine
qualities, Plaintiff does not plausibly allege any facts from which that conclusion may be drawn.
The few comments that are made about Plaintiff being "too emotional" and "too sensitive," are
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quintessentially episodic, and not sufficiently severe or pervasive enough to state a Title VII
hostile work environment claim based on sex discrimination. Therefore Plaintiff's hostile work
environment claim under Title VII is dismissed.
ADA hostile work environment claims are analyzed under the same frame work as Title
VII, except that in order to state a claim for hostile work environment under the ADA, "[a]
plaintiff must also demonstrate that [he] was subjected to the hostility because of [his disability]."
Brennan v. Metro. Opera Ass'n, Inc., 192 F.3d 310, 318 (2d Cir. 1999); see also Hendler v.
Intelecom USA, Inc., 963 F. Supp. 200, 208 (E.D.N.Y. 1997) (holding that an ADA hostile work
environment claim is analyzed under same framework at Title VII). Factors to consider in
evaluating a hostile work environment claim include the following: "the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee's work
performance." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). As discussed above, Plaintiff
is "regarded as belonging to a group associated with high risk for HIV/AIDS, homosexual men
living with HIV/AIDS," which satisfies the "regarded as" definition of disability under the ADA.
The unsolicited emails Plaintiff received, described above, clearly are aimed at Plaintiff's
perceived HIV/AIDS status. See Dkt. No. 8-1 at ¶ 5-7. In addition, these emails have far more
potential for humiliation than the alleged instances of sex discrimination, particularly the incident
where a sexually explicit video, with audio, began playing when Plaintiff was in the presence of a
female co-worker. See Dkt. No. 8-1 at ¶ 7. The emails understandably make Plaintiff feel
"violated, anxious, ashamed, depressed, unaccepted, and fearful in [Plaintiff's] workplace." Id. at
¶ 6.

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In addition to receiving the offensive emails, Plaintiff alleges that co-workers are
repeatedly filing unfounded and malicious complaints against him. See id. at ¶ 18. At this early
stage in the proceedings, Plaintiff has alleged sufficient facts that warrant imputing the
objectionable conduct on NYSIF. For example, Plaintiff alleges that meetings have been held to
address inappropriate computer use since 2010. See Dkt. No. 8-1 at ¶¶ 3, 20-21 ("[C]o-workers
have openly boasted about the ability to manipulate [complaints] . . . The NYSIF Executive
Deputy Attorney and NYSIF Personnel Director have held meetings with the entire Binghamton
staff . . . since 2011 regarding this inappropriate activity"). Plaintiff also alleges that the NYSIF
Affirmative Action Office revised its intake procedures to include a disciplinary warning to those
who plan on frivolously filing complaints. Plaintiff claims, however, that Defendant has not
enforced this new policy. See id. at ¶ 26. Reading Plaintiff's pro se amended complaint in a
liberal manner, Plaintiff has alleged sufficient facts to proceed with a hostile work environment
claim under the ADA. Therefore, Defendant's motion to dismiss Plaintiff's ADA hostile work
environment claim is denied.

IV. CONCLUSION
After carefully reviewing the record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff's motion to amend the complaint is GRANTED; and the Court
further
ORDERS that Defendant's motion to dismiss is GRANTED in part and DENIED in
part; and the Court further

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ORDERS that Plaintiff's Title VII discrimination, retaliation, and hostile work
environment, as well as Plaintiff's ADA discrimination claims, are DISMISSED;1 and the Court
further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules; and the Court further
ORDERS that all further pretrial matters are referred to Magistrate Judge Peebles.
IT IS SO ORDERED.
Dated: March 30, 2015
Albany, New York

As a result of this Memorandum-Decision and Order, the only remaining claims are
ADA retaliation and hostile work environment.
1

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