Dollinger v. New York State Insurance Fund
Filing
103
MEMORANDUM-DECISION AND ORDER granting in part and denying in part 90 Motion to Amend/Correct; granting 97 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 100 Motion to Dismiss for Failure to State a Claim: The Court hereby ORDERS that Plaintiff's motion for leave to amend his complaint (Dkt. No. 90) is GRANTED in part and DENIED in part; and the Court further ORDERS that Defendant Browning's motion to dismiss (Dkt. No. 97) is GRANTE D; and the Court further ORDERS that Defendants NYSIF and Anglehart's cross motion for judgment on the pleadings (Dkt. No. 100) is GRANTED in part and DENIED in part; and the Court further ORDERS that Defendants Browning and Anglehart are term inated as parties; and the Court further ORDERS that the Clerk of the Court shall accept for filing Plaintiff's amended complaint, which is now the operative pleading; 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. Signed by U.S. District Judge Mae A. D'Agostino on 10/9/2018. (Copy served via regular and certified mail)(ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ROBERT A. DOLLINGER,
Plaintiff,
vs.
3:14-CV-908
(MAD/DEP)
NEW YORK STATE INSURANCE FUND et al,
Defendants.
____________________________________________
APPEARANCES:
OF COUNSEL:
ROBERT A. DOLLINGER
P.O. Box 270
Kirkwood, New York 13795
Plaintiff, pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants New York State
Insurance Fund and Scott Anglehart
HELENA LYNCH, AAG
OMAR J. SIDDIQI, AAG
ADRIENNE J. KERWIN, AAG
OFFICE OF FRANK W. MILLER
6575 Kirkville Road
East Syracuse, New York 13057
Attorneys for Defendant Browning
CHARLES C. SPAGNOLI, ESQ.
FRANK W. MILLER, 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, the New York
State Insurance Fund ("NYSIF"), alleging discrimination, retaliation, and hostile work
environment based on his sexual orientation and disability in violation of Title VII of the Civil
Rights Act of 1964 ("Title VII") and the Americans with Disabilities Act. See Dkt. No. 1. On
March 30, 2015, the Court dismissed Plaintiff's Title VII claims for discrimination, retaliation,
and hostile work environment because, at the time, the Second Circuit did not recognize sexual
orientation as a protected class under Title VII. See Dkt. No. 10 at 10, 15, 19-20.
On August 26, 2015, Plaintiff filed a second amended complaint. See Dkt. No. 27. On
March 22, 2016, Defendants moved for judgment on the pleadings to dismiss the second amended
complaint. See Dkt. No. 47. On November 18, 2016, the Court granted NYSIF's motion, denied
Plaintiff leave to amend, and entered judgment in Defendants' favor. See Dkt. No. 68. On
December 1, 2016, Plaintiff appealed the Court's decision to the Second Circuit. See Dkt. Nos.
71-76. On February 13, 2018, the Second Circuit remanded in part and instructed the Court to
give "further consideration on the Title VII claims of sex-based discrimination that Dollinger
raised in his original complaint. Cf. Zarda v. Altitude Express, 855 F.3d 76 (2015), reh'g en banc
granted, No. 15-3775 (2d Cir. May 25, 2017, ECF No. 271)." Dkt. No. 78 at 4. The panel also
instructed the Court to give "further consideration of Dollinger's motion [for leave to amend] in
conjunction with his allegation of sex-based discrimination, hostile work environment, and
retaliation under Title VII." Id. at 5. On February 26, 2018, the Second Circuit issued its opinion
in Zarda, holding that Title VII prohibited discrimination on the basis on sexual orientation. See
Zarda v. Altitude Express, Inc., 883 F.3d 100, 132 (2d Cir. 2018) (en banc).
On May 4, 2018, Plaintiff filed a motion for leave to amend his complaint in order to
include Title VII claims. See Dkt. No. 90. Defendants oppose this motion and have filed cross
motions to dismiss for failure to state a claim and for judgment on the pleadings. See Dkt. Nos.
97 & 100.
Currently before the Court are Plaintiff's motion for leave to amend, Defendant Charles
Browning's cross motion to dismiss for failure to state a claim, and Defendants NYSIF and Scott
Anglehart's cross motion for judgment on the pleadings. For the following reasons, Plaintiff's
motion for leave to amend is granted, Defendant Browning's motion to dismiss is granted, and
2
Defendants NYSIF and Anglehart's motion for judgment on the pleadings is granted in part and
denied in part.
II. BACKGROUND
Plaintiff is an employee of the New York State Insurance Fund, located at their office in
Binghamton, New York. See Dkt. No. 90-1 at 1-2. According to Plaintiff's third amended
complaint, Defendant NYSIF has allowed "sex-based discrimination, a hostile work environment,
and retaliation." Id. at 7.
Plaintiff claims that he has been subjected to such treatment because of his sexual
orientation. See id. Plaintiff contends that he has "received unwanted emails having to do with
[his] sexual orientation including unwanted sexual pictures of men as well as derogatory
stereotype representations of gay men and sex." Id. at 9. One message he received was captioned
"'NO AIDS' and portray[ed] a symbolic male figure engaging in unsafe sex with a line drawn
through it." Id. Further, Plaintiff contends he was emailed "an image titled 'Gay Terrorist' and
[it] depict[ed] a man dressed like a woman in high heels." Id.
Plaintiff also received emails featuring "fully or partially nude men." Id. On one
occasion, Plaintiff opened an email that was supposed to contain work material in front of a
colleague. See id. When Plaintiff opened the email, "a nude male graphic appeared on the screen
and related audio began playing." Id. Plaintiff claims that as a result of this incident, he "felt
violated, degraded, humiliated, unaccepted and fearful for [his] job." Id. at 9-10.
Plaintiff claims that he has "opposed discrimination and participated in internal NYSIF
discrimination complaints as well as NYS Division of Human Rights investigations." Id. at 10.
According to Plaintiff, he has "reported harassing emails and materials placed in [his] work area
to [his] supervisors and the NYSIF Affirmative Action and PEF. [His] reporting included NYSIF
interviews regarding discriminatory behavior with respect to sexual harassment and written
3
responses." Id. at 10. Plaintiff also alleges that Defendant Anglehart kept "a tally board that
tracked . . . those who reported inappropriate sexual emails." Id. at 12.
Plaintiff also claims that he has been falsely named in workplace violence complaints.
See id. at 14. One complaint accused Plaintiff of "photographing females to share with the PHS
Manager . . . ." Id. at 16. Although Plaintiff does not specify what actions, if any, were taken
against him as a result of the ensuing investigation, he does claim that the NYSIF Executive
Deputy Attorney and NYSIF Personnel Director "have held meetings with the entire Binghamton
staff including the Legal Department and PEF since 2011 regarding this inappropriate activity."
Id. at 16.
In May of 2013, NYSIF posted a vacancy notice (E13-03) seeking candidates for a
Policyholder Service Manager in the Binghamton District Office. See id. at 19. Plaintiff applied
for the position. See id. According to Plaintiff, that same month, "a male coworker who was the
subject of discipline for improper computer use, including shared emails containing sexual
content, sexual innuendo, profanity and nudity, who also filed a Workplace Violence Complaint
naming NYSIF, me, and the Affirmative Action Officer as aggressors of violence in the
workplace, then emailed false negative information relating to my personal life to the NYSIF
Executive Director, the NYSIF Director of Administration, and the NYSIF Personnel Director
stating that I had photographed women at work and that I had thrown a hot cup of coffee at my
nephew at home and stated that he is fearful of me and that 'It is evident that Mr. Dollinger's
domestic violence has spill[ed] over into the workplace, compromising the safety of . . .
coworkers and resulting in lost productivity. . . .'" Id. at 19-20. Despite having worked at the
NYSIF for twenty-eight years in various positions, Plaintiff has not been promoted to a
management position. See id. at 20-21.
In July of 2013, NYSIF posted a second vacancy notice (E13-04) seeking candidates for
4
the Policyholder Service Manager position in the Binghamton District Office. See id. at 21.
Plaintiff applied for the position but was not interviewed. See id. In August of 2013, Plaintiff
was advised by a coworker "that she and others observed information about [his] personal life that
was placed in an electronic common retain folder associated with" a fax box, which was used and
accessed by the entire staff through NYSIF's email system. See id. "Upon information and belief
the information was placed in the folder by the male candidate who had interviewed for Vacancy
Notice (E13-03) for PHS Manager." Id. Moreover, on August 14, 2013, coworkers advised
Plaintiff that the same male coworker "was now boasting that he and the Legal Department had
intervened and that [Plaintiff] would no longer be the selected candidate for PHS Manager."
Id. at 22. Plaintiff reported this conduct to the NYSIF Affirmative Action Officer on August 14,
2013 but, after referring the complaint to an outside agency, no action was taken. See id. at 2223.
Plaintiff claims that he is "being subjected to this hostility, sexual orientation sex-based
discrimination and retaliation for opposing discrimination and participating in internal NYSIF
discrimination complaints and NYS Division of Human Rights investigations." Id. at 24.
Plaintiff alleges that he filed a workplace violence complaint at NYSIF in May of 2014 after
being threatened for pursuing his rights. See id. at 25. "Threats and workplace violence [have]
continued and include letters and other threatening and derogatory information mailed to [his]
home and left in [his] work station including August 2014 and December of 2016 as well as
negative interactions, including threats of discipline, harassing letters and negative interactions up
through March 2018." Id. at 26-27.
Plaintiff claims that his complaints have not been properly acted on. First, he notes that
his complaint was transferred to three investigators. See id. at 28. Further, Plaintiff claims that
the investigators have refused to interview his witnesses. See id. at 26. Finally, Plaintiff claims
5
that his complaint was improperly withdrawn just prior to beginning arbitration. See id. at 28.
Plaintiff claims that as of March 2018, Defendant Browning continues to have negative
interactions with him. See id. These interactions include entering Plaintiff's personal space,
acting aggressively, slamming doors and items, and conduct which Plaintiff describes as stalking.
See id. at 28-29.
The proposed third amended complaint includes an October 6, 2017, right to sue letter
from the EEOC, a new pro se complaint form that makes sex discrimination, hostile work
environment, and retaliation claims under Title VII, removes claims against all former defendants
except Defendant NYSIF and Defendants Scott Englehart and Charles Browning in their official
capacities, and makes some changes to the factual narrative. See Dkt. No. 90 at 2. Defendants
oppose granting Plaintiff leave to amend his complaint, arguing that Plaintiff's claims are futile.
See Dkt. No. 100-1 at 3-4.
In Defendants' cross motions to dismiss and for judgment on the pleadings, Defendants
argue that Title VII does not permit claims against individuals in their official capacity so the
claims against Defendants Browning and Anglehart should be dismissed. See id. at 22; Dkt. No.
97 at 2. Further, Defendants argue that Plaintiff fails to allege that he suffered an adverse action
or was retaliated against because of his sexual orientation. See Dkt. No. 100-1 at 26-31. Finally,
Defendants argue that the alleged conduct does not meet the necessary threshold of hostility to
establish a Title VII hostile work environment claim. See id. at 31-33.
III. DISCUSSION
A.
Standard of Review
1. Motion to Amend
According to Rule 15 of the Federal Rules of Civil Procedure, since a responsive pleading
has already been filed, "a party may amend its pleading only with the opposing party's written
6
consent or the court's leave. The court should freely give leave when justice so requires." Fed. R.
15(a)(2). In particular, a pro se litigant "should be afforded every reasonable opportunity to
demonstrate that he has a valid claim.'" Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (quoting
Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984)). However, leave will only be granted
absent "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, [or] futility of amendment." Foman v. Davis, 371 U.S.
178, 182 (1962).
2. Motion for Judgment on the Pleadings and Failure to State a Claim
In deciding a Rule 12(c) motion, the court "'employ[s] the same standard applicable to
dismissals pursuant to Fed. R. Civ. P. 12(b)(6).'" Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir.
2010) (quoting Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009)). A motion to dismiss for
failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the
legal sufficiency of the party's claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d
Cir. 2007). In considering the legal sufficiency, a court must accept as true all well-pleaded facts
in the pleading and draw all reasonable inferences in the pleader's favor. See ATSI Commc'ns,
Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of
truth, however, does not extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation omitted). Although a court's review of a motion to dismiss is generally limited to
the facts presented in the pleading, the court may consider documents that are "integral" to that
pleading, even if they are neither physically attached to, nor incorporated by reference into, the
pleading. See Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v.
Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)).
To survive a motion to dismiss, a party need only plead "a short and plain statement of the
7
claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is
entitled to relief.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted).
Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief
above the speculative level," see id. at 555 (citation omitted), and present claims that are
"plausible on [their] face," id. at 570. "The plausibility standard is not akin to a 'probability
requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."
Iqbal, 556 U.S. at 678 (citation omitted). "Where a complaint pleads facts that are 'merely
consistent with' a defendant's liability, it 'stops short of the line between possibility and
plausibility of 'entitlement to relief.''" Id. (quoting Twombly, 550 U.S. at 557). Ultimately, "when
the allegations in a complaint, however true, could not raise a claim of entitlement to relief,"
Twombly, 550 U.S. at 558, or where a plaintiff has "not nudged [its] claims across the line from
conceivable to plausible, the[] complaint must be dismissed[,]" id. at 570.
B.
Title VII Claims
Discrimination claims under Title VII are evaluated under the burden-shifting framework
set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). It is the plaintiff's
burden to establish a prima facie case of discrimination. See Byrnie v. Town of Cromwell, Bd. of
Educ., 243 F.3d 93, 101 (2d Cir. 2001) (citation omitted); Lewis v. Erie Cnty. Med. Ctr. Corp.,
907 F. Supp. 2d 336, 346 (W.D.N.Y. 2012) (citation omitted).
1. Claims Against the Individual Defendants in Their Official Capacities
It is well established that individuals are not subject to liability under the Title VII. See
Patterson v. County of Oneida, N.Y., 375 F.3d 206, 221 (2d Cir. 2004) (citation omitted). This
extends to claims against government officials brought against them in their official capacity. See
Garcia v. Yonkers Bd. of Educ., 188 F. Supp. 3d 353, 360 (S.D.N.Y. 2016). As such, Plaintiff's
Title VII claims against Defendants Browning and Anglehart are dismissed.
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2. Title VII Discrimination
"To establish a prima facie case of . . . discrimination under Title VII . . . , a plaintiff must
demonstrate: (1) membership in a protected class; (2) satisfactory job performance; (3) an adverse
employment action; and (4) circumstances surrounding the employment action that give rise to an
inference of discrimination." Fahrenkrug v. Verizon Servs. Corp., 652 Fed. Appx. 54, 56 (2d Cir.
2016) (citing Montana v. First Fed. Sav. & Loan Ass'n of Rochester, 869 F.2d 100, 106-07 (2d
Cir. 1989)) (internal footnote omitted); see also McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-03 (1973). Once established, a rebuttable presumption of discrimination arises and the
burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse
action. See Byrnie, 243 F.3d at 102; Lewis, 907 F. Supp. 2d at 346.
But "a plaintiff is not required to plead a prima facie case under McDonnell Douglas, at
least as the test was originally formulated, to defeat a motion to dismiss." Vega v. Hempstead
Union Free Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2015). Indeed, as concerns the fourth prong, "'a
plaintiff need only give plausible support to a minimal inference of discriminatory motivation.'"
Id. (quotation omitted). Nevertheless, "a discrimination complaint ... must [still] at a minimum
assert nonconclusory factual matter sufficient to 'nudge[ ] [its] claims' ... 'across the line from
conceivable to plausible' to proceed." EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d
Cir. 2014) (quotation omitted). Additionally, "'the elements of a prima facie case may be used as
a prism to shed light upon the plausibility of the claim.'" Littlejohn v. City of N.Y., 795 F.3d 297,
311 n.9 (2d Cir. 2015) (quotation omitted).
In order to satisfy the adverse employment action element of a discrimination claim, a
plaintiff must show that he endured a "'materially adverse change' in the terms and conditions of
employment." Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (citation omitted)
("A materially adverse change might be indicated by a termination of employment, a demotion
9
evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits,
significantly diminished material responsibilities, or other indices . . . unique to a particular
situation"). In the discrimination context, the materially adverse action must relate to the terms
and conditions of employment, while the "anti-retaliation protection is broader and 'extends
beyond workplace-related or employment-related retaliatory acts and harm.'" Hicks v. Baines,
593 F.3d 159, 165 (2d Cir. 2010) (quoting Burlington N., 548 U.S. at 67).
"Reprimands and excessive scrutiny of an employee can contribute
to a finding that an adverse employment action has taken place.
'However, courts in this circuit have found that reprimands, threats
of disciplinary action and excessive scrutiny do not constitute
adverse employment actions in the absence of other negative results
such as a decrease in pay or being placed on probation.' In other
words, being advised and counseled does not, as a matter of law,
constitute an adverse employment action."
Imperato v. Otsego County Sheriff's Dept., No. 3:13-cv-1594, 2016 WL 1466545, *16 (N.D.N.Y.
Apr. 14, 2016) (quoting Uddin v. City of New York, 427 F. Supp. 2d 414, 429 (S.D.N.Y. 2006))
(other quotation and citations omitted). Thus, a complaint must allege more than just the
existence of a reprimand to establish an adverse action, it must also allege facts that indicate a
demonstrably adverse employment consequence. See Weng v. Solis, 960 F. Supp. 2d 239, 248
(D.D.C. 2013); see also Slinkosky v. Buffalo Sewer Auth., No. 97-CV-0677, 2000 WL 914118, *8
(W.D.N.Y. June 29, 2000) (ruling against the plaintiff for failing "to show that the reprimand
[letters] affected the compensation, promotion opportunities, or any other term, privilege, or
condition of her employment").
Aside from entirely conclusory allegations, Plaintiff's proposed third amended complaint
fails to plausibly allege that he suffered an adverse employment action because of his sexual
orientation. Plaintiff specifically alleges that he applied for two management positions in 2013
but was not selected for these openings when another candidate emailed "false negative
10
information" about Plaintiff to supervisors at the NYSIF. Plaintiff does not allege that this email
contained information about his alleged sexual orientation; rather, the email discussed the fact
that Plaintiff had been disciplined at work for photographing women and that he had been the
subject of a domestic violence complaint. These allegations do not support the conclusion that
Plaintiff was not promoted because of his sexual orientation.
Plaintiff's remaining allegations do not allege any pecuniary or otherwise tangible harm
and, therefore, do not constitute an adverse employment action in the Title VII discrimination
context. As such, Defendants' cross-motion for judgment on the pleadings is granted as to
Plaintiff's Title VII discrimination claim. For the same reasons, Plaintiff's motion to amend is
denied as to his Title VII discrimination claim.
3. Title VII Retaliation
Section 704(a) of Title VII makes it unlawful for an employer to retaliate against an
individual "because he has opposed any practice made an unlawful employment practice by this
subchapter . . . ." Townsend v. Benjamin Enterprises, Inc., 679 F.3d 41, 48 (2d Cir. 2012). To
plead a retaliation claim, a plaintiff must allege "(1) participation in a protected activity; (2) that
the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal
connection between the protected activity and the adverse employment action." Littlejohn v. City
of New York, 795 F.3d 297, 316 (2d Cir. 2015) (quotation omitted).
To show an adverse employment action in a retaliation claim, a plaintiff must establish
that the alleged "conduct that would deter a similarly situated individual of ordinary firmness
from exercising his or her constitutional rights constitutes an adverse action." See Nixon v.
Blumenthal, 409 Fed. Appx. 391, 392 (2d Cir. 2010). While this threshold is lower than the
requirement in a discrimination claim, "[a]n employee's decision to report discriminatory
behavior cannot immunize that employee from those petty slights or minor annoyances that often
11
take place at work and that all employees experience." Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006) (citation omitted). "'[C]ourts have held that personality conflicts at
work that generate antipathy' and 'snubbing by supervisors and co-workers are not actionable.'"
Id. (quotation omitted).
Here, Plaintiff did not make a complaint regarding discrimination until August 14, 2013,
so all allegations that occurred before this date are not causally connected to his complaint. This
includes Plaintiff's allegations about not being promoted, which both occurred before August 14,
2013. As to actions taken after August 14, 2013, Plaintiff has not alleged any actions that could
constitute a retaliatory adverse employment action.
Plaintiff alleges that the grievance process was defective and improper. Plaintiff notes
that his case had been passed to three investigators who refused to interview his witnesses and
that his complaint was improperly withdrawn. See Dkt. No. 90-1 at 26, 28. However, an
ineffective process for investigating a complaint is not, in itself, an adverse employment action.
An employer's investigation of a workplace complaint—"without additional particularized facts
evidencing a retaliatory intent and resulting in, or amounting to, adverse job consequences for the
complainant—cannot sustain a valid retaliation complaint." Cox v. Onondaga Cty. Sheriff's
Dep't, 760 F.3d 139, 146 (2d Cir. 2014). As Plaintiff has not alleged any facts establishing the
alleged deficiencies in the investigation process were caused by retaliatory intent or resulted in
any adverse job consequences, the alleged deficiencies in the investigation do not constitute an
adverse employment action.
Plaintiff also claims that he had negative interactions with Defendant Browning. Again,
these allegations do not constitute an adverse employment action. Plaintiff's claims that
Defendant Browning slammed doors and objects and was blatantly aggressive are nothing more
than allegations of an intra-office personality conflict. As to Plaintiff's stalking allegations
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against Defendant Browning, even if such an allegation could constitute an adverse employment
action, Plaintiff has only alleged he was stalked in a conclusory manner without providing any
specific allegations to support his claim. Plaintiff does not include any allegations about when,
where, and how often this "stalking" occurred. Without more specific allegations, the Court is
unable to determine whether this alleged conduct was serious harassment, happenstance, or
prudent workplace supervision. Given the gravity of this accusation and the complete lack of any
supporting factual allegations, the Court finds that this naked assertion is implausible.
Finally, Plaintiff claims that he was subjected to multiple complaints and investigations
after making his complaint of discrimination. Other than stating in a conclusory manner that
these complaints against him were in retaliation for his complaints, Plaintiff has failed to allege
any facts plausibly suggesting a causal connection between his complaints and those made against
him. Further, Plaintiff alleges that he that he was the subject of multiple complaints and
investigations from well before he filed his complaint. See Dkt. No. 90-1 at 10. The fact that
Plaintiff was already the subject of multiple complaints, in conjunction with the lack of any
factual allegations supporting a causal connection, erodes any plausibility that Plaintiff was
subjected to complaints because he engaged in a protected activity. As such, Defendants' crossmotion for judgment on the pleadings is granted as to Plaintiff's Title VII retaliation claim. For
the same reasons, Plaintiff's motion to amend is denied as to Plaintiff's Title VII retaliation claim.
4. Hostile Work Environment
"To state a hostile work environment claim in violation of Title VII, a plaintiff must plead
facts that would tend to show that the complained of conduct: (1) 'is objectively severe or
pervasive, that is, . . . the conduct creates an environment that a reasonable person would find
hostile or abusive'; (2) creates an environment 'that the plaintiff subjectively perceives as hostile
or abusive'; and (3) 'creates such an environment because of'" a characteristic protected by Title
13
VII. Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (quoting Gregory v. Daly, 243 F.3d 687,
691-92 (2d Cir. 2001)); see also Gregory, 243 F.3d at 692 (indicating that any characteristic
protected by Title VII is sufficient to satisfy the third element).
"In order to establish a hostile work environment claim under Title VII, a plaintiff must ...
show that 'the workplace 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
abusive working environment.'" Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102 (2d Cir.
2010) (quoting Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006)). "A plaintiff must show
not only that she subjectively perceived the environment to be abusive, but also that the
environment was objectively hostile and abusive." Id. In assessing the hostility of a work
environment, courts examine the "totality of the circumstances." Hayut v. State Univ. of N.Y., 352
F.3d 733, 745 (2d Cir. 2003). In particular, courts "consider[ ] a variety of factors including '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.'" Gorzynski, 596 F.3d at 102 (quoting Harris v. Forklift Sys., Inc.,
510 U.S. 17, 23 (1993)).
"A plaintiff need not show that her hostile working environment was both severe and
pervasive; only that it was sufficiently severe or sufficiently pervasive, or a sufficient
combination of these elements, to have altered her working conditions." Pucino v. Verizon
Wireless Commc'ns, 618 F.3d 112, 119 (2d Cir. 2010). In order to be considered pervasive, a
plaintiff must show "that the incidents were 'sufficiently continuous and concerted.'" Brennan v.
Metro. Opera Assoc., 192 F.3d 310, 318 (2d Cir. 1999) (quoting Perry v. Ethan Allen, Inc., 115
F.3d 143, 149 (2d Cir. 1997)); see also Robinson v. Purcell Const. Corp., 859 F. Supp. 2d 245,
255 (N.D.N.Y. 2012) (finding five "crude and offensive" gender-based comments were "neither
14
pervasive nor severe"). The "ordinary tribulations of the workplace, such as the sporadic use of
abusive language, gender-related jokes, and occasional teasing" are not objectively severe enough
to establish a hostile work environment. Faragher v. City of Boca Raton, 524 U.S. 775, 778
(1998). However, a single incident—if it is sufficiently severe—can create a hostile work
environment if it transforms the plaintiff's workplace. Alfano v. Costello, 294 F.3d 365, 374 (2d
Cir. 2002).
The Second Circuit has noted that "the mere presence of pornography in a workplace can
alter the 'status' of women therein and is relevant to assessing the objective hostility of the
environment." Patane v. Clark, 508 F.3d 106, 114 (2d Cir. 2007). As such, "many courts have
rejected motions to dismiss hostile work environment claims when the plaintiff claimed that the
defendant sent graphic sexual imagery to the plaintiff or displayed it in the workplace." Rice v.
Smithtown Volkswagen, ___ F. Supp. 3d ___, 2018 WL 3848923, *8 (E.D.N.Y. Aug. 13, 2018)
(citing Patane, 508 F.3d at 114; Conforti v. Sunbelt Rentals, Inc., 201 F. Supp. 3d 278, 306
(E.D.N.Y. 2016); Bader v. Special Metals Corp., 985 F. Supp. 2d 291, 326 (N.D.N.Y. 2013)).
Given the recent change in law recognizing sexual orientation discrimination as a basis for a Title
VII claim, see Zarda v. Altitude Express, Inc., 883 F.3d 100, 132 (2d Cir. 2018) (en banc), the
reasoning of Patane with regards to pornography and women is applicable in this situation.
Here, Plaintiff has alleged that he received unwanted emails that contained "sexual
pictures of men" and "derogatory . . . representations of gay men and sex." See Dkt. No. 90-1 at
9. One of the emails that Plaintiff alleged with specificity, the image captioned "NO AIDS," is
particularly troubling. The image is both lewd and hostile to Plaintiff's identity at the same time.
Plaintiff also alleges to have been sent images of "fully or partially nude men." Id. On
one occasion, Plaintiff alleges that he opened an email that was supposed to contain work material
in front of a colleague. Instead of work material, however, "a nude male graphic appeared on the
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screen and related audio began playing." Id. at 9. As a result of this incident, Plaintiff claims that
he felt degraded, humiliated, and fearful for his job. See id. at 10. It is plausible that such an
incident could permanently alter Plaintiff's status in the workplace.
Defendants argue that these allegations do not rise to the pervasive severity required to
establish a hostile work environment claim. See Dkt. No. 100-1 at 32. Defendants cite to
multiple cases where the allegations did not satisfy the hostile work environment severe or
pervasive requirement. See id. at 32-33. Of these cases, however, only one, Dotson v. City of
Syracuse, No. 5:04-CV-1388, 2009 WL 2176127 (N.D.N.Y. July 21, 2009), involved
pornography in the work place.
In Dotson, the court granted the defendants' motion for summary judgment after
determining that the "incidents were infrequent and isolated." Id. at *15. The court noted that
there were only two incidents where the plaintiff was subjected to pornography. Id. The first
incident involved pornography that was not directed towards the plaintiff or displayed publicly—
"the plaintiff had to physically walk behind [her coworker] to observe what he was viewing." Id.
The second incident, which did involve a public viewing of pornography, was not directed
towards the plaintiff. See id. Given the limited amount that the pornography was displayed and
the lack of evidence that these incidents interfered with the plaintiff's work performance, the court
held that no reasonable factfinder could conclude that these events were sufficiently "severe or
pervasive" to constitute a hostile work environment claim. Id.
Here, the facts are sufficiently distinct from Dotson as to make it inapplicable. First,
although Plaintiff does not specifically allege how many emails he was sent containing obscene
images, Plaintiff is proceeding pro se and entitled to special solicitude. Moreover, the complaint
suggests that these events occurred more frequently and the examples provided were merely
demonstrative. Second, unlike the events described in Dotson, the obscene materials in this case
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were sent directly to Plaintiff. Instead of having incidental contact with the pornography,
Plaintiff was the intended recipient and targeted because of his sexual orientation. This makes it a
qualitatively different situation from Dotson. Third, Dotson involved a motion for summary
judgment whereas the pending motions in the present matter must be decided solely upon the
pleadings. Finally, the court in Dotson granted summary judgment not because the events were
categorically insufficient to give rise to a hostile work environment, but because the events did
not appear to effect the plaintiff's work performance and the plaintiff failed to provide any
evidence to the contrary. Here, however, Plaintiff has alleged that he was humiliated by these
actions and alleges that it left him fearful for his job. That allegation, in concert with the fact that
Plaintiff alleges he was repeatedly sent obscene images, is sufficient to state a claim. As such, the
Court finds that Plaintiff has properly stated a Title VII hostile work environment claim.
Because the proposed third amended complaint has properly stated a hostile work
environment claim, allowing Plaintiff leave to amend would not be futile. Thus, Plaintiff's
motion for leave to amend his complaint is granted as to his Title VII hostile work environment
claim.
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 for leave to amend his complaint (Dkt. No. 90) is
GRANTED in part and DENIED in part; and the Court further
ORDERS that Defendant Browning's motion to dismiss (Dkt. No. 97) is GRANTED; and
the Court further
ORDERS that Defendants NYSIF and Anglehart's cross motion for judgment on the
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pleadings (Dkt. No. 100) is GRANTED in part and DENIED in part;1 and the Court further
ORDERS that Defendants Browning and Anglehart are terminated as parties; and the
Court further
ORDERS that the Clerk of the Court shall accept for filing Plaintiff's amended complaint,
which is now the operative pleading; 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.
IT IS SO ORDERED.
Dated: October 9, 2018
Albany, New York
Judgment on the pleadings is granted as to all claims except as to Plaintiff's Title VII
hostile work environment claim.
1
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