Garvey v. Childtime Learning Center

Filing 12

DECISION & ORDER: ACCEPTING AND ADOPTING the # 9 Report and Recommendations IN PART, DISMISSING with prejudice plaintiff's ADEA discrimination, ADEA retaliation and Title VII retaliation claims asserted in the Amended Complaint. The Title VII discrimination claim asserted in the Amended Complaint is DISMISSED without prejudice to repleading, and the proposed Second Amended Complaint, dkt # 10, is ACCEPTED for filing and referred to Magistrate Judge Baxter for 28 USC section 1915 review. Signed by Senior Judge Thomas J. McAvoy on 4/13/2017. (Copy served upon the pro se plaintiff via regular mail) (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
SHAUN P. GARVEY,
Plaintiff,
v

5:16-CV-1073
(TJM/ATB)

CHILDTIME LEARNING CENTER,
Defendant.
________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
This pro se action brought pursuant to 42 U.S.C. § 1983 was referred to the Hon.

Andrew T. Baxter, United States Magistrate Judge, for a report and recommendation
pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c) . In his Order and Report Recommendation, Magistrate Judge Baxter reviewed plaintiff’s amended complaint (“AC”)
[dkt. # 7] pursuant to 28 U.S.C. § 1915 and recom mended that the action be dismissed with
prejudice for failure to state a viable claim. Dkt. # 9. In apparent objection to the
recommendation, plaintiff submitted a proposed second amended complaint (“2nd AC”)[dkt.
# 10].
II.

STANDARD OF REVIEW
When objections to a magistrate judge’s report and recommendation are lodged, the

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district court makes a “de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” See 28 U.S.C. §
636(b)(1); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997) (The
Court must make a de novo determination to the extent that a party makes specific
objections to a magistrate’s findings.). After reviewing the report and recommendation, the
Court may “accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge. The judge may also receive further evidence or recommit
the matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b).
III.

DISCUSSION
In a previous Order and Report-Recommendation, Magistrate Judge Baxter

recommended that plaintiff’s original complaint be dismissed without prejudice to filing an
amended complaint. Dkt. # 5. Apparently accepting Magistrate Judge Baxter’s
recommendation, plaintiff immediately filed the AC. Dkt. # 7. The Court adopted the
recommendation that the original complaint be dismissed without prejudice, and referred the
AC to Magistrate Judge Baxter for a new 28 U.S.C. § 1915 review. Dkt. # 8.
In addressing the AC, Magistrate Judge Baxter found that it appeared to assert
claims of gender discrimination and retaliation under Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e et seq., and age discrimination and retaliation under the Age
Discrimination in Employment Act, (“ADEA”), 29 U.S.C. § 621 et seq. See dkt. # 9.
a. Title VII Discrimination
As to the Title VII discrimination claim, Magistrate Judge Baxter recommends
dismissal. Plaintiff alleged that the defendant “adversely” did not hire him because he was

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a homosexual man, and that this adverse action was “taken to try to keep someone from
opposing a discriminatory practice, or from participating in an employment discrimination
proceeding.” AC at 6. Plaintiff further alleged that defendant engaged in “profile hiring”
leading to “potential discrimination on age, gender, color, etc.,” AC at 12, and did not hire
him because “[defendant] assumed obvious or not I was a homosexual male by calling me
‘creepy’, and equating [sic] gay males are not acceptable for their school environment. As if
I would be harmful to the children.” Id., ¶ IX. Plaintiff also alleged that defendant Childtime
interviewed him at three separate locations, and offered him a job at two of these locations,
but never told him when he was going to start, and then gave him the “runaround,” which
ultimately resulted in a failure to hire him. AC at 6 ¶¶ III, IV, VI. Plaintiff also claimed that
Childtime made statements to the police and to “Human Rights,” alleging things that never
occurred and placing plaintiff on a “do not hire bulletin,” ruining his chances for future
employment. AC at 6 ¶¶ VII, X.
In addressing the sufficiency of this claim, Magistrate Judge Baxter wrote:
Although plaintiff has “amended” his complaint, his basis for alleging Title VII
discrimination is still the same. He claims that defendant failed to hire him
because he is a gay male, even though he has checked the box on the form
indicating that he was discriminated against because of his gender alone.
Plaintiff does not claim that defendant Childtime only hired women, or
discriminated against plaintiff because he was a man.
As I stated in my prior Order and Report-Recommendation, Title VII protects a
limited class of individuals. Kiley v. American Soc. for the Prevention of the
Cruelty to Animals, 296 F. App’x 107, 109 (2d Cir. 2008). Sexual orientation is
not included in the statutorily protected classes. Id. (citing Simonton v.
Runyon, 232 F.3d 33, 35 (2d Cir. 2000)). In Simonton, the court held that it
was well-settled “in this circuit and in all others to have reached the question
that [the plaintiff] has no cause of action under Title VII because Title VII does
not prohibit harassment or discrimination because of sexual orientation.”
Simonton, 232 F.3d at 35 (alteration in original). See also Dawson v. Bumble
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& Bumble, 398 F.3d 211, 217-18 (2d Cir. 20105) (to the extent that plaintiff
claimed discrimination based on her lesbianism, she could not satisfy the first
element of a prima facie case under Title VII).
Courts finding that Title VII does not protect discrimination based on sexual
orientation have distinguished sexual orientation from sexual stereotyping,
which is protected under Title VII. Kiley, 296 F. App’x at 109-110 (citing inter
alia Price Waterhouse v. Hopkins, 490 U.S. 228, 251-52 (1989)). More
recently in Christiansen v. Omnicom Grp., Inc., __ F. Supp. 3d __, 2016 W L
951581, at *12-15 (S.D.N.Y. Mar. 9, 2016), the court discussed the principles
outlined above and cited Congress’s frequent rejection of bills that would have
extended Title VII’s protection to people based on their sexual preferences.
Christiansen, 2016 WL 951581 at *12 (citing Simonton, 232 F.3d at 35 (citing,
e.g., Employment Nondiscrimination Act of 1996, S. 2056, 104th Cong.
(1996); Employment Non-Discrimination Act of 1995, H.R. 1863, 104th Cong.
(1995); Employment Non-Discrimination Act of 1994, H.R. 4636, 103d Cong.
(1994)). The court specifically held that a claim based on “sexual stereotyping”
should not be “‘used to bootstrap protection f or sexual orientation into Title
VII.’” Christiansen, 2016 WL 951581 at *12 (quoting Dawson, 398 F.3d at
218-21; Kiley, 296 F. App’x at 109).
While the court in Christiansen recognized that the “broader legal landscape”
has undergone significant changes since Simonton, the prevailing law in this
circuit, and in every other circuit to consider the issue is that a line must be
drawn between sexual orientation and sexual stereotyping and that Simonton
is still valid. Id. 2016 WL 951581 at *14. The Christiansen court considered
Christiansen’s allegations, finding that ultimately, the claims were based on
sexual orientation, and that such allegations would not support a claim under
Title VII. Id. 2016 WL 951581 at *15. See also Cargian v. Breitling USA, Inc.,
No. 15 Civ. 1084, 2016 WL 5867445, at *3-4 (S.D.N.Y. Sept. 29, 2016)
(recognizing that despite “significant changes in the broader legal landscape”
since Simonton, the law in the Second Circuit does not recognize Title VII
claims based on sexual orientation). This includes “perceived” sexual
orientation. Argeropoulos v. Exide Technologies, No. 08-CV-3760, 2009 WL
2132443, at *3 (E.D.N.Y. July 8, 2009) (citing Rissman v. Chertoff, No.
08–CV–7352, 2008 W L 5191394, at *2 (S.D.N.Y. Dec.12, 2008)).
Dkt. # 9, pp. 6-8 (footnote omitted).
b. ADEA Discrimination
As to the ADEA discrimination claim, Magistrate Judge Baxter recommended
dismissal because the ADEA “protected class” begins at age 40, see 29 U.S.C. § 631(a)
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(“the prohibitions in this chapter shall be limited to individuals who are at least 40 years of
age), yet plaintiff asserts that he is 36 years old. Dkt. # 9, p. 8.
c. Retaliation
Magistrate Judge Baxter also found that the AC failed to include facts indicating that
plaintiff engaged in a “protected activity” by opposing an employment practice that is made
unlawful by either Title VII or the ADEA. Id. p. 9. In this regard, Magistrate Judge Baxter
wrote:
Plaintiff states that the defendant “retaliated” against plaintiff by refusing to
hire him because he was homosexual. (AC at 6). Plaintiff also alleges that the
defendant’s employees called the police and placed him on a “do not hire
bulletin.” However, that conduct is not the basis for a retaliation claim unless
the conduct resulted from plaintiff opposing an employment practice made
unlawful by the statute. Plaintiff does not claim that he opposed such an
employment practice or that the defendant’s conduct was motivated by that
opposition. Plaintiff continues to misunderstand the meaning of “retaliation”
under the statute. Failure to hire may be an adverse action, but it must be
causally related to plaintiff’s engaging in a “protected activity.” Simply applying
for a job is not a protected activity. Otherwise, every discriminatory failure to
hire would also state a retaliation claim.
Id. pp. 9-10 (footnote omitted).
d. Dismissal
Magistrate Judge Baxter acknowledged that leave to replead is generally granted but
will be denied when amendment would be futile. Id. p. 10 (citing Ruffolo v. Oppenheimer &
Co., 987 F.2d 129, 131 (2d Cir. 1993)). As Magistrate Judge Baxter indicated, “[f]utility is
present when the problem with plaintiff’s causes of action is substantive such that better
pleading will not cure it.” Id. (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).
Because plaintiff had been given leave to replead yet merely reasserted the previously
dismissed claims albeit in more detail but without sufficient basis to form legally sufficient
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claims, Magistrate Judge Baxter recommended that all claims be dismissed with prejudice.
Id., p. 11.
e. Proposed Second Amended Complaint
As indicated above, plaintiff filed a proposed 2 nd AC. The Court treats this filing as
plaintiff’s objection to Magistrate Judge Baxter’s most recent report and recommendation.
In the 2nd AC, plaintiff cites to Price Waterhouse v. Hopkins and alleges:
Childtime did not hire me due to sexual orientation, via intentional sexual
stereotyping. Childtime assuming I was homosexual man [sic] deliberately did
not hire me based on his [sic] own view of what a homosexual man is. . . .
Childtime is majority made [sic] of women members, and shows little
consideration to male employees, and based on stereotyping could or could
not have perceived notions of men being incapable of caring for children
which is inconsistent with modern days [sic]. Men are equally capable of doing
so, just don’t get fair share at it due to the societal feelings of men and
“pedophilia.” . . . In ending to this second amended complaint, I want to
finalize [sic] by adding Childtime resorted to not hiring me based on their own
personal agenda and aimless [sic] attempt at keeping me away from
employment although fully qualified, fully interviewed by numerous locations
by [sic] stereotyping and gender perception. Whether said or not this agency
has caused harm to me and has violated federal laws as stated twice.
Dkt. # 22.
There are no Title VII retaliation, ADEA discrimination, or ADEA retaliation claims
asserted in the 2 nd AC. See id.
f. Analysis
After Magistrate Judge Baxter issued his most recent report and recommendation,
the Second Circuit addressed the Christiansen decision and, in doing so, refined the way
district courts should interpret the holdings of Simonton and Dawson in the context of
allegations plausibly raising gender-based stereotype claims involving a gay plaintiff. See
Anonymous v. Omnicom Group, Inc., --- F.3d ----, 2017 WL 1130183 (2d Cir. Mar. 27,
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2017). The Circuit acknowledged in Omnicom Group that “[s]ome district courts in this
Circuit have viewed Simonton and Dawson as making it ‘especially difficult for gay plaintiffs
to bring’ gender stereotyping claims,” id., at *3 (quoting Maroney v. Waterbury Hosp.,, 2011
WL 1085633, at *2 n.2 (D. Conn. Mar. 18, 2011)), but f ound that these courts
“misapprehend[ed] the nature of our rulings in Simonton and Dawson.” Id. In this regard the
Circuit wrote:
While Simonton observed that the gender stereotyping theory articulated in Price
Waterhouse “would not bootstrap protection for sexual orientation into Title VII
because not all homosexual men are stereotypically feminine,” 232 F.3d at 38, it
acknowledged that, at a minimum, “stereotypically feminine” gay men could pursue a
gender stereotyping claim under Title VII (and the same principle would apply to
“stereotypically masculine” lesbian women). Simonton and Dawson do not suggest
that a “masculine” woman like the plaintiff in Price Waterhouse, 490 U.S. at 235, 109
S. Ct. 1775, has an actionable Title VII claim unless she is a lesbian; to the contrary,
the sexual orientation of the plaintiff in Price Waterhouse was of no consequence. In
sum, gay, lesbian, and bisexual individuals do not have less protection under Price
Waterhouse against traditional gender stereotype discrimination than do
heterosexual individuals. Simonton and Dawson merely hold that being gay, lesbian,
or bisexual, standing alone, does not constitute nonconformity with a gender
stereotype that can give rise to a cognizable gender stereotyping claim.
Omnicom Group, 2017 WL 1130183, at *3. The Circuit found that “[t]he gender
stereotyping allegations in Christiansen's complaint are cognizable under Price Waterhouse
and our precedents.” Id., at *4; see also id., at *1-*2.1
Despite the Circuit’s guidance on the application of Simonton and Dawson in the
context of a gender stereotyping case arising from a plaintiff’s sexual orientation, nothing in
the AC, even giving it the liberal reading accorded pro se complaints, see McPherson v.
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(“Christiansen, an openly gay man who is HIV–positive, worked as an associate creative director and
later creative director at DDB Worldwide Communications Group, Inc., an international advertising agency
and subsidiary of Omnicom Group, Inc. Christiansen's complaint alleged that his direct supervisor engaged in
a pattern of humiliating harassment targeting his effeminacy and sexual orientation. . . . Christiansen's
supervisor also made remarks about the connection between effeminacy, sexual orientation, and HIV
status.”)

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Coombe, 174 F.3d 276, 280 (2d Cir.1999), 2 indicates that plaintiff was denied employment
because of gender stereotyping. Rather, plaintiff repeatedly alleges that he was denied
employment because he was gay. See AC ¶ 6(F)(“Discrimination based on gay male of 36
years old.”); ¶ 15 (“I request $100,000 due to malicious and intentional discrimination based
on being a gay male.”); ¶ I (“First I am re-amended [sic] my complaint under retaliation and
refusal to hire me based on being a homosexual man, and being 36 years old. Childtime
adversely [sic] did not hire me based on being a homosexual man.”); ¶ IX (“Childtime did not
hire me because they assumed obvious or not I was a homosexual male by calling me
‘creepy,’ and equating [sic] gay males are not acceptable for their school environment. As if
I would be harmful to the children.”); 3 ¶ X (“In ending[,] Childtime has created a divide in
hiring me based on me being a homosexual man, after interviewing me and causing
multiple distress [sic] including the police [sic], for reason [sic] I still do not know, but also
destroying future employment.”). Thus, the Circuit’s refinement of the application of
Simonton and Dawson in the context of gender-based stereotype claims involving a
homosexual plaintiff has no impact on the AC because plaintiff did not raise a plausible
gender-based stereotype claim in that pleading. Accordingly, the Court adopts Magistrate
Judge Baxter’s recommendation to dismiss the Title VII discrimination claim asserted in the

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(pro se pleadings should be read liberally and interpreted to "raise the strongest arguments they
suggest")(quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994))
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While this contention could arguably indicate that plaintiff was claiming he was denied employment
based upon a sexual-orientation stereotype, the AC read as a whole indicates his claim was that he was
denied employment because of his sexual orientation - not because of a gender stereotype arising from that
sexual orientation. Nevertheless, because: (1) plaintiff submitted a proposed Second Amended Complaint
which more directly implicates gender-based sexual orientation stereotypes that allegedly affected the hiring
decision, (2) an amended complaint supersedes in all respects the prior pleading, and (3) the matter is
referred to Magistrate Judge Baxter to determine whether the new pleading satisfies Rule 12(b)(6) and 28
U.S.C. § 1915, plaintiff suffers no prejudice by this determination.

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AC.
The question remains, however, whether dismissal of this claim should be with or
without prejudice in light of the fact that plaintiff submitted a proposed 2 nd AC that facially
invokes Price Waterhouse and appears to present a gender-based stereotype claim arising
from his perceived sexual orientation. Because Rule 15 provides that leave to amend the
pleadings should be ‘freely give[n] ... when justice so requires,” Fed. R. Civ. P. 15(a)(2); see
Foman v. Davis, 371 U.S. 178, 182 (1962), 4 and because there is no indication that plaintif f
acted in bad faith or that the defendant (that has not been served with process) would suffer
prejudice by amendment, see AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A.,
626 F.3d 699, 725 (2d Cir. 2010), 5 dismissal of this claim will be without prejudice. Like the
Court did following dismissal of the original complaint, the 2nd AC will be referred to
Magistrate Judge Baxter to conduct a 28 U.S.C. § 1915 review.
Plaintiff has not alleged an ADEA claim or any plausible retaliation claims in the 2nd
AC. Accordingly, the Court adopts Magistrate Judge Baxter’s recommendations relative to
these claims and dismisses them with prejudice.
V.

CONCLUSION
For the reasons discussed above, the Court accepts and adopts Magistrate Judge

Baxter’s Report and Recommendation, Dkt. # 9, in part, dismissing with prejudice plaintiff’s
ADEA discrimination, ADEA retaliation, and Title VII retaliation claims asserted in the
Amended Complaint. The Title VII discrimination claim asserted in the Amended Complaint

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(motions to amend complaints should be granted liberally, unless to do so would be futile)

5
(The rule is to allow a party to amend its pleadings in the absence of bad faith, futility of the
amendment, or resulting prejudice to the opposing party.)

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is dismissed without prejudice to repleading, and the proposed Second Amended
Complaint, dkt. # 10, is accepted for filing and referred to Magistrate Judge Baxter for a 28
U.S.C. § 1915 review.
IT IS SO ORDERED.
Dated: April 13, 2017

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