Christiansen v. Omnicom Group, Inc. et al
Filing
35
OPINION AND ORDER re: 24 MOTION to Dismiss Plaintiff's First Amended Complaint filed by Joe Cianciotto, 21 MOTION to Dismiss Plaintiff's First Amended Complaint filed by Chris Brown, Peter Hempel, DDB W orldwide Communications Group Inc., Omnicom Group, Inc.: For the reasons given in this Opinion, Defendants' motions are GRANTED in full. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. (Signed by Judge Katherine Polk Failla on 3/9/2016) (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------X
:
MATTHEW CHRISTIANSEN,
:
:
:
Plaintiff,
:
:
v.
:
OMNICOM GROUP, INC., et al.,
:
:
Defendants. :
:
----------------------------------------------------- X
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: March 9, 2016
______________
15 Civ. 3440 (KPF)
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
Plaintiff Matthew Christiansen, an openly gay man who is HIV-positive,
brought suit against his employer, DDB Worldwide Communications Group
Inc. (“DDB”); DDB’s parent company, Omnicom Group, Inc. (“Omnicom”); his
former supervisor, Joe Cianciotto; and DDB executives Peter Hempel and Chris
Brown (together, “Defendants”). In his First Amended Complaint (or “FAC”),
Plaintiff alleges claims for sexual stereotyping, disability-based discrimination,
and retaliation in violation of federal, state, and local laws; as well as state-law
claims for aiding and abetting discrimination, slander per se, intentional
infliction of emotional distress, breach of contract, and labor law violations.
Defendants, in two separate motions, now move to dismiss the FAC. As set
forth in the remainder of this Opinion, Defendants’ motions are granted in full.
BACKGROUND 1
A.
Factual Background
In April 2011, Plaintiff Matthew Christiansen began working as Associate
Creative Director for the marketing communications firm DDB, a subsidiary of
the global marketing network Omnicom. (FAC ¶¶ 17-18). From the start of his
employment, Plaintiff worked under the supervision of Joe Cianciotto, who in
turn worked under the management and supervision of Chris Brown and Peter
Hempel. (Id. at ¶ 19). According to the FAC, Cianciotto frequently taunted and
harassed both male and female co-workers, with behavior ranging from public
name-calling, to telling a co-worker that “if he [Cianciotto] were gay, he’d like to
have gay intercourse with him,” to throwing a soda can at an employee. (Id. at
¶ 30). Plaintiff is an openly gay man, and alleges that Cianciotto subjected him
to ridicule and abuse almost immediately due to Cianciotto’s animosity toward
homosexuals. (Id. at ¶ 2). Other employees had previously complained to
Hempel, Brown, DDB, and Omnicom about Cianciotto’s behavior, but “their
1
The majority of the facts contained in this Opinion are drawn from Plaintiff’s FAC (Dkt.
#4), and are taken as true for purposes of this motion. See Faber v. Metro. Life Ins. Co.,
648 F.3d 98, 104 (2d Cir. 2011) (when reviewing a complaint for failure to state a claim,
the court will “assume all well-pleaded factual allegations to be true” (internal quotation
marks omitted)). Additional facts are drawn from documents relied upon by or integral
to Plaintiff’s FAC; these are attached as exhibits to defense counsel’s declaration, and
are referred to as “Feinstein Decl. Ex.” (Dkt. #23). See Chambers v. Time Warner, Inc.,
282 F.3d 147, 153 (2d Cir. 2002). For convenience, the brief filed by Defendants DDB,
Omnicom, Hempel, and Brown — in which Cianciotto joins — in support of their motion
to dismiss (Dkt. #21, 22) will be referred to as “Def. Br.”; Plaintiff’s opposition (Dkt. #30)
as “Pl. Opp.”; Plaintiff’s supporting exhibits (Dkt. #29) as “Lask Decl. Ex.”; and
Defendants’ reply brief (Dkt. #31) as “Def. Reply.” Defendant Cianciotto has
additionally submitted a separate motion to dismiss and corresponding reply (Dkt. #24,
25, 33), which are referred to as “Cianciotto Br.” and “Cianciotto Reply,” respectively.
2
complaints to human resources and management were ignored for years.” (Id.
at ¶ 30 p.6).
Plaintiff alleges several instances of harassment specifically targeted at
him. Shortly after Plaintiff began his employment with DDB, “Cianciotto
became openly resentful and hostile towar[d] Plaintiff because of his sexual
orientation.” (FAC ¶ 33). This hostility was expressed in May 2011 through
two drawings by Cianciotto on a company whiteboard: Both featured a
shirtless, “muscle bound” Plaintiff, and one of the two images placed Plaintiff’s
torso on the body of a four-legged animal “with a tail and penis, urinating and
defecating.” (Id. at ¶ 34 & Ex. B). A third whiteboard drawing by Cianciotto,
displayed in DDB’s office space in June 2011, depicted Plaintiff naked, with an
erect penis and exaggerated muscles. (Id. at Ex. B). The picture includes an
air pump being manned by another employee and attached to Plaintiff’s wrist,
with text next to Plaintiff reading “I’m so pumped for marriage equality,” while
text by the other employee says, “I fucking hate being pumped.” (Id.).
In July 2011, Cianciotto produced and circulated to the office an edited
version of a poster for the movie “Muscle Beach Party,” superimposing pictures
of employees’ faces onto the bodies of the swimsuit-clad characters. (FAC
¶ 34(D) & Ex. B). Plaintiff’s face appears on the body of a woman, dressed in a
bikini and reclining on her back with her legs in the air, in what Plaintiff
describes as “the gay sexual receiving position.” (Id.). Plaintiff alleges that an
image of this poster was posted on Facebook, and — despite multiple requests
3
from Plaintiff in October and November 2014 that it be taken offline — was not
removed until January 2015. (Id. at ¶¶ 54-56).
In addition to the four images described, Plaintiff alleges two episodes of
verbal harassment. In October 2012, Cianciotto invited employees at a meeting
to play a game of “Name that Tune.” (FAC ¶ 30 p.8). One employee guessed
incorrectly, after which Plaintiff correctly named the song; Cianciotto then
turned to the first employee and asked how it felt to be “beaten out by the gay
guy.” (Id.). Cianciotto then proceeded to tell Plaintiff that his “muscles [were]
big,” saying, “Everybody look at Matt’s muscles.” (Id. at ¶ 30 p.7). Plaintiff
further alleges that several months later, at a large meeting in May 2013, a
fellow employee coughed, prompting Cianciotto to comment that he too was
feeling ill. (Id.). Cianciotto then turned to Plaintiff and added, “It feels like I
ha[ve] AID[S], you know what that’s like[,] Matt?” (Id.). Plaintiff alleges, upon
information and belief, that DDB, Omnicom, Hempel, and Brown inferred that
Plaintiff had Acquired Immunodeficiency Syndrome (“AIDS”) from a
combination of (i) the fact that he is gay, and (ii) Human Resources records
reflecting his high monthly health insurance costs, and that they then shared
their inferred diagnosis with Cianciotto. (Id. at ¶¶ 42-43).
On or about June 26, 2013, Plaintiff met with a representative of DDB’s
Human Resources Department to complain about Cianciotto’s behavior. (FAC
¶ 47). Following this meeting, Cianciotto approached Plaintiff to ask whether
Plaintiff had reported him to Human Resources. (Id. at ¶ 48). Cianciotto then
explained to Plaintiff that he had “a severe phobia of communicable diseases,”
4
including AIDS, of such magnitude that his doctor had advised him on how to
relieve his concerns. (Id. at ¶ 49).
A month after Plaintiff spoke to Human Resources about Cianciotto, DDB
convened an employee meeting at which Hempel, the Director of Human
Resources, and DDB’s Chief Creative Officer were present. (FAC ¶ 51).
Cianciotto provided a general apology at the meeting, “to the effect of hoping
that no one was offended by anything he did,” and Hempel gave a speech
informing those present that “DDB does not tolerate inappropriate behavior.”
(Id. at ¶¶ 51-52). No further action was taken in regards to Plaintiff’s
complaints at that time.
Finally, Plaintiff alleges two acts of employment-related misconduct: (i) in
October 2012, Plaintiff received a promotion from Associate Creative Director to
Creative Director, but did not receive the corresponding salary increase until
one year later (FAC ¶¶ 35-36), and (ii) on March 21, 2015, Defendants offered
Plaintiff a three-month severance package in exchange for Plaintiff’s
resignation, which Plaintiff declined (id. at ¶ 58). 2 As of the filing of the FAC,
Plaintiff continued to be employed by DDB. (Id. at ¶ 10).
Plaintiff alleges that experiences with sexual-orientation-based
discrimination prior to his employment with DDB had caused him to develop
post-traumatic stress disorder (“PTSD”), which was then compounded by the
2
The inclusion of the severance offer as an example of misconduct by Defendants is
surprising to the Court, since Plaintiff concedes that it occurred in the course of “a
conciliatory process with the State and Federal EEOC because of complaints filed there
by Christiansen in 2014.” (Pl. Opp. 2).
5
physical stress caused by his HIV. (FAC ¶¶ 68-69). Plaintiff further alleges
that Defendants’ misconduct, in combination with these preexisting conditions,
led him to seek therapy. (Id. at ¶ 78). On March 30, 2015, psychologist Dr.
Stephen Reich diagnosed Plaintiff with PTSD, anxiety, and depression,
stemming from the “‘gay taunts and drawings’ that Defendants subjected him
to from 2013 to 2015.” (Id. at ¶¶ 74-75). Plaintiff concludes that “[a]s a result
of his physical and mental infirmities, [he] was incapable of filing any
complaints against Defendants.” (Id. at ¶ 76).
B.
Procedural Background
On October 29, 2014, Plaintiff submitted a complaint to the Equal
Employment Opportunity Commission (the “EEOC”), setting forth a Title VII
claim against DDB based on allegations that Cianciotto had harassed Plaintiff
and assumed Plaintiff had AIDS “because he is gay.” (Feinstein Decl. Ex. C).
Plaintiff subsequently filed a complaint against DDB with the New York State
Division of Human Rights (the “NYSDHR”), stating that he had been
discriminated against on the basis of perceived disability (AIDS) and sexual
orientation. (Id. at Ex. D). The NYSDHR complaint additionally notes that
Plaintiff suffered retaliation from his supervisor for complaining about the
discrimination. (Id.). The complaint form provides a space to designate claims
for discrimination based on “sex”; Plaintiff declined to check that box. (Id.).
A Notice of Charge of Discrimination was sent to DDB by the EEOC on
January 13, 2015, indicating that Plaintiff had filed charges of employment
discrimination against DDB under the ADA. (Feinstein Decl. Ex. D). On
6
March 10, 2015, the NYSDHR notified Plaintiff that it was contemplating
dismissal of his administrative complaint, pursuant to his request, so that
Plaintiff could pursue litigation related to the issues raised in that complaint.
(Id. at Ex. E). Three days later, on March 13, 2015, Plaintiff received a Notice
of Right to Sue from the EEOC. (FAC ¶ 6(b)). DDB submitted a letter in
opposition to the proposed dismissal of Plaintiff’s NYSDHR complaint on March
24, 2015 (Feinstein Decl. Ex. F); and on July 21, 2015, the NYSDHR notified
the parties that Plaintiff’s administrative complaint would be annulled (id. at
Ex. G).
Plaintiff filed his initial Complaint in the instant matter on May 4, 2015
(Dkt. #1), and his FAC on June 22, 2015 (Dkt. #4). Defendants Omnicom,
DDB, Hempel, and Brown jointly filed their motion to dismiss on July 31,
2015. (Dkt. #21, 22). Cianciotto filed a separate motion to dismiss on August
14, 2015. (Dkt. #24, 25). Plaintiff set forth his opposition to both motions in a
single brief, filed on September 24, 2015 (Dkt. #30); Defendants Omnicom,
DDB, Hempel, and Brown replied on October 8, 2015 (Dkt. #31); and
Cianciotto concluded the briefing with the filing of his reply on October 8, 2015
(Dkt. #33).
DISCUSSION
A.
Motions to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)
When considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a court should “draw all reasonable inferences in [the
plaintiff’s] favor, assume all well-pleaded factual allegations to be true, and
7
determine whether they plausibly give rise to an entitlement to relief.” Faber v.
Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks
omitted). Thus, “[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “While Twombly does not
require heightened fact pleading of specifics, it does require enough facts to
‘nudge [a plaintiff’s] claims across the line from conceivable to plausible.’” In re
Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly, 550
U.S. at 570). “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.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557). Moreover, “the tenet that a court must accept a complaint’s
allegations as true is inapplicable to threadbare recitals of a cause of action’s
elements, supported by mere conclusory statements.” Id. at 663.
“In considering a motion to dismiss for failure to state a claim pursuant
to Rule 12(b)(6), a district court may consider the facts alleged in the
complaint, documents attached to the complaint as exhibits, and documents
incorporated by reference in the complaint.” DiFolco v. MSNBC Cable LLC, 622
F.3d 104, 111 (2d Cir. 2010). “Even where a document is not incorporated by
reference, the court may nevertheless consider it where the complaint ‘relies
heavily upon its terms and effect,’ which renders the document ‘integral’ to the
complaint.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)
8
(quoting Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d
Cir. 1995) (per curiam)). 3
B.
Plaintiff Has Adequately Pleaded That Omnicom Is His Employer
As an initial matter, Defendants contend that Plaintiff’s claims against
Omnicom must fail because Omnicom is not Plaintiff’s employer. (Def. Br. 2122). Plaintiff responds that DDB and Omnicom are functionally a “single
employer,” such that employment discrimination liability attaches to both
entities. (Pl. Opp. 22-23).
An employer-employee relationship is a required element of an
employment discrimination claim under the ADA, Title VII, or the NYSHRL.
See Gulino v. N.Y. State Educ. Dep’t, 460 F.3d 361, 370 (2d Cir. 2006) (Title VII);
Heller v. Consol. Rail Corp., 331 F. App’x 766, 768 (2d Cir. 2009) (summary
order) (Title VII and the ADA); Eisenberg v. Advance Relocation & Storage, Inc.,
237 F.3d 111, 113 (2d Cir. 2000) (the NYSHRL). “To prevail in an employment
action against a defendant who is not the plaintiff’s direct employer, the
plaintiff must establish that the defendant is part of an ‘integrated enterprise’
with the employer, thus making one liable for the illegal acts of the other.”
Parker v. Columbia Pictures Indus., 204 F.3d 326, 341 (2d Cir. 2000).
3
Cianciotto alone seeks to dismiss the FAC for failing to comply with Rule 8’s
requirement of a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). (Cianciotto Br. 7-8). While the Court
acknowledges that the FAC is frequently circuitous, it also recognizes that the Second
Circuit has generally reserved dismissals under Rule 8 “for those cases in which the
complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true
substance, if any, is well disguised.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
1988). Such is not the case here.
9
The Second Circuit has adopted a four-part test to determine when, for
the purposes of a Title VII or ADA claim, a parent company may be considered
the employer of a subsidiary’s employee. Brown v. Daikin Am. Inc., 756 F.3d
219, 226 (2d Cir. 2014). Under this test, a parent and subsidiary may be
found to constitute a single employer where there is evidence of
“[i] interrelation of operations, [ii] centralized control of labor relations,
[iii] common management, and [iv] common ownership or financial control.” Id.
(quoting Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir.
1995)). In the main, “[w]hether two related entities are sufficiently integrated to
be treated as a single employer is generally a question of fact not suitable to
resolution on a motion to dismiss.” Id. at 226.
In the present matter, Plaintiff has alleged sufficient facts to support
Omnicom’s employer liability for purposes of the instant motion. Plaintiff
asserts that Omnicom “exercises extensive control” over DDB’s “operations and
personnel decisions.” (FAC ¶ 12). Plaintiff further alleges that Omnicom
“controlled [his] health, retirement and other benefits” (id. at ¶ 18), and that
the policies contained in the DDB Employee Handbook were established and
promulgated by Omnicom (id. at ¶ 22 (quoting the Employee Handbook as
setting forth that “[a]s an employee of the Company, you have an obligation to
conduct business according to the Omnicom Code of Business Conduct”)). It is
entirely possible that discovery will reveal an insufficient degree of integration
for Omnicom and DDB to fairly be called a “single employer”; at this stage in
the litigation, however, Plaintiff has alleged sufficient facts to establish
10
employment discrimination liability against Omnicom as part of an integrated
enterprise with his direct employer, DDB.
C.
Plaintiff Fails to State a Claim for Disability Discrimination in
Violation of the ADA or the NYSHRL
1.
Applicable Law
Courts analyze disability discrimination claims under the ADA and the
NYSHRL in an identical manner. See, e.g., Kinneary v. City of New York, 601
F.3d 151, 158 (2d Cir. 2010). A valid claim under either law requires that
(i) the employer is subject to the relevant law, (ii) the plaintiff experiences or is
perceived by his employer as experiencing a disability within the meaning of
that law, (iii) the plaintiff was qualified for his position, (iv) he suffered an
adverse employment action, and (v) the adverse action was motivated by the
plaintiff’s disability. Davis v. N.Y.C. Dep’t of Educ., 804 F.3d 231, 235 (2d Cir.
2015).
The ADA additionally prescribes the following procedural prerequisites to
filing a federal suit: (i) “the claims forming the basis of [a federal suit] must first
be presented in a complaint to the EEOC or the equivalent state agency,”
(ii) the charge must be filed with the EEOC within 180 days of the allegedly
unlawful act, or with an equivalent state or local agency within 300 days, and
(iii) the plaintiff must obtain a “Notice of Right to Sue” letter from the EEOC.
Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006); see also 42
U.S.C. § 12117 (incorporating Title VII exhaustion requirements into the ADA).
The parties contest the first two of these requirements.
11
“A district court may only hear claims that are either included in the
EEOC charge or are based on conduct which is reasonably related to conduct
alleged in the EEOC charge.” Fiscina v. N.Y.C. Dist. Council of Carpenters, 401
F. Supp. 2d 345, 356 (S.D.N.Y. 2005) (citation and internal alterations
omitted); see generally Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d
683, 686 (2d Cir. 2001) (noting that “claims that were not asserted before the
EEOC may be pursued in a subsequent federal court action if they are
reasonably related to those that were filed with the agency” (quoting Shah v.
N.Y. State Dep’t of Civil Serv., 168 F.3d 610, 614 (2d Cir. 1999)). The Second
Circuit further instructs that “[a] claim is considered reasonably related if the
conduct complained of would fall within the scope of the EEOC investigation
which can reasonably be expected to grow out of the charge that was made.”
Williams, 458 F.3d at 70 (quoting Fitzgerald v. Henderson, 251 F.3d 345, 35960 (2d Cir. 2001).
“This exception to the exhaustion requirement is essentially an allowance
of loose pleading and is based on the recognition that EEOC charges frequently
are filled out by employees without the benefit of counsel and that their
primary purpose is to alert the EEOC to the discrimination that a plaintiff
claims he is suffering.” Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003)
(internal quotation marks omitted). To determine whether a claim is
“reasonably related” to a claim included in an EEOC charge, courts should
focus “on the factual allegations made in the EEOC charge itself, describing the
discriminatory conduct about which a plaintiff is grieving,” and ask the “central
12
question” of “whether the complaint filed with the EEOC gave the agency
adequate notice to investigate discrimination on both bases.” Williams, 458
F.3d at 70 (citation omitted).
2.
Analysis
a.
Plaintiff Satisfies the ADA’s Exhaustion Requirement
Plaintiff alleges violations of the ADA against both DDB and Omnicom.
(FAC ¶¶ 81-90). Defendants contend that Plaintiff failed to exhaust his
administrative remedies in regards to his disability discrimination claim
because his EEOC complaint neither identified such a claim (listing only his
Title VII claim), nor asserted any underlying factual content that would give the
EEOC “adequate notice to investigate discrimination” on the basis of his HIVpositive status or the perception that he had AIDS. (Def. Br. 7-8). 4 Plaintiff
4
Defendants additionally argue that Plaintiff has failed to exhaust his remedies against
Omnicom because Plaintiff did not name Omnicom in his administrative complaints.
(Def. Br. 22-23). Plaintiff does not appear to respond to this contention.
Under the Second Circuit’s “identity of interests” test, a court deciding whether the
naming of a subsidiary in an EEOC complaint serves to exhaust administrative
remedies against the parent company should consider “[i] whether the role of the
unnamed party could through reasonable effort by the complainant be ascertained at
the time of the filing of the EEOC complaint; [ii] whether, under the circumstances, the
interests of a named [party] are so similar as the unnamed party’s that for the purpose
of obtaining voluntary conciliation and compliance it would be unnecessary to include
the unnamed party in the EEOC proceedings; [iii] whether its absence in the EEOC
proceedings resulted in actual prejudice to the interests of the unnamed party; and
[iv] whether the unnamed party has in some way represented to the complainant that
its relationship with the complainant is to be through the named party.” Cook v.
Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1241-42 (2d Cir. 1995). While the first of
these factors weighs against Plaintiff, the pleading as to the remaining factors suggests
that exhaustion of remedies against DDB would suffice to exhaust against Omnicom:
Plaintiff alleges that counsel for Omnicom participated in a “conciliatory mediation
process” with Plaintiff and has received notice of all charges filed (FAC ¶ 20); that
Omnicom “exercises extensive control” over DDB’s “operations and personnel decisions”
(id. at ¶ 12); and that rules regarding employee conduct were directly established by
Omnicom (id. at ¶¶ 21-22). Consequently, the Court finds that at this stage of the
litigation, Plaintiff has pleaded sufficient facts to support his contention that naming
DDB in his administrative complaints relieved him of his obligation to name Omnicom
separately.
13
responds that his EEOC grievance letter set forth conduct “reasonably related”
to his ADA allegations, and, furthermore, that his disability-based claim was
clearly identified in his subsequent complaint filed with the NYSDHR. (Pl. Opp.
8-11).
The Court agrees with Defendants that Plaintiff’s EEOC complaint fails to
set forth sufficient information regarding Defendants’ purported ADA
violations. The only mentions of AIDS in the EEOC charge are in the context of
Plaintiff’s supervisor assuming that Plaintiff had AIDS because he is gay; in
other words, they support Plaintiff’s assertion of discrimination based on his
sexual orientation, but do not provide notice of a claim for disability
discrimination. Cf. Peterson v. Ins. Co. of N. Am., 884 F. Supp. 107, 109
(S.D.N.Y. 1995) (“[C]ourts will not permit a claim that is based on a wholly
different type of discrimination to be brought if it was not initially asserted in
the EEOC charge.”).
The substantive deficiency in Plaintiff’s EEOC complaint is remedied,
however, by his subsequently-filed NYSDHR grievance. ADA exhaustion
requires that “the claims forming the basis of [a federal suit] must first be
presented in a complaint to the EEOC or the equivalent state agency.”
Williams, 458 F.3d at 70 (emphasis added); see also Pimentel v. City of New
York, No. 00 Civ. 326 (SAS), 2000 WL 1576871, at *1 (S.D.N.Y. Oct. 23, 2000)
(declining to dismiss a plaintiff’s ADA claim for failure to exhaust where
plaintiff raised the claim in a complaint to the NYSDHR); see generally OforiAwuku v. Epic Sec., No. 00 Civ. 1548 (AGS), 2001 WL 180054, at *3 (S.D.N.Y.
14
Feb. 23, 2001) (stating that the NYSDHR may grant or seek relief for ADA
employment discrimination violations).
In the present matter, Plaintiff filed a complaint with the NYSDHR
explicitly asserting a claim of disability discrimination, and received, on
January 13, 2015, a confirmation letter from the EEOC providing the EEOC
Charge Number and indicating that his charge under the ADA had been
received. (Feinstein Decl. Ex. D). Plaintiff subsequently received a letter on
March 10, 2015, stating that pursuant to his request, the NYSDHR was
considering dismissing his administrative complaint to allow him to pursue his
claims in federal court. (Id. at Ex. E). Three days later, on March 13, 2015,
Plaintiff received a Notice of Right to Sue from the EEOC. (FAC ¶ 6(b)). The
record thus reflects that the EEOC clearly received notice of Plaintiff’s ADA
claim, and of the fact that the claim arose out of conduct closely related to his
Title VII discrimination claim, well before issuing its Right to Sue letter.
Accordingly, Plaintiff has satisfied the ADA’s exhaustion requirement.
b.
Plaintiff’s ADA Claim Is Time-Barred
Failure to exhaust is only one form of procedural bar. A plaintiff
claiming ADA disability discrimination also has a limitations period within
which he must act; specifically, the plaintiff must file a charge with the EEOC
within 180 days of the allegedly unlawful act giving rise to the Plaintiff’s claim,
or with an equivalent state or local agency within 300 days. Williams, 458 F.3d
at 69. Plaintiff asserts that he is disabled within the meaning of the ADA by
virtue of his status as an HIV-positive individual who was perceived by his
15
supervisor and employer as having AIDS. (FAC ¶¶ 30, 60, 80, 86-90). As
such, his claim for disability discrimination must necessarily rest on — and be
filed within 300 days of — a discriminatory act motivated by his status as an
individual with HIV or AIDS.
Plaintiff’s FAC pleads two instances of AIDS-related discrimination:
(i) Defendant Cianciotto’s May 2013 comment that, “[i]t feels like I ha[ve]
AID[S], you know what that’s like[,] Matt?” (FAC ¶ 30 p.7), and (ii) Plaintiff’s
“constructive discharge,” based at least in part on his status as an HIV-positive
or AIDS-infected individual, in March 2015 (id. at ¶¶ 60, 86-87). Since filing
the FAC, Plaintiff has wisely abandoned his constructive discharge allegation,
as he continues to be employed with DDB. (Lask Decl. ¶ 1). See Petrosino v.
Bell Atl., 385 F.3d 210, 229 (2d Cir. 2004) (“[A]n employee is constructively
discharged when his employer, rather than discharging him directly,
intentionally creates a work atmosphere so intolerable that he is forced to quit
involuntarily.” (emphasis added)). This leaves Cianciotto’s May 2013 comment
as the only allegation of explicitly disability-based discrimination in the FAC.
Plaintiff did not file his NYSDHR complaint until December 17, 2014, placing
his ADA claim well outside the applicable 300-day limitation period set forth in
42 U.S.C. §§ 2000e-5(e) and 12117. (Feinstein Decl. Ex. D). Plaintiff’s
disability discrimination claim under the ADA is therefore time-barred. 5
5
While Plaintiff’s NYSHRL disability discrimination claim is analyzed under the same
framework as his claim under the ADA, the applicable limitations period for his
NYSHRL claim is three years. N.Y.C.P.L.R. § 214(2). Thus his claim for disability
discrimination under that statute, unlike his ADA claim, is timely. As discussed further
in this Opinion, however, it fails on the merits.
16
c.
Even Were Plaintiff’s ADA Claim Timely, Both It and His
NYSHRL Disability Discrimination Claim Fail on the Merits
i.
Plaintiff Fails to Allege a Disability-Based Hostile Work
Environment Claim or a Continuing Violation
While it is not entirely clear from the FAC that Plaintiff is alleging
disability discrimination under a hostile work environment theory — the
portion of the FAC outlining his ADA claim discusses almost exclusively
Plaintiff’s now-abandoned theory of “constructive discharge” — Plaintiff’s brief
in opposition tries to save his ADA claim by positioning Cianciotto’s May 2013
comment as part of a “continuing violation” that extended through at least
January 2015. (Pl. Opp. 19). Plaintiff’s continuing violation and hostile work
environment arguments fail, both as means of extending any limitations period
and on the merits.
The “continuing violations” doctrine extends the ADA’s 300-day filing
period where a plaintiff alleges that a hostile work environment has been
created by continuing acts of discrimination as part of an official policy or
mechanism of discrimination. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 114-18 (2002). Essential to application of the continuing violations
theory, however, is an allegation that at least one discrete act of discrimination
occurred within the 300 day period. See Bonner v. Guccione, 178 F.3d 581,
584 (2d Cir. 1999). Plaintiff fails to allege any specific act of disability-based
discrimination within the limitations period. More fundamentally, however, the
totality of Plaintiff’s pleadings fail to allege sufficient disability-based
discrimination to sustain an ADA hostile work environment claim.
17
As a threshold matter, the Second Circuit has not directly ruled on
whether hostile work environment claims are cognizable under the ADA. See
Robinson v. Dibble, 613 F. App’x 9, 13 n.2 (2d Cir. 2015) (summary order) (“We
have not yet decided whether a hostile work environment claim is cognizable
under the ADA.”); see also Giambattista v. Am. Airlines, Inc., 5 F. Supp. 3d 284,
294 (E.D.N.Y.) (assuming the viability of a hostile work environment claim
under the ADA, but finding it insufficiently alleged in that case), aff’d, 584 F.
App’x 23 (2d Cir. 2014) (summary order). A number of other Circuits, as well
as district courts within the Second Circuit, have recognized such claims,
applying the same standard applicable to hostile work environment claims
under Title VII. See, e.g., Shaver v. Indep. Stave Co., 350 F.3d 716, 719 (8th
Cir. 2003); Fox v. Gen. Motors Corp., 247 F.3d 169, 175-76 (4th Cir. 2001);
Flowers v. S. Reg’l Physician Servs., Inc., 247 F.3d 229, 232-35 (5th Cir. 2001);
Lewis v. Blackman Plumbing Supply L.L.C., 51 F. Supp. 3d 289, 309 (S.D.N.Y.
2014); Forgione v. City of New York, No. 11 Civ. 5248 (JG), 2012 WL 4049832,
at *10 & n.6 (E.D.N.Y. Sept. 13, 2012).
Assuming that Plaintiff can bring an ADA claim under a hostile work
environment theory, he
must plead facts that would tend to show that the
complained of conduct: [i] is objectively severe or
pervasive — that is, ... creates an environment that a
reasonable person would find hostile or abusive;
[ii] creates an environment that the plaintiff subjectively
perceives as hostile or abusive; and [iii] creates such an
environment because of [his disability].
18
Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (quoting Gregory v. Daly, 243
F.3d 687, 691-92 (2d Cir. 2001) (internal quotation marks omitted)). To
succeed on a hostile work environment claim, “[t]he plaintiff must show that
the workplace was so severely permeated with discriminatory intimidation,
ridicule, and insult that the terms and conditions of [his] employment were
thereby altered.” Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002).
Generally speaking, the discriminatory acts must “be more than ‘episodic; they
must be sufficiently continuous and concerted in order to be deemed
pervasive.’… But it is well-settled in this Circuit that even a single act can meet
the threshold if, by itself, it can and does work a transformation of the
plaintiff’s workplace.” Id. (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149
(2d Cir. 1997)).
The sum total of Plaintiff’s disability-related allegations are as follows:
$ Plaintiff is HIV positive, and alleges that Defendants
perceived him as having AIDS — a perception engendered
by the fact that he is openly gay, and which was allegedly
reinforced at some later date through inferences drawn
from his medical insurance records. (FAC ¶¶ 11, 42-43).
$ In May 2013, Cianciotto was feeling ill and said at a
meeting that “[i]t feels like I ha[ve] AID[S], you know what
that’s like[,] Matt?” (Id. at ¶ 30 p.7).
$ Cianciotto is not alleged to have made any other comments
related to Plaintiff’s medical status. After Plaintiff met with
DDB’s Human Resources Director, however, Cianciotto
approached Plaintiff to explain that he had a severe phobia
of communicable diseases, including AIDS. (Id. at ¶ 49).
$ Finally, Plaintiff alleges that he was asked to leave his
employment at least in part because he was perceived to
have AIDS. (Id. at ¶¶ 60, 87).
19
These incidents, whether considered individually or in combination, fail to
demonstrate an environment “so severely permeated with discriminatory
intimidation, ridicule, and insult” as to alter the terms and conditions of
Plaintiff’s employment. 6
The Court does not foreclose the possibility that under some
circumstances, the disclosure of an individual’s sensitive medical information
might plausibly constitute discrimination so severe as to “work a
transformation of the plaintiff’s workplace.” Alfano, 294 F.3d at 374. No facts
are alleged, however, to suggest that such transformation occurred here. After
Cianciotto’s May 2013 comment, Plaintiff’s responsibilities, compensation, and
position remained the same, and his co-workers made no mention of his
medical status and treated him no differently. To be sure, Plaintiff alleges that
Cianciotto’s comment took an emotional toll on him; but subjective perception
is only one element of a hostile work environment. See Patane, 508 F.3d at
113 (describing both an objective and a subjective prong to a hostile work
environment claim). On these pleadings, Cianciotto’s single off-handed
6
Plaintiff additionally alleges two instances of AIDS-related commentary from Cianciotto
directed at other employees: Cianciotto stated to an employee with a buzz haircut that
the employee “looked like an AIDS patient,” and remarked upon hearing that another
employee had pneumonia, “Well, be glad [it’s] not AIDS.” (FAC ¶ 30 p.9). The Court
recognizes that in determining whether a hostile work environment exists, “the crucial
inquiry focuses on the nature of the workplace environment as a whole,” and that
therefore “a plaintiff who [him]self experiences discriminatory harassment need not be
the target of other instances of hostility in order for those incidents to support [his]
claim.” Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547 (2d Cir. 2010) (emphases omitted)
(quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000)). In this case,
however, the two additional comments — while in poor taste — are not obviously
discriminatory; they certainly do not establish conduct so “severe” and “pervasive” such
that, taken together with Plaintiff’s other allegations, they would establish a hostile
work environment. Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002).
20
comment — distasteful though it may have been — was not “severe … enough
to create an objectively hostile or abusive work environment.”
In addition to the May 2013 statement by Cianciotto previously
discussed, Plaintiff alleges further inappropriate actions by his supervisor, but
none of those actions was causally related to Plaintiff’s asserted disability. See,
e.g., Marini v. Costco Wholesale Corp., 64 F. Supp. 3d 317, 326 (D. Conn. 2014)
(“A hostile work environment claim requires more than just a hostile work
environment — it requires proof that hostile acts were based on plaintiff’s
protected status (e.g., his disability), rather than other reasons.”),
reconsideration denied, No. 11 Civ. 331 (JAM), 2015 WL 1169284 (D. Conn.
Mar. 13, 2015). Specifically, Plaintiff alleges that, shortly after he began
working under Cianciotto’s supervision, “Cianciotto became openly resentful
and hostile towards Plaintiff because of his sexual orientation.” (FAC ¶ 33).
Plaintiff further alleges that Cianciotto expressed his animosity by “harassing,
intimidating, and mistreating Plaintiff as a homosexual male by drawing
offensive sketches and creating other pictures of Plaintiff in a sexually
suggestive manner.” (Id. at ¶ 34).
Save for Cianciotto’s comment at the May 2013 meeting, every instance
of discrimination alleged by Plaintiff centers on his sexual orientation; they
make no reference to AIDS or illness. The ADA specifically protects against
discrimination on the basis of an individual’s disability; it does not protect an
individual against harassment generally. See, e.g., Castro v. City of New York,
24 F. Supp. 3d 250, 271 (E.D.N.Y. 2014) (dismissing a hostile work
21
environment claim where there was “no basis upon which to conclude that the
delay in compensation and the assignment of physical tasks occurred because
plaintiff was disabled” (emphasis in original)). 7
Statements mocking or making light of the notion that an individual may
suffer from a life-threatening illness are inappropriate, to say the least.
However, because the alleged instances of discriminatory conduct based on
Defendants’ perception that Plaintiff had AIDS fail to rise to the level necessary
to constitute a hostile work environment claim, Plaintiff’s claims for disability
discrimination in violation of the ADA and the NYSHRL fail on the merits.
ii.
Plaintiff Fails to Demonstrate a Basis for
Equitable Tolling or an Adverse Employment Action
As a fallback position to his continuing violation argument, Plaintiff
contends that any relevant limitations periods for his claims should be tolled,
as (i) the treatment he received from Cianciotto caused him such psychological
trauma that he was unable to file a timely claim, and (ii) DDB never informed
him of his right to pursue discrimination claims with the EEOC. (Pl. Opp. 1719). Defendants argue in response that Plaintiff’s own allegations doom his
equitable tolling argument, as he was capable of complaining to Human
Resources in June 2013; filing three separate complaints between 2014 and
7
In alleging that “Cianciotto targeted him as having AIDS … because he was gay” (FAC
¶ 2). Plaintiff conflates sexual-orientation-based actions with discrimination based on
the perception that he had AIDS. Assuming that Plaintiff had AIDS does not constitute
discrimination based on that assumption; rather, it represents a discriminatory
assumption based on Plaintiff’s sexual orientation. In other words, according to
Plaintiff’s pleadings, both the assumption that he had AIDS and Cianciotto’s
harassment stemmed from a common cause (namely, animus toward Plaintiff’s sexual
orientation). That does not make them causally related to each other.
22
2015; and working continuously for DDB during the period from April 2011 to
the present. (Def. Reply 6). Regarding notice of Plaintiff’s right to file with the
EEOC, Defendants contend, inter alia, that they had no legal obligation to
inform Plaintiff of such rights. (Id. at 6 n.7).
“Equitable tolling is only appropriate in ‘rare and exceptional
circumstances in which a party is prevented in some extraordinary way from
exercising [his] rights.’” Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101,
112 (2d Cir. 2008) (quoting Zerilli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d
74, 80 (2d Cir. 2003)). In light of Plaintiff’s ability both to continue working —
and at such a level as to receive a promotion — and to lodge a complaint with
Human Resources during the very period for which he alleges the limitations
period should be tolled, Plaintiff’s case is easily distinguishable from the case
law on which he relies. (See Pl. Opp. 17-18 (citing Tsai v. Rockefeller Univ., 137
F. Supp. 2d 276, 281-83 (S.D.N.Y. 2001))).
As for Plaintiff’s claim that DDB failed to inform him of his right to
complain to the EEOC, it is true that DDB had an obligation to display a poster
informing employees of their rights under the Equal Employment Opportunity
Act. Plaintiff alleges neither the presence nor the absence of such a poster.
But even assuming that DDB failed to discharge its responsibility in this
regard, such failure would not constitute the sort of “affirmative misconduct …
aimed at causing [a plaintiff] to forgo his legal rights,” so as to warrant
equitable tolling. Long v. Frank, 22 F.3d 54, 59 (2d Cir. 1994). This is
particularly so given Plaintiff’s allegation that a co-worker filed a complaint
23
against DDB with the EEOC in 2012, for which other DDB employees provided
supporting testimony — thereby demonstrating that other employees were
familiar with the EEOC charge process. (FAC ¶ 30 p.6). The Court strongly
doubts the applicability of equitable tolling in this case. It need not decide this
issue, however, as Plaintiff’s disability discrimination claims fail on the merits,
for the reasons stated in the preceding section and an additional reason
discussed in this section.
Plaintiff fails to allege that he suffered an adverse employment action
within the meaning of the ADA and the NYSHRL; therefore his claims under
those statutes must fail. A plaintiff suffers an “adverse employment action” for
the purposes of the ADA when “he or she endures 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) (citing Richardson v. N.Y. State Dep’t of Corr.
Serv., 180 F.3d 426, 446 (2d Cir. 1999)). A materially adverse change is a
change in working conditions that is “more disruptive than a mere
inconvenience or an alteration of job responsibilities.” Id. (quoting Crady v.
Liberty Nat’l Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir. 1993)).
“Examples of materially adverse employment actions include ‘termination of
employment, a demotion 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.” Feingold
v. New York, 366 F.3d 138, 152 (2d Cir. 2004) (quoting Galabya, 202 F.3d at
640) (ellipsis in original).
24
As noted supra, Plaintiff has abandoned his assertion of disability-based
constructive discharge. (Lask Decl. ¶ 1). This does not necessarily mean, of
course, that he has withdrawn the factual contentions underlying that claim;
as relevant to his disability discrimination claims, these include the contention
that the corporate Defendants “request[ed] Plaintiff to leave his employment
without any basis regarding his work performance after he complained to the
EEOC and indicated that he actually had HIV.” (FAC ¶ 86). Plaintiff did not,
however, leave his employment. On the contrary, as of the filing of his FAC, he
continued to hold his position at DDB. Nor does Plaintiff allege any demotion,
salary reduction, loss of benefits, or change to his responsibilities as a
consequence of his disability; in fact, the only change in employment
conditions that Plaintiff alleges as having occurred during his tenure with DDB
consists of a promotion and a raise. (Id. at ¶¶ 35-36). 8 The mere offering of a
8
Plaintiff does allege a one-year delay in receiving the salary increase that accompanied
his promotion. (FAC ¶ 36). The FAC provides no suggestion that this delay was in any
way related to Plaintiff’s medical status; to the contrary, the temporary withholding
occurred months prior to any mention by Cianciotto of his associating Plaintiff with
AIDS. Additionally, “a plaintiff seeking to assert a discrimination claim based on a
delay in the receipt of compensation faces a substantial hurdle.” Castro v. City of New
York, 24 F. Supp. 3d 250, 262 & n.24 (E.D.N.Y. 2014). Courts in the Second Circuit
have consistently held that paycheck delays do not constitute an “adverse employment
action” for purposes of making a prima facie employment discrimination or retaliation
claim. See Bobbitt v. N.Y.C. Health and Hosp. Corp., No. 08 Civ. 10765 (SAS), 2009 WL
4975196, at *9 n.130 (S.D.N.Y. Dec. 22, 2009) (listing cases in which delayed
paychecks were found not to constitute an adverse employment action). This is
particularly so where the delay does not interrupt a preexisting schedule of payments,
such that the withholding could not be said to constitute a “materially adverse change”
to the terms and conditions of a plaintiff’s employment. Castro, 24 F. Supp. 3d at 263;
see also Bobbitt, 2009 WL 4975196, at *9 (“A delay in receiving [a] workers’
compensation check does not change the terms or conditions of [the plaintiff’s]
employment.”). Even assuming the delay could conceivably constitute an adverse
employment, however, the lack of any connection to Plaintiff’s proffered disability would
preclude the delayed payment from supporting Plaintiff’s disability discrimination
claims.
25
severance package to Plaintiff does not itself constitute an adverse employment
action, in light of the fact that Plaintiff alleges no negative consequences arising
from his refusal to leave DDB.
For all of these reasons, even had Plaintiff’s ADA claim been found
timely, both that claim and his NYSHRL disability claim were nevertheless
doomed to fail on the merits. They will therefore be dismissed.
D.
Plaintiff Fails to State a Claim for Retaliation Under the ADA, Title
VII, or the NYSHRL
Plaintiff asserts claims for retaliation under the ADA, Title VII, and the
NYSHRL, all three of which are analyzed under the same framework. See
Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 234 (2d Cir. 2000)
(comparing retaliation provisions under ADA and NYSHRL); Sarno v. Douglas
Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999) (comparing
retaliation provisions under ADA and Title VII). In order to make out a prima
facie case under any of these statutes, a plaintiff must show that (i) he engaged
in protected activity, (ii) his employer was aware of that protected activity,
(iii) his employer took adverse action against him, and (iv) “a retaliatory motive
played a part in the adverse employment action.” Sista v. CDC Ixis N. Am., Inc.,
445 F.3d 161, 177 (2d Cir. 2006) (quoting Reg’l Econ. Cmty Action Program, Inc.
v. City of Middletown, 294 F.3d 35, 54 (2d Cir. 2002)). In the present case,
Plaintiff fails to allege any adverse employment action taken against him.
Consequently, his claims for retaliation, whether construed as related to his
allegations of disability discrimination or sexual orientation discrimination,
cannot stand.
26
An employment action in the retaliation context is adverse if it “would
have been materially adverse to a reasonable employee or job applicant.” Hicks
v. Baines, 593 F.3d 159, 165 (2d Cir. 2010) (internal quotations omitted).
“Actions are ‘materially adverse’ if they are ‘harmful to the point that they could
well dissuade a reasonable worker from making or supporting a charge of
discrimination.” Id. (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 57 (2006)). Here, the only negative action allegedly taken subsequent
to Plaintiff’s protected activity — his filing of complaints with the EEOC and
NYSDHR — was the offering of a severance package that Plaintiff was free to
accept or decline (and which he did in fact decline, with no adverse
consequences). (FAC ¶¶ 10, 58). Nothing about the offer of a severance
package, absent some indication that a complainant did or would suffer
negative repercussions should he or she reject the offer, would tend to
dissuade a reasonable employee from engaging in protected activity. Plaintiff’s
retaliation claims are therefore dismissed.
E.
Plaintiff Fails to State a Claim for Discrimination Under Title VII
1.
Applicable Law
“Under Title VII of the Civil Rights Act of 1964, ‘it shall be unlawful
employment practice for an employer ... to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national
origin.’” Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998) (quoting 42
U.S.C. § 2000e-2(a)(1)). Absent direct evidence of discrimination, a prima facie
27
case of Title VII discrimination requires a showing that (i) the plaintiff is a
member of a protected class; (ii) he was qualified for the position he held;
(iii) he suffered an adverse employment action; and (iv) the adverse action took
place under circumstances giving rise to an inference of discrimination. See,
e.g., Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir. 2012); Ruiz v. County of
Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010).
To survive a motion to dismiss “a complaint in a discrimination lawsuit
need not contain specific facts establishing a prima facie case of
discrimination[.]” Twombly, 550 U.S. at 569 (internal alteration omitted)
(quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002)). Rather, at
the pleading stage, “a plaintiff ‘need only give plausible support to a minimal
inference of discriminatory motivation.’” Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 84 (2d Cir. 2015) (quoting Littlejohn v. City of New York, 795
F.3d 297, 306 (2d Cir. 2015)).
2.
Analysis
a.
Plaintiff’s Title VII Claims Against the Individual
Defendants Fail Because Title VII Does Not Provide For
Individual Liability
The FAC does not make clear which claims are being asserted against
which Defendants. Defendants correctly note (see Def. Br. 23; Cianciotto Br. 2)
that, to the extent Plaintiff asserts claims for Title VII discrimination against
Cianciotto, Hempel, and Brown, such claims must fail on the grounds that Title
VII does not provide for individual liability. See Tomka v. Seiler Corp., 66 F.3d
1295, 1317 (2d Cir. 1995) (holding “that an employer’s agent may not be held
28
individually liable under Title VII”), abrogated on other grounds by Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).
b.
Plaintiff’s Title VII Claims Against the Corporate Defendants
Fail on the Merits Under Governing Second Circuit Law
Plaintiff alleges that Cianciotto, his supervisor at DDB, was “openly
hostile and resentful” toward Plaintiff “because of his sexual orientation.” (FAC
¶ 33). In support of this contention, Plaintiff provides numerous examples of
Cianciotto’s allegedly anti-gay behavior, including three lewd drawings of
Plaintiff on an office whiteboard; a movie poster, circulated to the office and
posted on Facebook, depicting Plaintiff’s head on the body of a bikini-clad
woman “in the gay sexual receiving position”; a comment made to a co-worker
in which Cianciotto stated that “if he were gay, he’d like to have gay intercourse
with [the co-worker]”; and a question posed to another employee during a trivia
game asking how it felt to “be beaten out by the gay guy.” (Id. at ¶¶ 30, 34).
By any metric, the conduct alleged is reprehensible. Defendants move to
dismiss Plaintiff’s Title VII claim, however, on the ground that discrimination
claims based on sexual orientation are simply not cognizable under Title VII.
(Def. Br. 9-10). Plaintiff responds by arguing that Title VII should be expanded
to recognize sexual orientation claims; and that in any case, he has asserted a
viable claim based not on sexual orientation, but rather on sexual stereotyping.
(Pl. Opp. 12-14; see also FAC 19 (titling Plaintiff’s second cause of action “Title
VII Stereotypical Animus”)). Under the law as it currently stands, the Court is
constrained to find that Plaintiff has not stated a cognizable claim for Title VII
discrimination.
29
In Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), the Second Circuit
unequivocally held that “Title VII does not proscribe discrimination because of
sexual orientation.” Id. at 36. In reaching this conclusion, it cited “Congress’s
rejection, on numerous occasions, of bills that would have extended Title VII’s
protection to people based on their sexual preferences.” Id. 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 Simonton Court additionally looked to the other protected classifications
under Title VII, reasoning that when read alongside the categories of race,
color, religion, or nationality, “sex” could logically only refer to a class
“delineated by gender, rather than sexual activity regardless of gender.” Id.
(quoting DeCintio v. Westchester County Med. Ctr., 807 F.2d 304, 306-07 (2d
Cir. 1986)). 9 The Simonton Court drew a distinction, however, between claims
based on discrimination targeting sexual orientation and those based upon
nonconformity with sexual stereotypes — the latter of which the Second Circuit
has since recognized are cognizable under Title VII, but “should not be used to
‘bootstrap protection for sexual orientation into Title VII.’” Dawson v. Bumble &
Bumble, 398 F.3d 211, 218-21 (2d Cir. 2005) (quoting Simonton, 232 F.3d at
38); see also Kiley v. Am. Soc. for Prevention of Cruelty to Animals, 296 F. App’x
9
The Court notes that to the extent that sexual orientation is argued to be dissimilar to
the classes expressly protected under Title VII because it is based on “activity” rather
than personal traits, the inclusion of religion in the text of Title VII would appear to
disprove that argument.
30
107, 109 (2d Cir. 2008) (summary order) (“Plaintiffs may bring Title VII claims
alleging that an adverse employment decision was due in part to sexual
stereotyping by the employer,” but “may not use a gender stereotyping claim to
bootstrap protection for sexual orientation into Title VII.” (internal quotation
marks omitted)).
The broader legal landscape has undergone significant changes since the
Second Circuit’s decision in Simonton. In 2013, the Supreme Court issued an
opinion striking down the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7 and
28 U.S.C. § 1738C, which amended the Dictionary Act — the statute providing
rules of construction for a multitude of federal laws and regulations — to define
“marriage” and “spouse” as excluding same-sex partners. See generally United
States v. Windsor, 133 S. Ct. 2675 (2013). In so doing, the Supreme Court
found that DOMA violated the equal protection guarantee contained within the
Fifth Amendment to the United States Constitution by “refusing to
acknowledge a status the [individual states recognizing same-sex marriage]
find[] to be dignified and proper.” Id. at 2696. Two years later, the Court
further advanced protections for individuals in same-sex relationships when it
ruled that, under the Due Process and Equal Protection Clauses of the
Fourteenth Amendment, same-sex couples have the right to marry. Obergefell
v. Hodges, 135 S. Ct. 2584, 2604-05 (2015).
To be sure, neither of these cases impacts the issue of what protections
Title VII affords; that said, they reflect a shift in the perception, both of society
and of the courts, regarding the protections warranted for same-sex
31
relationships and the men and women who engage in them. It is against this
backdrop that in July 2015 the EEOC issued a decision, binding on federal
agencies (though not federal courts), finding that claims for sexual orientation
discrimination are cognizable under Title VII. See EEOC Appeal
No. 0120133080, 2015 WL 4397641 (July 16, 2015); see generally McMenemy
v. City of Rochester, 241 F.3d 279, 284 (2d Cir. 2001) (concluding that EEOC
interpretation of Title VII and its terms is “entitled to respect” to the extent it
has the “power to persuade,” pursuant to Skidmore v. Swift & Co., 323 U.S.
134 (1944)).
Further highlighting the degree to which times have changed since
Simonton, numerous cases have demonstrated the difficulty of disaggregating
acts of discrimination based on sexual orientation from those based on sexual
stereotyping. See, e.g., Dawson, 398 F.3d at 218 (“gender stereotyping claims
can easily present problems for an adjudicator. This is for the simple reason
that stereotypical notions about how men and women should behave will often
necessarily blur into ideas about heterosexuality and homosexuality.” (internal
quotation marks and alteration omitted)); Boutillier v. Hartford Pub. Sch., No. 13
Civ. 1303 (WWE), 2014 WL 4794527, at *2 (D. Conn. Sept. 25, 2014) (finding
that, “[c]onstrued most broadly,” the plaintiff’s allegations of sexual orientation
discrimination also stated discriminatory treatment based on sexual
stereotypes); Videckis v. Pepperdine Univ., No. 15 Civ. 298 (DDP), 2015 WL
1735191, at *8 (C.D. Cal. 2015) (observing, in the context of Title IX, that “the
line between discrimination based on gender stereotyping and discrimination
32
based on sexual orientation is blurry, at best, and thus a claim that Plaintiffs
were discriminated against on the basis of ... their sexual orientation may fall
within the bounds of Title IX.”); Bianchi v. City of Philadelphia, 183 F. Supp. 2d
726, 738 (E.D. Pa. 2002) (discussing the fine distinction between sex-based
claims and sexual orientation discrimination); cf. Latta v. Otter, 771 F.3d 456
(9th Cir. 2014) (Berzon, J., concurring) (“the social exclusion and state
discrimination against lesbian, gay, bisexual, and transgender people reflects,
in large part, disapproval of their nonconformity with gender-based
expectations”). This difficulty comes as no surprise, for, as the EEOC stated in
its July 2015 decision, “sexual orientation is inherently a ‘sex-based
consideration,’ and an allegation of discrimination based on sexual orientation
is necessarily an allegation of sex discrimination under Title VII.” 2015 WL
4397641, at *5; see also Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass.
2002) (observing that “[s]exual orientation harassment is often, if not always,
motivated by a desire to enforce heterosexually defined gender norms. In fact,
stereotypes about homosexuality are directly related to our stereotypes about
the proper roles of men and women.”).
A simple example helps to illustrate the futility of treating sexual
orientation discrimination as separate from sex-based considerations: If an
employer fires her female employee because the employer believes that women
should defer to men, but the employee sometimes challenges her male
colleagues, such action would present a cognizable claim under Title VII. If the
same employer fires her female employee because the employer believes that
33
women should date men, but the employee only dates women, the prevailing
construction of Title VII would find no cognizable claim under that statute. The
inevitable result of holding that some sexual stereotypes give rise to cognizable
Title VII claims, while others — namely, those involving sexual orientation — do
not, has been an invitation to the precise bootstrapping that the Simonton
Court intended to avoid. See, e.g., Kristin M. Bovalino, How the Effeminate
Male Can Maximize His Odds of Winning Title VII Litigation, 53 SYRACUSE L. REV.
1117, 1134 (2003) (counseling “gay plaintiffs bringing claims under Title VII [to]
emphasize the gender stereotyping theory and de-emphasize any connection
the discrimination has to homosexuality”); see also Videckis, 2015 WL
1735191, at *8 (stating that plaintiffs could frame a claim for sexual orientation
discrimination as one for sexual stereotyping).
The lesson imparted by the body of Title VII litigation concerning sexual
orientation discrimination and sexual stereotyping seems to be that no
coherent line can be drawn between these two sorts of claims. Yet the
prevailing law in this Circuit — and, indeed, every Circuit to consider the
question — is that such a line must be drawn. Simonton is still good law, and,
as such, this Court is bound by its dictates. Consequently, the Court must
consider whether the Plaintiff has pleaded a claim based on sexual
stereotyping, separate and apart from the stereotyping inherent in his claim for
discrimination based on sexual orientation. The Court finds that he has not.
In his opposition brief, Plaintiff contends that Cianciotto “abused him
because of his effeminate characteristics.” (Pl. Opp. 14). Were that so, Plaintiff
34
could likely state a cognizable Title VII claim under Second Circuit law;
Plaintiff’s pleadings fail, however, to support an inference of discrimination
based on a perception that he was overly effeminate. Plaintiff’s brief argues
that Cianciotto “accused him of being especially effeminate and that he is a
‘bottom’ and a ‘poof’” because he was insufficiently masculine, but — Plaintiff’s
use of quotation marks around “poof” notwithstanding — no such name-calling
is attributed to Cianciotto in the FAC. (Pl. Opp. 14). Rather, the terms
“bottom” and “poof” refer to Plaintiff’s own characterization of the Muscle
Beach poster, which depicts Plaintiff in what he repeatedly describes as the
“gay sexual receiving position.” (FAC ¶¶ 34, 45).
Plaintiff additionally states that Cianciotto told a coworker that Plaintiff
was “effeminate and gay so he must have AIDS.” (FAC ¶ 30 p.9). This is the
sole mention of Plaintiff as effeminate or otherwise non-conforming to
traditional gender norms in the whole of the FAC; it alone cannot serve to
transform a claim for discrimination that Plaintiff plainly interpreted — and the
facts support — as stemming from sexual orientation animus into one for
sexual stereotyping. (See, e.g., id. at ¶ 33 (“Cianciotto became openly resentful
and hostile towards Plaintiff because of his sexual orientation” (emphasis
added)). See also Trigg v. N.Y.C. Transit Auth., No. 99 Civ. 4730 (ILG), 2001 WL
868336, at *6 (E.D.N.Y. July 26, 2001) (noting that plaintiff’s words and his
own perception of the import of the alleged harasser’s taunts “compel the
conclusion that sexual orientation and not gender stereotyping are the sine qua
non of his grievance”).
35
While Plaintiff provides virtually no support in his FAC for an allegation
of discrimination based on sexual stereotyping, he provides multiple
illustrations of Cianciotto’s animus toward gay individuals. The FAC notes, for
instance, the fact that “[m]ost of [the] pictures [Cianciotto] drew were of men
fornicating, and they always involved a gay employee”; that he repeatedly
expressed a belief that gay men were reckless and disease-prone; and that he
commented at a meeting that he did not want an advertisement to be “too gay.”
(FAC ¶ 30 p.9). All of these examples lend further support to the inference that
Cianciotto’s harassment was motivated by sexual-orientation-based
discriminatory animus, not sexual stereotyping.
The Muscle Beach poster arguably provides an exception to the overall
lack of sex-based stereotyping implicit in Cianciotto’s actions, as it does indeed
place Plaintiff’s face on a woman’s body, perhaps thereby implying that Plaintiff
is effeminate. The Court must, however, consider Plaintiff’s FAC as a whole,
and nearly every other instance of discrimination alleged by Plaintiff involves a
characterization of Plaintiff not as effeminate, but as overtly (indeed, overly)
masculine. For instance, Cianciotto is alleged to have said to Plaintiff at a
meeting, “Your muscles are big,” and “Everybody look at Matt’s muscles,” and
all three of Cianciotto’s whiteboard drawings of Plaintiff depict Plaintiff as
shirtless and “muscle bound”; one of them depicts Plaintiff with a large, erect
penis. (FAC ¶¶ 30 p.7, 34 & Ex. B). Additionally, Plaintiff alleges no facts
suggesting that he speaks, dresses, or otherwise behaves in a particularly
effeminate manner, nor any facts, beyond possibly the single movie poster, to
36
suggest that Cianciotto’s behavior arose from a perception of Plaintiff as
insufficiently masculine. Plaintiff does, however, allege that he presents
himself as “openly gay,” and that this triggered nearly immediate hostility and
resentment in Cianciotto. (Id. at ¶¶ 11, 33).
In short, the Court has “no basis in the record to surmise that [Plaintiff]
behaved in a stereotypically feminine manner and that the harassment he
endured was, in fact, based on his non-conformity with gender norms instead
of his sexual orientation.” Simonton, 232 F.3d at 38. The Court could latch
onto the single use of the word “effeminate” and the depiction of Plaintiff’s head
on a woman’s body, strip these facts of the context provided by the rest of the
FAC, and conjure up a claim for “sexual stereotyping.” But while the ends
might be commendable, the means would be intellectually dishonest; the Court
would obliterate the line the Second Circuit has drawn, rightly or wrongly,
between sexual orientation and sex-based claims. In light of the EEOC’s recent
decision on Title VII’s scope, and the demonstrated impracticability of
considering sexual orientation discrimination as categorically different from
sexual stereotyping, one might reasonably ask — and, lest there be any doubt,
this Court is asking — whether that line should be erased. Until it is, however,
discrimination based on sexual orientation will not support a claim under Title
VII; Plaintiff’s Title VII discrimination claim must therefore be dismissed.
F.
The Court Declines to Exercise Supplemental Jurisdiction Over
Plaintiff’s Additional State and Local Claims
Where a federal district court dismisses the causes of action over which
it has original jurisdiction, that court then has discretion regarding whether to
37
exercise supplemental jurisdiction over the plaintiff’s remaining state-law
claims. 28 U.S.C. § 1367(c)(3). “[I]n the usual case in which all federal-law
claims are eliminated before trial, the balance of factors to be considered under
the pendent jurisdiction doctrine — judicial economy, convenience, fairness,
and comity — will point toward declining to exercise jurisdiction over the
remaining state-law claims.” Pension Benefit Guar. Corp. ex rel. St. Vincent
Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705,
727 (2d Cir. 2013) (citation and quotation marks omitted); see also In re Merrill
Lynch Ltd. P’ships Litig., 154 F.3d 56, 61 (2d Cir. 1998) (“[W]hen the federal
claims are dismissed the ‘state claims should be dismissed as well.’” (quoting
United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966))).
In addition to the claims resolved supra, Plaintiff claims sexual
orientation discrimination under the NYSHRL and NYCHRL; disability
discrimination under the NYCHRL; New York State and New York City liability
for aiding and abetting the foregoing discrimination; slander per se; intentional
infliction of emotional distress; breach of contract; and violations of the New
York Labor Law. (FAC ¶¶ 105-35, pp. 24-25). In light of the Court’s dismissal
of Plaintiff’s federal-law claims; the early stage of the litigation; and the
multiple issues of state law implicated by Plaintiff’s remaining claims, the
Court declines to exercise supplemental jurisdiction over these non-federal
causes of action. See, e.g., Vuona v. Merrill Lynch & Co., 919 F. Supp. 2d 359,
393 (S.D.N.Y. 2013) (disposing of a plaintiff’s Title VII and NYSHRL claims
because an identical standard applies, but declining to exercise supplemental
38
jurisdiction over the differently analyzed NYCHRL claims). The Court therefore
dismisses the claims without prejudice to their potential refiling in state court.
CONCLUSION
For the reasons given in this Opinion, Defendants’ motions are
GRANTED in full. The Clerk of Court is directed to terminate all pending
motions, adjourn all remaining dates, and close this case.
SO ORDERED.
Dated:
March 9, 2016
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
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