Philpott v. State Of New York et al

Filing 38

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS re: 27 MOTION to Dismiss Complaint filed by The University of the State of New York, State Of New York, State University of New Yo rk, 35 LETTER MOTION for Conference addressed to Judge Alvin K. Hellerstein from Daniel E. Dugan dated April 3, 2017 filed by Jeffrey Philpott. For the reasons stated above, defendant's motion is granted in part and denied in part. The clerk shall terminate the motion and the related letter-motion (Dkt. Nos. 27, 35). Plaintiff shall file an amended complaint in accordance with this opinion by May 18, 2017, and defendant shall answer by May 29, 2017. A stat us conference will be held on June 16, 2017, at 10:00 a.m., at which the parties shall propose a discovery plan. (As further set forth in this Opinion and Order.) ( Amended Pleadings due by 5/18/2017., Status Conference set for 6/16/2017 at 10:00 AM before Judge Alvin K. Hellerstein.) (Signed by Judge Alvin K. Hellerstein on 5/3/2017) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------------- )(
JEFFREY PHILPOTT,

OPINION AND ORDER
GRANTING IN PART AND
DENYING IN PART
DEFENDANTS' MOTION TO
DISMISS

Plaintiff,
v.
STA TE OF NEW YORK, THE UNIVERSITY OF
THE STATE OF NEW YORK, and STATE
UNIVERSITY OF NEW YORK,

16 Civ. 6778 (AKH)

Defendants.

--------------------------------------------------------------

)(

ALVIN K. HELLERSTEIN, U.S.D.J.:
Plaintiff Jeffery Philpott, a former Vice President of Student Affairs at SUNY's
College of Optometry, brought this employment discrimination action alleging that he was
discriminated against and harassed on the basis of his sexual orientation and chemical
dependence. Plaintiff also alleges that his employment was terminated shortly after he
complained of the discrimination. On January 27, 2017, Defendants State of New York,
University of the State of New York, and State University of New York moved to dismiss the
complaint on a variety of grounds. Plaintiff has since conceded that two of these defendants the State of New York and the University of the State of the New York- are not proper
defendants. Plaintiff has also withdrawn his American with Disabilities Act, 42 U.S.C. § 12112
("ADA"), claim alleging chemical dependence discrimination. As a result, the only remaining
defendant is the State University of New York ("SUNY"), and the only remaining claims are for
sexual orientation discrimination, hostile work environment, and retaliation under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and Title l)( of the
Education Amendments of 1972, 20 U.S.C. § 1681 et seq. ("Title I)("). In light of plaintiff's

concessions, defendant's motion now presents the following four issues: (1) whether plaintiffs
sexual orientation discrimination claim is cognizable under Title VII; (2) assuming that such a
claim is cognizable under Title VII, whether plaintiff has stated a plausible claim; (3) whether
any of plaintiffs allegations are untimely under the applicable statute of limitations; and (4)
whether plaintiffs sexual orientation discrimination claim may brought under Title VII only, and
not under Title IX. For the reasons discussed herein, defendant's motion is granted in part and
denied in part.
DISCUSSION
I.

Plaintiff's Claim for Sexual Orientation Discrimination is Cognizable Under
Title VII

Title VII makes it "an unlawful employment practice for an employer ... to fail or
refuse to hire or to discharge ... or otherwise to discriminate against any individual with respect
to his [or her] compensation, terms, conditions, or privileges of employment, because of such
individual's ... sex." 42 U.S.C. § 2000e-2(a)(l). In Simonton v. Runyon, 232 F.3d 33 (2d Cir.
2000), the Second Circuit held that Title VII does not prohibit discrimination on the basis of
sexual orientation. In 2005, the Second Circuit reaffirmed that holding in Dawson v. Bumble &
Bumble, 398 F.3d 211 (2d Cir. 2005). Most recently, in Christiansen v. Omnicom Grp., Inc., 852
F.3d 195 (2d Cir. 2017), a panel of the Second Circuit concluded that it lacked the power to
reconsider those prior cases, and reaffirmed Simonton and Dawson, albeit somewhat reluctantly.
The Christiansen court clarified that even though a claim for sexual orientation discrimination is
not cognizable under Title VII, a "claim based on the gender stereotyping theory of sex
discrimination," which was first articulated in Price Waterhouse v. Hopkins, 490 U.S. 228
(1989), remains cognizable under Title VII.
Defendant argues that in light of this controlling authority, the Court must dismiss
plaintiffs Title VII sexual orientation discrimination claim. Plaintiff, in turn, has requested

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leave to amend his complaint, presumably for the purpose of reframing his allegations in terms
of gender stereotyping discrimination, as opposed to sexual orientation discrimination. Neither
relief is appropriate. The law with respect to this legal question is clearly in a state of flux, and
the Second Circuit, or perhaps the Supreme Court, may return to this question soon. In light of
the evolving state of the law, dismissal of plaintiffs Title VII claim is improper.
In Christiansen, Chief Judge Katzmann wrote a concurring opinion, which was
joined by Judge Margo Brodie (who was sitting on the Second Circuit by designation). See

Christiansen, 852 F.3d at 201 (Katzmann, C.J., concurring). Judge Katzmann's majority
concurrence persuasively outlines why sexual orientation discrimination is a form of sex
discrimination and should therefore be cognizable under Title VII. See id 201-06. Judge
Katzmann articulated three distinct justifications for this conclusion, but his central point was
that "sexual orientation discrimination is sex discrimination for the simple reason that such
discrimination treats otherwise similarly-situated people differently solely because of their sex."
This is because "sexual orientation cannot be defined or understood without reference to sex."
Id at 202.
Judge Katzmann also explained that sexual orientation discrimination is a form of
sex discrimination because "such discrimination is inherently rooted in gender stereotypes." Id.
at 205. In fact, the Second Circuit had previously suggested as much in Dawson, when it
observed that "[s]tereotypical notions about how men and women should behave will often
necessarily blur into ideas about heterosexuality and homosexuality." Dawson, 398 F.3d at 218
(alteration in original) (internal quotation marks omitted). In light of this prior observation,
Judge Katzmann reasoned that "it is logically untenable for us to insist that this particular gender
stereotype" - stereotyping on the basis of sexual orientation - "is outside of the gender
stereotype discrimination prohibition articulated in Price Waterhouse." Id. at 205. Judge
Katzmann concluded his concurrence by stating that "in the context of an appropriate case our
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Court should consider reexamining the holding that sexual orientation discrimination claims are
not cognizable under Title VII." Id. at 207. Revisiting this question was warranted "especially
in light of the changing legal landscape that has taken shape in the nearly two decades since

Simonton issued." Id. at 202.
On April 4, 2017, just a week after the Second Circuit issued its decision in

Christiansen, the Seventh Circuit became the first Court of Appeals to unequivocally hold that
"discrimination on the basis of sexual orientation is a form of sex discrimination" and therefore
cognizable under Title VII. Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir.
2017) (en bane). Among other reasons, the Seventh Circuit made this ruling "to bring our law
into conformity with the Supreme Court's teachings." Id. at 343. The Seventh Circuit was also
compelled by "the common-sense reality that it is actually impossible to discriminate on the
basis of sexual orientation without discriminating on the basis of sex." Id. at 351.
As discussed below in Section II of this opinion, plaintiff has adequately alleged
that he was discriminated against because of his sexual orientation. Under the analysis set forth
in both the Second Circuit's majority concurrence in Christiansen and the Seventh Circuit's en

bane holding in Hively, because plaintiff has stated a claim for sexual orientation discrimination,
"common sense" dictates that he has also stated a claim for gender stereotyping discrimination,
which is cognizable under Title VII. The fact that plaintiff has framed his complaint in terms of
sexual orientation discrimination and not gender stereotyping discrimination is immaterial. I
decline to embrace an "illogical" and artificial distinction between gender stereotyping
discrimination and sexual orientation discrimination, and in so doing, I join several other courts
throughout the country. See Videckis v. Pepperdine Univ., 150 F.Supp.3d 1151, 1159 (C.D. Cal.
2015) (collecting cases) ("Simply put, the line between sex discrimination and sexual orientation
discrimination is 'difficult to draw' because that line does not exist, save as a lingering and faulty
judicial construct."). For these reasons, and in light of the evolving state of the law on this
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question, I hold that plaintiffs sexual orientation discrimination claim is cognizable under Title
VII.

II.

Plaintiff Has Plausibly Alleged a Claim of Sexual Orientation Discrimination
and Retaliation
Defendant argues that even if plaintiffs sexual orientation discrimination claim is

cognizable under Title VII, plaintiff has failed to plausibly state such a claim here. This
argument fails. Plaintiff has adequately alleged claims for sexual orientation discrimination,
hostile work environment, and retaliation. Plaintiff alleges that over a period of several years,
Dr. David Heath, the President of SUNY Optometry, and Gui Albieri, a co-worker of plaintiff,
made a range of discriminatory comments directed at plaintiff, that Dr. Heath excluded plaintiff
from meetings and projects because of his sexual orientation, and that when plaintiff finally
complained about this discrimination, his employment was terminated shortly thereafter.
For example, plaintiff alleges that beginning in 2011, Dr. Heath began making
comments about plaintiff based on his sexual orientation, such as calling him "sensitive,"
"flamboyant," and "frenetic." Compl.

~

10. Plaintiff alleges that comments such as these were

ongoing and continuous through his employment. In the spring of 2014, Albieri told plaintiff
that "we are only work associates, not friends ... you know [my wife] and I do not want our
children to be around homosexuality ... at least not in their formative years." Compl.

~

13. In

September 2014, Dr. Heath told plaintiff that "separate but equal treatment of gay people might
be best." Compl.

~

14. When Dr. Heath learned that plaintiff had ended a 17-year relationship

with his domestic partner, he told plaintiff that "this marriage, or whatever you want to call it, is
a distraction to the College." Compl.

~

15. In January 2015, plaintiff informed Dr. Heath that he

had developed a chemical dependency that was caused in part by plaintiffs reaction to what he
perceived as a hostile work environment. Dr. Heath told plaintiff that "AIDS had to be managed,
well manage this yourself," and commented that substance abuse was "common" in the gay

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community. Compl.

~

15. Beginning in the spring of2015, plaintiff alleges that because of his

sexual orientation, Dr. Heath began excluding plaintiff from meetings, ignored plaintiff's
proposal's, and was dismissive of plaintiff's contributions. Compl.

~

16. In April 2015, Dr.

Heath compared homosexuality to an eye condition that Dr. Heath suffered from, and claimed
that both were "genetic misfires" and that "the question becomes, and certainly the answer is yes,
they are being treated with rigorous therapy." Compl.

~

17. Also in 2015, Albieri told plaintiff

that "you make a good salary ... but your team [gays] doesn't have kids. You have more than
you need. We should switch salaries." Compl.

~

19. The Complaint states additional

allegations of discriminatory conduct along these lines.
On September 2, 2015, plaintiff formally complained to Dr. Heath, and stated that
Dr. Heath was discriminating against plaintiff on the basis of his sexual orientation and
subjecting him to a hostile work environment. Compl.

~

22. Plaintiff also made this complaint

to Doug Schading of the College of Optometry. Schading was dismissive of plaintiffs
complaint and told plaintiff to "keep me posted but this is between you and [Dr. Heath]."
Compl.

~

23. On October 15, 2015, plaintiff requested a leave of absence from his employment,

but that request was denied. Plaintiffs leave was ultimately approved, but a few days later he
received an email notifying him that his employment had been terminated. Compl.

~

26. On

October 22, 2015, Schading reached out to plaintiff to "arrive at a mutually agreeable transition
from his employment," but no separation agreement was reached. Plaintiffs employment was
terminated by letter, effective November 20, 2015. Compl.

~

26-27.

Based on these allegations, plaintiff has sufficiently stated claims for
discrimination, hostile work environment, and retaliation. See Littlejohn v. City of N. Y., 795 F .3d
297 (2d Cir. 2015).

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III.

Plaintiff's Allegations Are Not Barred by the Statute of Limitations
Title VII claims must be filed with the Equal Employment Opportunity

Commission ("EEOC") within 300 days of the discriminatory act complained of. Williams v.

N. Y Haus. Auth., 458 F.3d 67, 69 (2d Cir. 2006). Defendant argues that because plaintiff did not
file an administrative complaint with the EEOC until February 24, 2016, any allegations of
discriminatory conduct that pre-date April 30, 2015 are untimely. However, the statute of
limitations does not "bar an employee from using the prior acts as background evidence in
support of a timely claim." Nat'! R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002);

see also Coger v. Connecticut Dep 't of Pub. Safety, 143 F. App'x 372, 374 (2d Cir. 2005)
("Plaintiff argues, and we agree, that [Morgan] requires the consideration of facts, related to
claims now untimely, as background to timely claims."). Additionally, conduct that occurred
outside the limitations period is relevant to plaintiffs hostile work environment claim. "A claim
of hostile work environment is timely so long as one act contributing to the claim occurred
within the statutory period; if it did, 'the entire time period of the hostile environment may be
considered by a court for the purposes of determining liability."' Patterson v. Cty. of Oneida,

N. Y, 375 F.3d 206, 220 (2d Cir. 2004) (quoting Morgan, 536 U.S. at 117). Thus, although
plaintiff may not recover for "discrete acts" that occurred outside the limitations period, that
conduct is still relevant to his claims and is properly included in the Complaint.

IV.

Plaintiff's Title IX Claim is Dismissed
Title IX provides that "no person in the United States shall, on the basis of sex, be

excluded from participation in, be denied the benefits of, or be subjected to discrimination under
any education program or activity receiving Federal financial assistance." 20 U.S.C § 1681(a).
Plaintiff was an employee, not a student, of SUNY Optometry, and his claim is quintessentially
one for employment discrimination. Title VII imposes an administrative exhaustion requirement
that is absent from Title IX. As many courts have previously held, allowing employees to sue

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for discrimination under Title IX would enable many federal employees to bypass the remedial
process that Congress established under Title VII. Accordingly, I join many other courts in this
district, and hold that employment discrimination claims are not actionable under Title IX. See

Burrell v. City Univ. ofN. Y, 995 F. Supp. 398, 408 (S.D.N.Y. 1998) ("[T]he remedies of Title
IX are limited to student plaintiffs, and Title VII is meant to offer the exclusive remedy for
employment discrimination based on sex."); Lakoski v. James, 66 F.3d 751, 753 (5th Cir .. 1995)
("We are not persuaded that Congress intended that Title IX offer a bypass of the remedial
process of Title VII. We hold that Title VII provides the exclusive remedy for individuals
alleging employment discrimination on the basis of sex in federally funded educational
institutions."); Vega v. State Univ. of N. Y Bd. a/Trustees, 2000 WL 381430, at *3 (S.D.N.Y.
Apr. 13, 2000) ("This Court agrees with the Fifth Circuit and numerous district courts that have
held that Title VII provides the exclusive remedy for individuals alleging employment
discrimination on the basis of sex, and limiting money damages under Title IX to student
plaintiffs."). Defendant's motion to dismiss plaintiffs Title IX claim is granted.
CONCLUSION
For the reasons stated above, defendant's motion is granted in part and denied in
part. The clerk shall terminate the motion and the related letter-motion (Dkt. Nos. 27, 35).
Plaintiff shall file an amended complaint in accordance with this opinion by May
18, 2017, and defendant shall answer by May 29, 2017. A status conference will be held on June
16, 2017, at 10:00 a.m., at which the parties shall propose a discovery plan.
SO ORDERED.
Dated:

2,

2017
May
New York, New York
United States District Judge

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