In Lorber v. Jacob Lew, No. 15-cv-9995, 2017 WL 633446 (S.D.N.Y. Feb. 15, 2017) (J. Kimba M. Wood), the court dismissed (for failure to state a claim under Fed. R. Civ. P. 12(b)(6)) plaintiff’s gender-based hostile work environment claim, but stayed its decision on defendant’s motion to dismiss plaintiff’s Title VII sexual orientation discrimination claim (which was based on nonconformity with male sex stereotypes).
As to plaintiff’s hostile work environment claim, Judge Wood explained:
Plaintiff’s claim is predicated on allegations that, over the course of several years, supervisors passed over him for promotions, gave him lower performance evaluations to prevent him from being promoted, intentionally excluded him from consideration for promotions, excluded him from meetings, ridiculed him or embarrassed him, gave him more menial tasks and less substantive work, and removed his insubordinates [sic?]. Although these are serious allegations, they do not amount to a hostile work environment, which requires that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. … Furthermore, Plaintiff has not alleged facts to suggest that many of these acts were motivated by his sex. Although Plaintiff pleads “[u]pon information and belief, similarly situated female employees” did not suffer the same hardships Plaintiff endured, he does not provide factual allegations that give plausible support to a minimal inference of discriminatory motivation. Plaintiff has failed to state a claim for hostile work environment.
As to plaintiff’s Title VII sexual orientation discrimination claim, while the court agreed with defendants “that Plaintiff fails to state a claim for discrimination based on noncomformity with male sex stereotypes”, it stayed the adjudication of this claim in light of two recent cases in which the Second Circuit heard argument on “the issue of whether Title VII protects against sexual orientation discrimination.”[1]Zarda v. Altitude Express, No. 15-3775 (2d Cir. argued Jan. 5, 2017); Christiansen v. Omnicom Group, Inc., et al., No. 16-748 (2d Cir. argued Jan. 20, 2017).
| ↩1 | Zarda v. Altitude Express, No. 15-3775 (2d Cir. argued Jan. 5, 2017); Christiansen v. Omnicom Group, Inc., et al., No. 16-748 (2d Cir. argued Jan. 20, 2017). |
|---|