2nd Circuit Rejects “Gender Stereotyping” Claim Asserted by Terminated Alleged Sexual Harasser

In Lorefice v. State of New York et al, 2022-2037-cv, 23 WL 7271838 (2d Cir. Nov. 3, 2023), the U.S. Court of Appeals for the Second Circuit affirmed the lower court’s decision granting defendants’ motion for judgment on the pleadings on plaintiff’s claim of gender discrimination under Title VII of the Civil Rights Act of 1964.

In this case, the plaintiff – who was terminated after being found by an arbitrator to have engaged in sexual harassment – alleged that said termination amounted to a violation of Title VII, reasoning, in sum, that his termination was “gender stereotypic” in that defendant “wanted ‘to show fake solidarity with the ‘me too’ movement.”

After summarizing the black-letter law, the court applied it to the facts as follows:

Lorefice did not plead any nonconclusory facts to support the claim that his termination was based on gender discrimination. He pointed to no statements, remarks, or even actions (besides his termination itself) that would indicate any person at the DEC was stereotyping him because of his gender. Nor does Lorefice allege that the arbitrator engaged in gender discrimination or stereotyping in recommending his termination. Lorefice argues that if the Court construes his complaint most favorably towards him, finding that the DEC had no valid grounds to terminate him, then the Court must conclude that the DEC engaged in gender stereotyping. Citing to the proposition that a woman can be fired for being too masculine or too feminine, Weinstock, 224 F.3d at 44–45, he contends that if he did not engage in sexual harassment, then the DEC “must have believed that a male who had a strong interest in a female he met at work was unfit to work … [because] he could not be trusted to … leave … his feelings of affection for her at the door.” Appellant’s Br. at 12–13.

Even assuming, arguendo, that Lorefice did not engage in sexual harassment, this does not give rise to an inference that he was terminated because of a gender stereotype. As the district court noted, Title VII does not “prohibit all arbitrary employment practices.” Lorefice, 2022 WL 3577102, at *5 (quoting Dollinger v. State Ins. Fund, 44 F. Supp. 2d 467, 475 (N.D.N.Y. 1999)). Lorefice does not cite to, nor are we aware of, any case law in which an employee’s termination due to an erroneous accusation of sexual harassment by itself gives rise to an inference of gender stereotyping. Moreover, this Court has held that when the plaintiff “has produced no substantial evidence from which we may plausibly infer that her alleged failure to conform her appearance to feminine stereotypes” was the reason for the adverse employment action against her, “her Title VII claim based upon a gender stereotyping theory must fail.” Dawson v. Bumble & Bumble, 398 F.3d 211, 222–23 (2d Cir. 2005), overruled on other grounds by Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018). Lorefice provides no factual support for the theory that Appellees either viewed him as an aggressive male or that this was the basis for his termination. Cf. Price Waterhouse, 490 U.S. at 235 (holding that gender stereotyping existed when supervisors stated plaintiff acted in a “macho” fashion and suggested that she should “walk more femininely”); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004) (noting “that stereotypical remarks about the incompatibility of motherhood and employment” provided evidence of gender stereotyping).

Additionally, Lorefice’s assertion that the DEC had no grounds to terminate him beyond gender stereotyping is belied by his own complaint, where he concedes he sent messages to DK proposing a life together, made her feel uncomfortable, and had previously engaged in similar behavior towards another coworker. This conduct itself provided reasons for the DEC to terminate Lorefice, independent of however the DEC may have viewed him in relation to his gender. Whether or not his actions amounted to sexual harassment is not for this Court to decide, as Title VII claims are not appropriately used to collaterally attack any adverse employment decision.

The court additionally held that the district court correctly concluded that granting plaintiff leave to amend his complaint would be futile.

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