Labor & Employment Law Daily Pornographic emails targeted gay employee; post-Zarda Title VII hostile environment claim proceeds
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Monday, October 15, 2018

Pornographic emails targeted gay employee; post-Zarda Title VII hostile environment claim proceeds

By Lorene D. Park, J.D.

On remand from the Second Circuit, a federal court in New York granted an employee leave to amend his complaint to assert a sex-based hostile work environment claim under Title VII, finding it plausible based largely on his contention that he received unwanted emails having to do with his sexual orientation that included nude men and derogatory representations of gay men and sex. On one occasion, in front of a colleague, the employee opened what he thought was an email containing work material, but it had a nude male graphic and an audio began playing. To the court, it was plausible this permanently altered his status in the workplace. The employee’s discrimination and retaliation claims failed, though, for lack of related adverse employment actions (Dollinger v. New York State Insurance Fund, October 9, 2018, D’Agostino, M.).

The employee worked for the New York State Insurance Fund (NYSIF) for 28 years. While there, he allegedly experienced discrimination and a hostile work environment based on his sexual orientation and disability. He was denied promotions to management positions, and he allegedly received unwanted emails involving sexual pictures of men and derogatory stereotype character representations of gay men and unsafe sex. For example, emails included an image entitled “Gay Terrorist” and depicted a man dressed as a woman, and the words “NO AIDS” with a symbolic male figure engaging in unsafe sex and a line drawn through it.

The employee complained of discrimination and allegedly experienced retaliation thereafter, including threats of discipline and of violence. And according to his court filings, as of March 2018 one of the individual defendants has continued to have negative interactions with him, including entering his personal space, acting aggressively, slamming doors, and engaging in behavior that the employee described as stalking.

Prior proceedings. He filed suit bringing claims under the ADA and Title VII. In 2015, the district court dismissed his Title VII claims because, at the time, the Second Circuit did not recognize sexual orientation as a protected class under Title VII. He filed a second amended complaint and in a November 2016 opinion, the court granted judgment on the pleadings for NYSIF, explaining that being in a group associated with a high risk of HIV/AIDS does not establish coverage by either the ADA or the Rehab Act. The employee appealed, and the Second Circuit reversed in part in February 2018. It affirmed dismissal of the ADA and Rehab Act claims for the same reasons as the lower court. However, the Second Circuit remanded for further consideration of the Title VII claims in light of its decision in Zarda v. Altitude Express, Inc., which held that sexual orientation discrimination is prohibited by Title VII.

Pending motions. Before the court was the employee’s motion to amend and his proposed third amended complaint alleging sex discrimination, hostile work environment, and retaliation claims against the NYSIF and two individual defendants in their official capacities. The amendment also made some changes to the factual narrative. The defendants filed motions to dismiss and for judgment on the pleadings.

No Title VII claims against individuals. Granting the defendants’ motion in part, the court found it well established that individuals are not subject to liability under Title VII so the claims against the individual defendants failed.

No adverse action to support discrimination claim. The defendants’ motion was also granted with respect to the employee’s Title VII discrimination claim because, “[a]side from entirely conclusory allegations, [his] proposed third amended complaint fails to plausibly allege that he suffered an adverse employment action because of his sexual orientation.” He alleged, with respect to the management positions for which he applied, that he was rejected because another candidate emailed “false negative information” about him to supervisors. He did not claim that this email contained any information about his sexual orientation; rather, the email stated he had been disciplined for photographing women and was the subject of a domestic violence complaint by a nephew. For this reason, and because his other allegations alleged no pecuniary or tangible harm, the Title VII discrimination claim failed, and he was denied leave to amend.

Title VII retaliation claim fails too. With respect to his retaliation claim, the employee did not complain of discrimination until August 14, 2013, so all allegations occurring before then would not be causally connected to his complaint, including his non-promotion claim. And in the court’s view, none of the actions allegedly taken after August 14, 2013, could constitute a retaliatory adverse employment action. He claimed that the grievance process was defective and that three investigators refused to interview his witnesses, but an ineffective investigation process is not an adverse action absent adverse job consequences, explained the court.

Hostile work environment claim proceeds. Ultimately, the only Title VII claim that the court found plausibly alleged by the employee was his sex-based hostile work environment claim. He allegedly received unwanted emails that contained “sexual pictures of men” and “derogatory . . . representations of gay men and sex.” One email, having the image captioned “NO AIDS,” was particularly troubling to the court: “The image is both lewd and hostile to Plaintiff’s identity at the same time.” He also was allegedly sent images of nude men and on one occasion, in front of a colleague, he opened an email that was supposed to contain work material but instead it had a nude male graphic and an audio began playing. He claimed he felt degraded, humiliated, and fearful for his job as a result of this incident and it was plausible to the court that such an incident could permanently alter his status in the workplace.

Though the defendants claimed the incidents did not rise to the pervasive severity required to establish a hostile work environment claim, the court disagreed. Unlike the cases cited by the defense, the employee here was the intended recipient and target of the pornography because of his sexual orientation and his complaint suggested the events occurred more frequently than the few specific examples provided. Consequently, the employee was granted leave to file a third amended complaint asserting a Title VII hostile work environment claim.

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