OPINION AND ORDER
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 Com
BACKGROUND
A. Factual Background
In April 2011, Plaintiff Matthew Chris-tiansen 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 ¶ 80). Plaintiff is an openly gay man, and alleges that Cianciot-to subjected him to ridicule and abuse almost immediately due to Cianeiotto’s animosity toward homosexuals. (Id. at ¶2). Other employees had previously complained to Hempel, Brown, DDB, and Om-nicom about Cianciotto’s behavior, but “their 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 Plaintiffs 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 Plaintiffs 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
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.). Cian-ciotto 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,” 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 Hem-pel, 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 Plaintiffs 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 Plaintiffs resignation, which Plaintiff declined (id. at ¶ 58).
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.” (Fein-stein Deck 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 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 Plaintiffs NYSDHR complaint on March 24, 2015 (Feinstein Deck Ex. F); and on July 21, 2015, the NYSDHR notified the parties that Plaintiffs 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 plaintiffs] favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co.,
“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,
B. Plaintiff Has Adequately Pleaded That Omnicom Is His Employer
As an initial matter, Defendants contend that Plaintiffs claims against Om-nicom must fail because Omnicom is not Plaintiffs employer. (Def. Br. 21-22). Plaintiff responds that DDB and Omnicom are functionally a “single employer,” such that employment discrimination liability attaches to both entities. (PI. 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 Gulina v. N.Y. State Educ. Dep’t,
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.,
In the present matter, Plaintiff has alleged sufficient facts to support Omnicom’s employer liability for purposes of the instant motion. Plaintiff asserts that Omni-com “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 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,
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.,
“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,
“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,
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 HIV-positive status or the perception that he had AIDS. (Def. Br. 7-8).
The Court agrees with Defendants that Plaintiffs 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 Plaintiffs supervisor assuming that Plaintiff had AIDS because he is gay; in other words, they support Plaintiffs 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.,
The substantive deficiency in Plaintiffs 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,
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 Plaintiffs 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. Plaintiffs 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 Plaintiffs claim, or with an equivalent state or local agency within 300 days. Williams,
Plaintiffs 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
c. Even Were Plaintiffs 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 Plaintiffs now-abandoned theory of “constructive discharge” — Plaintiffs 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. (PI. Opp. 19). Plaintiffs 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,
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,
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].
Patane v. Clark,
The sum total of Plaintiffs 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 Plaintiffs 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).
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 Plaintiffs employment.
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 Plaintiffs asserted disability. See, e.g., Marini v. Costco Wholesale Corp.,
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,
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. 17-19). Defendants argue in response that Plaintiffs 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 2015; and working continuously for DDB during the period from April 2011 to the present. (Def. Reply 6). Regarding notice of Plaintiffs 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.,
As for Plaintiffs 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,
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.”
As noted supra, Plaintiff has abandoned his assertion of disability-based constructive discharge. (Lask Deck ¶ 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 “requested] 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).
For all of these reasons, even had Plaintiffs 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.
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.,
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,
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,
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,
2. Analysis
a. Plaintiffs 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 Cian-ciotto, Hempel, and Brown, such claims must fail on the grounds that Title VII does not provide for individual liability. See Tomka v. Seiler Corp.,
b. Plaintiffs 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 Plaintiffs 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 Plaintiffs 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. (PI. Opp. 12-14; see also FAC 19 (titling Plaintiffs 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.
In Simonton v. Runyon,
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, — U.S. -,
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 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,
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., Daivson,
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 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 Simon-ton Court intended to avoid. See, e.g., Kristin M. Bovalino, How the Effeminate Male Can Maximize His Odds of Winning Title VII Litigation, 53 SyRACüse 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,
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
In his opposition brief, Plaintiff contends that Cianciotto “abused him because of his effeminate characteristics.” (PI. Opp. 14). Were that so, Plaintiff could likely state a cognizable Title VII claim under Second Circuit law; Plaintiffs pleadings fail, however, to support an inference of discrimination based on a perception that he was overly effeminate. Plaintiffs 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 — Plaintiffs use of quotation marks around “poof’ notwithstanding — no such name-calling is attributed to Cianciot-to in the FAC. (PI. Opp. 14). Rather, the terms “bottom” and “poof’ refer to Plaintiffs 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 Cian-ciotto 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),
While Plaintiff provides virtually no support in his FAC for an allegation of discrimination based on sexual stereotyping, he provides multiple illustrations of Cian-ciotto’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 Cian-ciotto’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 Cianciot-to’s actions, as it does indeed place Plaintiffs face on a woman’s body, perhaps thereby implying that Plaintiff is effeminate. The Court must, however, consider Plaintiffs 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 suggest that Cian-ciotto’s behavior arose from a perception
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,
F. The Court Declines to Exercise Supplemental Jurisdiction Over Plaintiffs 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 exercise supplemental jurisdiction over the plaintiffs remaining state-law claims. 28 U.S.C. § 1367(c)(3). “[I]n the usual ease 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.,
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 Plaintiffs federal-law claims; the early stage of the litigation; and the multiple issues of state law implicated by Plaintiffs remaining claims, the Court declines to exercise supplemental jurisdiction over these non-federal causes of action. See, e.g., Vuona v. Merrill Lynch & Co.,
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.
Notes
. The majority of the facts contained in this Opinion are drawn from Plaintiffs FAC (Dkt. #4), and are taken as true for purposes of this motion. See Faber v. Metro. Life Ins. Co.,
. 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 Chris-tiansen in 2014.” (PL Opp. 2).'
. 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,
. Defendants additionally argue that Plaintiff has failed to exhaust his remedies against Omnicom because Plaintiff did not name Om-nicom 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 V 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 Omni-com (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.
. 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.
. 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 environ
. In alleging that "Cianciotto targeted him as having AIDS ... because he was gay” (FAC V 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 Plaintiffs 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.
. 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,
. 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.
