The opinion of the court was delivered by: Wexler, District Judge.
Plaintiff, a former employee of the United States Postal
Service, commenced this case alleging discrimination in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
("Title VII"). Plaintiff's claim of a hostile work environment
stems from treatment he allegedly received from co-workers and
supervisors based upon the fact that plaintiff is a homosexual.
Defendants move to dismiss the complaint on the ground that Title
VII does not prevent harassment or discrimination based upon
sexual orientation. According to defendants, discrimination based
upon sexual orientation is not discrimination "based upon sex,"
and therefore, does not state a claim under Title VII.
While the court finds that the conduct alleged, if true, is
offensive and unsuitable for any workplace, the court is
constrained by precedent on this issue. That precedent refuses to
extend the protection of Title VII to the circumstances present
here. Accordingly, for the reasons set forth below, the court
grants defendants' motion to dismiss.
I. The Allegations Of The Complaint
Plaintiff is a male homosexual who was employed as a postal
worker at the Farmingdale, New York, Post Office from
approximately 1984 until 1995. Plaintiff alleges that beginning
in 1987, he became subject to ridicule, harassment and disparate
treatment based upon his sexual orientation. Plaintiff alleges,
inter alia, that he was targeted for fictitious infractions and
exposed to incessant threats, obscenity and nasty letters that
referred to plaintiff's sexual homosexuality. Plaintiff also
alleges that he was subject to physical assaults between July of
1994 and May of 1995. This abusive and hostile work environment
is alleged to have caused plaintiff to suffer a heart attack and
As noted above, defendants move to dismiss the complaint for
failure to state a claim. Defendants argue that discrimination
based upon sexual orientation is not discrimination "based upon
sex" and therefore does not state a claim pursuant to Title VII.
This motion was originally presented prior to the decision of the
Supreme Court in Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). After an
attempt at mediation of this matter failed, the motion was
renewed. With the principles announced in Oncale in mind, the
court turns to the merits of defendants' motion.
Defendants' motion is made in the context of a motion to
dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. A motion to dismiss is properly granted only if "it
appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief."
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957); Harsco v. Segui, 91 F.3d 337, 341 (2d Cir. 1996);
Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). When
considering a motion to dismiss for failure to state a claim, the
court can consider only the facts as set forth in the complaint
or documents attached thereto. When considering the facts pled,
the court must accept as true all factual allegations in the
complaint. All reasonable inferences must be drawn in favor of
the non-moving party. Hamilton Chapter of Alpha Delta Phi, Inc.
v. Hamilton College, 128 F.3d 59, 62 (2d Cir. 1997). A complaint
should not be dismissed "simply because a plaintiff is unlikely
to succeed on the merits." Scheuer v. Rhodes, 416 U.S. 232,
236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).
II. Title VII and Claims of Discrimination Based Upon Sexual
Title VII prohibits both "quid pro quo" and "hostile
environment" sexual harassment. The former occurs when an
employee refuses to submit to an employer's sexual demands. The
latter exists when an employer's conduct unreasonably interferes
with an individual's work performance or creates an
"intimidating, hostile, or offensive working environment."
Carrero v. New York City Housing Authority, 890 F.2d 569, 577
(2d Cir. ...