The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
Plaintiff Paul Foray ("Foray") alleges that an employee
benefits policy designed to provide certain employees in same-sex
relationships with coverage equivalent to that enjoyed by married
employees is, notwithstanding its good intentions, actually
unlawful discrimination against him on the basis of sex.
Defendant NYNEX*fn1 moves pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure to dismiss the complaint for
failure to state a claim.
A motion to dismiss may be granted only if "it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claims which would entitle him to relief." See Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957);
accord Branham v. Meachum, 77 F.3d 626, 628 (2d Cir. 1996). When
passing on a motion to dismiss, the court must accept the
allegations in the complaint as true and construe them in favor
of the pleader. See Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct.
1079, 31 L.Ed.2d 263 (1972) (per curiam); accord Branham, 77 F.3d
In January 1996, NYNEX instituted a new employee benefits plan.
The benefits plan listed as an "eligible dependent" any
employee's "same-sex domestic partner." These same-sex domestic
partners could receive medical, dental and vision care coverage
from NYNEX. Other benefits under this policy included beneficiary
designations, leaves, relocation, life insurance and adoption
reimbursement. (Compl.¶ 10.) Plaintiff Foray is a male
employee of NYNEX who is unmarried, but who cohabits with his
female domestic partner, Jeanine Muntzner. (Id. ¶¶ 3-5.)
Subsequent to the implementation of the benefits plan, Foray
submitted a formal request that NYNEX add Ms. Muntzner to the
benefits plan. NYNEX denied this request. (Id. ¶ 11.) On June
10, 1997, NYNEX advised Foray by letter that his opposite-sex
domestic partner did not meet the eligibility criteria to qualify
as a Domestic Partner. (Id. ¶ 12; Def.'s Mem.
in Supp., Ex. B.) The letter stated: "Under U.S. law same-sex
domestic partners cannot marry, while opposite sex partners can.
In view of this, coverage for Domestic Partners is offered only
to same sex domestic partners, not to heterosexual partnerships."
(Compl. ¶ 12; Def.'s Mem. in Supp., Ex. B.)
In October 1997, Foray filed a complaint against NYNEX in
Supreme Court, New York County, claiming NYNEX's denial of his
request constituted discrimination against him on the basis of
his sexual orientation and marital status in violation of New
York State and New York City law, N.Y. Exec. Law § 296(1) et
seq. and N.Y.C. Admin. Code § 8-101 et seq. (Def.'s Mem. in
Supp., Ex. B.) NYNEX removed the case to federal district court
pursuant to 28 U.S.C. § 1441 on the basis that Foray's claims
related to the administration of an employee benefit plan and
were preempted by the Employee Retirement Income Security Act
("ERISA"), 29 U.S.C. § 1001 et seq. Before NYNEX filed an
answer, plaintiff filed a motion for voluntary dismissal pursuant
to Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure. The
motion was granted and the case was dismissed without prejudice
on November 27, 1997.
On November 13, 1997, Foray filed a charge of discrimination
based on sex with the Equal Employment Opportunity Commission
(the "EEOC"). (Compl. ¶ 6 & Ex. A.) Foray received from the
EEOC a right to sue letter dated February 19, 1998 (id. ¶ 6 &
Ex. A), and filed the present action on May 18, 1998. The
complaint alleges that the NYNEX benefits policy violates Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et
seq., and the Equal Pay Act, 29 U.S.C. § 206(d), 215a(1)-(2).
Foray states in his complaint that he meets all of the criteria
for receiving benefits under domestic partner provision of the
NYNEX benefits plan except that he is male and his partner is
female. (Compl.¶ 13.) The complaint alleges that NYNEX has
discriminated against him because "all things being equal, if
Foray's gender were female, he would be entitled to claim his
domestic partner as an eligible dependent under the benefits
plan." (Id. 14.)*fn2
Plaintiff's chief argument, that "but for" his sex, he would
not have been discriminated against, is supported by legal
theorists and a decision in a different context by the Hawaii
Supreme Court. See Baehr v. Lewin 74 Haw. 530, 74 Haw. 645,
852 P.2d 44, 60 (1993) (holding that Hawaii's refusal to marry
same-sex couples constitutes discrimination "because of . . . sex"
under Equal Protection Clause of Hawaii Constitution because it
depends on sex of marriage applicant); Andrew Koppelman, Why
Discrimination Against Lesbians and Gay Men is Sex
Discrimination, 69 N.Y.U. L.Rev. 197, 208 (1994); Samuel A.
Marcosson, Harassment on the Basis of Sexual Orientation: A Claim
of Sex Discrimination Under Title VII, 81 Geo. L.J. 1, 3-4
(1992). But see Cleaves v. City of Chicago, 21 F. Supp.2d 858, 861
(N.D.Ill. 1998) (rejecting claim that employee benefits plan
covering spouses and unmarried homosexual partners, but not
unmarried heterosexual partners, constitutes sex discrimination
in violation of Title VII).
To establish discrimination under Title VII, plaintiff must
show that he was treated differently from "similarly situated"
persons of the opposite sex. See Shumway v. United Parcel Serv.,
Inc., 118 F.3d 60, 64 (2d Cir. 1997); DeCintio v. Westchester
County Med. Ctr., 807 F.2d 304, 306 (2d Cir. 1986), cert. denied,
484 U.S. 825, 108 S.Ct. 89, 98 L.Ed.2d 50 (1987). "To be
`similarly situated,' the
individuals with whom [plaintiff] attempts to compare [him]self
must be similarly situated in all material respects." Shumway,
118 F.3d at 64. Plaintiff's claim that he was treated differently
from similarly situated persons of the opposite sex depends on
the assumption that a similarly situated woman is one who has a
female domestic partner. However, a woman with a female domestic
partner is differently situated from plaintiff in material
respects because under current law, she, unlike plaintiff, is
unable to marry her partner. See In re Cooper, 187 A.D.2d 128,
592 N.Y.S.2d 797 (2d Dep't 1993) (upholding as constitutional New
York State's denial of marriage licenses to same-sex partners). A
woman and her same-sex domestic partner, unlike plaintiff and Ms.
Muntzner, will never be eligible for a host of benefits available
to opposite-sex couples who are able to marry. Among such
benefits, of course, are those extended to married couples under
defendant's employee benefits plan. This difference in the
ability to marry, which does not bear on the quality or stability
of the relationship, is material in the context of a compensation
plan which grants benefits to employees' chosen partners. NYNEX's
policy of distinguishing between unmarried opposite-sex couples
and unmarried same-sex couples reflects and remedies differences
between these persons which are material in this particular
context, and does not discriminate between similarly situated men
Plaintiff's claim under the Equal Pay Act is deficient for the
same reason. The Equal Pay Act prohibits an employer from
discriminating "between employees on the basis of sex by paying
wages to employees . . . at a rate less than the rate at which he pays
wages to employees of the opposite sex . . . for equal work on
jobs the performance of which requires equal skill, effort, and
responsibility, and which are performed under similar working
conditions." 29 U.S.C. § 206(d)(1). As with plaintiff's Title
VII claim, plaintiff has not been treated differently from a
woman with an opposite-sex partner, and there is no rea son to
conclude that plaintiff has been treated differently from an
unmarried woman with a female domestic partner "on the basis of
sex," instead of on the basis of his ability to marry.
Plaintiff's Equal Pay Act claim, like his Title VII claim, must
fail. Cf. DeCintio v. Westchester County Med. Ctr., 807 F.2d 304,
308 (2d Cir. 1986), cert. denied, 484 U.S. 825, 108 S.Ct. 89, 98
L.Ed.2d 50 (1987) (applying same analysis under Title VII and
Equal Pay Act to determine whether discrimination was on basis of
Defendant's motion is granted. The Clerk of the Court shall
enter judgment dismissing plaintiff's complaint in its entirety.