did not meet stereotypical expectations of masculinity.'"
(quoting Higgins, 194 F.3d at 261 n. 4)).
The Second Circuit has not ruled squarely on this issue. However, in
Simonton the Circuit Court acknowledged that Price Waterhouse "implied
that a suit alleging harassment or disparate treatment based upon
nonconformity with sexual stereotypes is cognizable under Title VII as
discrimination because of sex." 232 F.3d at 38. The Simonton panel
nonetheless declined to reach the merits of the issue because the
plaintiff there had failed to plead sufficient facts to support proper
consideration of the claim. See id.
Other courts have held that sexual stereotyping discrimination is
prohibited by Title VII and thus cognizable as a distinct basis for
relief. See Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874 (9th
Cir. 2001); Centola v. Potter, 183 F. Supp.2d 403, 408-409 (D.Mass.
2002); Ianetta v. Putnam Invest., Inc., 142 F. Supp.2d 131, 134 (D.Mass.
2001); see also Bibby, 260 F.3d at 262-63 (discussing the theory as a
plausible basis for stating a Title VII claim without specifically ruling
on it); Higgins, 194 F.3d at 259-60 (same); Doe v. City of Belleville,
119 F.3d 563, 580-81 (7th Cir. 1997), vacated and remanded on other
grounds, 523 U.S. 1001 (1998).
This Court need not reach the merits of the issue the Simonton Court
left open as to whether a sexual stereotyping action is cognizable in
this Circuit. For the purposes of addressing Dawson's arguments on the
motion at hand, the Court, following the implications of Simonton and
related precedents from other Circuits, accepts that a female, whether or
not she also happens to be a lesbian, could state a sufficient Title VII
claim if the evidence establishes that she suffered an adverse employment
action "because of sex" in that she was perceived as not conforming to
stereotypical images and expectations of how a woman should or should not
look like or behave.
However, even assuming that sex stereotyping may give rise to a
cognizable sex discrimination action, Dawson's claim is unavailing. For,
"[r]emarks at work that are based on sex-stereotypes do not inevitably
prove that gender played a part in a particular employment decision. The
plaintiff must show that the employer actually relied on [the plaintiff's]
gender in making its decision." Price Waterhouse, 490 U.S. at 251.
Here, a close probing of the evidence on the record indicates that what
Dawson's theory seeks to do is to "bootstrap protection for sexual
orientation into Title VII . . ." under the guise of sexual
stereotyping. Simonton, 232 F.3d at 38; see also Oiler v. Winn-Dixie
Louisiana, Inc., No. Civ. A. 00-3114, 2002 WL 31098541, at *8 (E.D.La.
September 16, 2002) (rejecting a cross-dresser's claim of discriminatory
discharge for failure to conform to gender stereotype where the evidence
failed to establish that plaintiff was discriminated against because he
was perceived as being insufficiently masculine); Trigg v. New York City
Transit Auth., No. 99 Civ. 4730, 2001 WL 868336, at *6 (E.D.N.Y. July
26, 2001) (noting that plaintiff's words and his own perception of the
import of the alleged harasser's taunts "compel the conclusion that
sexual orientation and not gender stereotyping are the sine qua non of
his grievance."); Bianchi v. City of Philadelphia, 183 F. Supp.2d 726,
736-37 (E.D.Pa. 2002) (finding inference of sex discrimination in
allegations of stereotyping "too attenuated" to meet plaintiff's burden
on a summary judgment motion).
Ordinarily, in considering a motion for summary judgment, the Court is
to resolve ambiguities and draw reasonable inferences in favor of
the non-movant. See Anderson, 477 U.S. at 255. Here, however, the Court
does not deem the parties' disagreement over Dawson's statement of the
basis for her sexual discrimination claim to concern a mere textual
ambiguity in the drafting of the Complaint, nor a clear misunderstanding
regarding its meaning. Rather, Dawson's purported clarification
effectively endeavors to rewrite or amend the Complaint through her
opposition brief, a procedure not permitted by the Federal Rules. See
Fed.R.Civ.P. 8(a) and (e); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
1988); Marinelli v. Chao, 222 F. Supp.2d 402, 406-407 (S.D.N.Y. 2002).
Several considerations support this conclusion.
First, the term "lesbian female" as employed in paragraph 7 of the
Complaint is redundant. If Dawson there sought to refer to the basis of
her grievance as resting on her sexual status as a woman in the
biological sense, rather than more fundamentally on her sexual
orientation, there was no need to modify the word "female" with the
preceding adjectival use of "lesbian". (Compl. ¶ 7.) Second, Dawson
ignores the repetition of the exact quote in paragraph 14 of the
Complaint, where she alleges: "Dawson was denied promotional
opportunities because she was a lesbian who did not conform to gender
norms. (Compl. ¶ 14.)
Third, the wording of the portion of paragraph 7 that specifies the
manner in which Dawson does not conform to gender norms reflects that the
primary focus of her charge is on her sexual status as a lesbian rather
than as a biological female. In particular, the elaboration asserts that
Dawson is a lesbian female who "does not meet stereotyped expectations of
femininity" and may be perceived as "more masculine" than a stereotypical
woman. However, other than her own self-portrait as not meeting
stereotyped impressions and expectations of femininity and her subjective
characterization that she "may" be perceived as more masculine than
feminine, Dawson presents no competent evidence of comments or actions
suggesting that any decision-makers at the Salon had any such
perceptions, expectations or demands of her as a woman. Such evidence as
Dawson does present, in this Court's assessment, is either vague,
gender-neutral, or evinces perceptions grounded on Dawson's sexual
orientation rather than her gender.
Moreover, the interpretation of the theory that Dawson urges would
imply that the Salon discriminated against all women employees who did
not conform to gender norms, a proposition that is not only contradicted
by Dawson's own statements and not borne out by any other substantial
evidence in the record, but that also conflicts with the thrust of
Dawson's claim, which does not assert that Dawson deviated from gender
norms as a straight woman, but as a lesbian.
Fourth, throughout the balance of the Complaint, Dawson's point of
reference in conveying how she was treated less favorably than other
assistants at the Salon — in being denied promotion to stylist and
participation in advanced and editorial styling classes — is not to
the other co-workers strictly as males and females, but to "similarly
situated heterosexuals" who conformed to gender norms. (See, e.g.,
Compl. ¶¶ 14, 15, 16, 19.) The word "heterosexual" does not connote
sex in an existential sense of being biologically male or female, but
rather defines a particular individual preference in sexual orientation
and affiliations. See Merriam-Webster's Collegiate Dictionary 545 (10th
ed. 1998) ("1a: of, relating to, or characterized by a tendency to direct
sexual desire toward the opposite sex").
Dawson's belated effort to reform her Complaint by interpretation at
this point is similarly undermined or belied by her own numerous direct
reiterations and reaffirmations of her focus on discrimination as a
lesbian and the meaning of her statement that is unambiguously expressed
throughout her deposition. See Raskin, 125 F.3d at 63 (rejecting
plaintiff's effort to create factual issue by contradicting assertions in
prior deposition testimony). Repeatedly and consistently, in her testimony
explaining the basis for her sexual discrimination claims, Dawson
describes the grounds to be both that she was a lesbian and that she was
a "lesbian who did not conform to gender norms." (Dawson Dep., at 185,
383, 395-96, 495-96.) Only tangentially does she allude to being treated
disparately as a female in relation to males at the Salon. As to these
assertions, as more fully discussed below, Dawson's claim is either
inconsistent with other testimony, integrally connected with her chosen
sexual status and charges grounded on sexual orientation, or
insufficiently supported by the evidence to sustain a reasonable
determination of gender discrimination.
Dawson concedes explicitly in her deposition that her sex
discrimination claim rests exclusively on the two grounds expressed
above, as distinct from disparate treatment on the basis of her
biological sex. For example, when asked pointedly whether there was
anything else she would add, as other reasons for being discriminated
against, to the two separate grounds she had already articulated —
her being a lesbian and a lesbian who "looks a certain way" —
Dawson responded: "No." (Dawson Dep. at 185-86.) Pressed for elaboration
at a later point as to which grounds she contends constituted Bumble's
basis for unlawful discrimination, she answered: "Both," again expressly
referring only to her being a lesbian and a lesbian who did not conform
to gender norms. In the same colloquy, the following exchange, which is
already cited above but bears repetition, ensued:
Q. I'm asking you whether it's your view that you were
discriminated against simply because you were a
lesbian or whether being a lesbian would have been
okay, it was being a lesbian combined with not
conforming to gender norms that caused a problem?
A. Yes, the latter answer.
Q. Is it your view that it's okay to be a gay male at
the salon as long as you appear to be like a