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Borski v. Staten Island Rapid Transit

December 11, 2006


The opinion of the court was delivered by: Townes, United States District Judge


Plaintiff Wallace Borski ("Plaintiff" or "Borski") brings this action against Staten Island Rapid Transit Operating Authority ("SIRTOA" or "Defendant") alleging sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e) et seq., and New York State Executive Law § 296.*fn1 Defendant moves to dismiss Plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, Defendant's motion is granted in part and denied in part.


The following facts are drawn from Plaintiff's complaint and are deemed to be true for the purpose of this motion to dismiss. Wallace Borski, a man, was employed with SIRTOA as a Senior Sub-Station Maintainer. (Compl. ¶¶ 2, 15.) While employed with SIRTOA, Borski alleges that he "became the target of unwarranted and unwelcome sexual innuendoes." (Compl. ¶ 16.) Plaintiff also alleges that various "sexually explicit material was routinely passed around the Defendant's office." (Compl. ¶ 16.) According to Borski, his supervisor, Martin Gearns, "wrote derogatory, vile, and insulting material on company stationary and posted it on a bulletin board." (Compl. ¶ 18.) Plaintiff alleges that he "complained to Management regarding these various instances and advised Defendant of the harassment and discrimination he was routinely subjected to," but "Defendant failed to take any action with respect to Plaintiff's complaints." (Compl. ¶¶ 17, 19.) Plaintiff alleges that he then became the "victim of retaliation on a daily basis" due to his complaints to management. (Compl. ¶ 20.) Finally, Plaintiff alleges that "his work environment became so hostile and intolerable that Plaintiff was forced to resign from his position." (Compl. ¶ 21.) Plaintiff alleges that if Defendant had taken "action against the proper agents," the discriminatory treatment would have ceased. (Compl. ¶ 22.) Plaintiff alleges he was forced to retire on or about July 15, 2003. (Compl. ¶ 3.)

Plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC"), which was received on January 26, 2004, alleging claims of sex discrimination and retaliation.*fn2 (See Pl. EEOC charge.) In support of his claims, Plaintiff attached the allegedly "vile and insulting materials" to his EEOC charge. These materials consist primarily of a series of cartoons. Some are sexual in nature and include advertisements for sexually explicit DVDs and phone sex services. Others include magazine photos altered to portray enlarged body parts. Several of the cartoons make fun of the way that Mr. Borski dresses, including some that insinuate he wears women's clothes. Other cartoons appear to be mocking Mr. Borski for being stupid, lazy and an office gossip, while others appear to mock him for his ethnicity (Polish). Plaintiff received a Notice of Right to Sue from the EEOC on May 25, 2004, and filed the instant action in August 2004.


A. Legal Standard

On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept "as true the facts alleged in the complaint," Jackson Nat'l Life Ins. Co. v. Merrill Lynch & Co., Inc., 32 F.3d 697, 699 (2d Cir. 1994), and may grant the motion 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." Thomas v. City of New York, 143 F.3d 31, 36-37 (2d Cir. 1998) (citations omitted). The question for the Court "is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996) (internal quotation marks and citations omitted). All reasonable inferences are to be drawn in the plaintiff's favor. Shah v. Meeker, 435 F.3d 244, 248 (2d Cir. 2006).

While a plaintiff's allegations must provide the starting point for a Court's evaluation of a motion to dismiss, the Court may also consider documents attached to the complaint or incorporated by reference. See Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995). In addition, the Court may consider allegations made in the EEOC charge and supporting materials. See Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001) (noting that the court would treat plaintiff's allegations in her EEOC affidavit as an integral part of her pleadings); see also James v. Federal Reserve Bank of New York, No. 01-1106, 2005 WL 1889859, at *1 n.2 (E.D.N.Y. Aug. 8, 2005) (noting that the court may consider EEOC charge when deciding motion to dismiss).

B. Plaintiff's Sex Discrimination Claim

Title VII of the Civil Rights Act of 1964 provides, in relevant part, that "[i]t shall be an 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. . . sex." 42 U.S.C. § 2000e-2(a)(1).*fn3 In Meritor Savings Bank, FSB v. Vinson, the Supreme Court made plain that Title VII's prohibition of sex discrimination extends to sexual harassment.*fn4 477 U.S. 57, 63-68, 106 S.Ct. 2399, 91 L.Ed. 2d 49 (1986); see also Petrosino v. Bell Atlantic, 385 F.3d 210, 220 (2d Cir. 2004). To prevail on a claim of sexual harassment based on a hostile work environment, a plaintiff must establish: (1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of his or her work environment; and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer. Petrosino, 385 F.3d at 221.

In Oncale v. Sundowner Offshore Services, Inc., the Supreme Court held that sex discrimination consisting of same-sex harassment is actionable under Title VII. 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed. 2d 201 (1998). To show sex discrimination has occurred, a plaintiff alleging male-female or female-male harassment may take advantage of certain inferences which are not available in the same-sex context. Ciccotto v. LCOR, Inc., No. 99-11646, 2001 WL 514304, at *4 (S.D.N.Y Jan. 31, 2001). For example, where the challenged conduct involves explicit or implicit proposals of sexual activity, "it is reasonable to assume those proposals would not have been made to someone of the same sex." Id. (quoting Oncale, 523 U.S. at 81); see also Blozis v. Mike Raisor Ford, Inc., 896 F. Supp. 805, 807 (N.D. Ind. 1995) ("When a man touches a woman in a sexual manner, or asks her to have sexual relations with him, it can be assumed that he is doing so because she is a woman."). In same-sex harassment cases, however, similar inferences about a harasser's motivations may not be considered reasonable. See Oncale, 523 U.S. at 81 ("The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual.").

In Oncale, the Supreme Court suggested three evidentiary routes to prove gender-based discrimination in a same-sex harassment case: (1) evidence that the harasser is homosexual and that the harassment is motivated by sexual desire; (2) evidence that the harasser was motivated by general hostility to employees of victim's sex; (3) comparative evidence that the harasser treated employees of both sexes differently. Id. at 80-81. Regardless of what evidentiary route Plaintiff chooses, he must "prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted 'discrimina[tion] because of sex.'" Id. at 81 (emphasis in original) (ellipses omitted). In determining what is actionable under Title VII, the Supreme Court stressed the importance of distinguishing between harassment and discriminatory harassment in order to "ensure that Title VII does not become a general civility code." Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed. 2d 662 (1998)).

Reviewing the record and construing all inferences in Plaintiff's favor, there are no allegations in the complaint which, even if proven true, would support a conclusion that such behavior was motivated by Plaintiff's gender. Nothing in the complaint suggests that Borski's supervisor, Martin Gearns, is homosexual or motivated by sexual desire. None of Plaintiff's allegations suggest that any of the alleged conduct was motivated by hatred of men or general hostility towards men, or that the harassers ...

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