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Lueck v. Progressive Insurance

October 19, 2009

JOHN LUECK, PLAINTIFF,
v.
PROGRESSIVE INSURANCE, INC., TIMOTHY FRITZ, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION and ORDER

INTRODUCTION

Plaintiff John Lueck ("plaintiff") commenced this action against Progressive Insurance Company ("Progressive") incorrectly name Progressive Insurance, Inc. and Timothy Fritz ("Fritz") collectively ("defendants"), seeking damages against defendants for gender based discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to e-17 ("Title VII"), and the New York State Executive Law, Human Rights Law §290 et seq. ("NYSHRL"). Specifically, plaintiff claims that he was subjected to a hostile work environment while employed by Progressive as a result of a single e-mail he received from Fritz. In addition, plaintiff also asserts common law causes of action including negligence and negligent infliction of emotional distress based on the same incident.

The defendants move for dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) contending that

(1) plaintiff has failed to allege misconduct sufficiently severe to constitute unlawful same-sex sexual harassment under Title VII and the NYSHRL and (2) plaintiff's negligence claims are barred by the New York Worker's Compensation Law. Plaintiff has not opposed defendants' motion. For the reasons set forth below, defendants' motion to dismiss is granted.

BACKGROUND

Unless otherwise noted, the following facts are taken from plaintiff's Complaint, including documents and attachments incorporated by reference or upon which plaintiff relied in drafting the Complaint. Plaintiff, a male, was employed by Progressive since April 1996 and for the last eight years has held the title of Sr. Claims Investigator. See Complaint ("Comp."), ¶¶12-13. On September 4, 2008, plaintiff received an e-mail from Fritz, a member of Progressive's management team. The e-mail, carrying the subject line "motorcycle crash" provided as follows: "Boys, check this out. Turn up your speakers so you can hear it -- be careful as it could happen to you. Ride safe!" See id., ¶¶18-21; see also Affidavit of Veronica M. Buttacavoli ("Buttacavoli Aff."), Ex. A. The attachment to the e-mail was a file that when opened depicts several pairs of clothed men kissing. See Buttacavoli Aff., Ex. A. Moreover, the attachment includes an audio stating "I am watching gay porn." See id. Plaintiff claims he reported the matter to Dennis Charlebois, another member of Progressive's management team, See Comp., ¶24. On September 26, 2008, Veronica M. Buttacavoli, Senior Human Resources Manager, received an e-mail from plaintiff complaining of an e-mail plaintiff received from Fritz on September 4, 2008.

Plaintiff filed a Charge of Discrimination with the New York State Division of Human Rights ("SDHR") and the Equal Employment Opportunity Commission ("EEOC") on October 29, 2008 alleging that he received a sexually offensive e-mail on September 4, 2008 and was subjected to hostile work environment. See Comp., Ex. A. Both the SDHR and the EEOC issued a Dismissal and Notice of Rights on January 12, 2009, dismissing plaintiff's charge and finding that it is unable to conclude that defendant's conduct violated state or federal law. See id., Ex. B. On April 15, 2009, plaintiff commenced the instant action against the defendants by filing the Complaint and alleging that he was the victim of same-sex harassment that created a hostile work environment when he received a single e-mail from defendant Fritz in violation of Title VII and NYSHRL. Plaintiff also alleged a violation of 42 U.S.C. §1981 and asserted claims of common law negligence and negligent infliction of emotional distress. The defendants responded by filing the instant motion to dismiss.

DISCUSSION

I. Standard of Review Under Rule 12(b)(6)

To withstand a motion to dismiss under Rule 12(b)(6), a complaint must plead facts sufficient "to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 127 S.Ct. 1955, 1974 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949 (2009) (reversing the Second Circuit's decision in Iqbal v. Hasty, 490 F.3d 143 (2d Cir.2007)). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. Thus, "[w]here a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (internal citations and quotations omitted).

Examining whether a complaint states a plausible claim for relief is "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. "But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," a complaint fails to state a claim. Id. The plaintiff's factual allegations, in short, must show that the plaintiff's claim is "plausible," not merely "conceivable." Id. at 1951. In applying the plausibility standard set forth in Twombly and Iqbal, a court "assume[s] the veracity" only of "well-pleaded factual allegations," and draws all reasonable inferences from such allegations in the plaintiff's favor. Id. at 1950. Pleadings that "are no more than conclusions," however, "are not entitled to the assumption of truth." Id.*fn1

II. Hostile Work Environment Claims Under Title VII & NYSHRL

Defendants move to dismiss plaintiff's complaint on the ground that he has failed to state a claim for employment discrimination.*fn2 The complaint alleges that plaintiff was the victim of same-sex harassment that created a hostile work environment when he received a single e-mail ...


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