United States District Court, N.D. New York
ROBERT A. DOLLINGER, Plaintiff,
NEW YORK STATE INSURANCE FUND, Defendant.
ROBERT A. DOLLINGER Vestal, New York Plaintiff, pro se.
JOSHUA L. FARRELL, ESQ., OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL, Albany, New York, Attorneys for Defendant.
MEMORANDUM-DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
Pro se plaintiff, Robert Dollinger, brought this action against his employer, New York State Insurance Fund ("NYSIF"), alleging discrimination, retaliation, and hostile work environment based on his disability in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Americans with Disabilities Act ("ADA"). See Dkt. No. 1. Defendant filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 5-1. Plaintiff responded, filed a cross-motion to amend his complaint, and submitted a proposed amended complaint in support of his motion. See Dkt. No. 8-1. In the amended complaint, Plaintiff alleges discrimination, retaliation, and hostile work environment based on his sex and disability. See Dkt. No. 8-1 at 2. Currently before the Court is Defendant's motion to dismiss Plaintiff's original complaint for failure to state a claim, as well as Plaintiff's motion to amend the complaint.
A. Plaintiff's Original Complaint
Plaintiff commenced this action on July 23, 2014, alleging discrimination based on his disability, through Defendant's failure to promote him, unequal terms and conditions of employment, and retaliation. See Dkt. No. 1. Plaintiff alleges that he is being discriminated against because "[Plaintiff belongs] to a group associated with high risk for HIV/AIDS, homosexual men living with HIV/AIDS." See Dkt. No. 1 at 3. Further, Plaintiff contends that he has been "subjected to unwanted comments, received adverse personnel actions, and [has] been subjected to this hostile... work environment because of [his] disability." See id. In regards to retaliation, Plaintiff alleges that he was retaliated against for his participation in a 2012 New York State Division of Human Rights proceeding in which a Sex Discrimination Complaint was maliciously filed against Plaintiff. See id. During a review for promotion, "elements of [Plaintiff's] personal life were disseminated in the workplace, " and a "tyrannical atmosphere has been established" as a result of Defendant's actions. See id. Plaintiff concludes that Defendant has willfully acted in violation of Title VII and the ADA. See id.
Plaintiff filed charges with the Equal Employment Opportunity Commission ("EEOC") regarding the alleged discriminatory acts on June 7, 2014. See id. at 4. The EEOC issued a Notice-of-Right-to-Sue letter on June 25, 2014. See id. The letter issued by the EEOC declared "[b]ased on its investigation, the EEOC is unable to conclude that the information obtained establishes violation of the statutes... No finding is made as to any other issues that might be construed as having been raised by this charge." See id. at 6.
B. Defendant's 12(b)(6) Motion to Dismiss
On August 13, 2014, Defendant filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that "Plaintiff's complaint states no facts to establish a plausible [Title VII] or [ADA] claim." See Dkt. No. 5-1 at 3. Defendant argues that Plaintiff failed to establish a retaliation claim under the ADA and Title VII because he alleges no facts necessary to meet any of the elements of a retaliation claim. See Dkt. No. 5-1 at 5-6. Further, Defendant argues that Plaintiff's discrimination claim under Title VII must fail because sexual orientation is not a protected class under Title VII, and Plaintiff's claim under the ADA must fail mainly because Plaintiff has not alleged an adverse employment action. See Dkt. No. 5-1 at 6-8. Finally, Defendant argues that Plaintiff's hostile work environment claim must be dismissed because his allegations are "wholly conclusory." See Dkt. No. 5-1 at 9.
C. Plaintiff's Amended Complaint
On September 19, 2014, Plaintiff filed an amended complaint, in which he alleged discrimination based on his sex and disability, through Defendant's failure to promote, unequal terms and conditions of employment, and retaliation. See Dkt. No. 8-1 at 2. The amended complaint alleges significantly more facts to support Plaintiff's allegations.
First, Plaintiff alleges that since 2010, co-workers have been disciplined for sending emails that contain sexual content, profanity, and nudity. See Dkt. No. 8-1 at ¶ 3. Plaintiff has frequently been the target of such improper computer use; for example, Plaintiff has received unwanted emails of partially and fully nude men. See id. at ¶ 6. More specifically, Plaintiff received an email portraying a male figure engaging in unsafe sex with a line drawn through it, containing the text, "NO AIDS, " as well as another email depicting a man dressed like a woman containing the text, "Gay terrorist." Id. at ¶ 5. One day while working with a female co-worker, Plaintiff opened an email "that immediately revealed a nude male graphic and began playing related audio." Id. at ¶ 7. Plaintiff says that these emails make him feel "violated, degraded, humiliated, unaccepted, and fearful in [his] workplace." Id. Plaintiff also alleges that he has had unfounded and malicious workplace violence and other complaints filed against him, and that NYSIF is aware of the frivolous filing of complaints. See id. at ¶¶ 18-19. According to Plaintiff, since 2011, NYSIF has held meetings with the entire staff to address the misuse of internal complaints. See id. at ¶ 21. Finally, on August 28, 2014, a harassing letter was mailed to Plaintiff's home, and Plaintiff continues to experience hostility and intimidation from current supervisors. See id. at ¶¶ 2, 45.
In response to what Plaintiff describes as a "discriminatory hostile atmosphere, " id. at ¶ 1, Plaintiff has participated in internal NYSIF sex discrimination interviews and New York State Division of Human Rights ("DHR") investigations. See id. at ¶ 48. Plaintiff has reported the unsolicited derogatory emails to the Affirmative Action Office at NYSIF. See id. at ¶ 9. Plaintiff has also participated in NYSIF interviews involving disability and sexual harassment complaints that were filed against NYSIF and "the then female Business Manager." Id. Plaintiff contends that the "female Business Manager" was discriminated against because of her sex. See id. at ¶¶ 12-18. Plaintiff alleges that, because he defended the female Business Manager, co-workers retaliated by filing unfounded workplace violence and other complaints against him. Id. at ¶ 18. For example, on March 16, 2012, a Human Rights Sex Discrimination Complaint named Plaintiff as aider and abettor to NYSIF, alleging that Plaintiff was photographing females in the women's bathroom to share with male co-workers. See id. at ¶¶ 3, 9, 18. Again Plaintiff alleges that NYSIF is aware of the frivolous manipulation of internal complaints because the NYSIF Affirmative Action intake procedures have been revised to include a disciplinary warning to those who misuse the complaints; NYSIF has not, however, enforced the policy, and instead allows the conduct to continue. See id. at ¶ 26.
Plaintiff alleges that he is being discriminated against because of his perceived disability, as well as being subjected to "sexual harassment including gender stereotyping." Id. at ¶ 48. In support of his sex discrimination claim, Plaintiff alleges that male co-workers often mock him for being "overly sensitive" and "too emotional." Id. at ¶ 32. Also, a male co-worker has entered Plaintiff's work area "wearing camouflage and hunting gear and talk[s] about guns and gutting animals in the woods." See id. at ¶ 33. In addition, the new female Policy Holder Service ("PHS") manager talks about putting subordinates on meat hooks and tells male co-workers to "cowboy up." Id. at ¶ 34. Plaintiff believes these comments are made "to portray [Plaintiff] as lacking perceived needed stereotypical male aggression' and... [instead as] possessing perceived negative stereotypical feminine attributes... therefore [making him] not capable of the PHS manager title." Id.
Finally, Plaintiff alleges that Defendant failed to promote him to the position of PHS manager, despite the fact that he is qualified for the position; Plaintiff has worked in the PHS Department for 28 years as an Auditor, an Audit Supervisor, and a Team Leader. See id. at ¶ 39. Plaintiff contends that similarly situated co-workers have been promoted to the PHS Manager position. See id. In May 2013, NYSIF posted a vacancy notice for a PHS Manager position in the Binghamton District Office, and Plaintiff applied for the position. See id. at ¶¶ 35-36. Plaintiff alleges that he did not receive the promotion because a male co-worker sent an email to the NYSIF Executive Director including allegations that Plaintiff photographed women at work, Plaintiff threw a hot cup of coffee at his nephew, and Plaintiff was feared because "[i]t is evident that [Plaintiff's] domestic violence has spilled over into the workplace." See id. at ¶ 36. Plaintiff, however, insists that his domestic partner was the one who threw the hot coffee at his runaway nephew, and that the peace officer mistakenly wrote Plaintiff's name instead. See id. at ¶ 37. In July 2013, another vacancy notice for the PHS Manager Position was posted; Plaintiff applied but was never interviewed. See id. at ¶ 40. In August 2013, a co-worked informed ...