United States District Court, N.D. New York
SHAUN P. GARVEY, Plaintiff,
CHILDTIME LEARNING CENTER, Defendant.
DECISION & ORDER
J. McAVOY, SENIOR UNITED STATES DISTRICT JUDGE
pro se action brought pursuant to 42 U.S.C. §
1983 was referred to the Hon. Andrew T. Baxter, United States
Magistrate Judge, for a report and recommendation pursuant to
28 U.S.C. § 636(b) and Local Rule 72.3(c) . In his Order
and Report -Recommendation, Magistrate Judge Baxter reviewed
plaintiff's amended complaint (“AC”) [dkt. #
7] pursuant to 28 U.S.C. § 1915 and recommended that the
action be dismissed with prejudice for failure to state a
viable claim. Dkt. # 9. In apparent objection to the
recommendation, plaintiff submitted a proposed second amended
complaint (“2nd AC”)[dkt. # 10].
STANDARD OF REVIEW
objections to a magistrate judge's report and
recommendation are lodged, the district court makes a
“de novo determination of those portions of
the report or specified proposed findings or recommendations
to which objection is made.” See 28 U.S.C.
§ 636(b)(1); see also United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir. 1997) (The Court must
make a de novo determination to the extent that a
party makes specific objections to a magistrate's
findings.). After reviewing the report and recommendation,
the Court may “accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
magistrate judge. The judge may also receive further evidence
or recommit the matter to the magistrate judge with
instructions.” 28 U.S.C. § 636(b).
previous Order and Report-Recommendation, Magistrate Judge
Baxter recommended that plaintiff's original complaint be
dismissed without prejudice to filing an amended complaint.
Dkt. # 5. Apparently accepting Magistrate Judge Baxter's
recommendation, plaintiff immediately filed the AC. Dkt. # 7.
The Court adopted the recommendation that the original
complaint be dismissed without prejudice, and referred the AC
to Magistrate Judge Baxter for a new 28 U.S.C. § 1915
review. Dkt. # 8.
addressing the AC, Magistrate Judge Baxter found that it
appeared to assert claims of gender discrimination and
retaliation under Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e et
seq., and age discrimination and retaliation under the
Age Discrimination in Employment Act, (“ADEA”),
29 U.S.C. § 621 et seq. See dkt. # 9.
Title VII Discrimination
the Title VII discrimination claim, Magistrate Judge Baxter
recommends dismissal. Plaintiff alleged that the defendant
“adversely” did not hire him because he was a
homosexual man, and that this adverse action was “taken
to try to keep someone from opposing a discriminatory
practice, or from participating in an employment
discrimination proceeding.” AC at 6. Plaintiff further
alleged that defendant engaged in “profile
hiring” leading to “potential discrimination on
age, gender, color, etc., ” AC at 12, and did not hire
him because “[defendant] assumed obvious or not I was a
homosexual male by calling me ‘creepy', and
equating [sic] gay males are not acceptable for
their school environment. As if I would be harmful to the
children.” Id., ¶ IX. Plaintiff also
alleged that defendant Childtime interviewed him at three
separate locations, and offered him a job at two of these
locations, but never told him when he was going to start, and
then gave him the “runaround, ” which ultimately
resulted in a failure to hire him. AC at 6 ¶¶ III,
IV, VI. Plaintiff also claimed that Childtime made statements
to the police and to “Human Rights, ” alleging
things that never occurred and placing plaintiff on a
“do not hire bulletin, ” ruining his chances for
future employment. AC at 6 ¶¶ VII, X.
addressing the sufficiency of this claim, Magistrate Judge
Although plaintiff has “amended” his complaint,
his basis for alleging Title VII discrimination is still the
same. He claims that defendant failed to hire him because he
is a gay male, even though he has checked the box on the form
indicating that he was discriminated against because of his
gender alone. Plaintiff does not claim that defendant
Childtime only hired women, or discriminated against
plaintiff because he was a man.
As I stated in my prior Order and Report-Recommendation,
Title VII protects a limited class of individuals. Kiley
v. American Soc. for the Prevention of the Cruelty to
Animals, 296 F. App'x 107, 109 (2d Cir. 2008).
Sexual orientation is not included in the statutorily
protected classes. Id. (citing Simonton v.
Runyon, 232 F.3d 33, 35 (2d Cir. 2000)). In
Simonton, the court held that it was well-settled
“in this circuit and in all others to have reached the
question that [the plaintiff] has no cause of action under
Title VII because Title VII does not prohibit harassment or
discrimination because of sexual orientation.”
Simonton, 232 F.3d at 35 (alteration in original).
See also Dawson v. Bumble & Bumble, 398
F.3d 211, 217-18 (2d Cir. 20105) (to the extent that
plaintiff claimed discrimination based on her lesbianism, she
could not satisfy the first element of a prima facie case
under Title VII).
Courts finding that Title VII does not protect discrimination
based on sexual orientation have distinguished sexual
orientation from sexual stereotyping, which is protected
under Title VII. Kiley, 296 F. App'x at 109-110
(citing inter alia Price Waterhouse v. Hopkins, 490
U.S. 228, 251-52 (1989)). More recently in Christiansen
v. Omnicom Grp., Inc., __ F.Supp.3d __, 2016 WL 951581,
at *12-15 (S.D.N.Y. Mar. 9, 2016), the court discussed the
principles outlined above and cited Congress's frequent
rejection of bills that would have extended Title VII's
protection to people based on their sexual preferences.
Christiansen, 2016 WL 951581 at *12 (citing
Simonton, 232 F.3d at 35 (citing, e.g., Employment
Nondiscrimination Act of 1996, S. 2056, 104th Cong. (1996);
Employment Non-Discrimination Act of 1995, H.R. 1863, 104th
Cong. (1995); Employment Non-Discrimination Act of 1994, H.R.
4636, 103d Cong. (1994)). The court specifically held that a
claim based on ...