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Garvey v. Childtime Learning Center

United States District Court, N.D. New York

April 13, 2017

SHAUN P. GARVEY, Plaintiff,

          DECISION & ORDER



         This 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].


         When 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).


         In a 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.

         In 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.

         a. Title VII Discrimination

         As to 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.

         In addressing the sufficiency of this claim, Magistrate Judge Baxter wrote:

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 ...

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