Christiansen v. Omnicom Group, Inc.

852 F.3d 195, 2017 WL 1130183, 2017 U.S. App. LEXIS 5278, 101 Empl. Prac. Dec. (CCH) 45,760, 129 Fair Empl. Prac. Cas. (BNA) 1848
Court of Appeals for the Second Circuit·Decided March 27, 2017·No. Docket No. 16-748·Published·Cited by 118 cases

Opinions

PER CURIAM:

Plaintiff-appellant Matthew Christian-sen sued his employer, supervisor, and others affiliated with his company (collectively, “defendants”) under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and state and local law alleging that he was discriminated against at his workplace due to, inter alia, his HIV-positive status and his failure to conform to gender stereotypes. The United States District Court for the Southern District of New York (Failla, J.) dismissed Christiansen’s federal claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim and declined to exercise supplemental jurisdiction over his state and local claims. See Christiansen v. Omnicom Grp., Inc., 167 F.Supp.3d 598, 612, 616-18, 622 (S.D.N.Y. 2016). In its [198]*198decision, the district court concluded that Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), and Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005), holding that Title VII does not prohibit discrimination on the basis of sexual orientation, precluded Christiansen’s Title VII claim. Christiansen, 167 F.Supp.3d at 618, 622. Christiansen primarily appeals this aspect of the district court’s decision.1

I. Background

Christiansen, an openly gay man who is HIV-positive, worked as an associate creative director and later creative director at DDB Worldwide Communications Group, Inc., an international advertising agency and subsidiary of Omnicom Group, Inc. Christiansen’s complaint alleged that his direct supervisor engaged in a pattern of humiliating harassment targeting his effeminacy and sexual orientation. According to Christiansen, in the spring and summer of 2011, his supervisor drew multiple sexually suggestive and explicit drawings of Christiansen on an office whiteboard. The most graphic of the images depicted a naked, muscular Christiansen with an erect penis, holding a manual air pump and accompanied by a text bubble reading, “I’m so pumped for marriage equality.” J.A. at 16 ¶ 34.C; J.A. at 42. Another depicted Christiansen in tights and a low-cut shirt “prancing around.” J.A. at 16 ¶ 34.A; J.A. at 40. A third depicted Chris-tiansen's torso on the body of “a four legged animal with a tail and penis, urinating and defecating.” J.A. at 16 ¶ 34.B; J.A. at 41. Later in 2011, Christiansen’s supervisor circulated at work and posted to Facebook a “Muscle Beach Party” poster that depicted various employees’ heads on the bodies of people in beach attire. J.A. at 13 ¶ 30. Christiansen’s head was attached to a female body clad in a bikini, lying on the ground with her legs upright in the air in a manner that one coworker thought depicted Christiansen as “a submissive sissy.” J.A. at 13 ¶ 30; J.A. at 43.

Christiansen’s supervisor also made remarks about the connection between effeminacy, sexual orientation, and HIV status. The supervisor allegedly told other employees that Christiansen “was effeminate and gay so he must have AID[S].” J.A. at 15 ¶ 30. Additionally, in May 2013, in a meeting of about 20 people, the supervisor allegedly told everyone in the room that he felt sick and then said to Christian-sen, “It feels like I have AIDS. Sorry, you know what that’s like.” J.A. at 17 ¶ 38. At that time, Christiansen kept private the fact that he was HIV-positive.

On October 19, 2014, Christiansen submitted a complaint to the Equal Employment Opportunity Commission (“EEOC”) detailing the harassment described above. After receiving a “Notice of Right to Sue” from the EEOC, Christiansen filed this lawsuit in the United States District Court for the Southern District of New York on May 4, 2015. Shortly thereafter, defendants moved to dismiss the complaint. In their motion to dismiss, defendants argued, inter alia, that Christiansen’s claim under Title VII was a sexual orientation discrimination claim rather than a gender stereotyping claim and was thus not cognizable under Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), and Dawson v. [199]*199Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005).

The district court agreed. In its decision, the district court described at length difficulties in distinguishing sexual orientation discrimination claims from gender stereotyping claims, specifically noting that negative views people hold of those with certain sexual orientations may be based on stereotypes about appropriate romantic associations between men and women. See Christiansen, 167 F.Supp.3d at 619-20. Having reviewed the decisions of other district courts addressing this issue in the wake of Simonton and Dawson, the district court concluded that “no coherent line can be drawn between these two sorts of claims.” Id. at 620. Nevertheless, the district court recognized that “the prevailing law in this Circuit — and, indeed, every Circuit to consider the question — is that such a line must be drawn.” Id. Although the district court considered several references to effeminacy in the complaint, it concluded that, as a whole, Christiansen’s complaint did not allege that he was discriminated against because he did not conform to gender stereotypes, but because he was gay. Id. at 620-22. As a result, the district court held that Christiansen’s claim was a sexual orientation discrimination claim that was not cognizable under Title VII pursuant to Simonton and Dawson and dismissed the claim under Rule 12(b)(6). Id. at 622.

II. Discussion

“We review a District Court’s grant of a motion to dismiss under Rule 12(b)(6) for failure to state a claim de novo, accepting the complaint’s factual allegations as true and drawing all reasonable inferences in the plaintiffs favor.” Carpenters Pension Tr. Fund of St. Louis v. Barclays PLC, 750 F.3d 227, 232 (2d Cir. 2014) (internal quotation marks omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,167 L.Ed.2d 929 (2007)). To meet this standard, a plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

Title VII makes it “an unlawful employment practice for an employer ...

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Christiansen v. Omnicom Group, Inc., 852 F.3d 195, 2017 WL 1130183, 2017 U.S. App. LEXIS 5278, 101 Empl. Prac. Dec. (CCH) 45,760, 129 Fair Empl. Prac. Cas. (BNA) 1848 (2d Cir. 2017).

852 F.3d 195 (Christiansen v. Omnicom Group, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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