Opinion
04 Civ. 4681 (LBS).
June 24, 2005
MEMORANDUM AND ORDER
Plaintiff Paul Robert Johnson, appearing pro se in this employment discrimination action, has filed an Amended Complaint pursuant to the June 22, 2004 Order of Chief Judge Michael B. Mukasey. Defendant New York State Insurance Fund ("N.Y.S.I.F.") has moved pursuant to Fed.R.Civ.Pro. 12(b)(1) and 12(b)(6) to dismiss the Amended Complaint for lack of subject matter jurisdiction and failure to state a claim. Plaintiff has not responded to this motion, despite having been instructed by Order of this Court dated May 16, 2005 that if he did not do so within fourteen days, this action would be dismissed. Notwithstanding Plaintiff's lack of response, we address the merits. For the reasons stated below, the motion is granted and the Amended Complaint is dismissed.
Plaintiff's Amended Complaint alleges two forms of discrimination: discrimination based on sex or gender, and discrimination based on disability, specifically the "possibility of [his] being HIV-positive" (Am. Compl. ¶ 7). As the June 22, 2004 Order made clear, the claim for discrimination based on disability under Title I of the Americans with Disabilities Act (ADA) is not viable, because Title I of the ADA did not validly abrogate the States' sovereign immunity from suit, Board of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001), and the defendant in this action is an agency of the state of New York entitled to Eleventh Amendment immunity, Lipovsky v. Steingut, 86 F.3d 15 (2d Cir. 1996). That leaves only the claim of discrimination on the basis of sex or gender, brought under Title VII of the Civil Rights Act of 1964, which is the claim that Judge Mukasey granted Plaintiff leave to amend his complaint in order to state.
The Second Circuit has held that "a district court only has jurisdiction to hear Title VII claims that either are included in an EEOC charge or that are based on conduct subsequent to the EEOC charge which is 'reasonably related' to that alleged in the EEOC charge." Butts v. New York Dep't of Hous. Preservation Dev., 990 F.2d 1397, 1401 (2d Cir. 1993). Attached to Plaintiff's Amended Complaint is a copy of the complaint that Plaintiff filed with the New York State Division of Human Rights ("NYSDHR"), and a notice from the EEOC indicating that the EEOC "adopted the findings of the state or local fair employment practices agency that investigated this charge." Documents attached to the complaint may be considered on a motion to dismiss, Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993), and these documents make clear that the claim administratively pursued by Plaintiff was based on his "disclosure of being gay and possibly HIV positive" (Letter from Paul R. Johnson to NYSDHR, at 2). The only set of claims that could properly be before this Court, therefore, would be claims based on Plaintiff's actual or perceived HIV status and sexual orientation, or claims sufficiently related to the aforementioned claims under the Butts standard. An examination of the various claims that the Amended Complaint and Judge Mukasey's June 22, 2004 Order indicate Plaintiff might wish to assert reveals that Plaintiff does not sufficiently state any claims under Title VII that fall within this set.
No Title VII claim is stated here based on Plaintiff's actual or perceived HIV status and sexual orientation. A claim based on HIV status does not lie under Title VII, Dollinger v. State Ins. Fund, 44 F. Supp. 2d 467, 475 (N.D.N.Y. 1999); Rivera v. Heyman, 982 F. Supp. 932, 939-40 (S.D.N.Y. 1997), aff'd in pertinent part and rev'd in part on other grounds, 157 F.3d 101, 105-06 (2d Cir. 1998), but only under the ADA, which as previously discussed cannot be used to bring suit against a state agency in this context. The body of the Amended Complaint does not mention Plaintiff's sexual orientation at all, and allegations of discrimination based on sexual orientation would in any event not state a claim under Title VII, because "the law is well-settled in this circuit and in all others to have reached the question that. . . . Title VII does not prohibit harassment or discrimination because of sexual orientation." Dawson v. Bumble Bumble, 398 F.3d 211, 217 (2d Cir. 2005); Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000). Thus, none of the claims included in Plaintiff's EEOC charge have been made the basis for a proper Title VII claim.
Plaintiff's attempt to state a claim of sex discrimination based on the alleged "pro-female" bias of defendant N.Y.S.I.F. (Am. Compl. ¶ 7), while it does pertain to the sort of discrimination covered by Title VII, is not sufficiently related to the claims he pursued before the NYSDHR and the EEOC. Butts allows three sorts of related claims to be made in a Title VII action even though they were not themselves explicitly alleged in an EEOC charge. It is clear that neither claims "alleging retaliation by an employer against an employee for filing an EEOC charge," Butts, 990 F.2d at 1402, nor claims "alleg[ing] further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge," id. at 1402-03, are at issue here. The more relevant Butts category is the "allowance of loose pleading" that permits claims "where the conduct complained of would fall within the 'scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'" Id. at 1402 (quoting Smith v. American President Lines, Ltd., 571 F.2d 102, 107 n. 10 (2d Cir. 1978)). But even this "loose pleading" does not stretch so far as to include a completely different sort of discrimination than that complained of in the EEOC charge. See, e.g., Tavarez v. Chemical Bank, 97 CIV. 3681 (DLC), 1998 U.S. Dist. LEXIS 9249 (S.D.N.Y. June 25, 1998), at *10 ("A charge of disability discrimination cannot reasonably be expected to grow out of a charge of discrimination based on national origin");Chinn v. City Univ. of N.Y. Sch. of Law, 963 F. Supp. 218, 223 (S.D.N.Y. 1997) ("A plaintiff . . . may not sue on a different cause for the discriminatory action than that raised before the EEOC when the new allegation exceeds the scope of a reasonable EEOC investigation, which is the case when new factual allegations support the new theory of discrimination."); Chojar v. Levitt, 773 F. Supp. 645, 650-51 (S.D.N.Y. 1991) (complaint of religious discrimination not sufficiently related to EEOC charge asserting race discrimination and national origin discrimination); Kawatra v. Medgar Evers College of City Univ. of New York, 700 F. Supp. 648, 649, 654 (S.D.N.Y. 1988) (claim of discrimination based on marital status not sufficiently related to EEOC charge asserting discrimination based on sex and national origin). An investigation into claims of discrimination based on HIV status and sexual orientation could not reasonably be expected to grow to encompass allegations of generalized "pro-female" bias.
The "gender stereotyping" claim that Judge Mukasey's June 22, 2004 Order implicitly suggested Plaintiff could attempt to state,see Dawson, 398 F.3d at 218 (describing "the 'gender stereotyping' theory of Title VII liability according to which individuals who fail or refuse to comply with socially accepted gender roles are members of a protected class"), might be sufficiently related to Plaintiff's EEOC charge of sexual orientation discrimination to fall within this Court's jurisdiction under the Butts loose-pleading standard. "[A]s the jurisdictional issue goes to statutory and not constitutional jurisdiction, we may exercise hypothetical jurisdiction."Abimbola v. Ashcroft, 378 F.3d 173, 180 (2d Cir. 2004). However, even assuming that we would have jurisdiction over such a claim, Plaintiff does not state one here. He alleges that "[defendant] employer expressed prejudice against my appearance and choice of questions," and that he was "denied employment because of . . . what I wore[,] what I said[, and] who I was," but he does not specify what it is that Defendant allegedly found objectionable about his appearance, speech, and clothing. Even pursuant to the wide latitude given the pleadings of pro se litigants, see, e.g., Phillips v. Girdich, 408 F.3d 124 (2d Cir. 2005), we will not infer a gender-stereotyping claim from a complaint that makes no mention of gender roles, sex stereotypes, expectations concerning the behavior of males or females, or anything of the sort. As Judge Mukasey pointed out in his June 22, 2004 Order, "it is well-settled that a pleading must give the court and the defendant 'fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" (Order at 3, quoting Conley v. Gibson, 355 U.S. 41, 47 (1957).) While the Amended Complaint states that Plaintiff "can only conclude discrimination against [himself] in this matter" (Am. Compl. ¶ 8), there is no indication whatsoever in the Amended Complaint that a claim of sex stereotyping, rather than "pro-female" bias or irrational discrimination on some other basis not covered by Title VII, is at issue.
To summarize, the Amended Complaint does not state any claim within this Court's jurisdiction upon which relief can be granted. Defendant's motion is therefore GRANTED, and the Amended Complaint is DISMISSED. The Clerk of the Court is directed to close this case.
SO ORDERED.