232 F.3d 33 (2nd Cir. 2000), 99-6180, Simonton v Runyon

Docket Nº:99-6180
Citation:232 F.3d 33
Party Name:DWAYNE SIMONTON, Plaintiff-Appellant, v. MARVIN T. RUNYON, JR., Postmaster General, United States Postal Service; U.S. POSTAL SERVICE, United States Postal Service, Defendants-Appellees.
Case Date:August 22, 2000
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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232 F.3d 33 (2nd Cir. 2000)

DWAYNE SIMONTON, Plaintiff-Appellant,


MARVIN T. RUNYON, JR., Postmaster General, United States Postal Service; U.S. POSTAL SERVICE, United States Postal Service, Defendants-Appellees.

No. 99-6180

United States Court of Appeals, Second Circuit

August 22, 2000

Argued: February 8, 2000.

Amended: October 23, 2000.

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FREDERICK OSTROVE, Leeds & Morelli, Esqs., Carle Place, N.Y., for Plaintiff-Appellant.

PAUL KAUFMAN, Assistant United States Attorney, Loretta E. Lynch, United States Attorney for the Eastern District of New York (David L. Goldberg, Deborah B. Zwany, on the brief), Brooklyn, N.Y., for Defendants-Appellees.

Before: WALKER, Chief Judge, and SACK, and KATZMANN, Circuit Judges.

JOHN M. WALKER, JR., Circuit Judge:

Plaintiff-appellant Dwayne Simonton sued the Postmaster General and the United States Postal Service (together "defendants") under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., for abuse and harassment he suffered by reason of his sexual orientation. The United States District Court for the Eastern District of New York (Leonard D. Wexler, District Judge) dismissed Simonton's complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim, reasoning that Title VII does not prohibit discrimination based on sexual orientation. We agree.

We review de novo the dismissal of a complaint pursuant to Fed. R. Civ. P. 12(b)(6). See Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 (2d Cir. 2000). We must accept all facts alleged in the complaint as true, and will affirm the dismissal only where it "appears beyond doubt that the plaintiff can prove no set of facts in support of [his] claim which would entitle [him] to relief." Id. (internal quotation marks and citation omitted). The facts of this case are all too familiar in their general form. Simonton was employed as a postal worker in Farmingdale, New York for approximately twelve years. He repeatedly received satisfactory to excellent performance evaluations. He was, however, subjected to an abusive and hostile work environment by reason of his sexual orientation. The abuse he allegedly endured was so severe that he ultimately suffered a heart attack.

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For the sake of decency and judicial propriety, we hesitate before reciting in detail the incidents of Simonton's abuse. Nevertheless, we think it is important both to acknowledge the appalling persecution Simonton allegedly endured and to identify the precise nature of the abuse so as to distinguish this case from future cases as they arise. We therefore relate some, but not all, of the alleged harassment that forms the basis for this suit.

Simonton's sexual orientation was known to his co-workers who repeatedly assaulted him with such comments as "go fuck yourself, fag," "suck my dick," and "so you like it up the ass?" Notes were placed on the wall in the employees' bathroom with Simonton's name and the name of celebrities who had died of AIDS. Pornographic photographs were taped to his work area, male dolls were placed in his vehicle, and copies of Playgirl magazine were sent to his home. Pictures of an erect penis were posted in his work place, as were posters stating that Simonton suffered from mental illness as a result of "bung hole disorder." There were repeated statements that Simonton was a "fucking faggot."

There can be no doubt that the conduct allegedly engaged in by Simonton's co-workers is morally reprehensible whenever and in whatever context it occurs, particularly in the modern workplace. Nevertheless, as the First Circuit recently explained in a similar context, "we are called upon here to construe a statute as glossed by the Supreme Court, not to make a moral judgment." Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999). When interpreting a statute, the role of a court is limited to discerning and adhering to legislative meaning. The law is well-settled in this circuit and in all others to have reached the question that Simonton has no cause of action under Title VII because Title VII does not prohibit harassment or discrimination because of sexual orientation.1


The Equal Employment Opportunity Act of 1972 extended Title VII's protections to certain federal employees, including U.S. postal service employees. See 42 U.S.C. § 2000e-16(a). Section 2000e-16(a) provides, in part, that all personnel actions affecting covered employees "shall be made free from any discrimination based on race, color, religion, sex, or national origin." Id. Simonton argues that discrimination based on "sex" includes discrimination based on sexual orientation. We disagree.

Admittedly, we have "little legislative history to guide us in interpreting the Act's prohibition against discrimination based on 'sex.'" Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64, 91 L.Ed. 2d 49, 106 S.Ct. 2399 (1986). But we are informed by Congress's rejection, on numerous occasions, of bills that would have extended Title VII's protection to people based on their sexual preferences. See, 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); see also Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085-86 (7th Cir. 1984) (noting that Congress has rejected a number of proposed amendments to Tile VII to prohibit discrimination based on sexual orientation). Although congressional inaction subsequent to the enactment of a statute is not always a helpful guide, Congress's refusal to expand the reach of Title VII is strong evidence of congressional intent in the face of consistent judicial decisions refusing to interpret "sex" to include sexual orientation. See, e.g., Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 143 (4th Cir. 1996)

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("Title VII does not afford a cause of action for discrimination based upon sexual orientation."); Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989) ("Title VII does not prohibit discrimination against homosexuals."); DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327, 329-32 (9th Cir. 1979).

Moreover, we are not writing on a clean slate. In DeCintio v. Westchester County Med. Ctr., 807 F.2d 304 (2d Cir. 1986), we reversed a plaintiff's verdict in a Title VII suit alleging that a male employer had passed over...

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