Christiansen v. Omnicom Grp., Inc.

Citation852 F.3d 195
Decision Date27 March 2017
Docket NumberDocket No. 16-748,August Term, 2016
Parties Matthew CHRISTIANSEN, Plaintiff–Appellant, v. OMNICOM GROUP, INCORPORATED, DDB Worldwide Communications Group Incorporated, Joe Cianciotto, Peter Hempel, and Chris Brown, Defendants–Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Susan Chana Lask , Law Offices of Susan Chana Lask, New York, NY, for PlaintiffAppellant Matthew Christiansen.

Howard J. Rubin (Shira Franco and Judith Kong, on the brief), Davis & Gilbert LLP, New York, NY, for DefendantsAppellees Omnicom Group Incorporated, DDB Worldwide Communications Group Incorporated, Peter Hempel, and Chris Brown.

Rick Ostrove , Leeds Brown Law, P.C., Carle Place, NY, for DefendantAppellee Joe Cianciotto.

Barbara L. Sloan , Attorney, Equal Employment Opportunity Commission, Office of General Counsel, Washington, D.C. (P. David Lopez, General Counsel; Jennifer S. Goldstein, Associate General Counsel; and Margo Pave, Assistant General Counsel, Equal Employment Opportunity Commission, Office of General Counsel, Washington, D.C., on the brief), for Amicus Curiae Equal Employment Opportunity Commission, in support of PlaintiffAppellant.

Lenora M. Lapidus, Gillian L. Thomas, Ria Tabacco Mar, and Leslie Cooper, American Civil Liberties Union Foundation, New York, NY; Erin Beth Harrist, Robert Hodgson and Christopher Dunn, New York Civil Liberties Union Foundation, New York, NY, for Amici Curiae American Civil Liberties Union; New York Civil Liberties Union; 9to5, National Association of Working Women; A Better Balance; American Association of University Women; California Women's Law Center; Coalition of Labor Union Women; Equal Rights Advocates; Gender Justice; Legal Momentum; Legal Voice; National Association of Women Lawyers; National Partnership for Women and Families; National Women's Law Center; Southwest Women's Law Center; Women Employed; Women's Law Center of Maryland; Women's Law Project, in support of PlaintiffAppellant.

Peter T. Barbur, Cravath, Swaine & Moore LLP, New York, NY, for Amici Curiae 128 Members of Congress, in support of PlaintiffAppellant.

Shannon P. Minter and Christopher F. Stoll, National Center for Lesbian Rights, San Francisco, CA, for Amicus Curiae National Center for Lesbian Rights, in support of PlaintiffAppellant.

Michael D.B. Kavey, Brooklyn, NY; Omar Gonzalez–Pagan, Lambda Legal Defense and Education Fund, Inc., New York, NY; Gregory R. Nevins, Lambda Legal Defense and Education Fund, Inc., Atlanta, GA, for Amicus Curiae Lambda Legal Defense and Education Fund, Inc., in support of PlaintiffAppellant.

Before: Robert A. Katzmann, Chief Judge, Debra Ann Livingston, Circuit Judge, and Margo K. Brodie, District Judge.*

Per Curiam:

Plaintiffappellant Matthew Christiansen 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 decision, 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 Christiansen‘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 Christiansen, "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. Bumble & 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 plaintiff's 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 ... to fail or refuse to hire or to discharge ... or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." 42 U.S.C. § 2000e–2(a)(1). On appeal, Christiansen argues, supported by various amici , that we should reconsider our decisions in Simonton and Dawson in light of a changed legal landscape and hold that Title VII's prohibition of discrimination "because of ... sex" encompasses discrimination on the basis of sexual orientation. Because we are "bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court," United States v. Wilkerson , 361 F.3d 717, 732 (2d Cir. 2004), "it [is] ordinarily ... neither...

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