Christiansen v. Omnicom Grp., Inc.

• Citation: 167 F.Supp.3d 598
• Decision Date: 09 March 2016
• Docket Number: 15 Civ. 3440 (KPF)
• Parties: Matthew Christiansen, Plaintiff, v. Omnicom Group, Inc., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

167 F.Supp.3d 598

Matthew Christiansen, Plaintiff,

v.Omnicom Group, Inc., et al., Defendants.

15 Civ. 3440 (KPF)

United States District Court, S.D. New York.

Signed March 9, 2016

Susan Chana Lask, Law Offices of Susan Chana Lask, New York, NY, for Plaintiff.

Howard Jeffrey Rubin, Daniel Alan Feinstein, Shira Franco, Davis & Gilbert LLP, New York, NY, Brandon Okano, Rick Ostrove, Jeffrey Kevin Brown, Leeds Morelli & Brown, Carle Place, NY, for Defendants.

OPINION AND ORDER

KATHERINE POLK FAILLA

, District Judge

Plaintiff Matthew Christiansen, an openly gay man who is HIV-positive, brought suit against his employer, DDB Worldwide Communications Group Inc. (“DDB”); DDB's parent company, Omnicom Group, Inc. (“Omnicom”); his former supervisor, Joe Cianciotto; and DDB executives Peter Hempel and Chris Brown (together, “Defendants”). In his First Amended Complaint (or “FAC”), Plaintiff alleges claims for sexual stereotyping, disability-based discrimination, and retaliation in violation of federal, state, and local laws; as well as state-law claims for aiding and abetting discrimination, slander per se , intentional infliction of emotional distress, breach of contract, and labor law violations. Defendants, in two separate motions, now move to dismiss the FAC. As set forth in the remainder of this Opinion, Defendants' motions are granted in full.

BACKGROUND¹

A. Factual Background

In April 2011, Plaintiff Matthew Christiansen began working as Associate Creative Director for the marketing communications firm DDB, a subsidiary of the global marketing network Omnicom. (FAC ¶¶ 17-18). From the start of his employment, Plaintiff worked under the supervision of Joe Cianciotto, who in turn worked under the management and supervision of Chris Brown and Peter Hempel. (Id. at ¶ 19). According to the FAC, Cianciotto frequently taunted and harassed both male and female co-workers, with behavior ranging from public name-calling, to telling a co-worker that “if he [Cianciotto] were gay, he'd like to have gay intercourse with him,” to throwing a soda can at an employee. (Id. at ¶ 30). Plaintiff is an openly gay man, and alleges that Cianciotto subjected him to ridicule and abuse almost immediately due to Cianciotto's animosity toward homosexuals. (Id. at ¶ 2). Other employees had previously complained to Hempel, Brown, DDB, and Omnicom about Cianciotto's behavior, but “their complaints to human resources and management were ignored for years.” (Id. at ¶ 30 p.6).

Plaintiff alleges several instances of harassment specifically targeted at him. Shortly after Plaintiff began his employment with DDB, “Cianciotto became openly resentful and hostile towar[d] Plaintiff because of his sexual orientation.” (FAC ¶ 33). This hostility was expressed in May 2011 through two drawings by Cianciotto on a company whiteboard: Both featured a shirtless, “muscle bound” Plaintiff, and one of the two images placed Plaintiff's torso on the body of a four-legged animal “with a tail and penis, urinating and defecating.” (Id. at ¶ 34 & Ex. B). A third whiteboard drawing by Cianciotto, displayed in DDB's office space in June 2011, depicted Plaintiff naked, with an erect penis and exaggerated muscles. (Id. at Ex. B). The picture includes an air pump being manned by another employee and attached to Plaintiff's wrist, with text next to Plaintiff reading “I'm so pumped for marriage equality,” while text by the other employee says, “I fucking hate being pumped.” (Id. ).

In July 2011, Cianciotto produced and circulated to the office an edited version of a poster for the movie “Muscle Beach Party,” superimposing pictures of employees' faces onto the bodies of the swimsuit-clad characters. (FAC ¶ 34(D) & Ex. B). Plaintiff's face appears on the body of a woman, dressed in a bikini and reclining on her back with her legs in the air, in what Plaintiff describes as “the gay sexual receiving position.” (Id. ). Plaintiff alleges that an image of this poster was posted on Facebook, and—despite multiple requests from Plaintiff in October and November 2014 that it be taken offline—was not removed until January 2015. (Id. at ¶¶ 54-56).

In addition to the four images described, Plaintiff alleges two episodes of verbal harassment. In October 2012, Cianciotto invited employees at a meeting to play a game of “Name that Tune.” (FAC ¶ 30 p.8). One employee guessed incorrectly, after which Plaintiff correctly named the song; Cianciotto then turned to the first employee and asked how it felt to be “beaten out by the gay guy.” (Id. ). Cianciotto then proceeded to tell Plaintiff that his “muscles [were] big,” saying, “Everybody look at Matt's muscles.” (Id. at ¶ 30 p.7). Plaintiff further alleges that several months later, at a large meeting in May 2013, a fellow employee coughed, prompting Cianciotto to comment that he too was feeling ill. (Id. ). Cianciotto then turned to Plaintiff and added, “It feels like I ha[ve] AID[S], you know what that's like[,] Matt?” (Id. ). Plaintiff alleges, upon information and belief, that DDB, Omnicom, Hempel, and Brown inferred that Plaintiff had Acquired Immunodeficiency Syndrome

(“AIDS”) from a combination of (i) the fact that he is gay, and (ii) Human Resources records reflecting his high monthly health insurance costs, and that they then shared their inferred diagnosis with Cianciotto. (Id. at ¶¶ 42-43).

On or about June 26, 2013, Plaintiff met with a representative of DDB's Human Resources Department to complain about Cianciotto's behavior. (FAC ¶ 47). Following this meeting, Cianciotto approached Plaintiff to ask whether Plaintiff had reported him to Human Resources. (Id. at ¶ 48). Cianciotto then explained to Plaintiff that he had “a severe phobia of communicable diseases,” including AIDS, of such magnitude that his doctor had advised him on how to relieve his concerns. (Id. at ¶ 49).

A month after Plaintiff spoke to Human Resources about Cianciotto, DDB convened an employee meeting at which Hempel, the Director of Human Resources, and DDB's Chief Creative Officer were present. (FAC ¶ 51). Cianciotto provided a general apology at the meeting, “to the effect of hoping that no one was offended by anything he did,” and Hempel gave a speech informing those present that “DDB does not tolerate inappropriate behavior.” (Id. at ¶¶ 51-52). No further action was taken in regards to Plaintiff's complaints at that time.

Finally, Plaintiff alleges two acts of employment-related misconduct: (i) in October 2012, Plaintiff received a promotion from Associate Creative Director to Creative Director, but did not receive the corresponding salary increase until one year later (FAC ¶¶ 35-36), and (ii) on March 21, 2015, Defendants offered Plaintiff a three-month severance package in exchange for Plaintiff's resignation, which Plaintiff declined (id. at ¶ 58).² As of the filing of the FAC, Plaintiff continued to be employed by DDB. (Id. at ¶ 10).

Plaintiff alleges that experiences with sexual-orientation-based discrimination prior to his employment with DDB had caused him to develop post-traumatic stress disorder

(“PTSD”), which was then compounded by the physical stress caused by his HIV. (FAC ¶¶ 68-69). Plaintiff further alleges that Defendants' misconduct, in combination with these preexisting conditions, led him to seek therapy. (Id. at ¶ 78). On March 30, 2015, psychologist Dr. Stephen Reich diagnosed Plaintiff with PTSD, anxiety, and depression, stemming from the “'gay taunts and drawings' that Defendants subjected him to from 2013 to 2015.” (Id. at ¶¶ 74-75). Plaintiff concludes that “[a]s a result of his physical and mental infirmities, [he] was incapable of filing any complaints against Defendants.” (Id. at ¶ 76).

B. Procedural Background

On October 29, 2014, Plaintiff submitted a complaint to the Equal Employment Opportunity Commission (the “EEOC”), setting forth a Title VII claim against DDB based on allegations that Cianciotto had harassed Plaintiff and assumed Plaintiff had AIDS “because he is gay.” (Feinstein Decl. Ex. C). Plaintiff subsequently filed a complaint against DDB with the New York State Division of Human Rights (the “NYSDHR”), stating that he had been discriminated against on the basis of perceived disability (AIDS) and sexual orientation. (Id. at Ex. D). The NYSDHR complaint additionally notes that Plaintiff suffered retaliation from his supervisor for complaining about the discrimination. (Id. ). The complaint form provides a space to designate claims for discrimination based on “sex”; Plaintiff declined to check that box. (Id. ).

A Notice of Charge of Discrimination was sent to DDB by the EEOC on January 13, 2015, indicating that Plaintiff had filed charges of employment discrimination against DDB under the ADA. (Feinstein Decl. Ex. D). On March 10, 2015, the NYSDHR notified Plaintiff that it was contemplating dismissal of his administrative complaint, pursuant to his request, so that Plaintiff could pursue litigation related to the issues raised in that complaint. (Id. at Ex. E). Three days later, on March 13, 2015, Plaintiff received a Notice of Right to Sue from the EEOC. (FAC ¶ 6(b)). DDB submitted a letter in opposition to the proposed dismissal of Plaintiff's NYSDHR complaint on March 24, 2015 (Feinstein Decl. Ex. F); and on July 21, 2015, the NYSDHR notified the parties that Plaintiff's administrative complaint would be aned (id. at Ex. G).

Plaintiff filed his initial Complaint in the instant matter on May 4, 2015 (Dkt. #1), and his FAC on June 22, 2015 (Dkt. #4). Defendants Omnicom, DDB, Hempel, and Brown jointly filed their motion to dismiss on July 31, 2015. (Dkt. #21, 22). Cianciotto filed a separate motion to dismiss on August 14, 2015. (Dkt. #24, 25). Plaintiff set forth his opposition to both motions in a single brief, filed on September 24, 2015 (Dkt. #30); Defendants Omnicom, DDB, Hempel, and Brown replied on October 8, 2015 (Dkt. #31); and Cianciotto concluded the briefing with the filing of his reply on October 8, 2015 (Dkt. #33).

DISCUSSIO...