Dollinger v. N.Y. State Ins. Fund

• Decision Date: 09 October 2018
• Docket Number: 3:14-CV-908 (MAD/DEP)
• Parties: ROBERT A. DOLLINGER, Plaintiff, v. NEW YORK STATE INSURANCE FUND et al, Defendants.
• Court: U.S. District Court — Northern District of New York

ROBERT A. DOLLINGER, Plaintiff, v. NEW YORK STATE INSURANCE FUND et al, Defendants.

3:14-CV-908 (MAD/DEP)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

October 9, 2018

APPEARANCES:

ROBERT A. DOLLINGER

P.O. Box 270

Kirkwood, New York 13795

Plaintiff, pro se

OFFICE OF THE NEW YORK

STATE ATTORNEY GENERAL

The Capitol

Albany, New York 12224

Attorneys for Defendants New York State

Insurance Fund and Scott Anglehart

OFFICE OF FRANK W. MILLER

6575 Kirkville Road

East Syracuse, New York 13057

Attorneys for Defendant Browning

OF COUNSEL:

HELENA LYNCH, AAG

OMAR J. SIDDIQI, AAG

ADRIENNE J. KERWIN, AAG

CHARLES C. SPAGNOLI, ESQ.

FRANK W. MILLER, ESQ.

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Pro se plaintiff, Robert Dollinger, brought this action against his employer, the New York State Insurance Fund ("NYSIF"), alleging discrimination, retaliation, and hostile work environment based on his sexual orientation and disability in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Americans with Disabilities Act. See Dkt. No. 1. On March 30, 2015, the Court dismissed Plaintiff's Title VII claims for discrimination, retaliation, and hostile work environment because, at the time, the Second Circuit did not recognize sexual orientation as a protected class under Title VII. See Dkt. No. 10 at 10, 15, 19-20.

On August 26, 2015, Plaintiff filed a second amended complaint. See Dkt. No. 27. On March 22, 2016, Defendants moved for judgment on the pleadings to dismiss the second amended complaint. See Dkt. No. 47. On November 18, 2016, the Court granted NYSIF's motion, denied Plaintiff leave to amend, and entered judgment in Defendants' favor. See Dkt. No. 68. On December 1, 2016, Plaintiff appealed the Court's decision to the Second Circuit. See Dkt. Nos. 71-76. On February 13, 2018, the Second Circuit remanded in part and instructed the Court to give "further consideration on the Title VII claims of sex-based discrimination that Dollinger raised in his original complaint. Cf. Zarda v. Altitude Express, 855 F.3d 76 (2015), reh'g en banc granted, No. 15-3775 (2d Cir. May 25, 2017, ECF No. 271)." Dkt. No. 78 at 4. The panel also instructed the Court to give "further consideration of Dollinger's motion [for leave to amend] in conjunction with his allegation of sex-based discrimination, hostile work environment, and retaliation under Title VII." Id. at 5. On February 26, 2018, the Second Circuit issued its opinion in Zarda, holding that Title VII prohibited discrimination on the basis on sexual orientation. See Zarda v. Altitude Express, Inc., 883 F.3d 100, 132 (2d Cir. 2018) (en banc).

On May 4, 2018, Plaintiff filed a motion for leave to amend his complaint in order to include Title VII claims. See Dkt. No. 90. Defendants oppose this motion and have filed cross motions to dismiss for failure to state a claim and for judgment on the pleadings. See Dkt. Nos. 97 & 100.

Currently before the Court are Plaintiff's motion for leave to amend, Defendant Charles Browning's cross motion to dismiss for failure to state a claim, and Defendants NYSIF and Scott Anglehart's cross motion for judgment on the pleadings. For the following reasons, Plaintiff's motion for leave to amend is granted, Defendant Browning's motion to dismiss is granted, andDefendants NYSIF and Anglehart's motion for judgment on the pleadings is granted in part and denied in part.

II. BACKGROUND

Plaintiff is an employee of the New York State Insurance Fund, located at their office in Binghamton, New York. See Dkt. No. 90-1 at 1-2. According to Plaintiff's third amended complaint, Defendant NYSIF has allowed "sex-based discrimination, a hostile work environment, and retaliation." Id. at 7.

Plaintiff claims that he has been subjected to such treatment because of his sexual orientation. See id. Plaintiff contends that he has "received unwanted emails having to do with [his] sexual orientation including unwanted sexual pictures of men as well as derogatory stereotype representations of gay men and sex." Id. at 9. One message he received was captioned "'NO AIDS' and portray[ed] a symbolic male figure engaging in unsafe sex with a line drawn through it." Id. Further, Plaintiff contends he was emailed "an image titled 'Gay Terrorist' and [it] depict[ed] a man dressed like a woman in high heels." Id.

Plaintiff also received emails featuring "fully or partially nude men." Id. On one occasion, Plaintiff opened an email that was supposed to contain work material in front of a colleague. See id. When Plaintiff opened the email, "a nude male graphic appeared on the screen and related audio began playing." Id. Plaintiff claims that as a result of this incident, he "felt violated, degraded, humiliated, unaccepted and fearful for [his] job." Id. at 9-10.

Plaintiff claims that he has "opposed discrimination and participated in internal NYSIF discrimination complaints as well as NYS Division of Human Rights investigations." Id. at 10. According to Plaintiff, he has "reported harassing emails and materials placed in [his] work area to [his] supervisors and the NYSIF Affirmative Action and PEF. [His] reporting included NYSIF interviews regarding discriminatory behavior with respect to sexual harassment and writtenresponses." Id. at 10. Plaintiff also alleges that Defendant Anglehart kept "a tally board that tracked . . . those who reported inappropriate sexual emails." Id. at 12.

Plaintiff also claims that he has been falsely named in workplace violence complaints. See id. at 14. One complaint accused Plaintiff of "photographing females to share with the PHS Manager . . . ." Id. at 16. Although Plaintiff does not specify what actions, if any, were taken against him as a result of the ensuing investigation, he does claim that the NYSIF Executive Deputy Attorney and NYSIF Personnel Director "have held meetings with the entire Binghamton staff including the Legal Department and PEF since 2011 regarding this inappropriate activity." Id. at 16.

In May of 2013, NYSIF posted a vacancy notice (E13-03) seeking candidates for a Policyholder Service Manager in the Binghamton District Office. See id. at 19. Plaintiff applied for the position. See id. According to Plaintiff, that same month, "a male coworker who was the subject of discipline for improper computer use, including shared emails containing sexual content, sexual innuendo, profanity and nudity, who also filed a Workplace Violence Complaint naming NYSIF, me, and the Affirmative Action Officer as aggressors of violence in the workplace, then emailed false negative information relating to my personal life to the NYSIF Executive Director, the NYSIF Director of Administration, and the NYSIF Personnel Director stating that I had photographed women at work and that I had thrown a hot cup of coffee at my nephew at home and stated that he is fearful of me and that 'It is evident that Mr. Dollinger's domestic violence has spill[ed] over into the workplace, compromising the safety of . . . coworkers and resulting in lost productivity. . . .'" Id. at 19-20. Despite having worked at the NYSIF for twenty-eight years in various positions, Plaintiff has not been promoted to a management position. See id. at 20-21.

In July of 2013, NYSIF posted a second vacancy notice (E13-04) seeking candidates forthe Policyholder Service Manager position in the Binghamton District Office. See id. at 21. Plaintiff applied for the position but was not interviewed. See id. In August of 2013, Plaintiff was advised by a coworker "that she and others observed information about [his] personal life that was placed in an electronic common retain folder associated with" a fax box, which was used and accessed by the entire staff through NYSIF's email system. See id. "Upon information and belief the information was placed in the folder by the male candidate who had interviewed for Vacancy Notice (E13-03) for PHS Manager." Id. Moreover, on August 14, 2013, coworkers advised Plaintiff that the same male coworker "was now boasting that he and the Legal Department had intervened and that [Plaintiff] would no longer be the selected candidate for PHS Manager." Id. at 22. Plaintiff reported this conduct to the NYSIF Affirmative Action Officer on August 14, 2013 but, after referring the complaint to an outside agency, no action was taken. See id. at 22-23.

Plaintiff claims that he is "being subjected to this hostility, sexual orientation sex-based discrimination and retaliation for opposing discrimination and participating in internal NYSIF discrimination complaints and NYS Division of Human Rights investigations." Id. at 24. Plaintiff alleges that he filed a workplace violence complaint at NYSIF in May of 2014 after being threatened for pursuing his rights. See id. at 25. "Threats and workplace violence [have] continued and include letters and other threatening and derogatory information mailed to [his] home and left in [his] work station including August 2014 and December of 2016 as well as negative interactions, including threats of discipline, harassing letters and negative interactions up through March 2018." Id. at 26-27.

Plaintiff claims that his complaints have not been properly acted on. First, he notes that his complaint was transferred to three investigators. See id. at 28. Further, Plaintiff claims that the investigators have refused to interview his witnesses. See id. at 26. Finally, Plaintiff claimsthat his complaint was improperly withdrawn just prior to beginning arbitration. See id. at 28.

Plaintiff claims that as of March 2018, Defendant Browning continues to have negative interactions with him. See id. These interactions include entering Plaintiff's personal space, acting aggressively, slamming doors and items, and conduct which Plaintiff describes as stalking. See id. at 28-29.

The proposed third amended complaint includes an October 6, 2017, right to sue letter from the EEOC, a new pro se complaint form that makes sex...