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Anonymous v. Omnicom Grp., Inc.

United States Court of Appeals for the Second Circuit

January 20, 2017, Argued; March 27, 2017, Decided

Docket No. 16-748

Opinion

 [*197]  Per Curiam [**4] :

Plaintiff-appellant 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  [*198]  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.2

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 [**5]  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 [**6]  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.

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852 F.3d 195 *; 2017 U.S. App. LEXIS 5278 **; 129 Fair Empl. Prac. Cas. (BNA) 1848; 101 Empl. Prac. Dec. (CCH) P45,760; 2017 WL 1130183

ANONYMOUS, Plaintiff, MATTHEW CHRISTIANSEN, Plaintiff-Appellant, - v. - OMNICOM GROUP, INCORPORATED, DDB WORLDWIDE COMMUNICATIONS GROUP INCORPORATED, JOE CIANCIOTTO, PETER HEMPEL, AND CHRIS BROWN, Defendants-Appellees.

Subsequent History: As Amended March 27, 2017.

On remand at, Stay granted by Christiansen v. Omnicom Grp., Inc., 2017 U.S. Dist. LEXIS 112627 (S.D.N.Y., July 18, 2017)

Prior History: Plaintiff-appellant Matthew Christiansen brought this action against his employer under, inter alia, Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., alleging that he was subjected to various forms of workplace discrimination due to his failure to conform to gender stereotypes. The United States District Court for the Southern District of New York (Failla, J.) construed Christiansen's Title VII claim as an impermissible sexual orientation discrimination claim and dismissed it pursuant to Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000). On appeal, Christiansen argues that we should reconsider our decision in Simonton and hold that Title VII prohibits discrimination on the basis of sexual orientation. This panel lacks the authority to reconsider Simonton, which is binding precedent. However, we hold that Christiansen's complaint plausibly alleges a gender stereotyping claim cognizable under the Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989) [**1] . Therefore, we REVERSE the district court's dismissal of Christiansen's Title VII claim and REMAND for further proceedings consistent with this opinion. We AFFIRM the judgment of the district court in all other respects.

Christiansen v. Omnicom Grp., Inc., 167 F. Supp. 3d 598, 2016 U.S. Dist. LEXIS 29972 (S.D.N.Y., Mar. 9, 2016)

CORE TERMS

sexual orientation, stereotyping, sex, gender, sex discrimination, district court, discriminated, ***, allegations, bisexual, cognizable, attracted, discrimination claim, effeminacy, decisions, depicted, female, articulated, associates, encompass, quotation, feminine, harassed, same-sex, treating, married, marks, woman, motion to dismiss, man and woman

Civil Procedure, Appeals, Standards of Review, De Novo Review, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Pleadings, Complaints, Requirements for Complaint, Labor & Employment Law, Discrimination, Gender & Sex Discrimination, Scope & Definitions, Governments, Courts, Judicial Precedent, Scope & Definitions, Gender Stereotypes