SIMONTON v. RUNYON, 232 F.3d 33 (2nd Cir. 2000)
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.
Docket No. 99-6180.
United States Court of Appeals, Second Circuit.
Argued: February 8, 2000.
Decided: August 22, 2000.
Amended: October 23, 2000.
Appeal from the United States District Court for the
Eastern District of New York, Leonard D. Wexler, J.
Frederick Ostrove, Leeds & Morelli, Esqs., Carle Place, N.Y.,
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
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. Ã‚Â§ 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.
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
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.[fn1]
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. Ã‚Â§ 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,
106 S.Ct. 2399, 91 L.Ed.2d 49 (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 Title 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)
("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 several male applicants for a
promotion in order to hire a woman with whom the employer had a
romantic relationship. Interpreting the definition of "sex," we
the other categories afforded protection under Title
VII refer to a person's status as a member of a
particular race, color, religion or nationality.
"Sex," when read in this context, logically could
only refer to membership in a class delineated by
gender, rather than sexual activity regardless of
gender. . . . The proscribed differentiation under
Title VII, therefore, must be a distinction based on
a person's sex, not on his or her sexual
Id. at 306-07; see also DeSantis, 608 F.2d at 329-30. Because
the term "sex" in Title VII refers only to membership in a class
delineated by gender, and not to sexual affiliation, Title VII
does not proscribe discrimination because of sexual orientation.
Simonton argues that Oncale v. Sundowner Offshore Services,
Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998),
permits us to revisit our holding in DeCintio. We disagree that
such an opportunity presents itself here. In Oncale, the
Supreme Court rejected a per se rule that same-sex sexual
harassment was non-cognizable under Title VII. The Court reasoned
that "nothing in Title VII necessarily bars a claim of
discrimination `because of . . . sex' merely because the
plaintiff and the defendant (or person charged with acting on
behalf of the defendant) are of the same sex." Id. at 79,
118 S.Ct. 998 (alteration in original). Oncale did not suggest,
however, that male harassment of other males always violates
Title VII. Oncale emphasized that every victim of such
harassment must show that he was harassed because he was male.
See id. at 80-81, 118 S.Ct. 998.
Subsequent to the Supreme Court's decision in Oncale, the
First Circuit has reaffirmed the inapplicability of Title VII to
discrimination based on sexual orientation. See Higgins,
194 F.3d at 259 ("[W]e regard it as settled law that, as drafted and
authoritatively construed, Title VII does not proscribe
harassment simply because of sexual orientation.") (citing
Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 751-52 (4th
Cir. 1996), and Williamson, 876 F.2d at 70). We likewise do not
see how Oncale changes our well-settled precedent that "sex"
refers to membership in a class delineated by gender. The
critical issue, as stated in Oncale, "is whether members of one
sex are exposed to disadvantageous terms or conditions of
employment to which members of the other sex are not exposed."
Oncale, 523 U.S. at 80, 118 S.Ct. 998. Simonton has alleged
that he was discriminated against not because he was a man, but
because of his sexual orientation. Such a claim remains
non-cognizable under Title VII.
Simonton argues in the alternative that the harassment he
suffered could be construed as discrimination based on sex rather
than sexual orientation. He raises three arguments in this vein.
Simonton first argues that, if the plaintiff's case in Oncale
was sufficient to withstand summary judgment, he has pled facts
sufficiently similar to those in Oncale to withstand dismissal.
We are mindful that this case comes to us after a dismissal
pursuant to Rule 12(b)(6), and that "[g]enerally a complaint that
gives full notice of the circumstances
giving rise to the plaintiff's claim for relief need not also
correctly plead the legal theory or theories and statutory basis
supporting the claim." Marbury Management, Inc. v. Kohn,
629 F.2d 705, 712 n. 4 (2d Cir. 1980). Nevertheless, there is no
basis to infer from the complaint that the harassment Simonton
suffered was because of his sex and not, as he urges throughout
his complaint, because of his sexual orientation. In the context
of male-female sexual harassment, involving more or less explicit
sexual proposals, it is easy to infer discrimination because of
sex since "it is reasonable to assume those proposals would not
have been made to someone of the same sex." Oncale,
523 U.S. at 80, 118 S.Ct. 998. And, as the Supreme Court stated, "[t]he same
chain of inference would be available to a plaintiff alleging
same-sex harassment, if there were credible evidence that the
harasser was homosexual." Id. But since Simonton does not offer
"direct comparative evidence about how the alleged harasser
treated members of both sexes in [his] mixed-sex workplace,"
id. at 80-81, 118 S.Ct. 998, and does not allege a basis for
inferring gender-based animus, we are unable to infer that the
alleged conduct would not have been directed at a woman.
Accepting as true all the facts that Simonton has pled, the only
inference we can draw is that he was harassed because of his
sexual orientation. As we have explained, such harassment is not
cognizable under Title VII.
Simonton also argues that discrimination because of sexual
orientation is discrimination based on sex because it
disproportionately affects men. We decline to adopt a reading of
Title VII that would also "achieve by judicial `construction'
what Congress did not do and has consistently refused to do on
many occasions," DeSantis, 608 F.2d at 330. Therefore, this
argument is unavailing.
Simonton next relies on Price Waterhouse v. Hopkins,
490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), to argue that the
abuse he suffered was discrimination based on sexual stereotypes,
which may be cognizable as discrimination based on sex. We find
this argument more substantial than Simonton's previous two
arguments, but not sufficiently pled in this case. We express no
opinion as to how this issue would be decided in a future case in
which it is squarely presented and sufficiently pled.
The plaintiff in Price Waterhouse filed suit after having
been denied partnership in an accounting firm, in part because
she was "macho." Id. at 235, 109 S.Ct. 1775. She was advised
that she could improve her chances for partnership if she would
"walk more femininely, talk more femininely, dress more
femininely, wear make-up, have her hair styled, and wear
jewelry." Id. (internal quotation marks omitted). Justice
Brennan, writing for the plurality, held that this was
impermissible sex discrimination, and that "[i]n the specific
context of sex stereotyping, an employer who acts on the basis of
a belief that a woman cannot be aggressive, or that she must not
be, has acted on the basis of gender." Id. at 250,
109 S.Ct. 1775. Other courts have suggested that gender discrimination Ã¢â‚¬â€
discrimination based on a failure to conform to gender norms Ã¢â‚¬â€
might be cognizable under Title VII. See Schwenk v. Hartford,
204 F.3d 1187, 1202 (9th Cir. 2000) (stating, in dicta, that
Title VII encompasses instances in which "the perpetrator's
actions stem from the fact that he believed that the victim was a
man who `failed to act like' one" and that "`sex' under Title VII
encompasses both sex Ã¢â‚¬â€ that is, the biological differences
between men and women Ã¢â‚¬â€ and gender" (emphasis omitted));
Higgins, 194 F.3d at 261 n. 4 ("[J]ust as a woman can ground an
action on a claim that men discriminated against her because she
did not meet stereotyped expectations of femininity, a man can
ground a claim on evidence that other men discriminated against
him because he did not meet stereotypical expectations of
masculinity.") (citation omitted).
Simonton argues that the same theory of sexual stereotyping
could apply here, as
the harassment he endured was based on his failure to conform to
gender norms, regardless of his sexual orientation. The Court in
Price Waterhouse implied that a suit alleging harassment or
disparate treatment based upon nonconformity with sexual
stereotypes is cognizable under Title VII as discrimination
because of sex. This theory would not bootstrap protection for
sexual orientation into Title VII because not all homosexual men
are stereotypically feminine, and not all heterosexual men are
stereotypically masculine. But, under this theory, relief would
be available for discrimination based upon sexual stereotypes.
We do not reach the merits of this issue, however, as Simonton
has failed to plead sufficient facts for our consideration of the
issue. See Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir.
1996) ("A conclusory allegation without evidentiary support or
allegations of particularized incidents, does not state a valid
claim.") (alteration omitted) (quoting Butler v. Castro,
896 F.2d 698, 700 (2d Cir. 1990)). We do not have sufficient
allegations before us to decide Simonton's claims based on
stereotyping because we have no basis in the record to surmise
that Simonton behaved in a stereotypically feminine manner and
that the harassment he endured was, in fact, based on his
non-conformity with gender norms instead of his sexual
orientation. Moreover, because this theory was not presented to
the district court, we are without the benefit of lower court
consideration. In the circumstances, we think the wisest course
is to defer consideration of the merits of such an argument to
another case in which it comes to us after being properly pled
and presented to the district court.
We have considered Simonton's remaining arguments and find them
to be without merit. For the reasons set forth above, the
judgment of the district court is AFFIRMED.
[fn1] Judge Katzmann concurs in the judgment on the basis of Part
I. He does not join Part II, believing that it is not necessary
to address the claims discussed in Part II on the ground that
they were not presented to the district court and therefore have