In Dollinger v. N.Y. State Ins. Fund, No. 314CV908MADDEP, 2016 WL 6833993 (N.D.N.Y. Nov. 18, 2016), the court dismissed plaintiff’s disability discrimination, hostile work environment, and retaliation claims.
Plaintiff alleged, inter alia, “that he has been subjected to such treatment because he is ‘regarded as belonging to a group associated with high risk for HIV/AIDS; homosexual men living with HIV/AIDS.’”
After summarizing the law, the court proceeded to apply it to the facts. In dismissing plaintiff’s hostile work environment claims, the court explained:
Plaintiff has failed to allege conduct sufficiently severe to plausibly allege a hostile work environment. In his second amended complaint, Plaintiff repeatedly alleges that he was subjected to hostile comments and actions by his coworkers. The majority of these comments, however, are in no way related to any alleged disability. Plaintiff alleges that he has received unwanted emails including unwanted sexual pictures of men as well as derogatory stereotype character representations of gay men and unsafe sex. One graphic references ‘NO AIDS’ and portrays a symbolic male figure engaging in unsafe sex with a line drawn through it. One email has an image titled ‘Gay Terrorist’ and depicts a man dressed like a woman in high heels. This is the only specific allegation raised in the second amended complaint in which Plaintiff claims that he was subjected to harassment related to HIV or AIDS. The remaining allegations generally pertain to comments made by unidentified individuals regarding Plaintiff’s sexuality, which cannot support an ADA [Americans with Disabilities Act] or RA [Rehabilitation Act] hostile work environment claim. The one identified incident in the second amended complaint is insufficient to meet the threshold of severity or pervasiveness. Moreover … Plaintiff has failed to plausibly allege that he is regarded as being disabled within the meaning of the ADA and RA.
The court also dismissed plaintiff’s retaliation, finding that plaintiff “failed to plausibly allege that he suffered a materially adverse employment action.”