Firefighter’s Sexual Orientation Discrimination Claim Survives Dismissal

In Johnson v. City of New York, 2020 WL 2036708 (S.D.N.Y. April 28, 2020), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s sexual orientation discrimination claims asserted under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law.

From the decision::

Plaintiff has stated a Title VII claim that his transfer from SOC [Special Operations Command] was at least in part due to discrimination on the basis of perceived sexual orientation. Smith allegedly said that he wanted Plaintiff to leave SOC in part because “[m]y guys don’t feel comfortable with you.” FAC ¶ 49. Plaintiff has plausibly alleged that the principle source of his co-workers’ discomfort with him came from his perceived sexual orientation. He has done so by pointing to a number of derogatory comments from his co-workers that involved his perceived sexual orientation, as well as one alleged instance of sexual assault. See FAC ¶¶ 33-46.

When evaluating a motion to dismiss in an employment discrimination case, the Court must “be mindful of the elusive nature of intentional discrimination” and “draw on its judicial experience and common sense.” Vega, 801 F.3d at 86 (quotations omitted). At this stage in the proceeding, Plaintiff may draw the plausible inference that when Smith told Plaintiff to leave SOC, he was aware of the allegedly true reason why his “guys [didn’t] feel comfortable” with Plaintiff: because they believed he was gay. If Smith decided that Plaintiff should leave SOC in part because of what he knew to be the homophobic “discomfort” of other firefighters with Plaintiff, this would of course violate Title VII. See Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc). Plaintiff has therefore provided at least minimal support to raise an inference of discrimination on the basis of perceived sexual orientation. The motion to dismiss this claim is denied.

The court did, however, dismiss plaintiff’s race discrimination claims, noting, inter alia, that while plaintiff alleged that he was “singled out,” he did not allege that similarly-situated white firefighters were not “singled out.”