In a recent decision, captioned Roenick v. Sam Flood et al, No. 20-cv-7213, 2021 WL 2355108 (SDNY June 9, 2021), the court dismissed claim of gender and sexual orientation discrimination asserted by former professional hockey player Jeremy Roenick.
The court summarized the pertinent allegations as follows:
The key events at issue here began when Roenick appeared on an episode of a Barstool Sports podcast called “Spittin’ Chiclets.” The podcast was recorded on December 17, 2019 and released the next day. During the podcast, Roenick told a story about a recent vacation he had taken with his wife and Tappen, who, in addition to being Roenick’s coworker, was also his friend. He said that he “joked with fellow vacationers” that he would “go to bed” with both his wife and Tappen, implying that the three individuals had sexual relations together. Id. (internal quotation marks omitted). Roenick clarified though that in reality this “is never going to happen.”
After the podcast aired, Flood sent Roenick a text message that said: “[Y]ou went too far. You may have crossed a line that there was no return from. I’m really upset, and I need to take a couple days to figure out my next move.” On December 24, 2019, NBC issued a press release that said Roenick was indefinitely suspended without pay. Roenick posted a video-message to his Twitter account on January 11, 2020 in which he apologized for his comments. He said: “I want to take this opportunity to apologize to NBC Sports, Kathryn Tappen, [and others] for some insensitive comments I made on a recent podcast. I never meant to offend anyone, and I definitely went too far, and for that, I deeply regret it.” On February 6, 2020, Flood called Roenick and told him that he could not return to NBC because of his “inappropriate comments about fellow coworkers.” Neither NBC nor Flood gave Roenick an opportunity to “cure the act” that was “deemed sufficient for termination.” Further, according to Roenick, his termination came shortly after he complained to Flood about Flood’s allegedly “discriminatory and harassing statements” to Tappen.
(2021 WL 2355108, at *2 (citations omitted; cleaned up).)
Roenick asserts that defendants subjected him to repeated unequal treatment, harassment and ultimately terminated him because of his sex and sexual orientation.
Specifically, the court describes the “crux” of Roenick’s discrimination claims as being that “Defendants would not have terminated [him] for relaying a story about [how] he had jokingly implied while on vacation that he was romantically involved with both his wife and a co-worker that was vacationing with them were he not a heterosexual male” or Defendants would have given him “an opportunity to cure the alleged breach of the public morals clause [contained in his employment agreement] were [Roenick] not a heterosexual male.” (Id. at *4.)
Plaintiff attempted to support his discrimination claims by pointing to defendants’ allegedly better treatment of two “comparators” – Tara Lipinski and Johnny Weir.
The court rejected this argument, however, since these comparators were not “similarly situated” to the plaintiff:
The only fact alleged in the Complaint suggesting that Lipinski and Weir were similarly situated to Roenick is that they too were “NBC commentators and personalities.” Compl. ¶ 23. For the first time in his Opposition, Roenick says that it is “minimally plausible and consistent with common sense” that Lipinski and Weir had “the same public morals clauses in their own contracts” with NBC. Opposition at 12. This appears to be an attempt to allege that all three individuals were “subject to the same performance evaluation and discipline standards.” Graham, 230 F.3d at 40. Such a conclusory allegation (which was not pleaded in the Complaint) does little to illustrate this. Further, Roenick fails to show that his conduct was “of comparable seriousness” to that of Lipinski and Weir. Id. And a comparison of the two incidents shows that Roenick’s behavior was categorically different. Lipinski and Weir participated in a skit for NBC that included jokes about the term “camel toe” and an “[o]ffice romance” between “besties.” Compl, Exh. A; see also id. ¶ 23. Roenick, on the other hand, used his “free time” outside of his role at NBC to tell the hosts of a Barstool Sports podcast that he “jokingly implied” to fellow vacationers that he had sex simultaneously with his NBC co-worker, Tappen, and his wife on multiple occasions. Opposition at 4; see also Compl. ¶ 16. Roenick’s public Twitter apology approximately three weeks later—in which he apologized to Tappen and others “for some insensitive comments [he] made on a recent podcast” in which he “definitely went too far”—underscores the offensive nature and seriousness of these remarks. Compl. ¶ 18. Simply put, neither Lipinski nor Weir joked about having sex with a co-worker. Roenick did. Whether these two incidents were “of comparable seriousness,” Graham, 230 F.3d at 40, is not even close. (Id. at *5.)
The court also rejected plaintiff’s reliance on a single comment that defendant Flood made in 2018 about Weir – namely, that Weir “is gay and can say whatever,” holding that this was a non-actionable “stray remark.” In reaching this conclusion, the court cited the fact that Flood allegedly made this single comment approximately two years before plaintiff’s termination, and plaintiff did “not allege that Flood’s single comment, which was not even about Roenick or heterosexual men, arose in a context at all related to the decision to suspend and later terminate him.” (Id. at *6 (internal quotation marks omitted).)
Based on this, the court dismissed plaintiff’s claim for sex and sexual orientation asserted under the New York State Human Rights Law. It also held that plaintiff failed to state a claim under the New York City Human Rights Law; though that statute must be interpreted more broadly/liberally than its state-law counterpart, plaintiff’s complaint ” fails to allege any facts suggesting that Roenick’s termination was related to his sex or sexual orientation” and thus failed under even the broader NYCHRL standard. (Id. at *7.)