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Rodriguez v. City of Danbury

United States District Court, D. Connecticut

September 30, 2019




         Plaintiff Reynoldo Rodriguez brings this action for damages and injunctive relief against the City of Danbury (“City”); Mark Boughton in his official capacity as the Mayor of Danbury; and Danbury Fire Department (“DFD”) Deputy Chief Bernard Meehan, Chief TJ Wiedl, and former Chief Geoffrey Herald in their individual capacities. The complaint asserts Title VII claims against the City for a hostile work environment and disparate treatment based on sex, race, and national origin; a Monell claim under 42 U.S.C. § 1983 alleging Boughton's failure to take action to investigate, remedy and prevent discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment; and equal protection sex discrimination claims under § 1983 against Meehan, Wiedl, and Herald. Defendants have moved for summary judgment. For reasons stated below, the City's motion is granted and part and denied in part as to the claims under Title VII and granted as to the Monell claim; Meehan's motion is denied; and the motion submitted by Wiedl and Herald is granted.

         I. Background

         The evidence in the record, construed in the light most favorable to plaintiff, shows the following. Plaintiff identifies as Hispanic of Puerto Rican descent. When he joined the DFD as a firefighter in July 1987, he was one of only a few minority employees.[1] The DFD's structure is hierarchical, with defined chains of command. In 1987, plaintiff's chain of command was his Company Officer, his Captain, his Deputy Chief, the Assistant Chief, the Chief, and the Mayor.[2] He also joined the union, the International Association of Firefighters Local 801 (“Union”).

         From the beginning of his career at the DFD, plaintiff was subjected to racial discrimination. Lieutenant Stephen Omasta questioned whether plaintiff was “an affirmative action hire” and asked why the DFD could not “just give the job to a white guy.” Coworkers frequently called plaintiff “freakin' Puerto Rican.” Dave Bonner and Bob Vossburgh regularly suggested that plaintiff “go back to where [he] came from.” While none of these individuals was in plaintiff's chain of command, he reported the comments to his Company Officer, Lieutenant Carl Freundt, with no result. When plaintiff asked Freundt if he should go directly to Human Resources (“HR”) with his complaints, Freundt responded that it was better to keep such issues in-house.

         Firefighter Lou DeMici served as Union president from around the time plaintiff was hired until sometime in the last few years. DeMici “was a card-carrying racist” who frequently suggested that plaintiff and Steve Johnson, who is African American, form their own union. DeMici repeatedly made the same statement to Steve Rogers, who is also African American. Throughout his employment, DeMici regularly used racial slurs such as “spic, ” “nigger, ” “beaner, ” and “wetback.” Plaintiff complained about DeMici's comments to Freundt without result.

         Rogers joined the DFD as a firefighter in 1999. He recalls hearing racial slurs from the time he started, including “nigger” and “eggplant, ” and regularly overhearing homosexual slurs directed at plaintiff. Individuals in the DFD also made comments to the effect that Hispanic and black community members were “abusing the system.”

         Sometime between 1987 and 1990, Ed Vacovetz told an offensive joke about Puerto Ricans and skunks to plaintiff in front of other crew members. It is not clear if Vacovetz was in plaintiff's chain of command at the time; he was not in plaintiff's chain of command when plaintiff was hired in 1987. However, by July 1996, Vacovetz was plaintiff's Deputy Chief. Interpreting the facts in the light most favorable to plaintiff, Vacovetz was in plaintiff's chain of command at the time of this incident.

         Around 1993, plaintiff applied for a lieutenant position. He ranked seventh on the eligibility list.[3] The first five people listed were eventually promoted. Plaintiff suspected at least one of them was given an unfair advantage, perhaps due to plaintiff's race. However, he never complained internally about not being promoted from the 1993 eligibility list.

         The 1993 list expired in May 1995. Another test was conducted in January 1996, which plaintiff did not pass. Accordingly, he was no longer eligible for a permanent promotion to lieutenant as of early 1996. Nevertheless, pursuant to the Union's Collective Bargaining Agreement, plaintiff became Acting Lieutenant in February 1996 when a temporary vacancy opened. However, he lost the position in July after the DFD manipulated rosters, moving vacancies to other crews so that other individuals would be promoted instead. The Union filed a grievance with the City on plaintiff's behalf. Additionally, in the fall of 1996, plaintiff filed a pro se complaint with the Connecticut Commission on Human Rights and Opportunities (“CHRO”) and the Equal Employment Opportunity Commission (“EEOC”). He alleged discrimination based on his race (Hispanic) and ancestry (Puerto Rican) when he lost the position of Acting Lieutenant in July 1996. He also referenced the previous hiring decisions based on the 1993 eligibility list.

         After plaintiff filed the CHRO complaint, he was accused of “playing the race card” and severely ostracized. His peers would not eat with or talk to him. In one dangerous incident, plaintiff and others were fighting a fire when, without notifying plaintiff, the rest of the crew abandoned the house out of a fear it would collapse. His peers' behavior caused plaintiff so much stress he could not sleep. Corporation counsel for the City gave plaintiff's personal phone number to a local newspaper. Reporters called plaintiff about the complaint, causing stress in his marriage. Ultimately, plaintiff “was just so beat down” that he dropped the complaint.

         Plaintiff complained about the retaliation to his chain of command, including Deputy Chief Pechaski, Assistant Chief Peter Siecienski, and Chief Carmen Oliver. Siecienski told him the retaliation was the result of plaintiff's decision to “play the race card.” Pechaski and Oliver simply encouraged plaintiff to get transferred to a different crew, which he did in March 1997. Even on his new crew, however, the situation was not much better; several firefighters, including Stephen Omasta and Rich Krikorian, continued to accuse him of “playing the race card.” After plaintiff complained to Lieutenant Bobby Keenan, Keenan spoke to the crew and the situation appeared to improve somewhat. In May 1997, however, matters again took a turn for the worse. Plaintiff left a cup of tea on a table. When he later returned and drank the tea, he found someone had filled the cup with dish soap. Plaintiff became sick with vomiting, diarrhea, and a rectal bleed. He reported the issue to Pechaski and Keenan, who sent him home. Plaintiff had an anxiety attack and was ultimately hospitalized with severe depressive symptoms for several days. He was diagnosed with major depression, which he attributes solely to the workplace harassment. He reported the soap incident to his chain of command, but does not know if an investigation was ever performed, and no one followed up with him about it. Nobody would admit to putting soap in the teacup but Mike Brennan and Chip Daly told him they knew it was there. Members of the DFD discussed the soap incident regularly and considered it a joke. Daly coined the term “Retching Rey” as a nickname for plaintiff.

         In March 1998, the Mayor appointed plaintiff to his current position, Emergency Medical Services (“EMS”) Coordinator. His new chain of command was the Assistant Chief, Chief, and Mayor. Others had applied for the position, including Meehan and Mark Omasta, who are both white. After plaintiff got the appointment, Meehan lashed out at him with ethnic insults. Meehan told plaintiff that he got the job because he's Hispanic and called him “Fidel.” Meehan also called him “angry Hispanic” many times. At some point between 1999 and 2005, when plaintiff ran the Community CPR program, Meehan publicly called him a “CPR chimp.” Plaintiff attributes this behavior to Meehan's anger that someone who was Hispanic got the EMS Coordinator job over him.

         In the late 1990s, the discriminatory comments plaintiff experienced in the workplace shifted. Ethnic slurs continued but the comments were more often sexual in nature.[4] Plaintiff attributes the shift to his CHRO complaint, believing his coworkers thought they could not be accused of discrimination if they made homophobic, as opposed to racial, comments. The “constant barrage of homosexual taunts” included foul language such as “faggot, ” “queer, ” “homo, ” “rump rider, ” “cum guzzler, ” “dicky-licker, ” and “cocksucker” and statements that he “liked taking it in the ass.” Plaintiff, who identifies as heterosexual, does not know if anyone actually perceived him to be homosexual. Rather, he reasons that because the DFD is “an alpha male society, ” the taunts were intended to “demean [him] as a human being, as a man” -- “to make [him] less than they are, to treat [him] less than they are.” The terms were used by various firefighters whenever plaintiff entered a room. Plaintiff believes he was targeted because he “wasn't a manly man” and did not work on the front lines fighting fires after his promotion to EMS Coordinator.

         In the late 1990s, Meehan began behaving in an inappropriately sexual manner toward plaintiff. This included frequent attempts to hug or otherwise touch him -- including regular requests for what Meehan called “man hugs” -- as well as telling plaintiff he had “nice man boobs.” In one undated incident, Meehan grabbed plaintiff's pectorals from behind and ground his groin into plaintiff while saying “[y]ou got man boobs” and “I like you a lot.” This behavior was ongoing from 1998 until Chief Herald ordered Meehan to stop touching plaintiff in January 2014. Plaintiff has not observed Meehan treat anyone else in the DFD this way. Meehan's behavior undermined plaintiff's self-respect and “[t]he constant touching left [plaintiff] anxious around him.” Plaintiff does not know what Meehan's motivation was, sexual or otherwise. Plaintiff complained verbally to Herald and Meehan about the behavior.

         After September 11, 2001, plaintiff was placed in charge of the HazMat team. This assignment required more duties than plaintiff should have had to perform as EMS Coordinator. Many firefighters were angry that plaintiff was appointed to this role in place of Paul Omasta. Soon after his appointment, some people made comments that plaintiff “played the race card” to get the appointment, even though he did not apply for the position.

         Positions in the DFD are divided between “staff” personnel (support personnel, such as the EMS Coordinator) and “line” personnel (those who fight fires and engage in other emergency operations). Staff positions do not carry rank, whereas line positions can have rank. Nevertheless, plaintiff believes that under the City's ordinances, the EMS Coordinator is entitled to rank -- perhaps the rank of lieutenant or deputy chief. He also believes having rank would entitle him to additional respect, making his job easier. Steve Rogers agrees. Plaintiff brought the rank issue to the attention of Chief Siecienski in 2005 and to Chief Herald in 2008, but staff positions are still not entitled to rank.

         Plaintiff applied for the Drillmaster/Training Officer position in February 2006. Mark Omasta ranked first on the list of applicants, Kevin Plank second, and plaintiff third. Mayor Boughton appointed Omasta to the position. Plaintiff and Plank reviewed the tapes of the interviews of the applicants and the scoring sheet and concluded that scores had been changed in favor of Omasta. They challenged the outcome with the Civil Service Commission. They were told the ranking did not matter because the Mayor wanted Omasta for the job. Plaintiff believes he was not hired for this position because of his race. Plank and Omasta are white.

         As soon as Omasta became Drillmaster, he began wearing collar brass on his uniform displaying three bugles, which represents the rank of Deputy Chief. His action was in contravention of the regulations because the Drillmaster position does not have rank. The regulations instead permit the Drillmaster to wear a gold eagles insignia.

         Herald became Chief in April 2007.[5] Shortly thereafter, he asked plaintiff to buy him lunch. After the meal, Herald began to drive aimlessly around Danbury before stopping at an abandoned property. Plaintiff felt very uncomfortable. Herald exited the car, stood in front of it facing plaintiff, exposed himself, and urinated.

         In early November 2009, plaintiff discussed the issue of rank insignia with Chief Herald. Herald instructed plaintiff and communications coordinator Pat Sniffin to wear captain's bars. After plaintiff spent $500 to comply, Herald abruptly changed his mind and told plaintiff and Sniffin to take off the bars. Omasta continued to wear the Deputy Chief bugles.

         In late November 2009, plaintiff saw Herald talking to a woman at a bar. The woman appeared annoyed with Herald's advances, so when Herald stepped away, plaintiff offered her a ride home, which she accepted. Herald eagerly approached plaintiff the next day to discuss the incident and said, “Next time we can do a threesome.” Plaintiff thought Herald might have meant he wanted to have sex with plaintiff.

         Meehan began calling plaintiff “half-a-day Rey” sometime after 2009. Plaintiff understood this to be a racist term, implying Hispanics are lazy. He complained verbally to Herald. Many other firefighters adopted the term, and sometime between 2011 and 2015, Chief Herald repeated the phrase in front of the whole dispatch crew. He also used the term on other occasions, including in front of Steve Rogers. Rogers testified there was a “running joke” that plaintiff was lazy, including that Herald would call plaintiff over the intercom at 4:55 PM to make sure he was still at work.

         Meehan falsely complained to Herald about seeing plaintiff and Rogers' city vehicles in locations where they were not supposed to be around 2010 (plaintiff) and sometime between 2011 and 2014 (Rogers). Plaintiff believes these complaints were racially motivated because Meehan never complained about Omasta taking his vehicle home when he was Drillmaster.

         In April 2011, plaintiff sought to resign as HazMat team leader because not having rank and being subjected to homophobic and ethnic slurs made it difficult to control a team of twenty-five men and because the HazMat duties were not in his job description as EMS Coordinator. When he attempted to resign, he told Chief Herald his resignation was based in part on the homosexual slurs. Herald did not accept plaintiff's or address his concerns, except to send an email regarding the lack of civility in the DFD in general.

         By 2012 or 2013, Rogers perceived plaintiff to be a “beaten man” from “years of abuse” and from the lack of diversity in the DFD. Around the same time, plaintiff found a life-sized inflatable sex doll left in his office. Plaintiff brought it to Herald, who told him to dispose of it. Herald told Wiedl to investigate who had placed the doll in plaintiff's office, but the responsible party was never identified. Herald did not report the incident to HR.

         On January 18, 2013, plaintiff, Meehan, Chief Herald, Assistant Chief Wiedl, and three Deputy Chiefs, among others, attended a staff meeting at City Hall. Meehan placed his feet in plaintiff's lap and touched his chest, tickling and stroking his nipple. Plaintiff reported this to Herald, who indicated via email he would address the issue with Meehan. Herald understood plaintiff to be alleging Meehan had touched him sexually. Nobody in attendance reported seeing the incident. However, Herald testified the staff meeting took place at a long table and he would not have been able to see what actually happened. In response to plaintiff's complaint, Herald directed plaintiff to stay away from Meehan and advised him to contact HR. Herald did not contact HR himself.[6]

         On February 6, 2013, plaintiff emailed Chief Herald to say he was interested in attending a training. Herald responded, copying Wiedl. He wrote that if plaintiff did not provide his supervisor with specifics as to why he wanted to attend the training, “there is a very high probability that the supervisor will deny the request and not allow you to attend any activities beyond the tiny squalid office you inhabit. That is what I would do. Just saying.” Herald stated in his deposition the “supervisor” was Herald himself. Plaintiff understood the email's reference to “the tiny squalid office [he] inhabit[s]” to be a discriminatory comment based on his race or national origin.

         Over the years, plaintiff submitted written complaints to members of his chain of command complaining about how others were treating him, including that firefighters were acting up in his training classes. However, none of those complaints mentioned protected characteristics such as race, sex, or national origin. Rather, they often attributed the harassment to ill will between staff personnel and line personnel or to plaintiff's lack of rank. Plaintiff explains he did not allege discrimination based on protected characteristics due to the severe ostracization he faced for “playing the race card” when he filed the 1996 CHRO complaint. Several of the complaints were investigated within the DFD or by HR.[7]

         Plaintiff filed a CHRO complaint on April 17, 2013. The complaint alleged he was harassed, discriminated against in the terms and conditions of his employment, and subjected to a hostile work environment based on his national origin.

         Meehan continued to touch plaintiff inappropriately around once a month in 2013. This touching included groping plaintiff's chest as well as grabbing plaintiff from behind and pretending to have sex with him. On January 6, 2014, Meehan entered plaintiff's office and stated he needed a “man hug.” Plaintiff told Meehan not to come behind his desk and put his leg up to block Meehan's path. Meehan straddled plaintiff's leg and repeatedly humped it. Rogers overheard this incident, as his office was next door to plaintiff's.[8] He heard plaintiff say “get off me” repeatedly and “a bunch of tussling” which “sounded like a fight.” Immediately after the incident, plaintiff came to Rogers's office and told him what happened. Rogers advised plaintiff to report Meehan's behavior, but plaintiff said it would be useless to do so. Rogers decided to report the incident himself. When he told Chief Herald and Assistant Chief Wiedl that Meehan had humped plaintiff's leg, Herald and Wiedl responded in unison, “Again?” When Rogers asked for clarification, Herald said that Meehan “just likes touching” plaintiff, that Herald had gotten complaints about Meehan touching plaintiff, and that Meehan was “never going to learn.” When Rogers told Herald to report the incident to HR, Herald said they would “handle this in-house.” Rogers then threatened to write a letter to HR himself, after which Herald agreed to report the incident to HR.

         On January 7, 2014, plaintiff walked into the fire station and saw Meehan sitting in a chair.[9] In front of the crew, Meehan rolled his chair over to plaintiff and tried to grope plaintiff's groin.

         Plaintiff reported the leg-humping incident to Chief Herald in writing on January 8. He wrote, “This made me feel very uncomfortable and this is not the first time [Meehan] has behaved in this manner towards me and I want it to stop!” He also recalls reporting the January 7 incident to Herald. On January 9, Rogers wrote to Herald that he “heard [Meehan] attack [plaintiff] the other day.”

         HR investigated both the January 6 and January 7 incidents, including interviewing plaintiff and Rogers. HR concluded in March 2014 that it could not corroborate plaintiff's allegations. Nevertheless, Meehan was required to participate in the Employee Assistance Program (“EAP”). Meehan has not touched plaintiff inappropriately since January 2014.

         Rogers received the highest score on the Drillmaster promotional examination and was sworn into the position in April 2015. People told Rogers they were disappointed the Drillmaster position did not go to another firefighter. Chief Wiedl tried to get Rogers to take a position in the fire marshal's office rather than the Drillmaster position. When the Drillmaster promotional examination results were posted on a whiteboard, showing that Rogers received by far the highest score, someone wrote on the board, “Where's the REAL list?!” Rogers overheard individuals saying he “got black points” in his promotion and asking how “a person like him” could “be that smart.” Though Omasta had worn the three-bugles insignia for years as the Drillmaster, as soon as Rogers became Drillmaster and wore the same insignia, Wiedl told him to remove it.

         In 2015 or 2016, Karl Drentwet referred to plaintiff “sucking penis” and made other homophobic comments to plaintiff. Also in 2015 or 2016, plaintiff was in the DFD shower when another firefighter entered the shower and disrobed. The shower has a single working shower head, so only one person can shower at a time. Plaintiff did not think the firefighter was making a sexual advance toward him, but he got nervous and left. He did not complain about the incident. The new Union president, Jeffrey Tomchik, made comments the next day about plaintiff and the other firefighter being in the shower together. In the same time frame, Rogers heard Meehan say plaintiff got the EMS Coordinator job to fill a quota because he is Puerto Rican.

         On April 25, 2016, Meehan commented to Rogers and Johnson, “You can't trust those Puerto Ricans.” Rogers submitted a complaint about the comment in May. Meehan denied making the statement. After Johnson corroborated Rogers' complaint, Chief Wiedl suspended Meehan for three days. However, the suspension was rescinded after Johnson recanted in July 2016. The City hired a third-party investigator, who could not substantiate Rogers's allegation.

         Plaintiff estimates that during his employment with the DFD, he has been referred to as “homo” thousands of times; “spic, ” “rump rider, ” and “cum guzzler” hundreds of times each; “wetback” and “dicky-licker” dozens of times each; and “freakin' Puerto Rican” a dozen times. He also estimates people have stated he “like[s] to take it up the ass” hundreds of times.

         In 2016, plaintiff's expert psychologist diagnosed him with moderate recurrent episodes of major depressive disorder. Plaintiff was not symptomatic as of 2016 due to positive changes in his personal life. However, the diagnosis of recurrent episodes of major depression applied to the preceding twenty-five years.

         II. Legal Standard

         “Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'” Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed.R.Civ.P. 56(a)). To avoid summary judgment, the plaintiff must point to evidence that serves to raise a genuine dispute of material fact; conclusory allegations, unsubstantiated speculation, or inadmissible evidence do not suffice. See F.D.I.C. v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010); Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004). Moreover, “[t]he mere existence of a scintilla of evidence in support of the [non-movant's] position” is not enough to prevent summary judgment. Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986).

         “[A]dditional considerations should be taken into account” when reviewing a motion for summary judgment in a discrimination case. Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). In particular, “[a] trial court must be cautious about granting summary judgment to an employer when . . . its intent is at issue.” Id. Nevertheless, “trial courts should not ‘treat discrimination differently from other ultimate questions of fact.'” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993)). Thus, “[e]ven in the discrimination context . . ., a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment.” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008); see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (“It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases.”).

         III. Analysis

         A. Hostile Work Environment

         Plaintiff alleges that from the beginning of his employment in 1987 until he filed his complaint in this action, members of the DFD subjected him to a hostile work environment based on his race or national origin and his sex in violation of Title VII. The City seeks summary judgment on the grounds that plaintiff failed to exhaust administrative remedies with regard to his allegations, most of his allegations are untimely under the statute of limitations, and the timely allegations do not provide a basis for a jury to return a verdict in his favor.

         To prevail on his Title VII hostile work environment claim, plaintiff must show that (1) the workplace at DFD was permeated with discriminatory intimidation sufficiently severe or pervasive to alter the conditions of his work environment and (2) a basis exists for imputing the conduct that created the hostile environment to the City. See Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 106 (2d Cir. 2011). “Where reasonable jurors could disagree as to whether alleged incidents of racial insensitivity or harassment would have adversely altered the working conditions of a reasonable employee, the issue of whether a hostile work environment existed may not properly be decided as a matter of law.” Patterson v. Cty. of Oneida, 375 F.3d 206, 227 (2d Cir. 2004).

         As with any Title VII claim, plaintiff must prove that the hostility he experienced was “because of” a protected characteristic such as race, national origin, or sex; Title VII is not a “general civility code for the American workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998); see also 42 U.S.C. § 2000e-2(a).

         Racist jokes and comments, sexually harassing behavior, and homophobic or sex-stereotyping comments may contribute to a hostile work environment. Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). This is true even when plaintiff did not hear the comments. Id. at 111 (“The mere fact that [plaintiff] was not present when a racially derogatory comment was made will not render that comment irrelevant to his hostile work environment claim. . . . [T]he fact that a plaintiff learns second-hand of a racially derogatory comment or joke by a fellow employee or supervisor . . . can impact the work environment.”).

         Furthermore, comments directed at Steve Rogers or others may be relevant to the analysis. See Williams v. Consol. Edison Corp. of N.Y., 255 Fed.Appx. 546, 549 (2d Cir. 2007) (“Because a hostile work environment claim ‘focuses on the nature of the workplace environment as a whole,' evidence of racial and sexual harassment and hostility beyond what is directed specifically at the plaintiff is relevant to our analysis.”); Petrosino v. Bell Atl., 385 F.3d 210, 222 (2d Cir. 2004) (“The fact that much of this offensive material was not directed specifically at [plaintiff] . . . does not, as a matter of law, preclude a jury from finding that the conduct subjected [her] to a hostile work environment based on her sex.”); Schwapp, 118 F.3d at 112 (including comments that did not pertain to plaintiff's own minority group in the hostile work environment analysis).

         1. Exhaustion of Administrative Remedies

         Plaintiff's CHRO/EEOC complaint specifically referred to the protected characteristic of national origin only. The City contends that, as a result, his hostile work environment claim cannot be founded on sex-based harassment.[10] I conclude that plaintiff may rely on incidents of sex-based harassment to prove his claim.

         “[P]recise pleading is not required for Title VII exhaustion purposes.” Deravin v. Kerik, 335 F.3d 195, 202 (2d Cir. 2003) (citing Alvarado v. Bd. of Trs. of Montgomery Cmty. Coll., 848 F.2d 457, 460 (4th Cir. 1988)). Rather, “[i]t is the substance of the charge and not its label that controls.” Id. at 201 (quoting Alonzo v. Chase Manhattan Bank, N.A., 25 F.Supp.2d 455, 458 (S.D.N.Y. 1998)).

         Claims not raised in an EEOC complaint may be brought in federal court if they are “reasonably related” to the claims presented to the agency. Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006). Claims are “reasonably related” for this purpose “if the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge that was made.” Id. (quoting Fitzgerald v. Henderson, 251 F.3d 345, 359-60 (2d Cir. 2001)).

         Plaintiff's EEOC/CHRO complaint -- which he reportedly prepared himself -- stated that he had “been called homophobic names, verbally abused, assaulted by a coworker and . . . had signs left on my office door for the ‘girls' bathroom” and “for the ‘secretary' and ‘custodian.'” At the same time, however, he explicitly noted he “believe[d] this harassment occurred because [he is] Hispanic.” Similarly, the complaint described the 2013 incident when Meehan stroked plaintiff's chest, but also noted that Meehan and Herald are white, implying the incident occurred and was not properly investigated because of his national origin.[11]

         I think plaintiff's complaint was sufficient to give the EEOC and CHRO “adequate notice to investigate discrimination” based on both national origin (or race) and sex, notwithstanding plaintiff's own representations that these incidents occurred because he is Hispanic. The complaint alleged a hostile work environment, which can be based on multiple protected characteristics. And, as just discussed, it provided numerous examples of discriminatory conduct relating to sex, not just national origin.

         Accordingly, instances of sex-based harassment may be used to support plaintiff's claim. See Zarda v. AltitudeExpress, Inc., 883 F.3d 100, 110-11 & n.5 (2d Cir. 2018) (en banc) (“Because Zarda's charge gave the [EEOC] adequate notice to investigate discrimination on both [the basis of sexual orientation and of gender], it is irrelevant whether Zarda's EEOC complaint unequivocally alleged sexual orientation discrimination.” (internal quotation marks omitted)), cert. granted, 139 S.Ct. 1599 (2019); Williams, 458 F.3d at 71 (holding sex discrimination claim to be reasonably related to retaliation claim in EEOC complaint where plaintiff did not check the box for “sex” in her EEOC complaint, but did include factual allegations consistent with sex discrimination). Cf. Collins v. Univ. ...

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