United States District Court, D. Connecticut
RULING AND ORDER
N. CHATIGNY, UNITED STATES DISTRICT JUDGE
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.
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. 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. He also joined the union, the
International Association of Firefighters Local 801
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.
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
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
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.
1993, plaintiff applied for a lieutenant position. He ranked
seventh on the eligibility list. 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.
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.
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.
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.
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.
late 1990s, the discriminatory comments plaintiff experienced
in the workplace shifted. Ethnic slurs continued but the
comments were more often sexual in nature. 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
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.
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.
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.
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 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.
became Chief in April 2007. 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.
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.
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.
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.
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.
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.
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.
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
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.
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
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.
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. 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
January 7, 2014, plaintiff walked into the fire station and
saw Meehan sitting in a chair. In front of the crew, Meehan
rolled his chair over to plaintiff and tried to grope
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
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
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.
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.
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.
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
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.
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).
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.”).
Hostile Work Environment
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.
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).
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).
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.”).
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).
Exhaustion of Administrative Remedies
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. I conclude that plaintiff
may rely on incidents of sex-based harassment to prove his
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)).
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
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
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.
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. ...