Title VII reverse sex-stereotyping claim fails

From time to time, male plaintiffs bring an action against their employer under Title VII claiming they were illegally stereotyped as sexual harassers. These cases are difficult to win and most such cases are dismissed. This case is one of them.

The case is Lorefice v. State of New York, a summary order issued on November 3. Plaintiff was fired from his 20-year job as a biologist with the Department of Environmental Conservation over his interaction with a female colleague. After the woman declined to go on a hike with plaintiff, he sent her numerous Facebook messages to which she did not reply. The messages "were expressions of affection towards DK and also 'proposed a life together.'" The way Facebook works is that if you are not Facebook friends with someone, your messages may get lost into the spam folder. That's probably what happened here. One day, DK discovered all the messages and she reported plaintiff to her supervisor, who suspended plaintiff. As the Court of Appeals tells the story, here is what happened next:

Lorefice then participated in a disciplinary arbitration where the DEC claimed he had demonstrated a pernicious pattern of pursuing women he met at the workplace. Several years earlier, Lorefice had pursued another co-worker at the DEC and was told to halt communication with her. The arbitrator found Lorefice guilty of the majority of the charges involving DK, including sexual harassment, and recommended he be terminated. The DEC adopted the arbitrator’s recommendation and terminated Lorefice accordingly.

The district court and Court of Appeals reject plaintiff's theory under Title VII that his termination was "a stereotypic response to his conduct" and that the agency wanted "to show fake solitary with the 'me too' movement" and, as such, the agency's response to his conduct was "gender stereotypic" in assuming that plaintiff was "aggressive and could not control himself" and that "a female is timid and unable to speak up for herself." The court say in this case that the complaint, even under Rule 12 standards, does not assert a plausible sex discrimination claim.

As the Second Circuit (Newman, Lee and Nathan) sees it, even accepting the allegations in the complaint as true, plaintiff has not asserted any facts showing gender discrimination. No statements or actions from management permit any inference gender stereotyping. Moreover, even if plaintiff did not engage in sexual harassment, there is no such inference of stereotyping. The Court writes, "Lorefice does not cite to, nor are we aware of, any case law in which an employee’s termination due to an erroneous accusation of sexual harassment by itself gives rise to an inference of gender stereotyping." What is more, the Court says, the complaint itself suggests that DEC had grounds to fire him because plaintiff conceded that "he sent messages to DK proposing a life together, made her feel uncomfortable, and had previously engaged in similar behavior towards another coworker. This conduct itself provided reasons for the DEC to terminate Lorefice, independent of however the DEC may have viewed him in relation to his gender."