Sex-stereotyping claim involving sexual harassment allegations fails

Fact patterns like this often reach the office of plaintiffs' lawyers. Someone over the age of 40 is fired unfairly, or so the caller says. We now have a potential claim for age discrimination. There may be more to the story, but that's the case. Turns out the extra facts are that the ex-employee was accused of sexual harassment in the workplace. Now what?

The case is Bockus v. Maple Pro, Inc., a summary order issued on March 19. Plaintiff worked for the company for 13 years. He was let go when management told him they had received complaints about "some inappropriate behavior" toward other employees, and that the investigation uncovered a "pattern of disrespectful and inappropriate conduct." Plaintiff says management never even provided him with details of these complaints, and the state Department of Labor found these allegations were "unsubstantiated." Does plaintiff have a case?

The Court of Appeals (Leval, Lynch and Bianco) says he does not. This case was dismissed under Rule 12(b)(6), and the Second Circuit has relaxed pleading standards for discrimination claims, as per Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015). But even under these pleading standards, plaintiff cannot make out a plausible case of age or sex discrimination.

As for the sex discrimination, the Second Circuit in Sassaman v. Gamache, 566 F.3d 314 (2d Cir. 2009), said it is unlawful for an employer to presume that male employees were guilty of sexual harassment allegations and then to act upon that presumption, i.e., firing the man on the basis of that stereotype. I have not seen too many cases (if any) that have been sustained under the Sassaman principle, and this case fails as well. This is not a sex-stereotyping case, the Court of Appeals says, because (1) plaintiff does not allege that anyone at the company ever said or did anything that suggested the company treated men less favorably than women, and (2) his threadbare complaint "does not even identify the gender of the co-workers allegedly subject to harassment by him."

As for age discrimination, the case fails because "other than listing his age and date of birth, the complaint does not contain any allegations whatsoever relating to his age." While plaintiff contends that his "clam of bot sex stereotyping-plus-age discrimination is a claim of 'intersectional discrimination,'" the complaint simply does not allege enough facts to entitle the plaintiff to some discovery, and Being fired over the age of 40 is not enough to proceed under the Age Discrimination in Employment Act.

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