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The dismissal of a lawsuit alleging “anti-straight” discrimination against a former assistant stage director at New York City’s Metropolitan Opera was affirmed by the state supreme court’s Appellate Division, 1st Department, last week. The case presented the first claim under the New York City Human Rights Law of anti-heterosexual job bias. The woman, who said she was not offered a contract renewal because of her status as a heterosexual, did not make out her claim with adequate precision or factual substantiation, the appeals court ruled. The decision will be published Wednesday. First Department Justice Betty Weinberg Ellerin, writing for a unanimous panel, said that plaintiff Martha Ellen Brennan failed to overcome the legal inference against discriminatory animus, since she could not point to any evidence that she had been dismissed for any reason other than poor performance, nor that she had been replaced by a less qualified gay person. Ellerin also threw out Brennan’s claim that one male co-worker’s display of pictures of nude or seminude men created a sexually hostile work environment. The judge said that the photos could not be offensive to her “as a heterosexual” person. In Brennan v. Metropolitan Opera Association, 3894, the plaintiff was the secretary to the executive stage director of the Metropolitan Opera when, in the summer of 1990, she was hired as an assistant stage director. In her new job, Brennan found herself working under the supervision of a gay man. Their working relationship was positive at first, Brennan said, and she was rehired by the supervisor for a second, and then a third season. After the third season, in 1993, the supervisor said Brennan would be expected to progress to become a full stage director. But Brennan expressed doubts as to whether she wanted full responsibility for a production. The supervisor then did not offer to renew her contract for a fourth season. ANIMUS CLAIMED Brennan said that the nonrenewal was a result of her supervisor’s animus against heterosexuals, Justice Ellerin wrote in summarizing the complaint. Manhattan Supreme Court Justice Paula Omansky last year ruled that the New York City law against employment discrimination based on sexual orientation prohibited “anti-straight” discrimination. But Omansky still dismissed the case because Brennan had failed to establish that the refusal to renew her contract was based on anti-heterosexual bias, or that she had been subjected to a sexually hostile work environment. Ellerin agreed with the trial court and affirmed the dismissal. First, the appeals court said, Brennan and her supervisor, while they had disagreements and personality conflicts, never discussed the plaintiff’s sexual orientation. Furthermore, there is “no evidence that [the supervisor], who made the hiring decisions concerning plaintiff and [her replacement] knew the sexual orientation of either of them,” Ellerin observed. NO HOSTILE WORKPLACE As for the hostile work environment claim, Justice Ellerin said that Brennan failed to show that the harassment was either severe or predicated on her sexual orientation. The display of photographs of nude and seminude men, while inappropriate, could not have been an offense to Brennan as a heterosexual, Ellerin said. “We have no doubt that reasonable people would agree that photographs of naked men do not belong on display in an office at the Met,” she wrote. “But there is nothing in the photographs from which a jury could find that they were offensive to heterosexuals qua heterosexuals.” However, “[i]t is counterintuitive to suppose … that no homosexual man would be offended by photographs of naked men in his workplace, or that [Brennan] would not be offended by a display on an office bulletin board of photographs of naked women … or photographs of both men and women, naked or semi-naked,” Ellerin reasoned. Joining Ellerin on the panel were Justices Eugene Nardelli, Angela M. Mazzarelli, David B. Saxe and John T. Buckley. Brennan represented herself in the case. Neil H. Abramson of Proskauer Rose was defense counsel to the Met.

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