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A homosexual man cannot sustain a federal sexual harassment claim because he is not overtly effeminate, a Northern District of New York federal judge has found. The opinion by U.S. Magistrate Judge Randolph F. Treece in Albany illustrates the sometimes peculiar consequences of long-settled law in the district, holding that a claim of harassment based on sexual orientation is not actionable under Title VII of the Civil Rights Act of 1964. Since the plaintiff, David W. Martin, could not proceed on an orientation theory, he instead attempted to come through the backdoor of the federal courthouse by alleging sexual stereotyping. But Judge Treece could not find a sufficient nexus between the “torment” endured by the plaintiff and his sexual mannerisms. “[M]artin’s affidavit is devoid of any statement that he acts in an effeminate manner,” Treece wrote in Martin v. New York State Department of Correctional Services, 99-CV-1364. “The record also fails to demonstrate any evidence that Martin acts, or is even perceived to act, in an effeminate manner.” Martin has worked at Coxsackie Correctional Facility since 1992. Over the years, the plaintiff alleges he was subjected to a constant stream of harassment by his co-workers and that his complaints to supervisors and his union only increased the discrimination and led to retaliation. He brought a number of claims against the state agency, his union and various individuals, including an action under Title VII. Judge Treece granted the defendants summary judgment on all the claims. In his opinion, Treece observed that while Title VII bars sexual harassment, the 2nd U.S. Circuit Court of Appeals concluded in Simonton v. Runyon, 232 F.3d 33 (2000) that sex means gender, and that the statute does not cover harassment based on sexual orientation. Consequently, Treece said, Martin was placed in the odd position of having to establish either that he does not act masculine or at least is perceived to act effeminately. Martin attempted to meet that burden in part by claiming that lesbian correction officers are treated more favorably at the prison, and in fact are “considered competent, dependable and cool.” The problem, however, is that gay men do not necessarily meet the effeminate stereotype, the court said. “The torment endured by Martin, as reprehensible as it is, relates to his sexual orientation,” Judge Treece wrote. “The name-calling, the lewd conduct and the posting of profane pictures and graffiti are all of a sexual, not gender, nature.” Martin’s attorney, Susan S. Dautel of Deily, Dautel & Mooney in Albany, said Martin has claims pending in New York Supreme Court. “We knew we had a tough road because the statute doesn’t specifically cover sexual orientation,” Dautel said. “I was looking for a threading of the needle to allow this to survive. The facts, we thought, were incredibly compelling.” Assistant Attorneys General Risa L. Viglucci and Gerald J. Rock appeared for the state defendants. Robert S. Hite of Hite & Savitt in Albany represented the labor union, Council 82.

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