14-1215-cv (L); 14-1216-cv (con) Dingle v. Bimbo Bakeri es USA/Entenmann’s 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16 th day of December, two thousand fifteen. PRESENT: GUIDO CALABRESI, ROSEMARY S. POOLER, GERARD E. LYNCH, Circuit Judges.

_____________________________________ Robert Dingle, Jr., AKA Robert Dingle, Plaintiff-Appellant , v. 14-1215-cv (L); 14-1216-cv (Con) Bimbo Bakeries USA / Entenmann’s, Defendant-Appellee .

_____________________________________

FOR PLAINTIFF-APPELLANT: Robert Dingle, pro se, Cambria Heights, New York. FOR DEFENDANT -APPELLEE: A. Robert Fischer, Jackson Lewis P.C., Austin, Texas.2 Appeal from a judgment of the United States Di strict Court for the Eastern District of New 1 York (Amon, C.J .; Pohorelsky, M.J. ). 2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3 DECREED that the judgment of the district court is AFFIRMED in part and VACATED in 4 part and the case is REMANDED

. 5 Appellant Robert Dingle, proceeding pro se, appeals from the district court’s judgment 6 dismissing his complaints in their entirety for fa ilure to state a claim. We review de novo the 7 dismissal of a complaint under Rule 12(b)(6). Mary Jo C. v. N.Y. State and Local Ret. Sys. , 707 8 F.3d 144, 151 (2d Cir. 2013). To survive a motion to dismiss, a complaint must plead “enough 9

facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly , 550 U.S. 10 544, 570 (2007), and “allow[] the court to draw the r easonable inference that the defendant is liable 11 for the misconduct alleged,” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). “Where, as here, the 12 complaint was filed pro se , it must be construed liberally ‘to raise the strongest arguments [it] 13 suggest[s].’” Walker v. Schult , 717 F.3d 119, 124 (2d Cir. 2013) (alt erations in original) (quoting 14 Pabon v. Wright , 459 F.3d 241, 248 (2d Cir. 2006)). “Nonetheless, a pro se complaint must state a 15 plausible claim for relief.” Id. (italics omitted). We assume the parties’ familiarity with the 16 underlying facts, the procedur al history of the case, and the issues on appeal. 17 Dingle sued his former employer, Bimbo Ba keries USA/Entenmann’s (“Entenmann’s”), 18 alleging that he was subjected to a hostile work e nvironment and retaliated against in violation of 19 Title VII, the New York State Human Rights Law (“NYSHRL”), and the New York City Human 20 Rights Law (“NYCHRL”), as well as numerous other state law claims arising out of his 21 employment with Entenmann’s. In his second co mplaint, which was removed to federal court on 223 the basis of diversity jurisdic tion, Dingle alleged that a photo of a nude man resembling Dingle 1 was distributed among employees who made de grading comments about his genitals and 2 questioned his sexual orientation. Dingle furthe r alleged that for a period of a month, two 3 employees made “lewd, obscene and degrading remarks” about him, including that he was 4 homosexual, Supp. App’x at 35, and that the individuals responsibl e were never punished for their 5 behavior. As is relevant here, th e district court ruled that Ding le failed to plead a Title VII, 6 NYSHRL, or NYCHRL hostile work environment clai m because he did not plausibly allege that 7 the harassment he suffered was on account of his gende r, and that he failed to plead a Title VII, 8 NYSHRL, or NYCHRL retalia tion claim because he did not plausibly plead that he possessed a 9 good faith reasonable belief that he had complained about activity that violated the relevant 10 anti-discrimination laws, as there was no evidence the harassment he suffered was related to his 11 gender. In a February 2015 orde r, we directed the parties to brief, “among any other issues, 12

whether the district court erred by failing to construe the compla int as raising a hostile work 13 environment claim based on Appellant’s perceived sexual orientation, under state and city human 14 rights laws.” Case No. 14-1216-CV, Dkt. No. 36. Desp ite this order, Entenmann’s failed to brief 15 this issue on appeal. 16 Perceived sexual orientation is a categor y protected under the NYSHRL and NYCHRL. 17 N.Y. Exec. Law §§ 292(27), 296(1)(a); N.Y.C. Admin. Code § 8-107(1)(a). 1 Dingle’s allegations 18

1 The NYCHRL and NYSHRL expressly prot ect against discrimi nation based on both perceived as well as actual sexual orientation. Thus, Dingle’s actual sexu al orientation is not at issue; he is protected by these provisions if he suffered abuse because others believed , even incorrectly, that he is gay. See Rohn Padmore, Inc. v. LC Play Inc. , 679 F. Supp. 2d 454, 461 n.3 (S.D.N.Y. 2010) (“The text of the NYCHRL specifically protects against discriminati on based on ‘perceived’ sexual orientation. The NYSHRL sim ilarly protects against discri mination based on an employee's4 could be read to suggest that he was harassed based on his percei ved sexual orientation. Indeed, 1 both the district court, in its 2012 order directi ng Dingle to file an amended complaint, and the 2 magistrate judge, in the report and recommendation addressing the motions to dismiss, observed 3 that Dingle’s allegations could be construed as a hostile work environment claim based on his 4 perceived sexual orientation but th at such claims were not cognizab le under Title VII. However, 5

the district court did not addr ess the viability of any such claim under the NYSHRL or NYCHRL, 6 or of any retaliation claim based on complaints about such a hostile work environment. And 7 because, as noted above, removal was on the basis of diversity, the court retained jurisdiction over 8 Dingle’s NYSHRL and NYCHRL claims, even after dismissing his federal claims. See Epperson 9 v. Entm’t Express, Inc ., 242 F.3d 100, 109 (2d Cir. 2001) (diver sity jurisdiction provided “a 10 jurisdictional basis for all of [plaintiff’s] claims and permitted a unified resolution of those claims, 11 whether based in federal or state law, in the fede ral court”). We therefore remand to the district 12

court to consider in the first instance whethe r Dingle alleged a plausible perceived sexual 13

orientation hostile work environment clai m and retaliation claim under the NYSHRL and 14 NYCHRL. As part of its consideration of this issu e, we urge the district court to appoint counsel 15 for Dingle. 16 We have considered all of Dingle’s other argum ents and find them to be without merit. We 17

conclude that the district court properly dismissed the rest of Dingle’s claims, and we affirm for 18 substantially the reasons stated by the magistrate judge in his December 16, 2013 report and 19

perceived sexual orientation.” (citing N.Y.C. Admin. Code § 8-107(1)(a); N.Y. Exec. Law § 292(27))).5 recommendation, and the district court in its March 11, 2014 decision. [E.D.N.Y. 13-cv-3913 doc. 1 24 at 9-27, doc. 36 at 6-9] 2 Accordingly, we AFFIRM in part and VACATE in part the judgment of the district 3

court and REMAND for further proceedings consistent with this order. 4

5 FOR THE COURT: 6 Catherine O = Hagan Wolfe, Clerk 7