Ex-FXCM employee gets permission to amend harassment claims

Maria Nikolova

FXCM managed to dismiss the bulk of the complaint against it but the Court has permitted the plaintiff to replead certain sexual harassment claims.

The lawsuit brought by Alon Nachmany – a former IT engineer at FXCM Inc, is set to continue, as Judge Deborah Batts of the New York Southern District Court has dismissed the bulk of the claims against the brokerage but allowed the plaintiff to amend certain of his claims against the company.

Let’s recall that Nachmany brings this lawsuit against his former employer, FXCM, Inc, and two of its employees, Ryan Leonard and Seth Lyons. Nachmany brought claims for employment discrimination on the basis of religion and national origin pursuant to Title VII, New York State Human Rights Law (“NYSHRL”), and New York City Human Rights Law (“NYCHRL”), for sexual harassment pursuant to Title VII, NYSCHRL, and NYCRHRL, and for civil assault/battery.

Nachmany was employed by FXCM as a systems engineer for about two years (between 2012 and 2014). At all relevant times, Lyons served as Nachmany’s immediate supervisor, and Leonard as Lyons’s immediate supervisor.

The plaintiff alleges that during the course of his employment he was “subjected to a multitude of demeaning and derogatory comments that specifically attacked his national origin, religion, sex, and sexual orientation, as well as consistently being subjected to harassing behavior that was pervasive and offensive.

The plaintiff allegedly made repeated complaints to, and had multiple meetings with, Eduard Yusupov, who was back then FXCM’s Global Head of Dealings. The complaints allegedly eventually led to a meeting attended by Nachmany, Yusupov, and Leonard. Nachmany was fired a week after this meeting, on September, 2, 2014.

As per the Court’s Order made available to FinanceFeeds on January 13, 2020, the defendants’ motion to dismiss the sexual harassment claims, all Title VII claims against Leonard and Lyons, and the civil assault/battery claim is granted.

However, the Court allows the plaintiff to amend some of his claims. Nachmany got leave to amend the remaining sexual harassment claims (i.e. the sexual harassment claims other than the Title VII claims against Leonard and Lyons).

Nachmany’s complaint alleges four instances of alleged sexual harassment: 1) the posting of a derogatory message on a centrally-located white board; 2) Leonard’s changing of Nachmany’s computer background to an image of a “naked male”); 3) Leonard’s drawing onto a photograph of Nachmany an offensive sexual image; and 4) that Nachmany was “exposed to and often berated with” phrases and depictions of very offensive slang terms.

Nachmany claims this led to an environment containing “sexually charged material and intimidation”. In her order dismissing the claims, Judge Batts stressed that the plaintiff must plead that the conduct at issue not merely involved “sexual content or connotations” but rather that it actually constituted ‘discrimination because of sex”.

According to the Judge, the complaint also fails to allege that Nachmany was harassed in such sex-specific and derogatory terms by someone of the same gender as to make it clear that the defendants were “motivated by general hostility to the presence of someone of the same gender; nor does it allege how the defendants “treated members of both sexes in a mixed-sex workplace.”

According to the Judge, Nachmany’s complaint does not indicate that men at FXCM were exposed to disadvantageous terms of employment, as compared to women. “The critical issue,” as the Supreme Court has stated, “is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”

From the allegations in the Nachmany’s complaint, the Court cannot draw an inference that conduct occurred because Nachmany is male. In response, Nachmany repeatedly stated that “no female employee” of FXCM was subjected to “similar ridicule” as him or to “grotesque visual depictions of sexual acts,” “sexually-explicit language,” or “sexually images.”

But the Court sided with the defendants who noted in their reply brief, however, no such similar comparative allegations actually appear in Nachmany’s complaint.

Plaintiff’s primary argument in favor of his position that leave to amend would not be futile was that women working at FXCM were not subjected to the same treatment as he was, though other men often were. Given this, the Court will allow the plaintiff to file an amended complaint with respect to these claims.

If Nachmany chooses to file an amended complaint, this has to happen within 30 days of the date of the Court’s Order.

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