Kelly v. Howard I. Shapiro & Assocs. Consulting Eng'rs., P.C., No. 12-3489 (2d Cir. 2013)
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Plaintiff filed suit under Title VII and the New York State Human Rights Law (NYSHRL), N.Y. Exec. Law 290 et seq., alleging that an affair that one of her brothers had with another worker in their family business created a hostile work environment and that both of her brothers retaliated against her for complaining about the affair. On appeal, plaintiff challenged the dismissal of her retaliation claim. The court examined all of plaintiff's arguments on appeal and found them to be without merit. Because there was no indication that plaintiff believed that her sex had anything to with her treatment or that defendants could have understood her statements as such, she failed to establish a prima facie case for retaliation under Title VII and the NYSHRL. Accordingly, the court affirmed the district court's judgment.
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12-3489-cv Kelly v. Howard I. Shapiro & Assocs. Consulting Eng rs., P.C. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Argued: March 12, 2013 Decided: April 26, 2013) Docket No. 12-3489-cv GAIL KELLY, Plaintiff-Appellant, -v.HOWARD I. SHAPIRO & ASSOCIATES CONSULTING ENGINEERS, P.C., LAWRENCE SHAPIRO, JAY SHAPIRO, Defendants-Appellees. Before: WALKER, WESLEY, AND DRONEY, Circuit Judges Plaintiff-Appellant Gail Kelly asserts that her employers retaliated against her after she complained about a supervisor s affair with a coworker. The United States District Court for the Eastern District of New York (Spatt, J.) dismissed Kelly s discrimination and retaliation claims under Federal Rule of Civil Procedure 12(b)(6). Kelly appeals the dismissal of her retaliation claims. We AFFIRM. ANDREW S. GOODSTADT, Goodstadt Law Group, PLLC, Carle Place, NY, for Appellant. 1 2 3 4 5 6 7 8 9 10 11 12 13 HENRY E. KRUMAN, Kruman & Kruman P.C., Malverne, NY, for Appellees Howard I. Shapiro & Associates Consulting Engineers, P.C. and Jay Shapiro. PHILIP MARK BERNSTEIN, P.M. Bernstein P.C., Garden City, NY, for Appellee Lawrence Shapiro. PER CURIAM: Gail Kelly quit her job as a human resources manager at 14 her family business after complaining about an affair that 15 one of her brothers, a vice president of the company, was 16 having with another worker in the office. 17 Title VII of the Civil Rights Act of 1964 and the New York 18 State Human Rights Law ( NYSHRL ), N.Y. Exec. Law § 290 et 19 seq., alleging that the affair created a hostile work 20 environment permeated by sexual favoritism and that both 21 of her brothers retaliated against her for complaining about 22 the affair. 23 Eastern District of New York (Spatt, J.) dismissed her 24 complaint in its entirety. 25 Assocs. Consulting Eng rs, P.C., No. 11-CV-5035, 2012 WL 26 3241402 (E.D.N.Y. Aug. 3, 2012). 27 dismissal of her retaliation claims. She sued under The United States District Court for the Kelly v. Howard I. Shapiro & 28 2 Kelly appeals the 1 2 Background The following facts are drawn from Kelly s complaint, 3 and we accept them as true for purposes of the motion to 4 dismiss. 5 of Fin., 620 F.3d 146, 150 (2d Cir. 2010). 6 See Chase Grp. Alliance LLC v. City of N.Y. Dep t Howard I. Shapiro & Associates Consulting Engineers, 7 P.C. ( HIS ) is a third-generation family business founded 8 in 1946 by Kelly s grandfather. 9 reorganized into a partnership among Kelly s father, Howard In 1989, the company was 10 I. Shapiro, and her brothers, defendants and company vice 11 presidents Lawrence and Jay Shapiro.1 12 the business since 1981, performing various jobs including 13 comptroller, office manager, head of human resources, 14 bookkeeper, and time manager. 15 away in May 2007, her brothers began to exert control over 16 the company. 17 Kelly has worked for After Kelly s father passed Compl. ¶ 21. In November 2008, Kelly discovered that Lawrence began 18 an illicit affair with a subordinate named Kelly Joyce. 19 Id. ¶ 23. 20 pursuing the relationship, explaining that it would have a 21 detrimental effect on HIS and presented a conflict of Kelly attempted to dissuade Lawrence [] from 1 We will refer to Lawrence Shapiro by his first name. 3 1 interest, not to mention the adverse effect it was having on 2 Ms. Kelly s employment at HIS, but Lawrence summarily 3 dismissed Ms. Kelly s complaints out of hand. 4 26. 5 with sexual favoritism towards Ms. Joyce that Ms. Kelly s 6 duties and responsibilities were substantially reduced, and 7 her leadership duties were removed in favor of Ms. Joyce, 8 notwithstanding the fact that she was significantly senior 9 to Ms. Joyce. Id. ¶¶ 25- Kelly alleges that HIS became so completely permeated Id. ¶ 28. For example, Kelly alleges that 10 Joyce turned in inaccurate or fabricated timesheets and 11 berated Kelly for confronting her about them and that 12 Joyce left the office early on a number of occasions, took 13 unlimited vacation time, and took days off without notifying 14 Ms. Kelly, all in violation of well-established company 15 protocol. 16 Id. ¶¶ 29-34. Kelly alleges that when she spoke to Lawrence about 17 this favoritism, he did not discipline Ms. Joyce for her 18 insubordination and patently unprofessional behavior, which 19 Kelly believes created a sexually-biased environment that 20 undermined Ms. Kelly s authority and prevented her from 21 performing her duties as head of Human Resources. 22 35, 39. Id. ¶¶ Kelly describes how she frequently complained to 4 1 [her brothers] about the harassment and discriminatory 2 environment created by [Lawrence s] widespread sexual 3 favoritism and the hostile environment created by 4 [Lawrence s] relationship with, and favorable treatment of, 5 his subordinate. 6 brothers] about [Lawrence s] clandestine tryst with Ms. 7 Joyce and the discrimination and harassment that she 8 suffered due to such relationship, and she frequently 9 explained . . . that they were undermining her authority in Id. ¶ 40. She complain[ed] to [her 10 favor of Ms. Joyce, and that she believed that such 11 misconduct constituted unlawful discrimination. 12 Id. ¶ 49. Kelly also alleges that Lawrence s widespread sexual 13 favoritism . . . created an atmosphere in the workplace that 14 was demeaning to women. 15 employees complained to Ms. Kelly about the unfair and 16 obvious favoritism shown towards Ms. Joyce. 17 fact, several female employees complained that [Lawrence] 18 prevented them from performing their jobs, as they were 19 unable to get into his office to meet with him. 20 Rather, [Lawrence] spent a large portion of each day with 21 Ms. Joyce. 22 any of the other female employees complaints to her 23 brothers. Id. Id. ¶ 47. Indeed, veteran female Id. ¶ 48. Id. Kelly does not allege that she reported 5 In 1 Eventually, Kelly was left with no option other than 2 to leave the Company after 28 years. 3 her complaint in district court on October 17, 2011, 4 asserting that she had been subjected to a hostile work 5 environment and to retaliatory treatment in violation of 6 Title VII and the NYSHRL. 7 Kelly s complaint pursuant to Federal Rule of Civil 8 Procedure 12(b)(6). 9 Id. ¶ 60. She filed Defendants moved to dismiss The district court granted the motion. The court first 10 dismissed the hostile environment claim on the ground that 11 Kelly had failed to plausibly allege the existence of 12 widespread sexual favoritism or that any alleged 13 discrimination was based on the Plaintiff s gender. 14 2012 WL 3241402, at *7 (emphasis added); see also id. at *9 15 ( Absent from the complaint are any allegations suggesting 16 even the slightest semblance of gender-oriented motivation 17 in the events. (quoting Galdieri-Ambrosini v. Nat'l Realty 18 & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998))). 19 does not challenge the dismissal of her discrimination 20 claims. 21 22 Kelly, Kelly Second, the court dismissed Kelly s retaliation claim because Kelly fail[ed] to sufficiently allege that she had 6 1 a good faith, reasonable belief that [the allegedly 2 discriminatory] conduct was based on her gender, as 3 required by this court s jurisprudence. 4 also Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 5 2002). 6 invocation of discrimination and sexual favoritism, her 7 complaints were limited to the detrimental impact of the 8 Lawrence-Joyce relationship on the Plaintiff s work and on 9 the company as a whole, and that there was nothing about 10 the Plaintiff s complaints as alleged that would have put 11 the Defendants on notice that the Plaintiff was complaining 12 of discrimination based on gender. 13 Discussion 14 Id. at *14, see The court noted that despite Kelly s repeated Id. at *15, 16. In reviewing a motion to dismiss, we accept the 15 allegations in the complaint as true. 16 521 F.3d 202, 204 (2d Cir. 2008). 17 dismiss, a complaint must contain sufficient factual matter, 18 accepted as true, to state a claim to relief that is 19 plausible on its face. 20 678 (2009) (quotation marks omitted). 21 plausibility when the plaintiff pleads factual content that 22 allows the court to draw the reasonable inference that the Boykin v. KeyCorp, To survive a motion to Ashcroft v. Iqbal, 556 U.S. 662, 7 A claim has facial 1 defendant is liable for the misconduct alleged. 2 standards for evaluating hostile work environment and 3 retaliation claims are identical under Title VII and the 4 NYSHRL. 5 (2d Cir. 2000). 6 Id. The Weinstock v. Columbia Univ., 224 F.3d 33, 42 n.1 Although Kelly has not appealed the dismissal of her 7 hostile environment claims, we note first that the dismissal 8 was manifestly correct. 9 paramour preference claims, which depend on the Our Circuit has long since rejected 10 proposition that the phrase discrimination on the basis of 11 sex encompasses disparate treatment premised not on one s 12 gender, but rather on a romantic relationship between an 13 employer and a person preferentially [treated]. 14 v. Westchester Cnty. Med. Ctr., 807 F.2d 304, 306 (2d Cir. 15 1986); see also id. at 308 ( Appellees were not prejudiced 16 because of their status as males; rather, they were 17 discriminated against because [their supervisor] preferred 18 his paramour. ). 19 establish a sex-based hostile work environment under Title 20 VII, a plaintiff must demonstrate that the conduct occurred 21 because of her sex. 22 (2d Cir. 2002) (quotation marks omitted). DeCintio [I]t is axiomatic that in order to Alfano v. Costello, 294 F.3d 365, 374 8 1 To make out a prima facie case of retaliation, a 2 plaintiff must demonstrate that (1) she engaged in 3 protected activity; (2) the employer was aware of that 4 activity; (3) the employee suffered a materially adverse 5 action; and (4) there was a causal connection between the 6 protected activity and that adverse action. 7 of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012). 8 Lore v. City An employee s complaint may qualify as protected 9 activity, satisfying the first element of this test, so 10 long as the employee has a good faith, reasonable belief 11 that the underlying challenged actions of the employer 12 violated the law. 13 Cir. 2001) (quotation marks omitted). 14 the plaintiff is required to have had a good faith, 15 reasonable belief that [she] was opposing an employment 16 practice made unlawful by Title VII. 17 Rochester, 241 F.3d 279, 285 (2d Cir. 2001); see also id. 18 (vacating summary judgment where plaintiff s belief that 19 [defendant s] alleged sexual harassment violated Title VII 20 was reasonable ). 21 belief is to be assessed in light of the totality of the 22 circumstances. Gregory v. Daly, 243 F.3d 687, 701 (2d And not just any law McMenemy v. City of The reasonableness of the plaintiff s Galdieri-Ambrosini, 136 F.3d at 292. 9 1 A plaintiff s belief on this point is not reasonable 2 simply because he or she complains of something that appears 3 to be discrimination in some form. 4 hospital administrator asserted that he had been terminated 5 after complaining that a white employee had been chosen 6 over qualified black and other minority applicants, we held 7 that the administrator failed to make out a prima facie case 8 because his objections at the time neither pointed out 9 discrimination against particular individuals nor For example, when a 10 discriminatory practices by [the employer] and were thus 11 directed at something that, as it was alleged, is not 12 properly within the definition of an unlawful employment 13 practice. 14 & Surgeons, 842 F.2d 590, 593-94 (2d Cir. 1988) (quoting 42 15 U.S.C. § 2000e-2(j) (1982)). Manoharan v. Columbia Univ. Coll. of Physicians 16 Similarly, a black police officer who reported 17 overhearing racial slurs made by [other] police officers 18 against black citizens had not engaged in protected 19 activity despite opposing discrimination by co-employees 20 against non-employees because his opposition was not 21 directed at an unlawful employment practice of his 22 employer. Wimmer v. Suffolk Cnty. Police Dep t, 176 F.3d 10 1 125, 134-35 (2d Cir. 1999) (emphasis in original); see also 2 Drumm v. SUNY Geneseo Coll., 486 Fed. Appx. 912, 914 (2d 3 Cir. 2012) ( [P]laintiff's allegations that her supervisor 4 berated her and made other harsh comments . . . amount 5 only to general allegations of mistreatment, and do not 6 support an inference that plaintiff had a reasonable good 7 faith belief that she was subject to gender 8 discrimination. ). 9 As to the second element [of the prima facie case], 10 implicit in the requirement that the employer have been 11 aware of the protected activity is the requirement that it 12 understood, or could reasonably have understood, that the 13 plaintiff s opposition was directed at conduct prohibited by 14 Title VII. 15 Galdieri-Ambrosini, we affirmed a district court s post- 16 trial entry of judgment as a matter of law against a 17 secretary who complained that she had been improperly 18 required to work on her employer s personal matters. 19 concluded that there was no semblance of gender-oriented 20 motivation in the events or conversations to which [the 21 plaintiff] testified and that the plaintiff s complaints to 22 her supervisor did not state that [she] viewed [her Galdieri-Ambrosini, 136 F.3d at 292. 11 In We 1 supervisor s] actions as based on her gender, and there was 2 nothing in her protests that could reasonably have led [the 3 company] to understand that that was the nature of her 4 objections. 5 Id. Here, Kelly s claim founders on both the first and 6 second requirements of the prima facie case. 7 [n]othing in our Title VII jurisprudence . . . requires a 8 plaintiff to append to each allegation of harassment the 9 conclusory declaration and this was done because of my Although 10 sex, we do require the allegation of factual 11 circumstances that permit the inference that plaintiff was 12 subjected to a hostile work environment because of her sex. 13 Gregory, 243 F.3d at 694. 14 complaint, however, to indicate that her sex, in one way or 15 another, played a substantial role in [her brothers ] 16 behavior. 17 used the words discrimination and harassment when 18 complaining to her employers, her argument that the 19 widespread sexual favoritism constituted gender 20 discrimination because it resulted in an atmosphere 21 demeaning to women [] is entirely unsupported by the 22 allegations in her complaint. Id. There is nothing in Kelly s Although Kelly alleges that she repeatedly 12 Kelly, 2012 WL 3241402, at 1 *11. 2 in sexually explicit behavior or conversations in the 3 office, or that Lawrence took any actions or made any 4 statement[s] that were of a sexual or gender-specific nature 5 that could be perceived as demeaning to women. 6 (emphasis in original). 7 that sexual discourse displaced standard business procedure 8 in a way that prevented [Kelly] from working in an 9 environment in which she could be evaluated on grounds other Kelly does not allege that Lawrence and Joyce engaged Id. Nothing in the complaint indicates 10 than her sexuality. 11 F.2d 853, 862 (3d Cir. 1990); see also id. at 864 12 (Plaintiff s opposition to the liberties which [her 13 supervisors] took with [the company s] resources, policies 14 and chain of command . . . could [not] reasonably be 15 believed to have resulted from the fact that [plaintiff] 16 possessed the protected characteristic of womanhood. ). 17 Drinkwater v. Union Carbide Corp., 904 Thus, there is no indication either that Kelly herself 18 possessed a good-faith belief that she was complaining of 19 conduct prohibited by Title VII or that her employers could 20 have understood her complaints in this way. 21 only that she believed her brothers were undermining her 22 authority in favor of Ms. Joyce, and that she believed that 13 Kelly suggests 1 such misconduct constituted unlawful discrimination. 2 Compl. ¶ 49. 3 the office environment was demeaning to women. 4 allegations regarding other female employees in the office 5 state only that they complained to Kelly about the 6 favoritism shown towards Ms. Joyce and that they were 7 unable to get into [Lawrence s] office to meet with him. 8 Id. ¶ 48. 9 had repeated them to Lawrence, which she does not claim to 10 have done indicates that there was discrimination against 11 anyone on the basis of sex. 12 ( Because [the plaintiff] did not introduce evidence that 13 minority employees of the Department felt that they worked 14 in a racially hostile environment, [he] could not reasonably 15 have believed that he was protesting an unlawful hostile 16 work environment. ). 17 Moreover, the complaint does not indicate that Kelly s Nothing about these allegations even if Kelly See Wimmer, 176 F.3d at 136 Kelly relies heavily on Voels v. New York, 180 F. Supp. 18 2d 508 (S.D.N.Y. 2002), which not only does not support but 19 undermines her case. 20 that his supervisor gave preferential treatment to a female 21 coworker, with whom the supervisor later became romantically 22 involved. Id. at 511. The male plaintiff, Voels, alleged The court granted summary judgment 14 1 for the defendant on Voels s sex discrimination claim, 2 noting that any preferential treatment was based on the 3 relationship [and] not on gender. 4 allowed the retaliation claim to survive, however, noting 5 that Voels had alleged that he first complained of sex-based 6 treatment the year before the relationship began, which 7 would allow a jury to find that his belief that he was 8 discriminated against was reasonable. 9 Id. at 515. The court Id. at 518 n.49. Kelly protests that as a non-lawyer, she should not be 10 required to understand the paramour preference or other 11 intricacies of our Title VII jurisprudence. 12 her belief that her complaints concerned unlawful activity 13 was sufficiently reasonable to bring the complaints within 14 Title VII s protection. 15 plaintiff may prevail on a claim for retaliation even when 16 the underlying conduct complained of was not in fact 17 unlawful so long as [she] can establish that [she] possessed 18 a good faith, reasonable belief that the underlying 19 challenged actions of the employer violated [the] law. 20 Treglia, 313 F.3d at 719 (quotation marks omitted). 21 However, [m]ere subjective good faith belief is 22 insufficient[;] the belief must be reasonable and She argues that We have indeed held that a 15 1 characterized by objective good faith. 2 N.Y. Power Auth., 114 F. Supp. 2d 240, 243 (S.D.N.Y. 2000) 3 (emphasis in original). 4 complaint is to be evaluated from the perspective of a 5 reasonable similarly situated person. Sullivan-Weaver v. The objective reasonableness of a 6 Although it is appropriate to construe Title VII s 7 prohibition on retaliation generously, and we do not require 8 a sophisticated understanding on the part of a plaintiff of 9 this relatively nuanced area of law, it is difficult to see 10 how Kelly could have had even a subjectively reasonable, 11 good-faith belief that her conduct was protected. 12 no complaints that suggested a belief that she was being 13 discriminated against on the basis of any trait, protected 14 or otherwise. 15 endorse not only her belief that the law of Title VII is 16 something other than what it is, but also her apparent 17 belief that the definition of discrimination is something 18 other than what it is. 19 that Kelly has failed to allege facts demonstrating that 20 even a legally unsophisticated employee would have a good 21 faith, reasonable belief that . . . the Defendants 22 preferential treatment of Joyce constituted discrimination She made The success of her claim would require us to We agree with the district court 16 1 [against Kelly] based on gender. 2 at *13. 3 Kelly, 2012 WL 3241402, Moreover, even if Kelly had possessed such a belief, 4 nothing in her behavior, as described in her complaint, 5 would have allowed her employer to reasonably have 6 understood[] that [Kelly s] opposition was directed at 7 conduct prohibited by Title VII. 8 136 F.3d at 292; see also Manoharan, 842 F.2d at 594 9 (plaintiff s complaints neither pointed out discrimination See Galdieri-Ambrosini, 10 against particular individuals nor discriminatory 11 practices ). 12 discrimination are certainly not required to put an 13 employer on notice of a protected complaint, neither are 14 they sufficient to do so if nothing in the substance of the 15 complaint suggests that the complained-of activity is, in 16 fact, unlawfully discriminatory. 17 of Rochester & Monroe Cnty., Inc., 724 F. Supp. 2d 382, 395 18 (W.D.N.Y. 2010) (dismissing retaliation claim when the 19 plaintiff s own allegations . . . show instead that while 20 she did complain about certain problems she was having at 21 work, she did not complain that she was being discriminated 22 against on account of her sex ); Krasner v. HSH Nordbank AG, Although particular words such as 17 See Foster v. Humane Soc y 1 680 F. Supp. 2d 502, 521 (S.D.N.Y 2010) (Lynch, J.) ( [T]he 2 overall content and context of [the plaintiff s] internal 3 complaints suggest, at most, a consensual affair that 4 while perhaps unfair, bad for morale, and detrimental to the 5 department and the company in itself harmed no one on 6 account of a protected characteristic. ). 7 It is certainly possible to imagine how a plaintiff s 8 protests about a paramour preference scenario could amount 9 to protected activity. Had Kelly complained, or even 10 suggested, that she was being discriminated against because 11 of her sex (or some other trait), we would have a different 12 case. 13 accusations of sexual favoritism, nor the continual 14 repetition of the words discrimination and harassment 15 suggests that she did so. 16 that Kelly believed that her sex had anything to do with her 17 treatment or that defendants could have understood her 18 statements as such, she has failed to establish a prima 19 facie case for retaliation under Title VII or the NYSHRL. Nothing in her complaint, however not the Because there is no indication 20 21 22 18 1 2 Conclusion We have examined all of Kelly s arguments on appeal and 3 find them to be without merit. 4 the judgment of the district court dismissing Kelly s 5 complaint is AFFIRMED. 19 For the foregoing reasons,
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