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Gail Kelly v. Howard I. Shapiro & Associates Consulting Engineers

August 3, 2012


The opinion of the court was delivered by: Spatt, District Judge.


The plaintiff in this case, Gail Kelly ("Kelly" or "the Plaintiff") brings this action against her former employer Howard I. Shapiro & Associates Consulting Engineers, P.C., ("Shapiro & Associates"), and Shapiro & Associates Vice-Presidents Lawrence Shapiro ("Lawrence"), and Jay Shapiro ("Jay" and together with Lawrence and Shapiro & Associates, the "Defendants"), alleging claims of gender discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq. Presently before the Court are two motions to dismiss the complaint pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 12(b)(6). The first is a motion by defendants Jay and Shapiro & Associates, and the second is a motion by Lawrence. For the reasons set forth below, the Court grants both motions to dismiss the complaint.


A. Factual Background

Gail Kelly is a female resident of the State of South Carolina and a former employee of the three-generation, family-owned and operated business, defendant Howard I. Shapiro & Associates Consulting Engineers, P.C. Shapiro & Associates provides consulting and design services to the construction industry, construction equipment manufacturers, and crane owners and operators. Kelly commenced employment at Shapiro & Associates in 1981, when the company was run by her father, Howard I. Shapiro, who, according to Kelly, said she could work for the company until she decided to retire. In or about 1989, the structure of the company changed when Kelly's brothers, defendants Jay and Lawrence Shapiro, joined the company as partners after obtaining the necessary engineering licenses.

Kelly asserts that, although she did not possess the proper license to become a partner or principal of the company, she was regarded as part "of the senior management team." (Compl., ¶ 20.) Throughout her employment at Shapiro & Associates, Kelly performed numerous executive functions such as "comptroller, office manager, Head of Human Resources, bookkeeper and time manager." (Compl., ¶ 17.) In 2007, the structure of the company changed again when her father Howard I. Shapiro passed away. Kelly states that, at this point, Jay and Lawrence Shapiro took control of the company and her role expanded further. However, Kelly does not explain what specifically changed with respect to her role at the company.

In addition, although Kelly alleges that Jay and Lawrence Shapiro both hold the position of Vice-President of the company, she does not state when they acquired these titles. However, there is no dispute that both Jay and Lawrence Shapiro were in supervisory positions superior to Kelly's role in the company, and therefore this information is unnecessary to the resolution of the instant motions.

According to Kelly, in or around November of 2008, she became aware that Lawrence, a married man, was engaged in a relationship with Kelly Joyce ("Joyce"), a mid-level employee, and Kelly's subordinate in the company. Kelly alleges that "she noticed that they began spending the majority of their time together to the exclusion of Ms. Kelly and others who needed Lawrence Shapiro's attention for business related matters". (Compl., ¶ 24.) At the time the affair allegedly began, Kelly states that Joyce's job required her to act as a liaison between Shapiro & Associates and the NYC Building Department and their inspectors and to coordinate the necessary paperwork to get approvals from the relevant NYC agencies.

After learning of the affair, Kelly contends that she attempted to dissuade Lawrence from pursuing the affair, and explained that she believed the relationship would have a detrimental effect on the company and presented a conflict of interest. Kelly also contends that, in this initial conversation, she "mention[ed] the adverse effect if was having on [her] employment". (Compl., ¶ 25.) Subsequent to her initial complaint about the affair, Kelly alleges that Lawrence and Jay began engaging in conduct that created a hostile work environment by showing preferential treatment to Joyce to the detriment of Kelly and Shapiro & Associates as a whole.

For example, Kelly contends that Joyce produced "falsified time sheets" for the dates of January 19, 2009, April 24, 2009, and May 14, 2009, when Joyce billed for hours on days or at a time when she was either on vacation, out to lunch without returning to the office, or picking Lawrence up at the airport in violation of "well-established written Company policy". (Compl., ¶ 32.) According to Kelly, when she, as the manager in charge of time management and Human Resources, brought the time-sheets to Joyce's attention, Joyce responded by berating her "verbally and in writing", and attempted to start a physical altercation. (Id.) Kelly asserts that she complained to Jay and Lawrence about Joyce's fabrication of time sheets and subsequent "threatening and insubordinate conduct", but that Lawrence ignored her complaints and sided with Joyce. (Compl., ¶ 33.) The only other incident for which Kelly provides a date occurred on "St. Patrick's Day" in 2009, when Joyce allegedly arrived at the office intoxicated and Jay prevented Kelly from disciplining her.

The remaining allegations in the complaint regarding a hostile work environment refer to conduct that allegedly occurred at unspecified times between November of 2008 and January 1, 2010. In particular, Kelly alleges:

 Joyce violated company protocol by leaving the office early and taking days off without notifying Kelly. When Kelly attempted to raise the issue with Joyce, Kelly contends that Joyce "screamed at [her] in front of the entire office", and that Lawrence "did not discipline Ms. Joyce for her insubordination and patently unprofessional behavior". (Compl., ¶¶ 34, 35.)

 Jay permitted Joyce to violate the well-established company accounting policy that required employees to fill out a check-request form in order to obtain a company check, "effectively strip[ing] Ms. Kelly of her accounting responsibilities as they related to Ms. Joyce". (Compl., ¶¶ 36, 37.)

 Lawrence and Joyce "screamed and cursed" at Kelly "in front of her colleagues" when Kelly, in her capacity as head of Human Resources, left an IRS wage garnishment notice on Ms. Joyce's desk. (Compl., ¶ 38.)

 Joyce violated company policy by returning to the office in an intoxicated state with clients after hours. After two employees complained to Kelly about Joyce's "drunken and unauthorized behavior", Kelly complained to Lawrence and Jay, who "refused to reprimand Ms. Joyce or levy any type of punishment". (Compl., ¶ 43.)  Jay "turned a blind eye" when Kelly complained that Joyce was "accepting kickbacks from two inspectors from the New York City Department of Buildings, creating a conflict of interest with the Company in violation of her ethical responsibilities and duties", and berated Kelly for challenging Joyce's conduct. (Compl., ¶ 44.)  Lawrence prevented Kelly from disciplining Joyce after a client appeared at the office with attorneys to complain about Joyce completely abandoning a project for that client. (Compl., ¶¶ 45, 46.)  Jay "refused to take any corrective action" against Joyce when Kelly complained to Jay that, in retaliation for Kelly's complaints to Lawrence and Jay about Joyce's behavior, Joyce "physically confronted" her; "attempted to start an altercation" with her; and tried to persuade other "employees to retaliate against [her] by buying them meals during work and alcoholic drinks after working hours." (Compl., ¶¶ 53, 54.)

Kelly contends that the above-cited conduct created a "sexually-biased environment" that prevented Kelly "from performing her job", (Compl., ¶ 35), and that it "placed Defendant Lawrence Shapiro's romantic interest ahead of the best interests of Shapiro & Associates, and to the material detriment of Ms. Kelly's employment at the Company" (Compl., ¶ 37). In addition, Kelly contends that this conduct "created an atmosphere in the workplace that was demeaning to women". (Compl., ¶ 47.) Kelly alleges that "veteran female employees complained to [her] about the unfair and obvious favoritism shown towards Ms. Joyce", and that other female employees complained that they were unable to do their jobs because Lawrence spent a large portion of each day with Joyce. (Compl., ¶ 48.)

Furthermore, in addition to the above-stated complaints about Joyce's violations of company policy; insubordination; and unethical conduct, Kelly alleges that she also complained to Lawrence and Jay regarding discrimination and harassment. Specifically, Kelly alleges that, beginning in November of 2008, she began complaining to Lawrence and Jay about: (1) Lawrence's affair with Joyce and "the discrimination and harassment that she suffered due to such relationship"; and (2) that their conduct in "undermining her authority in favor of Ms. Joyce . . . . constituted unlawful discrimination". (Compl., ¶ 49). According to Kelly, the Defendants retaliated against her for these complaints by "reducing her responsibilities, berating her in front of other employees, and creating (and encouraging Ms. Joyce to create) a work environment that was so hostile as to leave Ms. Kelly with no option other than to leave the Company". (Compl., ¶ 51.)

Kelly further alleges that the Defendants retaliated against her for complaining of discrimination by punishing her family members, who were also employed at Shapiro & Associates. Specifically, Kelly alleges, that:

 At some point in time in early 2009, "without any prior notice or warning," the Defendants terminated Kelly's son, who was an expediter for the company, "in direct retaliation for [her] good faith complaints about Defendants' discriminatory and biased mistreatment of her". (Compl., ¶ 59.)  In October of 2009, Lawrence and Ms. Joyce ceased assigning Kelly's husband, Eugene Kelly ("Eugene"), "a senior certified crane and scaffolding inspector . . . any substantive work to perform" and reassigned his work to Joyce, who Kelly argues "was grossly unqualified to perform such inspections." (Compl., ¶¶ 55, 58.) According to Kelly, Jay told Eugene that Lawrence conveyed to him that he would not give Eugene any more work "after Ms. Kelly complained about the unlawful discrimination and harassment". (Compl. ¶ 57.)  On December 31, 2009, the Defendants terminated Eugene, without notice, on the ground that there was a lack of work, despite the fact that Shapiro & Associates was hiring new employees.

Finally, on January 1, 2010, Kelly alleges that the company forced her to leave "with the promise that she would be paid a substantial amount of money in exchange for a release and some continuing cooperation with the Company." (Compl., ¶ 61.) According to Kelly, she "reached a final settlement" with the company and continued to perform "many of her obligations under the terms of their agreement." (Compl., ¶ 62.) However, Kelly contends that the Defendants reneged on their agreement in retaliation for her complaints about the "discrimination and the hostile work environment created by Defendants and Ms. Joyce." (Compl., ¶ 63.)

At an unspecified date, Kelly left the company. Accordingly, to Kelly, she had no other option but to leave the company because she was "unable to withstand the constant and continuing harassment and retaliation, as well as the drastic and adverse reduction in her duties and responsibilities in retaliation for [her] complaints." (Compl., ¶ 60.)

B. Procedural History

On October 22, 2010, Kelly timely filed a Charge of Discrimination with the Equal Employment Opportunity Commission, and received a Right to Sue letter on July 22, 2011. Subsequently, on October 17, 2011, Kelly commenced the instant action against the Defendants asserting causes of action for gender discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq., and the New York State Human Rights Law, N.Y. Executive Law § 296 et. seq. The causes of action pursuant to Title VII are asserted only against Shapiro & Associates, and the causes of action under the NYHRSL are asserted against all of ...

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