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


April 26, 2013


Per curiam.


Kelly v. Howard I. Shapiro & Assocs. Consulting Eng'rs., P.C.

(Argued: March 12, 2013

Before: WALKER, WESLEY, AND DRONEY, Circuit Judges

Plaintiff-Appellant Gail Kelly asserts that her 32 employers retaliated against her after she complained about 33 a supervisor's affair with a co-worker. The United States 34 District Court for the Eastern District of New York (Spatt, 35 J.) dismissed Kelly's discrimination and retaliation claims 36 under Federal Rule of Civil Procedure 12(b)(6). Kelly 37 appeals the dismissal of her retaliation claims. We AFFIRM.

13 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. She sued under 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. The United States District Court for the 23 Eastern District of New York (Spatt, J.) dismissed her 24 complaint in its entirety. Kelly v. Howard I. Shapiro & 25 Assocs. Consulting Eng'rs, P.C., No. 11-CV-5035, 2012 WL 26 3241402 (E.D.N.Y. Aug. 3, 2012). Kelly appeals the 27 dismissal of her retaliation claims.

1 Background

2 The following facts are drawn from Kelly's complaint, 3 and we accept them as true for purposes of the motion to 4 dismiss. See Chase Grp. Alliance LLC v. City of N.Y. Dep't 5 of Fin., 620 F.3d 146, 150 (2d Cir. 2010). 6 Howard I. Shapiro & Associates Consulting Engineers, 7 P.C. ("HIS") is a third-generation family business founded 8 in 1946 by Kelly's grandfather. In 1989, the company was 9 reorganized into a partnership among Kelly's father, Howard 10 I. Shapiro, and her brothers, defendants and company vice 11 presidents Lawrence and Jay Shapiro.*fn1 Kelly has worked for 12 the business since 1981, performing various jobs including 13 comptroller, office manager, head of human resources, 14 bookkeeper, and time manager. After Kelly's father passed 15 away in May 2007, her brothers "began to exert control" over 16 the company. Compl. ¶ 21.

17 In November 2008, Kelly discovered that Lawrence "began 18 an illicit affair with a subordinate" named Kelly Joyce. 19 Id. ¶ 23. Kelly "attempted to dissuade Lawrence [] from 20 pursuing the relationship, explaining that it would have a 21 detrimental effect on HIS and presented a conflict of 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." Id. ¶¶ 25- 4 26. Kelly alleges that HIS "became so completely permeated 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. ¶ 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." Id. ¶¶ 29-34.

16 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." Id. ¶¶ 22 35, 39. Kelly describes how she "frequently complained to 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." Id. ¶ 40. She "complain[ed] to [her 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 10 favor of Ms. Joyce, and that she believed that such 11 misconduct constituted unlawful discrimination." Id. ¶ 49. 12 Kelly also alleges that Lawrence's "widespread sexual 13 favoritism . . . created an atmosphere in the workplace that 14 was demeaning to women." Id. ¶ 47. "Indeed, veteran female 15 employees complained to Ms. Kelly about the unfair and 16 obvious favoritism shown towards Ms. Joyce." Id. ¶ 48. "In 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." Id. 20 "Rather, [Lawrence] spent a large portion of each day with 21 Ms. Joyce." Id. Kelly does not allege that she reported 22 any of the other female employees' complaints to her 23 brothers.

1 Eventually, Kelly "was left with no option other than 2 to leave the Company after 28 years." Id. ¶ 60. She filed 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. Defendants moved to dismiss 7 Kelly's complaint pursuant to Federal Rule of Civil 8 Procedure 12(b)(6).

9 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." Kelly, 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))). Kelly 19 does not challenge the dismissal of her discrimination 20 claims.

21 Second, the court dismissed Kelly's retaliation claim 22 because Kelly "fail[ed] to sufficiently allege that she had 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. Id. at *14, see 4 also Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 5 2002). The court noted that despite Kelly's repeated 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." Id. at *15, 16.

13 Discussion

14 "In reviewing a motion to dismiss, we accept the 15 allegations in the complaint as true." Boykin v. KeyCorp, 16 521 F.3d 202, 204 (2d Cir. 2008). "To survive a motion to 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." Ashcroft v. Iqbal, 556 U.S. 662, 20 678 (2009) (quotation marks omitted). "A claim has facial 21 plausibility when the plaintiff pleads factual content that 22 allows the court to draw the reasonable inference that the 1 defendant is liable for the misconduct alleged." Id.

The 2 standards for evaluating hostile work environment and 3 retaliation claims are identical under Title VII and the 4 NYSHRL. Weinstock v. Columbia Univ., 224 F.3d 33, 42 n.1 5 (2d Cir. 2000).

6 Although Kelly has not appealed the dismissal of her 7 hostile environment claims, we note first that the dismissal 8 was manifestly correct. Our Circuit has long since rejected 9 "paramour preference" claims, which depend on the 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]." DeCintio 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."). "[I]t is axiomatic that in order to 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." Alfano v. Costello, 294 F.3d 365, 374 22 (2d Cir. 2002) (quotation marks omitted).

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." Lore v. City 7 of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012). 8 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." Gregory v. Daly, 243 F.3d 687, 701 (2d 13 Cir. 2001) (quotation marks omitted). And not just any law 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." McMenemy v. City of 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"). "The reasonableness of the plaintiff's 21 belief is to be assessed in light of the totality of the 22 circumstances." Galdieri-Ambrosini, 136 F.3d at 292.

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. For example, when a 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 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.'" Manoharan v. Columbia Univ. Coll. of Physicians 14 & Surgeons, 842 F.2d 590, 593-94 (2d Cir. 1988) (quoting 42 15 U.S.C. § 2000e-2(j) (1982)).

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 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." Galdieri-Ambrosini, 136 F.3d at 292. In 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. We 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 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." Id.

5 Here, Kelly's claim founders on both the first and 6 second requirements of the prima facie case. Although 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 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. There is nothing in Kelly's 14 complaint, however, to indicate that "her sex, in one way or 15 another, played a substantial role in [her brothers'] 16 behavior." Id. Although Kelly alleges that she repeatedly 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." Kelly, 2012 WL 3241402, at 1 *11. Kelly "does not allege that Lawrence and Joyce engaged 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.'" Id. 6 (emphasis in original). Nothing in the complaint indicates 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 10 than her sexuality." Drinkwater v. Union Carbide Corp., 904 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 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. Kelly suggests 21 only that she believed her brothers were "undermining her 22 authority in favor of Ms. Joyce, and that she believed that 1 such misconduct constituted unlawful discrimination."

2 Compl. ¶ 49. Moreover, the complaint does not indicate that 3 the office environment was "demeaning to women." Kelly's 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. Nothing about these allegations - even if Kelly 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. See Wimmer, 176 F.3d at 136 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 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. The male plaintiff, Voels, alleged 20 that his supervisor gave preferential treatment to a female 21 co-worker, with whom the supervisor later became romantically 22 involved. Id. at 511. The court granted summary judgment 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." Id. at 515. The court 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. Id. at 518 n.49. 9 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. She argues that 12 her belief that her complaints concerned unlawful activity 13 was sufficiently reasonable to bring the complaints within 14 Title VII's protection. We have indeed held that a 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 1 characterized by objective good faith." Sullivan-Weaver v. 2 N.Y. Power Auth., 114 F. Supp. 2d 240, 243 (S.D.N.Y. 2000) 3 (emphasis in original). The objective reasonableness of a 4 complaint is to be evaluated from the perspective of a 5 reasonable similarly situated person.

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. She made 12 no complaints that suggested a belief that she was being 13 discriminated against on the basis of any trait, protected 14 or otherwise. The success of her claim would require us to 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. We agree with the district court 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 1 [against Kelly] based on gender." Kelly, 2012 WL 3241402, 2 at *13.

3 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." See Galdieri-Ambrosini, 8 136 F.3d at 292; see also Manoharan, 842 F.2d at 594 9 (plaintiff's complaints "neither pointed out discrimination 10 against particular individuals nor discriminatory 11 practices"). Although particular words such as 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. See Foster v. Humane Soc'y 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, 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. Nothing in her complaint, however - not the 13 accusations of "sexual favoritism," nor the continual 14 repetition of the words "discrimination" and "harassment" - 15 suggests that she did so. Because there is no indication 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.


2 We have examined all of Kelly's arguments on appeal and 3 find them to be without merit. For the foregoing reasons, 4 the judgment of the district court dismissing Kelly's 5 complaint is AFFIRMED.

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