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

April 26, 2013

GAIL KELLY, PLAINTIFF-APPELLANT,
v.
HOWARD I. SHAPIRO & ASSOCIATES CONSULTING ENGINEERS, P.C., LAWRENCE SHAPIRO, JAY SHAPIRO, DEFENDANTS-APPELLEES.



Per curiam.

12-3489-cv

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 ...


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