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

12-3489-cv
Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs., P.C.
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
4
August Term, 2012 5
6
(Argued: March 12, 2013 Decided: April 26, 2013) 7
8
Docket No. 12-3489-cv 9
10
11
GAIL KELLY, 12
13
Plaintiff-Appellant, 14
15
-v.- 16
17
HOWARD I. SHAPIRO & ASSOCIATES CONSULTING ENGINEERS, P.C., 18
LAWRENCE SHAPIRO, JAY SHAPIRO, 19
20
Defendants-Appellees. 21
22
23
24
25
Before: 26
W ALKER , W ESLEY , AND D RONEY , Circuit Judges 27
28
29
30
Plaintiff-Appellant Gail Kelly asserts that her 31
employers retaliated against her after she complained about 32
a supervisor’s affair with a coworker. The United States 33
District Court for the Eastern District of New York (Spatt, 34
J.) dismissed Kelly’s discrimination and retaliation claims 35
under Federal Rule of Civil Procedure 12(b)(6). Kelly 36
appeals the dismissal of her retaliation claims. We AFFIRM. 37
38
39
40
41
ANDREW S. GOODSTADT, Goodstadt Law Group, PLLC, 42
Carle Place, NY, for Appellant. 43
44

-- 1 of 19 --

HENRY E. KRUMAN, Kruman & Kruman P.C., Malverne, 1
NY, for Appellees Howard I. Shapiro & 2
Associates Consulting Engineers, P.C. and Jay 3
Shapiro. 4
5
PHILIP MARK BERNSTEIN, P.M. Bernstein P.C., Garden 6
City, NY, for Appellee Lawrence Shapiro. 7
8
9
10
P ER C URIAM : 11
12
Gail Kelly quit her job as a human resources manager at 13
her family business after complaining about an affair that 14
one of her brothers, a vice president of the company, was 15
having with another worker in the office. She sued under 16
Title VII of the Civil Rights Act of 1964 and the New York 17
State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et 18
seq., alleging that the affair created a hostile work 19
environment “permeated by sexual favoritism” and that both 20
of her brothers retaliated against her for complaining about 21
the affair. The United States District Court for the 22
Eastern District of New York (Spatt, J.) dismissed her 23
complaint in its entirety. Kelly v. Howard I. Shapiro & 24
Assocs. Consulting Eng’rs, P.C., No. 11-CV-5035, 2012 WL 25
3241402 (E.D.N.Y. Aug. 3, 2012). Kelly appeals the 26
dismissal of her retaliation claims. 27
28
2

-- 2 of 19 --

Background 1
The following facts are drawn from Kelly’s complaint, 2
and we accept them as true for purposes of the motion to 3
dismiss. See Chase Grp. Alliance LLC v. City of N.Y. Dep’t 4
of Fin., 620 F.3d 146, 150 (2d Cir. 2010). 5
Howard I. Shapiro & Associates Consulting Engineers, 6
P.C. (“HIS”) is a third-generation family business founded 7
in 1946 by Kelly’s grandfather. In 1989, the company was 8
reorganized into a partnership among Kelly’s father, Howard 9
I. Shapiro, and her brothers, defendants and company vice 10
presidents Lawrence and Jay Shapiro. 1 Kelly has worked for 11
the business since 1981, performing various jobs including 12
comptroller, office manager, head of human resources, 13
bookkeeper, and time manager. After Kelly’s father passed 14
away in May 2007, her brothers “began to exert control” over 15
the company. Compl. ¶ 21. 16
In November 2008, Kelly discovered that Lawrence “began 17
an illicit affair with a subordinate” named Kelly Joyce. 18
Id. ¶ 23. Kelly “attempted to dissuade Lawrence [] from 19
pursuing the relationship, explaining that it would have a 20
detrimental effect on HIS and presented a conflict of 21
1We will refer to Lawrence Shapiro by his first name.
3

-- 3 of 19 --

interest, not to mention the adverse effect it was having on 1
Ms. Kelly’s employment at HIS,” but Lawrence “summarily 2
dismissed Ms. Kelly’s complaints out of hand.” Id. ¶¶ 25- 3
26. Kelly alleges that HIS “became so completely permeated 4
with sexual favoritism towards Ms. Joyce that Ms. Kelly’s 5
duties and responsibilities were substantially reduced, and 6
her leadership duties were removed in favor of Ms. Joyce, 7
notwithstanding the fact that she was significantly senior 8
to Ms. Joyce.” Id. ¶ 28. For example, Kelly alleges that 9
Joyce turned in inaccurate or fabricated timesheets and 10
“berated” Kelly for confronting her about them and that 11
Joyce “left the office early on a number of occasions, took 12
unlimited vacation time, and took days off without notifying 13
Ms. Kelly, all in violation of well-established company 14
protocol.” Id. ¶¶ 29-34. 15
Kelly alleges that when she spoke to Lawrence about 16
this “favoritism,” he “did not discipline Ms. Joyce for her 17
insubordination and patently unprofessional behavior,” which 18
Kelly believes created a “sexually-biased environment” that 19
“undermined Ms. Kelly’s authority and prevented her from 20
performing her duties as head of Human Resources.” Id. ¶¶ 21
35, 39. Kelly describes how she “frequently complained to 22
4

-- 4 of 19 --

[her brothers] about the harassment and discriminatory 1
environment created by [Lawrence’s] widespread sexual 2
favoritism” and the “hostile environment created by 3
[Lawrence’s] relationship with, and favorable treatment of, 4
his subordinate.” Id. ¶ 40. She “complain[ed] to [her 5
brothers] about [Lawrence’s] clandestine tryst with Ms. 6
Joyce and the discrimination and harassment that she 7
suffered due to such relationship,” and she “frequently 8
explained . . . that they were undermining her authority in 9
favor of Ms. Joyce, and that she believed that such 10
misconduct constituted unlawful discrimination.” Id. ¶ 49. 11
Kelly also alleges that Lawrence’s “widespread sexual 12
favoritism . . . created an atmosphere in the workplace that 13
was demeaning to women.” Id. ¶ 47. “Indeed, veteran female 14
employees complained to Ms. Kelly about the unfair and 15
obvious favoritism shown towards Ms. Joyce.” Id. ¶ 48. “In 16
fact, several female employees complained that [Lawrence] 17
prevented them from performing their jobs, as they were 18
unable to get into his office to meet with him.” Id. 19
“Rather, [Lawrence] spent a large portion of each day with 20
Ms. Joyce.” Id. Kelly does not allege that she reported 21
any of the other female employees’ complaints to her 22
brothers. 23
5

-- 5 of 19 --

Eventually, Kelly “was left with no option other than 1
to leave the Company after 28 years.” Id. ¶ 60. She filed 2
her complaint in district court on October 17, 2011, 3
asserting that she had been subjected to a hostile work 4
environment and to retaliatory treatment in violation of 5
Title VII and the NYSHRL. Defendants moved to dismiss 6
Kelly’s complaint pursuant to Federal Rule of Civil 7
Procedure 12(b)(6). 8
The district court granted the motion. The court first 9
dismissed the hostile environment claim on the ground that 10
Kelly had “failed to plausibly allege the existence of 11
‘widespread sexual favoritism’ or that any alleged 12
discrimination was based on the Plaintiff’s gender.” Kelly, 13
2012 WL 3241402, at *7 (emphasis added); see also id. at *9 14
(“Absent from the complaint are any allegations suggesting 15
even the slightest ‘semblance of gender-oriented motivation 16
in the events.’” (quoting Galdieri-Ambrosini v. Nat'l Realty 17
& Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998))). Kelly 18
does not challenge the dismissal of her discrimination 19
claims. 20
Second, the court dismissed Kelly’s retaliation claim 21
because Kelly “fail[ed] to sufficiently allege that she had 22
6

-- 6 of 19 --

a good faith, reasonable belief that [the allegedly 1
discriminatory] conduct was based on her gender,” as 2
required by this court’s jurisprudence. Id. at *14, see 3
also Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 4
2002). The court noted that despite Kelly’s repeated 5
invocation of “discrimination” and “sexual favoritism,” her 6
complaints “were limited to the detrimental impact of the 7
Lawrence-Joyce relationship on the Plaintiff’s work and on 8
the company as a whole,” and that there was “nothing about 9
the Plaintiff’s complaints as alleged that would have put 10
the Defendants on notice that the Plaintiff was complaining 11
of discrimination based on gender.” Id. at *15, 16. 12
Discussion 13
“In reviewing a motion to dismiss, we accept the 14
allegations in the complaint as true.” Boykin v. KeyCorp, 15
521 F.3d 202, 204 (2d Cir. 2008). “To survive a motion to 16
dismiss, a complaint must contain sufficient factual matter, 17
accepted as true, to state a claim to relief that is 18
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 19
678 (2009) (quotation marks omitted). “A claim has facial 20
plausibility when the plaintiff pleads factual content that 21
allows the court to draw the reasonable inference that the 22
7

-- 7 of 19 --

defendant is liable for the misconduct alleged.” Id. The 1
standards for evaluating hostile work environment and 2
retaliation claims are identical under Title VII and the 3
NYSHRL. Weinstock v. Columbia Univ., 224 F.3d 33, 42 n.1 4
(2d Cir. 2000). 5
Although Kelly has not appealed the dismissal of her 6
hostile environment claims, we note first that the dismissal 7
was manifestly correct. Our Circuit has long since rejected 8
“paramour preference” claims, which depend on the 9
proposition that “the phrase ‘discrimination on the basis of 10
sex’ encompasses disparate treatment premised not on one’s 11
gender, but rather on a romantic relationship between an 12
employer and a person preferentially [treated].” DeCintio 13
v. Westchester Cnty. Med. Ctr., 807 F.2d 304, 306 (2d Cir. 14
1986); see also id. at 308 (“Appellees were not prejudiced 15
because of their status as males; rather, they were 16
discriminated against because [their supervisor] preferred 17
his paramour.”). “[I]t is axiomatic that in order to 18
establish a sex-based hostile work environment under Title 19
VII, a plaintiff must demonstrate that the conduct occurred 20
because of her sex.” Alfano v. Costello, 294 F.3d 365, 374 21
(2d Cir. 2002) (quotation marks omitted). 22
8

-- 8 of 19 --

To make out a prima facie case of retaliation, a 1
plaintiff must demonstrate that “(1) she engaged in 2
protected activity; (2) the employer was aware of that 3
activity; (3) the employee suffered a materially adverse 4
action; and (4) there was a causal connection between the 5
protected activity and that adverse action.” Lore v. City 6
of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012). 7
An employee’s complaint may qualify as protected 8
activity, satisfying the first element of this test, “so 9
long as the employee has a good faith, reasonable belief 10
that the underlying challenged actions of the employer 11
violated the law.” Gregory v. Daly, 243 F.3d 687, 701 (2d 12
Cir. 2001) (quotation marks omitted). And not just any law 13
– the plaintiff is “required to have had a good faith, 14
reasonable belief that [she] was opposing an employment 15
practice made unlawful by Title VII.” McMenemy v. City of 16
Rochester, 241 F.3d 279, 285 (2d Cir. 2001); see also id. 17
(vacating summary judgment where plaintiff’s “belief that 18
[defendant’s] alleged sexual harassment violated Title VII 19
was reasonable”). “The reasonableness of the plaintiff’s 20
belief is to be assessed in light of the totality of the 21
circumstances.” Galdieri-Ambrosini, 136 F.3d at 292. 22
9

-- 9 of 19 --

A plaintiff’s belief on this point is not reasonable 1
simply because he or she complains of something that appears 2
to be discrimination in some form. For example, when a 3
hospital administrator asserted that he had been terminated 4
after complaining that a white employee had been “chosen 5
over qualified black and other minority applicants,” we held 6
that the administrator failed to make out a prima facie case 7
because his “objections at the time neither pointed out 8
discrimination against particular individuals nor 9
discriminatory practices by [the employer]” and were thus 10
“directed at something that, as it was alleged, is not 11
properly within the definition of an ‘unlawful employment 12
practice.’” Manoharan v. Columbia Univ. Coll. of Physicians 13
& Surgeons, 842 F.2d 590, 593-94 (2d Cir. 1988) (quoting 42 14
U.S.C. § 2000e-2(j) (1982)). 15
Similarly, a black police officer who “reported 16
overhearing racial slurs made by [other] police officers 17
against black citizens” had not engaged in protected 18
activity despite “opposing discrimination by co-employees 19
against non-employees” because his “opposition was not 20
directed at an unlawful employment practice of his 21
employer.” Wimmer v. Suffolk Cnty. Police Dep’t, 176 F.3d 22
10

-- 10 of 19 --

125, 134-35 (2d Cir. 1999) (emphasis in original); see also 1
Drumm v. SUNY Geneseo Coll., 486 Fed. Appx. 912, 914 (2d 2
Cir. 2012) (“[P]laintiff's allegations that her supervisor 3
‘berated’ her and made other harsh comments . . . amount 4
only to general allegations of mistreatment, and do not 5
support an inference that plaintiff had a reasonable good 6
faith belief that she was subject to gender 7
discrimination.”). 8
“As to the second element [of the prima facie case], 9
implicit in the requirement that the employer have been 10
aware of the protected activity is the requirement that it 11
understood, or could reasonably have understood, that the 12
plaintiff’s opposition was directed at conduct prohibited by 13
Title VII.” Galdieri-Ambrosini, 136 F.3d at 292. In 14
Galdieri-Ambrosini, we affirmed a district court’s post- 15
trial entry of judgment as a matter of law against a 16
secretary who complained that she had been improperly 17
required to work on her employer’s personal matters. We 18
concluded that “there was no semblance of gender-oriented 19
motivation in the events or conversations to which [the 20
plaintiff] testified” and that the plaintiff’s complaints to 21
her supervisor “did not state that [she] viewed [her 22
11

-- 11 of 19 --

supervisor’s] actions as based on her gender, and there was 1
nothing in her protests that could reasonably have led [the 2
company] to understand that that was the nature of her 3
objections.” Id. 4
Here, Kelly’s claim founders on both the first and 5
second requirements of the prima facie case. Although 6
“[n]othing in our Title VII jurisprudence . . . requires a 7
plaintiff to append to each allegation of harassment the 8
conclusory declaration ‘and this was done because of my 9
sex,’” we do require “the allegation of factual 10
circumstances that permit the inference that plaintiff was 11
subjected to a hostile work environment because of her sex.” 12
Gregory, 243 F.3d at 694. There is nothing in Kelly’s 13
complaint, however, to indicate that “her sex, in one way or 14
another, played a substantial role in [her brothers’] 15
behavior.” Id. Although Kelly alleges that she repeatedly 16
used the words “discrimination” and “harassment” when 17
complaining to her employers, her “argument that the 18
widespread sexual favoritism constituted gender 19
discrimination because it resulted in an atmosphere 20
‘demeaning to women’[] is entirely unsupported by the 21
allegations in her complaint.” Kelly, 2012 WL 3241402, at 22
12

-- 12 of 19 --

*11. Kelly “does not allege that Lawrence and Joyce engaged 1
in sexually explicit behavior or conversations in the 2
office, or that Lawrence took any actions or made any 3
statement[s] that were of a sexual or gender-specific nature 4
that could be perceived as ‘demeaning to women.’” Id. 5
(emphasis in original). Nothing in the complaint indicates 6
that “sexual discourse displaced standard business procedure 7
in a way that prevented [Kelly] from working in an 8
environment in which she could be evaluated on grounds other 9
than her sexuality.” Drinkwater v. Union Carbide Corp., 904 10
F.2d 853, 862 (3d Cir. 1990); see also id. at 864 11
(Plaintiff’s “opposition to the liberties which [her 12
supervisors] took with [the company’s] resources, policies 13
and chain of command . . . could [not] reasonably be 14
believed to have resulted from the fact that [plaintiff] 15
possessed the protected characteristic of womanhood.”). 16
Thus, there is no indication either that Kelly herself 17
possessed a good-faith belief that she was complaining of 18
conduct prohibited by Title VII or that her employers could 19
have understood her complaints in this way. Kelly suggests 20
only that she believed her brothers were “undermining her 21
authority in favor of Ms. Joyce, and that she believed that 22
13

-- 13 of 19 --

such misconduct constituted unlawful discrimination.” 1
Compl. ¶ 49. Moreover, the complaint does not indicate that 2
the office environment was “demeaning to women.” Kelly’s 3
allegations regarding other female employees in the office 4
state only that they complained to Kelly about the 5
“favoritism shown towards Ms. Joyce” and that they were 6
“unable to get into [Lawrence’s] office to meet with him.” 7
Id. ¶ 48. Nothing about these allegations – even if Kelly 8
had repeated them to Lawrence, which she does not claim to 9
have done – indicates that there was discrimination against 10
anyone on the basis of sex. See Wimmer, 176 F.3d at 136 11
(“Because [the plaintiff] did not introduce evidence that 12
minority employees of the Department felt that they worked 13
in a racially hostile environment, [he] could not reasonably 14
have believed that he was protesting an unlawful hostile 15
work environment.”). 16
Kelly relies heavily on Voels v. New York, 180 F. Supp. 17
2d 508 (S.D.N.Y. 2002), which not only does not support but 18
undermines her case. The male plaintiff, Voels, alleged 19
that his supervisor gave preferential treatment to a female 20
coworker, with whom the supervisor later became romantically 21
involved. Id. at 511. The court granted summary judgment 22
14

-- 14 of 19 --

for the defendant on Voels’s sex discrimination claim, 1
noting that any preferential treatment “was based on the 2
relationship [and] not on gender.” Id. at 515. The court 3
allowed the retaliation claim to survive, however, noting 4
that Voels had alleged that he first complained of sex-based 5
treatment the year before the relationship began, which 6
would allow a jury to find that his belief that he was 7
discriminated against was reasonable. Id. at 518 n.49. 8
Kelly protests that as a non-lawyer, she should not be 9
required to understand the “paramour preference” or other 10
intricacies of our Title VII jurisprudence. She argues that 11
her belief that her complaints concerned unlawful activity 12
was sufficiently reasonable to bring the complaints within 13
Title VII’s protection. We have indeed held that a 14
“plaintiff may prevail on a claim for retaliation even when 15
the underlying conduct complained of was not in fact 16
unlawful so long as [she] can establish that [she] possessed 17
a good faith, reasonable belief that the underlying 18
challenged actions of the employer violated [the] law.” 19
Treglia, 313 F.3d at 719 (quotation marks omitted). 20
However, “[m]ere subjective good faith belief is 21
insufficient[;] the belief must be reasonable and 22
15

-- 15 of 19 --

characterized by objective good faith.” Sullivan-Weaver v. 1
N.Y. Power Auth., 114 F. Supp. 2d 240, 243 (S.D.N.Y. 2000) 2
(emphasis in original). The objective reasonableness of a 3
complaint is to be evaluated from the perspective of a 4
reasonable similarly situated person. 5
Although it is appropriate to construe Title VII’s 6
prohibition on retaliation generously, and we do not require 7
a sophisticated understanding on the part of a plaintiff of 8
this relatively nuanced area of law, it is difficult to see 9
how Kelly could have had even a subjectively reasonable, 10
good-faith belief that her conduct was protected. She made 11
no complaints that suggested a belief that she was being 12
discriminated against on the basis of any trait, protected 13
or otherwise. The success of her claim would require us to 14
endorse not only her belief that the law of Title VII is 15
something other than what it is, but also her apparent 16
belief that the definition of “discrimination” is something 17
other than what it is. We agree with the district court 18
that Kelly has failed to allege facts demonstrating that 19
“even a legally unsophisticated employee would have a good 20
faith, reasonable belief that . . . the Defendants’ 21
preferential treatment of Joyce constituted discrimination 22
16

-- 16 of 19 --

[against Kelly] based on gender.” Kelly, 2012 WL 3241402, 1
at *13. 2
Moreover, even if Kelly had possessed such a belief, 3
nothing in her behavior, as described in her complaint, 4
would have allowed her employer to “reasonably have 5
understood[] that [Kelly’s] opposition was directed at 6
conduct prohibited by Title VII.” See Galdieri-Ambrosini, 7
136 F.3d at 292; see also Manoharan, 842 F.2d at 594 8
(plaintiff’s complaints “neither pointed out discrimination 9
against particular individuals nor discriminatory 10
practices”). Although particular words such as 11
“discrimination” are certainly not required to put an 12
employer on notice of a protected complaint, neither are 13
they sufficient to do so if nothing in the substance of the 14
complaint suggests that the complained-of activity is, in 15
fact, unlawfully discriminatory. See Foster v. Humane Soc’y 16
of Rochester & Monroe Cnty., Inc., 724 F. Supp. 2d 382, 395 17
(W.D.N.Y. 2010) (dismissing retaliation claim when the 18
plaintiff’s “own allegations . . . show instead that while 19
she did complain about certain problems she was having at 20
work, she did not complain that she was being discriminated 21
against on account of her sex”); Krasner v. HSH Nordbank AG, 22
17

-- 17 of 19 --

680 F. Supp. 2d 502, 521 (S.D.N.Y 2010) (Lynch, J.) (“[T]he 1
overall content and context of [the plaintiff’s] internal 2
complaints suggest, at most, a consensual affair that – 3
while perhaps unfair, bad for morale, and detrimental to the 4
department and the company – in itself harmed no one on 5
account of a protected characteristic.”). 6
It is certainly possible to imagine how a plaintiff’s 7
protests about a “paramour preference” scenario could amount 8
to protected activity. Had Kelly complained, or even 9
suggested, that she was being discriminated against because 10
of her sex (or some other trait), we would have a different 11
case. Nothing in her complaint, however – not the 12
accusations of “sexual favoritism,” nor the continual 13
repetition of the words “discrimination” and “harassment” – 14
suggests that she did so. Because there is no indication 15
that Kelly believed that her sex had anything to do with her 16
treatment or that defendants could have understood her 17
statements as such, she has failed to establish a prima 18
facie case for retaliation under Title VII or the NYSHRL. 19
20
21
22
18

-- 18 of 19 --

Conclusion 1
We have examined all of Kelly’s arguments on appeal and 2
find them to be without merit. For the foregoing reasons, 3
the judgment of the district court dismissing Kelly’s 4
complaint is AFFIRMED. 5
19

-- 19 of 19 --