         12-2405-cv
         Fattoruso v. Hilton Grand Vacations Co., LLC

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
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ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 17th day of May, two thousand thirteen.
 5
 6       PRESENT: JOHN M. WALKER, JR.,
 7                ROBERT D. SACK,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12
13       THOMAS FATTORUSO,
14
15                                     Plaintiff-Appellant,
16
17                      v.                                                          12-2405
18
19       HILTON GRAND VACATIONS COMPANY, LLC,
20
21                                      Defendant-Appellee.
22
23
24       FOR APPELLANT:                WALKER G. HARMAN, JR. (Peter J. Andrews,
25                                     on the brief), The Harman Firm, PC, New
26                                     York, NY.
27
28       FOR APPELLEE:                 DIANE WINDHOLZ (Orla J. McCabe, on the
29                                     brief), Jackson Lewis LLP, New York, NY.
30
31

                                                         1
1         Appeal from the United States District Court for the
2    Southern District of New York (Forrest, J.).
3
4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5    AND DECREED that the judgment of the United States District

6    Court for the Southern District of New York is AFFIRMED.

7        Plaintiff-Appellant Thomas Fattoruso (“Fattoruso”)

8    appeals from a June 11, 2012 Opinion and Order from the

9    United States District Court for the Southern District of

10   New York (Forrest, J.) granting Defendant-Appellee Hilton

11   Grand Vacations Company LLC’s (“Hilton”) motion to dismiss

12   the complaint under Rule 12(b)(6).       Fattoruso alleged that

13   Hilton violated the New York City Human Rights Law

14   (“NYCHRL”) by retaliating against him for raising the issue

15   of his supervisor’s inappropriate relationship with and

16   preferential treatment of a subordinate.       We assume the

17   parties’ familiarity with the underlying facts, the

18   procedural history, and the issues presented for review.

19       “We review de novo a 12(b)(6) dismissal for failure to

20   state a claim for relief.”   Cruz v. Coach Stores, Inc., 202

21   F.3d 560, 565 (2d Cir. 2000).       The NYCHRL makes it an

22   “unlawful discriminatory practice” for an employer to

23   “retaliate or discriminate in any manner” on the basis of an

24   employee’s complaints about unlawful discrimination.         N.Y.C.

25   Admin. Code §§ 8-107(1)(a), (7).       Courts are directed to

                                     2
1    construe the provisions of the NYCHRL “liberally for the

2    accomplishment of the uniquely broad and remedial purposes

3    thereof,” id. § 8-130, but courts may still consider

4    interpretations of similar state or federal provisions as

5    “aids in interpretation [] to the extent that the

6    counterpart provisions are viewed as a floor below which the

7    [NYCHRL] cannot fall,” Williams v. N.Y.C. Hous. Auth., 61

8    A.D.3d 62, 66 (1st Dep’t 2009) (internal quotation marks

9    omitted).

10       To establish a prima facie case of retaliation under

11   the NYCHRL, a plaintiff must show that: (1) he participated

12   in a protected activity; (2) the defendant knew about his

13   participation; (3) the defendant took an employment action

14   that disadvantaged the plaintiff in any manner; and (4) a

15   causal connection existed between the protected activity and

16   the negative employment action.   See Mayers v. Emigrant

17   Bancorp, Inc., 796 F. Supp. 2d 434, 446 (S.D.N.Y. 2011); see

18   also Williams, 61 A.D.3d at 69-71.   A plaintiff who meets

19   this burden establishes a rebuttable presumption of

20   retaliation.   See El Sayed v. Hilton Hotels Corp., 627 F.3d

21   931, 932 (2d Cir. 2010).

22       Drawing all reasonable inferences in Fattoruso’s favor,

23   we find that he adequately alleged that he had a reasonable


                                   3
1    belief that he was opposing illegal practices based on sex.

2    See Kessler v. Westchester Cnty. Dep’t of Soc. Servs., 461

3    F.3d 199, 210 (2d Cir. 2006) (noting that a plaintiff who

4    makes a complaint to his employer “need only have had a good

5    faith, reasonable belief that he was opposing an [unlawful]

6    employment practice” (quotation marks omitted)).   Although

7    much of Fattoruso’s complaint centers around a non-

8    discriminatory relationship between his supervisor, Mr.

9    Crandall, and one of his co-workers, Fattoruso also alleged

10   conduct that could fall under the protection of the NYCHRL.

11       Specifically, Fattoruso claimed that he “believed that

12   Mr. Crandall was using his power to sexually harass an

13   inferior employee,” that he and other women “felt very

14   uncomfortable going to work,” that other women at work felt

15   that they might need to exchange sexual favors for work

16   benefits, and that “he believed that Mr. Crandall’s . . .

17   conduct was offensive, discriminatory, and created a hostile

18   work environment.”   Fattoruso also alleged that he “believed

19   that he was subjected to sex discrimination, as he was a

20   man, and as such would never be able to ‘put [his] foot in

21   the door or play that game.’”

22       However, the district court correctly determined that

23   Fattoruso failed to show that he participated in a protected


                                     4
1    activity known to Hilton.     Fattoruso alleged that he was

2    constructively terminated because he engaged in protected

3    activity by complaining about gender discrimination and a

4    hostile work environment.     However, the conduct Fattoruso

5    complained to Hilton about was not unlawful.1     As noted, the

6    basis for Fattoruso’s reports to Hilton was a consensual

7    workplace relationship; Fattoruso claimed that his

8    supervisor accorded the woman he was involved with

9    preferential treatment.     While this may have been true, we

10   have squarely held that a “paramour preference” does not

11   constitute unlawful discrimination based on gender.      Kelly

12   v. Howard I. Shapiro & Assocs. Consulting Eng’rs., P.C., No.

13   12-3489, slip op. at 8-9 (2d Cir. Apr. 26, 2013); see also

14   DeCintio v. Westchester Cnty. Med. Ctr., 807 F.2d 304, 308

15   (2d Cir. 1986).   As the conduct Fattoruso complained of was

16   not itself unlawful, his complaints did not implicitly give

17   Hilton notice that he was engaging or reasonably believed he

18   was engaging in a protected activity.

19        Nor does Fattoruso’s belief that he was being treated

20   “unfairly” transform his complaints to Hilton into charges



          1
            The district court rejected Fattoruso’s claims related to
     gender discrimination and sexual harassment in its Opinion and
     Order. Fattoruso appeals only from the district court’s
     dismissal of his retaliation claim.

                                     5
1    over unlawful discrimination.       As Fattoruso’s complaints

2    were limited to expressing his dismay over “favoritism with

3    one of the employees,” Hilton cannot be expected to have

4    understood Fattoruso to have been complaining about

5    disparate treatment based on sex and therefore engaging in

6    protected activity.   See Galdieri-Ambrosini v. Nat’l Realty

7    & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998) (“[I]mplicit

8    in the requirement that the employer have been aware of the

9    protected activity is the requirement that it is understood,

10   or could reasonably have understood, that the plaintiff’s

11   opposition was directed at conduct prohibited by Title

12   VII.”).

13       Because Fattoruso’s complaints did not implicitly or

14   explicitly alert Hilton that he was complaining of disparate

15   treatment based on sex – and thereby was engaging in a

16   protected activity – Fattoruso fails to establish a prima

17   facie case for retaliation under the NYCHRL.

18        For the foregoing reasons, the judgment of the district
19   court is hereby AFFIRMED.
20
21                               FOR THE COURT:
22                               Catherine O’Hagan Wolfe, Clerk
23
24




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