     12-3489-cv
     Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs., P.C.

 1                      UNITED STATES COURT OF APPEALS
 2                          FOR THE SECOND CIRCUIT
 3
 4
 5                              August Term, 2012
 6
 7      (Argued: March 12, 2013                 Decided: April 26, 2013)
 8
 9                            Docket No. 12-3489-cv
10
11
12                                 GAIL KELLY,
13
14                                                    Plaintiff-Appellant,
15
16                                      -v.-
17
18    HOWARD I. SHAPIRO & ASSOCIATES CONSULTING ENGINEERS, P.C.,
19                  LAWRENCE SHAPIRO, JAY SHAPIRO,
20
21                                                   Defendants-Appellees.
22
23
24
25
26   Before:
27                 WALKER, WESLEY, AND DRONEY, Circuit Judges
28
29
30
31        Plaintiff-Appellant Gail Kelly asserts that her
32   employers retaliated against her after she complained about
33   a supervisor’s affair with a coworker. 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.
38
39
40
41
42               ANDREW S. GOODSTADT, Goodstadt Law Group, PLLC,
43                    Carle Place, NY, for Appellant.
44
 1             HENRY E. KRUMAN, Kruman & Kruman P.C., Malverne,
 2                  NY, for Appellees Howard I. Shapiro &
 3                  Associates Consulting Engineers, P.C. and Jay
 4                  Shapiro.
 5
 6             PHILIP MARK BERNSTEIN, P.M. Bernstein P.C., Garden
 7                  City, NY, for Appellee Lawrence Shapiro.
 8
 9
10
11   PER CURIAM:
12
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.

28



                                   2
 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.1      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
          We will refer to Lawrence Shapiro by his first name.

                                     3
 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



                                       4
 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.

                                      5
 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


                                   6
 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


                                   7
 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).


                                   8
 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.


                                     9
 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


                                    10
 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


                                   11
 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


                                        12
 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



                                    13
 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   coworker, with whom the supervisor later became romantically

22   involved.   Id. at 511.     The court granted summary judgment



                                      14
 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



                                   15
 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


                                    16
 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,


                                   17
 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.

20

21

22



                                   18
1                            Conclusion

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.




                                 19
