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

presidents Lawrence and Jay Shapiro.1 11 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 post16 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