36 F.4th 469
2d Cir.2022Background
- Clara Leroy, an African American Delta flight attendant of ~17 years, alleges a passenger called her a "black bitch" while the plane was at the gate.
- Leroy told the pilot (Captain Carns); he demanded she step onto the jet bridge to confront the passenger; she refused (citing FAA rules) and the pilot arranged for her removal, saying "either she goes, or I go."
- Leroy reported the incident to supervisors; within ~2 months she was subjected to a random drug test, suspended, and then terminated.
- She sued in New York state court under the New York City Human Rights Law (NYCHRL) for retaliation and vicarious liability; Delta removed to federal court and moved to dismiss under Rule 12(b)(6).
- The district court dismissed for failure to state a claim; the Second Circuit (majority) affirmed, holding Leroy did not plausibly allege she opposed an unlawful employment practice or had a good-faith, reasonable belief that Delta discriminated.
- Judge Bianco dissented, arguing the NYCHRL must be construed broadly and Leroy plausibly alleged protected activity and vicarious liability for supervisors' retaliation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Protected activity (retaliation) — did Leroy oppose an unlawful employment practice? | Leroy: complaining about passenger's racial slur and pilot's response was opposing discrimination. | Delta: passenger's comment and pilot's conduct were not Delta discrimination; no actionable employment practice alleged. | No — plaintiff lacked a good-faith, reasonable belief that she opposed an unlawful employment practice; retaliation claim dismissed. |
| Employer vicarious liability for non-employee (passenger) harassment | Leroy: Delta may be liable for passenger's racist remark via agency/vicarious theories. | Delta: no high degree of control or negligence; single, first-time customer comment insufficient. | No — complaint fails to allege Delta permitted or facilitated the passenger's conduct; no imputation. |
| Pilot's conduct as discriminatory employment practice | Leroy: Carns's demand and removal of her was itself discriminatory conduct by employer agents. | Delta: complaint does not plausibly show Carns' actions were discriminatory or attributable to Delta policy. | No — court finds plaintiff did not plausibly allege Carns' response constituted an unlawful employment practice. |
| Pleading sufficiency under Rule 12(b)(6) for NYCHRL claims | Leroy: complaint pleaded facts showing retaliation and employer liability. | Delta: allegations are legal conclusions and inconsistent with FACTS report; insufficient factual pleading. | Dismissal affirmed — complaint fails to state plausible NYCHRL claim. |
Key Cases Cited
- Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102 (2d Cir. 2013) (NYCHRL construed broadly; retaliation requires opposing discrimination)
- Summa v. Hofstra Univ., 708 F.3d 115 (2d Cir. 2013) (employer liability for non-employee harassment when control plus employer negligence)
- Menaker v. Hofstra Univ., 935 F.3d 20 (2d Cir. 2019) (clarifies control + employer negligence test for imputing non-employee misconduct)
- Kwan v. Andalex Grp. LLC, 737 F.3d 834 (2d Cir. 2013) (retaliation protected if motivated by good-faith, reasonable belief underlying practice unlawful)
- Reed v. A.W. Lawrence & Co., 95 F.3d 1170 (2d Cir. 1996) (good-faith, reasonable belief standard for opposing discrimination)
- Albunio v. City of New York, 16 N.Y.3d 472 (N.Y. 2011) (plaintiff must show she opposed discrimination to prevail on NYCHRL retaliation)
- Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10 (2d Cir. 2013) (reasonableness of belief assessed from perspective of reasonable similarly situated person)
- Wimmer v. Suffolk Cnty. Police Dep’t, 176 F.3d 125 (2d Cir. 1999) (complaint not protected where evidence doesn’t address discrimination in employment practice)
- Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (antiretaliation provision interpreted broadly to encourage complaint)
- Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015) (en banc) (isolated humiliating incidents may support reasonable belief that hostile work environment is in progress)
- Zakrzewska v. New School, 14 N.Y.3d 469 (N.Y. 2010) (NYCHRL employer liability provisions)
- Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268 (2d Cir. 2009) (NYCHRL construed independently and often more broadly than federal analogues)