Leshchenko v. Go New York Tours, Inc.
1:24-cv-08790
| S.D.N.Y. | Jun 30, 2025Background
- Viktor Leshchenko, a gay man, worked as an entertainer at Go New York Tours, Inc. (“TopView”) from February 2023 to January 2024.
- In November 2023, several employees at TopView reported a coworker, Ricky, for using homophobic slurs via a collective email to management; management responded by admonishing Ricky and apologizing.
- Leshchenko did not allege that Ricky continued his offensive conduct after this intervention.
- In January 2024, Leshchenko complained to management via email about having to continue working with Ricky and expressed that he felt unsafe.
- Shortly after this complaint, TopView terminated Leshchenko’s employment, which he alleges was in retaliation for his complaint.
- Leshchenko brought retaliation claims under Title VII, NYSHRL, and NYCHRL. TopView moved to dismiss for failure to state a claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Leshchenko engaged in protected activity (Title VII) | Leshchenko participated in the collective email and/or his own complaint constituted opposition to discrimination | Leshchenko did not participate in the initial complaint, and his later complaint was not protected | Leshchenko did not plausibly allege participation in protected activity |
| Whether TopView was aware Leshchenko engaged in protected activity | His inclusion on the November email or his January complaint gave notice | TopView had no reason to attribute the collective email to Leshchenko | Leshchenko’s participation or notice to employer not sufficiently pled |
| Whether Leshchenko reasonably believed he was opposing an unlawful employment practice | His January complaint was based on a reasonable belief that TopView tolerated discrimination | No reasonable basis to believe the employer’s conduct was unlawful after management's response | Leshchenko's belief was not objectively reasonable under the facts |
| Exercise of supplemental jurisdiction over state and city claims | The court should rule on those claims as well | Those claims should be dismissed if the federal claim fails | Declined supplemental jurisdiction, dismissed state/city claims without prejudice |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard for Rule 12(b)(6) motions)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for civil complaints)
- Crawford v. Metro. Gov't of Nashville & Davidson Cnty., 555 U.S. 271 (definition of "opposition" for Title VII retaliation)
- Bostock v. Clayton Cnty., 590 U.S. 644 (sexual orientation discrimination is sex discrimination under Title VII)
- Harris v. Forklift Sys., Inc., 510 U.S. 17 (standards for hostile work environment under Title VII)
- Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (employer liability for co-worker harassment)
- Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276 (reasonable belief standard for protected activity)
- Reed v. A.W. Lawrence & Co., 95 F.3d 1170 (standard for reasonable belief in hostile work environment claims)
- Wimmer v. Suffolk Cnty. Police Dep't, 176 F.3d 125 (protected activity must be directed at employer's unlawful practices)
- Klein & Co. Futures, Inc. v. Bd. of Trade of N.Y., 464 F.3d 255 (general principle to decline jurisdiction over state claims when federal claims are dismissed)