Gail KELLY, Plaintiff-Appellant, v. HOWARD I. SHAPIRO & ASSOCIATES CONSULTING ENGINEERS, P.C., Lawrence Shapiro, Jay Shapiro, Defendants-Appellees.
Docket No. 12-3489-cv.
United States Court of Appeals, Second Circuit.
April 26, 2013
Argued: March 12, 2013.
Gomez acknowledges that we have rejected this argument before, in United States v. Goodine, 326 F.3d 26, where we held that “drug quantity for purposes of
In any event, any error was harm-less, since the “evidence overwhelmingly establishe[d] the minimum drug quantity needed to justify” Gomez‘s sentence, here five kilograms of cocaine, where Gomez repeatedly tried to buy seven kilograms for him to resell. United States v. Soto-Beníquez, 356 F.3d 1, 46 (1st Cir.2004).
2. Notice as to the Mandatory Mini-mum Sentence
Finally, Gomez argues that because the indictment against him specified only that
We have examined this exact issue be-fore, in United States v. Eirby, 262 F.3d 31, and there explained that since “[t]he specification of a penalty provision for the underlying offense [is] ... not essential to the validity of the conspiracy count,” a “court‘s use of section 841(b)(1)(A) rather than section 841(b)(1)(B) ... [does] not usurp the prerogative of the grand jury.” Id. at 38. We also explained in Eirby that “the switch to section 841(b)(1)(A) [does] not constitute reversible error unless it deprived the appellant of notice or other-wise misled him to his detriment.” Id. At least as of the time the district court de-nied Gomez‘s motion to exclude evidence pertaining to the August-September 2008 transaction, Gomez was put on ample no-tice that he would be held responsible for the drug quantities involved in both that transaction and the December 2008 trans-action if convicted. The court did not err in sentencing Gomez pursuant to a statuto-ry provision not specified in the indict-ment.
IV.
Gomez‘s conviction and sentence are af-firmed.
Andrew S. Goodstadt, Goodstadt Law Group, PLLC, Carle Place, NY, for Appel-lant.
Henry E. Kruman, Kruman & Kruman P.C., Malverne, NY, for Appellees Howard I. Shapiro & Associates Consulting Engi-neers, P.C. and Jay Shapiro.
Philip Mark Bernstein, P.M. Bernstein P.C., Garden City, NY, for Appellee Law-rence Shapiro.
Before: WALKER, WESLEY, and DRONEY, Circuit Judges.
PER CURIAM:
Gail Kelly quit her job as a human re-sources manager at her family business after complaining about an affair that one of her brothers, a vice president of the company, was having with another worker
Background
The following facts are drawn from Kel-ly‘s complaint, and we accept them as true for purposes of the motion to dismiss. See Chase Grp. Alliance LLC v. City of N.Y. Dep‘t of Fin., 620 F.3d 146, 150 (2d Cir. 2010).
Howard I. Shapiro & Associates Con-sulting Engineers, P.C. (“HIS“) is a third-generation family business founded in 1946 by Kelly‘s grandfather. In 1989, the com-pany was reorganized into a partnership among Kelly‘s father, Howard I. Shapiro, and her brothers, defendants and company vice presidents Lawrence and Jay Shapi-ro.1 Kelly has worked for the business since 1981, performing various jobs includ-ing comptroller, office manager, head of human resources, bookkeeper, and time manager. After Kelly‘s father passed away in May 2007, her brothers “began to exert control” over the company. Compl. ¶ 21.
In November 2008, Kelly discovered that Lawrence “began an illicit affair with a subordinate” named Kelly Joyce. Id. ¶ 23. Kelly “attempted to dissuade Law-
Kelly alleges that when she spoke to Lawrence about this “favoritism,” he “did not discipline Ms. Joyce for her insubordi-nation and patently unprofessional behav-ior,” which Kelly believes created a “sexu-ally-biased environment” that “undermined Ms. Kelly‘s authority and prevented her from performing her duties as head of Human Resources.” Id. ¶¶ 35, 39. Kelly describes how she “frequently complained to [her brothers] about the harassment and discriminatory environment created by [Lawrence‘s] widespread sexual favorit-ism” and the “hostile environment created by [Lawrence‘s] relationship with, and fa-vorable treatment of, his subordinate.” Id. ¶ 40. She “complain[ed] to [her broth-ers] about [Lawrence‘s] clandestine tryst with Ms. Joyce and the discrimination and harassment that she suffered due to such relationship,” and she “frequently ex-plained ... that they were undermining her authority in favor of Ms. Joyce, and that she believed that such misconduct constituted unlawful discrimination.” Id. ¶ 49.
Kelly also alleges that Lawrence‘s “widespread sexual favoritism ... created an atmosphere in the workplace that was demeaning to women.” Id. ¶ 47. “Indeed, veteran female employees complained to Ms. Kelly about the unfair and obvious favoritism shown towards Ms. Joyce.” Id. ¶ 48. “In fact, several female employees complained that [Lawrence] prevented them from performing their jobs, as they were unable to get into his office to meet with him.” Id. “Rather, [Lawrence] spent a large portion of each day with Ms. Joyce.” Id. Kelly does not allege that she reported any of the other female employ-ees’ complaints to her brothers.
Eventually, Kelly “was left with no op-tion other than to leave the Company after 28 years.” Id. ¶ 60. She filed her com-plaint in district court on October 17, 2011, asserting that she had been subjected to a hostile work environment and to retaliato-ry treatment in violation of Title VII and the NYSHRL. Defendants moved to dis-miss Kelly‘s complaint pursuant to
The district court granted the motion. The court first dismissed the hostile envi-ronment claim on the ground that Kelly had “failed to plausibly allege the existence of ‘widespread sexual favoritism’ or that any alleged discrimination was based on the Plaintiff‘s gender.” Kelly, 2012 WL 3241402, at *7 (emphasis added); see also id. at *9 (“Absent from the complaint are any allegations suggesting even the slight-est ‘semblance of gender-oriented motiva-tion in the events.‘” (quoting Galdieri-Ambrosini v. Nat‘l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir.1998))). Kelly does not challenge the dismissal of her discrimination claims.
Discussion
“In reviewing a motion to dismiss, we accept the allegations in the complaint as true.” Boykin v. KeyCorp, 521 F.3d 202, 204 (2d Cir.2008). “To survive a motion to dismiss, a complaint must contain suffi-cient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct al-leged.” Id. The standards for evaluating hostile work environment and retaliation claims are identical under Title VII and the NYSHRL. Weinstock v. Columbia Univ., 224 F.3d 33, 42 n. 1 (2d Cir.2000).
Although Kelly has not appealed the dismissal of her hostile environment claims, we note first that the dismissal was manifestly correct. Our Circuit has long since rejected “paramour preference” claims, which depend on the proposition that “the phrase ‘discrimination on the ba-sis of sex’ encompasses disparate treat-ment premised not on one‘s gender, but rather on a romantic relationship between an employer and a person preferentially [treated].” DeCintio v. Westchester Cnty. Med. Ctr., 807 F.2d 304, 306 (2d Cir.1986); see also id. at 308 (“Appellees were not prejudiced because of their status as males; rather, they were discriminated against because [their supervisor] pre-ferred his paramour.“). “[I]t is axiomatic that in order to establish a sex-based hos-tile work environment under Title VII, a plaintiff must demonstrate that the con-duct occurred because of her sex.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir.2002) (quotation marks omitted).
To make out a prima facie case of retaliation, a plaintiff must demonstrate that “(1) she engaged in protected activity; (2) the employer was aware of that activi-ty; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.” Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir.2012).
An employee‘s complaint may qual-ify as protected activity, satisfying the first element of this test, “so long as the em-ployee has a good faith, reasonable belief that the underlying challenged actions of the employer violated the law.” Gregory v. Daly, 243 F.3d 687, 701 (2d Cir.2001) (quotation marks omitted). And not just any law—the plaintiff is “required to have had a good faith, reasonable belief that [she] was opposing an employment prac-tice made unlawful by Title VII.” McMenemy v. City of Rochester, 241 F.3d 279, 285 (2d Cir.2001); see also id. (vacating sum-mary judgment where plaintiff‘s “belief that [defendant‘s] alleged sexual harass-ment violated Title VII was reasonable“). “The reasonableness of the plaintiff‘s belief
A plaintiff‘s belief on this point is not reasonable simply because he or she com-plains of something that appears to be discrimination in some form. For exam-ple, when a hospital administrator asserted that he had been terminated after com-plaining that a white employee had been “chosen over qualified black and other mi-nority applicants,” we held that the admin-istrator failed to make out a prima facie case because his “objections at the time neither pointed out discrimination against particular individuals nor discriminatory practices by [the employer]” and were thus “directed at something that, as it was al-leged, is not properly within the definition of an ‘unlawful employment practice.‘” Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590, 593-94 (2d Cir.1988) (quoting
Similarly, a black police officer who “re-ported overhearing racial slurs made by [other] police officers against black citi-zens” had not engaged in protected activi-ty despite “opposing discrimination by co-employees against non-employees” because his “opposition was not directed at an un-lawful employment practice of his employ-er.” Wimmer v. Suffolk Cnty. Police Dep‘t, 176 F.3d 125, 134-35 (2d Cir.1999) (emphasis in original); see also Drumm v. SUNY Geneseo Coll., 486 Fed.Appx. 912, 914 (2d Cir.2012) (“[P]laintiff‘s allegations that her supervisor ‘berated’ her and made other harsh comments ... amount only to general allegations of mistreatment, and do not support an inference that plaintiff had a reasonable good faith belief that she was subject to gender discrimination.“).
“As to the second element [of the prima facie case], implicit in the require-ment that the employer have been aware of the protected activity is the requirement that it understood, or could reasonably have understood, that the plaintiff‘s oppo-sition was directed at conduct prohibited by Title VII.” Galdieri-Ambrosini, 136 F.3d at 292. In Galdieri-Ambrosini, we affirmed a district court‘s post-trial entry of judgment as a matter of law against a secretary who complained that she had been improperly required to work on her employer‘s personal matters. We conclud-ed that “there was no semblance of gen-der-oriented motivation in the events or conversations to which [the plaintiff] testi-fied” and that the plaintiff‘s complaints to her supervisor “did not state that [she] viewed [her supervisor‘s] actions as based on her gender, and there was nothing in her protests that could reasonably have led [the company] to understand that that was the nature of her objections.” Id.
Here, Kelly‘s claim founders on both the first and second requirements of the prima facie case. Although “[n]othing in our Title VII jurisprudence ... requires a plaintiff to append to each allegation of harassment the conclusory declaration ‘and this was done because of my sex,‘” we do require “the allegation of factual circum-stances that permit the inference that plaintiff was subjected to a hostile work environment because of her sex.” Gregory, 243 F.3d at 694. There is nothing in Kelly‘s complaint, however, to indicate that “her sex, in one way or another, played a substantial role in [her brothers‘] behav-ior.” Id. Although Kelly alleges that she repeatedly used the words “discrimination” and “harassment” when complaining to her employers, her “argument that the wide-spread sexual favoritism constituted gen-der discrimination because it resulted in an atmosphere ‘demeaning to women‘[] is en-tirely unsupported by the allegations in her complaint.” Kelly, 2012 WL 3241402, at *11. Kelly “does not allege that Law-
Thus, there is no indication either that Kelly herself possessed a good-faith belief that she was complaining of conduct pro-hibited by Title VII or that her employers could have understood her complaints in this way. Kelly suggests only that she believed her brothers were “undermining her authority in favor of Ms. Joyce, and that she believed that such misconduct constituted unlawful discrimination.” Compl. ¶ 49. Moreover, the complaint does not indicate that the office environ-ment was “demeaning to women.” Kelly‘s allegations regarding other female employ-ees in the office state only that they com-plained to Kelly about the “favoritism shown towards Ms. Joyce” and that they were “unable to get into [Lawrence‘s] of-fice to meet with him.” Id. ¶ 48. Nothing about these allegations—even if Kelly had repeated them to Lawrence, which she does not claim to have done—indicates that there was discrimination against any-one on the basis of sex. See Wimmer, 176 F.3d at 136 (“Because [the plaintiff] did not introduce evidence that minority em-ployees of the Department felt that they worked in a racially hostile environment, [he] could not reasonably have believed that he was protesting an unlawful hostile work environment.“).
Kelly relies heavily on Voels v. New York, 180 F.Supp.2d 508 (S.D.N.Y.2002), which not only does not support but under-mines her case. The male plaintiff, Voels, alleged that his supervisor gave preferen-tial treatment to a female coworker, with whom the supervisor later became roman-tically involved. Id. at 511. The court granted summary judgment for the defen-dant on Voels‘s sex discrimination claim, noting that any preferential treatment “was based on the relationship [and] not on gender.” Id. at 515. The court allowed the retaliation claim to survive, however, noting that Voels had alleged that he first complained of sex-based treatment the year before the relationship began, which would allow a jury to find that his belief that he was discriminated against was rea-sonable. Id. at 518 n. 49.
Kelly protests that as a non-law-yer, she should not be required to under-stand the “paramour preference” or other intricacies of our Title VII jurisprudence. She argues that her belief that her com-plaints concerned unlawful activity was sufficiently reasonable to bring the com-plaints within Title VII‘s protection. We have indeed held that a “plaintiff may pre-vail on a claim for retaliation even when the underlying conduct complained of was not in fact unlawful so long as [she] can establish that [she] possessed a good faith, reasonable belief that the underlying chal-lenged actions of the employer violated [the] law.” Treglia, 313 F.3d at 719 (quo-tation marks omitted). However, “[m]ere subjective good faith belief is insufficient[;] the belief must be reasonable and charac-terized by objective good faith.” Sullivan-Weaver υ. N.Y. Power Auth., 114 F.Supp.2d 240, 243 (S.D.N.Y.2000)
Although it is appropriate to construe Title VII‘s prohibition on retaliation gener-ously, and we do not require a sophisticat-ed understanding on the part of a plaintiff of this relatively nuanced area of law, it is difficult to see how Kelly could have had even a subjectively reasonable, good-faith belief that her conduct was protected. She made no complaints that suggested a belief that she was being discriminated against on the basis of any trait, protected or otherwise. The success of her claim would require us to endorse not only her belief that the law of Title VII is some-thing other than what it is, but also her apparent belief that the definition of “dis-crimination” is something other than what it is. We agree with the district court that Kelly has failed to allege facts demonstrat-ing that “even a legally unsophisticated employee would have a good faith, reason-able belief that ... the Defendants’ pref-erential treatment of Joyce constituted discrimination [against Kelly] based on gender.” Kelly, 2012 WL 3241402, at *13.
Moreover, even if Kelly had pos-sessed such a belief, nothing in her behav-ior, as described in her complaint, would have allowed her employer to “reasonably have understood[] that [Kelly‘s] opposition was directed at conduct prohibited by Title VII.” See Galdieri-Ambrosini, 136 F.3d at 292; see also Manoharan, 842 F.2d at 594 (plaintiff‘s complaints “neither pointed out discrimination against particular individu-als nor discriminatory practices“). Al-though particular words such as “discrimi-nation” are certainly not required to put an employer on notice of a protected com-plaint, neither are they sufficient to do so if nothing in the substance of the com-plaint suggests that the complained-of ac-tivity is, in fact, unlawfully discriminatory. See Foster v. Humane Soc‘y of Rochester & Monroe Cnty., Inc., 724 F.Supp.2d 382, 395 (W.D.N.Y.2010) (dismissing retaliation claim when the plaintiffs’ “own allegations ... show instead that while she did com-plain about certain problems she was hav-ing at work, she did not complain that she was being discriminated against on ac-count of her sex“); Krasner v. HSH Nordbank AG, 680 F.Supp.2d 502, 521 (S.D.N.Y.2010) (Lynch, J.) (“[T]he overall content and context of [the plaintiff‘s] in-ternal complaints suggest, at most, a con-sensual affair that—while perhaps unfair, bad for morale, and detrimental to the department and the company—in itself harmed no one on account of a protected characteristic.“).
It is certainly possible to imagine how a plaintiff‘s protests about a “paramour pref-erence” scenario could amount to protect-ed activity. Had Kelly complained, or even suggested, that she was being dis-criminated against because of her sex (or some other trait), we would have a differ-ent case. Nothing in her complaint, how-ever—not the accusations of “sexual favor-itism,” nor the continual repetition of the words “discrimination” and “harass-ment“—suggests that she did so. Because there is no indication that Kelly believed that her sex had anything to do with her treatment or that defendants could have understood her statements as such, she has failed to establish a prima facie case for retaliation under Title VII or the NYSHRL.
Conclusion
We have examined all of Kelly‘s argu-ments on appeal and find them to be with-out merit. For the foregoing reasons, the
PER CURIAM