Kelly v. Howard I. Shapiro & Associates Consulting Engineers, P.C.
716 F.3d 10, 2013 U.S. App. LEXIS 8496, 2013 WL 1776646 (2013)
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Rule of Law:
For an employee's complaint to constitute protected activity under Title VII's anti-retaliation provision, the employee must have a good faith and objectively reasonable belief that they are opposing an employment practice that is unlawful under Title VII. Complaining about favoritism shown to a supervisor's romantic partner ('paramour preference') is not protected activity where the complaint does not allege that the adverse treatment is based on the complainant's own gender.
Facts:
- Gail Kelly worked as a human resources manager at her family's engineering firm, where her brothers, Lawrence and Jay Shapiro, were vice presidents.
- In 2008, Kelly discovered that her brother Lawrence was having an affair with a subordinate employee, Kelly Joyce.
- Kelly observed and received complaints that Joyce was given preferential treatment, including being insubordinate, turning in inaccurate timesheets without consequence, and taking unapproved time off.
- Kelly repeatedly complained to her brothers that the affair was detrimental to the company, created a conflict of interest, and that the 'sexual favoritism' shown to Joyce undermined Kelly's own authority.
- Kelly used the words 'discrimination' and 'harassment' in her complaints, but the substance of her objections focused on the unfairness of the favoritism and its negative impact on the business and her role.
- Other female employees complained to Kelly about the favoritism and their inability to meet with Lawrence, but Kelly did not relay these specific complaints to her brothers.
- Kelly eventually resigned from her position after 28 years with the company.
Procedural Posture:
- Gail Kelly filed a complaint against Howard I. Shapiro & Associates Consulting Engineers, P.C., and her brothers in the United States District Court for the Eastern District of New York.
- Kelly's complaint alleged hostile work environment and retaliation under Title VII and the New York State Human Rights Law.
- The defendants filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted.
- The district court (a federal trial court) granted the motion and dismissed Kelly's complaint in its entirety.
- Kelly, as the appellant, appealed the dismissal of only her retaliation claims to the United States Court of Appeals for the Second Circuit.
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Issue:
Does an employee's complaint about unfairness and a hostile environment resulting from a supervisor's consensual romantic affair with a subordinate constitute 'protected activity' for a Title VII retaliation claim, when the employee fails to allege the mistreatment was motivated by her own gender?
Opinions:
Majority - Per Curiam
No. An employee's complaint regarding favoritism toward a supervisor's romantic partner does not constitute protected activity unless the employee has an objectively reasonable belief that she is being discriminated against because of her own sex. Here, Kelly's complaints were about the existence of the affair and its general negative consequences on the business and her authority, not about gender-based discrimination against her. To establish a prima facie case for retaliation, the first element is engaging in protected activity, which requires a good faith, reasonable belief that the employer's conduct violated Title VII. This belief must be objectively reasonable. Precedent holds that 'paramour preference' is not discrimination 'on the basis of sex' because it disadvantages all other employees, male and female, equally. Kelly's complaint, despite using terms like 'discrimination,' failed to allege any facts suggesting her sex played a role in her brothers' behavior or that the environment was demeaning to women in a way prohibited by Title VII. Therefore, she could not have held an objectively reasonable belief that she was opposing an unlawful employment practice, and her employer could not have reasonably understood her complaint to be about gender discrimination.
Analysis:
This decision reinforces the high bar for retaliation claims based on 'paramour preference' scenarios. It clarifies that merely complaining about the unfairness of a workplace affair is insufficient to trigger Title VII's anti-retaliation protections. The ruling emphasizes the distinction between general grievances about mismanagement or unfairness and legally protected complaints about discrimination based on a protected characteristic. For future cases, this precedent requires plaintiffs to clearly articulate, through the substance of their complaints, how the alleged favoritism constitutes discrimination because of their gender, rather than simply because they are not the romantic partner.
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