Second Circuit Rejects Retaliation Claim Under the New York City Human Rights Law; Complaints Re: “Paramour Preference” Not Protected Activity

In Fattoruso v. Hilton Grand Vacations Co., 12-2405 (2d Cir. May 17, 2013), the Second Circuit affirmed the dismissal of plaintiff’s retaliation claim under the New York City Human Rights Law.

Plaintiff claimed that Hilton violated the NYCHRL by retaliating against him for “raising the issue of his supervisor’s inappropriate relationship with and preferential treatment of a subordinate.”

Under the NYCHRL it is an “unlawful discriminatory practice” for an employer to “retaliate or discriminate in any manner” on the basis of an employee’s complaints about unlawful discrimination.

To establish a prima facie case of retaliation under the NYCHRL, a plaintiff must show that:

  1. he participated in a protected activity;
  2. the defendant knew about his participation;
  3. the defendant took an employment action that disadvantaged the plaintiff in any manner; and
  4. a causal connection existed between the protected activity and the negative employment action.

Initially, the court found that plaintiff sufficiently alleged that he had a “reasonable belief that he was opposing illegal practices based on sex”:

Although much of Fattoruso’s complaint centers around a non-discriminatory relationship between his supervisor, Mr. Crandall, and one of his co-workers, Fattoruso also alleged conduct that could fall under the protection of the NYCHRL. Specifically, Fattoruso claimed that he “believed that Mr. Crandall was using his power to sexually harass an inferior employee,” that he and other women “felt very uncomfortable going to work,” that other women at work felt that they might need to exchange sexual favors for work benefits, and that “he believed that Mr. Crandall’s . . . conduct was offensive, discriminatory, and created a hostile work environment.” Fattoruso also alleged that he “believed that he was subjected to sex discrimination, as he was a man, and as such would never be able to `put [his] foot in the door or play that game.'”

However, plaintiff “failed to show that he participated in a protected activity known to Hilton“:

Fattoruso alleged that he was constructively terminated because he engaged in protected activity by complaining about gender discrimination and a hostile work environment. However, the conduct Fattoruso complained to Hilton about was not unlawful.  As noted, the basis for Fattoruso’s reports to Hilton was a consensual workplace relationship; Fattoruso claimed that his supervisor accorded the woman he was involved with preferential treatment. While this may have been true, we have squarely held that a “paramour preference” does not constitute unlawful discrimination based on gender. Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs., P.C., No. 12-3489, slip op. at 8-9 (2d Cir. Apr. 26, 2013)see also DeCintio v. Westchester Cnty. Med. Ctr., 807 F.2d 304, 308 (2d Cir. 1986). As the conduct Fattoruso complained of was not itself unlawful, his complaints did not implicitly give Hilton notice that he was engaging or reasonably believed he was engaging in a protected activity.

Nor does Fattoruso’s belief that he was being treated “unfairly” transform his complaints to Hilton into charges over unlawful discrimination. As Fattoruso’s complaints were limited to expressing his dismay over “favoritism with one of the employees,” Hilton cannot be expected to have understood Fattoruso to have been complaining about disparate treatment based on sex and therefore engaging in protected activity.  (Emphasis in original)

Therefore, since plaintiff’s “complaints did not implicitly or explicitly alert Hilton that he was complaining of disparate treatment based on sex — and thereby was engaging in a protected activity” he failed to establish a prima facie case for retaliation under the NYCHRL.