Retaliation Claim, Based on Alleged Racial Comment by Airline Passenger, Properly Dismissed

In Leroy v. Delta Air Lines, Inc., 2022 WL 2069281 (2d Cir. June 9, 2022), the Second Circuit affirmed the dismissal of plaintiff’s retaliation claim asserted under the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107(7).

This case arose from an incident in which a passenger allegedly called plaintiff flight attendant a “black bitch,” and subsequent events (including plaintiff’s removal from the flight at the pilot’s insistence following the racial remark, as well as her eventual suspension and termination).

Initially, the court held that Delta was not liable for the passenger’s comment under a theory of vicarious liability.

From the decision:

The NYCHRL imposes liability on an employer for actions of an employee or agent in three circumstances:

(1) where the offending employee “exercised managerial or supervisory responsibility” …;

(2) where the employer knew of the offending employee’s unlawful discriminatory conduct and acquiesced in it or failed to take “immediate and appropriate corrective action”; and

(3) where the employer “should have known” of the offending employee’s unlawful discriminatory conduct yet “failed to exercise reasonable diligence to prevent it.”

Zakrzewska v. New School, 14 N.Y.3d 469, 479, 902 N.Y.S.2d 838, 928 N.E.2d 1035 (2010) (alteration omitted) (quoting N.Y.C. Admin. Code § 8-107(13)(b)). In Summa v. Hofstra University, we held in the Title VII context that we “imput[e] employer liability for harassment by non-employees according to the same standards for non-supervisory co-workers.” 708 F.3d 115, 124 (2d Cir. 2013).2 We recently interpreted those standards to provide that “the conduct of certain non-employees may be imputed to the employer where (1) the employer exercises a high degree of control over the behavior of the non-employee, and (2) the employer’s own negligence permits or facilitates that non-employee’s discrimination.” Menaker v. Hofstra Univ., 935 F.3d 20, 38-39 (2d Cir. 2019) (internal quotation marks omitted). “In determining the appropriateness of an employer’s response, we look to whether the response was immediate or timely and appropriate in light of the circumstances, particularly the level of control and legal responsibility the employer has with respect to” the non-employee. Summa, 708 F.3d at 124 (internal quotation marks and alterations omitted).

In Summa, the plaintiff brought claims under Title VII and the New York State Human Rights Law alleging that the actions of the university’s student football players created a hostile work environment. Id. at 123-24. Although “the University and the head football coach had a high degree of control over the behavior of its student football players,” we held that Hofstra met its “remedial obligation to address and end the harassment” when it ejected the offending student within 48 hours of the plaintiff’s complaint. Id. at 124-25. Thus, we affirmed the grant of summary judgment to Hofstra on the hostile work environment claim.

We need not consider whether Leroy has adequately alleged that Delta exercised a “high degree of control” over the passenger because she has failed to allege that Delta’s “own negligence permit[ted] or facilitate[d]” the passenger’s alleged discriminatory conduct. Menaker, 935 F.3d at 39 (internal quotation marks omitted). The passenger’s single comment—which was uttered prior to any alleged notice on Delta’s part—is the only instance mentioned in the complaint of that passenger engaging in alleged discrimination against Leroy. That comment does not rise to the level of the sort of “extraordinarily severe” and “most egregious” conduct that could, in a single incident, create a hostile work environment. Agosto v. N.Y.C. Dep’t of Educ., 982 F.3d 86, 103 (2d Cir. 2020) (noting that this standard was met when a plaintiff was raped or physically assaulted).3 There is also no allegation in the complaint that Delta “did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed” so as to show Delta’s negligence in failing to prevent the passenger’s comment. Vance v. Ball State Univ., 570 U.S. 421, 449, 133 S.Ct. 2434, 186 L.Ed.2d 565 (2013). The complaint’s description of Carns’s response to the passenger’s comment does not amount to a plausible allegation that Delta permitted or facilitated that comment.

The court also found that the pilot’s response – calling for a further discussion between plaintiff and the passenger on the jet bridge – did not amount to a discriminatory employment practice, since it was not insufficient.

It continued:

That Leroy opposed conduct which did not in fact violate the NYCHRL does not end the matter. Even if a complaint is ultimately without merit, lodging the complaint is a protected activity so long as it was “motivated by a good faith, reasonable belief that the underlying employment practice was unlawful.” Kwan, 737 F.3d at 843 (internal quotation marks omitted).5 “The reasonableness of the plaintiff’s belief is to be assessed in light of the totality of the circumstances” and is “evaluated from the perspective of a reasonable similarly situated person.” Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 14-17 (2d Cir. 2013).

That principle is forgiving, but it does not transform every complaint into activity protected under the NYCHRL. In Kelly, this court observed that “[a] plaintiff’s belief … is not reasonable simply because he or she complains of something that appears to be discrimination in some form.” Id. at 15. We affirmed the dismissal of a Title VII retaliation claim because “nothing in [the plaintiff’s] complaint … indicate[s] that her sex, in one way or another, played a substantial role in [her employer’s] behavior.” Id. (internal quotation marks omitted). In another Title VII case, this court held that a plaintiff “could not have reasonably believed that he was opposing an employment practice” when “the evidence does not address racial discrimination in an employment practice.” Wimmer v. Suffolk Cnty. Police Dep’t, 176 F.3d 125, 136 (2d Cir. 1999).

The facts as alleged in Leroy’s complaint do not demonstrate that a reasonable similarly situated person would have a good-faith, reasonable belief that Delta was engaged in an unlawful employment practice. See Kelly, 716 F.3d at 17. As noted above, the passenger’s comment was not an employment practice, so it falls outside the scope of the NYCHRL.

Judge Bianco dissented, noting his view that the majority’s holding was “fundamentally inconsistent” with the broad interpretation of the NYC Human Rights Law, and effectively “immunize employers from liability when they retaliate against employees who complain about workplace racial harassment at its inception, even before such harassment may rise to the legal threshold of a hostile work environment” and “require[] employees in such situations to wait and endure some additional period of harassment before they can complain and be shielded from employer retaliation.”

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