In Leroy v. Delta Air Lines, 2022 WL 12144507 (2d Cir. Oct. 21, 2022), the court, inter alia, affirmed the dismissal of plaintiff’s retaliation claim asserted under the New York City Human Rights Law.
In sum, plaintiff alleges that, while working as a flight attendant for Delta, she was subjected to drug testing, wrongfully suspended, and ultimately fired within two months of her reporting a passenger’s racist remark and the pilot’s response to that remark, amounting to impermissible retaliation by Delta. The district court dismissed her complaint, and the Second Circuit affirms.
From the decision:
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). There is 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 (2013). Indeed, Supervisor Marsh instructed Leroy to fill out the FACTS report two days after the incident.
As to Pilot Carns’s response to the passenger’s comment, even when a non-employee’s conduct is imputed to the employer, the employer is obliged only to “address and end the harassment.” Summa, 708 F.3d at 124. According to Leroy’s more-detailed allegations in the FACTS report, when the pilot asked Leroy “if [she] wanted to resolve the situation,” she informed him that “the situation was resolved.” App’x 38. While she was still on the plane, she told the OCC that she was “very ok.” App’x 39. Crediting Leroy’s own account of the incident, her complaint does not allege that Carns’s response amounts to a discriminatory employment practice.
We conclude that Leroy has failed to allege facts to support a claim of racial discrimination under the NYCHRL.
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). “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, 14-15, 17 (2d Cir. 2013).
That principle is very 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 here 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. The passenger’s comment was not an employment practice, so it falls outside the scope of the NYCHRL. See Cooper v. N.Y. State Dep’t of Labor, 819 F.3d 678, 681 (2d Cir. 2016) (“[A Title VII] plaintiff alleging unlawful retaliation may not recover unless he reasonably believed that the conduct he opposed ran afoul of one of [Title VII’s] particular statutory proscriptions.”). And Leroy’s own account of the facts—both in her complaint and in the FACTS report—demonstrates that Delta’s failure to take further remedial action was not unreasonable. According to the FACTS report, the passenger—not Leroy—first reported the incident to the pilot. Leroy then informed the pilot that the incident was “already resolved,” told the OCC that she was “very ok,” and continued to serve the first-class passengers while “laughing and trying to smooth over the ATC delay with them.” App’x 39. We agree with the district court that, in light of these specific facts, it would not be objectively reasonable to believe that Delta’s conduct amounted to a discriminatory employment practice.
We need not decide whether Leroy’s claim would survive if she plausibly alleged that the pilot responded to a complaint about a harassing comment with hostility or indifference. An employee may have a good-faith, reasonable belief that a supervisor’s hostility or indifference to a complaint about a harassing comment was itself a discriminatory employment practice. Here, we affirm the dismissal of Leroy’s retaliation claim under the NYCHRL only because the specific facts as alleged in her complaint support neither a claim of racial discrimination by Delta nor a good-faith, reasonable belief that she engaged in protected activity.
[Cleaned up.]
The court additionally rejected plaintiff’s claim that Delta is vicariously liable for its employees’ actions under N.Y.C. Admin. Code § 8-107(13)(b), based on its determination that plaintiff’s complaint did not assert facts that support a plausible allegation of any “unlawful discriminatory practice.”