A ticket to the courthouse gets the plaintiff no money

A federal judge in White Plains used to say that a criminal court acquittal (or dropped charges) gave you a ticket to the federal courthouse. He was technically right. You could then argue that you were falsely arrested. But many of these false arrest cases are killed off on a motion for summary judgment. This case is one of them.

The case is Norwood v. Mason, a summary order decided on May 14. Two guys broke into the Driscoll home in the City of Troy. The Driscolls both told the police that the robbers were Hispanic, one short and slender, the other taller and heavier with a goatee. The Driscolls also identified Norwood as the taller robber. Norwood is African-American, not Hispanic. In getting the arrest warrant for Norwood, Mason (a police officer) did not mention that the Driscolls said that the robbers were Hispanic. A grand jury indicted Norwood, but that indictment got chucked because of bad jury instructions. Someone else was eventually arrested in connection with the robbery, and Norwood got his ticket the courthouse.

Not every injustice gets you a jury trial, or money damages. Norwood argued that Mason had no probable cause because his arrest warrant affidavit did not mention that the Driscolls said he was Hispanic. But the Second Circuit (Winter, Calabresi and Lynch) says that is not enough to say that Mason lacked probable cause. "While a prudent magistrate with access to both sets of depositions could have had doubts about the accuracy of this identification, we cannot say that such doubts would have been sufficient to negate probable cause," especially since courts hold that a photo identification provides probable cause to arrest that person, "even where the identification may not be 100 percent reliable."

The photo identification was not bad, the Court says. Several individuals in the array looked like Norwood, and nothing about Norwood stood out from the others. Mason did not even compile the photo array. And other than his ethnicity, "Norwood's appearance approximates the Driscolls' description of the taller robber in every other significant way, including height, age, weight, and facial hair." So, while this case is a real bummer for Norwood, who was dragged through the hell-hole and back on a criminal charge that lacked merit, he cannot sue the police officer for false arrest.

Court of Appeals throws out Title VII retaliation verdict

The Court of Appeals has thrown out a Title VII retaliation verdict, ruling that the plaintiff did not engage in protected activity under the statute.

The case is Rosioreanu v. City of New York, a summary order decided on May 13. This case is unusual for a couple of reasons. Although the district court said that she had difficulty with the English language and said a few inappropriate (but harmless) things at trial, the plaintiff tried and won this case pro se, and she also argued the appeal without a lawyer. What's also unusual is that the Court of Appeals (Cabranes, Leval and Parker) vacates a jury verdict in a summary order, suggesting this is a routine non-event.

Plaintiff convinced a jury that a co-worker treated her poorly because she was a woman. It all happened when she went to Kingston, N.Y., for a meeting. According to the district court,

After four months on the job, plaintiff began working on a project related to the watershed division's billing system. (Tr. 32.) On November 7, 2001, plaintiff went to a meeting in Kingston, New York to present her proposal to change the billing system to the director in charge. (Tr. 32-33, 258.) Plaintiff was scheduled to attend the meeting with Mahaney. (Tr. 32.) However, as plaintiff could not drive and Mahaney could not attend the meeting, Muzaffar Jamal, a co-worker within the Engineering Audit Office, was sent with plaintiff to the Kingston meeting. (Tr. 33; Ex. 5.1.) Plaintiff and Jamal arrived at the meeting more than one hour late because Jamal worked on his private engineering business while plaintiff waited in the car on the way to the meeting. (Tr. 33.) During the meeting, Jamal "improperly and rudely interfered with [plaintiffs] presentation in a very unprofessional and arrogant fashion." (Tr. 33.) Plaintiff testified that she "firmly believe[s] that he behaved in this particular manner also because I am a woman" and that "if I was a man he will never have doing his personal business with me in the car." (Tr. 106, 313.)

After plaintiff complained about Jamal's rude behavior, management retaliated against her. To win a retaliation case, the plaintiff has to show that management subjected her to an adverse action because she complained in good faith about gender discrimination in the workplace. The jury awarded plaintiff damages in the amount of $100,000. The district court denied the city's Rule 50 motion to throw out the verdict. The Second Circuit agrees that plaintiff did not complain in good faith about sex discrimination when she complained about Jamal, and that plaintiff was only complaining about a male co-worker who treated a female colleague rudely. That means management has free reign to treat plaintiff any way that it wanted, and her Title VII verdict is gone. Here is how the Court of Appeals sees it:

no evidence presented at trial permitted a jury reasonably to infer that the City had notice (or should have had notice) that Rosioreanu believed that the conduct of which she complained was based on her sex. As the District Court noted, Rosioreanu had not “explicitly refer[red] to gender” or sex discrimination in those complaints, nor was any “quintessentially gender-based conduct” involved. Put another way, Rosioreanu’s complaints could easily have described a conflict between co-workers of any sex¯regardless of the presence or absence of discriminatory animus¯and, in these circumstances, we cannot agree with the District Court that the jury could infer that Rosioreanu’s complaints related to sex discrimination as a matter of “credibility.”

 

Viet Cong slurs not enough to create a hostile work environment

This plaintiff alleges that an employer did not give him a permanent position because of his national origin, and that co-workers had created a hostile work environment in violation of Title VII. The Court of Appeals affirms the grant of summary judgment.

The case is Chansamone v. NRG Northeast Aff Service, a summary order decided on May 3. First, the failure to hire claim. Plaintiff says he was not hired because he is from Laos. The employer offers a neutral reason for that decision: it says that plaintiff was abrupt on the phone when he called to inquire about the status of his application. His resume also overstated his experience. Plaintiff cannot overcome these neutral reasons, and the failure to hire claim goes nowhere.

He also says his co-workers ridiculed his national origin. There is some meat to this claim. According to plaintiff, his co-workers were still fighting the Vietnam War. Someone called him "VC" (or Viet Cong) and said that "I used to kill people like [plaintiff]." Some other co-worker made reference to an "Asian gay lover" and that he would not be hired because of his race. The Second Circuit says these comments were "undoubtedly offensive." But they do not rise to the level of a hostile work environment under Title VII. The VC and death comments are not "extraordinarily severe" enough violate the civil rights laws, and the Court contrasts this case with those where a black employee is called a "nigger." The Second Circuit also says this case is unlike Whidbee v. Garzarelli Food Services, 223 F.3d 62 (2d Cir. 2000), where a lynching comment was only part of the stream of racially-offensive arguments.

An interesting law review article could be written on the question of whether racial comments to a Laotian that reference the Vietnam War are comparable to racial comments that reference the lynching of American blacks. I am sure the plaintiff's lawyer in this case pushed that comparison in briefing this case. But that argument does not carry the day. The case is dismissed.

Qualified immunity motions under Rule 12 are usually not a good idea

A pro se plaintiff sues the City of Mount Vernon alleging that she was arrested without probable cause. The district court denied the Rule 12 motion to dismiss, finding that qualified immunity could not attach on the basis of the plaintiff's allegations. The Court of Appeals affirms and tells us that a Rule 12 motion is not the best time to seek qualified immunity in cases like this.

The case is Barnett v. Mount Vernon Police Department, a summary order decided on May 3. Qualified immunity means that the police officers acted in good faith under the circumstances, and they cannot be sued. Not all police officers get qualified immunity, but that defense surfaces in nearly every Section 1983 civil rights suit. Maybe the city thought it could win the argument with a pro se plaintiff on the other side of the case. The City must have really thought it would win the appeal when the pro se plaintiff failed to file a brief in the Second Circuit. The City loses the appeal and the case heads to discovery.

The Second Circuit (Leval, Katzmann and Hall) summarizes the allegations in the complaint: "The complaint alleges that the defendants relied solely on the victim Dwight Douse’s identification of Barnett in a photo array to establish probable cause even though Douse actually identified someone else in the array. As the district court found, Barnett pled sufficient facts to plausibly indicate that Douse identified someone other than the plaintiff and that the defendants did not have probable cause to arrest Barnett based on Douse’s identification."

This is enough to state a claim for false arrest. The complaint does not provide a basis for the police to argue that they are entitled to qualified immunity. Nothing remarkable here. What stands out is the Second Circuit's advice to defense counsel about motions like this under Rule 12:

a defendant asserting a qualified immunity defense on a motion to dismiss “faces a formidable hurdle . . . and is usually not successful.” The defense will succeed only where entitlement to qualified immunity can be established “based [solely] on facts appearing on the face of the complaint.” For these reasons, a motion to dismiss “is a mismatch for immunity and almost always a bad ground of dismissal.” Because the standard of review is the same on a motion for judgment on the pleadings, the hurdle for the defendants here is similarly formidable. Defendants moving to dismiss a suit by reason of qualified immunity would in almost all cases be well advised to move for summary judgment, rather than for dismissal under Rule 12(b)(6) or 12(c).

This is useful advice. But it will probably go unheeded. This case is an unpublished summary order, which tends to attract little notice.

Bad back is not a "disability" under the old disabilities law

The Americans with Disabilities Act was amended in 2008, but the courts are still resolving some pre-amendment cases. The amended Act repudiates the Supreme Court rulings that provided a narrow definition of "disability," but since the amendments are not retroactive, those Court rulings are still alive for those plaintiffs with claims brought prior to 2009.

The case is Troeger v. Ellenville Central School District, a summary order decided on May 9. Troeger had a bad back after a fourth grade student pushed him into a filing cabinet. He says the employer did not reasonably accommodate the back condition. In order to have a disability under the original ADA, the condition had to substantially limit a major life activity. The Supreme Court said in the Toyota case that "these terms need to be interpreted strictly to create a demanding standard for qualifying as disabled." In other words, the major life activity has to be "of central importance to daily life," such as walking, running and hearing.

Anyone who has suffered from back pain knows that back pain is like death pain. But that's not really a legal argument. When plaintiff returned to work, his doctor said that he had recovered and could not lift anything that weighed more than 20 pounds. The district court said that plaintiff did not suffer a substantial limitation on a major life activity, and the Second Circuit (Leval, Cabranes and Parker) agrees. Plaintiff was capable of sitting and working, and "an individual is not 'disabled' merely becuase he cannot lift heavier objects weighing, for instance, around twenty pounds." The demanding standard under the Toyota case dooms the case.

Mixed result on appeal over NYC Fire Department racial hiring practices

Litigation over the hiring practices of the New York City Fire Department has raged on for years. This time around, the Court of Appeals vacates summary judgment in favor of the firefighters who claim that the FDNY intentionally discriminated against them. It also modifies the injunction that entered after the district court found that the hiring tests have had a disparate impact on black applicants.

The case is United States v. City of New York, decided on May 14. As the Second Circuit (Newman, Pooler and Winter) points out, for a city with a high percentage of black and Hispanic residents, very few racial minorities have traditionally served as firefighters. The plaintiffs successfully argued in the district court that the hiring tests violate Title VII because they have a disparate impact on minority test-takers and are not job-related for the purposes of business necessity. In other words, the tests do not properly test potential firefighters. In a well-publicized decision, Judge Garaufis entered a far-reaching injunction against New York City after finding that the tests have an unlawful disparate impact against minority job applicants.

The City has not challenged the district court's disparate impact finding. (Disparate impact claims do not require a finding of intentional discrimination if the tests have a disparate impact on minorities and they do not properly test job-related matters).  The city instead challenges the injunctive relief. The Second Circuit modifies the injunction. It agrees that the city must stop using the invalid tests and that a monitor should be appointed to oversee the fire department's antidiscrimination efforts. The city also has to make efforts to recruit minority applicants and lessen minority attrition. But the injunction goes too far to the extent that it requires the city to hire an outside recruitment consultant and to also maintain contemporaneous written records of all communications concerning hiring. The injunction also improperly requires the city to hire an outside EEO consultant. The bottom line is that the city has been found as a matter of law to employ bad testing methods in hiring firefighters and that some of the district court's remedies are upheld.

Over Judge Pooler's dissent, the district court's ruling on disparate treatment is overturned. The plaintiffs argued that that the city had a pattern-and-practice of discriminating against minorities who wanted to be firefighters. The district court agreed. (This is rare. Plaintiffs almost never win summary judgment on disparate treatment claims because these claims require a showing of illicit intent, which is normally for the jury to decide). The plaintiffs made out a prima facie case of discrimination. The city therefore had to articulate a non-racial justification to rebut the presumption that it discriminated against racial minorities. The city only has to articulate a neutral reason. It does not have to prove that the city acted for non-racial reasons. Nor must the employer show that it was actually motivated by the articulated reason. (What happens after the employer articulates its neutral reason is that, to prevail, the plaintiff has to ultimately show that the articulated reason is pretext for discrimination). The district court, however, concluded that the city's justifications were not persuasive. In particular, the Court of Appeals said, "the District Court rejected the evidence the City produced to satisfy its burden of production as 'either incredible or inapposite.'” In reaching that conclusion, the district court granted summary judgment for the plaintiffs. In vacating summary judgment and remanding the case for trial, the Court of Appeals summarizes the state of the law in this area, noting that an employer may rebut a prima facie case by producing any evidence that is relevant to rebutting the inference of discrimination. It can show that the plaintiffs got their statistics wrong. It can show that it maintains an affirmative action program intended to help racial minorities. But whatever the employer does in this context, its burden of proof cannot involve a credibility determination by the factfinder. Since the district court said that the city's articulated justification was not believable, it improperly granted summary judgment on the disparate treatment claim.

On remand, the disparate treatment claim will be tried by a different judge. The Court of Appeals says that Judge Garaufis' finding that the city offered an unpersuasive reason for its hiring practices creates a problem: "where, as here, a judge makes an unwarranted venture into fact-finding at a preliminary stage and brands a party's evidence as 'incredible' without hearing any witnesses, an objective observer would have a reasonable basis to question the judge's impartiality in assessing that evidence at trial."

Some workplace slights are too trivial to support a discrimination lawsuit

Not everything that management does to you is enough to file an employment discrimination lawsuit. The courts require that the plaintiff show that she suffered an "adverse action" that would make the lawsuit worthwhile. At one end of the spectrum, snide glances at the plaintiff are too trivial for litigation. But the termination of plaintiff's employment certainly is enough.

The case is Sotomayor v. City of New York, decided on April 11. This is a published, precedential opinion. Yet, this brief ruling tells us almost nothing other than that the plaintiff brought a discrimination case that was dismissed by the district court in a thorough opinion that the Second Circuit endorses. To find out what happened in this case, read the district court ruling, at 862 F. Supp. 2d 226 (E.D.N.Y. 2012).

The plaintiff was a New York City school teacher who raised a variety of claims under the discrimination laws. The opening paragraphs of the district court opinion set the tone:

This is one of a growing number of cases where teachers are subject to more frequent and intense classroom observation, checks, directions, and suggestions in an attempt to raise the quality of teaching. Whether the effect here was improvement of teaching quality — or, as plaintiff claims, unnecessary discriminatory and counterproductive stress on a devoted teacher — is not decided. The educational policy involved and its execution have not violated this teacher's rights under federal, New York state, or New York City law.

Beginning in the 2007-2008 school year, plaintiff Gladys Sotomayor, a New York City public school teacher, among other allegedly adverse actions, received increasingly frequent classroom observations, and was given negative performance evaluations and adverse letters in her file, by her supervisors, Principal Fred Walsh and Assistant Principal Jeanette Smith. Defendants insist that Sotomayor was an underperforming teacher who needed this help, critique, and extra supervision. Sotomayor, a Hispanic-American woman over fifty, claims that these actions were the product of age, race, and national origin discrimination.

The district court threw out the case, in part, because plaintiff could not make out any adverse actions. Plaintiff claims that she suffered a variety of slights in the course of her employment. But it is not an adverse action for supervisors to criticize plaintiff in the course of evaluating and correcting her work. While plaintiff was frequently observed in the course of her teaching responsibilities, these observations had no longstanding consequences on the terms and conditions of her employment, i.e., they did not predicate subsequent pay reductions or other penalties. Nor did negative letters to plaintiff's file constitute an adverse action. In addition, "while defendants failed to scrupulously honor each of Sotomayor's teaching preferences, there is no evidence that her assignments were 'materially less prestigious, materially less suited to her skills and expertise, or materially less conducive to career advancement' such that they constitute an adverse employment action." Similarly, plaintiff's undesirable room assignment was not an adverse action since they did not place her in a dingy and cold teaching environment that made it difficult for her to teach.

The moral of the story is that not every slight or inconvenience constitutes an adverse action under the federal civil rights laws. This is among the many reasons that Title VII and ADEA claims are dismissed on a motion for summary judgment. For defense lawyers, keep this in mind in pondering a summary judgment motion. For plaintiff's lawyers, keep this in mind in deciding whether to file the lawsuit.

Deadlines are sacred

The Court of Appeals is laying down the law. Deadlines are written in stone. Failure to meet that deadline in perfecting the appeal can result in dismissal of the appeal, and your life will be worth garbage.

The case is RLI Insurance v. JDJ Marine, decided on May 10. The current Second Circuit rules say that you have 91 days to file your brief. The rules add that extensions are disfavored. The Court of Appeals (Newman, Cabranes and Winter) provides insight into its prior experiences in dealing with delays and deadlines before it adopted the current rules:

About ten years ago, the court faced a caseload crisis. The number of cases briefed and ready to be calendared for argument was at an historic low, so low that calendars sometimes could not be filled. This was not the result of a diminished caseload; in fact, pending cases numbered in the thousands above historic levels because of a huge influx of immigration matters.

The problem of so few cases ready for argument was determined to be the result of a culture in which the bar had come to believe that the 40- (for appellant) and 30- (for appellee) day time periods set out in Federal Rule of Appellate Procedure 31(a)(1) were meaningless and that motions for extensions of time, usually for 30 days, to file briefs would be routinely granted time after time. This belief existed in spite of the fact that the orders granting the extensions would just as routinely state, in boldface type no less, that only “EXTRAORDINARY CIRCUMSTANCES” would justify another extension. The cause of the failure of the “EXTRAORDINARY CIRCUMSTANCES” warnings was that the Clerk’s Office, which ruled on the motions, was reluctant to resort to coercive measures -– and was so perceived by the bar. It was, therefore, decided that motions for extensions would be sent to a judge for decision and that, with warnings appropriate to the particular case, coercive measures, including dismissal, would be used when the warnings failed to produce a brief.

If you like this kind of inside baseball, the decision provides more information about what the Second Circuit had to deal with in resolving 50 to 75 extension motions per week for lawyers who either could not file the briefs on time or came to believe that extension motions would be liberally granted and therefore put off the work in the belief that extensions were theirs for the asking.

Things have changed. The lawyer sets the deadline, so long as it does not exceed 91 days. That means you have to get started on the brief long in advance of the deadline to ensure that you can finish up in time, allowing for personal and professional emergencies along the way.

In this case, appellant's counsel waited until the last minute to ask for more time, citing as the extraordinary circumstance a busy caseload. But too much work is not an extraordinary circumstance under the rule. The Court of Appeals did grant a six-week extension, but counsel again at the last minute sought more time on the basis of professional commitments that had been on the calendar for quite some time. So the Second Circuit dismissed the appeal. This decision arises from appellant's motion for reinstatement. That motion is denied and the case is dismissed even though appellee consented to reinstatement.

One final practice note from the Second Circuit. If you find yourself in this situation, the motion for reinstatement has to convince the Court of Appeals that the appeal has merit. Counsel did not do that in this case. But the better practice tip is to ask the Court for the full 91-days to file the brief and then to take that deadline seriously. Don't assume the Court will grant an extension for the asking. Don't let the Second Circuit make an example of you in a published decision like this.

Same-sex marriage opponents can bring First Amendment challenge to NY's election law

There is nothing more fun than litigating a pure First Amendment action, but you need a case and controversy before the court can decide the case. If the case is not ripe, it is merely an academic exercise, and the case is dismissed. This case was dismissed as unripe, but the Second Circuit reinstates it, allowing the National Organization for Marriage to challenge the constitutionality of a New York election law that potentially chilled its speech against same-sex marriage.

The case is National Organization for Marriage v. Walsh, decided on April 22. New York Election Law regulates political committees by requiring them to file certain paperwork and maintain financial records and file periodic reports with the Board of Elections. Failure to comply with these requirements can subject you to civil and criminal liability. The problem for NOM is that political committees are defined as corporations that have electoral goals in the form of promoting candidates, ballot proposals and political parties. NOM argued that the threat of being labled a political committee chilled its free speech.

Over Judge Newman's dissent, the Second Circuit (Hall and Preska [D.J.]) says that NOM is in a position to challenge the "political committee" definition. The Court of Appeals gives us a good summary of the ripeness doctrine that governs constitutional challenges. It also reacquaints us with the "chilling effect" that plaintiffs must properly allege in order to bring a First Amendment challenge. In short, a real and imminent fear of chilling is enough to bring the case. Otherwise, self-censorship takes over.

NOM argues that New York's definition of "political committee" is an overly burdensome violation of  the First Amendment, but that's something for the district court to worry about now that the Second Circuit has reinstated the case. The Court of Appeals says that NOM is in a position to challenge the Election Law's definition of "political committee" because it wanted to run an advertisement in 2010 against same-sex marriage. That advertisement might turn NOM into a political committee because it would have advocated on a political issue, which means that the federal court has a legitimate constitutional claim ripe for review. Here's the text of the advertisement that NOM wanted to run:

Think legalizing same-sex marriage doesn’t affect your family?

. . . .

Legalizing gay marriage has consequences for kids. Massachusetts schools teach second graders that boys can marry other boys. A California public school took first graders to a same-sex wedding, calling it “a teachable moment.”

Kids have enough to deal with already, without pushing gay marriage on them. And it’s not just kids who’ll face the consequences.

The rights of people who think marriage means a man and a woman will no longer matter: We’ll all have to accept same-sex marriage whether we like it or not.

Carl Paladino knows that in these troubled times in New York, we don’t have time to push gay marriage on New York families.

This Election Day, vote for Carl Paladi[n]o for governor.

As the election approaches, tell your family and friends to vote for Carl Paladino. He’ll stand up for marriage between one man and one woman.

Paid for by National Organization for Marriage

You can make of this advertisement what you will. Times have certainly changed since 2010, when NOM wanted to run this advertisement. Paladino is a footnote to history, and same-sex marriage is legal in New York. But the constitutional doctrines governing standing and ripeness don't give a damn whether NOM is on the right side of history or not. After waiting 1.5 years for a decision from the Court of Appeals, this organization can now proceed on the merits in the district court.

No due process rights to Witness Protection Program

The Justice Department kicked someone out of the Witness Security Program because, it said, he broke the rules governing improper contacts with the wrong people. He challenged his expulsion from the program as a due process violation. He loses the case because courts are not allowed to entertain challenges like this.

The case is J.S. v. T'Kach, decided on April 10. The plaintiff's name is a secret because he must have testified against someone in return for witness protection. The government came to believe that plaintiff broke the rules while he was incarcerated at federal prison in Otisville, New York. He argues that the expulsion was unfair because the government did not tell him the name of the person with whom he had improper contact. Under normal circumstances, this would be a good due process case; you cannot deprive someone of a property interest without prior notice of what you allegedly did wrong.

This is not a normal case, though. The federal statute that governs this program says that the Attorney General decision to terminate protection is not subject to judicial review. The federal courts have no authority to resolve cases like this. The Attorney General can do whatever he wants. Another problem with the case is that due process claims cannot be predicated on an entitlement to which the government has discretion to revoke. There is thus no property interest here.

The holding in this case is not that remarkable. Things get interesting in the concurrence, though. Judge Parker wrote the majority opinion, to which Judges Hall and Wallace (sitting by designation) signed on. But Judge Parker filed a separate concurrence, to which Judge Hall also signed on. Judges Parker and Hall therefore submit a separate opinion to further flesh out their views. They are troubled that Congress did create procedural requirements to ensure that the Witness Security Program is administered fairly. Defendants apparently violated those requirements. While the Second Circuit says that plaintiff cannot pursue a due process claim, Judges Parker and Hall suggest that Congress revise the statute "to provide greater enforcement of the procedural protections it intended Program participants to have." 

Sex in the workplace does not support sex discrimination charge

Title VII does not recognize a claim that the boss gave his paramour favorable treatment in the workplace. Other women in the workplace cannot therefore argue that any retaliation arising from complaints about the paramour preference violated Title VII. That's the holding in a decision last week from the Court of Appeals.

The case is Kelly v. Howard I. Shapiro & Associates, issued on April 26. The decision describes a particularly toxic work environment. Plaintiff worked in the family business. Her brother was fooling around with a female subordinate, Ms. Joyce. According to the lawsuit, the workplace "became so completely permeated with sexual favoritism towards Ms. Joyce that Ms. Kelly's duties and responsibilities were substantially reduced, and her leadership duties were removed in favor of Ms. Joyce, notwithstanding the fact that that she was significantly senior to Ms. Joyce." Joyce was insubordinate and had her run of the place. Kelly added that as a result of the illicit love affair, the workplace atmosphere was "demeaning to women." Kelly eventually quit her job over this.

Rule 12 dismissal is affirmed. Kelly cannot prove a Title VII violation. Yes, Title VII prohibits sex discrimination. But this was not sex discrimination, the Second Circuit (Walker, Wesley and Droney) says. The Second Circuit held in 1987 that disparate treatment based on a romantic relationship is not discrimination. This may seem paradoxical, as the relationship all about sex, and the male supervisor is obviously doing things to promote his affair. But that does not mean the plaintiff is being treated differently because she is a woman. The discrimination stems from "a romantic relationship between an employer and a person preferentially treated."

This may seem a clunky distinction, but the Second Circuit seems adamant about this, citing other cases that support this kind of reasoning. What it means for Kelly is that her complaints about her brother's hanky-panky are not a legitimate ones under Title VII, which means they are not protected activity because she could not have believed in good faith that she was complaining about gender discrimination. So her retaliation claim -- which requires a showing that she engaged in protected activity -- fails as a matter of law, and her complaint fails to state a claim, particularly since does not support her allegation that the relationship "resulted in an atmosphere demeaning to women."