23-1075 Reed v. Fortive Corp.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 24th day of April, two thousand twenty-four. 4 5 PRESENT: 6 GUIDO CALABRESI, 7 MICHAEL H. PARK, 8 SARAH A. L. MERRIAM, 9 Circuit Judges. 10 _____________________________________ 11 12 Hayley Reed, 13 14 Plaintiff-Appellant, 15 16 v. 23-1075 17 18 Fortive Corporation, Qualitrol Company 19 LLC, Andrew McCauley, in his individual 20 and professional capacities, 21 22 Defendants-Appellees. 23 24 _____________________________________ 25 26 FOR PLAINTIFF-APPELLANT: MICHAEL J. WILLEMIN, Wigdor LLP, New 27 York, NY. 28 29 FOR DEFENDANTS-APPELLEES: JAMIE HAAR (Simone R.D. Francis, on the 30 brief), Ogletree, Deakins, Nash, Smoak & 1 Stewart, P.C., St. Thomas, Virgin Islands & 2 New York, NY. 3 4 Appeal from a judgment of the United States District Court for the Western District of New

5 York (Siragusa, J.).

6 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

7 DECREED that the judgment of the district court is AFFIRMED.

8 Plaintiff-Appellant Hayley Reed brought various state and federal claims against Qualitrol

9 Company LLC, Fortive Corporation, and Andrew McCauley—her former employer, its parent

10 company, and its President, respectively—based on an alleged sexual advance made by McCauley

11 and the mistreatment that Reed allegedly suffered after rejecting and eventually reporting the

12 advance. The district court granted Appellees’ motion to dismiss all the claims that Reed brought

13 in her Amended Complaint. Reed challenges that decision with respect to her claims for (1) quid

14 pro quo sexual harassment, (2) retaliation, and (3) constructive discharge. We assume the parties’

15 familiarity with the remaining underlying facts, procedural history of the case, and issues on

16 appeal.

17 We review a district court’s grant of a motion to dismiss de novo. See Alix v. McKinsey &

18 Co., Inc.,

(2d Cir. 2022). To survive a motion to dismiss, a complaint’s

19 “allegations must meet the plausibility standard set out in Ashcroft v. Iqbal,

(2009),

20 and Bell Atlantic Corp. v. Twombly,

(2007).”

21 I. Quid Pro Quo Sexual Harassment

22 “To state a quid pro quo claim, [a plaintiff] must show a tangible employment action, i.e.,

23 that an explicit alteration in the terms or conditions of employment resulted from her refusal to

24 submit to [a] sexual advance[].” Schiano v. Quality Payroll Sys., Inc.,

(2d Cir.

2 1 2006) (cleaned up). Reed’s quid pro quo claim fails because she makes only “conclusory

2 allegations of implied sexual advances.” Sutton v. Stony Brook Univ., No. 21-2055,

4479509, at *2 (2d Cir. Sept. 27, 2022) (summary order). Her description of McCauley’s conduct

4 in August 2019 creates no more than “a sheer possibility that a defendant has acted unlawfully.”

5 Vengalattore v. Cornell Univ.,

(2d Cir. 2022) (quoting Iqbal,

).

6 Reed’s claim is based on a single incident in which McCauley allegedly invited her to see a

7 corporate apartment on their way to lunch, asked her repeatedly to join him in the apartment’s

8 bedroom, and then inquired over lunch whether she was married or had a boyfriend. The Amended

9 Complaint contains no allegations of any sexual comments or physical contact, never alleges that

10 McCauley engaged in any other sexual conduct towards Reed or anyone else, and makes no other

11 allegations sufficient to support an inference that McCauley’s conduct was sexual. As the district

12 court determined, these conclusory allegations do not satisfy Iqbal’s pleading standard. Reed has

13 not plausibly alleged a sexual advance, and so she cannot plausibly show that any tangible

14 employment action stemmed from her refusal to submit to such an advance.

15 II. Retaliation and Constructive Discharge

16 “[F]or a retaliation claim to survive . . . a motion to dismiss, the plaintiff must plausibly

17 allege that: (1) defendants discriminated—or took an adverse employment action—against [her],

18 (2) because [she] has opposed any unlawful employment practice.” Vega v. Hempstead Union

19 Free Sch. Dist.,

(2d Cir. 2015) (internal quotation marks omitted). “[T]he plaintiff

20 need only have had a good faith, reasonable belief that [she] was opposing an employment practice

21 made unlawful by Title VII.” Kessler v. Westchester Cnty. Dep’t of Soc. Servs.,

, 210

22 (2d Cir. 2006) (internal quotation marks omitted). “The reasonableness of the plaintiff’s belief is

23 to be assessed in light of the totality of the circumstances.” Kelly v. Howard I. Shapiro & Assocs.

3 1 Consulting Eng’rs, P.C.,

(2d Cir. 2013) (internal quotation marks omitted).

2 “However, mere subjective good faith belief is insufficient; the belief must be reasonable and

3 characterized by objective good faith.”

(cleaned up).

4 Reed claims that she opposed unlawful employment practices twice: first, by rejecting

5 McCauley’s alleged sexual advance; and second, by filing a formal complaint about that incident

6 roughly a year-and-a-half later.

7 The parties dispute whether declining a sexual advance counts as opposing an unlawful

8 employment practice. We have recognized previously that the circuits disagree on this question.

9 See Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.,

, 115 n.12 (2d Cir. 2013).

10 But we need not answer this question because, regardless of whether rejecting a sexual advance

11 can ever count as opposing an unlawful employment practice, Reed has failed to allege adequately

12 that she had a reasonable, good-faith belief that McCauley’s conduct violated the law or that her

13 conduct constituted opposition to unlawful conduct.

14 As for Reed’s formal complaint in February 2021, she fails to allege that Defendants-

15 Appellees took an adverse employment action against her for filing it. Her allegations that new

16 monitoring programs appeared on her computer do not suffice for a claim of retaliation because

17 Reed does not plausibly allege that the monitoring was so severe that “it well might have dissuaded

18 a reasonable worker from making or supporting a charge of discrimination.” Banks v. Gen.

19 Motors, LLC,

(2d Cir. 2023) (quoting Burlington N. & Sante Fe Ry. Co. v. White,

20

(2006)); see also, Thomson v. Odyssey House,

(2d Cir. 2016)

21 (“[E]xcessive scrutiny is not an actionable adverse employment action.”); Fahrenkrug v. Verizon

22 Servs. Corp.,

(2d Cir. 2016).

23 Finally, having affirmed the dismissal of Reed’s other claims, we affirm the district court’s

4 1 dismissal of her constructive discharge claims as well.

2 ***

3 We have considered the remainder of Reed’s arguments and find them to be without merit.

4 For the foregoing reasons, we AFFIRM the judgment of the district court.

5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk of Court

5