MEMORANDUM OPINION AND ORDER

JOHN S. MARTIN, Jr., District Judge.

This case alleging retalitory discharge is before the Court on Defendant's motion for summary judgment. For the reasons set forth below, Defendant's motion is granted.

Background

Plaintiff, Emilie Gale, began working for Defendant, Primedia, on April 5, 1999, as an Advertising Account Manager at American Baby, a wholly-owned media interest of Primedia. She was responsible for servicing existing American Baby advertising accounts and trying to bring in new business in the southeast region of the United States. Plaintiff was employed full-time, but worked Monday through Thursday in the New York office and from home on Fridays. Gale reported directly to Jeffrey Christian, Group Advertising Director for the American Baby Group.

On April 19, 2000, Gale was called into a meeting with Christian and Bob Davidowitz, then Associate Publisher of the American Baby Group. During that meeting, they informed Plaintiff that her performance was not meeting expectations, that her call volume was too low, that she had not brought in enough new business and that a long-time client had complained about her responsiveness. Bernbach Aff. Ex. 1 at 133-137, 139 ("Gale Dep."). They informed her that she would need to come into the office every day, rather than working from home on Fridays. Davidowitz and Christian gave Gale over a month to implement the new schedule. Gale Dep. at 136. Davidowitz stated that he had no intention of firing Gale at the time of that meeting. Bernbach Aff. Ex. 3 at 77.

Although Plaintiff did not raise the issue during that meeting, she believed that her work performance was impeded by a difficult work environment in which her direct supervisor, Christian, was having an affair with another employee at the company, Liz Rioux. Comp1. ¶ 8, 9; Gale Dep. at 146. After her meeting with Davidowitz and Christian, Plaintiff received a follow-up e-mail from Davidowitz outlining her return to a five-day, in-office schedule. That weekend, after the meeting with her employers, Plaintiff discussed her concerns about the work Environment at Primedia with her boyfriend and an attorney. Gale Dep. at 150.

In response to the e-mail, Gale prepared and delivered to Bob Davidowitz a letter dated April 24, 2000, in which she took "responsibility for the issues noted" in the e-mail, but stated that the:

personal/intimate relationship between my direct management, Jeff Christian and Liz Rioux has had a serious impact on my work performance. It has interfered with the access and respect I have with and for my management team. It does not mix well with my professional code of ethics and has inhibited me from doing my best work. These circumstances have created a business environment that has impaired my work performance.

Bernbach Aff. Ex. 9.

According to Plaintiff, Davidowitz responded that he was

aware of the relationship and did not think it caused any negative impact on the performance of anyone in the office. Gale Dep. at 160. Plaintiff was shocked at Davidowitz's response and told him that if she was not welcome at Primedia she would entertain leaving, but that she would not resign. Gale Dep. at 167.

The following day, Davidowitz forwarded to Bethanne McFadden, Director of Human Resources at Primedia, an analysis of Plaintiff's sales performance for review with an eye toward termination. Bernbach Aff. Ex. 5 at 28. McFadden then discussed the case with her supervisor and together they determined that Plaintiff should be terminated on the basis of her performance.

On May 2, 2000, Plaintiff was called into a meeting with Davidowitz and McFadden. They told her that Primedia accepted her resignation. When she said that she had not resigned, they informed her that she was being terminated for performance reasons and without severance. Gale Dep. at 180-81.

Plaintiff then filed this action, alleging that Defendant retaliated against her for opposing what she believed to be unlawful sexual harassment under the Civil Rights Act of 1964, the Civil Rights Act of 1991, 42 U.S.C. 2000 et seq. ("Title VII"), the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. and the Administrative Code of the City of New York § 8-101 et seq.

Discussion

Title VII provides that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by" Title VII. 42 U.S.C. § 2000e-3 (a). To bring a claim for retalitory discharge, Plaintiff must first make out a prima facie case of retaliation. Reed v. A.W. Lawrence Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996). To establish a prima facie case of retaliation under Title VII, a plaintiff must show:

(1) that she was engaged in protected activity by opposing a practice made unlawful by Title VII; (2) that the employer was aware of that activity; (3) that she suffered adverse employment action; and (4) that there was a causal connection between the protected activity and the adverse action.

Viewing all facts in the light most favorable to the nonmoving party, the Court finds that Plaintiff did not engage in "protected activity," because she did not oppose a practice that was unlawful or one that she could have reasonably believed was unlawful. Therefore, Plaintiff fails to make out a Title VII retalitory discharge claim.

In order to prove that she was engaged in a protected activity, Plaintiff need not establish that the conduct she opposed was in fact a violation of Title VII. Plaintiff must only demonstrate a "good faith, reasonable belief that the underlying challenged actions of the employer violated the law." Manoharan v. Columbia Univ. Coll. of Physicians Surgeons F.2d 590, 593 (2d Cir. 1988) (citations omitted). Whether Plaintiff's belief is reasonable must be assessed "in light of the totality of the circumstances." Galdieri-Ambrosini, 136 F.3d at 292.

Plaintiff's alleged "protected activity" was her April 24 letter complaining of a hostile work environment created by the Christian-Rioux relationship. It is clear that plaintiff could not have sustained a hostile work environment claim. The Supreme Court has interpreted Title VII to prohibit conduct that requires "people to work in a discriminatorily hostile or abusive environment." Harris v. Forklift Systems. Inc., 510 U.S. 17, 21 (1993). Conduct is actionable "when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."Id. To determine whether an employer's conduct is severe enough to "create an abusive working environment," Harris, 510 U.S. at 21 (citations omitted), a court looks at all of the circumstances. Id. at 23. Courts must consider "the frequency of the discriminatory conduct; its severity; whether it is physically threatening, or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id.

At her deposition Gale testified to a handful of instances where she witnessed Christian kissing or caressing Rioux and times when Christian heaped over-generous praise on Rioux. Plaintiff states that she witnessed Christian and Rioux hugging in the hall of American Baby's offices, kissing on the street outside of the offices, and that she witnessed Christian caressing Rioux's stomach while he spoke on the phone in his office. Gail Dep. at 64, 79. Plaintiff also states that she was uncomfortable after a particular lunch meeting she attended with Christian, Rioux and a client, after which Christian and Rioux took a separate cab back to the office because "they obviously wanted to be alone." Gail Dep. at 79-80. Plaintiff also reported that Christian and Rioux sometimes came to work together late or left early. Gale Dep. at 121.

These incidents, viewed as true, cannot sustain a claim for hostile work environment for two reasons. First, they do not rise to the level of conduct that is "severe or pervasive enough to create an objectively hostile or abusive work environment." Harris v. Forklift Sys., Inc., 510 U.S. 20, 21 (1993). Second, in order for an employer to violate Title VII whether in a sex discrimination claim or a hostile work environment claim, the actionable conduct must be made on the basis of gender. Brown v. Henderson, No. 00-6347, 2001 WL 827885, at *4 (2d Cir. July 24, 2001)

Although plaintiff could not have sustained a hostile work environment claim, the question before this Court is whether she could reasonably have believed that she had such a claim. Manoharan, 842 F.2d at 593. InQuinn v. Green Tree Credit Corp., 159 F.3d 759 (2d Cir. 1998), the Second Circuit found that when a supervisor commented on a plaintiff's physical appearance and used papers held in his hand to brush against plaintiff's breasts, while offensive and inappropriate, these actions were not enough for a reasonable trier of fact to find a hostile work environment. The Second Circuit did conclude that the plaintiff in that case could have had a "good faith, reasonable belief" that her supervisor had violated the law. Quinn, 159 F.3d at 769.

The difference between Quinn and the instant case is that the actions endured by the Quinn plaintiff were plausibly directed at her because of her gender. "It is axiomatic that mistreatment at work . . . through subjection to a hostile environment . . . is actionable under Title VII only when it occurs because of an employee's sex." Brown, 2001 WL 827885, at *4 Plaintiff's exposure to the Christian-Rioux relationship was not based on her gender. All employees at American Baby were equally subjected to this personal relationship. As the Second Circuit stated inDeCintio v. Westchester County Medical Ctr., 807 F.2d 304 (2d Cir. 1986), employees exposed to the intimate relationship of a supervisor are not discriminated against because of their gender, but rather they are discriminated against because their supervisor "prefer[s] his paramour."Id. at 308.

Under the totality of circumstances in this case, a reasonable juror could not find that Plaintiff had a good faith, reasonable belief that her employer had engaged in conduct creating a hostile work environment. The good faith standard for a retalitory discharge claim requires more than a "mere subjective good faith," but the belief must be "reasonable and characterized by objective good faith." Sullivan-Weaver v. New York Power Auth., 114 F. Supp.2d 240, 243 (S.D.N.Y. 2000) (citing Manoharan, 842 F.2d at 593). It is clear in this circuit that "preferential treatment on the basis of an intimate relationship does not constitute sex discrimination" sufficient to sustain a hostile work environment claim. Risley v. Fordham Univ., 99 Civ. 9304, 2001 WL 11856, at *7 (S.D.N.Y. Feb. 13, 2001) (citing DeCintio, 807 F.2d at 308). While this relationship might have made Plaintiff uncomfortable, absent some evidence of something more than a supervisor preferring his paramour to other employees, Plaintiff cannot, in good faith, assert that this behavior constitutes a hostile work environment. See Sullivan-Weaver, 114 F. Supp. 2d at 243 (S.D.N.Y. 2000).

The fact that Plaintiff first raised the claim after being told about concerns over her job performance and after consulting a lawyer about the viability of a sex discrimination claim, only makes Plaintiff's claim that this was a good faith belief more untenable. See Risley, 2001 WL 118566, at * 7.

Plaintiff's urging that this Court should follow the Third Circuit decision in Drinkwater v. Union Carbide Corp., 904 F.2d 853 (3d Cir. 1990), is misguided. The plaintiff in Drinkwater was, like the Plaintiff in this case, subjected to a workplace romance. Unlike the instant case, the plaintiff in Drinkwater could, in good faith, have made a hostile work environment claim under New Jersey law. At the time the Drinkwater plaintiff filed her claim, the law was unclear whether a consensual relationship between co-workers could create a hostile work environment.Drinkwater, 904 F.2d at 866. The same is not true of a plaintiff in the Second Circuit following DeCintio, decided fifteen years ago.

Because Plaintiff's letter to Davidowitz does not allege conduct that is unlawful, or conduct that could reasonably and in good faith be considered unlawful, Plaintiff's actions do not constitute a protected activity and Defendant's motion for summary judgment is granted.

The same analysis applies to Plaintiff's state law claims. New York courts look to federal law in adjudicating discrimination claims under New York State and the New York City human rights law, therefore, those claims are evaluated under the same standards. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000). Accordingly, Defendant's motion as to Plaintiff's state law claims is granted as well.

Conclusion

For the foregoing reasons, Defendant's motion for summary judgment is granted in its entirety.

SO ORDERED.