Leshchenko v. Go New York Tours, Inc.

Background

Viktor Leshchenko worked for Go New York Tours, Inc., doing business as TopView, from February 2023 until January 2024. He alleged that a coworker identified as “Ricky” repeatedly used homophobic language, including a slur, in November 2023. Other employees sent a collective email to TopView supervisors. TopView responded by apologizing, admonishing Ricky, and telling him not to use similar language again. The complaint did not allege that Ricky engaged in further offensive conduct after that response.

In January 2024, Leshchenko emailed supervisors that Ricky still worked for TopView and that Leshchenko and coworkers had to interact with him. Leshchenko said this was uncomfortable and felt unsafe, and he questioned why TopView had not fired Ricky. After an exchange of emails, TopView removed Leshchenko’s shifts and treated his employment as ended, although he repeatedly stated that he had not resigned. Leshchenko asserted retaliation claims under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law.

Motion to Dismiss

TopView moved to dismiss all three claims under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not adequately state a legal claim. The court considered whether Leshchenko plausibly alleged that he engaged in activity protected from retaliation and that TopView knew he had done so.

Title VII Claim

The court granted the motion as to Leshchenko’s Title VII retaliation claim. It explained that a retaliation claim requires a complaint about conduct that the employee reasonably and in good faith believed violated Title VII. The court concluded that the complaint did not adequately allege Leshchenko’s participation in the November 2023 collective email: it said only that he was “included” on the email, which did not establish that he supported, organized, drafted, or sent it, or that TopView would have understood him to be endorsing it.

The court also held that the January 2024 email did not plausibly show an objectively reasonable belief that TopView itself was violating Title VII. TopView had responded to the reported incident by confronting and warning Ricky, and the complaint alleged no later harassment. The court stated that Title VII does not require an employer to take the particular corrective action an employee prefers, such as firing the alleged harasser. It therefore concluded that Leshchenko’s complaint did not plausibly allege protected activity based on either email. The court expressly did not decide whether Leshchenko adequately pleaded the other elements of a Title VII retaliation claim.

State and City Claims

The New York State and New York City retaliation claims relied only on supplemental jurisdiction, meaning the federal court’s authority to hear related state-law claims alongside a federal claim. After dismissing the only federal claim at this early stage, the court declined to exercise supplemental jurisdiction over the state and city claims and dismissed those claims without prejudice. The court did not address their merits.

Leave to Amend and Disposition

The court granted Leshchenko leave to amend because this was the first ruling on the adequacy of his pleading and he might be able to correct the identified defects. The court granted TopView’s motion to dismiss and dismissed the complaint without prejudice to filing an amended complaint by July 21, 2025. It warned that failure to file a timely amended complaint, absent an extension, would result in dismissal with prejudice of the Title VII claim. The Clerk was directed to terminate the pending motion.