NYC Human Rights Law Discrimination Claim, Based on Alleged Different Treatment of Reciprocal Male/Female Employee Harassment Allegations, Continues

In Day v. City of New York, No. 15CV04399, 2016 WL 1171584 (S.D.N.Y. Mar. 22, 2016), the court adopted the Magistrate Judge’s Report & Recommendation as to plaintiff’s discrimination and retaliation claims under Title VII, the NYS Human Rights Law, and the NYC Human Rights Law.

In brief, the plaintiff (a male grand jury stenographer at the NY County District Attorney’s Office) alleged that he was subjected to gender discrimination. He and a female co-worker lodged Equal Employment Opportunity (EEO) complaints against each other. Plaintiff’s accuser alleged that plaintiff sexually harassed her; plaintiff alleged that his accuser antagonized him and created an awkward/hostile work atmosphere. Plaintiff asserted that he was fired after complaining about defendants’ “investigatory neutrality” and that he was subjected to a “different set of rules” than were female coworkers.

The court agreed with the recommendation to dismiss plaintiff’s Title VII claims, since plaintiff failed to plead an “adverse employment action.” The court cited binding Second Circuit precedent for the proposition that “the failure to investigate a complaint of discrimination does not qualify as an adverse employment action” under Title VII.

The court agreed with the recommendation not to dismiss plaintiff’s NYC Human Rights Law discrimination claim. In contrast to Title VII, all plaintiff had to show in order to establish a gender discrimination claim under that statute was that “he has been treated less well than other employees because of h[is] gender.”

The court pointed to four ways in which plaintiff alleged that he was treated “less well” than his female co-workers, including that defendants “did not receive or adequately investigate Plaintiff s complaint while his accuser’s complaint was received and adequately investigated” and “challenged Plaintiff’s mental state, but did not challenge his accuser’s mental state.” While plaintiff’s “accuser was given special seating and scheduling privileges in response to her complaint, and … Plaintiff was offered a transfer in response to his … complaint.” However, as the court noted, “a transfer carries a stigma that being afforded special seating and scheduling privileges does not.”

It also agreed with the Magistrate’s recommendation to deny defendants’ motion to dismiss plaintiff’s retaliation claims. For example, plaintiff’s “complaint that he and the other male employee were subject to different workplace behavior standards and rules” supported his “good faith, reasonable belief that this disparate treatment constituted gender discrimination, and that by complaining about such disparate treatment, he had engaged in protected activity.”

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