In Pappas v. Moody’s Investor Service, No. 15360, 158504/19, 2021-01012, 2022 N.Y. Slip Op. 01249, 2022 WL 548952 (N.Y.A.D. 1 Dept., Feb. 24, 2022), the court, inter alia, unanimously affirmed the lower court’s dismissal of plaintiff’s discrimination and retaliation claims asserted under the New York State and City Human Rights Laws (Executive Law § 296 and Administrative Code of City of N.Y. § 8–107, respectively).
As to plaintiff’s discrimination claims, the court explained:
[Plaintiff’s complaint] fails to allege that plaintiff is a member of a protected class (see Matter of Local 621 v New York City Dept. of Transp., 178 AD3d 78, 81 [1st Dept 2019], lv dismissed 35 NY3d 1106 ) or that he was treated differently or less well than his female coworkers (see e.g. Massaro v Department of Educ. of the City of N.Y., 121 AD3d 569 [1st Dept 2014], lv denied 26 NY3d 903 ). Plaintiff’s argument that defendant, his former employer, could institute a sham sexual harassment claim against him only because he is male is unavailing. In any event, he failed to establish that female coworkers who engaged in similar behavior were not investigated for sexual harassment. The complaint contains no allegations of comments or references to his gender to support an inference of discriminatory animus (see Whitfield–Ortiz v Department of Educ. of City of N.Y., 116 AD3d 580, 581 [1st Dept 2014]).
As to plaintiff’s retaliation claim, the court held that “the complaint fails to allege that plaintiff engaged in a protected activity and suffered an adverse employment action because of it,” noting that “[c]ontrary to plaintiff’s contentions, his participation in the sexual harassment investigation is not a protected activity, because he was the alleged harasser.”