Crude Conduct Not Motivated by Petitioners’ Gender/Case of Same Sex Discrimination Not Made Out

The Third Department determined a case of “same sex” sex discrimination had not been made out.  The petitioners (Bargy and Colon) are male.  The conduct complained of related to the supervisor’s (Andross’) bringing a woman to the hotel room in which all three men were staying during a construction project and having sex with her.  After a dispute between the petitioners and the woman, the supervisor fired them:

Here, neither the written complaints nor testimony of Bargy or Colon set forth any allegations or indication of how Andross’ conduct was motivated by their gender or that their grievances to petitioner were ignored because of their gender.  The ALJ’s decision does not refer to any proof supporting a finding that complainants’ gender was relevant to, or a reason for, the conduct.  Of the recognized paths for showing same-sex discrimination, the only one even arguably applicable is harassment based on gender-stereotyping.  However, the ALJ made no such finding.  … We fully agree that Andross’ conduct was crude, coarse and grossly unprofessional; nevertheless, in the absence of proof of gender-based discrimination, such conduct does not establish a claim.  We are constrained by the record to conclude that there is not substantial evidence that the conduct was caused by or related in any relevant fashion to complainants’ gender … . Matter of Arcuri v Kirkland…, 516735, 3rd Dept 1-9-14