Pawson v. Ross

Cross appeal from an order of the Supreme Court (Krogmann, J.), entered October 2, 2014 in Warren County, which, among other things, partially denied defendants’ motion for summary judgment dismissing the complaint.

Plaintiffs—who are former employees of defendant Loftus

Defendants argue that Supreme Court erred in partially denying their motion for summary judgment dismissing plaintiffs’ complaint, as no plaintiff established a prima facie case of a hostile work environment due to sexual harassment. We agree. While Ross’ alleged conduct was certainly offensive and grossly unprofessional, those aspects of it that were sexually harassing were not severe or pervasive enough to render any plaintiff’s work environment objectively hostile and abusive as these terms are construed under the Human Rights Law.

In order to establish the existence of a sexually hostile work environment, an individual plaintiff must show that his or her workplace was “ ‘permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [his or her] employment and create an abusive working environment’ ” (Forrest v Jewish Guild for the Blind, 3 NY3d 295 , 310 [2004], quoting Harris v Forklift Systems, Inc., 510 US 17 , 21 [1993]; accord Minckler v United Parcel Serv., Inc., 132 AD3d 1186 , 1187 [2015]). All of the circumstances must be considered, including “the frequency of the discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfere [d] with [the plaintiff’s] work performance” (Minckler v United Parcel Serv., Inc., 132 AD3d at 1187 [internal quotation marks and citations omitted]). Moreover, the workplace must be both subjectively and objectively hostile. That is, a plaintiff must not only perceive that the conditions of his or her employment were altered because of discriminatory conduct, but the conduct also must have created an environment that a reasonable person would find to be hostile or abusive (see Forrest v Jewish Guild for the Blind, 3 NY3d at 311 ; Minckler v United Parcel Serv., Inc., 132 AD3d at 1187 ; Clauberg v State of New York, 95 AD3d 1385 , 1387 [2012]).

Similarly, the allegations of plaintiffs Heidi Anderson and Carissa Conley do not reflect the “steady barrage of opprobrious [gender-based] comments” ordinarily required to alter the conditions of one’s employment (Forrest v Jewish Guild for the Blind, 3 NY3d at 311 [internal quotation marks and citations omitted]; see Harris v Forklift Systems, Inc. 510 US at 21 ). Anderson stated that the extent of Ross’ discriminatory conduct toward her consisted of a handful of references to her as a “dumb blond” and two instances in which he called her “Mae West” over the course of a year. For Conley’s part, she testified that Ross once claimed at a staff meeting that he and she would be sharing a hotel room during an upcoming business trip. On another occasion he allegedly told a client that they had showered together. He also made additional, sporadic remarks about her appearance and work attire. Significantly, however, after resigning her position at LR and during the application process for unemployment benefits, Conley stated that while she believed that she had been the victim of sexual harassment, she did not quit because of it, but did so because of Ross’ anger issues, a concession that further undermines her claim that she was subjected to gender-based discrimination (see Minckler v United Parcel Serv., Inc., 132 AD3d at 1188-1189 ).

Finally, plaintiff Mary Buban alleged that Ross would call

We do not, by any means, condone Ross’ alleged actions toward plaintiffs. However, as none of them can establish, as a matter of law, that they were subjected to a sexually hostile work environment, we must reverse Supreme Court’s order insofar as it partially denied defendants’ motion for summary judgment. In light of our decision, the parties’ remaining arguments have been rendered academic.

McCarthy, J.R, Egan Jr., Devine and Clark, JJ., concur.

Ordered that the order is modified, on the law, without costs, by reversing so much thereof as partially denied defendants’ motion; motion granted in its entirety, summary judgment awarded to defendants and complaint dismissed; and, as so modified, affirmed.