“Uncivil and Crude” Comments Did Not Amount to Sexual Harassment/Hostile Work Environment at UPS

In Minckler v. UPS, 2015 WL 6510537 (N.Y. App. Div. 3d Dept. Oct. 29, 2015), an upstate appellate court affirmed the dismissal of plaintiff’s sexual harassment/hostile work environment and retaliation claims against her former employer UPS, but held that her claim for assault and battery could continue against a co-worker.

The Facts

Plaintiff, a UPS administrative clerk, alleged that she was forced to resign after enduring sexual harassment, gender discrimination, retaliation, intentional infliction of emotional distress, and assault/battery. Specifically:

[T]he record reveals that, since 2005, plaintiff worked in a small office in close proximity to coworkers, including Jackson and Armes. Plaintiff claimed that, beginning in 2005, she overheard Jackson call her a sexually derogatory name, in 2005 and again in 2009, she overheard Jackson describe a party that he had attended in sexually graphic terms and, in March 2009, Jackson claimed that he ejaculated into a plate of food that he had brought into the office to share. Plaintiff also claimed that Jackson pulled on her bra straps in September 2009, he used a sexually derogatory term to describe his relationship with his partner sometime in 2009, he pulled her hair in February 2010 and, in August 2010, he suggested that plaintiff purchase certain sexual paraphernalia and once rubbed lubricant on plaintiff’s arm. Additionally, plaintiff alleged that five or six times over the years, Jackson called her a derogatory term for lesbian1 and he once gave her a refrigerator magnet with a crab on it and said she “ha[d] crabs.”

Hostile Work Environment/Sexual Harassment

The court explained why defendant UPS was entitled to summary judgment on plaintiff’s hostile work environment/sexual harassment claim:

It is not disputed that UPS had a formal anti-discrimination policy. Although plaintiff complained about the 2005 name comment, she claims that, because Armes warned her against bringing a formal complaint, she never complained about any of the other comments. According to plaintiff, Armes was generally present and complicit with Jackson’s behavior. Accepting these allegations to be true, the record clearly establishes that the workplace was one in which the banter was occasionally uncivil and crude. Under the totality of the circumstances, however, we are unable to conclude that the conduct, while offensive, either permeated the workplace or was so “severe and pervasive” as to constitute a hostile work environment under the Human Rights Law. With the exception of the bra strap, hair pulling and lubricant incidents in September 2009, February 2010 and August 2010, respectively, plaintiff does not allege any physical contact. Without minimizing the impropriety of Jackson’s workplace behavior, we note that, in her deposition, plaintiff conceded that Jackson’s comments, while crude, did not objectify or disparage women in general. Instead, she believed that the conduct, when directed toward plaintiff in particular, resulted from their mutual animosity—a concession that deflates her assertion of gender discrimination. As such, we conclude that the incidents recited by plaintiff are insufficient as a matter of law to meet the threshold of severity and pervasiveness required for a hostile work environment claim. In our view, while the record demonstrates many factual disputes, because plaintiff has raised no material factual issues, Supreme Court properly dismissed her cause of action based on a hostile work environment due to sexual harassment.


The court also held that the lower court properly dismissed plaintiff’s retaliation claim, “because plaintiff failed to demonstrate either that she suffered any adverse employment action following her complaint or that the working conditions were so intolerable that a reasonable person would have felt compelled to resign less than two weeks later.”


Finally, the court held that the lower court erred by dismissing plaintiff’s assault and battery claim against her co-worker, Jackson. Plaintiff’s claim based on the 2009 incident was time-barred. However:

As to the 2010 incident, plaintiff alleges that, without provocation, Jackson pulled her hair for 10 to 15 seconds and she yelled at him to stop because she was afraid that he would pull out her hair extensions. Defendants submitted deposition testimony from Jackson, Armes and a coworker who all recalled that plaintiff discovered something in her hair, became frantic and asked Jackson to remove it. Jackson checked, found a ladybug and removed it as requested. As we must view the evidence in the light most favorable to plaintiff, the nonmoving party, we disagree with Supreme Court and find that an issue of fact exists as to plaintiff’s assault and battery claim against Jackson.

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