“Reprehensible” Conduct (Including “Butt Swats” and “Spanking” Comments) Held Insufficient to Establish Sexual Harassment Hostile Work Environment Under NYS Human Rights Law

In Pawson v. Ross, 2016 NY Slip Op 02502 (App. Div. 3d  Dept. March 31, 2016), an upstate appellate court held that defendants should have been granted summary judgment dismissing plaintiff’s complaint alleging hostile work environment sexual harassment under the New York State Human Rights Law.

After stating the relevant law, the court proceeded to apply it to the facts:

Turning first to plaintiff Debbi Pawson, she alleges that, in the five months that she was employed at LR, Ross called her “stupid” and indicated that she was a “cold” person on a number of occasions. Pawson further alleged that, after Ross found errors on paperwork that she had completed, he threw them at her while shouting expletives, which she claims caused her to have a stress-related seizure. As offensive as this conduct may be, there is no evidence that any of it was based upon Pawson’s gender, which is a requirement of a workplace sexual harassment claim. Moreover, the majority of Pawson’s gender-related allegations involve occasional derogatory comments that Ross made about other female coworkers; the few comments that Ross did allegedly direct at Pawson amount to “isolated remarks or occasional episodes of harassment,” which do not support the existence of a sexually hostile or abusive work environment.

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. 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.

Finally, plaintiff Mary Buban alleged that Ross would call her by insensitive nicknames, occasionally referring to her as “Blondie” and “Money Bunny” during the year that she worked at LR. Unlike her coworkers, Buban testified that, on one occasion, Ross made inappropriate physical contact with her when he “swatted [her] on the butt” with papers that he was holding. Buban further testified that, a few days later, Ross jokingly told her that “[i]f [she] didn’t work better … he was going to bring his paddle from home” and, on three or four subsequent occasions, he stood in the doorway of her office and made spanking motions with his hands. While we recognize that there are circumstances in which a few extraordinarily severe instances of sexual harassment can establish a hostile and abusive work environment, Ross’ alleged conduct toward Buban—although certainly reprehensible—simply does not meet the standard of egregiousness and depravity that is contemplated by case law. …

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.

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