                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 29, 2015                    520090
________________________________

KAREN MINCKLER,
                     Appellant,
     v                                       MEMORANDUM AND ORDER

UNITED PARCEL SERVICE, INC.,
   et al.,
                    Respondents.
________________________________


Calendar Date:    September 18, 2015

Before:   Garry, J.P., Rose, Lynch and Devine, JJ.

                              __________


      Eisenberg & Baum, LLP, New York City (Sagar Shah of
counsel), for appellant.

      Day Pitney, LLP, Stamford, Connecticut (Basil C. Sitaras of
counsel), for respondents.

                              __________


Lynch, J.

      Appeal from an order of the Supreme Court (Muller, J.),
entered January 10, 2014 in Clinton County, which granted
defendants' motion for summary judgment dismissing the complaint.

      In 1992, plaintiff began working as an administrative clerk
with defendant United Parcel Service, Inc. (hereinafter UPS) at
its customs office located in the Town of Champlain, Clinton
County. Plaintiff worked in the office with a number of people,
including defendant Alan Jackson, and she was supervised by Sara
Armes. In October 2010, plaintiff filed a formal complaint
alleging workplace harassment, and she resigned in November 2010.
In January 2011, she commenced this action alleging, among other
things, that defendants subjected her to sexual harassment in the
                              -2-                520090

workplace, discriminated against her based on her gender,
retaliated against her after she voiced her complaints and
intentionally inflicted emotional distress upon her and that, as
a result, she was forced to resign. Plaintiff also asserted a
claim for assault and battery against Jackson. Following joinder
of issue, defendants moved for summary judgment dismissing the
complaint. Supreme Court granted the motion and plaintiff now
appeals.

      Initially, and mindful that "no valid purpose is served by
submitting to a jury a cause of action that cannot survive as a
matter of law" (Forrest v Jewish Guild for the Blind, 3 NY3d 295,
306 [2004]), we agree with Supreme Court that because UPS
demonstrated that plaintiff did not establish every element of
intentional discrimination, it was entitled to summary judgment
dismissing plaintiff's cause of action based on a hostile work
environment due to sexual harassment (see id. at 305). A party
alleging the existence of a sexually hostile work environment
must demonstrate that "'the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment'"
(Forrest v Jewish Guild for the Blind, 3 NY3d at 310, quoting
Harris v Forklift Systems, Inc., 510 US 17, 21 [1993]). To
determine whether a hostile work environment exists, we must
consider "all the circumstances, including 'the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work
performance'" (Forrest v Jewish Guild for the Blind, 3 NY3d at
310-311, quoting Harris v Forklift Systems, Inc., 510 US at 23).
The test is both subjective and objective; that is, a plaintiff
must demonstrate that the conditions of his or her employment
were altered as a result of the conduct he or she perceived to be
abusive and that the conduct 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).

      Here, the 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,
                              -3-                520090

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."

      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,2 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 (see Hernandez v Kaisman,
103 AD3d 106, 114 [2012]; Alfano v Costello, 294 F3d 365, 379
[2002] [collecting cases]). With the exception of the bra strap,
hair pulling and lubricant incidents in September 2009, February


    1
        Jackson is homosexual and plaintiff is heterosexual.
Plaintiff testified that Jackson first called her the name after
she said that a female television personality was beautiful.
    2
        By their testimony, Jackson, a coworker and Armes each
either denied the conduct or claimed that plaintiff was either a
willing participant or the perpetrator of the allegedly offensive
conduct.
                              -4-                520090

2010 and August 2010, respectively, plaintiff does not allege any
physical contact. Without minimizing the impropriety of
Jackson's workplace behavior,3 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 (see Forrest v Jewish Guild
for the Blind, 3 NY3d at 312).

      Next, we agree with Supreme Court's determination that UPS
was entitled to summary judgment dismissing plaintiff's
retaliation claim. On this cause of action, plaintiff alleged
that UPS retaliated against her for filing a complaint in October
2010. A valid claim for retaliation under the Human Rights Law
exists where a party demonstrates "that (1) [he or] she has
engaged in protected activity, (2) [his or] her employer was
aware that [he or] she participated in such activity, (3) [he or]
she suffered an adverse employment action based upon [his or] her
activity, and (4) there is a causal connection between the
protected activity and the adverse action" (Forrest v Jewish
Guild for the Blind, 3 NY3d at 312-313). Plaintiff testified
that after UPS's human resources designee arrived in the office
to investigate her complaint on October 26, 2010, her part-time
hours were reduced "enough to notice," but not less than her
guaranteed minimum weekly hours. She further testified that her
request to be moved to a different location was denied and that
the workplace was intolerable because "everyone was [in]furiated


    3
        Our finding that the alleged conduct fails to meet the
"severe and pervasive" standard does not equate to a finding that
Jackson's conduct would not violate UPS's professional conduct
and workplace harassment policy.
                              -5-                520090

with her," she "got the look of death" from Armes, nobody would
say anything to her and she had to seek assistance to access her
computer because Jackson changed her password. On November 12,
2010, plaintiff's counsel wrote to UPS's human resources manager
to advise that plaintiff was resigning "due to the intolerable
working conditions imposed upon her," citing the conduct that she
alleges created a hostile work environment. In our view, Supreme
Court properly granted summary judgment to defendants 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
(see Balsamo v Savin Corp., 61 AD3d 622 [2009]).

      Defendants also sought dismissal of plaintiff's assault and
battery cause of action arising from the 2009 bra strap and 2010
hair pulling incidents. To succeed on their motion for summary
judgment, defendants were required to demonstrate that Jackson
"did not intentionally place plaintiff in apprehension of
imminent harmful or offensive contact, and did not intentionally
engage in offensive bodily contact without plaintiff's consent"
(Guntlow v Barbera, 76 AD3d 760, 766 [2010], appeal dismissed 15
NY3d 906 [2010]). We agree with Supreme Court that the 2009
incident was time-barred (see CPLR 215 [3]; Williams v CVS
Pharmacy, Inc., 126 AD3d 890, 891 [2015]). 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 (see Cicci
v Chemung County, 122 AD3d 1181, 1183 [2014], lv dismissed and
denied 25 NY3d 1062 [2015]), we disagree with Supreme Court and
find that an issue of fact exists as to plaintiff's assault and
battery claim against Jackson (see id.; Guntlow v Barbera, 76
AD3d at 766).
                              -6-                  520090

     Garry, J.P., Rose and Devine, JJ., concur.



      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as granted defendants' motion
for summary judgment dismissing the fourth cause of action
alleging assault and battery by defendant Alan Jackson; motion
denied to that extent; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
