                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 31, 2016                     521237
________________________________

DEBBI PAWSON et al.,
                    Appellants-
                    Respondents,
      v
                                             MEMORANDUM AND ORDER
THOMAS J. ROSS et al.,
                    Respondents-
                    Appellants.
________________________________


Calendar Date:   February 8, 2016

Before:    McCarthy, J.P., Egan Jr., Rose, Devine and Clark, JJ.

                              __________


      Law Office of Ronald L. Kim, PC, Saratoga Springs (Ronald
L. Kim of counsel), for appellants-respondents.

      Breedlove & Noll, LLP, Queensbury (Carrie McLoughlin Noll
of counsel), for respondents-appellants.

                              __________


Rose, J.

      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
Ross, LLP (hereinafter LR), an accounting firm – jointly
commenced this action alleging, among other things, that the
sexually harassing conduct of defendant Thomas J. Ross, the sole
owner of LR, subjected them to a hostile work environment in
violation of the Human Rights Law (see Executive Law § 296 [1]).
Defendants ultimately moved for, among other things, summary
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judgment dismissing the complaint, and plaintiffs cross-moved for
certain other relief. Supreme Court denied defendants' motion
for summary judgment insofar as it sought dismissal of the
complaint against Ross and LR, granted it in all other respects
and denied plaintiffs' cross motion. This cross appeal ensued.

      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 Sys.,
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]).
                              -3-                521237

      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 (see Matter of Rensselaer County Sheriff's Dept. v New York
State Div. of Human Rights, 131 AD3d 777, 778 [2015], lv denied
26 NY3d 1128 [2016]; Suriel v Dominican Republic Educ. &
Mentoring Project, Inc., 85 AD3d 1464, 1466 [2011]). 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 (Clauberg v State of New
York, 95 AD3d at 1387 [internal quotation marks, brackets and
citations omitted]; accord Ferrer v New York State Div. of Human
Rights, 82 AD3d 431, 431 [2011]).

      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 Sys., 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
                              -4-                521237

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
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
(compare Tomka v Seiler Corp., 66 F3d 1295, 1302, 1305-1306 [2d
Cir 1995] [rape], and San Juan v Leach, 278 AD2d 299, 299-300
[2000] [while on a business trip together, supervisor entered the
plaintiff's hotel room, climbed into her bed and attempted to
kiss and touch her; on another occasion he exposed and fondled
his genitals], with Quinn v Green Tree Credit Corp., 159 F3d 759,
768 [2d Cir 1998] [supervisor deliberately touched the
plaintiff's breasts with papers he was holding], and Hernandez v
Kaisman, 103 AD3d 106, 114 [2012] [supervisor deliberately
touched the plaintiff's rear end and told her she should tighten
it up]).

      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.
                              -5-                  521237

     McCarthy, J.P., 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.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
