Hernandez v. Kaisman

103 A.D.3d 106, 957 N.Y.S.2d 53

This text of 103 A.D.3d 106 (Hernandez v. Kaisman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hernandez v. Kaisman, 103 A.D.3d 106, 957 N.Y.S.2d 53 (N.Y. Ct. App. 2012).

Opinion

OPINION OF THE COURT

Mazzarelli, J.P.

Plaintiffs, all women, worked for defendant and another doctor, in their medical office. Plaintiff Hernandez was employed in defendant’s office from January 2006 through December 2006, as a medical clerk, and then as an assistant office manager. Plaintiff Herarte was employed by defendant as a medical clerk for over three years. Plaintiff Stern began working in the office as a physician’s assistant in June 2003.

Plaintiffs allege that, in violation of the New York State Human Rights Law (State HRL) (Executive Law § 296) and the New York City Human Rights Law (City HRL) (Administrative Code of City of NY § 8-107), defendant created a sexually hostile work environment in the office. Most of the incidents of which they complain occurred in the latter half of 2006, at which time plaintiffs left defendant’s employ. The focus of plaintiffs’ complaint is on a series of emails sent by defendant in October and November 2006 containing what plaintiffs describe as offensive and obscene material.

The first of these emails was sent to all three plaintiffs as well as other male and female employees. The body of the email read, “This is hysterical. Do not listen if u are potentially offended,” and attached an audio clip of a lecture given by a “professor” on the many uses of the word “Fuck,” including its sexual connotation.

The second email was sent to all three plaintiffs as well as other male and female employees, and was titled “How to choose your holiday turkey.” It attached a video of volunteers on a hidden camera style show who had been blindfolded and asked to feel what they thought were Butterball turkeys. The camera ultimately revealed that the subjects were actually feeling the naked buttocks of a man.

The third email contained a moving image of a snow sculpture in the shape of a penis “ejaculating” snow balls. The body of the email read “You know how every winter we have everybody send the snowball email thing out to everybody. Well this is pay[109]*109backs for all that crap they have sent out to me. PS Don’t send it back to me!!!!” The email also instructed that “you have been hit with a snow ball” and urged the viewer to send the email on to others.

The fourth email was sent to plaintiffs Hernandez and Herarte, as well as other male and female employees, and was titled “Birthday Vibrator.” The email attached a scene from the R-rated 2001 movie “Not Another Teen Movie,” in which a girl attempts to masturbate with a large vibrator under her bed covers on her birthday and her family enters her room with a birthday cake. The scene ends with the vibrator landing in the cake and splattering cake on everyone.

The fifth email was sent to plaintiff Hernandez as well as other male and female employees and was titled “The Perfect Woman.” It attached an image of a headless female body with two pairs of legs.

In addition to the emails, plaintiffs further alleged that defendant told Hernandez that she should get breast implants and offered to take her to a doctor who could perform the procedure; that defendant pointed out to Hernandez on one occasion that her underwear was exposed but told her that she should not have adjusted her pants because he had been “enjoying” himself; that defendant placed whipped cream on the side of his mouth and asked Hernandez if “this looked familiar”; that defendant referred to himself as “pimp Kaisman”; that defendant repeatedly told Herarte that she needed to lose weight; that defendant once touched Herarte’s rear end and told her she needed to “tighten it up”; that defendant attempted to get Herarte to socialize with his male friends despite her refusal; that Stern found condoms placed by defendant in a drawer that was accessible to all employees; that all the plaintiffs were aware that defendant took females, including other female employees, into rooms for extended periods of time; that defendant often spoke in public about his affinity for women with large breasts; that defendant frequently walked around the office in only long johns and a tee shirt; and that defendant showed Hernandez and Herarte a pen holder which was a model of a person and in which the pen would be inserted into its “rectum.”

Defendant moved for summary judgment dismissing plaintiffs’ claims under the State HRL and the City HRL. He argued that plaintiffs’ claims for hostile work environment under the State HRL should be dismissed because the evidence failed to satisfy the “severe and pervasive” standard required for a claim, and [110]*110because no reasonable jury could find that plaintiffs perceived the environment to be hostile or abusive on account of their gender. He also asserted that the evidence showed that none of plaintiffs’ employment was altered as a result of any alleged harassment and that plaintiffs could not demonstrate that they were treated differently from male employees or that the alleged conduct occurred because of their sex. Acknowledging the relaxed standard under the City HRL, defendant asserted that the evidence was nevertheless inadequate to prove a violation of the statute.

In opposition, plaintiffs argued that defendant committed numerous perverted actions between September 2006 and December 2006 which were directed at women and derogatory in nature, thereby creating a hostile work environment. They further claimed that defendant’s acts were clearly gender based and were subjectively intolerable to plaintiffs. They added that the totality of the circumstances demonstrated that the conduct alleged was so pervasive as to create an objectively hostile work environment. Plaintiffs separately contended that the court was required to resolve all issues of fact in their favor and that defendant’s actions interfered with their ability to perform their jobs and forced them to leave the office.

The court granted defendant’s motion, finding that the evidence did not support plaintiffs’ hostile environment claim under the State HRL since much of the complained-of conduct was directed at both the men and the women in the office and could be perceived as offensive to people of either sex (2011 NY Slip Op 31182[U] [2011]). It further found that the conduct directed specifically at the plaintiffs due to their gender was too sporadic to rise to an actionable level.

The motion court observed that plaintiffs did not miss work due to defendant’s behavior and that their salaries were not impacted. The court concluded that, even considering the totality of the circumstances in a light most favorable to plaintiffs, a reasonable person could not find that plaintiffs were subjected to a hostile work environment because they had only been exposed to “mere offensive utterance[s]” on several occasions, as opposed to pervasive, ongoing harassment (id. at *12). In that regard, the court remarked that while Herarte and Stern worked for defendant for over three years, the emails were sent over a one-month time period and defendant’s other behavior was sporadic.

As for the comments defendant made to Hernandez about her breasts and her buttocks, the court found that they were not so [111]*111extraordinarily severe as to sustain a claim. The court also found that much of what plaintiffs stated about defendant’s alleged sexual behavior with other employees and visitors was seconder third-hand and did not amount to a change in the terms of plaintiffs’ employment.

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Bluebook (online)
103 A.D.3d 106, 957 N.Y.S.2d 53, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hernandez-v-kaisman-nyappdiv-2012.