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Plaintiff’s Allegations of a Hostile Work Environment and Retaliation Were Not Sufficient As a Matter of Law

The Third Department determined that plaintiff’s action against her employer (UPS) alleging sexual harassment, rising to the level of a hostile work environment, and retaliation for complaining about it, was properly dismissed. Although the complaint alleged several instances of crude and improper language and physical contact, the allegations did not, as a matter of law, describe a “hostile work environment.” Nor were the allegations of retaliation sufficient as a matter of law:

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'” … . 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'” … . 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 … . * * *

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”… . Minckler v United Parcel Serv., Inc., 2015 NY Slip Op 07882, 3rd Dept 10-29-15

 

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