The opinion of the court was delivered by: Mazzarelli, J.p., J.
Decided on December 27, 2012
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Peter Tom,J.P. Angela M. Mazzarelli David B. Saxe James M. Catterson Leland G. DeGrasse, JJ.
Plaintiffs appeal from the order of the Supreme Court, New York County (Debra A. James, J.), entered April 19, 2011, which granted defendant's motion for summary judgment dismissing the cause of action alleging violations of the New York State and City Human Rights Laws. Fred Lichtmacher, New York, for appellants. Alan G. Serrins, New York, for respondent. 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 (Executive Law § 296) (State HRL) and New York City Human Rights Law (Administrative Code of the City of New York § 8-107) (City HRL), 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 paybacks 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 ...