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Hernandez v. Kaisman

Supreme Court of New York, First Department

December 27, 2012

Yahaira Hernandez, et al., Plaintiffs-Appellants,
v.
Dr. Arden Kaisman, Defendant-Respondent.

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.

Peter Tom, J.P. Angela M. Mazzarelli David B. Saxe James M. Catterson Leland G. DeGrasse, JJ.

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 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 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 because 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 ...


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