In Kaplan v. NYC Dept. of Health and Mental Hygiene (NY Sup. Ct. Kings Cty. Index No. 506658-2013), the court dismissed plaintiff’s sexual harassment and retaliation claims – asserted under the NYC Human Rights Law – arising from a male boss’s masturbating in front of his female subordinate.
Plaintiff alleged that, at the beginning of a training session she was directed to attend by defendant, and alleged masturbater/harasser, Dmitry Shapsis,
Shapsis appeared to be leering and ogling [the presenter’s] legs during the beginning of the training session. As the training session continued, Plaintiff looked to her right to see Shapsis rubbing his hand back and forth over his groin and inner thigh. Shapsis was making grunting noises of an sexual nature while he continued to rub his hand back and forth over his groin and inner thigh. Plaintiff was shocked to see her supervisor, Shapsis, rubbing his groin and inner thigh while making sexual grunting sounds.
In response, plaintiff became “repulsed and unwilling to continue to sit next to her supervisor … while he allegedly appeared to be masturbating.” She alleged that two weeks after she complained about this event, her employer fired her.
Plaintiff sued, alleging sexual harassment and retaliation under the New York State and City Human Rights Laws. The court, however, dismissed plaintiff’s complaint against both defendants.
Initially, the court held that plaintiff failed to state a claim for sexual harassment:
Plaintiff has failed to show that Defendant Shapsis[‘] behavior was ‘severe and pervasive’ under a claim for [discrimination under the] New York State Human Rights Law[.] Plaintiff has also failed to show that Defendant Shapsis’s alleged actions fell between ‘severe and pervasive’ on one hand and a ‘petty slight or trivial inconvenience’ on the other pursuant to [the] New York City Human Rights Law[.]
This Court finds that Plaintiff was not treated differently because of her sex since she was simply present while Defendant Shapsis allegedly engaged in conduct that Plaintiff perceived as masturbatory. Plaintiff does not claim that the single incident of alleged conduct was directed toward her. She also does not allege a single additional instance of behavior by Defendant Shapsis. Thus, this Court finds that the conduct alleged by Plaintiff was not ‘severe and pervasive’. It is nothing more than a trivial inconvenience.
Next, the court dismissed plaintiff’s retaliation claim, citing emails which “acknowledge that the Plaintiff requested a transfer from her employment agency and that the employment agency notified NYCHMH that Plaintiff would not be returning”, and which “refute Plaintiff’s statement that she was terminated.”
Finally, the court dismissed plaintiff’s claims against Shapsis, on the ground that he was improperly served. Plaintiff attempted to use the “affix and mail” method of service “without first attempting to serve Defendant Shapsis at his place of business, the location of which was clearly within the knowledge of Plaintiff.”