IN RE: Frank MACKSEL

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Frank MACKSEL, petitioner, v. RIVERHEAD CENTRAL SCHOOL DISTRICT, respondent.

Decided: December 22, 2003

FRED T. SANTUCCI, J.P., DANIEL F. LUCIANO, ROBERT W. SCHMIDT, and THOMAS A. ADAMS, JJ. Vitale and Levitt, P.C., Melville, N.Y. (Paul E. Levitt of counsel), for petitioner. Ingerman Smith, LLP, Northport, N.Y. (Deborah Richardson De Cuevas of counsel), for respondent.

Proceeding pursuant to CPLR article 78 to review a determination of the Riverhead Central School District dated January 8, 2002, which, after a hearing, found that the petitioner committed misconduct pursuant to Civil Service Law § 75 and terminated his employment as a bus driver.

ADJUDGED that the petition is granted, on the law, with costs, and the determination is annulled.

 Hostile work environment sexual harassment exists when “the workplace is permeated with ‘discriminatory intimidation, ridicule and insult’ that is sufficiently severe or pervasive to alter the terms or conditions of employment” (Vitale v. Rosina Food Prods., 283 A.D.2d 141, 143, 727 N.Y.S.2d 215, quoting Harris v. Forklift Sys., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295;  see Espaillat v. Breli Originals, 227 A.D.2d 266, 642 N.Y.S.2d 875).   Whether a workplace may be viewed as hostile or abusive can be determined only by considering the totality of the circumstances (see Harris v. Forklift Sys., supra;  Matter of Father Belle Community Ctr. v. New York State Div. of Human Rights, 221 A.D.2d 44, 642 N.Y.S.2d 739).  “Isolated remarks or occasional episodes of harassment will not support a finding of a hostile or abusive work environment” (Matter of Father Belle Community Ctr. v. New York State Div. of Human Rights, supra at 51, 642 N.Y.S.2d 739).

 Here, the petitioner's conduct was not so pervasive as to permeate the workplace and alter the conditions of employment for the two female complainants.   Although both complainants testified that they were afraid of and felt uncomfortable around the petitioner, there was no evidence presented that his conduct interfered with their work performance.   To the contrary, the complainants did not miss work after the subject incidents occurred, and continued to interact voluntarily with the petitioner.

 Moreover, both women failed to communicate the unwelcomeness of the conduct by words or action (see Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49;  Matter of Bartle v. Mercado, 235 A.D.2d 651, 652 N.Y.S.2d 139).   Accordingly, the respondent's determination was not supported by substantial evidence (see Matter of Purdy v. Kreisberg, 47 N.Y.2d 354, 358, 418 N.Y.S.2d 329, 391 N.E.2d 1307).

In view of our determination, it is unnecessary to reach the issue of whether the penalty imposed was so disproportionate to the charges so as to be shocking to one's sense of fairness.

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