Plaintiff in this action alleges she sustained damages arising out of her employment with the defendant Board of Education of the East Rochester Union Free School District ("School District").

In the first cause of action of her Complaint she claims that a "hostile and toxic work environment" caused her to sustain anxiety and depression, resulting in "pain and suffering" that caused damages in the amount of $30,000.00.

In the second cause of action the plaintiff alleges that she was "wrongfully terminated from her three-year employment contract" and seeks back pay and lost vacation and sick time days in the amount of $14,484.00.

The defendant, in lieu of serving an Answer, has moved to dismiss the entire Complaint pursuant to CPLR Rule 3211(a)(1)—a defense founded upon documentary evidence—and Rule 3211(a)(7)—failure to state a cause of action.

The standards for deciding a motion pursuant to CPLR Rule 3211 are well-established.

"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see CPLR 3026). The facts as alleged in the complaint are accepted as true, and the plaintiff is to be accorded the benefit of every possible favorable inference and determine only [*2]whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88, 638 NE2d 511, 513 [1994]).

"Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Leon v. Martinez at 88, citing to Heaney v. Purdy, 29 NY2d 157).

"In assessing a motion under CPLR 3211(a)(7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." (Leon v. Martinez at 88, citing Guggenheimer v. Ginzburg, 43 NY2d 268, 275).

Moreover, "[w]here evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (Minovici v Belkin BV, 109 AD3d 520, 521-22 [2d Dept 2013]).

Any facts in the complaint and submissions in opposition to the motion to dismiss are accepted as true, and the benefit of every possible favorable inference is afforded to the plaintiff (Gibraltar Steel v Gibraltar Metal Proc., 19 AD3d 1141, 1142 [4th Dept 2005])

Plaintiff claims that lewd and vulgar behavior on the part of employees in her office at the School District, and on the part of the district superintendent and assistant superintendent, created for her a "hostile work environment" based on her sex.

The claim fails.

Under Executive Law § 296 ^[FN1] , "a hostile work environment exists where 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" (Clarke v Metro. Transp. Auth., 151 AD3d 692, 694 [2d Dept 2017]; see further Croci v Town of Haverstraw, 146 AD3d 748, 749 [2d Dept 2017], lv to appeal denied, 29 NY3d 907, 80 NE3d 404 [2017]).

"Various factors, such as frequency and severity of the discrimination, whether the allegedly discriminatory actions were threatening or humiliating or a mere offensive utterance, and whether the alleged actions unreasonably interfere with an employee's work are to be considered in determining whether a hostile work environment exists . The allegedly abusive conduct must not only have altered the conditions of employment of the employee, who subjectively viewed the actions as abusive, but the actions must have created an "objectively hostile or abusive environment—one that a reasonable person would find to be so" (Clarke at 694 [citations and internal quotation marks omitted]).

Moreover, in order to constitute discrimination, the complained of conduct must be "gender-based" and directed at the plaintiff (Pawson v Ross, 137 AD3d 1536, 1538 [3d Dept 2016]).

Here, the plaintiff complains that her co-worker Shelly Whyte and the Asst [*3]Superintendent David Green told her "salacious stories" (on one occasion relating that he had resolved a dispute with his wife and that the "resulting make-up sex was great").

"Salacious" is defined by the Merriam-Webster dictionary as "arousing or appealing to sexual desire or imagination."

Other office personnel, including the Superintendent Dr. Mark Linton engaged in unspecified "vulgar behavior."

The plaintiff also claims she is a "religious person" who "frowns on anyone taking the Lord's name in vain," which Whyte did "all the time."

She states that she complained to a direct supervisor, who told her to "deal with it," since the district superintendent and assistant superintendent "contributed to it," meaning the vulgar behavior.

Co-worker Whyte also directed the "f___" word at the plaintiff, which caused her to retreat to the ladies room and cry remaining there until she had "recovered her composure."

Thus, the plaintiff paints a picture of a deplorable and disappointing (for a school district) work environment, awash in sexually tinged language and story-telling, which the plaintiff found deeply offensive.

Unfortunately for her claim however, she relates no details that allow the conclusion that the stories are specifically "gender-based" and directed at her. Vulgar behavior alone is not actionable (see Pawson v Ross, 137 AD3d 1536, 1538 [3d Dept 2016]).

Nor does the frequency of the vulgar and lewd references, even if directed at the plaintiff on account of her gender, rise to the level of "pervasive."^[FN2] The conduct of the employees in the office of the Superintendent of East Rochester school—although by today's standards is reprehensible and utterly out of place—does not meet the standard of egregiousness and depravity that is contemplated by case law (compare Tomka v. Seiler Corp., 66 F3d 1295, 1302, 1305-1306 [2d Cir.1995] [rape]; San Juan v. Leach, 278 AD2d 299, 299-300 [2nd Dept 2000] [while on a business trip together, supervisor entered the plaintiff's hotel room, climbed into her bed and attempted to kiss and touch her; on another occasion he exposed and fondled his genitals]; Quinn v. Green Tree Credit Corp., 159 F3d 759, 768 [2d Cir1 998] [supervisor deliberately touched the plaintiff's breasts with papers he was holding]; Hernandez v. Kaisman, 103 AD3d 106, 114 [2nd Dept 2012] [supervisor deliberately touched the plaintiff's rear end and told her she should tighten it up]).

Accordingly, the defendants' motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the First Cause of Action is granted.

New York does not recognize a cause of action for unfair discharge. It is well established that, "where an employment is for an indefinite term it is presumed to be a hiring at will which may be freely terminated by either party at any time for any reason or even for no reason," (Murphy v. American Home Prods. Corp., 58 NY2d 293, 300 [1983]; Wieder v Skala, 80 NY2d 628, 631 [1992].

The fact that compensation is measured by a specific period of time does not necessarily render the employment a hiring for a specific term (Tyson v. Hess, 109 AD2d 1069 [4th Dept 1985]).

However, where the terms of the agreement are ambiguous, or the documentary evidence [*4]does not resolve the ambiguity, the motion must be denied and parol evidence can be received to resolve issues of fact. TSR Consulting Services, Inc. v Steinhouse, 267 AD2d 25, 27-28 [1st Dept 1999] [contract provisions referencing first and second years of employment held consistent with two-year definite term of employment].

The issue is whether the terms in the "Employment Contract" (Exhibit B), which provided the defendant with a " 2016-2017 base salary of $51,000 per year as Assistant Treasurer (which) shall (emphasis added) be increased by 3.5% on July 1 of 2017 and 2018, and the Employee shall work an 1860 hour work year," is sufficiently ambiguous that it could reasonably be interpreted as a period of employment of a fixed duration.

The phrasing of the contract periods, and especially the use of the word "shall" repeatedly throughout the contract when referring to the duration of employment and the terms of vacation and sick days, is consistent with a "hiring for a definite period, as opposed to an employment at will" (id.).

By the same token, the contract terms are not so clear as to "render this interpretation the only one possible" (id.). Thus, the contract is ambiguous, and parol evidence is admissible to determine the intent of the parties (see also Myers v Coradian Corp., 92 AD2d 643, 644 [3d Dept 1983]: "Although fact that plaintiff's salary was fixed on annual basis does not alone establish durational period for employment, references to review after six months and entitlement to vacation can reasonably be construed as evidence of intent that hiring be for at least certain period of time—Since agreement is ambiguous, factual issues exist, precluding summary judgment").

Accordingly, the motion to dismiss the Second Cause of Action is denied.

This constitutes the DECISION of the Court.