Opinion
356 TP 15-01013.
04-29-2016
In the Matter of Kathleen M. GORDON, Petitioner, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION and New York State Division of Human Rights, Respondents.
Kathleen M. Gordon, Petitioner Pro Se. Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of Counsel), for Respondent New York State Department of Corrections and Community Supervision. Caroline J. Downey, General Counsel, Bronx, for Respondent New York State Division of Human Rights.
Kathleen M. Gordon, Petitioner Pro Se.
Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of Counsel), for Respondent New York State Department of Corrections and Community Supervision.
Caroline J. Downey, General Counsel, Bronx, for Respondent New York State Division of Human Rights.
PRESENT: CENTRA, J.P., CARNI, DeJOSEPH, CURRAN, AND SCUDDER, JJ.
MEMORANDUM: Petitioner commenced this proceeding pursuant to CPLR article 78 and Executive Law § 298 seeking to annul the determination of respondent New York State Division of Human Rights (SDHR), after a hearing, dismissing her complaint alleging unlawful discrimination and a hostile work environment. Petitioner is a correction officer with respondent New York State Department of Corrections and Community Supervision (DOCCS). We conclude that SDHR's determination is supported by substantial evidence and thus must be confirmed (see generally Matter of State Div. of Human Rights [Granelle], 70 N.Y.2d 100, 106, 517 N.Y.S.2d 715, 510 N.E.2d 799 ). “To establish a prima facie case of employment discrimination, petitioner was required to demonstrate that she was a member of a protected class, that she was qualified for her position, that she was terminated from employment or suffered another adverse employment action, and that the termination or other adverse action ‘occurred under circumstances giving rise to an inference of discriminatory motive’ ” (Matter of Lyons v. New York State Div. of Human Rights, 79 A.D.3d 1826, 1827, 913 N.Y.S.2d 586, lv. denied 17 N.Y.3d 707, 2011 WL 3925225, quoting Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 306, 786 N.Y.S.2d 382, 819 N.E.2d 998 ). Here, SDHR's determination that petitioner was not subjected to adverse employment action is supported by substantial evidence. Any change in petitioner's assigned posts at the workplace did not constitute “a materially adverse change in the terms and conditions of employment” (Forrest, 3 N.Y.3d at 306, 786 N.Y.S.2d 382, 819 N.E.2d 998 ; see Ponterio v. Kaye, 25 A.D.3d 865, 869, 808 N.Y.S.2d 439, lv. denied 6 N.Y.3d 714, 816 N.Y.S.2d 750, 849 N.E.2d 973 ). With respect to the formal counseling that petitioner received with regard to an incident, petitioner admitted that it did not constitute a form of discipline. In any event, petitioner failed to demonstrate that any allegedly adverse employment actions “occurred under circumstances giving rise to an inference of discrimination” (Forrest, 3 N.Y.3d at 308, 786 N.Y.S.2d 382, 819 N.E.2d 998 ; see Matter of Jackson v. Buffalo Mun. Hous. Auth., 81 A.D.3d 1271, 1272, 916 N.Y.S.2d 437 ). We further conclude that SDHR's dismissal of petitioner's claim of a hostile work environment is supported by substantial evidence (see Matter of Ozolins v. New York State Dept. of Correctional Servs., 78 A.D.3d 1591, 1591, 910 N.Y.S.2d 728 ). “Under the Human Rights Law, an ‘employer cannot be held liable for an employee's discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it’ ” (matteR of new yOrk StatE div. Of human rightS v. abs eLECS., inc., 102 A.D.3d 967, 968, 958 N.Y.S.2d 502, lv. denied 24 N.Y.3d 901, 2014 WL 4357465, quoting Matter of Totem Taxi v. New York State Human Rights Appeal Bd., 65 N.Y.2d 300, 305, 491 N.Y.S.2d 293, 480 N.E.2d 1075, rearg. denied 65 N.Y.2d 1054, 494 N.Y.S.2d 1034, 484 N.E.2d 1056 ; see Vitale v. Rosina Food Prods., 283 A.D.2d 141, 143, 727 N.Y.S.2d 215 ). Here, petitioner failed to establish that DOCCS became a party to any discriminatory act. Rather, the record establishes that DOCCS “reasonably investigated complaints of discriminatory conduct and took corrective action” (Vitale, 283 A.D.2d at 143, 727 N.Y.S.2d 215 ).
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.