Opinion
Index No. 154724/2023 Motion Seq. No. 001
02-27-2024
JENNY HORNE, Plaintiff, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS, RESEARCH FOUNDATION OF THE CITY UNIVERSITY OF NEW YORK Defendant.
Unpublished Opinion
MOTION DATE 05/25/2023
PRESENT: HON. NICHOLAS W. MOYNE JUSTICE
DECISION + ORDER ON MOTION
Nicholas W. Moyne, Judge
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 11,42, 44, 45, 46, 47 were read on this motion to/for VACATE/ DECIStON/ORDER/JUDGMENT/AWARD. Upon the foregoing documents and discussion at oral argument, it is
Petitioner, Jenny Home, commenced this Article 78 special proceeding against respondents, the New York State Division of Human Rights ("DHR") and the Research Foundation of The City University of New York ("RFCUNY"), pursuant to New York Executive Law, Article 15, Section 298, seeking to (1) annul and reverse the Determination and Order After Investigation which found that there was no probable cause to believe that RFCUNY engaged in, or was engaging in, an unlawful discriminatory and retaliatory practices and/or retaliation; (2) refer the matter back to DHR for further proceedings, including an Administrative Hearing; and (3) awarding petitioner attorney's fees and costs. Petitioner filed a complaint with the DHR, alleging that RFCUNY unlawfully discriminated against her by denying her reasonable, accommodation request and that she was subjected to unlawful retaliation for having requested such an accommodation.
Respondent RFCUNY asserts that DHR, after conducting a thorough investigation and affording the petitioner the fair opportunity to participate in all stages of the proceeding, issued a finding of no probable cause to believe that RFCUNY's denial of petitioner's accommodation request to work remotely was unlawful discrimination or that RFCUNY had engaged in retaliatory conduct. RFCUNY asserts that as the finding of no probable cause was substantiated by the record as a whole, had a rational basis, and was not arbitrary or capricious, it should not be vacated.
Respondent DHR denies that the Determination and Order dismissing the complaint was arbitrary and capricious and has submitted the administrative record of its' proceeding with respect to the petitioner. However, DHR, in both its answer and during oral argument, asserted that as RFCUNY and the petitioner are the real parties in interest, it will not actively participate in this current proceeding and DHR specifically declined to actively participate in oral argument or defend its own order at oral argument.
Standard of Review:
The standard of judicial review in an Article 78 proceeding to challenge the determination of an agency, is whether the action was arbitrary and capricious; meaning, without sound basis in reason and generally taken without regard to the facts (Pell v Bd. of Ed. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 N.Y.2d 222, 231 [1974]). More specifically, where DHR renders a determination of no probable cause without holding a hearing, the appropriate standard of review is whether the probable cause determination was arbitrary and capricious or lacking a rational basis (Pastor v Partnership for Children's Rights, 159 A.D.3d 910, 911 [2d Dept 2018]).
DHR has broad discretion in determining the method to be employed in investigating a claim (Conte v City of New York Dept, of Sanitation (DSNY), 159 A.D.3d 640, 641 [1st Dept 2018]). Additionally, DHR's factual determinations are accorded substantial deference and the court may not substitute its judgment for that of the agency, even if a contrary decision might have been reasonable (White v New York State Div. of Human Rights (NYS DHR), 160 A.D.3d 448 [1st Dept 2018]; G.P. v N.Y. Slate Div. of Human Rights, 172 A.D.3d 639, 640 [1st Dept 2019]). The findings of facts on which such order is based shall be conclusive if supported by sufficient evidence on the record considered as a whole (see Executive Law § 298). However, where there was no hearing, DHR may dismiss a complaint only if it appears that virtually as a matter of law the complaint lacks merit (Matter of Robertson v State, 240 A.D.2d 504 [2d Dept 1997]). Probable cause of unlawful discriminatory practice exists when, after giving full credence to the complainant's version of the events, there is some evidence of unlawful discrimination (id). Accordingly, DHR's determination of "no probable cause" will not be set aside unless it is found to be arbitrary or capricious (Matter of McFarland v New York State Div. of Human Rights, 241 A.D.2d 108, 112 [1st Dept 1998]).
Discussion:
Reasonable Accommodation Claim:
DHR's determination was based on the following, "[i]t is an unlawful discriminatory practice for an employer to refuse to provide reasonable accommodations to an employee's disabilities. An employer must move forward to consider an accommodation once the need for accommodation is known or requested and may require the employee to provide sufficient supporting medical documentation prior to granting the accommodation request when the disability and need for accommodation are not obvious. The employer does not have to grant a specific accommodation requested by the employee, as long as the employer works with the employee to come up with an effective accommodation. The employer may choose, from among the available effective accommodations, which accommodation the employer will provide" (.see NYSCEF Doc. No. 13). DHR found that, "[a] review of the evidence in the record does not support a probable cause finding that [r]esponden's decision to deny her accommodation request to work remotely from home full-time was an act of unlawful discrimination under the Human Rights Law" (id.).
Petitioner challenges this finding, alleging that despite setting forth all the requirements of a claim, DHR found that there was no probable cause to believe that RFCUNY. engaged in discrimination when it denied her request for a reasonable accommodation of working remotely. Petitioner contends that DHR's finding of no probable cause for this claim was arbitrary and capricious as DHR ignored or disregarded facts that were provided in the record, DHR ignored that RFCUNY failed to engage in an interactive process, and DHR failed to consider that RFCUNY had not met its burden of showing that it would suffer an undue hardship. In opposition to the instant motion, petitioner also claims that this disregard of evidence shows the investigation was "one-sided." Specifically, petitioner asserts that DHR's findings that (I) petitioner provided no new medical information to support her request to work remotely exclusively; and (2) the only option offered for review was the accommodation request to work remotely full-time and that she provided no other alternatives as an accommodation, are without a rational basis and belied by the facts in the record.
DHR's finding of no probable cause was based on petitioner's failure to meet her burden of first establishing entitlement and offering a reasonable accommodation. As this finding had a rational basis in the record, the Court need not review the issues of undue hardship and/or the alleged failure to engage in the good-faith interactive process (see Town of Hempstead v New York State Div. of Human Rights, 215 A.D.3d 973, 977 [2d Dept 2023] [the employee bears the burden of proof on whether they are able to perform the duties of their job even with a reasonable accommodation and providing a reasonable accommodation]; see also Lazzari v New York City Dept, of Parks and Recreation, 751 Fed.Appx 100, 103 [2d Cir 2018| [The Court of Appeals held that the good faith interactive process is not an independent element of a disability discrimination analysis but is a factor to be considered in whether a reasonable accommodation was available; the plaintiff still has the burden of proving a reasonable accommodation]).
Respondent contends that DHR's determination should not be vacated because based on the evidence and arguments presented in the record, there was a rational basis to support DHR's findings. Respondent contends that DHR considered all facts and evidence that was provided in the administrative record and petitioner was afforded every opportunity to participate and present evidence during the investigation of her claims.
Medical Documentation:
DHR's determination was based on a finding that petitioner "provided no new medical information to support her request to work remotely full-time" (NYSCEF Doc. No. 13). Petitioner asserts that this finding is arbitrary and capricious as it is contrary to facts. Petitioner allegedly requested to continue to work remotely as an accommodation for her disability of thyroid disease, which causes her to have a BMI of 30. The record shows that in support of her initial accommodation request based on her disability', petitioner provided a doctor's note from September 14, 2021 (NYSCEF Doc. No. 5). Petitioner asserts that upon it requesting more information, she provided RFCUNY with updated and additional medical documentation via email and in the form of medical records from a doctor's visit on April 20, 2022, and another doctor's note from September 23, 2022 (see NYSCEF Doc. No. 4; 47). Petitioner asserts that DHR ignored this evidence and issued a finding that was therefore contrary to the facts.
This note includes that she has the condition of obesity with a BMI over 30, placing her at higher risk of a more severe infection from Covid 19, and recommended that "Jenny Horne be allowed to work from home as much as is possible within her required job duties" (NYSCEF Doc. No. 5).
However, contrary to petitioner's assertions, the record indicates that DHR had copies and considered the additional medical information in making its determination. The Final Investigation Report and Basis of Determination recites petitioner's allegations, including that she had provided respondent with the additional doctor's note and current medical records (see NYSCEF Doc. No. 13). Further, petitioner emailed the DHR investigator directly and included the additional submissions of medical information or documentation (NYSCEF Doc. No. 47). Therefore, the record shows that DHR's investigation was sufficient, and its determination rational, as petitioner had a full and fair opportunity to present her claim (Block v Gatling, 84 A.D.3d 445, 445 [1st Dept 2011]).
It would seem that petitioner misinterprets DHR's final factual finding on the medical documentation point. Upon a review of the record, it is clear that DHR's finding was not that petitioner had not provided any additional medical information at all. Rather, DHR found that petitioner had provided no new medical information which supported her request for a continued exclusive or full-time remote accommodation. In the Final Investigation Report and Basis of Determination, the Division noted that when asked by RFCUNY to provide updated medical information to justify her request to continue working remotely, complainant submitted no additional medical information as requested by respondent (NYSCEF Doc. No. 13). In responding to her accommodation request, RFCUNY indicated that the September 14, 2021, medical documentation was outdated and did not support that a 100% remote work arrangement was necessary to address her needs (see NYSCEF Doc. No. 19, Moro aff, exhibit H). In support of this contention, RFCUNY highlighted that her doctor's note stated she be allowed to work from home as much as possible within her required job duties (id.). The record shows that respondent requested additional medical information to assess petitioner's limitations and determine how to reasonably accommodate her in after petitioner declined the possibility of a temporary hybrid-schedule accommodation, in favor of a full-time remote schedule (id.). Petitioner then provided a note from the same doctor, dated September 23, 2022, which included the same information and recommendation that she work from home as much as possible within her required job duties (NYSCEF Doc. No. 47). The investigator noted that it was recommended but not required that she work remotely (NYSCEF Doc. No. 13). The record also shows that petitioner provided medical records from April 20, 2022, which include confirmation of her diagnoses of hypothyroidism and obesity but do not contain any information regarding any medically relevant restrictions resulting therefrom or requiring her to work from home (see NYSCEF Doc. No 4). While there may have been a different way for DHR to interpret the facts in the record before it, it cannot be said that the agency acted in an arbitrary and capricious manner (see Roberts v Gavin, 96 A.D.3d 669, 672 [1st Dept 2012]). Based on this information, DHR rationally concluded that petitioner had not provided any new medical information which supported her subsequent requests to continue to work remotely exclusively (see Imperial Diner, Inc. v State Human Rights Appeal Bd., 52 N.Y.2d 72, 79 [1980] [while the commissioner's . conclusion was not the only one that may have been drawn from the facts, it was a reasonable one and thus may not be side aside]).
Alternative Accommodations:
Additionally, DHR found that the "record shows that the only option complainant offered for respondent's review was the accommodation request to work remotely full-time. These documents show that complainant provided no other alternatives to respondent as an accommodation of her disability" (NYSCEF Doc. No. 13). Petitioner alleges that DHR ignored the fact that she had proposed two alternative accommodations, despite having repeated them directly to the investigator in response to his inquiry. Petitioner contends that this finding shows DHR's disregard of facts in the record and indicates that the investigation was abbreviated and one-sided.
However, a review of the record demonstrates that DHR did have in its possession, and considered, the alleged alternative accommodations in making its findings. The record reflects that petitioner repeatedly asked to continue to work remotely full-time as a reasonable accommodation of her disability (see NYSCEF Doc. No's. 6, 9; NYSCEF Doc. No. 19, Moro aff, exhibits G, H). Petitioner asserts that she proposed alternative accommodations, which included a temporary accommodation of working remotely until June, at which point the accommodation could be re-evaluated based on Covid numbers, and also to work from home but come into the office on training days when the client requests. However, a review of the facts in the record provides a rational basis to conclude that these "alternative accommodations" were not in fact alternative proposals. Instead, in sum and substance petitioner was requesting the same accommodation of continuing remote-work, subject to conditions or contingencies.Therefore, DHR's determination was not arbitrary and capricious (Corite v City of New York Dept, of Sanitation (DSNY), 159 A.D.3d 640,641 [1st Dept 2018]).
In the April 12, 2022, email from petitioner's attorney to RFCUNY, petitioner's attorney writes, "As an initial matter, I would like to clarify the time frame sought for the accommodation. The Employees do not seek an indefinite remote work arrangement as stated in your email. Rather, the Employees request a continued full-time remote arrangement until June 30 with a reevaluation at that time" (Moro aff, exhibit H). In that same email, petitioner's attorney wrote, "... the Employees are unaware of any in-person trainings requested by the client. Even if any such training has been requested, those trainings are at most three days per week and are not weekly. The Employees are willing to do an in-person training if the client requests the same... as we continue to work towards resolution of this matter, the Employees request that they be granted a temporary full-time remote accommodation (with the exception as stated above concerning in-person trainings requested by the client]" (id.).
Further, petitioner contends that despite informing DHR of her request for these modified accommodations in emails sent directly to the investigator, DHR still found that she had not submitted an alternative. Petitioner asserts that this fact shows that the investigation was one- sided and deprived petitioner of a full and fair opportunity to present her claims. However, this claim is undermined by petitioner's own admission that the investigator emailed her directly seeking clarification and further information about any alternative accommodations she had proposed. To which petitioner sent her responses and again re-iterated the alleged alternatives (see NYSCEF Doc. No. 9). This communication demonstrates that a meaningful investigation of the complaint occurred (Matter of Ramirez v New York State Div. of Human Rights, 4 N.Y.3d 789, 790 [2005]). Therefore, as petitioner was provided an additional opportunity to present supporting submissions in furtherance of her claims, the investigation cannot be said to be one-sided or abbreviated (Ackerman v New York State Div. of Human Rights, 197 A.D.3d 1110, 1111 [2d Dept 2021]).
Retaliation Claim:
In the Determination and Order, DHR concluded that, ''[o]n this record, the evidence does not support a probable cause finding that [respondent's conduct was a violation of the Human Rights Law" (NYSCEF Doc. No. 13). Petitioner contends that DHR misconstrued the nature of her retaliation claim and, because of this error, found that there was no probable cause to believe that RFCUNY engaged in retaliatory conduct. Petitioner asserts that the determination should be annulled and reversed because of DHR's erroneous interpretation and application of the facts and claims in the record.
Respondent contends that as petitioner failed to demonstrate that she engaged in a protected activity, she failed to meet her burden of showing a prima.facie case of retaliation. Considering, RFCUNY contends that the record supports DHR's determination that petitioner failed to demonstrate retaliatory intent.
DHR's determination was based on the finding that, "[a]s for [c]omplainant's retaliation claim, [c]omplainant has not demonstrated that [r]espondent's denial of her request was motivated by retaliatory intent. Respondent's decision to deny [c]omplainant's request antedated any protected activity claimed here" (NYSCEF Doc. No. 13). In making this finding, DHR characterized petitioner's retaliation claim as one where the retaliatory conduct was the denial of her accommodation request. However, the record contains evidence which demonstrates that petitioner's claim was that she was subjected to retaliatory conduct as a direct result of making a request for an accommodation.
A petitioner bears the burden of showing probable cause as to the discriminatory acts charged (Matter of McFarland v New York State Div. of Human Rights, 241 A.D.2d 108, 113 [1st Dept 1998]). To make out a prima facie case for retaliation, it must be shown that the party (1) engaged in a protected activity; (2) the employer was aware that she participated in such activity; (3) she suffered an adverse employment action based upon this activity; and (4) there is a causal connection (Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 313 [2004]). DHR's Final Investigation Report and Basis of Determination contains little factual evaluation and discussion involving the allegations and/or evidence offered in support of the claim of retaliation. Giving credence to the petitioner's version of the events and facts, there is some evidence in the record to believe that respondent may have engaged in retaliatory conduct.
DHR's finding that the decision to deny petitioner's accommodation request antedated any protected activity claimed here, is contrary to facts within the record. An employee engages in a protected activity by opposing or complaining about unlawful discrimination (Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 313 [2004]). Petitioner alleged that she engaged in a protected activity of opposing discrimination by requesting and/or seeking a reasonable accommodation and by retaining an attorney (NYSCEF Doc. No. 6, complaint to DHR at 2). RFCUNY is correct in its contention that merely making a request for a reasonable accommodation is not a protected activity for the purposes of a State HRL claim (D'Amico v City of New York, 159 A.D.3d 558, 558 [1st Dept 2018]). However, a protected activity includes not only an act formally opposing the alleged discriminatory behavior, but also informal protests such as complaining to management (Hubbard v Total Communications, Inc., 347 Fed.Appx. 679, 681 [2d Cir 2009]; Giscombe v New York City Dept. of Educ., 39 F.Supp.3d 396, 401 [SDNY 2014]). A legal demand letter by plaintiffs attorney protesting the discriminatory conduct that allegedly occurred at the office constituted a protected activity (La Marca-Pagano v Dr. Steven Phillips, P.C., 129 A.D.3d 918, 921 [2d Dept 2015]). Further, an email by an employee complaining about allegedly discriminatory conduct constitutes a protected activity (Pelepelin v City of New York, 189 A.D.3d 450, 452 ).
The record shows that on March 31, 2022, petitioner's counsel sent a letter via email to RFCUNY complaining about the initial denial of petitioner's accommodation request, RFCUNY's allegedly retaliatory conduct following this denial, and RFCUNY's alleged failure to adhere to its' policies governing requests pertaining to disabilities (Moro aff, exhibit G). Further, the record shows that on April 8, 2022, petitioner's counsel again emailed the respondent and opposed RFCUNY's conduct in responding to, and then following, the request for an accommodation and contending this conduct appeared to be retaliatory (Moro aff, exhibit H). These communications were specific and unambiguous enough to constitute a protected activity (see Gonzalez v EVG, Inc., 123 A.D.3d 486, 487 [1st Dept 2014]). Therefore, the record contains evidence that petitioner, through the correspondence by her counsel, could have engaged in a protected activity by opposing or complaining about RFCUNY's allegedly discriminatory conduct involving her disability and accommodation request (see Brook v Overseas Media, Inc., 69 A.D.3d 444, 445 [1st Dept 2010]). Additionally, as the correspondence was between petitioner's counsel and relevant staff members at RFCUNY, the record demonstrates that the employer was aware she engaged in this protected activity.
RFCUNY also argued that petitioner failed to show an adverse employment action that resulted in material harm. Respondent asserted that petitioner did not suffer a material harm as she continues to work for the program, her job duties and job title has not changed, and her pay has not been reduced. An adverse employment action is one which might have dissuaded a reasonable worker from making or supporting a charge of discrimination (Bilitch v New York City Health & Hosps. Corp., 194 A.D.3d 999, 1004 [2d Dept 2021]). Petitioner must show that a reasonable employee would have found the challenged action materially adverse (Zurich Am. Life Ins. Co. v Nagel, 590 F.Supp.3d 702, 736 [SDNY 2022], reconsideration denied, 20-CV-11091 (JSR), 2022 WL 1173885 [SDNY Apr. 20, 2022]). However, in the retaliation context, an adverse employment action encompasses a broader range of conduct than the adverse-action standard for claims of discrimination, as it does not require that the actions affect the terms and conditions of employment (Mondelo v Quinn, Emanuel, Urquhart & Sullivan, LLP, 2022 WL 524551 at 11 [SDNY Feb. 22, 2022, No. 21 Civ 02512]). Additionally, challenged actions must be considered separately and in the aggregate, as even minor acts of retaliation can be sufficiently gross to be actionable (id.)
Retaliation claims brought under the NYSHRL are governed by the same standards as retaliation claims brought under 42 U.S.C. 1981 (see Mondelo v Quinn, Emanuel, Urquhart & Sullivan, LLP, 2022 WL 524551 at 12 [SDNY Feb. 22, 2022, No. 21 Civ 02512]).
In this case, there are facts within the record that, if true, could be sufficient to constitute an adverse employment action. The record contains allegations by petitioner that subsequent to making her request, her supervisor offered a choice of returning full-time or changing her designation to part-time, which would be accompanied by a loss in pay, loss of benefits, and loss of retirement eligibility. Additionally, petitioner alleged that two weeks after her request, she received an email that someone else was being hired for a role she allegedly created and had served in for one and a half years. Finally, petitioner alleged that after making the request and upon her return to the officer, her supervisor began treating her with quiet contempt or disdain. Petitioner alleged that her supervisor did not, or refused to, speak to her which was in contrast to their previous relationship and in contrast with the supervisor's treatment of others. These allegations plausibly suggest materially adverse actions which might have dissuaded a reasonable worker from making or supporting a charge of discrimination (see Brightman v Prison Health Services, Inc., 62 A.D.3d 472 [1st Dept 2009]).
Finally, a causal connection can be inferred from evidence that the protected activity was followed closely by the alleged discriminatory treatment (Noho Star Inc v New York State Div. of Human Rights, 72 A.D.3d 448, 449 ). Petitioner alleged that she began to be subjected to this supposedly adverse treatment immediately after her lawyer contacted RFCUNY, within days and weeks of this communication (see NYSCEF Doc. No. 6). Accordingly, the temporal proximity between her attorney contacting RFCUNY in regard to her disability and a reasonable accommodation and the alleged adverse actions could satisfy the requisite causal connection.
Considering the aforementioned, DHR errored in its application and analysis of the law and facts in the record when assessing petitioner's retaliation claim and issued findings and/or conclusions that are without a rational basis and contrary to the facts. Therefore, DHR's determination that the evidence in the record did not support a probable cause finding that RFCUNY's conduct was a violation of the Human Rights Law was arbitrary and capricious as DHR erred in its interpretation of the petitioner's retaliation claim. Petitioner's retaliation claim is remanded back to the agency for further determination, with evaluation and analysis consistent with this decision.
The Court has reviewed all other arguments and find them unavailing.
Conclusion:
Accordingly, it is hereby
ORDERED and ADJUDGED that the Verified Petition is granted to the limited extent that the State Division of Human Right's Determination and Order which issued a finding of no probable cause on the claim of retaliation is annulled and the action is remanded back to the State Division of Human Rights for the sole purpose of review and reconsideration of petitioner's retaliation claim in a manner consistent with this decision and with the method to be determined by the State Division of Human Rights; and it is further
ORDERED and ADJUDGED that the Verified Petition is otherwise denied.
This constitutes the decision and order of the court.