Opinion
402958/09.
February 22, 2010.
Julio C. Bello, Pro Se, Bronx, NY, for Petitioner.
Jeremy M. Brown, Esq., Proskauer Rose LLP, New York, NY, for Respondents.
Papers considered in review of this petition:
Papers Numbered
Notice of Petition 1 Brief in Opposition to Article 78 Petition 2 Answer 3 Pro se petitioner Julio C. Bello ("Bello") brings an Article 78 proceeding, seeking review of the determination of respondent New York State Division of Human Rights ("NYSDHR"), in which NYSDHR dismissed Bello's complaint of unlawful conviction record discrimination for failure to support a determination of probable cause.In May 2008, Bello received and accepted a conditional offer of employment from respondent, Whole Foods Market Group, Inc. ("Whole Foods") for a position as an overnight receiver in the Union Square store. According to Whole Foods, an overnight receiver is a lightly supervised, back-of-the-store post that involves loading and unloading merchandise. After making the offer, Whole Foods conducted a background check, which revealed that Bello was recently convicted of the following crimes: 1) misdemeanor criminal possession of a controlled substance (11/03/2006); 2) misdemeanor criminal trespass (1/04/2008); and 3) misdemeanor criminal possession of a controlled substance (2/28/2008). On May 9, 2008, Whole Foods advised Bello that his offer of employment was rescinded. There is no dispute that the bases for Whole Foods' decision to rescind the offer of employment were the recent misdemeanor convictions.
The offer form stated that employment was "pending successful completion of both a reference check and a background check."
When asked about felony convictions during the hiring process, Bello did inform Whole Foods that he had felony convictions from ten years ago and he was told that would not be an issue.
On or about July 14, 2008, Bello filed a Verified Complaint with the New York State Division of Human Rights, alleging that Whole Foods engaged in an unlawful, discriminatory employment practice when it rescinded Bello's offer of employment, based on his conviction record, in violation of N.Y. Exec. Law, Art. 15. Upon receiving a copy of the Verified Complaint, on or about July 29, 2008, Whole Foods offered Bello a full-time position as a receiver at the same rate of pay as the original offer. The new position, however, was scheduled during a shift in which there would be "much heavier supervision." Whole Foods maintains that Bello declined the second offer because he had secured employment with another company.
On September 14, 2009, the NYSDHR issued a Determination and Order After Investigation, dismissing Bello's Verified Complaint, finding that there was "no probable cause to believe that the respondent ha[d] engaged in or [wa]s engaging in the unlawful discriminatory practice" alleged. The NYSDHR found that the nature and timing of Bello's convictions, especially the criminal trespass conviction, along with the nature of the overnight receiver position (little or no supervision and unfettered access to merchandise), supported Whole Food's position that there was a direct relationship between the convictions and the employment sought. Additionally, the NYSDHR relied on evidence that Whole Foods' Union Square store employed nineteen persons with conviction records during the period from January 1, 2008 through October 1, 2008.
In this Article 78 proceeding, Bello claims that the NYSDHR's dismissal of his complaint was arbitrary, capricious and an abuse of discretion. Bello seeks lost wages from Whole Foods for its alleged discriminatory refusal to hire him. Discussion
CPLR 7803(3) allows for limited judicial review of administrative agency actions. The standard of review in an Article 78 proceeding, such as this, is "whether the agency determination was arbitrary and capricious or affected by an error of law." Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753, 758 (1991). The arbitrary and capricious test is "whether the administrative action is without foundation in fact." Matter of Pell v. Bd. of Educ., 34 N.Y.2d 222, 231 (1974). "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts." Id.
In employment discrimination claims, considerable deference is given to NYSDHR determinations because of the agency's expertise in evaluating these types of claims. See Matter of Camp v. New York State Div. of Human Rights, 300 A.D.2d 481 (2d Dep't 2002). When the agency's determination is founded on a rational basis, the determination should be affirmed, even if the court might have come to a different conclusion. Matter of Mid-State Mgt. Corp. v. New York City Conciliation Appeals Bd., 112 A.D.2d 72, 76 (1st Dep't 1985), aff'd, 66 N.Y.2d 1032 (1985).
Bello's employment discrimination claims are based on Executive Law § 296(15), which bars employment discrimination based on conviction alone and Article 23-A of the Correction Law, which bars discrimination against persons previously convicted of criminal offenses. Pursuant to § 752 of Article 23-A, employment cannot be denied based on an applicant's criminal history unless one or both of the following exceptions is found to apply:
(1) There is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or
(2) The issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
N.Y. Correction Law § 752. According to the statutory definition, "direct relationship" means "that the nature of criminal conduct for which the person was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to the license or employment sought." N.Y. Correction Law § 750, subd. (3); See Marra v. City of White Plains, 96 A.D.2d 17, 22 (2d Dep't 1983). A direct relationship is found "where the applicant's prior conviction was for an offense related to the industry or occupation at issue." Marra, 96 A.D.2d at 22.
Additionally, § 753, subd. (1) of Article 23-A, provides a list of eight factors which the potential employer "shall consider" when making a determination, pursuant to § 752, as to whether the "direct relationship" or "unreasonable risk" exceptions apply. See Arrocha v. Bd. of Educ. of the City of New York, 93 N.Y.2d 361, 364 (1999). The eight factors are:
(a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses;
(b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person;
(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities;
(d) The time which has elapsed since the occurrence of the criminal offense or offenses;
(e) The age of the person at the time of occurrence of the criminal offense or offenses;
(f) The seriousness of the offense or offenses;
(g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct; and
(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.
Before the NYSDHR, Whole Foods contended that there was a direct relationship between Bello's previous criminal offenses and the employment sought. Because of the nature of those convictions, Bello's ability to handle merchandise, lightly supervised and at night, was questionable. The NYSDHR agreed with Whole Foods, finding that because the position was lightly supervised, involved handling merchandise in the back of the store and because the misdemeanor convictions occurred five months before he applied for the position, there was a direct relationship between the convictions and the employment sought.
The NYSDHR's determination was neither arbitrary nor capricious, particularly in light of the fact that Whole Foods subsequently offered Bello a position, which did not implicate its concerns about Bello's lightly supervised overnight access to merchandise. See Ass'n of Surrogates Supreme Court Reporters v. State of New York Unified Court Sys., 48 A.D.3d 228 (1st Dep't 2008) (the First Department held that in light of the fact that Correction Law § 752 and § 753 permit adverse employment action where "there is a direct relationship between the criminal offense and the specific employment," petitioner's Article 78 petition was properly dismissed, when the reviewing agency "rationally determined that there [wa]s a direct relationship between petitioner's criminal offense, which involved identity theft and credit card fraud, and her employment, in which, . . . she was charged with producing true, accurate and complete record of court proceedings.")
Bello did not submit evidence of rehabilitation; in fact the latest of the underlying convictions occurred just a few months prior to his application for employment. There is some indication in the record, however, that the convictions stemmed from an addiction problem, for which the petitioner sought treatment. Nevertheless, based on the evidence submitted it cannot be said that the agency's determination was arbitrary and capricious.
In accordance with the foregoing, it is
ORDERED and ADJUDGED that the petition of Julio Bello to set aside the
administrative determination issued by respondent New York State Division of Human
Rights dated September 14, 2009 is denied, the petition is dismissed and the Clerk of the
Court is directed to enter judgment accordingly.
This constitutes the decision, order, and judgment of the court.