Opinion
743 TP 17–02186
06-15-2018
In the Matter of STELLAR DENTAL MANAGEMENT LLC, Petitioner–Respondent, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS, Respondent–Petitioner, State of New York Executive Department, Beth A. Henderson, Tami Martel and Stephanie Ruffins, Respondents.
HODGSON RUSS LLP, BUFFALO (MELANIE J. BEARDSLEY OF COUNSEL), FOR PETITIONER–RESPONDENT. CAROLINE J. DOWNEY, GENERAL COUNSEL, BRONX (TONI ANN HOLLIFIELD OF COUNSEL), FOR RESPONDENT–PETITIONER.
HODGSON RUSS LLP, BUFFALO (MELANIE J. BEARDSLEY OF COUNSEL), FOR PETITIONER–RESPONDENT.
CAROLINE J. DOWNEY, GENERAL COUNSEL, BRONX (TONI ANN HOLLIFIELD OF COUNSEL), FOR RESPONDENT–PETITIONER.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Erie County [Joseph R. Glownia, J.], entered December 15, 2017) to review a determination of respondent-petitioner. The determination, among other things, adjudged that petitioner-respondent had subjected individual respondents to a sexually hostile work environment.
It is hereby ORDERED that the determination is unanimously confirmed without costs, the petition is dismissed, the cross petition is granted, and petitioner-respondent is directed to pay respondent Beth A. Henderson the sum of $35,000 as compensatory damages with interest at the rate of 9% per annum commencing June 8, 2017; to pay respondent Tami Martel the sum of $65,000 as compensatory damages with interest at the rate of 9% per annum commencing June 8, 2017; to pay respondent Stephanie Ruffins the sum of $50,000 as compensatory damages with interest at the rate of 9% per annum commencing June 8, 2017 and $2,880 for lost wages with interest at the rate of 9% per annum commencing August 29, 2014; and to pay the Comptroller of the State of New York the sum of $60,000 for a civil fine and penalty with interest at the rate of 9% per annum commencing June 8, 2017.
Memorandum: Petitioner-respondent (petitioner) commenced this proceeding pursuant to Executive Law § 298 seeking to annul the determination of respondent-petitioner New York State Division of Human Rights (SDHR) that petitioner unlawfully discriminated against respondent complainants (complainants) by subjecting them to a sexually hostile work environment, and retaliated against complainants by firing two of them and constructively discharging the third complainant. SDHR awarded complainants, inter alia, compensatory damages for mental anguish and humiliation in the amount of $35,000, $65,000, and $50,000, respectively, and imposed civil fines and penalties against petitioner of $20,000 per complainant. SDHR filed a cross petition seeking to confirm and enforce the determination.
Our review of the determination, which adopted the findings of the Administrative Law Judge (ALJ) who conducted the public hearing, "is limited to the issue whether it is supported by substantial evidence" ( Matter of Russo v. New York State Div. of Human Rights, 137 A.D.3d 1600, 1600, 28 N.Y.S.3d 156 [4th Dept. 2016] ; see Rainer N. Mittl, Ophthalmologist, P.C. v. New York State Div. of Human Rights, 100 N.Y.2d 326, 331, 763 N.Y.S.2d 518, 794 N.E.2d 660 [2003] ). " ‘Although a contrary decision may be reasonable and also sustainable, a reviewing court may not substitute its judgment for that of the Commissioner [of SDHR] if his [or her determination] is supported by substantial evidence’ " ( Matter of Scheuneman v. New York State Div. of Human Rights, 147 A.D.3d 1523, 1524, 47 N.Y.S.3d 834 [4th Dept. 2017], quoting Matter of Consolidated Edison Co. of N.Y. v. New York State Div. of Human Rights, 77 N.Y.2d 411, 417, 568 N.Y.S.2d 569, 570 N.E.2d 217 [1991], rearg. denied 78 N.Y.2d 909, 573 N.Y.S.2d 470, 577 N.E.2d 1061 [1991] ).
We conclude that there is substantial evidence to support the determination that petitioner discriminated against each complainant by subjecting her to a sexually hostile work environment (see Matter of Father Belle Community Ctr. v. New York State Div. of Human Rights, 221 A.D.2d 44, 51, 642 N.Y.S.2d 739 [4th Dept. 1996], lv denied 89 N.Y.2d 809, 655 N.Y.S.2d 889, 678 N.E.2d 502 [1997] ; see also Vitale v. Rosina Food Prods., 283 A.D.2d 141, 143, 727 N.Y.S.2d 215 [4th Dept. 2001] ). At the hearing, each complainant testified that she was subjected to severe and pervasive sexualized comments and unwanted touching in the workplace, and that she reported that behavior to management but her complaints were ignored. Although petitioner's witnesses denied receiving reports of harassment, " ‘we cannot say that the testimony found credible by [the ALJ] was incredible as a matter of law’ " ( Matter of Maye v. Dwyer, 295 A.D.2d 890, 890, 743 N.Y.S.2d 757 [4th Dept 2002], appeal dismissed 98 N.Y.2d 764, 752 N.Y.S.2d 2, 781 N.E.2d 914 [2002] ). To the extent that complainants' testimony conflicted with petitioner's proof, such conflict presented issues of credibility that were for the ALJ to resolve (see Scheuneman, 147 A.D.3d at 1524, 47 N.Y.S.3d 834 ).
We further conclude that substantial evidence supports SDHR's determination that two of the complainants were subjected to unlawful retaliation. The record establishes that those complainants reported sexual harassment to management and were terminated from their employment shortly thereafter, thus supporting the determination that the legitimate reasons proffered for the terminations were pretextual (see Executive Law § 296[7] ; cf. Pace v. Ogden Servs. Corp., 257 A.D.2d 101, 104–106, 692 N.Y.S.2d 220 [3d Dept. 1999] ; see also La Marca–Pagano v. Dr. Steven Phillips, P.C., 129 A.D.3d 918, 921, 12 N.Y.S.3d 192 [2d Dept. 2015] ; Matter of Law Offs. of Oliver Zhou, PLLC v. New York State Div. of Human Rights, 128 A.D.3d 618, 619, 10 N.Y.S.3d 211 [1st Dept. 2015] ). With respect to the third complainant, we conclude that there is substantial evidence supporting the determination that petitioner unlawfully retaliated against her by constructively discharging her, because the record establishes that the conditions of her employment had become so intolerable that a reasonable person in her position would have felt compelled to resign (see generally Thompson v. Lamprecht Transp., 39 A.D.3d 846, 848, 834 N.Y.S.2d 312 [2d Dept. 2007] ; Matter of Graham v. New York City Tr. Auth., 242 A.D.2d 722, 722, 664 N.Y.S.2d 928 [2d Dept 1997], lv denied 94 N.Y.2d 759, 706 N.Y.S.2d 80, 727 N.E.2d 577 [2000] ).
Petitioner further contends that the ALJ erred in scheduling a consolidated hearing for the three complaints, and in failing to sequester the complainant witnesses. We conclude, however, that petitioner waived such objections by not raising them on the record, despite being provided an opportunity to do so, and by participating fully in the hearing (see Lebis Contr. v. City of Lockport, 174 A.D.2d 1012, 1012, 572 N.Y.S.2d 171 [4th Dept. 1991] ; Matter of Donnelly's Mobile Home Ct. v. Simons, 142 A.D.2d 943, 943, 530 N.Y.S.2d 1013 [4th Dept. 1988] ; see also Matter of Mule v. Town of Boston, 159 A.D.3d 1370, 1371–1372, 72 N.Y.S.3d 668 [4th Dept. 2018] ).
We reject petitioner's further contention that the compensatory damages awarded for mental anguish and humiliation are excessive as a matter of law and unsupported by the proof. In reviewing an award for mental anguish and humiliation, we assess whether the award is reasonably related to the wrongdoing, whether it is supported by substantial evidence, and whether it is comparable to awards in similar cases (see Matter of New York City Tr. Auth. v. State Div. of Human Rights, 78 N.Y.2d 207, 218–219, 573 N.Y.S.2d 49, 577 N.E.2d 40 [1991] ; Matter of Kondracke v. Blue, 277 A.D.2d 953, 954, 716 N.Y.S.2d 533 [4th Dept. 2000] ). Each complainant testified that she suffered significant emotional distress and fear as a result of the harassment she endured, and there was sufficient proof of the severity and duration of that distress to sustain the damages awarded (see Matter of County of Onondaga v. Mayock, 78 A.D.3d 1632, 1633–1634, 910 N.Y.S.2d 628 [4th Dept. 2010] ; Kondracke, 277 A.D.2d at 954, 716 N.Y.S.2d 533 ). Moreover, the awards are well within the range established by similar cases (see e.g. Matter of New York State Div. of Human Rights v. ABS Elecs., Inc., 102 A.D.3d 967, 968–969, 958 N.Y.S.2d 502 [2d Dept. 2013], lv denied 24 N.Y.3d 901, 2014 WL 4357465 [2014] ; Matter of Columbia Sussex Corp. v. New York State Div. of Human Rights, 63 A.D.3d 736, 736, 879 N.Y.S.2d 722 [2d Dept. 2009] ; Matter of New York State Div. of Human Rights v. Village Plaza Family Rest., Inc., 59 A.D.3d 1038, 1038–1039, 872 N.Y.S.2d 815 [4th Dept. 2009] ). We thus conclude that the awards for mental anguish and humiliation should not be disturbed (see Mayock, 78 A.D.3d at 1634, 910 N.Y.S.2d 628 ).
Finally, we reject petitioner's contention that SDHR's imposition of civil fines and penalties was excessive and arbitrary and capricious. It is well settled that "[j]udicial review of an administrative penalty is limited to whether the measure or mode of penalty constitutes an abuse of discretion as a matter of law [and] ... a penalty must be upheld unless it is ‘so disproportionate to the offense as to be shocking to one's sense of fairness,’ thus constituting an abuse of discretion as a matter of law" ( Matter of Kelly v. Safir, 96 N.Y.2d 32, 38, 724 N.Y.S.2d 680, 747 N.E.2d 1280 [2001], rearg. denied 96 N.Y.2d 854, 729 N.Y.S.2d 670, 754 N.E.2d 773 [2001] ; see Matter of County of Erie v. New York State Div. of Human Rights, 121 A.D.3d 1564, 1566, 993 N.Y.S.2d 849 [4th Dept. 2014] ). SDHR's award of a civil fine and penalty of $20,000 for each complainant is similar to the fines and penalties imposed in other discrimination cases (see Matter of AMG Managing Partners, LLC v. New York State Div. of Human Rights, 148 A.D.3d 1765, 1766, 51 N.Y.S.3d 764 [4th Dept. 2017] ; Matter of Noe v. Kirkland, 101 A.D.3d 1756, 1756–1757, 957 N.Y.S.2d 796 [4th Dept. 2012] ), and is not shocking to our sense of fairness.