IN RE: ARTHEA RUSSO (2016)

MEMORANDUM AND ORDER

Proceeding pursuant to Executive Law § 298 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Chautauqua County [Paul B. Wojtaszek, J.], entered April 14, 2015) to review a determination of respondent New York State Division of Human Rights.  The determination dismissed the complaint of petitioner for gender discrimination and retaliation.

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum:  Petitioner commenced this proceeding pursuant to Executive Law § 298 seeking to annul the determination of respondent New York State Division of Human Rights (SDHR) dismissing her complaint alleging unlawful discrimination and retaliation.  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 (see Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 N.Y.2d 326, 331;  Matter of State Div. of Human Rights [Granelle], 70 N.Y.2d 100, 106).  “Courts may not weigh the evidence or reject [SDHR's] determination where the evidence is conflicting and room for choice exists.  Thus, when a rational basis for the conclusion adopted by [SDHR] is found, the judicial function is exhausted” (Granelle, 70 N.Y.2d at 106;  see Rainer N. Mittl, Ophthalmologist, P.C., 100 N.Y.2d at 331;  Matter of City of Niagara Falls v New York State Div. of Human Rights, 94 AD3d 1442, 1443–1444).

Contrary to petitioner's further contention, there is substantial evidence to support SDHR's determination that she was not subjected to retaliation.  “In order to make out a claim for unlawful retaliation under state or federal law, a [petitioner] must show that ‘(1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action’ “ (Calhoun v. County of Herkimer, 114 AD3d 1304, 1306, quoting Forrest, 3 NY3d at 313).  Once that showing is made, “the burden then shifts to [the employer] to present legitimate, independent and nondiscriminatory reasons to support [its] actions.  Then, if [the employer] meet[s] this burden, [petitioner] has the obligation to show that the reasons put forth by [the employer] were merely a pretext” (Pace v. Ogden Servs.  Corp., 257 A.D.2d 101, 104).

Even assuming, arguendo, that petitioner met her initial burden, we nevertheless conclude that the City presented a legitimate, independent and nondiscriminatory reason for issuing a counseling memorandum on sexual harassment based on evidence that petitioner had been sharing sexually explicit material that she had on her cell phone (see generally Matter of Pace Univ. v New York City Commn. on Human Rights, 85 N.Y.2d 125, 129).  Petitioner failed to establish that the reason for the memorandum was pretextual (see generally id.).

Frances E. Cafarell

Clerk of the Court