IN RE: Marc CONTE (2018)

Order and judgment (one paper), Supreme Court, New York County (Barbara Jaffe, J.), entered June 21, 2017, inter alia, denying the petition and dismissing the proceeding brought to annul the determination of respondent New York State Division of Human Rights (DHR) finding no probable cause to believe that respondent City of New York Department of Sanitation (DSNY) had engaged in the unlawful discriminatory employment practice complained of, unanimously affirmed, without costs.

DHR's finding of no probable cause was rationally based and was not arbitrary and capricious (see Matter of McFarland v. New York State Div. of Human Rights, 241 A.D.2d 108, 111, 671 N.Y.S.2d 461 [1st Dept. 1998] ).  Petitioner, a probationary employee, was terminated upon a unanimous vote by DSNY's Employee Review Board, after receiving four “unsatisfactory” quarterly performance reviews and nine written warnings.  Petitioner failed to produce evidence that the proffered reason for his termination was false or pretextual and that discrimination and/or retaliation was the real reason (see Stephenson v. Hotel Empls. & Rest. Empls. Union Local 100 of AFL–CIO, 6 N.Y.3d 265, 270–271, 811 N.Y.S.2d 633, 844 N.E.2d 1155 [2006] ).  DHR “has broad discretion in determining the method to be employed in investigating a claim, and its determination will not be overturned unless the record demonstrates that its investigation was abbreviated or one-sided” (Matter of Pascual v. New York State Div. of Human Rights, 37 A.D.3d 215, 216, 829 N.Y.S.2d 99 [1st Dept. 2007] ).  No such showing has been made here as petitioner was given a full and fair opportunity to present his claim via written submissions (see Matter of Chirgotis v. Mobil Oil Corp., 128 A.D.2d 400, 403, 512 N.Y.S.2d 686 [1st Dept. 1987], lv denied 69 N.Y.2d 612, 517 N.Y.S.2d 1027, 511 N.E.2d 86 [1987] ).

We have considered petitioner's remaining arguments and find them unavailing.