IN RE: Cheri Ann FLORIANO–KEETCH (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum:  Petitioner commenced this proceeding pursuant to CPLR article 78 and Executive Law § 298 seeking to annul the determination of respondent New York State Division of Human Rights (SDHR) that there was no probable cause to believe that petitioner's employer, Niagara Charter School (respondent), engaged in an unlawful discriminatory practice against her.  We reject petitioner's contention that Supreme Court erred in denying the petition.

“Where, as here, SDHR 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 lacked a rational basis” (Matter of Sullivan v. New York State Div. of Human Rights, 160 A.D.3d 1395, 1396, 75 N.Y.S.3d 715 [4th Dept. 2018] [internal quotation marks omitted];  see Matter of McDonald v. New York State Div. of Human Rights, 147 A.D.3d 1482, 1482, 47 N.Y.S.3d 194 [4th Dept. 2017];  Matter of Smith v. New York State Div. of Human Rights, 142 A.D.3d 1362, 1363, 38 N.Y.S.3d 651 [4th Dept. 2016], lv denied 30 N.Y.3d 913, 2018 WL 943651 [2018] ).  We note initially that, contrary to petitioner's contention, “the conflicting evidence before SDHR did not create a material issue of fact that warranted a formal hearing” (Matter of Hall v. New York State Div. of Human Rights, 137 A.D.3d 1583, 1584, 28 N.Y.S.3d 154 [2016];  see McDonald, 147 A.D.3d at 1483, 47 N.Y.S.3d 194).  “Courts give deference to SDHR due to its experience and expertise in evaluating allegations of discrimination ․, and such deference extends to [SDHR's] decision whether to conduct a hearing ․ [SDHR] has the discretion to determine the method to be used in investigating a claim, and a hearing is not required in all cases” (McDonald, 147 A.D.3d at 1482, 47 N.Y.S.3d 194 [internal quotation marks omitted];  see Smith, 142 A.D.3d at 1363, 38 N.Y.S.3d 651;  Matter of Napierala v. New York State Div. of Human Rights, 140 A.D.3d 1746, 1747, 32 N.Y.S.3d 797 [4th Dept. 2016] ).

Furthermore, contrary to petitioner's contention, we conclude that SDHR's determination of no probable cause is not arbitrary or capricious, and it has a rational basis in the record.  “ ‘Probable cause exists only when, after giving full credence to the complainant's version of the events, there is some evidence of unlawful discrimination’ ” (Matter of Mambretti v. New York State Div. of Human Rights, 129 A.D.3d 1696, 1697, 12 N.Y.S.3d 692 [4th Dept. 2015], lv denied 26 N.Y.3d 909, 2015 WL 6181976 [2015];  see Sullivan, 160 A.D.3d at 1396, 75 N.Y.S.3d 715).  Here, there is no evidence of unlawful discrimination (see Napierala, 140 A.D.3d at 1747, 32 N.Y.S.3d 797).

To the extent that petitioner challenges SDHR's determination on the basis that she was discriminated against based on her status as a caregiver, her challenge fails as a matter of law.  As SDHR correctly determined, caring for an ailing family member is not a protected activity under the Human Rights Law (see Executive Law § 296[1][a]-[c];  cf. Administrative Code of City of N.Y. §§ 8–102, 8–107[1][a];  see generally Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004] ).  In addition, a rational basis supports SDHR's determination that there was no probable cause to believe that respondent discriminated against petitioner based on a perceived disability in the form of mental illness or addiction.  Although respondent twice made inquiries concerning petitioner's behavior that respondent believed was unusual and on one occasion required her to complete a drug test, SDHR rationally concluded that those facts alone do not establish that respondent perceived that she suffered from an addiction or mental illness (see § 292[21][a];  see generally Eustace v. South Buffalo Mercy Hosp., 36 Fed.Appx. 673, 675 [2d Cir.2002] ).  Moreover, petitioner failed to allege that any adverse action resulted from those events or that she was subjected to “discriminatory intimidation, ridicule, and insult that [was] sufficiently severe or pervasive to alter the terms or conditions of employment” (Vitale v. Rosina Food Prods., 283 A.D.2d 141, 143, 727 N.Y.S.2d 215 [4th Dept. 2001] [internal quotation marks omitted];  see Harris v. Forklift Sys., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 [1993];  Matter of Bowler v. New York State Div. of Human Rights, 77 A.D.3d 1380, 1381, 908 N.Y.S.2d 508 [4th Dept. 2010], lv denied 16 N.Y.3d 709, 2011 WL 1237547 [2011] ).