IN RE: JPK IMPORTS/ONEONTA (2021)

MEMORANDUM AND ORDER

Appeal from that part of a judgment of the Supreme Court (Northrup Jr., J.), entered October 8, 2019 in Delaware County, which partially dismissed petitioner's application, in proceeding No. 2 pursuant to Executive Law § 298, to enforce a penalty and fine.

In May 2015, respondent David A. Fink filed a complaint with the State Division of Human Rights (hereinafter SDHR) alleging that his former employer, JPK Imports/Oneonta, Inc. (hereinafter JPK), had terminated his employment due to his disability.  Following a hearing before an Administrative Law Judge (hereinafter ALJ) – at which JPK failed to appear – the ALJ found that JPK engaged in unlawful discriminatory conduct and recommended back pay, compensatory damages and a civil fine of $1,000.  Upon JPK's objections, the Commissioner of SDHR issued a final determination adopting the ALJ's recommendation but increasing the civil fine to $60,000.

JPK paid the awards of back pay and compensatory damages, but commenced a proceeding pursuant to Executive Law § 298 challenging the $60,000 civil fine.  SDHR cross-petitioned to confirm the Commissioner's final determination.  Supreme Court (Coccoma, J.), dismissed JPK's petition and granted SDHR's cross petition.  Upon JPK's appeal, this Court reversed the imposition of the civil fine and remitted the matter to the Commissioner for a redetermination of the amount (see Matter of JPK Imports/Oneonta, Inc. v. New York State Div. of Human Rights, 165 A.D.3d 1410, 1412, 86 N.Y.S.3d 638 [2018], lv denied 32 N.Y.3d 918, 2019 WL 1348749 [2019]).

After reviewing the administrative record on remittal, the Commissioner decreased the amount of the civil fine to $20,000.  In response, JPK filed a petition pursuant to Executive Law § 298 seeking to annul and vacate the $20,000 fine (proceeding No. 1), and SDHR cross-petitioned for its enforcement (proceeding No. 2).  Supreme Court (Northrup Jr., J.) dismissed JPK's petition and partially granted SDHR's cross petition, but reduced the civil fine to $5,000.  SDHR appeals, challenging the reduction of the civil fine.

“Judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes 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] [citations omitted];  accord Matter of Rochester Inst. of Tech. v. New York State Div. of Human Rights, 169 A.D.3d 1421, 1422, 92 N.Y.S.3d 798 [2019]).  On this record, we conclude that Supreme Court erred in reducing the fine.  Notably, JPK has not challenged the finding of discrimination made by SDHR, but only the amount of the fine imposed.  SDHR has a statutory role “to take appropriate action to fulfill the extremely strong statutory policy eliminating discrimination” (Matter of Gifford v. McCarthy, 137 A.D.3d 30, 43, 23 N.Y.S.3d 422 [2016] [internal quotation marks and citation omitted]), and may impose a civil fine of up to $50,000 against a party who has engaged in unlawful discriminatory conduct (see Executive Law § 297[4][c][vi]).  The record shows that the day that Fink informed JPK that he might need surgery, he was terminated ostensibly for “lack of work.”  Within a week, JPK advertised to fill the same position.  In objecting to Fink's complaint, JPK asserted that Fink was terminated for poor performance and yet he had never been disciplined for such.  At the same time, JPK represented that it was “willing to discuss” rehiring Fink, but the record does not indicate that such discussions were ever pursued.  In short, SDHR determined that JPK's discriminatory conduct was serious and deliberate.  In our view, the penalty was not “so disproportionate to the offense as to be shocking to one's sense of fairness,” and, therefore, it did not “constitut[e] an abuse of discretion as a matter of law” (Matter of Kelly v. Safir, 96 N.Y.2d at 38, 724 N.Y.S.2d 680, 747 N.E.2d 1280 [internal quotation marks and citation omitted]).  Since SDHR acted within its broad discretionary authority by imposing the $20,000 fine, Supreme Court erred in reducing the amount.

I respectfully dissent.  In my view, Supreme Court properly found that the imposition of a $20,000 civil penalty and fine under the circumstances that obtain herein is disproportionate to the misconduct of JPK Imports/Oneonta, Inc. (hereinafter JPK) and constitutes an abuse of discretion.  Respondent David A. Fink was employed with JPK for a mere seven weeks at the time of his termination.  JPK has no prior history of engaging in discriminatory conduct.  In addition, Fink has been fully compensated for any injury he sustained;  as the majority appears to acknowledge, Fink has received back pay and compensatory damages as ordered by the Commissioner of the State Division of Human Rights (see Matter of JPK Imports/Oneonta, Inc. v. New York State Div. of Human Rights, 165 A.D.3d 1410, 1411 n., 86 N.Y.S.3d 638 [2018], lv denied 32 N.Y.3d 918, 2019 WL 1348749 [2019]);  see generally Matter of Imperial Diner, Inc. v. State Human Rights Appeal Bd., 52 N.Y.2d 72, 79, 436 N.Y.S.2d 231, 417 N.E.2d 525 [1980]).  In light of these facts, it is my opinion that Supreme Court properly reduced the civil penalty and fine from $20,000 to $5,000 (see generally Matter of Rochester Inst. of Tech. v. New York State Div. of Human Rights, 169 A.D.3d 1421, 1422, 92 N.Y.S.3d 798 [2019];  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 [2014]).  Accordingly, I would affirm.

ORDERED that the judgment is modified, on the law, without costs, by reversing so much thereof as reduced the civil fine;  the $20,000 civil fine is reinstated;  and, as so modified, affirmed.

Lynch, J.P.

Clark, Aarons and Pritzker, JJ., concur.