IN RE: Cathleen SEEBALD

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Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: Cathleen SEEBALD, Petitioner–Appellant, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS and Roswell Park Cancer Institute Corporation, Respondents–Respondents.

1329

Decided: February 01, 2019

PRESENT:  SMITH, J.P., LINDLEY, DEJOSEPH, AND CURRAN, JJ. LAW OFFICE OF LINDY KORN, PLLC, BUFFALO (CHARLES L. MILLER, II, OF COUNSEL), FOR PETITIONER–APPELLANT. WILDER & LINNEBALL, LLP, BUFFALO (CHRISTOPHER S. NICKSON OF COUNSEL), FOR RESPONDENT–RESPONDENT ROSWELL PARK CANCER INSTITUTE CORPORATION.

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, respondent Roswell Park Cancer Institute Corporation (Roswell), engaged in an unlawful discriminatory practice against her.  Petitioner appeals from a judgment confirming that determination and dismissing the petition.  We affirm.

Initially, we reject petitioner's contention that we must determine whether substantial evidence supports SDHR's determination.  “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 also reject petitioner's further contention that SDHR was required to hold a hearing on her complaint before making a probable cause determination.  SDHR “has the discretion to determine the method to be used in investigating a [complaint], 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] ).  Here, the record establishes that petitioner “had a full and fair opportunity to present her case and that [SDHR's] investigation was neither abbreviated nor one-sided” (Kim v. New York State Div. of Human Rights, 107 A.D.3d 434, 434, 967 N.Y.S.2d 49 [1st Dept. 2013], lv denied 21 N.Y.3d 866, 2013 WL 5180588 [2013];  see Napierala, 140 A.D.3d at 1747, 32 N.Y.S.3d 797), and “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 [4th Dept. 2016];  see McDonald, 147 A.D.3d at 1483, 47 N.Y.S.3d 194).

Finally, petitioner contends that SDHR's determination of no probable cause lacks a rational basis and is arbitrary and capricious.  It is well established that “[p]robable cause exists only when, after giving full credence to [petitioner's] version of the events, there is some evidence of unlawful discrimination ․ There must be a factual basis in the evidence sufficient to warrant a cautious [person] to believe that discrimination had been practiced” (McDonald, 147 A.D.3d at 1483, 47 N.Y.S.3d 194 [internal quotation marks omitted];  see Napierala, 140 A.D.3d at 1747, 32 N.Y.S.3d 797;  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] ).  In addition, our standard of review is an “extremely deferential one:  The courts cannot interfere [with an administrative tribunal's exercise of discretion] unless there is no rational basis for [its] exercise ․ or the action complained of is arbitrary and capricious, a test which chiefly relates to whether a particular action should have been taken or is justified ․ and whether the administrative action is without foundation in fact ” (Matter of Beck–Nichols v. Bianco, 20 N.Y.3d 540, 559, 964 N.Y.S.2d 456, 987 N.E.2d 233 [2013] [internal quotation marks omitted] ).  Here, Supreme Court properly concluded that SDHR's determination that there was no probable cause to believe that Roswell discriminated against petitioner is not arbitrary or capricious, and it has a rational basis in the record (see McDonald, 147 A.D.3d at 1483, 47 N.Y.S.3d 194;  Napierala, 140 A.D.3d at 1747, 32 N.Y.S.3d 797).