Russo v. N.Y.S. Div. of Human Rights

• Decision Date: 18 March 2016
• Citation: 28 N.Y.S.3d 156,137 A.D.3d 1600
• Parties: In the Matter of Arthea RUSSO, Petitioner, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS and City of Jamestown Police Department, Respondents.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 1600
28 N.Y.S.3d 156

In the Matter of Arthea RUSSO, Petitioner,
v.
NEW YORK STATE DIVISION OF HUMAN RIGHTS and City of Jamestown Police Department, Respondents.

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

March 18, 2016.

28 N.Y.S.3d 158

Law Office of Lindy Korn, PLLC, Buffalo (Lindy Korn of Counsel), for Petitioner.

Caroline J. Downey, General Counsel, Bronx (Marilyn Balcacer of Counsel), for Respondent New York State Division of Human Rights.

Bond, Schoeneck & King, PLLC, Buffalo (Mark A. Moldenhauer of Counsel), for Respondent City of Jamestown Police Department.

PRESENT: CENTRA, J.P., LINDLEY, TROUTMAN, AND SCUDDER, JJ.

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, 763 N.Y.S.2d 518, 794 N.E.2d 660 ; Matter of State Div. of Human Rights [Granelle], 70 N.Y.2d 100, 106, 517 N.Y.S.2d 715, 510 N.E.2d 799 ). "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, 517 N.Y.S.2d 715, 510 N.E.2d 799 ; see Rainer N. Mittl, Ophthalmologist, P.C., 100 N.Y.2d at 331, 763 N.Y.S.2d 518, 794 N.E.2d 660 ; Matter of City of Niagara Falls v. New York State Div. of Human Rights, 94 A.D.3d 1442, 1443–1444, 943 N.Y.S.2d 321 ).

Contrary to petitioner's contention, there is substantial evidence to support the determination that she was not discriminated against based on her gender. "To establish a prima facie case of employment discrimination, petitioner was required to demonstrate that she was a member of a protected class, that she was qualified for her position, that she was terminated from employment or suffered another adverse employment action, and that the termination or other adverse action ‘occurred under circumstances giving rise to an inference of discriminatory motive’ " (Matter of Lyons v. New York State Div. of Human Rights, 79 A.D.3d 1826, 1827, 913 N.Y.S.2d 586, lv. denied 17 N.Y.3d 707, 2011 WL 3925225, quoting ...