Town of Lumberland v. New York State Div. of Human Rights

• Decision Date: 03 July 1996
• Citation: 229 A.D.2d 631,644 N.Y.S.2d 864
• Parties: In the Matter of TOWN OF LUMBERLAND, Petitioner, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 864

644 N.Y.S.2d 864

229 A.D.2d 631

In the Matter of TOWN OF LUMBERLAND, Petitioner, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS et al., Respondents.

Supreme Court, Appellate Division Third Department.

July 3, 1996.

Brian T. Edwards (Michael Davidoff, of counsel), Monticello, for petitioner.

Lawrence Kunin, New York State Division of Human Rights (Sheila A. Donohue, of counsel), Buffalo, for New York State Division of Human Rights, respondent.

Before CARDONA, P.J., and MERCURE, WHITE, CASEY and SPAIN, JJ.

SPAIN, Justice.

Proceeding pursuant to Executive Law § 298 (transferred to this court by order of the Supreme Court, entered in Sullivan County) to review a determination of respondent State Division of Human Rights which found petitioner guilty of an unlawful discriminatory practice relating to employment.

In 1984 respondent Anne Golembiowsky was appointed by petitioner to the part-time position of Constable subject to reappointment in January of each year. Petitioner's constabulary force is managed by the Town Supervisor, the Constabulary Liaison (who is appointed by the Town Board and who acts as the administrator of the constabulary force) and the Chief Constable. ¹ Golembiowsky was subsequently reappointed as Constable in 1985, 1986 and 1987. In 1986 Charles O'Neill was also appointed by petitioner as a Constable. Thereafter, O'Neill openly refused to patrol with Golembiowsky as his partner because she was a female; according to Golembiowsky, who was the only female on the constabulary, O'Neill told her that he was afraid she would rape him. O'Neill also told Golembiowsky and other Constables that he did not appreciate having a female Constable on the force and that he did not believe that a woman should be working in that capacity.

In 1987 O'Neill became Chief Constable and, as such, became Golembiowsky's supervisor. He continued to make sexual remarks to Golembiowsky and about her to other Constables such as, "How's your girlfriend?", "Did you get any tonight?", and "What did you do when you parked?" ² On one occasion O'Neill made a remark to Golembiowsky, in front of a group of firefighters, to the effect of "[l]ook at those hips, swing it baby" and "with the gun on my hip you tend to roll a little"; O'Neill also accused Golembiowsky of having affairs with other Constables. Such remarks made Golembiowsky "very uncomfortable" and she found O'Neill to be "very intimidating". After telling O'Neill that she found his behavior offensive and lodging oral complaints with the Town Supervisor, Golembiowsky submitted a letter of complaint regarding O'Neill to the Town Board in March 1987. The Constabulary Liaison at the time testified that he felt that the problems were a "personality clash" which did not affect petitioner or the constabulary and therefore he "did nothing".

In April 1987, after being told by the Town Supervisor that she should ignore O'Neill's remarks, Golembiowsky filed a complaint with respondent State Division of Human Rights. The complaint alleged that O'Neill had been making derogatory remarks regarding Golembiowsky's personal life and her family and that he refused to patrol with her. In May 1987 the Town Supervisor received three letters of complaint regarding Golembiowsky's behavior at a court appearance to prosecute a ticket which she had issued. Shortly thereafter, the Constabulary Liaison, citing vagueness and misrepresentations in a report which Golembiowsky had written regarding the matter, relieved Golembiowsky of her duties as a Constable and submitted a report to the Town Board explaining his reasons for doing so. The report also referenced Golembiowsky's failure to qualify with the shotgun in 1986 and an alleged misrepresentation as to the reason why she had failed to qualify. Within the week a Town Board meeting was held to review the report and Golembiowsky's suspension was revoked; no disciplinary action was taken against her.

In June 1987, during a meeting at which Golembiowsky, O'Neill and Town Board members were present, Golembiowsky was told that if she did not withdraw the pending complaint she would be fired. At the same meeting, O'Neill was told, and agreed, to stop making derogatory remarks toward Golembiowsky, to start patrolling with her and to treat her as an equal. Also in June 1987, the Town Supervisor spoke with, and wrote a letter to, Golembiowsky stressing the importance of accurately completing traffic and parking tickets. Subsequently, in August 1987, Golembiowsky withdrew the complaint which she had filed against O'Neill with the Division. O'Neill's conduct persisted, however, and Golembiowsky had at least one meeting with the Town Supervisor regarding such conduct subsequent to her withdrawal of the complaint. In January 1988 Golembiowsky was reappointed to her position as Constable. The Town Supervisor received a verbal complaint, in September 1988, that Golembiowsky had made an unsafe turn in front of opposing traffic and, in October 1988, he received a letter of complaint from a citizen who claimed he had been detained by Golembiowsky in excess of 2 1/2 hours. Contrary to recently instituted procedure, no investigations of these complaints were ever conducted.

Prior to the January 1989 Town Board meeting at which the vote for Constable reappointments was made, the Town Supervisor met individually with various Board members to discuss complaints which had been lodged against Golembiowsky and whether to reappoint her. Thereafter, Golembiowsky was the only Constable not reappointed and her position was filled by a male, with the Town Board passing over another female applicant. Upon inquiry as to why she had not been reappointed, the Town Supervisor told Golembiowsky that she had too many complaints in her file.

In April 1989 Golembiowsky filed a new complaint with the Division. After an administrative hearing an Administrative Law Judge (hereinafter ALJ) recommended, inter alia, that Golembiowsky be awarded $250,000 as compensatory damages for the mental anguish and humiliation she suffered as a result of petitioner's sexual harassment, retaliation discrimination and sex discrimination. In March 1995 the Division's Commissioner essentially adopted the ALJ's findings but reduced the award of compensatory damages to $150,000. Pursuant to Executive Law § 298, petitioner commenced this proceeding and, subsequent to the addition of the Division as a party, the proceeding was transferred to this court.

Initially we reject petitioner's contention that the ALJ abused her discretion in permitting Golembiowsky to amend the complaint to include a claim for sexual discrimination. The complaint which Golembiowsky filed stated that she was the only woman on the constabulary force and that she had been denied equal employment "terms, conditions and privileges"; the complaint also made specific reference to the April 1987 complaint in which Golembiowsky charged O'Neill with sexual harassment. At the outset of the hearing, Golembiowsky moved to amend the complaint to include a charge of sexual discrimination and almost two months elapsed between the beginning and end of the hearing. CPLR 3025(c) states that "[t]he court may permit pleadings to be amended before or after judgment to conform them to the evidence, upon such terms as may be just" (emphasis supplied). The rationale behind such provision is that "[i]f there is nothing in the nature of the amendment as to which [the nonmoving party] can claim prejudice, the proof at trial should be given the upper hand and defects in pleading either overlooked or conformed to the proof adduced" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3025:15, at 364). In our view, petitioner had adequate notice of Golembiowsky's intention to present evidence regarding sexual discrimination and ample time to conduct an investigation of these allegations so as to properly defend itself.

We move next to petitioner's assertion that the one-year filing requirement is a complete bar to the relief granted to Golembiowsky (see, Executive Law § 297[5]; see also, 9 NYCRR 465.3[e] ) and reject petitioner's assertion that the continuing violation exception is not applicable. Petitioner's argument that the appropriate test is whether the alleged discriminatory practice had a continuing economic impact on the complainant is unavailing (see, e.g., Tiffany & Co. v. Smith, 224 A.D.2d 332, 638 N.Y.S.2d 454; State Div. of Human Rights v. Burroughs Corp., 73 A.D.2d 801, 423 N.Y.S.2d 725, affd. 52 N.Y.2d 748, 436 N.Y.S.2d 276, 417 N.E.2d 570), especially in light of this court's holding that a complaint alleging a " 'climate of sex discrimination' " was sufficiently broad to encompass discriminatory acts of a continuing nature and were, therefore, not time barred despite the complainant's filing of the complaint more than one year after being given notice of her termination (Matter of Horn v. New York State Human Rights Appeal Bd., 75 A.D.2d 978, 979, 428 N.Y.S.2d 368). O'Neill's verbal harassment and his consistent refusal to patrol with Golembiowsky up until the time at which she was not reappointed had a continuing impact on her work environment and the performance of her employment duties and should therefore be classified as discriminatory acts of a continuing nature (see, id., at 979, 428 N.Y.S.2d 368). Accordingly, all of O'Neill's actions were properly considered in the evaluation of Golembiowsky's complaint (see, 9 NYCRR 465.3[e] ).

We also reject petitioner's assertion that the Commissioner's findings are not supported by substantial evidence (see, Matter of Consolidated Edison Co. of N.Y. v. New York State Div. of Human Rights, 77 N.Y.2d 411, 417, 568 N.Y.S.2d 569, 570 N.E.2d 217; 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 179-180, 408...