Opinion
65616
03-20-2019
In the Matter of the Application of Amy Christine SCHWINDT, Petitioner, For Judgment Pursuant to Article 78 of the New York Civil Practice Law and Rules v. NIAGARA MOHAWK POWER CORP. d/b/a National Grid, Daniel Dechiaro and New York State Division of Human Rights, Respondents.
Luibrand Law Firm, PLLC, Latham (Kevin A. Luibrand, of counsel), for petitioner. Bond Schoeneck & King PLLC, Syracuse (Robert A. LaBerge, of counsel) and Sonya D. Johnson, Senior Counsel, National Grid, Brooklyn, for Niagara Mohawk Power Corp. d/b/a National Grid and Daniel DeChiaro, respondents. Caroline J. Downey, General Counsel, State Division of Human Rights, Bronx (Marilyn Balcacer, of counsel), for New York State Division of Human Rights, respondent.
Luibrand Law Firm, PLLC, Latham (Kevin A. Luibrand, of counsel), for petitioner.
Bond Schoeneck & King PLLC, Syracuse (Robert A. LaBerge, of counsel) and Sonya D. Johnson, Senior Counsel, National Grid, Brooklyn, for Niagara Mohawk Power Corp. d/b/a National Grid and Daniel DeChiaro, respondents.
Caroline J. Downey, General Counsel, State Division of Human Rights, Bronx (Marilyn Balcacer, of counsel), for New York State Division of Human Rights, respondent.
Martin D. Auffredou, J.
Petitioner commenced this proceeding pursuant to CPLR Article 78, seeking to reverse the "Determination and Order After Investigation" ("Determination") of respondent New York State Division of Human Rights ("NYSDHR"), dated May 18, 2018, which dismissed petitioner's claim of discrimination/retaliation against her employer for lack of probable cause and remanding the matter back to NYSDHR for a public hearing. Petitioner alleges that NYSDHR applied facts from a different and unrelated case, and failed to interview material witnesses identified by petitioner and, as such, the Determination is arbitrary and capricious and should be reversed and vacated.
On November 20, 2017, petitioner filed a verified complaint, with attachments, with NYSDHR alleging a hostile work environment based upon her gender, and retaliation for having previously complained of discrimination in 2009. On or about December 21, 2017, respondents Niagara Mohawk Power Corp. d/b/a National Grid and Daniel DeChiaro (collectively, "respondents") submitted their responsive position statement in opposition to petitioner's complaint. Petitioner submitted a rebuttal to respondents' response on or about January 1, 2018. Petitioner furnished additional information to NYSDHR in the form of "side notes" on or about January 6, 2018 and subsequently provided to the NYSDHR a list of potential witnesses with proposed questions for each. A two-party conference, which lasted for three hours, was held on April 24, 2018. Following that conference, on or about April 27, 2018, petitioner provided a summation and a second list of witnesses, with proposed questions. On or about April 30, 2018, respondents provided a response to NYSDHR's Production of Records notice. On or about May 4, 2018, respondents submitted a summation letter, with enclosures. On May 17, 2018, NYSDHR issued a "Final Investigation Report and Basis for Determination," setting forth a "Case Summary," "Summary of Investigation" and "Basis for Determination" ("Final Investigation Report"). The Final Investigation Report notes that witnesses were interviewed. On May 18, 2018, NYSDHR issued its "Determination and Order After Investigation," finding no probable cause and dismissing petitioner's claim of discrimination/retaliation.
Petitioner commenced the instant proceeding, by the filing of a notice of petition and verified petition, on or about July 23, 2018. NYSDHR filed an answer, with exhibit, on or about October 17, 2018. Respondents filed a verified answer, dated October 19, 2018, a transcript of the administrative record, certified on October 15, 2018, and an affidavit of respondent Daniel DeChiaro, sworn to October 18, 2018, with exhibits, an affidavit of Wanda Grace, sworn to October 19, 2018, with exhibits, and a memorandum of law, dated October 19, 2018, in opposition to the petition. Petitioner also filed a reply affirmation of Kevin A. Luibrand, Esq., dated November 1, 2018, in further support of the petition. The Court has reviewed and considered all of the foregoing in reaching its decision, as well as the oral argument held on November 19, 2018.
In its answer, NYSDHR requests that the Court remand the matter to NYSDHR, pursuant to 9 NYCRR § 465.20 [a] [2], for further investigation and analysis and in order to correct the Final Investigation Report, which contains language from an unrelated case. In their answer and opposition, respondents seek judgment dismissing the petition. Respondents contend that NYSDHR no longer has authority over the matter and oppose remand. Petitioner opposes remanding for further investigation and requests that the matter be remanded for a public hearing.
Pursuant to 9 NYCRR § 465.20 [a] [2], for good cause, NYSDHR may request the court remand a case which has been dismissed for lack of probable cause. Further, Executive Law § 298 provides, in pertinent part, that in a case involving an order dismissing a complaint, "[a]ny party may move the court to remit the case to the division in the interests of justice for the purpose of adducing additional specified and material evidence and seeking findings thereon, provided he or she shows reasonable grounds for the failure to adduce such evidence in prior proceedings."
The Court finds that, despite the error in the Final Investigation Report, "remittal is not warranted under the circumstances inasmuch as the basis of the [NYSDHR] determination is clearly expounded in its attached final report and there is a sufficient record for the Court to review" (In re Ferguson v. New York State Div. of Human Rights , 2012 NY Slip Op. 31820[U] [Sup Ct, Suffolk County 2012], affd sub nom. Ferguson v. New York State Div. of Human Rights , 2014 NY Slip Op. 05641 [2d Dept, null 2014] [Division of Human Rights' determination omitted basis of finding of no probable cause; Division requested Court remit so it might issue no probable cause determination listing reasons for dismissal of complaint; Court denied remittal] ). Thus, the Court will decide the petition on the merits.
"Where, as here, a determination of no probable cause is rendered without holding a public hearing pursuant to Executive Law § 297(4)(a), the appropriate standard of review is whether the determination was arbitrary and capricious or lacking a rational basis" ( McFarland v. New York State Div. of Human Rights , 241 AD2d 108, 111 [1st Dept 1998] ; see also Curtis v. New York State Div. of Human Rights , 124 AD3d 1117, 1117-18 [3d Dept 2015] ; Orosz v. New York State Div. of Human Rights , 88 AD3d 798, 798 [2d Dept 2011] ). Courts afford NYSDHR deference, due to its experience and expertise in evaluating allegations of discrimination (see Curtis , 124 AD3d at 1118 ).
"An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts. If the court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency." ( Peckham v. Calogero , 12 NY3d 424, 431 [2009], citing Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974].) "Further, courts must defer to an administrative agency's rational interpretation of its own regulations in its area of expertise" (Id. [internal citation omitted] ).
The Court does not find the Determination to be arbitrary, capricious or irrational.
While the Basis for Determination section of the Final Investigation Report sets forth facts which do not pertain to petitioner and appear to be related to another complaint, the Case Summary and Summary of Investigation portions of the Final Investigation Report set forth facts related to petitioner and underlying petitioner's complaint. More importantly, the Determination which petitioner seeks to annul, which is the controlling document subject to review in this proceeding, clearly sets forth facts pertinent solely to petitioner's complaint and the investigation thereof, before setting forth NYSDHR's determination. Therefore, the Court does not find that the inclusion in the Final Investigation Report of language which is not relevant to the case at hand renders the Determination arbitrary or capricious or without a rational basis.
Moreover, NYSDHR's alleged "failure" to interview witnesses identified by petitioner does not render the Determination arbitrary or capricious or without a sound basis.
NYSDHR "has broad discretion in determining the method to be employed in investigating a claim" ( McFarland , 241 AD2d at 111 ). "[A]s long as the investigation is sufficient and the claimant afforded a full opportunity to present his claims, ‘[i]t is within the discretion of the [Division] to decide the method or methods to be employed in investigating a claim.’ " ( McFarland , 241 AD2d at 112, quoting Chirgotis v. Mobil Oil Corp. , 128 AD2d 400, 403 [1st Dept 1987] ). "Such investigation may be made by field visit, written or oral inquiry, conference, or any other method or combination thereof deemed suitable in the discretion of the regional director or the director of regional affairs" ( 9 NYCRR § 465.6 [2] ). NYSDHR's determination will not be overturned unless the record demonstrates that its investigation was abbreviated or one-sided. ( Conte v. City of New York Dept. of Sanitation (DSNY) , 159 AD3d 640, 641 [1st Dept 2018], quoting Pascual v. New York State Div. of Human Rights , 37 AD3d 215, 216 [1st Dept 2007] ).
Petitioner has not demonstrated that the investigation was abbreviated or one sided. Petitioner was given a full and fair opportunity, via written submissions, a three-hour conference and a post-conference summation, to present her case and to rebut respondents' case (see Conte , 159 AD3d at 641 ; Pascual v. New York State Div. of Human Rights , 37 AD3d 215, 216 [1st Dept 2007] ). As such, NYSDHR's decision not to interview certain witnesses does not warrant remittal for further investigation or reversal of the Determination.
Based upon the foregoing, it is hereby
ORDERED that the petition is denied, the Determination of NYSDHR is confirmed and the proceeding is dismissed.
The within constitutes the Decision and Order of this Court.