Opinion
64826
07-23-2018
In the Matter of the Application of HONG WANG, Petitioner, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS; Precision Extrusion, Inc.; Pexco, LLC; and All-West Plastics, Inc., Respondents, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules.
Fitzgerald Morris Baker Firth P.C., Glens Falls (Asish A. Nelluvely and John D. Aspland, Jr. of counsel), for petitioner. Caroline J. Downey, General Counsel, State Division of Human Rights, New York City (Marilyn Balcacer and Aaron Woskoff of counsel), for respondent New York State Division of Human Rights. Nelson Mullins Riley & Scarborough LLP, Boston, Massachusetts (Bret A. Cohen of counsel), for respondents Precision Extrusion, Inc., Pexco LLC and All-West Plastics, Inc.
Fitzgerald Morris Baker Firth P.C., Glens Falls (Asish A. Nelluvely and John D. Aspland, Jr. of counsel), for petitioner.
Caroline J. Downey, General Counsel, State Division of Human Rights, New York City (Marilyn Balcacer and Aaron Woskoff of counsel), for respondent New York State Division of Human Rights.
Nelson Mullins Riley & Scarborough LLP, Boston, Massachusetts (Bret A. Cohen of counsel), for respondents Precision Extrusion, Inc., Pexco LLC and All-West Plastics, Inc.
Robert J. Muller, J.
Respondent Precision Extrusion, Inc. (hereinafter PEI) is a manufacturer of plastic tubing and catheters for use in medical procedures. It has a principal place of business in the City of Glens Falls, Warren County. In December 2015, it was acquired by respondent Pexco, LLC (hereinafter Pexco), a plastics manufacturer across medical, defense and industrial markets with a principal place of business in Alpharetta, Georgia. At the time of its acquisition, Michael J. Badera served as President and General Manager of PEI and petitioner Hong Wang served as Vice President and Chief Operating Officer. Badera and petitioner both signed Employment Agreements with Pexco and continued working in their respective positions following the acquisition. Their relationship with Pexco deteriorated, however, with Badera resigning in November 2016 and petitioner resigning in January 2017. Pexco then filed a lawsuit against Badera and petitioner in February 2017 alleging, inter alia , that they breached their Employment Agreements.
Respondent All-West Plastics, Inc. (hereinafter All-West) is a subsidiary of Pexco and the entity through which Pexco acquired PEI.
This lawsuit was discontinued in January 2018.
On May 2, 2017, petitioner—a 51-year-old woman of Chinese origin—filed a complaint with respondent New York State Division of Human Rights (hereinafter the Division) alleging that Pexco discriminated against her based upon her age, sex, race and national origin, which discrimination ultimately led to her resignation. Petitioner further alleged that the lawsuit was filed by Pexco in retaliation for a formal complaint she filed with Maurice Arellano—the President of Pexco's medical division—relative to the alleged discrimination. The Division conducted an investigation of the complaint and, on October 27, 2017, issued a Determination and Order finding no probable cause to believe that Pexco had engaged in the unlawful discrimination complained of by petitioner. Specifically, the Division found as follows:
The complaint filed with the Division named Pexco, PEI and All-West as respondents. For purposes of this discussion, however, respondents will be referred to collectively as Pexco.
"A review of the record indicates that [petitioner's] complaint against her co-workers ... enumerates a number of personality conflicts [she] encountered after the acquisition. This includes, but is not limited to, disagreeing with [Ralf Huther, the General Manager/Vice President of Sales of Pexco's medical division] over quotes, pricing, and management of the sales team, being offended when emails did not include pleasantries, and feeling that ... Huther, [Matthew Robida, the Vice President of Business Development at Pexco], and [John Reid, the Vice President of Human Resources at Pexco] were ‘speaking down’ to her. [Petitioner] was unable to proffer any evidence to link these actions and arguments to her age, sex, race, or national origin, except her own ‘feeling’ that there was a discriminatory animus. Mere personality conflict, however, must not be taken for unlawful discrimination, lest the antidiscrimination laws become a general civility code."
The Division further found that, "because the civil action filed by [Pexco] against [petitioner] was also filed against ... Badera, the action cannot be linked to retaliation against [petitioner]." The Division then dismissed the complaint and closed its file.
Presently before the Court is petitioner's CPLR article 78 proceeding for a Judgment annulling the finding of no probable cause and remanding the matter to the Division for further investigation. Petitioner also seeks counsel fees in connection with the proceeding.
"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" (Matter of McFarland v. New York State Div. of Human Rights , 241 AD2d 108, 111 [1998] ; see Matter of Curtis v. New York State Div. of Human Rights , 124 AD3d 1117, 1117-1118 [2015] ; Matter of Sonne v. New York State Div. of Human Rights , 12 AD3d 820, 821 [2004] ; Matter of Hone v. New York State Div. of Human Rights , 223 AD2d 761, 762 [1996] ; Matter of Giles v. State Div. of Human Rights , 166 AD2d 779, 780 [1990] ).
Petitioner first contends that the determination of no probable cause is arbitrary and capricious because the Division failed to conduct an adequate investigation. The Court, however, finds this contention to be without merit.
Executive Law § 297 (2) (a) provides as follows:
"After the filing of any complaint, the [D]ivision shall promptly serve a copy thereof upon the respondent and all persons it deems to be necessary parties, and make prompt investigation in connection therewith. Within one hundred eighty days after a complaint is filed, the [D]ivision shall determine whether it has jurisdiction and, if so, whether there is probable cause to believe that ... the respondent[ ] has engaged or is engaging in an unlawful discriminatory practice. If it finds with respect to any respondent that it lacks jurisdiction or that probable cause does not exist, the commissioner shall issue and cause to be served on the complainant an order dismissing such allegations of the said complaint as to such respondent."
The Division's Rules of Practice provide that an "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 [b] ). "[A]s long as the investigation is sufficient and the claimant afforded a full opportunity to present his [or her] claims, ‘[i]t is within the discretion of the [Division] to decide the method or methods to be employed in investigating a claim’ " (Matter of McFarland v. New York State Div. of Human Rights , 241 AD2d at 112, quoting Matter of Chirgotis v. Mobil Oil Corp. , 128 AD2d 400, 403 [1987] ; see 9 NYCRR 465.6 [b] ). Indeed, "a finding of no probable cause has been upheld in instances where the Division conducted an investigation, otherwise sufficient, but did not include a fact-finding conference" (Matter of McFarland v. New York State Div. of Human Rights , 241 AD2d at 112 ; see e.g. Lee v. New York State Human Rights Appeal Bd. , 111 AD2d 748, 749 [1985] ; Matter of Taber v. New York State Human Rights Appeal Bd. , 64 AD2d 990, 991 [1978] ).
Here, the Division reviewed petitioner's complaint, as well as Pexco's response—which attached voluminous email exchanges between petitioner and her co-workers, many of whom were alleged to have participated in the discrimination—and petitioner's written rebuttal to the response. The Division then conducted a one-party conference with Pexco on October 6, 2017, interviewing four witnesses—namely, Robida, Huther, Arellano and Reid—and a one-party conference with petitioner on October 12, 2017, interviewing two witnesses—namely, petitioner and Badera. The Division took extensive notes at each of these conferences, outlining what was said during the witness interviews. Copies of these notes were emailed to the parties on October 19, 2017 with a message advising as follows: "You have an opportunity to ... respond to these notes. If you would like to provide a response, please do so in writing by October 26, 2017." Petitioner then submitted a response at 10:52 P.M. on October 26, 2017—after the close of business—and the Division declined to consider it.
Under these circumstances, the Court finds that the Division's investigation was sufficient and afforded petitioner ample opportunity to present her claims (see Matter of Curtis v. New York State Div. of Human Rights , 124 AD3d at 1118 ; Matter of Taber v. New York State Human Rights Appeal Bd. , 64 AD2d at 991 ). While the Division did not hold a fact-finding or confrontation conference, it reviewed extensive documentation and conducted one-party conferences at which petitioner and Pexco were permitted to present witnesses. The Division further provided the parties with an opportunity to review the detailed notes taken at each of the conferences and submit a response. While petitioner contends that the Division erred in rejecting her response, this contention is without merit. To the extent that the parties were directed to submit their responses by October 26, 2017, it certainly was not unreasonable for the Division to reject a response received after the close of business on October 26, 2017—especially one received at nearly 11:00 P.M.
Petitioner next contends that the determination of no probable cause is arbitrary and capricious because the Division prepared the Determination and Order prior to completion of the investigation. This contention is also unavailing.
While the Determination and Order is dated October 24, 2017—two days prior to the deadline for submission of the parties' responses to the conference notes—Victor P. DeAmelia, the Division's Regional Director who signed the Determination and Order, called counsel for petitioner on November 2, 2017 and advised that the date was written in error. He indicated that the Determination and Order should have been dated October 27, 2017, like the Final Investigation Report and Basis of Determination and the Affidavit of Service. Petitioner has failed to submit any evidence to contradict these statements. While the Division's file includes an entry by Cecilia Hassett—a member of the Division's staff who assisted DeAmelia with the investigation—indicating that the Final Investigation Report and Basis of Determination was given to DeAmelia for review on October 24, 2017, there is nothing to suggest that the determination was finalized on that date. The Court therefore finds this entry to be irrelevant.
Finally, petitioner contends that the determination of no probable cause is arbitrary and capricious because the Division improperly weighed the evidence and resolved issues of credibility in favor of Pexco. In advancing this argument, it appears that petitioner has misconstrued the appropriate standard of review.
"Courts give deference to [the Division] due to its experience and expertise in evaluating allegations of discrimination" (Matter of Curtis v. New York State Div. of Human Rights , 124 AD3d at 1118 ). The Division is free to consider and weigh any information obtained through its investigation and can certainly credit the statements of one witness over those of another. The sole inquiry before the Court is whether the Division's ultimate determination is supported by a rational basis (see Matter of Curtis v. New York State Div. of Human Rights , 124 AD3d at 1117-1118 [2015] ; Matter of Sonne v. New York State Div. of Human Rights , 12 AD3d at 821 ; Matter of McFarland v. New York State Div. of Human Rights , 241 AD2d at 111 ; Matter of Hone v. New York State Div. of Human Rights , 223 AD2d at 762 ; Matter of Giles v. State Div. of Human Rights , 166 AD2d at 780 ).
Here, the Court finds that the Division's determination is amply supported by a rational basis. While petitioner's allegations of discrimination are too numerous to recount in the context of this analysis suffice it to say that each can easily be attributed not only to personality conflicts, but also to the animus which arose from Pexco's acquisition of PEI. To highlight but a few examples of the alleged discrimination, petitioner claimed that she was discriminated against when Robida sent an email to her and Badera in January 2016 addressing them as "guys" and otherwise failing to use pleasantries. Petitioner felt disrespected by the email and complained to both Robida and Reid. When asked by the Division about the incident, Robida indicated that he did not intend to disrespect petitioner and apologized for the email. He also indicated that "sometimes emails [were] sent in a business manner, and they [were not] intended to be discourteous."
Petitioner further alleged that she was discriminated against in May 2016 when she and Badera were directed to meet with Reid and three other vice presidents at Pexco via telephone. During this meeting, petitioner was advised that information technology responsibilities were being taken away from her and given to other employees at Pexco. According to petitioner,
"[t]he reason given for the change was that the Human Resources and Information Technology manager, Barbara Samiley, had helped [me] with some email problems that [I] encountered while traveling to China on a business trip. The meeting was designed to bully and humiliate [me], as the implication was that [I] had done something wrong ..."
When asked by the Division about this incident, Reid stated: "From the beginning of the acquisition we all knew we were going to be moving forward with addressing IT. Barbara Samiley [was not] formally trained. [Petitioner] didn't complain about the switch."
Petitioner alleged that she was discriminated against again in May 2016 when she was improperly excluded from a meeting at the Pexco headquarters and escorted to a cubicle. When asked about this incident by the Division, Robida stated that petitioner was not included in the meeting because she was not a medical division executive. Specifically, he stated as follows:
"[Petitioner] was never expected to be included in the ... medical division executive's meeting. We thought Mr. Badera might be, and we were giving him a taste of that. The business was starting to slowly be integrated, just trying to expose them....
"The meeting may have taken place, and maybe she was shown where she could sit for that day. They were visiting the Atlanta site in May for their April review. One reason was to expose them to the corporate headquarters, and to meet the other leaders. But [petitioner] was never escorted anywhere, or pulled from the meeting. The only [thing] I can think of is that she was probably just shown to a seat for a guest. Even Mr. Huther would sit in a cubicle when he visited, we just didn't have the space at that site for everyone to maintain an office."
It must also be noted that Badera—who is of a different age, sex, race and national origin than petitioner—had experiences similar to that of petitioner and also lost much of his status and authority at PEI. Indeed, he ultimately resigned two months prior to petitioner.
Based upon the foregoing, the relief requested is denied in its entirety and the petition dismissed.
To the extent not considered herein, petitioner's remaining arguments have been considered and found to be lacking in merit.
Therefore, having considered the Petition with exhibits attached thereto, verified December 21, 2017; Memorandum of Law of Asish A. Nelluvely, Esq., dated December 21, 2017; Answer of respondent New York State Division of Human Rights with exhibit attached thereto, verified January 26, 2018; Administrative Record of respondent New York State Division of Human Rights, certified January 24, 2018; Answer of respondents Precision Extrusion, Inc., Pexco LLC and All-West Plastics, Inc., verified January 22, 2018; Memorandum of Law of Bret A. Cohen, Esq. with exhibits attached thereto, dated January 25, 2018; Reply Affirmation of Asish A. Nelluvely, Esq. with exhibits attached thereto, dated February 12, 2018, and oral argument having been heard on July 19, 2018 with John D. Aspland, Jr., Esq. appearing on behalf of petitioner, Aaron Woskoff appearing on behalf of respondent New York State Division of Human Rights and Bret A. Cohen, Esq. appearing on behalf of respondents Precision Extrusion, Inc., Pexco LLC and All-West Plastics, Inc., it is hereby
The Court notes that the Affidavits of Hong Wang and Michael J. Badera, both sworn to February 12, 2018, are attached to this Affirmation as Exhibits "H" an "I," respectively.
ORDERED AND ADJUDGED that the relief requested is denied in its entirety; and it is further
ORDERED AND ADJUDGED that the petition is dismissed.
The original of this Decision and Judgment has been filed by the Court together with the Notice of Petition dated December 21, 2017 and the above-referenced submissions. Counsel for respondent New York State Division of Human Rights is hereby directed to promptly obtain a filed copy of the Decision and Judgment for service with notice of entry in accordance with CPLR 5513.