Opinion
109600/09.
2-18-2010
MILDRED BLOCK, Petitioner, v. PATRICIA L. GATLING, COMMISSIONER OF THE NEW YORK CITY COMMISSION ON HUMAN RIGHTS AND ARAMARK, INC., Respondents.
Attorney for Petitioner: SILBERMAN LAW FIRM. Attorney for City: CORPORATION COUNSEL. Attorney for Aramark: pro se (Aramark's legal dept.).
Motion Sequence Numbers 001 and 002 are hereby consolidated for disposition. In Motion Sequence Number 001, petitioner Mildred Block brings this special proceeding against Patricia L. Gatling, Commissioner of the New York City Commission on Human Rights (the "Commissioner"). Petitioner asks this court to review the Commissioner's determination and order after review, pursuant to Section 8-123 of Title 8 of the New York City Administrative Code, and, upon review, to reverse the determination and order. The Commissioner answers the petition and asserts affirmative defenses. In Motion Sequence Number 002, the Commissioner moves for dismissal of the petition for failure to state a cause of action, on the basis that the petition does not state grounds for reversing the Commissioner's determination. Aramark Sports, LLC s/h/a Aramark, Inc. ("Aramark") cross-moves for an order affirming the decision and dismissing the petition.
Petitioner is approximately eighty-three (83) years old and walks with a cane. She is employed by Aramark as a food and beverage vendor. Aramark held the contract to provide food and beverage concession services at Shea Stadium. On April 26, 2008, petitioner was reassigned from beer portable stand 121 ("Portable Stand 121"), where she had worked with a co-worker named James McKenna, to concession stand 125 ("Stand 125"). Mr. McKenna was not reassigned.
Petitioner's reassignment is the subject of a complaint that petitioner filed with the New York City Commission on Human Rights (the "Commission") against Aramark in or about June 2008. She charged that because of her age and disability, Aramark transferred her from her usual assignment, where she earned more money, to a lesser paying position. She asserted that at Portable Stand 121, she was earning tips at an average of $40 per shift, and at Stand 125, she did not earn tips. She rejected Aramark's explanation that she was reassigned due to excessive lines at her stand, and countered that most of the beer stands at Shea Stadium have lines between innings. Petitioner asserted that her younger, non-disabled co-worker, Mr. McKenna, was not transferred when she was, and that he continued to work at Portable Stand 121. She asserted that the "vast majority" of beer stands are operated by non-disabled employees under the age of 50. She also claimed that a manager for Aramark, Clete O'Connor, told her son, Martin Block, who also works at Shea Stadium, that petitioner is an "antique dinosaur, old cripple" that Aramark did not want in Citi Field.
Aramark filed an answer and position statement in response to petitioner's complaint, denying that petitioner was subjected to discrimination based on her disability or age. Aramark maintained that it had received reports of a problem with excessive lines at Portable Stand 121, and upon investigation determined that the situation resulted from petitioner's inability to serve the fans efficiently. Petitioner was then reassigned to Stand 125, which Aramark maintained is a comparable position, located in the same general area as Portable Stand 121, with no change to petitioner's rate of pay. Several times, Aramark's managers had explained to petitioner that she was moved due to an efficiency issue, but petitioner continued to raise the issue through her son, Mr. Block, who eventually threatened to file a lawsuit against Aramark for discrimination. Aramark maintained that it did not perceive petitioner as disabled and that she had never requested any accommodations to perform her job. Aramark contended that petitioner was not able to meet essential functions of the job in Portable Stand 121 due to her efficiency, not her disability. Pursuant to the collective bargaining agreement ("CBA") between Aramark and Local 153, Aramark retained the right to reassign employees as it chooses. Further, Aramark maintained that petitioner's position is not a "tipped" position, tips are not a guaranteed benefit, and it is a violation of company policy to solicit tips. Aramark denied that the vast majority of beer stands are operated by people under 50; rather, out of the approximately 30 employees assigned to its 22 beer portables, 15 of those individuals are over the age of 50. Also, none of the employees have a reported disability or are perceived to be disabled, including petitioner. Aramark contended that it did not reassign petitioner based on her age or any perceived disability—she had worked in her position with a cane for years without incident, and she was replaced with a 75-year-old employee named Gloria Smith.
Petitioner's rebuttal disputed the contentions in Aramark's answer. She maintained that the stands are always busy between innings, and that she and Mr. McKenna worked as a team at Portable Stand 121. She complained that one of the vice presidents of the Mets, Mike Landeen, who had been part of the decision-making process regarding her transfer, had a personal vendetta against her. She further contended that she had always been a good employee. She questioned whether she had been signaled out for poor job performance because of her religion (she is of the Jewish faith), her age, or her disability. She requested depositions of the fans who had complained about long lines at her stand. Petitioner dismissed a number of Aramark's statements as lies, and volunteered herself and her son to take a lie detector test to confirm that the statements in the rebuttal are true. Finally, petitioner requested that a claim of religious discrimination be added her charges on the basis that Mr. McKenna and Mr. O'Connor are both Irish, and she asked that the Commission obtain statements or depositions from Mr. McKenna and Ms. Smith.
Carols Velez, Executive Director of the Law Enforcement Bureau of the Commission, issued a determination and order after investigation, dated March 6, 2009, finding no probable cause to believe that Aramark engaged in the unlawful discriminatory practices alleged. In finding that it was highly unlikely that Aramark committed age discrimination, Mr. Velez credited the demographic data for the beer portable operators provided by Aramark, and the fact that when petitioner was removed from Portable Stand 121, she was replaced by another employee who was 75 years old. Regarding the disability claim, Mr. Velez cited the following factors—that petitioner had never requested an accommodation from Aramark, that Aramark did not consider petitioner disabled, and that petitioner had used a cane for about three years prior to her reassignment—as strongly undercutting petitioner's claim that she was reassigned due to her disability. Mr. Velez noted that pursuant to the CBA, concession stand workers can be assigned to any concession position at any time to maintain efficient operations, and that tips are not guaranteed nor is soliciting tips permissible. Therefore, because the CBA does not ensure any particular concession position, because petitioner continued to receive the same wage, and due to Aramark's tip policy, Mr. Velez found that petitioner had not experienced any change in the terms or conditions of her employment due to the reassignment. Mr. Velez cited petitioner's failure to submit any supporting evidence in rebuttal to demonstrate that Aramark's reason for the reassignment was pretextual. Finding insufficient evidence to substantiate her complaint of either age or disability discrimination, Mr. Velez dismissed petitioner's complaint.
By letter dated March 26, 2009, directed to the Chair of the Commission, petitioner's counsel requested that the Commission review the no probable cause determination. The letter focused on the fact that out of the two people working at Portable Stand 121, only one—petitioner—was reassigned, indicating that she was singled out and blamed for an issue for which two people shared responsibility. Counsel for petitioner contended that Aramark had not submitted any affidavits of facts and that all of the factual assertions made by Aramark were hearsay statements made to the human resources manager, who submitted documents on behalf of Aramark during the Commission's investigation. The letter questioned why Mr. O'Connor did not make a statement to the investigator, and also argued that Aramark only assigned Ms. Smith to Portable Stand 121 after petitioner's son threatened to file a discrimination complaint. Counsel for petitioner asked that the determination be reversed because it was flawed, or that a new investigation be ordered.
By letter dated March 31, 2009, the Commission invited comments from petitioner, Aramark, and the Law Enforcement Bureau, relating to petitioner's appeal. Petitioner submitted photographs depicting lines of people at food and beverage stands, which she asserted were taken at a baseball game with a crowd of 37,000 fans. Aramark asked that the Commission uphold Mr. Velez's finding of no probable cause. The Law Enforcement Bureau of the Commission, by Mark Wilson, submitted a letter rebutting petitioner's appeal letter, stating that the investigator properly gave credit to statements that were corroborated by the circumstances of the case and petitioner's own statements. Likewise, the investigator credited petitioner's factual statements and assertions where appropriate, even though petitioner's statements, other than her verified complaint, were also unsworn. Mr. Wilson also pointed out that petitioner's accusations that one of the vice presidents of the Mets, Mike Landeen, wanted her reassigned due to a long held personal grudge against her, undercut her claims of age and disability discrimination. Mr. Wilson noted that it was clear that petitioner's mobility impairment did not affect Aramark's decision to reassign her; although she had used a cane for years to get to and from the stand, she did not use the cane while working at the stand, nor did she require any accommodation to perform the job. Therefore, Mr. Wilson contended that Aramark's position that petitioner's disability had no influence on its decision to reassign her was entirely plausible. Finally, Mr. Wilson asserted that the claim of age discrimination was convincingly refuted by Aramark's placement of a 75-year-old employee in the position that petitioner had been reassigned from. While petitioner dismissed this as a "tactical" decision, Mr. Wilson stated that it was clear from its willingness to place the 75-year-old employee in petitioner's prior position that Aramark disregarded age as the reason for the reassignment.
The Commissioner, respondent Patricia L. Gatling, issued a determination and order after review, dated June 12, 2009. In consideration of petitioner's request for a review of the no probable cause determination, the Commissioner reviewed the complaint, the answer, the comments from all parties, the determination and order after investigation, and petitioner's request for the review. Upon review of these materials, the Commissioner affirmed the lower determination and order after investigation dismissing the complaint. This special proceeding to challenge the Commissioner's determination followed.
Petitioner asks that the Commissioner's determination be annulled and remanded for further investigation or public hearing, because her determination was not based on substantial evidence. Petitioner complains that the investigation was one-sided, abbreviated, incomplete, and improper. She asserts that the investigation was based solely on hearsay submissions of Aramark's corporate representatives and that Aramark's statements were accepted as true without obtaining witnesses' affidavits, conferencing with the decision-makers, or soliciting signed statements from employees other than the human resources manager. Petitioner maintains that the Commissioner made no attempt to contact her son, nor did the investigator obtain an affidavit from Mr. O'Connor regarding Mr. O'Connor's alleged derogatory statement to petitioner's son about his mother's age.
Under Section 8-123 of the Administrative Code of the City of New York, a party aggrieved by a final determination of the Commission may commence a special proceeding for judicial review of the determination. The court's review is limited to whether the findings of the Commission as to the facts "are supported by substantial evidence on the record considered as a whole." § 8-123(e). It is not within the court's discretion to "weigh the evidence or reject the Commission's determination where the evidence is conflicting and room for choice exists.'" In re Orlic v. Gatling, 44 AD3d 955, 956 (2d Dep't 2007) (citation omitted), quoting In re State Div. of Human Rights (Granelle), 70 NY2d 100, 106 (1987). If the Commission's findings are supported by substantial evidence, they must be regarded as conclusive. § 8-123(e). Substantial evidence means
"related to the charge or controversy and involves a weighing of the quality and quantity of the proof . . .; it means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact . . . . Essential attributes are relevance and a probative character . . . . Marked by its substance—its solid nature and ability to inspire confidence, substantial evidence does not rise from bare surmise, conjecture, speculation or rumor . . . . More than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt."
In re 119-121 E. 97th St. Corp. v. New York City Comm'n on Human Rights, 220 AD2d 79, 81-82 (1st Dep't 1996) (emphasis in original), quoting 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 NY2d 176, 180 (1978). "[W]here there is substantial or sufficient evidence to support an administrative determination, that determination must be sustained, irrespective of whether a similar quantum of evidence is available to support other varying conclusions.'" 119-121 E. 97th St. Corp., 220 AD2d at 82 (emphasis in original), quoting In re Collins v. Codd, 38 NY2d 269, 270 (1976).
The Commission's no probable cause determination is supported by substantial evidence. The investigation was not one-sided or abbreviated, as petitioner contends. The Commission "has broad discretion in determining the method to be employed in investigating a claim" (In re Levin v. New York City Comm'n on Human Rights, 12 AD3d 328, 329 [1st Dep't 2004]), as long as the investigation is sufficient and both sides are given a "full and fair opportunity" to present their claims. Stern v. New York City Comm'n on Human Rights, 38 AD3d 302, 302 (1st Dep't 2007). Petitioner complains that certain people were not interviewed or solicited for information, but it is clear that both parties submitted pleadings which contained various factual assertions and statements, and both were invited to submit evidence, all of which was considered. The Commission's determination focused on the uncontested facts and verifiable facts. Regarding the age discrimination claim, it was undisputed that a 75-year-old employee was assigned to Portable Stand 121 after petitioner was reassigned. Further, it was clear that respondent had considered petitioner's allegation that most of the employees who operate beer stands are under the age of 50, but that Aramark had credibly disputed this allegation with verifiable demographic data. These facts adequately supported respondent's findings that there was no probable cause to find that Aramark had engaged in age discrimination. Regarding the disability discrimination claim, it was undisputed that while petitioner does use a cane, she had used the cane for several years prior to the incident, and she had neither asked for an accommodation nor did she rely on the cane while working as a beer vendor. These facts adequately supported respondent's finding that there was no probable cause to determine that she had been transferred from Portable Stand 121 because of her alleged disability. Additionally, it was undisputed that pursuant to the CBA, concession stand workers can be reassigned to maintain efficient operations, that tips are not a benefit of the job nor is soliciting tips permitted, and that petitioner's wages did not change with the transfer. The CBA, the no-tip policy, and the fact that petitioner's salary did not change adequately supported respondent's finding that petitioner did not experience a change in the terms and conditions of her employment due to the transfer. Petitioner did not credibly rebut the facts that the Commission relied on in the determination, nor did petitioner's submissions during the Commissioner's review process call into question the Commission's determination after investigation.
Petitioner's request for a judgment reversing the Commissioner's determination and order after review, dated June 12, 2009, is denied, and the petition is dismissed. The Commissioner's motion to dismiss the petition and affirm the Commissioner's determination, and Aramark's crossmotion to affirm the Commissioner's determination, are granted.
This constitutes the decision, order, and judgment of the court.