Summary
finding that the specific conduct alleged by the petitioner in the complaint, if true, is legally insufficient to establish that the workplace was "permeated with discriminatory intimidation, ridicule and insult isolated remarks or occasional episodes of harassment will not support a finding of a hostile or abusive work environment"
Summary of this case from Hernandez v. Weill Cornell Med. Coll.Opinion
No. 4410.
March 3, 2011.
Order and judgment (one paper), Supreme Court, New York County (Carol R. Edmead, J.), entered December 1, 2009, granting defendant-respondent Wilson, Elser, Moskowitz Edelman Dicker, LLP's (the law firm) cross motion to deny and dismiss the petition to vacate the determination of defendant New York State Division of Human Rights (DHR), dated March 4, 2009, which found no probable cause to believe that the law firm had engaged in or was engaging in the unlawful discriminatory practice complained of and dismissed the complaint, unanimously affirmed, without costs.
Law Office of Kenneth W. Richardson, New York (Kenneth W. Richardson of counsel), for appellant.
Wilson, Elser, Moskowitz, Edelman Dicker LLP, New York (Nancy V. Wright of counsel), for respondent.
Before: Saxe, J.P., Sweeny, Catterson, Freedman and Román, JJ.
Petitioner contends that DHR's determination was arbitrary and capricious in that DHR failed to investigate and consider petitioner's claim that she was subjected to a hostile work environment by the law firm. However, this claim was not reasonably discernable from the complaint petitioner filed with DHR. A claim not raised before an administrative agency may not be raised for the first time in a CPLR article 78 proceeding ( see Matter of Johnson v New York State Tax Commn., 117 AD2d 867, 868; Matter of Seitelman v Lavine, 36 NY2d 165, 170).
Moreover, the specific conduct alleged by petitioner in the complaint and petition, if true, is legally insufficient to establish that the workplace was "permeated with `discriminatory intimidation, ridicule and insult' that [was] `sufficiently severe or pervasive to alter the conditions of [her] employment'" ( see Harris v Forklift Systems, Inc., 510 US 17, 21 [citation omitted]). "[I]solated remarks or occasional episodes of harassment will not support a finding of a hostile or abusive work environment" ( see Matter of Father Belle Community Ctr. v New York State Div. of Human Rights, 221 AD2d 44, 51, lv denied 89 NY2d 809 [citations omitted]). There was no evidence of record which established that the specific incidents described in the petition were anything more than isolated, occasional or benign.
[Prior Case History: 25 Misc 3d 1201(A), 2009 NY Slip Op 51951(U).]