Opinion
09-30-2016
In the Matter of Rachel FIGUEROA, Petitioner, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS and Buffalo City School District, Respondents.
Law Office of Lindy Korn, PLLC, Buffalo (Charles Miller of Counsel), for Petitioner. Caroline J. Downey, General Counsel, Bronx, for Respondent New York State Division of Human Rights. Goldberg Segalla LLP, Buffalo (Kristin K. Wheaton of Counsel), for Respondent Buffalo City School District.
Law Office of Lindy Korn, PLLC, Buffalo (Charles Miller of Counsel), for Petitioner.
Caroline J. Downey, General Counsel, Bronx, for Respondent New York State Division of Human Rights.
Goldberg Segalla LLP, Buffalo (Kristin K. Wheaton of Counsel), for Respondent Buffalo City School District.
PRESENT: WHALEN, P.J., CARNI, LINDLEY, DeJOSEPH, AND NEMOYER, JJ.
MEMORANDUM: Petitioner Rachel Figueroa commenced this proceeding and petitioner Ashleigh Schwallie commenced a separate proceeding (Matter of Schwallie v. New York State Div. of Human Rights, 142 A.D.3d 1319, 38 N.Y.S.3d 465 [2016] ) pursuant to Executive Law § 298 seeking to annul the determination of respondent New York State Division of Human Rights (Division) dismissing their complaints alleging sexual harassment and retaliation. At the time of the alleged employment discrimination, petitioners were employed by respondent Buffalo City School District (District) at the same school.
At the outset, we conclude that the District waived its contention that the petitions should be dismissed for lack of jurisdiction based upon the alleged failure of petitioners to serve the District in accordance with CPLR 311(a)(7). Those objections to service were raised in the District's answers, and the District failed to move to dismiss the petitions on that ground within 60 days after serving its answers (see CPLR 3211[e] ; Anderson & Anderson, LLP–Guangzhou v. Incredible Invs. Ltd., 107 A.D.3d 1520, 1521, 968 N.Y.S.2d 281 ; Matter of Resnick v. Town of Canaan, 38 A.D.3d 949, 951, 832 N.Y.S.2d 102 ). We also reject the District's contention that the proceedings were not timely commenced, inasmuch as the limitations period commenced on the date of service of the Division's order and the record does not establish the date of such service (see Matter of Fantauzzi v. New York State Div. of Human Rights, 113 A.D.3d 518, 519, 979 N.Y.S.2d 55 ).
On the merits, however, we agree with the District that substantial evidence supports the determination of the Division that the District is not liable for the coworker's discriminatory conduct. “Under the Human Rights Law, an ‘employer cannot be held liable for an employee's discriminatory act[s] unless the employer became a party to [them] by encouraging, condoning, or approving [them]’ ” (Matter of New York State Div. of Human Rights v. ABS Elecs., Inc., 102 A.D.3d 967, 968, 958 N.Y.S.2d 502, lv. denied 24 N.Y.3d 901, 2014 WL 4357465, quoting Matter of Totem Taxi v. New York State Human Rights Appeal Bd., 65 N.Y.2d 300, 305, 491 N.Y.S.2d 293, 480 N.E.2d 1075, rearg. denied 65 N.Y.2d 1054, 494 N.Y.S.2d 1034, 484 N.E.2d 1056 ). Petitioners failed to establish that the District became a party to the discriminatory conduct. “Rather, the record establishes that [the District] ‘reasonably investigated complaints of discriminatory conduct and took corrective action’ ” (Matter of Gordon v. New York State Dept. of Corr. & Community Supervision, 138 A.D.3d 1477, 1479, 31 N.Y.S.3d 338 ). Substantial evidence also supports the determination of the Division that petitioners were not subjected to retaliation for complaining about unlawful discrimination. Although petitioners established a prima facie case of retaliation, the District “came forward with ‘legitimate, independent, and nondiscriminatory reasons to support its employment decision[s]’ ” (Matter of Childs v. New York State Div. of Human Rights, 57 A.D.3d 1457, 1458, 869 N.Y.S.2d 818, lv. dismissed 12 N.Y.3d 888, 883 N.Y.S.2d 792, 911 N.E.2d 854, 13 N.Y.3d 926, 895 N.Y.S.2d 303, 922 N.E.2d 891, quoting Matter of Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 938, 498 N.Y.S.2d 776, 489 N.E.2d 745 ), and petitioners failed to show that those reasons were pretextual (see Matter of Pace Univ. v. New York City Commn. on Human Rights, 85 N.Y.2d 125, 129, 623 N.Y.S.2d 765, 647 N.E.2d 1273 ).
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.