Opinion
103494/08.
Decided September 15, 2008.
Petitioner Veronica Rosario moves for a final judgment pursuant to Article 78 of the Civil Practice Laws and Rules, setting aside a Determination and Order After Investigation by respondent the New York State Division of Human Rights (the "Division"), dated January 10, 2008 (the "Determination"), dismissing the case of petitioner to the end that such conclusion was erroneous and that all proceedings, decisions and actions in the matter may be reviewed on the merits by this court.
Based on a telephonic conversation on August 21, 2008, with counsel for Metropolitan College of New York and petitioner, counsel for petitioner clarified that petitioner is seeking review on the Article 78 standard of arbitrary and capricious, and is not seeking de novo review.
Respondent Metropolitan College of New York (the "College"), in lieu of an answer, cross moves for an order, pursuant to CPLR 3211(a)(7) dismissing petitioner's Article 78 Petition, in its entirety, as the "No Probable Cause" Determination was not arbitrary or capricious and had a rational basis.
The Division takes the position that petitioner and the College are the parties in interest, and the Division will not actively participate in this matter and is submitting on the record. The Division prays for denial of the Petition and dismissal of the proceedings.
Petitioner's Contentions
On July 25, 2007 petitioner filed a verified complaint with the Division charging her former employer, the College, with discrimination on the basis of her disability. Petitioner claimed that the College terminated her employment after it learned that she suffers from bi-polar disorder.
The Division issued the Determination, finding no probable cause to believe that the College discriminated against petitioner, and the Division dismissed the complaint. The Determination was made by the Division after position papers, along with exhibits, were submitted by petitioner and the College and following conversations that the Division had with petitioner and presumably with the College. The Division's rationale for its determination is that petitioner did not ask for an accommodation in connection with her bi-polar condition before, during or after her hospitalization. The Division's rationale is wrong as there was no reason for petitioner to have sought an accommodation as she was assured by her supervisor that she would have her job waiting for her when she returned. Although the College denies this assertion by petitioner, it is a question of fact that should have been determined by a judge at a hearing. The Division Determination also states that the College asserted that petitioner quit her position. Petitioner claims that she did not quit. Again, this is a question of fact that should have been determined by a judge at a hearing. The Division further reasoned that petitioner did not provide the College with the reason for her hospitalization. Petitioner claims that the College learned that she is bi-polar from her boyfriend, Anthony Avento ("Avento"). Mr. Avento also submitted a statement to the investigator which supports petitioner's claims. Again, as there are conflicting claims regarding this issue, this is a question of fact.
The Division included in its rationale for its conclusion that petitioner failed to present a medical note indicating the nature of her disability, the reasonable accommodation she was seeking and the fact that she was able to perform the essential parts of her job with a reasonable accommodation. However, as stated above, since petitioner asserts that she was assured that she would have a job when she returned to work following her hospitalization, there was no reason for her to request an accommodation. The Determination states that the College made attempts to contact petitioner while she was hospitalized. This claim is disputed.
The College's Opposition and Cross Motion
The fact that petitioner fails to even allege that the Determination was arbitrary and capricious is reason enough to dismiss this Petition.
Petitioner voluntarily resigned her position as a part-time Writing Specialist with the College where she worked for less than six months.
After conducting its investigation the Division determined that the College "articulated legitimate, non-discriminatory business reasons for its decision respecting Complainant's employment that were not shown by Complainant to be pretextual."
Petitioner concedes that, on July 11, 2006, she sent an e-mail to the College's director, in which she stated that she quit. Petitioner's contention that she was in a manic state when she sent that e-mail is belied by the fact that she also sent another e-mail on July 14, 2006, wherein she further elaborated on her reasons for quitting her job.
Petitioner's allegation that reversal of the Division's decision is warranted because there were outstanding questions of fact that should have been determined by a judge at a hearing is speculative at best and fails to acknowledge her required substantive burden of proof recognized at law that the Division's decision was arbitrary and capricious.
Reversal is likewise improper when, as petitioner contends, the Division never had the opportunity to weigh the credibility of the witnesses for each party, as the Division never met the parties. The First Department rejected this very argument when the petitioner was given an opportunity to present lengthy and detailed written submissions, and the record was thoroughly considered.
As to the fact that there was no formal hearing, the Division has broad discretion in determining the method of investigating a claim.
Petitioner's Opposition to the College's Cross Motion
The rationale of the Determination is flawed because there was no reason for petitioner to ask for an accommodation as she was assured by her supervisor that she would have her job waiting for her when she returned.
Second, the Determination failed to consider critical evidence. A hearing should, at least, have been held at which the correct version of the facts could have been determined.
Analysis
CPLR 7803 states that the court review of an administrative determination consists of whether the determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty imposed. CPLR 7803(3) ( see Windsor Place Corp. v New York State DHCR, 161 AD2d 279 [1st Dept. 1990]; Mazel v DHCR, 138 AD2d 600 [1st Dept. 1988]; Bambeck v DHCR, 129 AD2d 51 [1st Dept. 1987], lv. den. 70 NY2d 615). An action is arbitrary and capricious, or an abuse of discretion, when the action is taken "without sound basis in reason and . . . without regard to the facts." Matter of Pell v Board of Education, 34 NY2d 222, 231(1974). Rationality is the key in determining whether an action is arbitrary and capricious or an abuse of discretion. Matter of Pell v Board of Education, 34 NY2d, at 231. The court's function is completed on finding that a rational basis supports the administrative determination ( see Howard v Wyman, 28 NY2d 434). Where the administrative interpretation is founded on a rational basis, that interpretation should be affirmed even if the court might have come to a different conclusion ( see Mid-State Management Corp. v New York City Conciliation and Appeals Board, 112 AD2d 72 [1st Dept.], aff'd 66 NY2d 1032).
Pell v Board of Ed. of Union Free School Dist. No. . . ., 34 NY2d 222, is instructive on the basic standard of Article 78 review:
In article 78 proceedings: the doctrine is well settled, that neither the Appellate Division nor the Court of Appeals has power to upset the determination of an administrative tribunal on a question of fact; the courts have no right to review the facts generally as to weight of evidence, beyond seeing to it that there is substantial evidence. (Cohen and Karger, Powers of the New York Court of Appeals, s 108, p. 460; 1 N.Y.Jur., Administrative Law, ss 177, 185; see Matter of Halloran v. Kirwan, 28 NY2d 689, 690, 320 NYS2d 742, 743, 269 NE2d 403 (dissenting opn. of Breitel, J.)). The approach is the same when the issue concerns the exercise of discretion by the administrative tribunals. The courts cannot interfere unless there is no rational basis for the exercise of discretion or the action complained of is arbitrary and capricious. (Cohen and Karger, Powers of the New York Court of Appeals, pp. 460 — 461; see, also, 8 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 7803.04 Et seq.; 1 N.Y.Jur., Administrative Law, ss 177, 184; Matter of Colton v. Berman, 21 NY2d 322, 329, 287 NYS2d 647, 650 — 651, 234 NE2d 679, 681 — 682).
On judicial review of an administrative action under CPLR Article 78, the courts must uphold the administrative exercise of discretion unless it has "no rational basis" or the action is "arbitrary and capricious." Pell v Board of Ed. Union Free School District, 34 NY2d 222, 230-31, 356 NYS2d 833, 839 (1974) "The arbitrary and capricious test chiefly relates to whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact.' Arbitrary action is without sound basis in reason and is generally taken without regard to the facts." 34 NY2d at 231, 356 NYS2d at 839 See also Jackson v New York State Urban Dev Corp., 67 NY2d 400, 417, 503 NYS2d 298, 305 (1986) (on review of agency action under CPLR Article 78, the courts may not "second guess the agency's choice, which can be annulled only if arbitrary, capricious or unsupported by substantial evidence").
Moreover, where, as here, the administrative determination involves factual evaluation within an area of the administrative body's expertise and is amply supported by the record, the determination must be accorded great weight and judicial deference. See Flacke v Onondaga Landfill Systems, Inc., 69 NY2d 355, 363, 514 NYS2d 689, 693 (1987). Courts are required to "resolve [any] reasonable doubts in favor of the administrative findings and decisions" of the responsible agency. Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215, 224, 430 NYS2d 440, 448 (4th Dep't 1980). See also Jackson, 67 NY2d at 417, 503 NYS2d at 305; City of Rome v Department of Health Dept., 65 AD2d 220, 225, 441 NYS2d 61, 64 (4th Dep't 1978), lv. To app. denied, 46 NY2d 713, 416 NYS2d 1027 (1979).
And, "Where evidence conflicts, issues of credibility are the province of an administrative hearing officer, since the decisions by an Administrative Hearing Officer to credit the testimony of a given witness is largely unreviewable by the courts.'" Wooten v Finkle, 285 AD2D 407, 408 (1st Dept 2001) ( quoting Berenhaus v Ward, 70 NY2d 436, 443 (1987). And,
the courts may not weigh the evidence or reject the conclusion of the administrative agency where the evidence is conflicting and room for choice exists Berenhaus, 70 NY2d at 444, 522 NYS2d 478, 517 NE2d 193; Matter of Stork Rest. v Boland, 282 NY 256, 267, 26 NE2d 247 [1940]; Matter of Acosta v Wollett, 55 NY2d 761, 447 NYS2d 241, 431 NE2d 966 [1981]; Matter of Verdell v Lincoln Amsterdam House, Inc. , 27 AD3d 388, 390 , 813 NYS2d 68 [2006]).
In the instant case, the record before this court reveals that the Determination was made after consideration of extensive written submissions by the parties. And the administrative determination of "no probable cause" and dismissal of the complaint on the basis of the submissions without a hearing was not improper. See, Chirgotis v Mobil Oil Corp., 128 AD2d 400, 403, 512 NYS2d 686, 688 (1st Dept 1087). The Division investigation was adequate and permitted petitioner a full opportunity to present her contentions. It is within the discretion of the administrative body to decide the method or methods to be employed in investigating a claim. (E.g., Matter of Kushnir v New York State Div. of Human Rights, 114 AD2d 898; Matter of Sheppard v McCall, 112 AD2d 239; Ditaranto v State Div. of Human Rights, 111 AD2d 702.)
And, as there is no evidence that the administrative investigation was abbreviated or one-sided, said determination of "no probable cause" should not be overturned. ( E.g., Bachman v State Div. of Human Rights, 104 AD2d 111, 115.)
Notwithstanding the fact that there was no hearing, where as here, a claimant has a full and fair opportunity to present her contentions and evidence, there is no basis to annul the determination as arbitrary or capricious. ( State Div. of Human Rights v New York State Drug Abuse Control Commn., 59 AD2d 332; see also, e.g., Matter of Kushnir v New York State Div. of Human Rights, supra .)
Since petitioner was given an opportunity to present her lengthy and detailed written submissions, and since from the record it appears that her submissions were thoroughly considered, the determinations cannot be found to be arbitrary or capricious merely because no hearing or conference was held.
Conclusion
Based on the foregoing, it is hereby
ORDERED that the application of petitioner Veronica Rosario for a final judgment pursuant to Article 78 of the Civil Practice Laws and Rules, setting aside a Determination and Order After Investigation by respondent the New York State Division of Human Rights, dated January 10, 2008, dismissing the case of petitioner to the end that such conclusion was erroneous and that all proceedings, decisions and actions in the matter may be reviewed on the merits by this court., is denied in its entirety; and it is further
ORDERED that the application of respondent Metropolitan College of New York, in lieu of an answer, for an order, pursuant to CPLR 3211(a)(7) dismissing petitioner's Article 78 Petition, in its entirety, as the "No Probable Cause" Determination was not arbitrary or capricious and had a rational basis, is granted and the instant Petition is dismissed; and it is further
ORDERED that counsel for respondent Metropolitan College of New York shall serve a copy of this Order with notice of entry within twenty days of entry on all counsel.
This constitutes the decision and order of this court.