Opinion
994 TP 22-01050
06-30-2023
In the Matter of Kelly PHILLIPS, Petitioner, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS and City of Rochester, Respondents.
JEFFREY WICKS, PLLC, ROCHESTER (CHARLES D. STEINMAN OF COUNSEL), FOR PETITIONER. LINDA S. KINGSLEY, CORPORATION COUNSEL, ROCHESTER (YVETTE CHANCELLOR GREEN OF COUNSEL), FOR RESPONDENT CITY OF ROCHESTER.
JEFFREY WICKS, PLLC, ROCHESTER (CHARLES D. STEINMAN OF COUNSEL), FOR PETITIONER.
LINDA S. KINGSLEY, CORPORATION COUNSEL, ROCHESTER (YVETTE CHANCELLOR GREEN OF COUNSEL), FOR RESPONDENT CITY OF ROCHESTER.
PRESENT: WHALEN, P.J., SMITH, CURRAN, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed. Memorandum: Petitioner commenced this proceeding pursuant to CPLR article 78 and Executive Law § 298 seeking to annul the determination of respondent New York State Division of Human Rights (SDHR) dismissing her complaint alleging unlawful discrimination. Our review of the determination, which adopted the findings of the Administrative Law Judge (ALJ) who conducted the public hearing, " ‘is limited to consideration of whether substantial evidence supports the agency determination’ " ( Matter of Scheuneman v. New York State Div. of Human Rights , 147 A.D.3d 1523, 1524, 47 N.Y.S.3d 834 [4th Dept. 2017], quoting Rainer N. Mittl, Ophthalmologist, P.C. v. New York State Div. of Human Rights , 100 N.Y.2d 326, 331, 763 N.Y.S.2d 518, 794 N.E.2d 660 [2003] ; see 300 Gramatan Ave. Assoc. v. State Div. of Human Rights , 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978] ). " ‘Courts may not weigh the evidence or reject [SDHR's] determination where the evidence is conflicting and room for choice exists. Thus, when a rational basis for the conclusion adopted by [SDHR] is found, the judicial function is exhausted’ " ( Matter of Russo v. New York State Div. of Human Rights , 137 A.D.3d 1600, 1600, 28 N.Y.S.3d 156 [4th Dept. 2016], quoting Matter of State Div. of Human Rights [Granelle] , 70 N.Y.2d 100, 106, 517 N.Y.S.2d 715, 510 N.E.2d 799 [1987] ).
Contrary to petitioner's contention, there is substantial evidence to support the determination that she was not discriminated against based on her gender. To establish a prima facie case of employment discrimination, petitioner was required to demonstrate that she was a member of a protected class, that she was qualified for her position, that she suffered an adverse employment action, and that the adverse action "occurred under circumstances giving rise to an inference of discriminatory motive" ( Forrest v. Jewish Guild for the Blind , 3 N.Y.3d 295, 306, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004] ; see Matter of Lyons v. New York State Div. of Human Rights , 79 A.D.3d 1826, 1827, 913 N.Y.S.2d 586 [4th Dept. 2010], lv denied 17 N.Y.3d 707, 2011 WL 3925225 [2011] ). We agree with SDHR that petitioner failed to establish that she suffered an adverse employment action arising out of the refusal of the Rochester Police Department (RPD) to issue a smaller service weapon (see Matter of Gordon v. New York State Dept. of Corr. & Community Supervision , 138 A.D.3d 1477, 1478, 31 N.Y.S.3d 338 [4th Dept. 2016] ; Lyons , 79 A.D.3d at 1827, 913 N.Y.S.2d 586 ). Petitioner further failed to demonstrate that any allegedly adverse employment action " ‘occurred under circumstances giving rise to an inference of discrimination’ " ( Gordon , 138 A.D.3d at 1478, 31 N.Y.S.3d 338, quoting Forrest , 3 N.Y.3d at 308, 786 N.Y.S.2d 382, 819 N.E.2d 998 ).
Petitioner's contentions concerning other alleged adverse employment actions are not properly before us inasmuch as the adverse action alleged in the complaint filed with SDHR is limited to the RPD's failure to issue petitioner a smaller service weapon (see generally 9 NYCRR 465.3 [c] [3]) and there is no evidence that either petitioner or the SDHR amended the complaint to expand the scope of the case (see 9 NYCRR 465.4 [a], [c]; see generally Matter of Niagara Frontier Transp. Auth. v. Nevins , 295 A.D.2d 887, 887, 743 N.Y.S.2d 754 [4th Dept. 2002] ; Matter of Presbyterian Hosp. of City of N.Y. v. State Div. of Human Rights , 241 A.D.2d 319, 320, 659 N.Y.S.2d 283 [1st Dept. 1997] ).
Finally, we conclude that the ALJ did not abuse his discretion in denying petitioner's request to reopen the hearing. The evidence adduced provided the ALJ with a sufficient basis to determine that petitioner did not suffer an adverse employment action as a result of discrimination, and the additional evidence that petitioner sought to introduce was beyond the scope of the case (see 9 NYCRR 465.12 [f] [3], [13]; see generally Matter of Mario v. New York State Div. of Human Rights , 200 A.D.3d 1591, 1592-1593, 161 N.Y.S.3d 532 [4th Dept. 2021], lv denied 38 N.Y.3d 909, 2022 WL 2127257 [2022] ; Matter of McGuirk v. New York State Div. of Human Rights , 139 A.D.3d 570, 571, 30 N.Y.S.3d 561 [1st Dept. 2016] ).