Opinion
No. 400854/10.
2010-07-19
In the Matter of the Application of Felicia SMALLS, Petitioner, v. CARDINAL McCLOSKEY SERVICES and Division of Human Rights, Respondents.
JOAN B. LOBIS, J.
Petitioner Felicia Smalls, proceeding pro se, brings this special proceeding under Article 78 of the C.P.L.R. against respondents New York State Division of Human Rights (the “Division”) and her former employer, Cardinal McCloskey Services, Inc. (“CMS”). Petitioner asks this court to reverse the Division's “no probable cause” determination and order after investigation. She also seeks punitive damages for defamation of character and wrongful termination, and an order compelling CMS to “present the people [that she] allegedly made false complaints against[,] ... the other person that [she] allegedly threatened, [and her] 2007[and] 2008 work evaluations.” The Division answers the petition, denying that the Orders were arbitrary, capricious, or an abuse of discretion and submits the records of the underlying proceedings. CMS answers and asserts affirmative defenses, and submits papers in opposition to the petition.
Initially, the court must address a statute of limitations issue. Although petitioner only includes with her petition one determination of the Division, dated January 29, 2010, there were actually two separate “no probable cause” determinations stemming from two separate complaints that petitioner filed. Petitioner filed her first verified complaint on December 10, 2008 (the “First Complaint”), which resulted in the Division's determination and order after investigation dated December 29, 2009 (the “First Determination”). Petitioner filed a second verified complaint on January 26, 2009 (the “Second Complaint”), which resulted in the Division's determination and order after investigation dated January 29, 2010 (the “Second Determination”). According to affidavits of service contained in the administrative records, both determinations were served by regular mail on the day they were dated, respectively. This proceeding was commenced on March 30, 2010. An Article 78 proceeding to challenge a determination of the Division must be brought within sixty (60) days of service of the determination. Exec. Law § 298. To the extent that petitioner challenges the First Determination, that claim is time-barred. The court will only consider petitioner's claim challenging the Second Determination, which was timely commenced on the sixtieth day after the Second Determination was served. To the extent that the First Complaint and First Determination affect the Second Complaint and Second Determination, they will be discussed infra.
Petitioner's Second Complaint alleged unlawful discriminatory practices relating to her employment with CMS, in violation of Article 15 of the Executive Law. Petitioner is an African–American and she set forth that she suffers from a disability (torn anterior cruciate ligament in her knee). She had been employed as a social worker at CMS until she was terminated on January 20, 2009. She had filed her First Complaint on December 10, 2008, which alleged that she had been unfairly targeted by her supervisor, Rosa Salazar, for termination based on her disability and race. On January 9, 2009, she was allegedly punched in the back by an Hispanic co-worker, Angela Velez. She filed an internal complaint with CMS and a police report related to the January 9, 2009 incident. On January 12, 2009, she was called into a meeting with a supervisor, Rhonda Moorer, who is African–American, and a director, Rosa Marie Rosa, who is Hispanic. At that meeting, she explained the incident between herself and Ms. Velez, and she was suspended until further notice. On January 20, 2009, she attended a meeting at the administrative offices; Barry Schmitt, vice president of human resources, and Ms. Rosa were present at that meeting. Petitioner repeated her explanation of the incident between herself and Ms. Velez, and she was told that she was terminated. She filed her Second Complaint on January 26, 2009. Petitioner believed that she had been terminated in retaliation for filing the First Complaint and because of her national origin, because Ms. Velez, who is Hispanic, was apparently not terminated.
The First and Second Complaints were assigned to one of the Division's human rights specialists, Michael W. Jones. By letter dated February 9, 2009, CMS responded to the Second Complaint, denying the charges and asserting that petitioner had not been subjected to discrimination at CMS. CMS set forth that on January 10, 2009, petitioner reported to her supervisor, Rhonda Moorer, via telephone call, that she had been assaulted by Ms. Velez at work on the previous day. Ms. Moorer reported in a memorandum to CMS that during that telephone call, petitioner made two threats of bodily harm to Ms. Velez. As per CMS procedure, both petitioner and Ms. Velez were suspended on January 12. CMS interviewed and collected statements from the staff members who had witnessed the incident or who were in the general vicinity at the time of the incident. CMS concluded that Ms. Velez did not assault petitioner and that petitioner knowingly made false statements to CMS and to the police. CMS also determined that petitioner was absent from a scheduled meeting on January 17, 2009, without a medical excuse; she had apparently submitted a letter from a hospital saying that she was fit for duty on January 17. On January 20, 2009, after hearing petitioner's version of the January 9, 2009 incident, CMS indeed terminated petitioner's employment. CMS's response also mentioned that petitioner had, on two occasions, harassed and threatened other CMS staff members at work. Annexed to the response were a number of copies of internal memoranda and electronic mail regarding the incident between petitioner and Ms. Velez, including a statement from Ms. Velez denying that she hit petitioner and admitting to touching petitioner gently on January 9, 2009, in order to excuse herself and move past petitioner en route to her office.
On March 18, 2009, Mr. Jones conducted a one-party conference with petitioner. She reported that her former supervisor, Ms. Salazar, had deliberately sabotaged petitioner's worker's compensation case. She reported that Ms. Salazar favored the Hispanic employees and basically did not like petitioner. She also raised her belief that other employees had been as late to work as she had been, but they were not penalized for their lateness like she had been.
Petitioner submitted her rebuttal to CMS's responsive statements by letter dated March 25, 2009. She delivered the March 25 letter in person to Mr. Jones and remarked that she had never been subject to any disciplinary action. By her rebuttal, she denied threatening anyone at CMS except for Ms. Velez. She acknowledged leaving Ms. Velez a threatening message via voicemail after petitioner was terminated. She also recounted certain instances of problems that were created by her former supervisor, Ms. Salazar, especially in relation to petitioner's worker's compensation case regarding a workplace injury on February 29, 2008. Petitioner also addressed a number of grievances she had about the workplace atmosphere at CMS—including topics such as lateness, rules about client contact, office gossip, and the handling of employee disputes—primarily stemming from alleged unfair treatment of employees by certain supervisors based on personal relationships between employees, race or nationality, and cliques. Over the course of the investigation into petitioner's Second Complaint, she submitted other documents, including: copies of her worker's compensation board determination; a copy of an order of protection against her by Ms. Velez; and information regarding her February 16, 2008 arrest.
Some of the documents and responses submitted by petitioner were likely responsive to CMS's separate responses to both of her complaints, and some of which appear to be more responsive to the First Complaint, the Division's investigation of which was ongoing at the same time as the investigation of the Second Complaint.
In aid of his investigation into petitioner's First and Second Complaints, Mr. Jones requested documents from CMS regarding other CMS employees who had received disciplinary memoranda for attendance and punctuality from June 2007 through June 2008, and regarding other CMS employees at petitioner's worksite who had filed internal or administrative discrimination complaints with CMS from January 2008 through January 2009. By letter dated October 12, 2009, CMS responded that only one other employee had received a disciplinary memorandum for attendance and punctuality issues during the period in question, and that same employee was also the only other employee who had filed a discrimination complaint during the relevant time period. That complaint had been settled by the other employee resigning in exchange for a neutral letter of reference from CMS. Mr. Jones requested copies of the CMS disciplinary memoranda regarding the other employee who had been disciplined for punctuality, and CMS sent those memoranda to the Division by letter dated October 28, 2009. Mr. Jones also asked CMS provide the Division with records or demographic data regarding the social workers employed at petitioner's worksite. By letter dated November 16, 2009, CMS reported that out of the twelve (12) social workers currently employed at petitioner's former worksite, seven (7) are Black or African–American and five (5) are Hispanic or Latino.
On January 29, 2010, the Division issued a “final investigation report and basis of determination” regarding petitioner's Second Complaint. The report set forth petitioner's and CMS's positions, as described above. The record showed that both petitioner and Ms. Velez had been suspended as a result of the incident on January 9, 2009; that the supposed witnesses to the incident stated that they either did not see or did not recall Ms. Velez hitting petitioner; and that Ms. Velez had an order of protection against petitioner as of September 3, 2009. Petitioner had also admitted to threatening Ms. Velez, and was unable to produce a witness who could corroborate her version of the incident. The record also showed that of the twelve (12) social workers employed by CMS, seven (7) are Black or African–American, and five (5) are Hispanic or Latino, and none are presumed to be disabled. The record further showed that the other employee who had filed a complaint of discrimination with the Division against CMS had remained employed at CMS while the Division had conducted its investigation of the complaint, and the parties had amicably resolved their differences. The Division's report concluded that the investigation did not reveal sufficient evidence to establish a nexus between CMS's treatment of petitioner and petitioner's race, disability, or prior discrimination complaint. CMS had articulated a legitimate, non-discriminatory reason for its treatment of petitioner, which did not appear to the Division to be a pretext for discrimination. Based on the investigation, the Division found no probable cause to support petitioner's allegations in her Second Complaint. In the Second Determination, also issued on January 29, 2010, Division dismissed petitioner's Second Complaint and closed the file. This proceeding to challenge the Division's Second Determination followed.
Petitioner argues that the Second Determination is incorrect and based on hearsay. She raises her First Complaint, in which she alleged unfair treatment based on her race, national origin, and disability, by her former supervisor, Rosa Salazar. She complains that CMS allowed a hostile work environment to continue by continuing to employ Ms. Salazar. She reiterates her version of the incident involving Ms. Velez. Petitioner believes that she was terminated on January 20, 2009, because she filed a police report regarding the incident with Ms. Velez. She also complains of incessant gossip that fueled problems in the offices of CMS, and contends that she tried to keep to herself and was penalized and outcast for her restraint. She contends that she never made statements to her supervisor, Rhonda Moorer, threatening to harm or kill Ms. Velez, although she admits to threatening Ms. Velez on March 7, 2009. She argues that CMS's statement that Ms. Velez was also suspended on January 12, 2009 is untrue, because the e-mailed statement from Ms. Velez was sent at 5:24 p.m. on January 12, but the memorandum from Ms. Velez' supervisor to Rose Marie Rosa indicates that Ms. Velez had supposedly been suspended at 11:45 a.m. Petitioner contends that employees cannot access e-mail accounts from home. Petitioner also contends that Ms. Rosa interfered with the police investigation of the January 9, 2009 incident by informing the police that petitioner was not telling the truth, and reports that the district attorney subsequently declined to prosecute the alleged assault. She denies having made any false allegations against anyone. Petitioner contends that she is disabled, but that she is able to perform the essential functions of her job with reasonable accommodation. She also contends that CMS fostered and environment of harassment and discrimination in the workplace, and that when she took steps to correct her unfair treatment, she was terminated. She requests $250,000 for emotional distress, defamation, wrongful termination, and punitive damages. Petitioner also asks the court to order CMS to produce the other people she allegedly made false complaints against or threatened.
The Division denies that its orders dismissing petitioner's complaints were arbitrary, capricious, or an abuse of discretion, but sets forth that it “will not actively participate in this matter” as CMS is the real party in interest, and simply submits the record. CMS asks that the petition be denied because petitioner has failed to demonstrate that the Division's determinations were arbitrary or capricious, and because she has failed to show that the investigation was inadequate or biased. CMS also asks this court to reject petitioner's other “causes of action” on the basis that these claims are beyond the scope of a special proceeding to review an agency's determination.
In an Article 78 proceeding to review a determination and order after investigation, where no hearing has been held, “the appropriate standard of review is whether the determination was arbitrary and capricious or lacking a rational basis.” In re McFarland v. New York State Div. of Human Rights, 241 A.D2d 108, 111 (1st Dep't 1998) (citations omitted). The Division's discretion to decide the manner of investigating a claim is broad, and in general, the court should not set aside a “no probable cause” determination unless the court finds the determination to be arbitrary and capricious. Id., at 111–12. “The arbitrary or 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.” In re Pell v. Board of Educ., 34 N.Y.2d 222, 231 (1974) (citation omitted). The court may not reevaluate the evidence presented to the Division nor “substitute its judgment” for the Division's judgment, “but must ascertain only if there is a rational basis for the decision or whether it is arbitrary and capricious.” Cuccia v. Martinez & Ritorto, P.C., 61 AD3d 609, 610 (1st Dep't 2009) (citation omitted).
The Division's determination was not arbitrary and capricious, and has a rational basis in the underlying record. Both parties were invited to, and did, submit evidence to support their contentions. Petitioner complains that CMS submitted hearsay statements, but it is clear that both parties proffered various factual assertions and hearsay statements. However, the Division's determination focused on the uncontested facts and verifiable facts, without delving into the unverifiable statements that either side proffered. Regarding the retaliation claim, the Division considered petitioner's allegation that she was terminated in retaliation for filing her First Complaint against CMS, but CMS presented evidence of another instance where an employee had filed a complaint with the Division that was resolved amicably. It does not appear that CMS engaged in retaliatory termination of employees who filed discrimination complaints. Regarding the race or nationality discrimination claim, the Division solicited and reviewed verifiable demographic data provided by CMS. The record did not reflect hiring or retention of employees of one race or nationality over another. Regarding petitioner's claim that she was terminated because of a disability, the Division found no indication in the record that petitioner was harassed about medical leave related to her knee injury. The court notes that it does not appear that petitioner ever asked for an accommodation from CMS for this alleged disability, and that she was cleared for work and declared “fit for duty” by a physician. Finally, CMS had articulated a non-discriminatory reason for its treatment of petitioner, which the Division determined was not pretextual. These facts adequately support the Division's findings that there was no probable cause to find that CMS had engaged in discrimination.
To the extent that petitioner raises other claims or causes of action that were not the subject of the underlying administrative proceeding, or seeks money damages, those claims are beyond the scope of this Article 78 special proceeding to review the Division's determinations.
Accordingly, it is hereby
ADJUDGED that the petition is denied and the proceeding is dismissed.