Construing these allegations in a light most favorable to plaintiff ( see, Antico v Richmond Hous. Assocs., 196 AD2d 853; World Wide Adj. Bur. v Gordon Co., 111 AD2d 98) and noting that "[t]he doctrine of respondeat superior is not applicable in cases involving sex discrimination * * * [unless] the complaint * * * allege[s] that the employer had knowledge or acquiesced in the discriminatory conduct of a supervisor or co-worker" ( Hart v Sullivan, 84 AD2d 865, 866 [citation omitted], affd 55 NY2d 1011; see, Matter of State Univ. v State Human Rights Appeal Bd., 81 AD2d 688, affd 55 NY2d 896; State Div. of Human Rights v Henderson, 49 AD2d 1026), we agree with Supreme Court that these allegations are wholly unsupported and conclusory. Lacking factual specificity from which we could devise a viable cause of action under Executive Law § 296, dismissal was warranted ( see, Muka v Greene County, supra; Melito v Interboro-Mutual Indem. Ins. Co., supra).
In his first complaint, petitioner, who is employed by the respondent New York City Health and Hospitals Corp. as a nurse at Coney Island Hospital, alleged that he had been harassed by various of his coemployees based on his race and national origin. We need not decide whether such harassment alone would, if proved, constitute an unlawful discriminatory practice within the meaning of Executive Law § 296 ( but see, State Div. of Human Rights v. Henderson, 49 A.D.2d 1026), since the respondent New York State Division of Human Rights (hereinafter the Division) properly determined that petitioner's claim of harassment was unfounded. The Division undertook a fair investigation of the charges ( 9 NYCRR 465.6) and afforded petitioner an ample opportunity to be heard. Petitioner completely failed to adduce any credible proof that he had been harassed.
The doctrine of respondeat superior is not applicable in cases involving sex discrimination (Matter of State Univ. of N.Y. at Albany v. State Human Rights Appeal Bd., 81 A.D.2d 688). To resist a motion to dismiss, the complaint must allege that the employer had knowledge or acquiesced in the discriminatory conduct of a supervisor or co-worker (State Div. of Human Rights v. Henderson, 49 A.D.2d 1026). Here, no such allegations are made in the second cause of action.
ise from the same incident — both allege discriminatory acts, but one is directed at deficiencies in the tenure process, whereas the other is directed at improper activity of Szoverffy. Under these circumstances, assertion of jurisdiction was proper (Matter of Russell Sage Coll. v State Div. of Human Rights, 45 A.D.2d 159, 160-161, affd 36 N.Y.2d 985). The order of the State Division of Human Rights granting compensatory damages should be reversed because there is no evidence in the record to support the finding that petitioner knew of or condoned the discriminatory conduct by Szoverffy. The doctrine of respondeat superior, holding an employer liable for the acts of his employees in the course of their employment, has not been accepted in cases involving sex discrimination (cf. Alexander v Yale Univ., 631 F.2d 178). There is an affirmative burden on the complainant to prove that the employer either had knowledge or acquiesced in the discriminatory conduct of a supervisor or coworker (State Div. of Human Rights v Henderson, 49 A.D.2d 1026). Section 298 Exec. of the Executive Law requires us to determine whether the decision is supported by sufficient evidence on the record as a whole.
The issue presented is one that we have considered in the past; namely, whether the use of ethnic slurs and insults by a superior without the knowledge or acquiescence of the employer is an unlawful discriminatory practice in violation of the Human Rights Law. We find that it is not (State Div. of Human Rights v Henderson, 49 A.D.2d 1026). The record supports the findings of the commissioner, as affirmed by the appeal board, that in an argument over work assignments between complainant and his supervisor, the supervisor used a racial slur against complainant; that respondent's supervisor of labor relations conducted an investigation of the incident, in which he interviewed witnesses; and that the conclusion of the investigation was not to sustain the charge.