Opinion
20233/2007.
Decided January 27, 2010.
Dolores White, Petitioner.
Marilyn Balcacer Esq., for Respondent New York State Division of Human Rights.
Karen Dahlberg and Michael Klekman, Assistant Attorneys General, for Respondents Eschenauer, Deveaux, Bradley, and Lehman College.
Petitioner challenges the decision by respondent New York State Division of Human Rights (DHR) upholding her dismissal by respondent Lehman College from its Graduate Program in Counselor Education and finding the dismissal lawful and non-discriminatory on the basis of her race or gender. She asks the court to annul DHR's decision, find her dismissal by Lehman College unlawfully discriminatory on the basis of her race and gender, order Lehman College to reinstate her in the program or award her an M.S. Ed. degree, and grant her damages assessed against Lehman College. C.P.L.R. §§ 7803(3) and (4), 7806.
The Lehman College respondents, including the college itself and faculty members Eschenauer, Deveaux, and Bradley, move to dismiss the petition against them, claiming they are impermissible parties. C.P.L.R. §§ 406, 409(b), 3211(a)(7), 7804(f). After oral argument, and absent opposition by petitioner or respondent DHR, the court grants the Lehman College respondents' motion to dismiss them from the proceeding for the reasons explained below.
I. ALTHOUGH LEHMAN COLLEGE IS A PERMISSIBLE RESPONDENT,
IT IS UNNECESSARY.
The Lehman College respondents maintain they are impermissible parties to this proceeding. None of the authority they rely on, however, supports that conclusion here, at least as to Lehman College.
A. The Administrative Proceeding
Petitioner brought her complaint before DHR against Lehman College. In a "DETERMINATION AND ORDER AFTER INVESTIGATION" dated June 29, 2007, DHR concluded that Lehman College did not engage in unlawful race or gender discrimination, based on DHR's findings:
(1)of insufficient evidence that Professor Eschenauer asked petitioner, in front of his class, how she was admitted to the graduate studies program or that he targeted such a question to a person based on the person's race or gender, and
(2)that his comments regarding Caucasians and males related to a journal article his class was discussing.
Aff. of Karen Dahlberg, Ex. A; Aff. of Dolores White, Ex. 3. Petitioner challenges that determination in this proceeding.
B. Lehman College Is a Permissible Party.
Since petitioner challenges DHR's final determination of her complaint, DHR, the body that made the determination and whose action may be affected by this proceeding, is a necessary respondent, C.P.L.R. §§ 7802(a), 7803, as Lehman College's authority dictates: Capruso v. New York State Police, 300 AD2d 27, 28 (1st Dep't 2003); SRW Assocs. v. Bellport Beach Prop. Owners, 129 AD2d 328, 332 (2d Dep't 1987); D.B.C.G., Inc. v. Town of Ramapo, 97 AD2d 533 (2d Dep't 1983); 208 East 30th Street Corp. v. Town of North Salem, 88 AD2d 281, 285 (2d Dep't 1982). Yet, if the petition challenges adverse action or injury by another party, whose conduct may be controlled or whose rights may be affected by a judgment in this proceeding, that same authority, consistent with C.P.L.R. §§ 1001(a), 1002(b), and 7802(a) and (d), dictates that the other party is at least a permissible, if not a necessary, respondent.
In contrast to the circumstances underpinning that cited authority, Lehman College was a party central to DHR's administrative proceeding and determination and charged with engaging in discriminatory practices. E.g., Beame v. DeLeon, 87 NY2d 289, 294-95 (1995); Freeman v. New York State Div. of Human Rights , 51 AD3d 668 , 669 (2d Dep't 2008); Jo v. May Dept. Stores Co. , 21 AD3d 614 , 615 (3d Dep't 2005). See Romeo v. New York State Dept. of Educ. , 41 AD3d 1102, 1103 (3d Dep't 2007); Ogbunugafor v. New York State Dept. of Educ., 279 AD2d 738, 739-40 (3d Dep't 2001). Were this court to confirm DHR's determination, which was in Lehman College's favor, such a judgment obviously would be favorable to Lehman College. Conversely, were the court to annul DHR's determination as sought by petitioner, such a judgment would be unfavorable to Lehman College. In this proceeding then, Lehman College may be affected unfavorably by a judgment, C.P.L.R. § 1001(a); 27th St. Block Assn. v. Dormitory Auth. of State of NY, 302 AD2d 155, 160 (1st Dep't 2002); Romeo v. New York State Dept. of Educ., 41 AD3d at 1104; Ogbunugafor v. New York State Dept. of Educ., 279 AD2d at 739, and as a respondent is entitled to raise any claim that would support a judgment in respondent's favor. New York City Tr. Auth. v. State of NY, Exec. Dept., Div. of Human Rights, 89 NY2d 79, 86 n. 1 (1996); Freeman v. New York State Div. of Human Rights, 51 AD3d at 669; Jo v. May Dept. Stores Co., 21 AD3d at 615; Belmont Fire Co. v. Szabo, 161 AD2d 1158 (4th Dep't 1990).
Thus, any party whose interest may be affected inequitably or adversely by a potential judgment in a proceeding pursuant to C.P.L.R. § 7803, to annul the decision of a body or officer, may be named as a respondent. Depending on the possibility of an inequitable or adverse effect, the party may be a necessary respondent that must be named. C.P.L.R. §§ 1001(a), 1002(b); 27th St. Block Assn. v. Dormitory Auth. of State of NY, 302 AD2d at 160; Romeo v. New York State Dept. of Educ., 41 AD3d at 1104; Ogbunugafor v. New York State Dept. of Educ., 279 AD2d at 739; Manupella v. Troy City Zoning Bd. of Appeals, 272 AD2d 761, 763 (3d Dep't 2000). See Beame v. DeLeon, 87 NY2d at 301; Oswego-Apalachin Cent. School Dist. v. Commissioner of Educ., 257 AD2d 739, 740 (3d Dep't 1999); Belmont Fire Co. v. Szabo, 161 AD2d 1158.
C. In the Parties' Current Posture, Lehman College Is an Unnecessary Party.
The Lehman College respondents' motion, however, indicates their confidence that they will not be affected inequitably by the disposition of this proceeding, perhaps signalling a willingness to conform their conduct to the New York Human Rights Law, NY Exec. Law § 296, if the court or DHR on remand were to order such relief. See, e.g., Oswego-Apalachin Cent. School Dist. v. Commissioner of Educ., 257 AD2d at 740. The absence of opposition from the other parties, moreover, indicates their view that Lehman College's absence from the proceeding may in fact be more conducive to a judgment or other resolution favorable to them.
Judicial review of DHR's determination after a hearing is limited to an evaluation of whether substantial evidence supports the determination, NY Exec. Law § 298; Rainer N. Mittl, Opthalmologist, P.C. v. New York State Div. of Human Rights, 100 NY2d 326, 331 (2003); 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 NY2d 176, 181 (1978); 80 Lafayette Assoc. v. Gibson , 59 AD3d 231 , 232-33 (1st Dep't 2009); Whitten v. Martinez , 24 AD3d 285 , 286 (1st Dep't 2005), by ascertaining whether there is a rational basis in the administrative record for DHR's findings and conclusions. City of New York v. State Div. of Human Rights, 70 NY2d 100, 106 (1987); 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 NY2d at 182. See Ramirez v. New York State Div. of Human Rights , 4 NY3d 789 , 790 (2005). Although the court may annul DHR's determination, the court then would be constrained to remand the proceeding to DHR for further consideration of petitioner's discrimination claims, 27th St. Block Assn. v. Dormitory Auth. of State of NY, 302 AD2d at 163, or at minimum for determination of the remedy, whether reinstatement or a degree in her former graduate studies program or compensation for any economic losses or mental anguish. Staten Is. Alliance for Mentally Ill v. Tolbert, 306 AD2d 31, 33 (1st Dep't 2003). See New York City Tr. Auth. v. State of NY, Exec. Dept., Div. of Human Rights, 89 NY2d at 85, 90-91; Beame v. DeLeon, 87 NY2d at 294-95; Oswego-Apalachin Cent. School Dist. v. Commissioner of Educ., 257 AD2d at 739-40.
Unlike proceedings where DHR already has found a discriminatory practice and formulated a remedy, and the court confirms that determination, here the potential judgment will not require Lehman College immediately to change its practice or pay compensation. At most, the judgment might subject Lehman College to a future order to change past conduct and future liability for damages, imposed by DHR, on which broad remedial powers are conferred. NY Exec. Law § 297(4)(c); Beame v. DeLeon, 87 NY2d at 296; Staten Is. Alliance for Mentally Ill v. Tolbert, 306 AD2d at 33. See Rainer N. Mittl, Opthalmologist, P.C. v. New York State Div. of Human Rights, 100 NY2d at 330, 332.
The immediate relief sought in this proceeding thus is against DHR, to annul its determination, even though the ultimate relief sought via such an annulment is against Lehman College. See, e.g., Vito v. Jorling, 197 AD2d 822, 825 (3d Dep't 1993); Belmont Fire Co. v. Szabo, 161 AD2d at 1159. In any such future process, Lehman College, regardless of its presence or absence as a respondent in this proceeding, would be entitled to respond to the relief sought by petitioner and considered by DHR. 27th St. Block Assn. v. Dormitory Auth. of State of NY, 302 AD2d at 163.
In sum, the premise for this proceeding is the conduct of Lehman College, a party integral to DHR's underlying proceeding and determination and in that position unquestionably a permissible respondent here. The Lehman College respondents' disinterest in supporting a judgment favorable to them and protecting against a potential judgment inequitable or adverse to them, however, is obvious from their motion. The other parties' lack of opposition, moreover, signals their disinterest in retaining the Lehman College respondents at this stage. In this posture, the court need not retain respondents whose participation is not sought by any party. Therefore the court grants their motion and dismisses respondents Eschenauer, Deveaux, Bradley, and Lehman College from this judicial proceeding. C.P.L.R. §§ 409(b), 1001(a), 3211(a)(7), 7806.
II. ESCHENAUER, DEVEAUX, AND BRADLEY ARE IMPERMISSIBLE RESPONDENTS.
While the Lehman College faculty members Eschenauer, Deveaux, and Bradley are unnecessary respondents and may be dismissed from this proceeding on the same grounds as Lehman College, the faculty members were not parties in DHR's administrative proceeding and determination, but were only individuals through whom Lehman College acted. Therefore they are impermissible as well as unnecessary respondents here.
When petitioner filed her claims of discrimination before DHR, her choice of that forum for adjudication of her claims foreclosed her from seeking additional redress in court based on those claims. NY Exec. Law §§ 297(9), 300; Freudenthal v. County of Nassau, 99 NY2d 285, 290 (2003); Marine Midland Bank v. New York State Div. of Human Rights, 75 NY2d 240, 245 (1989); Universal Packaging Corp. v. New York State Div. of Human Rights, 270 AD2d 586, 587 n. 1 (3d Dep't 2000); Legg v. Eastman Kodak Co., 248 AD2d 936, 937 (4th Dep't 1998). The remedies for violation of the New York Human Rights Law available through commencement of a judicial action and available through DHR's administrative process are mutually exclusive. Petitioner must elect one avenue of redress or the other. NY Exec. Law §§ 297(9), 300. E.g., Marine Midland Bank v. New York State Div. of Human Rights, 75 NY2d at 243-44; Pan Am World Airways v. New York State Human Rights Appeal Bd., 61 NY2d 542, 548 (1984); Universal Packaging Corp. v. New York State Div. of Human Rights, 270 AD2d at 587; Legg v. Eastman Kodak Co., 248 AD2d at 937.
Petitioner's preclusion from commencing an action in court, once she filed her complaint with DHR, encompasses any judicial action based on the same incidents of claimed discriminatory conduct as in her DHR complaint. Emil v. Dewey, 49 NY2d 968, 969 (1980); Benjamin v. New York City Dept. of Health , 57 AD3d 403, 404 (1st Dep't 2008); Brown v. Wright, 226 AD2d 570, 571 (2d Dep't 1996); Ehrlich v. Kantor, 213 AD2d 447 (2d Dep't 1995). She is deprived of her judicial "cause of action," NY Exec. Law § 297(9); Hirsch v. Morban Stanley Co., 239 AD2d 466, 467 (2d Dep't 1997); Brown v. Wright, 226 AD2d at 571, even if her judicial action claimed a different form of discrimination, such as national origin or disability, or arbitrary conduct not claimed in her DHR complaint, and even if her judicial action is against additional parties not named in the DHR complaint, as this proceeding is. Benjamin v. New York City Dept. of Health, 57 AD3d at 404; Hirsch v. Morban Stanley Co., 239 AD2d at 468; Craig-Oriol v. Mount Sinai Hosp., 201 AD2d 449, 450 (2d Dep't 1994); James v. Coughlin, 124 AD2d 728, 730 (2d Dep't 1986).
Especially since the DHR proceedings and determination referred to the Lehman College faculty members named in this proceeding, see Hirsch v. Morban Stanley Co., 239 AD2d at 468, there is sufficient identity between the claims against these respondents here and the claims before DHR to preclude petitioner's "right to sue" the faculty members in this proceeding. James v. Coughlin, 124 AD2d at 729. See Benjamin v. New York City Dept. of Health, 57 AD3d at 404; Bhagalia v. State of New York, 228 AD2d 882, 883 (3d Dep't 1996); Ehrlich v. Kantor, 213 AD2d 447; Craig-Oriol v. Mount Sinai Hosp., 201 AD2d at 450. Petitioner chose the benefit of DHR's hearing and determination of her claims on their merits, "with the advantages of less expense and swifter resolution" than had she originally sued in a judicial forum, and may not change that course now, by suing the faculty members in addition to Lehman College. Magini v. Otnorp, Ltd., 180 AD2d 476, 477 (1st Dep't 1992).
III. CONCLUSION
Because (1) no party opposes the dismissal of respondents Eschenauer, Deveaux, Bradley, and Lehman College, (2) Lehman College is an unnecessary party, and (3) Eschenauer, Deveaux, and Bradley are both unnecessary and impermissible parties in this proceeding, the court grants these four respondents' motion to dismiss them from the proceeding. C.P.L.R. §§ 1001(a), 3211(a)(7). This decision constitutes the court's order and judgment dismissing the petition against these respondents, C.P.L.R. §§ 409(b), 7806, and is without prejudice to petitioner's proceeding against respondent New York State Division of Human Rights.