Matter of Macklin v New York State Div. of Human Rights

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Matter of Macklin v New York State Div. of Human Rights 2012 NY Slip Op 32013(U) July 25, 2012 Sup Ct, NY County Docket Number: 401122/12 Judge: Cynthia S. Kern Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE O F NEW YORK NEW YORK COUNTY PRESENT: PART Justlce Index Number : 401 122/2012 MACKLIN. PATRINA vs. NYS DIVISION OF HUMAN RIGHTS SEQUENCE NUMBER : 001 ARTICLE 78 The following paperr, numbered Ito Notlce of MotIonlOrdsrto Show Cause Answerlng Amdavit8 I N D M NO. MOTION DATE MOTION SEP. NO. ,were read on thls motion toffor -AffldavlG - Exhlblta INO(B)IWd. IWd. - Exhibit$ Replying Affldavlts Upon the fomgolng papero, It Is ordered that thls motlon I s is decided in accordance with the annexed decision. \ t "\( ..................................................................... CASE DISPOSED 0DENIED 2. CHECK AS APPROPRIATE: ........................... MOTION I : c GRANTED S ] 3. CHECK IF APPROPRIATE: ................................................ 0 SETTLE ORDER I CHECK ONE: . DO NOT POST ,J.S.C. 0 NON-FINAL DISPOSITION 0GRANTED IN PART 0SUBMIT ORDER FIDUCIARY APPOINTMENT OTHER REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 5 5 In the Matter of the Application of PATRINA MACKLIN, Petitioner, For an Order Pursuant to Article 78 of the Civil Practice Law and Rules, Index No. 401 122112 DECISION/OIU)ER -against- NEW YORK STATE DIVISION OF HUMAN RIGHTS and AMERICAN BUILDING MAINTENANCE. I I Recitation, as required by CPLR 22 19(a), of the papers considered in the review of this motion for : Papers Notice of Motion and Affidavits Annexed .................................... Notice of Cross Motion and Answering Affidavits....................... Affirmations in Opposition to the Cross-Motion.......................... Replying Affidavits.. .................................................................... Exhibits...................................................................................... Numbered J 2 3 ._ , . In this Article 78 proceeding, petitioner Patrina Macklin (L petitioner )seeks to reverse ~ the determination made by respondent the New York State Division of Human Rights ( DHR ) that there is no probable cause to support the allegation that American Building Maintenance ( ABM ) unlawfully discriminated against petitioner with regard to her employment based on the fact that she is black and a victim of domestic violence. For the reasons set forth below, the petition is denied. .. . [* 3] I On August 18,2008, petitioner began working for ABM as a cleaner and wm assigned to 235 East 42ndStreet, where she reported to Project Manager, Ricardo Billy. In October and November 2008, petitioner reported to work late or failed to report to work on at least nine documented occasions. ABM then terminated petitioner s employment in November 2008. However, on November 24,2008, following a union grievance and subsequent Last Chance Agreement, petitioner s employment was reinstated on December 1,2008 and she was transferred to a new work location at Pennsylvania Station - Amtrak. Petitioner was also given a final warning that any further issues relating to lateness, leaving the work location early or unexcused absenteeism would result in further disciplinary action up to and including termination. From December 1,2008 until December 21,2008, petitioner reported to work late or failed to report to work on at least eight documented occasions. Following a late arrival on December 2 1, 2008, ABM again terminated petitioner s employment. On December 18,2009, petitioner filed a verified complaint with the DHR charging ABM with an unlawful discriminatory practice relating to employment because of racdcolor and domestic violence victim status in violation of N.Y. Exec. Law, Art. 15 (the HumanRights Law ). In the complaint, petitioner, who is black and a victim of domestic violence, alleged that she was treated disparately and terminated because of her protected class affiliation. Specifically, petitioner alleged that she was (i) being given different or worse job duties than other workers in her same titlc; (ii) being paid a lower salary than other workers in her same title; (iii) being denied leave time; (iv) being demoted; (v) being suspended; and (vi) being terminated. Petitioner asserted in her complaint that she believed she was receiving this treatment because she was black and because she showed her ABM Supervisor court papers showing that her child s father 2 [* 4] pulled a gun on her. An investigation was conducted to determine the validity of petitioner s claims. ABM asserted that petitioner s employment w s terminated because of her continued attendance and a tardiness issues. Petitioner acknowledged her record of absence and lateness, but maintained that she had legitimate reasons for being late or absent, including that she was sick, her son was sick or because of some matter related to her abusive husband. Petitioner was unable to provide any examples of an employee of ABM who had a similar history of absence and lateness and w s a treated similarly or more favorably than petitioner. Following the investigation and opportunity to review evidence submitted by both parties, the DHR determined that there is no probable cause to believe that [ABM] has engaged in or is engaging in the unlawful discriminatory practice complained of. The DHR noted that the parties acknowledged that during [petitioner s] employment and after her dismissal, [ABM] employed and continues to employ individuals of the same race as [petitioner]. Further, with regard to petitioner s assertion that her identification as a victim of domestic violence was one of the bases for her termination, the DHR found that [tlhis basis cannot be applied in this matter because the most recent date of alleged discrimination occurred prior to the inclusion of domestic violence victim status in to the Human Rights Law. The aforementioned became a law on July 7, 2009 while [petitioner s] most recent date of alleged discrimination was December 21,2008. Thus, the DHR dismissed the complaint and closed the file. Petitioner then commenced the instant Articlc 78 proceeding challenging the DHR s decision. It is well-settled that the DHR has broad discretion in determining the method to be employed in investigating a claim. McFarland v. N. Y. State Div. OfHuman Rights, 241 A.D.2d 3 [* 5] 108, 111 (1st Dep t 1998). Where, as here, a determination of no probable cause is rendered without holding a public hearing pursuant to Executive Law $297 (4)(a), the appropriate standard of review is whether the determination w s arbitrary or capricious or lacking a rational basis. Id. a Additionally, the court s role is limited to a review of the information before the agency. Tanalski v. N Y.State Div. of Human Rights, 262 A.D.2d 117, 118 (1st Dep t 1999). Further, the DHR s determination may not be overturned unless the record reflects an abbreviated or onesided investigation. Chirgotis v. Mobil Oil Corp. 128 A.D.2d 400,403 (1st Dep t 1987). In the instant action, the DHR s determination that there is no probable cause to support petitioner s allegation that ABM unlawfully discriminated against petitioner wt regard to her ih employment based on the fact that she is black and a victim of domestic violence was made on a rational basis. Both petitioner and ABM were given a full and fair opportunity to present their case. The D1 IR, taking into consideration the record submitted by the parties, provided a rational basis for corning to its conclusion that petitioner was terminated from her employment wt ih ABM due to her tardiness and absenteeism. Further, petitioner has not provided any evidence of a one-sided investigation. Accordingly, the court denies petitioner s request for relief under Article 78 of the CPLR. Thus,the petition is dismissed in its entirety. This constitutes the decision and order of the court. Enter: t% J.S.C. 4 NEW YORK COUNTY CLERK S OFFICE

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