Bailey v New York State Div. of Human Rights

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Bailey v New York State Div. of Human Rights 2012 NY Slip Op 32886(U) December 5, 2012 Sup Ct, NY County Docket Number: 111481/11 Judge: Peter H. Moulton 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 OF NEW YORK NEW YORK COUNTY d yoa PART Index Number : 1114811201 1 BAILEY, ANNELI INDEX NO. VS . MOTION DATE NYS DIVISION OF HUMAN RIGHTS MOTION SEQ. NO. SEQUENCE NUMBER : 001 VACATE STAY/OR DER/JUDGMENT UNFILED JUDGMENT This judgment has not been entered by &he CimW C k k and notice of entry cannot be served based b m n . To obtain entry, counsel or authorized represepltdbre u s t -m appear in person at the Judgment Clerk's aeslr (Ram 141B). I CHECK ONE: . ..................................................................... d WON. P E E R Ye~~W~~~ NON-FINAL DISPOSITION CASE DISPOSED ........................... MOTION IS: 0GRANTED 0DENIED 0SETTLE ORDER 3. CHECK IF APPROPRIATE: ................................................ 2. CHECK AS APPROPRIATE: 0DO NOT POST [rlGRANTED IN PART rlOTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT O F THE STATE O F NEW YORK NEW YORK COUNTY - - PART 40B ANNELI BAILEY, Index No. 11148 1/11 Petitioner, against NEW YORK STATE D I V I S I O N O F HUMAN R I G H T S and LIBECO LAGAE' INC- DECISION/ORDER UNFILED JUDGMENT This judgment has not been entered by the County Clerk and notice of entry cannot be served based hereon. TO Respondent8btain entry, counsel or authorized representative must person at the Judgment CleNs Desk (Room n% i MOULTON, PETER H e r J*S*C*: 141B). In this Article 7 8 proceeding, petitioner Anneli Bailey annul a determination of- respondent New York (Bailey) seeks to. State Division of Human Rights (DHR), dated Aug. 10, 2011, finding that there was no probable cause to support petitioner's claim that respondent Libeco Lagae, Inc. (Libeco) engaged in unlawful employment discrimination based on sex. Libeco cross- seeking dismissal. The DHR submitted the administrative record and, in its answer, states that, because petitioner and Libeco 'are the real parties in interest, [it] will not actively participate in this matter and is submitting on the record." DHR Answer, l 4. l The scope of this court's review of a challenge to an administrative agency's determination, such as a DHR 'o probable n cause" finding made after an investigation, is limited. 'Where, [* 3] as here, a determination of no probable cause is rendered without holding a public hearing pursuant to Executive Law 2 9 7 (4) (a), § the appropriate standard of review is whether the determination was arbitrary and capricious or lacking a rational basis.', Matter of McFarland v New York State D i v . of Human Rights, 2 4 1 AD2d 1 0 8 , 111 (lst Dept 1 9 9 8 ) ; see a l s o M a t t e r of Orosz v New York S t a t e D i v . of Human R i g h t s , 88 AD3d 798 (2d Dept 2011) (proper standard of review when no hearing held is "arbitrary and capricious, not "substantial evidence"). If "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to t h e facts." M a t t e r of Peckham v Calogero, 12 NY3d 4 2 4 , 4 3 1 (2009); see Matter of Pel1 v Board of Educ. of Union F r e e School D i s t . N o . 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 3 4 NY2d 2 2 2 , 231 ( 1 9 7 4 ) . ' h judicial function is exhausted when there is to be Te found a rational basis f o r the conclusions approved by the administrative body." S u l l i v a n County Harness Racing Assn. v G l a s s e r , 30 NY2d 2 6 9 , 2 7 7 - 2 7 8 ( 1 9 7 2 ) (internal quotation marks and citations omitted); see M a t t e r of Friedman v N e w York S t & t e D i v . of Human R i g h t s , 2 0 1 2 WL 2 9 5 1 1 8 4 , 2 0 1 2 NY Misc LEXIS 3 3 4 3 , **3 (Sup Ct, NY County 2 0 1 2 ) . "Provided there i s some--indeed, any--rationalbasis or credible evidence to support an administrative determination, the agency's decision must be -2- [* 4] upheld." Matter of R i v e r a v N e w York S t a t e D i v . of Human R i g h t s , 18 Misc 3d 1133(A) , * 5 (Sup Ct, NY County 2008); see M a t t e r of Pell, 34 NY2d at 231. Further, ' court may not substitute its judgment for that a of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion." Id. at 232 (emphasis in original) (internal quotation marks and citation omitted); see A r r o c h a v Board of Educ. of C i t y of N . Y . , 93 NY2d 361, 363 (1999); M a t t e r of G o r m l e y v N e w Y o r k S t a t e D i v . of Human R i g h t s , 2009 WL 3514254, 2009 NY Misc LEXIS 5560 (Sup Ct, NY County 2009). 'f the court finds I S t a t e Human Rights A p p e a l Bd. , 5 2 NY2d 72, 79 (1980); S u l l i v a n County Harness R a c i n g A s s n . , 3 0 NY2d at 277-278; Matter of F r i e d m a n , 2012 WL 2951184, 2012 NY Misc LEXIS 3343, at **3; M a t t e r of O l i c k v D ' A l e s s a n d r o , 3 1 Mist 3d 1218A (Sup Ct, NY County 2011); Stillman v N e w York S t a t e D i v . of Human R i g h t s , 2008 WL 5026991, 2008 NY Misc LEXIS 8096, **3-4 (Sup Ct, NY County 2008) . Moreover, when an administrative agency's determination -3- [* 5] "involves factual evaluations in an area of the agency's expertise and is supported by the record, such [determination] must be accorded great weight and judicial deference.'' Flacke v Onondaga Landfill S y s t e m s , Inc., 69 NY2d 355, 363 (1987); see Matter of Peckham, 12 NY3d at 431; Matter of Rosario v New York State Div. of Human Rights, 21 Misc 3d 1108A, *4 (Sup Ct, NY County 2008). The determinations of the DHR 'are entitled to considerable deference due to its expertise in evaluating discrimination claims." Matter of Camp v New York State D i v . of Human Rights, 3 0 0 AD2d 481, 482 (2d Dept 2002); see Matter of Eastport ASSOC., Inc. v N e w York State Div. of H m a n Rights, 71 AD3d 890, 891 (2d Dept 2010). Such determinations may not be set aside "merely because the opposite decision would have been reasonable and also sustainable" (Matter of Mize v State Div. of Human R i g h t s , 33 N Y 2 d 53, 56 119731; see Matter of Imperial Diner, 52 NY2d at 79; Matter of DiNatale v New York State Div. Of Human Rights, 77 AD3d 1341, 1342-1343 [4th Dept 20101), and courts 'must resolve reasonable doubts in favor of the administrative findings and decisions." Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215, 2 2 4 , (4th Dept 1980); see Matter of R o s a r i o , 21 Misc 3d 1108A, at *4. The DHR also has broad discretion to decide h o w to investigate a claim, and, as long as a petitioner has a full -4- [* 6] opportunity to present her claims, "its determination will not be overturned unless the record demonstrates that its investigation was 'abbreviated or one-sided,." Matter of B a l v New York S t a t e Div. of Human R i g h t s , 202 AD2d 236, 237 ( l s t Dept 1994); see Matter of Pascual v N e w York State Div. of Human Rights, 37 AD3d 215, 216 ( l s t Dept 2 0 0 7 ) ; Matter of Gleason. v W.C. Dean Sx. Trucking, Inc., 228 AD2d 678, 679 (2d Dept 1996). In this proceeding, petitioner does not contest the manner in which the DHR investigation was conducted, but asserts that the DHR's determination contains inconsistencies and inaccuracies, is not supported by the evidence, and fails to address her claim as "sex p l u s " discrimination. Petitioner Bailey, who was employed by respondent Libeco from 2001 until she resigned in J u l y 2011, filed a complaint with the DHR, on Aug. 10, 2010, alleging discrimination in the terms and conditions of her employment based on s e x , in violation of the New York State Human Rights Law (Executive Law 5 296) (NYSHRL). See Complaint, Ex. 2 to Petition. The complaint alleges that, during the time that she worked for Libeco, she received positive reviews, promotions,,raisesand benefits, until she had children. Petitioner has two children, three and five when the DHR complaint was filed, who were born in 2004 and [* 7] In February 2009, petitioner's son was diagnosed with 2007.l leukemia, and required extended treatment, starting with six months of intensive chemotherapy. Petitioner alleges that throughout the difficult time that she was dealing with her son's early treatment, her j o b performance remained "exemplary, but 'I Libeco I' [took] issue with the demands of parenthood," and discriminated against her, i n an effort to force her to resign, because she was the only employee in Libeco's New York office who had children. See Complaint, Ex. 2 to Petition, a t , l . In her complaint, petitioner alleges that Libeco discriminated against her in November 2009, when it demoted her from "Sales Director" to 'Customer Service Manager," and reduced her salary by 20%, without reducing her responsibilities. The complaint also alleges that Libeco took away her company cell phone, and denied her requests f o r a Blackberry and/or a laptop computer which would enable her to work away from the office, as circumstances, including her son's special needs as a cancer patient, warranted. Id. at 2 . The DHR conducted an investigation and reviewed evidentiary submissions from the parties. Libeco submitted a written 'Documents submitted to the DHR, including e-mails addressing the dates of petitioner's maternity leaves, indicate that her daughter was born in or around November 2004 and her son was born in or around July 2007. -6- [* 8] response to the complaint, with supporting evidence, including an affidavit of Kathryn Richardson (Richardson), Vice President of Libeco and petitioner's supervisor, and documents, including emails between petitioner and Richardson, copies of petitioner's performance reviews, and information about the gender, position, and salary offeachof Libeco's five employees. Libeco denied discriminating against petitioner because of her sex or because she was a mother. It claimed that it treated petitioner better than other employees because of her status as a mother, by providing her with more than the required amount of time and compensation during her maternity leaves, and by providing her with additional paid vacation time and flexibility in her work schedule, when it learned about her son's illness. See Response to Complaint, Ex. 3 to Petition, at 3 - 4 . Libeco without notice, it always approved her requests, and sought to accommodate petitioner's family situation. ~ d at 3; see . Richardson Affidavit, Ex. 4 to Petition, 11 9-17. Libeco also denied that-petitionerwas demoted, and asserted that, in the fall of 2009, a new Sales Manager was hired, a position that petitioner was not interested in because it -7- -. . . . . [* 9] , Manager was hired, she had numerous conversations with petitioner, in which petitioner explained that she could not fully commit to the travel requirements of a sales position until her children were older. Id., 1 4. Richardson a l s o attested that Libeco considered letting petitioner go when her position was eliminated, but instead offered her a new, customer service position, with a lower salary, in part out of concern for her family's circumstances. Id., 17 The title of the new 7 , 19, 2 2 . position, "Customer Service Manager," was changed, after petitioner complained that her responsibilities were comparable to those of employees in the company's Belgium office whose j,ob title was "Account Manager." Libeco alsb claimed that t h e duties of her new position were defined to make it easier for petitioner to leave' when she needed to attend to her family. See id. at 45.; Richardson A f f . , fill 19-22. Richardson asserted that petitioner's requests for a Blackberry or a l a p t o p computer were rejected because her customer service position, which did not involve travel, did not warrant those devices, which are allowed only for traveling sales positions. Id., 1 24. Richardson also stated that petitioner reeested and was allowed access from her home computer, and, although petitioner)s company cell phone was taken from her, she was informed that she would be reimbursed for any work-related calls she made. Id., 71 24, 26. [* 10] Petitioner submitted a rebuttal, in which she acknowledged that Libeco provided her with additional paid leave during her son' initial cancer treatment, and provided some accommodations during her pregnancies, but she stated that these were consistent with her length of service, dedication and value to the company. Bailey Rebuttal Aff., Ex. See 5 to Petition, 7 3. Petitioner denied that she had any problems with working her scheduled hours, or arriving late and leaving early, as Richardson claimed. Id., 77 4-5; see Richardson Aff., 1 12. She further claimed that her new position required her to perform ninety percent of her former responsibilities, that the job description submitted by Libeco did not accurately represent her duties, and that Libeco did not identify any legitimate business purpose for changing her - job title and reducing her salary. Id., 11 2, 6-7. After reviewing the parties' submissions, the DHR issued its Determination and Order After Investigation on Aug. 10, 2011. The DHR concluded that the evidence did not support petitioner's allegations of sex discrimination. The DHR found that petitioner was demoted, which Libeco had denied, but it also found that the demotion and salary reduction were based on non-discriminatory reasons, including petitioner's inability to meet the travel requirements of a sales position, and the need to reduce costs, although Libeco asserted that cost-cutting was not a reason for -9- [* 11] petitioner's change in position. The DHR further found that the denial of petitioner's request f o r a Blackberry or laptop computer was based on the legitimate reason that her new position was not'one requiring travel, and did not warrant being provided which indicates that 60 % of the employees were female. f n addition, the DHR held \\her complaint that she was discriminated against because she has children . . . would be familial status discrimination rather than sex discrimination. Familial status discrimination is beyond the jurisdiction of the Division of Human Rights. Contrary to Libeco's apparent argument that "sex plus" discrimination is recognized only in Title V I 1 2 cases, there is legal authority to support its application to claims brought under the NYSHRL. See Doyle v B u f f a l o S i d e w a l k C a f e ' , Inc., 70 Misc 2d 212, 214 (Sup Ct, Erie County 1972);; L i f r a n c v N e w York City Dept. of Educ., 2010 WL 1330136, *11, 2010 US Dist LEXIS 34009, *36 (ED NY 2010) (recpgnizing, and dismissing, "gender plus" claim in case brought under Title VI, NYSHRL and NYCHRL), a f f d 415 Fed Appx 318 (2d Cir 2011); Timothy v Our Lady of Mercy Med. C t r . , 2 3 3 Fed Appx 17, 19 (2d Cir 2007) ("gender-plus" * T i t l e VI1 of t h e Civil Rights Act of 1964 ( 4 2 USC seq. 1 -10- B 2 0 0 0 e et [* 12] claim, involving mother with small children, considered in claim brought under Title VII, NYSHRL and NYCHRL); see also Back v Hastings on J?udson Union Free Sch. D i s t . , 365 F3d 107, 118-119 (2d Cir 2004) (finding that "[allthough we have never explicitly said as much, 'sex plus' discrimination is certainly actionable in a § Moreover, claims under the NYSHRL, which 1983 requires that its provisions be "construed liberally" to accomplish the remedial purposes of prohibiting discrimination (Executive Law 5 300), generally are analyzed under the same standards applicable to claims under Title VII. Hotel Employees 6; See Stephenson v Restaurant Employees Union Local 100 of AFL- CIO, 6 NY3d 265, 270 (2006); Forrest v Jewish G u i l d for the Blind, 3 NY3d 295, 305 n 3 (2004); Ferrante v American Lung A s s n . , 90 NY2d 623, 629 (1997)* There is, accordingly, no legal basis for finding that "sex plus" discrimination is not ~ 3 " S e x p l u s , " or 'gender plus," "refers to a policy or practice by which an employer classifies employees on the basis of s e x plus another characteristic. I n such cases the employer does not discriminate against the class of men or women as a whole but rather treats differently a subclass of men or women." Back, 365 F 3 d at 119 n7 (emphasis in original) (internal quotation marks and citations omitted). As it has been further explained, "[tlhe terminology may be a bit misleading, however, because the l'plusI1does not mean that more than simple sex discrimination must be alleged; rather, it describes the case where 'not all members of a disfavored class are discriminated against' . . . Ultimately, regardless of the label given to the claim, the simple question posed by sex discrimination suits is whether the employer took an adverse employment action at least in part because of an employee's sex." Chadwick v W e l l p o i n t , Xnc., 561 F3d 38, 43 ( l a t Cir 2 0 0 9 1 , quoting Back, 3 6 5 F 3d at 118. -1 1- [* 13] actionable under the NYSHRL. DHR'S determination must be vacated as arbitrary and capricious, and in error of law, and remanded to the agency f o r further determination. DHR erred in concluding that petitioner's "complaint that she was discriminated against because she has children . . * would be familial status discrimination rather than sex discrimination. Familial status discrimination is beyond the jurisdiction of the Division of Human Rights." Regardless of whether the agency lacks jurisdiction over familial status discrimination in the employment context ( s e e Executive Law § 296 (1) (a)), a claim for "sex plus" is within the agency's jurisdiction because \\sex plus" is a form of sex discrimination (see footnote 3, i n f r a ) , and sex discrimination is within the agency's jurisdiction. Because the court cannot say that this error did not affect DHR's determination of no probable cause, the agency must issue a new determination, and address the "sex plus" claim. investigation, if appropriate) in accordance with this Decision and Order; and it is further -12- [* 14] ORDERED that the cross motion December 5 , 2 0 1 2 New York, New York is denied. Dated: ENTER : UNFILED JUDGMENT This judgment has not been entered by the County Clerk and notice of entry cannot be served based hereon. To obtain entry, counsel or authorized representative must appear in person at the Judgment Clerk's Desk (Room 1436). -13-

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