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In re Kaplan

Supreme Court of New York, Second Department

May 15, 2012

In the Matter of Michael Kaplan, petitioner/cross respondent,
v.
New York State Division of Human Rights, respondent/cross petitioner, et al., respondent. Index No. 12369/11

Matthew Muraskin, Port Jefferson, N.Y., for petitioner/cross respondent.

Caroline J. Downey, Bronx, N.Y. (Michael K. Swirsky of counsel), for respondent/cross petitioner.

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, LEONARD B. AUSTIN, JJ.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 and, in effect, Executive Law § 298, to review a determination of the Commissioner of the New York State Division of Human Rights, dated February 28, 2011, which adopted the recommendations and findings of an Administrative Law Judge dated August 20, 2010, made after a hearing, finding that the petitioner violated Executive Law § 296(1)(a) by discriminating against the complainant on the basis of her military status, and awarded the complainant compensatory damages in the principal sum of $15, 000, and back pay in the principal sum of $10, 880, and cross petition by the New York State Division of Human Rights pursuant to Executive Law § 298 to enforce the determination.

ADJUDGED that the petition is granted, on the law, and the cross petition is denied, without costs or disbursements, the determination is annulled, and the administrative complaint is dismissed.

The petitioner hired the complainant, a member of the United States military reserve, to work as a medical assistant in the petitioner's bariatric medicine office in Westbury after the petitioner interviewed the complainant in August 2005 on the recommendation of a former employee. When the complainant told the petitioner and his office manager during the interview that her membership in the military reserve required her to perform duty on the first weekend of every month and for two weeks in the summer, the petitioner arranged for the complainant's work schedule not to include any weekends on which the complainant was scheduled for duty.

There were no problems with the complainant's performance through the end of 2005. On February 17, 2006, the petitioner called the complainant on her cell phone to find out why she failed to appear for work despite the fact that her shift began an hour earlier. The complainant told him that she was performing additional reserve duty at a recruiting station in Harlem, and that she would return to the office as soon as she was released. When the complainant put her sergeant on the telephone, the petitioner told him that he had no notice that the complainant would be performing her military duties at that time. In addition to advising the petitioner that civilian matters yield to miliary duty, the sergeant faxed the petitioner an undated letter, which stated that the complainant "has work on ADSW (Active Duty Special Work)" (hereinafter ADSW duty) for the time periods of February 6-10, 2006, and February 13-17, 2006, and that she "assisted with numerous duties vital to the Recruiting Mission."

Within days after the phone call, the complainant reported an incident to the petitioner in which her coworker allegedly cursed her and disparaged her race and military status when the complainant refused to interrupt a nurse who was treating a patient. At a meeting convened by the petitioner on February 22, 2006, to examine the situation, the petitioner elicited the coworker's apology to the complainant for cursing her, placed the coworker on probation, and placed the complainant on probation for being late to work on multiple occasions. At this time, the complainant told the petitioner that she was late the previous week because she had to travel from Harlem, where she was serving ADSW duty, to the petitioner's office in Westbury, and that there should not be a future problem because her ADSW duty had concluded.

The complainant was subsequently late to work on three occasions between February 22, 2006, and March 29, 2006, for reasons having nothing to do with her military service. On March 29, 2006, the complainant failed to return from lunch early, as the office manager had requested. When the complainant arrived at the office at 3:30 P.M. or 4:00 P.M. on that date, the office manager told the complainant that she was "sick and tired" of her, and terminated the complainant's employment. The complainant asked the petitioner why her employment was being terminated. He told her that he agreed with the termination because he was "sick and tired" of her as well, she was a big inconvenience because he and his other employees had to deal with the military and her internal complaint about her coworker, and it was best to just fire her.

In December 2006 the complainant filed an administrative complaint against the petitioner with the New York State Division of Human Rights (hereinafter the DHR), alleging that the petitioner violated Executive Law article 15 by discharging her on the basis of her race and military status (see Executive Law § 296[1][a]). After a hearing, an administrative law judge (hereinafter the ALJ), inter alia, rejected the complainant's contention that she was discriminated against on the basis of her race, but found that the petitioner unlawfully discriminated against the complainant on the basis of her military status by terminating her employment for lateness during the time she was serving ADSW duty. The Commissioner of the DHR adopted the ALJ's recommendations and findings of fact in a final order dated February 28, 2011, which awarded the complainant back pay in the sum of $10, 880 with interest, and damages for mental anguish in the sum of $15, 000, with postdetermination interest.

The petitioner then commenced this proceeding pursuant to CPLR article 78 and, in effect, Executive Law § 298 in the Supreme Court to review the DHR's determination adopting the recommendations and findings of the ALJ that the petitioner violated Executive Law article 15, and awarding damages. The DHR cross-petitioned to enforce its determination. The Supreme Court transferred the proceeding to this Court for determination pursuant to CPLR 7804(g) and, in effect, Executive Law § 298. We grant the petition, deny the cross petition, annul the determination, and dismiss the administrative complaint.

Judicial review of a determination of the DHR made after a hearing is limited to whether the determination is supported by substantial evidence (see Matter of State Div. of Human Rights [ Granelle ], 70 N.Y.2d 100, 106; Matter of MTA Trading, Inc. v Kirkland, 84 A.D.3d 811, 813; cf. Matter of Shuler v New York City Hous. Auth., 88 A.D.3d 895, 896; Matter of Coulter v State of N.Y. Ins. Dept., 74 A.D.3d 963, 964-965). Here, the DHR's determination was not supported by substantial evidence.

To establish liability under Executive Law § 296(1)(a) arising from the termination of employment, a complainant must establish, before the DHR, a prima facie case of discrimination by a preponderance of the evidence (see Stephenson v Hotel Empls. & Rest. Empl. Union Local 100 of AFL-CIO, 6 N.Y.3d 265');">6 N.Y.3d 265, 270), by showing that the complainant (1) is a member of a class protected by the statute; (2) was actively or constructively discharged; (3) was qualified to hold the position from which he or she was terminated; and (4) was terminated under circumstances which give rise to an inference of discrimination (id., citing Ferrante v American Lung Assn., 90 N.Y.2d 623');">90 N.Y.2d 623, 629). The burden of establishing a prima facie showing has been described as "de minimus" (see Abdu-Brisson v Delta Air Lines, Inc., 239 F.3d 456, 467, cert denied 534 U.S. 993; Vinokur v Sovereign Bank, 701 F.Supp.2d 276');">701 F.Supp.2d 276, 286-287). Once such a showing has been made, the burden shifts to the employer to rebut the prima facie case by providing a legitimate, nondiscriminatory reason for the complainant's discharge (see Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 N.Y.3d at 270, citing Ferrante v American Lung Assn., 90 N.Y.2d at 629). In response to such a rebuttal, the complainant must show by a preponderance of the evidence that the employer's reasons for the challenged termination were pretextual (see Vinokur v Sovereign Bank, 701 F.Supp.2d at 287), with the complainant having the burden of persuasion on the ultimate issue of discrimination (see Texas Dept. of Community Affairs v Burdine, 450 U.S. 248, 253; Stephenson v Hotel Empls. and Rest. Empls. Union Local 100 of AFL-CIO, 6 N.Y.3d at 271).

The complainant here met her burden of demonstrating a prima facie case of discrimination based on military status by demonstrating that the petitioner terminated her for being late on days which included days she served ADSW duty, and that the petitioner remarked that he was tired of dealing with issues relating to her military status, which give rise to an inference of discrimination (cf. Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 N.Y.3d at 271; Matter of Putnam/Northern Westchester Bd. of Coop. Educ. Servs. v Westchester County Human Rights Commn., 81 A.D.3d 733). However, in response to the complainant's prima facie showing, the petitioner ...


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