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Bailey v. New York State Division of Human Rights

Supreme Court, New York County

December 5, 2012

Anneli Bailey, Petitioner,
New York State Division of Human Rights and Libeco Lagae, Inc., Respondents.


In this Article 78 proceeding, petitioner Anneli Bailey (Bailey) seeks to annul a determination of respondent New York 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-moved for dismissal of the proceeding, and the DHR answered, also 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, ¶ 4.

The scope of this court's review of a challenge to an administrative agency's determination, such as a DHR "no probable cause" finding made after an investigation, is limited. "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 was arbitrary and capricious or lacking a rational basis." Matter of McFarland v New York State Div. of Human Rights, 241 A.D.2d 108, 111 (1st Dept 1998); see also Matter of Orosz v New York State Div. of Human Rights, 88 A.D.3d 798 (2d Dept 2011) (proper standard of review when no hearing held is "arbitrary and capricious, " not "substantial evidence"). "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts." Matter of Peckham v Calogero, 12 N.Y.3d 424, 431 (2009); see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231 (1974).

"The judicial function is exhausted when there is to be found a rational basis for the conclusions approved by the administrative body." Sullivan County Harness Racing Assn. v Glasser, 30 N.Y.2d 269, 277-278 (1972) (internal quotation marks and citations omitted); see Matter of Friedman v New York State Div. of Human Rights, 2012 WL 2951184, 2012 NY Misc. LEXIS 3343, **3 (Sup Ct, NY County 2012). "Provided there is some—indeed, any—rational basis or credible evidence to support an administrative determination, the agency's decision must be upheld." Matter of Rivera v New York State Div. of Human Rights, 18 Misc.3d 1133(A), *5 (Sup Ct, NY County 2008); see Matter of Pell, 34 N.Y.2d at 231.

Further, "a court may not substitute its judgment for that 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 Arrocha v Board of Educ. of City of NY, 93 N.Y.2d 361, 363 (1999); Matter of Gormley v New York State Div. of Human Rights, 2009 WL 3514254, 2009 NY Misc. LEXIS 5560 (Sup Ct, NY County 2009). "If the court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency." Matter of Peckham, 12 N.Y.3d at 431; see Imperial Diner v State Human Rights Appeal Bd., 52 N.Y.2d 72, 79 (1980); Sullivan County Harness Racing Assn., 30 N.Y.2d at 277-278; Matter of Friedman, 2012 WL 2951184, 2012 NY Misc. LEXIS 3343, at **3; Matter of Olick v D'Alessandro, 31 Misc.3d 1218A (Sup Ct, NY County 2011); Stillman v New York State Div. of Human Rights, 2008 WL 5026991, 2008 NY Misc. LEXIS 8096, **3-4 (Sup Ct, NY County 2008).

Moreover, when an administrative agency's determination "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 Systems, Inc., 69 N.Y.2d 355, 363 (1987); see Matter of Peckham, 12 N.Y.3d 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 Div. of Human Rights, 300 A.D.2d 481, 482 (2d Dept 2002); see Matter of Eastport Assoc., Inc. v New York State Div. of Human Rights, 71 A.D.3d 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 Rights, 33 N.Y.2d 53, 56 [1973]; see Matter of Imperial Diner, 52 N.Y.2d at 79; Matter of DiNatale v New York State Div. of Human Rights, 77 A.D.3d 1341, 1342-1343 [4th Dept 2010]), and courts "must resolve reasonable doubts in favor of the administrative findings and decisions." Town of Henrietta v Department of Envtl. Conservation, 76 A.D.2d 215, 224, (4th Dept 1980); see Matter of Rosario, 21 Misc.3d 1108A, at *4.

The DHR also has broad discretion to decide how to investigate a claim, and, as long as a petitioner has a full 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 Bal v New York State Div. of Human Rights, 202 A.D.2d 236, 237 (1st Dept 1994); see Matter of Pascual v New York State Div. of Human Rights, 37 A.D.3d 215, 216 (1st Dept 2007); Matter of Gleason v W.C. Dean Sr. Trucking, Inc., 228 A.D.2d 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 plus" discrimination.

Petitioner Bailey, who was employed by respondent Libeco from 2001 until she resigned in July 2011, filed a complaint with the DHR, on Aug. 10, 2010, alleging discrimination in the terms and conditions of her employment based on sex, in violation of the New York State Human Rights Law (Executive Law § 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, raises and benefits, until she had children. Petitioner has two children, three and five when the DHR complaint was filed, who were born in 2004 and 2007. [1] In February 2009, petitioner's son was diagnosed with 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 job performance remained "exemplary, " but Libeco "[took] issue with the demands of parenthood, " and discriminated against her, in 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, at 1.

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 for 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 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 e-mails between petitioner and Richardson, copies of petitioner's performance reviews, and information about the gender, position, and salary of each of 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 further asserted that, even when petitioner needed time off without notice, it always approved her requests, and sought to accommodate petitioner's family situation. Id. at 3; see Richardson Affidavit, Ex. 4 to Petition, ¶¶ 9-17.

Libeco also denied that petitioner was 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 involved extensive traveling, and petitioner's position was eliminated. According to Richardson, before the new Sales 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., ¶ 4. Richardson also 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., ¶¶ 7, 19, 22. The title of the new 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 job title was "Account Manager." Libeco also claimed that the 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 4-5.; Richardson Aff., ¶¶ 19-22. Richardson asserted that petitioner's requests for a Blackberry or a laptop 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., ¶ 24. Richardson also stated that petitioner requested 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., ¶¶ 24, 26.

Petitioner submitted a rebuttal, in which she acknowledged that Libeco provided her with additional paid leave during her son's 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. See Bailey Rebuttal Aff., Ex. 5 to Petition, ¶ 3. Petitioner denied that she had any problems with working her scheduled hours, or arriving late and leaving early, as Richardson claimed. Id., ¶¶ 4-5; see Richardson Aff., ΒΆ 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 ...

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