January 9, 2014
In re Billy Barnes, Petitioner-Appellant,
Beth Israel Medical Center, Respondent-Respondent, New York State Division of Human Rights, Respondent.
Billy Barnes, appellant pro se.
Edwards Wildman Palmer LLP, New York (David R. Marshall of counsel), for respondent.
Tom, J.P., Friedman, Renwick, Feinman, Clark, JJ.
Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about November 5, 2012, granting the cross motion of respondent Beth Israel Medical Center (Beth Israel) to dismiss the petition to annul the determination of respondent New York State Division of Human Rights (DHR), dated April 20, 2012, that there was no probable cause to believe that Beth Israel had engaged in an unlawful discriminatory employment practice, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
DHR's determination had a rational basis in the record and was not arbitrary and capricious (see generally Flacke v Onondaga Landfill Sys., 69 N.Y.2d 355, 363 ). Petitioner failed to show that the nondiscriminatory reason offered by Beth Israel for terminating his employment, namely, his commission of "gross misconduct" by placing his hands on a coworker's neck and threatening her, was a pretext for discrimination based upon his race, sex or national origin.
Petitioner was not prevented from showing pretext by DHR's failure to make additional attempts to contact witnesses. The information supplied by the parties was sufficient for DHR to make its determination (see Matter of Pascual v New York State Div. of Human Rights, 37 A.D.3d 215 [1st Dept 2007]). Moreover, the record shows that the investigation conducted by DHR was sufficient and not one-sided, and that petitioner had a full and fair opportunity to present his own case (see id.; Matter of McFarland v New York State Div. of Human Rights, 241 A.D.2d 108, 112 [1st Dept 1998]).
We have considered petitioner's remaining contentions and find then unavailing.
Motion seeking leave for oral argument denied.