        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

356
TP 15-01013
PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


IN THE MATTER OF KATHLEEN M. GORDON, PETITIONER,

                    V                               MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT OF CORRECTIONS AND
COMMUNITY SUPERVISION AND NEW YORK STATE DIVISION
OF HUMAN RIGHTS, RESPONDENTS.


KATHLEEN M. GORDON, PETITIONER PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ALLYSON B. LEVINE OF
COUNSEL), FOR RESPONDENT NEW YORK STATE DEPARTMENT OF CORRECTIONS AND
COMMUNITY SUPERVISION.

CAROLINE J. DOWNEY, GENERAL COUNSEL, BRONX, FOR RESPONDENT NEW YORK
STATE DIVISION OF HUMAN RIGHTS.


     Proceeding pursuant to Executive Law § 298 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Orleans County [James P.
Punch, A.J.], dated June 4, 2015) to review a determination of
respondent New York State Division of Human Rights. The determination
dismissed the complaint of petitioner alleging unlawful discrimination
and a hostile work environment.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.

     Memorandum: Petitioner commenced this proceeding pursuant to
CPLR article 78 and Executive Law § 298 seeking to annul the
determination of respondent New York State Division of Human Rights
(SDHR), after a hearing, dismissing her complaint alleging unlawful
discrimination and a hostile work environment. Petitioner is a
correction officer with respondent New York State Department of
Corrections and Community Supervision (DOCCS). We conclude that
SDHR’s determination is supported by substantial evidence and thus
must be confirmed (see generally Matter of State Div. of Human Rights
[Granelle], 70 NY2d 100, 106). “To establish a prima facie case of
employment discrimination, petitioner was required to demonstrate that
she was a member of a protected class, that she was qualified for her
position, that she was terminated from employment or suffered another
adverse employment action, and that the termination or other adverse
action ‘occurred under circumstances giving rise to an inference of
discriminatory motive’ ” (Matter of Lyons v New York State Div. of
                                 -2-                           356
                                                         TP 15-01013

Human Rights, 79 AD3d 1826, 1827, lv denied 17 NY3d 707, quoting
Forrest v Jewish Guild for the Blind, 3 NY3d 295, 306). Here, SDHR’s
determination that petitioner was not subjected to adverse employment
action is supported by substantial evidence. Any change in
petitioner’s assigned posts at the workplace did not constitute “a
materially adverse change in the terms and conditions of employment”
(Forrest, 3 NY3d at 306; see Ponterio v Kaye, 25 AD3d 865, 869, lv
denied 6 NY3d 714). With respect to the formal counseling that
petitioner received with regard to an incident, petitioner admitted
that it did not constitute a form of discipline. In any event,
petitioner failed to demonstrate that any allegedly adverse employment
actions “occurred under circumstances giving rise to an inference of
discrimination” (Forrest, 3 NY3d at 308; see Matter of Jackson v
Buffalo Mun. Hous. Auth., 81 AD3d 1271, 1272).

     We further conclude that SDHR’s dismissal of petitioner’s claim
of a hostile work environment is supported by substantial evidence
(see Matter of Ozolins v New York State Dept. of Correctional Servs.,
78 AD3d 1591, 1591). “Under the Human Rights Law, an ‘employer cannot
be held liable for an employee’s discriminatory act unless the
employer became a party to it by encouraging, condoning, or approving
it’ ” (Matter of New York State Div. of Human Rights v ABS Elecs.,
Inc., 102 AD3d 967, 968, lv denied 24 NY3d 901, quoting Matter of
Totem Taxi v New York State Human Rights Appeal Bd., 65 NY2d 300, 305,
rearg denied 65 NY2d 1054; see Vitale v Rosina Food Prods., 283 AD2d
141, 143). Here, petitioner failed to establish that DOCCS became a
party to any discriminatory act. Rather, the record establishes that
DOCCS “reasonably investigated complaints of discriminatory conduct
and took corrective action” (Vitale, 283 AD2d at 143).




Entered:   April 29, 2016                       Frances E. Cafarell
                                                Clerk of the Court
