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

494
CA 15-01334
PRESENT: SMITH, J.P., CENTRA, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


IN THE MATTER OF LISA NAPIERALA,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

NEW YORK STATE DIVISION OF HUMAN
RIGHTS, ET AL., RESPONDENTS,
AND ERIE COMMUNITY COLLEGE,
RESPONDENT-APPELLANT.


HODGSON RUSS LLP, BUFFALO (JOSEPH S. BROWN OF COUNSEL), FOR
RESPONDENT-APPELLANT.

LAW OFFICE OF LINDY KORN, PLLC, BUFFALO (LINDY KORN OF COUNSEL), FOR
PETITIONER-RESPONDENT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Erie County (John L. Michalski, A.J.), entered October 10, 2014 in a
proceeding pursuant to CPLR article 78. The judgment, among other
things, granted the petition to annul a determination of respondent
New York State Division of Human Rights.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs, the petition is
dismissed, and the determination of respondent New York State Division
of Human Rights is reinstated.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination of respondent New York State
Division of Human Rights (SDHR) that there was no probable cause to
believe that Erie Community College (respondent) retaliated against
petitioner. We conclude that Supreme Court erred in granting the
petition.

     Petitioner, a security officer for respondent, alleged that
respondent had retaliated against her “by subjecting her to adverse
employment actions after she complained of discrimination.”
Specifically, petitioner alleged that respondent “knowingly assigned”
her to guard duty in its athletic center at a time when the gymnasium
floor was being polyurethaned. The fumes were so strong that
petitioner became ill near the end of her shift and left a voice
message with her supervisor advising him that she needed to leave her
shift early. Subsequently, petitioner was asked to report to the
Human Resources Department to discuss why she went home sick without
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                                                         CA 15-01334

first obtaining her supervisor’s permission. Petitioner was
questioned, but no disciplinary action was taken. Petitioner also
alleged in her petition that respondent retaliated against her when it
allegedly “lost” her “On-the-Job-Training” certificate, which led to
the lapse of her security license and resulted in her suspension
without pay.

     Where, as here, SDHR “renders a determination of no probable
cause without holding a hearing, the appropriate standard of review is
whether the probable cause determination was arbitrary and capricious
or lacked a rational basis” (Matter of Gordon v New York State Div. of
Human Rights, 126 AD3d 697, 698). SDHR “has broad discretion to
determine the method to be employed in investigating complaints . .
. , and its determinations are entitled to considerable deference due
to its expertise in evaluating discrimination claims” (Matter of
Cornelius v New York State Div. of Human Rights, 286 AD2d 329, 329-
330; see generally Matter of Ramirez v New York State Div. of Human
Rights, 4 NY3d 789, 790).

     In our view, SDHR’s determination is not arbitrary or capricious,
and it has a rational basis. The record establishes that petitioner
“had a full and fair opportunity to present her case and that [SDHR’s]
investigation was neither abbreviated nor one-sided” (Kim v New York
State Div. of Human Rights, 107 AD3d 434, 434, lv denied 21 NY3d 866;
see Matter of Baird v New York State Div. of Human Rights, 100 AD3d
880, 881, lv denied 22 NY3d 851). “Probable cause exists only when,
after giving full credence to the [petitioner’s] version of the
events, there is some evidence of unlawful discrimination” (Matter of
Doin v Continental Ins. Co., 114 AD2d 724, 725). Here, crediting
petitioner’s assertion that respondent intentionally assigned her to
its athletic center knowing that the gym floor was being
polyurethaned, we conclude that there is no evidence of unlawful
discrimination, e.g., petitioner was not forced to stay at the
athletic center against her will, nor was she disciplined for leaving
work early. The Human Rights Law (Executive Law § 296 et seq.) and
title VII of the Civil Rights Act of 1964 (42 USC § 2000e et seq.)
“are textually similar and ultimately employ the same standards of
recovery,” and thus “federal case law in this area . . . proves
helpful to the resolution of this appeal” (Matter of Aurecchione v New
York State Div. of Human Rights, 98 NY2d 21, 26). As the United
States Court of Appeals for the Second Circuit has written, title VII
“does not protect an employee from ‘all retaliation,’ but only
‘retaliation that produces an injury or harm’ ” (Tepperwien v Entergy
Nuclear Operations, Inc., 663 F3d 556, 569 [2d Cir]; see Forrest v
Jewish Guild for the Blind, 3 NY3d 295, 312-314), and here there was
no injury or harm.

     With respect to the issue of the security license lapse, we note
that it does not appear from the record that respondent ever was in
possession of petitioner’s training certificate. In any event, the
record establishes that respondent provided petitioner with an
opportunity to rectify the situation, and petitioner was suspended
without pay only when she failed to do so, consistent with
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                                                         CA 15-01334

respondent’s treatment of other security officers with lapsed
licenses.

     Finally, we agree with respondent that there was no need for a
hearing “because the record does not demonstrate the existence of
unresolved questions that required further scrutiny” (Matter of Orosz
v New York State Div. of Human Rights, 88 AD3d 798, 799). “[A]s long
as the investigation is sufficient and the [petitioner is] afforded a
full opportunity to present his [or her] claims, ‘[i]t is within the
discretion of [SDHR] to decide the method or methods to be employed in
investigating a claim’ ” (Matter of McFarland v New York State Div. of
Human Rights, 241 AD2d 108, 112). Here, SDHR contacted both
petitioner and respondent and requested specified answers and
documents related to petitioner’s allegations, and “the conflicting
evidence before SDHR did not create a material issue of fact that
warranted a formal hearing” (Matter of Hall v New York State Div. of
Human Rights, 137 AD3d 1583, 1584).




Entered:   June 17, 2016                        Frances E. Cafarell
                                                Clerk of the Court
