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

190
TP 16-00820
PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


IN THE MATTER OF SHANNON SCHEUNEMAN, PETITIONER,

                    V                              MEMORANDUM AND ORDER

NEW YORK STATE DIVISION OF HUMAN RIGHTS AND TOWN
OF TONAWANDA, RESPONDENTS.


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

GOLDBERG SEGALLA LLP, BUFFALO (KRISTIN KLEIN WHEATON OF COUNSEL), FOR
RESPONDENT TOWN OF TONAWANDA.

CAROLYN J. DOWNEY, GENERAL COUNSEL, BRONX (AARON M. WOSKOFF OF
COUNSEL), 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, Erie County [Frederick J.
Marshall, J.], entered May 9, 2016) to review a determination of
respondent New York State Division of Human Rights. The determination
dismissed petitioner’s complaint against respondent Town of Tonawanda.

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

     Memorandum: Petitioner commenced this proceeding pursuant to
Executive Law § 298 seeking to annul the determination of respondent
New York State Division of Human Rights (SDHR) dismissing her
complaint alleging unlawful discrimination and a hostile work
environment. Our review of the determination, which adopted the
findings of the Administrative Law Judge (ALJ) who conducted the
public hearing, “is limited to consideration of whether substantial
evidence supports the agency determination” (Rainer N. Mittl,
Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d
326, 331; see 300 Gramatan Ave. Assoc. v State Div. of Human Rights,
45 NY2d 176, 179-180). “Although a contrary decision may be
reasonable and also sustainable, a reviewing court may not substitute
its judgment for that of the Commissioner [of SDHR] if his [or her
determination] is supported by substantial evidence” (Matter of
Consolidated Edison Co. of N.Y. v New York State Div. of Human Rights,
77 NY2d 411, 417, rearg denied 78 NY2d 909). We conclude that there
is substantial evidence to support the determination that petitioner
was not discriminated against on the basis of her gender. We agree
                                 -2-                           190
                                                         TP 16-00820

with SDHR that petitioner met her burden of establishing a prima facie
case of discrimination based on her gender when she was not promoted
to a position with respondent Town of Tonawanda (Town) (see generally
Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305). We further
agree with SDHR, however, that the Town presented a legitimate,
independent and nondiscriminatory reason to support its decision to
offer the position to another employee (see generally id.). Although
petitioner contends that her testimony showed that members of the Town
Board, who made the hiring decision, have an “anti-female bias,” her
testimony conflicted with the Town’s proof and presented an issue of
credibility to be resolved by the ALJ (see Matter of Berenhaus v Ward,
70 NY2d 436, 443-444). We further conclude that there is substantial
evidence to support the determination that petitioner was not
subjected to a hostile work environment (see generally Matter of
Bowler v New York State Div. of Human Rights, 77 AD3d 1380, 1381, lv
denied 16 NY3d 709).




Entered:   February 10, 2017                   Frances E. Cafarell
                                               Clerk of the Court
