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

310
TP 16-01391
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, TROUTMAN, AND SCUDDER, JJ.


IN THE MATTER OF AMG MANAGING PARTNERS, LLC,
MICHAEL ARONICA AND MICHAEL GIANGRECO,
PETITIONERS-RESPONDENTS,

                    V                               MEMORANDUM AND ORDER

NEW YORK STATE DIVISION OF HUMAN RIGHTS, BRITTANY
FRAGALE, RESPONDENTS-PETITIONERS,
AND JOHN SUPPA, RESPONDENT.


JUSTIN S. WHITE, WILLIAMSVILLE, FOR PETITIONERS-RESPONDENTS.

CAROLINE J. DOWNEY, GENERAL COUNSEL, BRONX (TONI ANN HOLLIFIELD OF
COUNSEL), FOR RESPONDENT-PETITIONER NEW YORK STATE DIVISION OF HUMAN
RIGHTS.

CHRISTOPHER D. GALASSO, WILLIAMSVILLE, FOR RESPONDENT-PETITIONER
BRITTANY FRAGALE.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Erie County [Diane Y.
Devlin, J.], entered May 26, 2016) to review a determination of
respondent-petitioner New York State Division of Human Rights. The
determination, among other things, ordered petitioners-respondents
Michael Aronica and Michael Giangreco and respondent John Suppa to pay
respondent-petitioner Brittany Fragale the sum of $65,000 for
compensatory damages incurred as a result of discriminatory actions.

     It is hereby ORDERED that the determination so appealed from is
unanimously modified on the law and the petition is granted in part by
reducing the award of compensatory damages for mental anguish and
humiliation to $25,000, and as modified the determination is confirmed
without costs, and the cross petitions are granted in part and
petitioners-respondents and respondent John Suppa are directed to pay
respondent-petitioner Brittany Fragale the sum of $25,000 with
interest at the rate of 9% per annum, commencing February 5, 2016, to
pay respondent-petitioner Brittany Fragale $5,720 in lost wages with
interest at the rate of 9% per annum, commencing February 5, 2016, and
to pay the State of New York a civil penalty in the amount of $15,000
with interest at the rate of 9% per annum, commencing February 5,
2016, and petitioners-respondents and Suppa are directed to attend a
training session in the prevention of unlawful discrimination.
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                                                         TP 16-01391

      Memorandum: Respondent-petitioner Brittany Fragale (complainant)
filed a complaint in March 2014 with respondent-petitioner New York
State Division of Human Rights (Division), alleging unlawful
discriminatory practices against her employer, petitioner-respondent
AMG Managing Partners, LLC (AMG) and its two principals, petitioner-
respondent Michael Aronica and petitioner-respondent Michael Giangreco
(collectively, petitioners), as well as against respondent John Suppa.
Following the Division’s determination that it had jurisdiction over
the complaint and that probable cause existed to believe that
petitioners and Suppa had engaged in unlawful discriminatory
practices, the matter was referred to a public hearing pursuant to
Executive Law § 297. At the conclusion of the hearing, the
Commissioner of the Division (Commissioner) adopted in large part the
recommended findings of fact, opinion and decision, and order of the
Administrative Law Judge (ALJ) and ordered petitioners and Suppa to
pay complainant $5,720 in lost wages and $65,000 for mental anguish
and humiliation. The Commissioner also ordered petitioners and Suppa
to pay a $15,000 civil penalty and to attend an unlawful
discrimination training seminar. Petitioners seek to vacate, annul,
and set aside the Commissioner’s order. The Division and complainant
have each cross-petitioned for enforcement of the Commissioner’s
order. We deny the petition in part and grant the cross petitions in
part.

     Contrary to petitioners’ contentions, the determinations that
complainant was subjected to a hostile work environment (see Matter of
Father Belle Community Ctr. v New York State Div. of Human Rights, 221
AD2d 44, 50-51, lv denied 89 NY2d 809), that petitioners Aronica and
Giangreco were informed of the sexually inappropriate conduct directed
toward complainant and condoned that conduct (see Matter of State Div.
of Human Rights v St. Elizabeth’s Hosp., 66 NY2d 684, 687; Father
Belle Community Ctr., 221 AD2d at 53), and that complainant was
constructively discharged from employment (see Morris v Schroder
Capital Mgt. Intl., 7 NY3d 616, 621-622; Bielby v Middaugh, 120 AD3d
896, 899) are supported by substantial evidence (see generally Matter
of State Div. of Human Rights [Granelle], 70 NY2d 100, 106; 300
Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180-
182). That complainant may have used sexually inappropriate language
or engaged in sexually inappropriate conduct with a longtime personal
friend who worked in the same office does not preclude a finding of
hostile work environment inasmuch as the relevant inquiry is “whether
[complainant] welcomed the particular conduct in question from the
alleged harasser[s]” (Swentek v USAir, Inc., 830 F2d 552, 557). As
the Court in Swentek held, complainant’s “use of foul language or
sexual innuendo in a consensual setting does not waive ‘her legal
protections against unwelcome harassment’ ” (id.; see Danna v New York
Tel. Co., 752 F Supp 594, 612).

     The ALJ, “after a full consideration of many factors, including
[complainant’s] character and possible self-interest, decided to
credit [her] testimony and reject that of [an opposing witness]. In
our view, those credibility determinations are unassailable and the
testimony thus credited provided substantial evidence for the
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                                                         TP 16-01391

determinations under review” (Matter of Berenhaus v Ward, 70 NY2d 436,
443).

     Contrary to petitioners’ further contention, “the award of
damages for lost wages is reasonably related to the discriminatory
conduct . . . and thus there is no reason to disturb the determination
of the Commissioner with respect thereto” (Matter of New York State
Div. of Human Rights v Independent Auto Appraisers, Inc., 78 AD3d
1541, 1542; see Matter of Beame v DeLeon, 87 NY2d 289, 297).
Moreover, petitioners, who had the burden of proof on the issue of
mitigation of damages (see Matter of Walter Motor Truck Co. v New York
State Human Rights Appeal Bd., 72 AD2d 635, 636), “failed to prove
that complainant did not exercise diligent efforts to mitigate her
damages” (Matter of New York State Div. of Human Rights v Wackenhut
Corp., 248 AD2d 926, 926, lv denied 92 NY2d 812). Moreover, we
conclude that petitioners have failed to establish that the civil
penalty assessed against them was “ ‘an abuse of discretion as a
matter of law’ ” (Matter of County of Erie v New York State Div. of
Human Rights, 121 AD3d 1564, 1566, quoting Matter of Kelly v Safir, 96
NY2d 32, 38, rearg denied 96 NY2d 854).

     In challenging the award for mental anguish and humiliation,
petitioners rely heavily on the fact that complainant failed to submit
documentary evidence to corroborate her testimony that she sought
counseling 33 times in the four months following her constructive
discharge. Contrary to petitioners’ contention, such testimony does
not require corroboration inasmuch as proof of mental anguish “may be
established through the testimony of the complainant alone” (Cullen v
Nassau County Civ. Serv. Commn., 53 NY2d 492, 497; see Matter of New
York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 207, 216).

     We agree with petitioners, however, that the award for mental
anguish and humiliation is excessive. “In reviewing an award for
mental anguish and humiliation, the court should ‘determine whether
the relief was reasonably related to the wrongdoing, whether the award
was supported by evidence before the Commissioner, and how it compared
with other awards for similar injuries’ ” (Father Belle Community
Ctr., 221 AD2d at 57). We conclude that, although the relief granted
herein was reasonably related to the wrongdoing, the amount of the
award is inappropriate when compared to other awards for similar
injuries. While petitioners’ conduct was “unquestionably
reprehensible[,] . . . ‘care must be taken to insure that the award is
compensatory and not punitive in nature’ ” (Matter of New York State
Div. of Human Rights v Young Legends, LLC, 90 AD3d 1265, 1269-1270).
Based on the evidence in this case, including evidence of
complainant’s own sexually inappropriate conduct at the workplace, the
short duration of the conduct, and the severity of the conduct, we
conclude that the Commissioner’s award is excessive and must be
reduced to $25,000 (see id. at 1270; Matter of State of New York v New
York State Div. of Human Rights, 284 AD2d 882, 884; cf. Father Belle
Community Ctr., 221 AD2d at 57-58).
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                                           TP 16-01391




Entered:   March 31, 2017         Frances E. Cafarell
                                  Clerk of the Court
