                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 22, 2015                   518371
________________________________

In the Matter of BAILEY
   QUINN CURTIS,
                    Appellant,
      v

NEW YORK STATE DIVISION OF
   HUMAN RIGHTS,
                    Respondent,             MEMORANDUM AND ORDER
      and

NISKAYUNA CENTRAL SCHOOL
   DISTRICT,
                    Respondent.
________________________________


Calendar Date:   November 14, 2014

Before:   Lahtinen, J.P., McCarthy, Egan Jr. and Devine, JJ.

                             __________


     Lorraine H. Lewandrowski, Herkimer, for appellant.

      Ferrara, Fiorenza, Larrison, Barrett & Reitz, PC, East
Syracuse (Miles G. Lawlor of counsel), for Niskayuna Central
School District, respondent.

                             __________


McCarthy, J.

      Appeal from a judgment of the Supreme Court (Buchanan, J.),
entered April 29, 2013 in Schenectady County, which dismissed
petitioner's application, in a proceeding pursuant to Executive
Law § 298, to review a determination of respondent State Division
of Human Rights finding no probable cause to believe that
respondent Niskayuna Central School District had engaged in
unlawful discriminatory practices relating to employment.
                              -2-                518371

      Petitioner is employed by respondent Niskayuna Central
School District as a teaching assistant. In the mid-2000s,
petitioner obtained an order of protection against her ex-husband
and legally changed her name and Social Security number to
prevent further contact from him. Petitioner contends that the
School District began subjecting her to disparate treatment after
learning of her status as a domestic violence victim, a protected
class of persons under the state Human Rights Law since 2009 (see
Executive Law § 296 [1] [a], as added by L 2009, ch 80, § 1).

      In August 2011, petitioner took a medical leave of absence
that continued at least through that school year. Petitioner
filed a complaint and an amended complaint with respondent State
Division of Human Rights (hereinafter SDHR) alleging that the
School District engaged in unlawful discriminatory practices
based on her domestic violence victim status and her disability
from posttraumatic stress disorder (hereinafter PTSD), including
threatening to terminate her employment and giving her a negative
job reference. Following an investigation, SDHR issued a
determination of no probable cause to believe that the School
District engaged in unlawful discriminatory practices.
Petitioner commenced this proceeding to annul SDHR's
determination. Supreme Court dismissed the petition, prompting
petitioner's appeal.

      We affirm. SDHR may dismiss a complaint without conducting
a formal hearing if it determines that no probable cause exists
to conclude that an employer engaged in discriminatory practices
(see Executive Law § 297 [2] [a]; Matter of Giles v State Div. of
Human Rights, 166 AD2d 779, 780 [1990]). Courts give deference
to SDHR due to its experience and expertise in evaluating
allegations of discrimination, and will only disturb a
determination of no probable cause if it is arbitrary, capricious
or lacks a rational basis (see Matter of Knight v New York State
Div. of Human Rights, 118 AD3d 791, 791 [2014]; Matter of Sughe
Jo v May Dept. Stores Co., 21 AD3d 614, 615 [2005], appeal
dismissed 5 NY3d 880 [2005]; Matter of Giles v State Div. of
Human Rights, 166 AD2d at 780).

      SDHR conducted an investigation that included reviewing 31
documents submitted by petitioner and 19 documents submitted by
                              -3-                518371

the School District, holding a lengthy two-party conference with
petitioner and numerous School District administrators, and
interviewing 10 people. Those interviews included all of the
individuals identified by petitioner as witnesses, and petitioner
was given the opportunity to respond to all of the School
District's submissions. Thus, we disagree with petitioner's
assertion that SDHR's investigation was not thorough or
sufficient (see Wooten v New York City Dept. of Gen. Servs., 207
AD2d 754, 754 [1994], lv denied 84 NY2d 813 [1995]; Matter of
Gajjar v Union Coll., 107 AD2d 917, 917-918 [1985]).

      The record does not contain any medical documentation
substantiating petitioner's diagnosis with PTSD until after she
took her leave of absence. While the record does indicate that
she may have previously mentioned that diagnosis to some of the
School District's administrators, her requests for medical leave
did not indicate the cause of her requests or link them to her
job assignment. Petitioner did not clearly seek a reasonable
accommodation for her PTSD disability when she took her leave of
absence and, when she made such a request several months later,
the School District offered a different job assignment to
accommodate her. Petitioner did not accept that accommodation;
she stated that she would need to obtain legal advice about this
accommodation but then called in sick and never returned to work,
without explanation.

      As for the negative job reference, SDHR reasonably found
that this was an accurate reflection of the School District's
view of petitioner's job performance. Although petitioner argues
that her poor reviews were related to her status as a domestic
violence victim, the record does not factually support that
assertion but does include information substantiating the School
District's position. While petitioner contends that the School
District created negative reviews based on fabricated problems or
treated her differently from other teaching assistants, the
record does not show that any such treatment was based on her
status as a domestic violence victim. Hence, SDHR's
determination of no probable cause was supported by a rational
basis and was not arbitrary or capricious (see Matter of Sonne v
New York State Div. of Human Rights, 12 AD3d 820, 821 [2004];
Matter of Hone v New York State Div. of Human Rights, 223 AD2d
                              -4-                  518371

761, 762 [1996]).

      Petitioner's argument concerning her request for a hearing
pursuant to Education Law § 3020-a is unpreserved because she did
not raise it before SDHR or Supreme Court (see Executive Law
§ 298), it cannot properly be raised in a proceeding pursuant to
Executive Law § 298 and, in any event, the argument lacks merit
because the School District never filed formal disciplinary
charges against her (see Education Law § 3020-a [2] [a], [c];
Hazen v Board of Educ. of City School Dist. of City of N.Y., 75
AD3d 471, 471-472 [2010], affd 17 NY3d 728 [2011]).

     Lahtinen, J.P., Egan Jr. and Devine, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
