                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: August 13, 2015                   520239
________________________________

In the Matter of RENSSELAER
   COUNTY SHERIFF'S DEPARTMENT,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

NEW YORK STATE DIVISION OF
   HUMAN RIGHTS et al.,
                    Respondents.
________________________________


Calendar Date:   June 3, 2015

Before:   Peters, P.J., McCarthy, Egan Jr. and Rose, JJ.

                             __________


      Napierski, VanDenburgh, Napierski & O'Connor, LLP, Albany
(Shawn F. Brousseau of counsel), for petitioner.

      Caroline Downey, State Division of Human Rights, New York
City (Michael K. Swirsky of counsel), for New York State Division
of Human Rights, respondent.

      Luibrand Law Firm, PLLC, Latham (Peter J. Moschetti Jr. of
Anderson, Moschetti & Taffany, PLLC, Latham, of counsel), for
Lora Abbott Seabury, respondent.

                             __________


McCarthy, J.

      Proceeding pursuant to Executive Law § 298 (transferred to
this Court by order of the Supreme Court, entered in Rensselaer
County) to, among other things, review a determination of the
Commissioner of Human Rights which, among other things, found
petitioner guilty of an unlawful discriminatory practice based on
gender.
                              -2-                520239

      Respondent Lora Abbott Seabury filed a complaint with
respondent State Division of Human Rights (hereinafter SDHR) in
September 2010, alleging that, while employed by petitioner at
its correctional facility, she was subjected to, among other
things, sexual harassment by male coworkers. Ultimately, an
Administrative Law Judge (hereinafter ALJ), after holding a
hearing, found that Seabury had shown that she was sexually
harassed by male coworkers and recommended that petitioner be
ordered to pay Seabury nearly $450,000 in economic damages and
$300,000 in noneconomic damages. The Commissioner of Human
Rights adjusted the amount of economic damages to approximately
$315,000, but otherwise adopted the ALJ's recommendations in all
pertinent respects. Petitioner thereafter initiated this
proceeding to annul the Commissioner's final determination.
Seabury filed an application seeking modification and
confirmation of the final determination. The consolidated
proceeding was transferred by Supreme Court to this Court.

      When reviewing a determination made by the Commissioner in
a matter such as this one, our purview is "extremely narrow" and
must focus not on whether we would have reached the same result
as did the Commissioner, but instead on whether the
Commissioner's determination was rational in light of the
evidence presented (Matter of State Div. of Human Rights
[Granelle], 70 NY2d 100, 106 [1987]; accord Matter of Arcuri v
Kirkland, 113 AD3d 912, 914 [2014]; Matter of West Taghkanic
Diner II, Inc. v New York State Div. of Human Rights, 105 AD3d
1106, 1107 [2013]). Such deference is due given SDHR's expertise
in evaluating discrimination claims (see Matter of Arcuri v
Kirkland, 113 AD3d at 914; Matter of Harrison v Chestnut Donuts,
Inc., 60 AD3d 1130, 1131 [2009]). A violation of Executive Law
§ 296 based on a hostile work environment must be supported by
proof that the "workplace [was so] permeated [by a]
discriminatory" atmosphere that it "alter[ed] the conditions of
the [complainant's] employment" (Forrest v Jewish Guild for the
Blind, 3 NY3d 295, 310 [2004] [internal quotation marks and
citation omitted]; accord Matter of West Taghkanic Diner II, Inc.
v New York State Div. of Human Rights, 105 AD3d at 1107).
"Where, as here, there is a finding of a hostile work environment
as a result of sexual harassment, the evidence in the record must
                              -3-                520239

establish the pertinent elements, including proof that the
discriminatory conduct occurred due to the complainant's gender"
(Matter of Arcuri v Kirkland, 113 AD3d at 914; see Suriel v
Dominican Republic Educ. & Mentoring Project, Inc., 85 AD3d 1464,
1466 [2011]).

      According to Seabury, after reporting coworker Richard
Fenton for offenses that included sleeping on the job and
previously grabbing her buttocks and breasts without her consent,
Seabury began to be increasingly harassed by male friends of
Fenton, who had been suspended as a result of the initial
reports. Seabury testified that this group of men, along with
Fenton, were known by the name "the boys club" within the
correctional facility. Seabury further testified that one of her
supervisors, Captain Hal Smith, also referred to the group of men
by that phrase. According to Seabury, members of the boys club
began to level slurs at both Seabury and another female employee
who had reported Fenton for sexual harassment, slurs that
included rat, bitch, slut and whore. The men also began making
rat noises while in the presence of the two female employees.
According to Seabury, one such male employee stated, "That
f***ing bitch don't miss a f***ing trick" in reference to Seabury
and while in her presence. Seabury explained that this
harassment occurred on a daily basis and that she always reported
the incidents to Smith.1 Seabury testified that Smith would tell
her, "be tough" and "[y]ou need to be strong," but failed to
reprimand the offending employees. Seabury also testified that
Smith communicated that he held different professional
expectations for the alleged male harrasers than for Seabury,
informing her that "boys will be boys" and "you know how those


    1
        Petitioner's sexual harassment policy directs employees
to bring complaints "to a supervisor of [the employee's] choice,"
with permissible methods of notification, including "requesting
an individual interview" with that supervisor. Given that
Seabury complied with this policy by reporting the alleged
harassment to Smith, we need not decide the question of whether
the lack of an employee's compliance with such reporting policy
would offer a defense to liability (see generally Forrest v
Jewish Guild for the Blind, 3 NY3d at 312 n 10).
                               -4-                520239

boys are." When Seabury specifically reported to Smith that she
believed that the fellow female employee who had also reported
Fenton had been assigned, by one of the individuals in the boys
club,2 to a stressful, undesirable and potentially more dangerous
shift as a form of harassment, Smith suggested that Seabury go
speak to the employee who had made the assignment. Seabury
clarified that the same employee had also been harassing her and
then asked Smith if he still thought she should go speak to him.
He responded, "That's how you approach it" and explained that it
was "nice" of that employee to prepare the schedule. According
to Seabury, she printed explanations of illegal workplace
harassment from the Internet and provided them to Smith. Such
prompting was to no avail, however, as Smith did not reprimand
the offending male employees.

      Seabury further testified that, despite this daily
harassment, she planned on continuing to work and to reach her
retirement. Seabury explained that she wanted to be the first
female sergeant to retire from the correctional facility, and
additional evidence established that Seabury had worked in excess
of 17 years, more than two-thirds the number of years necessary
to receive a pension based on 25 years of service. She
elaborated that another female sergeant previously had worked at
the facility but had not reached retirement. Without
specifically identifying the alleged culprits, Seabury testified
that employees would make known their plans to cause that female
sergeant to cry during her shift. Seabury explained that these
unidentified employees continued such harassing behavior until
that female sergeant quit. Seabury further explained that,
notwithstanding her retirement goal, the harassment she suffered,


     2
        In this and other portions of the record, Seabury's
testimony umambiguously establishes that she identified such
harassers, by name, to Smith. Such evidence contradicts
petitioner's assertion that Seabury failed to identify the
specific men who were harassing her. Given that the record does
not support petitioner's factual contention, we need not address
the plausibility of petitioner's related argument that any
inaction on Smith's part is attributable to Seabury's nonspecific
reports.
                              -5-                520239

which was not ameliorated despite her daily reports to her
supervisor, eventually caused her to leave her employment.

      Considering the evidence presented at the hearing, there is
a rational basis for the determination that, but for Seabury's
gender, she would not have suffered the harassment that she
described and that such harassment altered the conditions of her
employment so as to create an abusive work environment. Notably,
the ALJ credited Seabury's testimony, and this Court will defer
to that determination (see Matter of Arcuri v Kirkland, 113 AD3d
at 914; Matter of West Taghkanic Diner II, Inc. v New York State
Div. of Human Rights, 105 AD3d at 1108). Relying on that
credited testimony, the proof established that the persons
harassing Seabury were all male members of a group of friends and
coworkers who were identified, as a group, by their gender. In
addition, many of the slurs leveled at Seabury and the other
female who reported Fenton's sexual harassment invoked the
victims' gender (compare Matter of Grand Union Co. v Mercado, 263
AD2d 923, 924-925 [1999]). Further, a reasonable person could
conclude that Smith indicated to Seabury that he held different
expectations for male and female employees and that women
employees were required to be strong and tough while male
employees were permitted to "be boys," without any reprimand. At
a minimum, such statements by Smith and his lack of corrective
action condoned such conduct (see Matter of New York State Dept.
of Correctional Servs. v New York State Div. of Human Rights, 53
AD3d 823, 825 [2008]), and there is a rational inference that
Smith's directive to Seabury, his inferior, that she should
confront one of the offenders regarding his gender-based
harassment of another female employee effectively encouraged the
harassment that Seabury suffered (see generally Matter of State
Div. of Human Rights v St. Elizabeth's Hosp., 66 NY2d 684, 687
[1985]). Accordingly, the Commissioner's determination was
rational in light of the evidence presented (see Matter of West
Taghkanic Diner II, Inc. v New York State Div. of Human Rights,
105 AD3d at 1107; Matter of New York State Dept. of Correctional
Servs. v New York State Div. of Human Rights, 53 AD3d at 825;
Matter of R & B Autobody & Radiator, Inc. v New York State Div.
of Human Rights, 31 AD3d 989, 990-991 [2006]; Matter of Grand
Union Co. v Mercado, 263 AD2d at 924).
                              -6-                520239

      We will not reduce Seabury's $300,000 award for noneconomic
injuries. An award for noneconomic damages will be upheld where
it is reasonably related to the wrongdoing, supported by
substantial evidence and comparable to other awards for similar
injuries (see Matter of Freudenthal v County of Nassau, 99 NY2d
285, 291 [2003]; Matter of New York City Tr. Auth. v State Div.
of Human Rights, 78 NY2d 207, 217 [1991]; Matter of New York
State Dept. of Correctional Servs. v New York State Div. of Human
Rights, 53 AD3d at 826; Matter of Kondracke v Blue, 277 AD2d 953,
954 [2000]). Seabury testified that the male coworkers'
harassment led to extensive psychological trauma that included
suicidal ideations and required medication. Seabury's
psychiatrist confirmed these reports and testified that he had
diagnosed Seabury with posttraumatic stress disorder and major
depressive disorder. The psychiatrist opined that the causes of
such conditions were Seabury's frequent and recurring thoughts
regarding the harassment that she suffered at the correctional
facility. Considering Seabury's testimony and the medical proof
elaborating on the severe effects that the discrimination had on
her, the award is reasonably related to the wrongdoing, supported
by substantial evidence and comparable to awards for similar
injuries (see Matter of New York State Dept. of Correctional
Servs. v New York State Div. of Human Rights, 53 AD3d at 826;
Matter of Kondracke v Blue, 277 AD2d at 954; Matter of Town of
Hempstead v State Div. of Human Rights, 233 AD2d 451, 454-456
[1996], appeal dismissed 89 NY2d 1029 [1997], lv denied 90 NY2d
807 [1997]; Matter of New York City Tr. Auth. v State Div. of
Human Rights, 181 AD2d 891, 895 [1992], lv denied 80 NY2d 762
[1992]).

      Next, we agree with Seabury's argument that the
Commissioner should not have offset her award based on past and
future workers' compensation benefits. Workers' Compensation Law
§ 29 (1) provides that, when a benefits recipient pursues a legal
remedy against a third party with respect to the same injuries
for which he or she is receiving benefits, the relevant insurance
carrier "shall have a lien on the proceeds of any [resulting]
recovery . . . to the extent of the total amount of compensation
awarded." One purpose of Workers' Compensation Law § 29 (1) is
to "shift the burden of paying compensation from the carrier
. . . to the party actually responsible for the injury" (Matter
                              -7-                520239

of Murphy v New York City Police Dept., 270 AD2d 733, 733 [2000];
accord Matter of Beth V. v New York State Off. of Children &
Family Servs., 22 NY3d 80, 90 [2013]). By its unambiguous terms,
Workers' Compensation Law § 29 (1) grants a lien without any
exception for when an award of damages has already been reduced
in recognition of a workers' compensation award. Accordingly, an
interpretation of Workers' Compensation Law § 29 (1) that allowed
a reduction in the initial award of damages would not foreclose
the plain application of a lien to that already reduced award,
which would permit the absurd result of punishing the injured
party with a "double debit instead of preventing a double
benefit" (Dietrick v Kemper Ins. Co. [American Motorists Ins.
Co.], 76 NY2d 248, 252 [1990]). Therefore, we reject the notion
that an award that would be subject to such a lien may be reduced
at the outset, because such a scheme is inconsistent with
Workers' Compensation Law § 29 (1). Accordingly, the
Commissioner erred as a matter of law by reducing Seabury's award
for past lost wages by $88,200 and her award for future lost
wages by $176,400 on the basis of workers' compensation benefits.

      In addition, we agree with Seabury that the damages should
have properly reflected consideration of the pension that she
would have received absent the harassment, given that any remedy
should "make the victim whole for injuries suffered as a result
of discriminatory employment practices" (Matter of Beame v
DeLeon, 87 NY2d 289, 297 [1995]), and that we have unambiguously
established that such a remedy includes the consideration of
"pension rights [that are] established with reasonable certainty"
(Lamot v Gondek, 163 AD2d 678, 680 [1990]; see Matter of Laverack
& Haines v New York State Div. of Human Rights, 217 AD2d 955, 956
[1995], revd on other grounds 88 NY2d 734 [1996]; see generally
Reid v Weir-Metro Ambulance Serv., 191 AD2d 309, 310 [1993];
McWeeney v New York, New Haven & Hartford R.R. Co., 282 F2d 34,
36 [2d Cir 1960], cert denied 364 US 870 [1960]). However,
considering that petitioner bears the sole responsibility of
making the complainant whole and could do so by payment
commensurate with any damages attributable to loss or diminution
of pension (see e.g. Lamot v Gondek, 163 AD2d at 680), the
Commissioner's order that petitioner take steps to involve the
Office of the State Comptroller and the New York State and Local
Retirement System – presumably to have them provide an actual
                              -8-                520239

pension – was an abuse of discretion (see generally Weiss v New
York State Human Rights Appeal Bd., 102 AD2d 471, 473 [1984]
[holding that Commissioner erred in ordering state employer to
provide the promotion to a victim that the victim would have
received absent age discrimination instead of providing a proper
award of monetary damages]).3

      Because it attempted to provide Seabury her actual
anticipated pension, SDHR never calculated the monetary award
that would compensate Seabury for the loss of that expected
annuity.4 Given the absence of an initial determination in that
regard, we remit for the limited purpose of resolving the amount
of damages that will make Seabury whole to the extent that her
pension has been diminished, in whole or in part (see State Div.
of Human Rights v New York State Dept. of Correctional Servs., 91
AD2d 832, 833 [1982]; Sears v New York State Div. of Human
Rights, 73 AD2d 913, 915 [1980], lv denied 49 NY2d 705 [1980]).

      Finally, petitioner did not establish that Seabury failed
to mitigate damages relating to her pension to the extent that
she failed to obtain a collateral offset in the form of
disability retirement benefits (see generally CPLR 4545 [a]). As
is relevant here, petitioner bore the burden of establishing its
entitlement to a collateral offset – a collateral source payment
that particularly corresponds to a category of loss for which


    3
        Given this conclusion, we need not address the related
question of whether the remedy was also unlawful to the extent
that the Office of the State Comptroller and the New York State
and Local Retirement System had no legal authority to assist in
the provision of such a remedy.
    4
        Notably, for the purposes of such calculation, Seabury's
testimony that she planned to work for 25 years was credited, she
provided the relevant portions of her collective bargaining
agreement and she provided evidence of her wages for the final
three full years of her employment, which allows for the
computation of her final average salary (see generally Retirement
and Social Security Law § 608).
                              -9-                520239

damages are awarded – by clear and convincing evidence (see
Johnson v New York City Tr. Auth., 88 AD3d 321, 328 [2011]; Young
v Knickerbocker Arena, 281 AD2d 761, 764 [2001]). It is
uncontested that Seabury has never applied for such benefits (see
e.g. Young v Tops Mkts., 283 AD2d 923, 926 [2001]).
Petitioner – in its briefs to the Commissioner and to this Court
– broadly asserts that the record establishes that Seabury would
have been entitled to disability retirement benefits or
performance of duty disability benefits. Having failed to
identify in any meaningful detail which specific statutory
provisions it relies upon for the proposition that Seabury is
qualified for such benefits, or the further specific provisions
that would establish what amount Seabury would receive if she
were so entitled, we are unable to say that petitioner met its
burden of establishing by clear and convincing evidence that
Seabury was obligated to mitigate damages by obtaining a
collateral offset (compare Johnson v New York City Tr. Auth., 88
AD3d at 328, with Terranova v New York City Tr. Auth., 49 AD3d
10, 18-20 [2007], lv denied 11 NY3d 708 [2008]).

      The remaining issues have been considered and found to be
without merit.

     Peters, P.J., Egan Jr. and Rose, JJ., concur.
                              -10-                 520239

      ADJUDGED that the determination is modified, without costs,
by (1) increasing the award for past lost wages from $107,558.51
to $195,758.51, (2) increasing the award for future lost wages
from $208,837.02 to $385,237.02, and (3) annulling so much
thereof as ordered petitioner to work with the Office of the
State Comptroller and the New York State and Local Retirement
System regarding respondent Lora Abbott Seabury's pension; matter
remitted to respondent New York State Division of Human Rights
for a determination of damages related to Lora Abbott Seabury's
pension; and, as so modified, confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
