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

156
TP 15-01243
PRESENT: CENTRA, J.P., LINDLEY, TROUTMAN, AND SCUDDER, JJ.


IN THE MATTER OF ARTHEA RUSSO, PETITIONER,

                    V                               MEMORANDUM AND ORDER

NEW YORK STATE DIVISION OF HUMAN RIGHTS AND
CITY OF JAMESTOWN POLICE DEPARTMENT, RESPONDENTS.


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

CAROLINE J. DOWNEY, GENERAL COUNSEL, BRONX (MARILYN BALCACER OF
COUNSEL), FOR RESPONDENT NEW YORK STATE DIVISION OF HUMAN RIGHTS.

BOND, SCHOENECK & KING, PLLC, BUFFALO (MARK A. MOLDENHAUER OF
COUNSEL), FOR RESPONDENT CITY OF JAMESTOWN POLICE DEPARTMENT.


     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, Chautauqua County [Paul B.
Wojtaszek, J.], entered April 14, 2015) to review a determination of
respondent New York State Division of Human Rights. The determination
dismissed the complaint of petitioner for gender discrimination and
retaliation.

     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 retaliation. Our
review of the determination, which adopted the findings of the
Administrative Law Judge (ALJ) who conducted the public hearing, is
limited to the issue whether it is supported by substantial evidence
(see Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of
Human Rights, 100 NY2d 326, 331; Matter of State Div. of Human Rights
[Granelle], 70 NY2d 100, 106). “Courts may not weigh the evidence or
reject [SDHR’s] determination where the evidence is conflicting and
room for choice exists. Thus, when a rational basis for the
conclusion adopted by [SDHR] is found, the judicial function is
exhausted” (Granelle, 70 NY2d at 106; see Rainer N. Mittl,
Ophthalmologist, P.C., 100 NY2d at 331; Matter of City of Niagara
Falls v New York State Div. of Human Rights, 94 AD3d 1442, 1443-1444).
                                 -2-                           156
                                                         TP 15-01243

     Contrary to petitioner’s contention, there is substantial
evidence to support the determination that she was not discriminated
against based on her gender. “To establish a prima facie case of
employment discrimination, petitioner was required to demonstrate that
she was a member of a protected class, that she was qualified for her
position, that she was terminated from employment or suffered another
adverse employment action, and that the termination or other adverse
action ‘occurred under circumstances giving rise to an inference of
discriminatory motive’ ” (Matter of Lyons v New York State Div. of
Human Rights, 79 AD3d 1826, 1827, lv denied 17 NY3d 707, quoting
Forrest v Jewish Guild for the Blind, 3 NY3d 295, 306). “The burden
then shifts to the employer ‘to rebut the presumption of
discrimination by clearly setting forth, through the introduction of
admissible evidence, legitimate, independent, and nondiscriminatory
reasons to support its employment decision’ ” (Forrest, 3 NY3d at
305). “In order to nevertheless succeed on her claim, [petitioner]
must prove that the legitimate reasons proffered by the [employer]
were merely a pretext for discrimination by demonstrating both that
the stated reasons were false and that discrimination was the real
reason” (id.).

     While we agree with SDHR’s determination that most of the
employment actions at issue were not adverse because they did not
constitute “materially adverse change[s] in the terms and conditions
of employment” (id. at 306; see Messinger v Girl Scouts of U.S.A., 16
AD3d 314, 314-315), we conclude that the three-day suspension imposed
on petitioner is an adverse employment action (see Lovejoy-Wilson v
NOCO Motor Fuel, Inc., 263 F3d 208, 223; see generally Forrest, 3 NY3d
at 306). Even assuming, arguendo, that the imposition of the adverse
employment action occurred under circumstances giving rise to an
inference of discrimination, we nevertheless conclude that
petitioner’s employer, respondent City of Jamestown Police Department
(City), presented a legitimate, independent and nondiscriminatory
reason to support its employment decision (see Forrest, 3 NY3d at
305). There is substantial evidence in the record to establish that
petitioner, in her role as a court security supervisor, subjected one
or more persons to heightened security measures on a regular basis
either for personal reasons or for no legitimate reason, and that she
caused her male subordinate to do the same. Moreover, there is
substantial evidence to establish that petitioner engaged in excessive
use of her personal cell phone and excessive socializing while on
duty. Contrary to petitioner’s contention, she was not similarly
situated to the male subordinate, and she could not establish
disparate treatment based on the fact that the male subordinate was
not suspended for his role in subjecting certain people to heightened
security measures (see Tucker v Battery Park City Parks Corp., 227
AD2d 318, 318-319).

     Contrary to petitioner’s further contention, there is substantial
evidence to support SDHR’s determination that she was not subjected to
retaliation. “In order to make out a claim for unlawful retaliation
under state or federal law, a [petitioner] must show that ‘(1) she has
engaged in protected activity, (2) her employer was aware that she
participated in such activity, (3) she suffered an adverse employment
                                 -3-                           156
                                                         TP 15-01243

action based upon her activity, and (4) there is a causal connection
between the protected activity and the adverse action’ ” (Calhoun v
County of Herkimer, 114 AD3d 1304, 1306, quoting Forrest, 3 NY3d at
313). Once that showing is made, “the burden then shifts to [the
employer] to present legitimate, independent and nondiscriminatory
reasons to support [its] actions. Then, if [the employer] meet[s]
this burden, [petitioner] has the obligation to show that the reasons
put forth by [the employer] were merely a pretext” (Pace v Ogden
Servs. Corp., 257 AD2d 101, 104).

     Even assuming, arguendo, that petitioner met her initial burden,
we nevertheless conclude that the City presented a legitimate,
independent and nondiscriminatory reason for issuing a counseling
memorandum on sexual harassment based on evidence that petitioner had
been sharing sexually explicit material that she had on her cell phone
(see generally Matter of Pace Univ. v New York City Commn. on Human
Rights, 85 NY2d 125, 129). Petitioner failed to establish that the
reason for the memorandum was pretextual (see generally id.).




Entered:   March 18, 2016                       Frances E. Cafarell
                                                Clerk of the Court
