Ferrer v. New York State Division of Human Rights , 918 N.Y.2d 405 ( 2011 )

Petitioner contends that DHR’s determination was arbitrary and capricious in that DHR failed to investigate and consider petitioner’s claim that she was subjected to a hostile work environment by the law firm. However, this claim was not reasonably discernable from the complaint petitioner filed with DHR. A claim not raised before an administrative agency may not be raised for the first time in a CPLR article 78 proceeding (see Matter of Johnson v New York State Tax Commn., 117 AD2d 867, 868 [1986]; Matter of Seitelman v Lavine, 36 NY2d 165, 170 [1975]).

Moreover, the specific conduct alleged by petitioner in the complaint and petition, if true, is legally insufficient to establish that the workplace was “permeated with ‘discriminatory intimidation, ridicule and insult’ that [was] ‘sufficiently severe or pervasive to alter the conditions of [her] employment’ ” (see Harris v Forklift Systems, Inc., 510 US 17, 21 [1993] [citation omitted]). “[I]solated remarks or occasional episodes of harassment will not support a finding of a hostile or abusive work environment” (see Matter of Father Belle Community Ctr. v New York State Div. of Human Rights, 221 AD2d 44, 51 [1996], lv denied 89 NY2d 809 [1997] [citations omitted]). There was no evidence of record which established that the specific incidents described in the petition were anything more than isolated, occasional or benign. Concur — Saxe, J.P., Sweeny, Catterson, Freedman and Román, JJ.