FIGEUROA, RACHEL v. NEW YORK STATE DIVISION OF, HUMAN RIGHTS ( 2016 )


Menu:
  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    709
    TP 15-01941
    PRESENT: WHALEN, P.J., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.
    IN THE MATTER OF RACHEL FIGUEROA, PETITIONER,
    V                             MEMORANDUM AND ORDER
    NEW YORK STATE DIVISION OF HUMAN RIGHTS
    AND BUFFALO CITY SCHOOL DISTRICT, RESPONDENTS.
    LAW OFFICE OF LINDY KORN, PLLC, BUFFALO (CHARLES MILLER OF COUNSEL),
    FOR PETITIONER.
    CAROLINE J. DOWNEY, GENERAL COUNSEL, BRONX, FOR RESPONDENT NEW YORK
    STATE DIVISION OF HUMAN RIGHTS.
    GOLDBERG SEGALLA LLP, BUFFALO (KRISTIN K. WHEATON OF COUNSEL), FOR
    RESPONDENT BUFFALO CITY SCHOOL DISTRICT.
    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, Erie County [Catherine R.
    Nugent Panepinto, J.], dated November 16, 2015) to review a
    determination of respondent New York State Division of Human Rights.
    The determination dismissed petitioner’s complaint.
    It is hereby ORDERED that the determination is unanimously
    confirmed without costs and the petition is dismissed.
    Memorandum: Petitioner Rachel Figueroa commenced this proceeding
    and petitioner Ashleigh Schwallie commenced a separate proceeding
    (Matter of Schwallie v New York State Div. of Human Rights, ___ AD3d
    ___ [Sept. 30, 2016]) pursuant to Executive Law § 298 seeking to annul
    the determination of respondent New York State Division of Human
    Rights (Division) dismissing their complaints alleging sexual
    harassment and retaliation. At the time of the alleged employment
    discrimination, petitioners were employed by respondent Buffalo City
    School District (District) at the same school.
    At the outset, we conclude that the District waived its
    contention that the petitions should be dismissed for lack of
    jurisdiction based upon the alleged failure of petitioners to serve
    the District in accordance with CPLR 311 (a) (7). Those objections to
    service were raised in the District’s answers, and the District failed
    to move to dismiss the petitions on that ground within 60 days after
    serving its answers (see CPLR 3211 [e]; Anderson & Anderson, LLP-
    Guangzhou v Incredible Invs. Ltd., 107 AD3d 1520, 1521; Matter of
    -2-                           709
    TP 15-01941
    Resnick v Town of Canaan, 38 AD3d 949, 951). We also reject the
    District’s contention that the proceedings were not timely commenced,
    inasmuch as the limitations period commenced on the date of service of
    the Division’s order and the record does not establish the date of
    such service (see Matter of Fantauzzi v New York State Div. of Human
    Rights, 113 AD3d 518, 519).
    On the merits, however, we agree with the District that
    substantial evidence supports the determination of the Division that
    the District is not liable for the coworker’s discriminatory conduct.
    “Under the Human Rights Law, an ‘employer cannot be held liable for an
    employee’s discriminatory act[s] unless the employer became a party to
    [them] by encouraging, condoning, or approving [them]’ ” (Matter of
    New York State Div. of Human Rights v ABS Elecs., Inc., 102 AD3d 967,
    968, lv denied 24 NY3d 901, quoting Matter of Totem Taxi v New York
    State Human Rights Appeal Bd., 65 NY2d 300, 305, rearg denied 65 NY2d
    1054). Petitioners failed to establish that the District became a
    party to the discriminatory conduct. “Rather, the record establishes
    that [the District] ‘reasonably investigated complaints of
    discriminatory conduct and took corrective action’ ” (Matter of Gordon
    v New York State Dept. of Corr. & Community Supervision, 138 AD3d
    1477, 1479).
    Substantial evidence also supports the determination of the
    Division that petitioners were not subjected to retaliation for
    complaining about unlawful discrimination. Although petitioners
    established a prima facie case of retaliation, the District “came
    forward with ‘legitimate, independent, and nondiscriminatory reasons
    to support its employment decision[s]’ ” (Matter of Childs v New York
    State Div. of Human Rights, 57 AD3d 1457, 1458, lv dismissed 12 NY3d
    888, 13 NY3d 926, quoting Matter of Miller Brewing Co. v State Div. of
    Human Rights, 66 NY2d 937, 938), and petitioners failed to show that
    those reasons were pretextual (see Matter of Pace Univ. v New York
    City Commn. on Human Rights, 85 NY2d 125, 129).
    Entered:   September 30, 2016                   Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: TP 15-01941

Filed Date: 9/30/2016

Precedential Status: Precedential

Modified Date: 10/7/2016