Matter of McGuirk v. New York State Div. of Human Rights

Matter of McGuirk v New York State Div. of Human Rights (2016 NY Slip Op 03987)

Matter of McGuirk v New York State Div. of Human Rights

2016 NY Slip Op 03987

Decided on May 19, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 19, 2016
Tom, J.P., Mazzarelli, Friedman, Richter, Kahn, JJ.

100809/14 978A 978

[*1]In re Michelle Lynn McGuirk, Petitioner-Appellant,

v

New York State Division of Human Rights, et al., Respondents-Respondents, Swiss Reinsurance America Corp., et al., Respondents.

Michelle L. McGuirk, appellant pro se.

Caroline J. Downey, Bronx (Toni Ann Hollifield of counsel), for New York State Division of Human Rights and Robert J. Tuosto, respondents.

Seyfarth Shaw LLP, New York (Christopher H. Lowe of counsel), for Swiss Re Financial Services Corp., respondent.

Final order of respondent New York State Division of Human Rights (DHR), dated June 3, 2014, which dismissed petitioner's complaint alleging discrimination under the Human Rights Law (the proceeding having been transferred to this Court pursuant to Executive Law § 298, by order of Supreme Court, New York County [Alice Schlesinger, J.], entered November 21, 2014), unanimously confirmed, without costs, the petition denied and the proceeding dismissed. Appeal from order, same court and Justice, entered on or about September 30, 2014, which declined to sign petitioner's order to show cause for a temporary restraining order, unanimously dismissed, without costs, as taken from a nonappealable order.

The determination of the Division of Human Rights dismissing petitioner's complaint, following an administrative hearing, is supported by substantial evidence (Matter of State Div. of Human Rights [Granelle], 70 NY2d 100, 106 [1987]). Petitioner failed to meet her prima facie burden of establishing discrimination by a preponderance of the evidence, as she did not demonstrate that her termination from her employment occurred under circumstances giving rise to an inference of discrimination (Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997]). Moreover, petitioner's former employer, Swiss Re Financial Services Corp., "clearly set[] forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons" to support its decision to terminate petitioner's employment (id. at 629).

Petitioner has failed to establish that the administrative hearing was not fair. New York law grants an administrative law judge (ALJ) administering a hearing the "powers to control the presentation of evidence and the conduct of the hearing," including by "foreclos[ing] the [*2]presentation of evidence that is cumulative, argumentative, or beyond the scope of the case" (9 NYCRR § 465.12[f][3]). The ALJ properly exercised his discretion

in denying petitioner's request to amend the complaint (9 NYCRR § 465.4[a]).

We dismiss the appeal from the order declining to sign the order to show cause, since it is not an appealable order (see McKanic v Amigos del Museo del Barrio, 74 AD3d 639 [2010], appeal dismissed 16 NY3d 849 [2011]).

We have considered the petitioner's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 19, 2016

CLERK