| Matter of Harrison v Chestnut Donuts, Inc. |
| 2009 NY Slip Op 01567 [60 AD3d 1130] |
| March 5, 2009 |
| Appellate Division, Third Department |
| In the Matter of Nancy L. Harrison, Petitioner, v Chestnut Donuts,Inc., Doing Business as Dunkin' Donuts, et al., Respondents. |
—[*1] Freeman Howard, P.C., Hudson (Cailin C. Brennan of counsel), for Chestnut Donuts, Inc.,respondent. Caroline J. Downey, New York State Division of Human Rights, New York City (MarilynBalcacer of counsel), for New York State Division of Human Rights, respondent.
Peters, J. Proceeding pursuant to Executive Law § 298 (transferred to this Court byorder of the Supreme Court, entered in Otsego County) to review a determination of respondentState Division of Human Rights which found that respondent Chestnut Donuts, Inc. did notengage in an unlawful discriminatory practice.
Petitioner has multiple sclerosis and is unable to walk or stand without the assistance ofeither a wheelchair, crutches or a walker. In July 2006, she was hired by Vicky Wycoff, a storemanager at a Dunkin' Donuts franchise operated by respondent Chestnut Donuts, Inc. in theVillage of Cooperstown, Otsego County, as a crew member in charge of distributing orders andreceiving payment from customers at the drive-thru window. To accommodate petitioner'sdisability, Wycoff modified her job duties by eliminating tasks requiring movement around thestore and placed an office chair at the drive-thru window so that petitioner could remain seated[*2]throughout her shift.
Three months later, in October 2006, Wycoff was terminated from her position for theft, andmanagement of Chestnut Donuts was temporarily assumed by district manager Christina Mitcalf,who discovered a host of deficiencies attributable to Wycoff such as overstaffing and the failureto document customer complaints and personnel matters. Days later, Mitcalf terminated sixemployees, including petitioner. By the end of the calendar year, another 10 employees wereterminated.
Petitioner thereafter filed a verified complaint with respondent State Division of HumanRights (hereinafter SDHR) alleging that Chestnut Donuts had engaged in an unlawfuldiscriminatory practice by terminating her employment on the basis of her disability. Followinga hearing, an Administrative Law Judge (hereinafter ALJ) found that petitioner had failed toestablish that the explanations provided by Chestnut Donuts for its actions were a pretext forillegal discrimination. The Commissioner of Human Rights fully adopted the findings of the ALJand dismissed petitioner's complaint. Petitioner then commenced this proceeding, seeking toannul SDHR's determination, which was subsequently transferred to this Court.
SDHR's determinations are "entitled to considerable deference due to its expertise inevaluating discrimination claims" (Matter of Matteo v New York State Div. of HumanRights, 306 AD2d 484, 485 [2003]; see Matter of New York State Off. of Mental Health v New York State Div.of Human Rights, 53 AD3d 887, 889 [2008], lv denied 11 NY3d 713 [2008]).In reviewing SDHR's finding that Chestnut Donuts did not engage in an unlawful discriminationpractice, "this Court is limited to determining whether the finding is supported by substantialevidence in the record and 'may not weigh the evidence or reject [SDHR's] determination wherethe evidence is conflicting and room for choice exists' " (Matter of New York State Dept. of Correctional Servs. v New York StateDiv. of Human Rights, 57 AD3d 1057, 1059 [2008], quoting City of New York vState Div. of Human Rights, 70 NY2d 100, 106 [1987]; see Matter of New York State Energy Research & Dev. Auth. v New YorkState Div. of Human Rights, 50 AD3d 1361, 1362 [2008]).
Here, petitioner established a prima facie case of discrimination by demonstrating that shesuffers from a disability, was qualified to hold her position as a crew member with modifiedduties, and was discharged under circumstances giving rise to an inference of discriminationbased on her disability (see Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. ofHuman Rights, 100 NY2d 326, 330 [2003]; Ferrante v American Lung Assn., 90NY2d 623, 629 [1997]; Matter of Bemisv New York State Div. of Human Rights, 26 AD3d 609, 611 [2006]). The burden thenshifted to Chestnut Donuts to rebut the presumption of discrimination by presenting evidence of"legitimate, independent, and nondiscriminatory reasons to support its employment decision"(Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 938 [1985];see Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100NY2d at 330).
In this regard, Chestnut Donuts articulated that petitioner was terminated in connection witha storewide downsizing of staff and based upon complaints concerning her job performance.According to Mitcalf, upon a review of store operations following Wycoff's termination, it wasdetermined that the store was overstaffed and a downsizing plan was put into place to dischargeemployees based upon job performance, customer complaints and seniority. Mitcalf testifiedthat, despite a lack of documentation and an incomplete personnel file, she had received [*3]complaints from Wycoff that petitioner was slow and was mixingup orders when delivering them to the drive-thru customers. Mitcalf also stated that shepersonally received a customer complaint that petitioner was rude, and submitted documentaryproof of such complaint. In further support of its position, Chestnut Donuts submitted proof ofpetitioner's comparative seniority, the staff size of other similar Dunkin' Donuts stores, andevidence that five other employees without disabilities were discharged on the very same day aspetitioner. Proof was also presented that 10 additional employees were terminated prior to thenew calendar year as part of the general overhaul of the store with the change in management.Notably, Mitcalf testified that petitioner's disability or the fact that she worked from a chair didnot play a role in the decision to terminate her employment.
Given this evidence of legitimate, nondiscriminatory reasons for terminating petitioner, theburden returned to petitioner to prove that such reasons were "merely a pretext for discriminationby demonstrating both that the stated reasons were false and that discrimination was the realreason" (Forrest v Jewish Guild for theBlind, 3 NY3d 295, 305 [2004]; see Ferrante v American Lung Assn., 90 NY2dat 629-630). Here, petitioner failed to contradict Chestnut Donuts' proof that there was a generaldownsizing of the store or affirmatively demonstrate that the reasons set forth by ChestnutDonuts for her termination were false. Although petitioner testified that the owner of ChestnutDonuts informed her that she was being terminated because she was unable to perform all of thetypical crew member duties, Mitcalf adamantly denied this assertion, and "we will 'not substitute[our] judgment for that of the agency where conflicting evidence exists, because it is for theagency to pass upon the credibility of witnesses and to base its inferences on what it accepts asthe truth' " (Matter of Bemis v New York State Div. of Human Rights, 26 AD3d at 612,quoting Matter of State Div. of Human Rights v Muia, 176 AD2d 1142, 1143 [1991]).Thus, on the record before us, we find that substantial evidence exists to support SDHR'sdetermination that Chestnut Donuts' proffered reasons for terminating petitioner were notpretextual and, therefore, that petitioner's discharge was not the result of a discriminatorypractice.
Cardona, P.J., Kavanagh and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.