| Matter of Bracci v New York State Div. of Human Rights |
| 2009 NY Slip Op 03825 [62 AD3d 1146] |
| May 14, 2009 |
| Appellate Division, Third Department |
| In the Matter of Barbara J. Bracci, Petitioner, v New YorkState Division of Human Rights, Respondent. |
—[*1] Marilyn Balcacer, State Division of Human Rights, New York City, forrespondent.
Garry, J. Proceeding pursuant to Executive Law § 298 (transferred to this Court byorder of the Supreme Court, entered in Albany County) to review a determination of respondentwhich dismissed petitioner's discrimination complaint.
Petitioner, a correction officer formerly employed by the Department of CorrectionalServices (hereinafter DOCS), filed a complaint with respondent on November 4, 1996 chargingDOCS and her former captain with unlawful discriminatory practices relating to employment inviolation of the Human Rights Law (see Executive Law art 15). Respondent referred thematter for a public hearing, but the proceedings were effectively stayed thereafter in 2001, whenpetitioner filed a complaint in federal court based on the same facts. In 2005, the federal courtdismissed the federal complaint on statute of limitations grounds, without prejudice topetitioner's claims based on state law (see Bracci v New York State Dept. of CorrectionalServs., 2005 WL 2437029, 2005 US Dist LEXIS 40893 [ND NY 2005]). Petitioner resumedprosecution of the complaint previously filed with respondent. A public fact-finding hearing washeld in 2007, after which the Administrative Law Judge (hereinafter ALJ) recommended afinding that petitioner had failed to meet her burden of proof and that her complaint should bedismissed. The Commissioner of Human Rights thereafter issued a notice and final orderadopting the ALJ's recommended findings and dismissing the complaint. Petitioner initiated this[*2]Executive Law § 298 proceeding seeking thenullification of respondent's determination as well as other relief, and the matter was transferredto this Court (see Executive Law § 298).
Petitioner asserts that respondent erred in dismissing her complaint. Petitioner was requiredto show that she was subjected either to quid pro quo or hostile work environment sexualharassment (see Mauro v Orville, 259 AD2d 89, 91 [1999], lv denied 94 NY2d759 [2000]). To establish quid pro quo sexual harassment, petitioner must show that she was"subjected to unwelcome sexual conduct and that the reaction to that conduct was then used as abasis for decisions, either actual or threatened, affecting compensation, terms, conditions orprivileges of employment" (id. at 91-92). Petitioner alleges that the captain, who was hersupervisor, agreed to hold in abeyance a notice of discipline that was pending against her inexchange for sexual relations. However, the record includes evidence that the notice of disciplinehad already been filed against petitioner before the captain was transferred to her facility, that nospecific discussion of the notice of discipline took place between petitioner and the captain untilafter they began their relationship, and that notices of discipline are handled in DOCS's LaborRelations Office rather than at individual DOCS facilities. The evidence also established that thecaptain's ability to control the processing of a notice of discipline, if any, was limited and that thetiming of the processing of petitioner's notice of discipline was controlled by the Labor RelationsOffice and by the actions of petitioner and her union. There was substantial evidence, therefore,from which respondent could have found that petitioner did not establish that " 'tangible jobbenefits' " were linked to her acceptance or rejection of the captain's sexual advances (id.at 92, quoting Karibian v Columbia Univ., 14 F3d 773, 777 [1994], cert denied512 US 1213 [1994]).
Further, while the captain conceded that he had a sexual relationship with petitioner, hetestified that petitioner initiated the relationship and that it was consensual. Petitioner's owntestimony as to whether she consented to the relationship was inconsistent. Contradictions in thetestimony present assessments of credibility to be resolved by respondent (see Matter of R & B Autobody & Radiator,Inc. v New York State Div. of Human Rights, 31 AD3d 989, 991 [2006]). The ALJ'sfactual conclusion that petitioner's relationship with the captain was consensual is fatal to herclaim of quid pro quo sexual harassment (see Mauro v Orville, 259 AD2d at 93).
To establish a prima facie case of hostile work environment sexual harassment, petitionerwas required to show that her employer knew or should have known that she was subjected tounwelcome sexual harassment and that the employer failed to take remedial action (see Pacev Ogden Servs. Corp., 257 AD2d 101, 103 [1999]). The record reveals that DOCSinvestigated petitioner's claims against the captain immediately after learning about them inJanuary 1996 and, although it determined that the relationship was consensual, promptlytransferred the captain to another facility based on a determination that his ability to commandhad been compromised. Evidence in the record supported respondent's determination that, duringthe pertinent time period, petitioner was not subjected to comments or innuendo regardingsexually explicit videotapes in which she allegedly appeared. Substantial evidence supportedrespondent's conclusion that petitioner's workplace was not "permeated with discriminatoryintimidation, ridicule, and insult" (Matter of New York State Dept. of Correctional Servs. v New York StateDiv. of Human Rights, 53 AD3d 823, 824 [2008] [internal quotation marks andcitations omitted]).
"It is peculiarly within the domain of [respondent, which] is presumed to have specialexpertise in the matter, to assess whether the facts and the law support a finding of unlawfuldiscrimination" (Matter of Club Swamp Annex v White, 167 AD2d 400, 401 [1990],lv denied [*3]77 NY2d 809 [1991] [citations omitted]; accord Matter of New York State Dept. ofCorrectional Servs. v New York State Div. of Human Rights, 57 AD3d 1057, 1059[2008]). The "extremely narrow" scope of this Court's review of respondent's determination islimited to whether substantial evidence in the record supports the determination (City of NewYork v State Div. of Human Rights, 70 NY2d 100, 106 [1987]). This Court " 'may not weighthe evidence or reject [respondent's] determination where the evidence is conflicting and roomfor choice exists' " (Matter of New York State Dept. of Correctional Servs. v New York StateDiv. of Human Rights, 57 AD3d at 1059, quoting City of New York v State Div. ofHuman Rights, 70 NY2d at 106). As respondent's determination that petitioner did notestablish that she was subjected to sexual harassment has a rational basis and is supported bysubstantial evidence, "the judicial function is exhausted" (City of New York v State Div. ofHuman Rights, 70 NY2d at 106).
Petitioner's remaining claims may be briefly addressed. Although petitioner asserts that sheshould have been granted a negative inference with regard to certain missing audio cassette taperecordings, petitioner herself testified that the tapes had been sealed pursuant to a federal courtorder and strongly opposed introduction of copies into evidence. Respondent's determination thatthe tapes were unreliable was well within its discretion as the factfinder and this determinationwill not be disturbed on appeal (see CPLR 3126; Marotta v Hoy, 55 AD3d 1194, 1198 [2008]). There is no evidencewhatsoever supporting petitioner's claim that respondent conducted an improper in camerareview of the tapes.
Finally, petitioner claims that she is entitled to compensatory damages for such torts asintentional infliction of emotional distress and invasion of privacy. These claims lack meritbased upon the determination that petitioner was not subjected to unlawful discrimination.
Peters, J.P., Rose, Lahtinen and Malone Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.