| Matter of Medical Express Ambulance Corp. v Kirkland |
| 2010 NY Slip Op 09273 [79 AD3d 886] |
| December 14, 2010 |
| Appellate Division, Second Department |
| In the Matter of Medical Express Ambulance Corp. et al.,Petitioners/Cross-Respondents, v Galen D. Kirkland et al., Respondents, and New YorkState Division of Human Rights, Respondent/Cross-Petitioner. |
—[*1] Caroline J. Downey, Bronx, N.Y. (Michael K. Swirsky of counsel), forrespondent/cross-petitioner.
Proceeding pursuant to Executive Law § 298 to review a determination of theCommissioner of the New York State Division of Human Rights dated September 30, 2008, whichadopted the recommendation and findings of an administrative law judge dated June 17, 2008, madeafter a hearing, finding that the complainant, Beverly Johnson, was subjected to a hostile workenvironment because of her sex in violation of Executive Law § 296, and awarded thecomplainant the sum of $80,000, plus interest at the rate of 9% per annum from the date of thedetermination, in compensatory damages for mental anguish and humiliation, and cross petition by theNew York State Division of Human Rights pursuant to Executive Law § 298 to enforce thedetermination.
Adjudged that the petition is granted and the cross petition is denied, with costs, the determinationis annulled, and the administrative complaint is dismissed.
The complainant, a former employee of Medical Express Ambulance Corp. (hereinafter MEA),alleged that, over a period of months in 2005, her supervisor, Frank Martinez, made repeatedunwelcome and abusive sexual advances towards her, and that those advances were so severe that shewas forced to request a transfer to another department. She testified that Martinez constantly offeredher alcohol, asked for kisses, told her that he loved her, and found ways to touch her arms, shoulders,legs, and hair. Although she repeatedly asked him to stop, she testified that "[e]very single day it wassomething." She further testified that he asked her out for drinks "[c]ountless" times, called her cellphone "constantly," and even called her at home. She indicated that she felt like a "slave" and a"hostage" and that, as a result, she eventually requested a transfer to another division. On September18, 2006, the complainant filed a complaint with the New York State Division of Human Rights(hereinafter the DHR).
After a hearing, and upon the recommendation and findings of an administrative law judge, theCommissioner of the DHR (hereinafter the Commissioner) found that the complainant was subjected toa hostile work environment on the basis of her sex in violation of Executive Law § 296, [*2]determined that MEA was liable pursuant to Executive Law § 296(1) because it acquiesced in and condoned the discriminatory conduct, and found that Martinez waspersonally liable pursuant to Executive Law § 296 (6) as an aider and abettor. TheCommissioner awarded the complainant the sum of $80,000, plus interest at the rate of 9% per annumfrom the date of the determination.
Although there is evidence in the record that the complainant was subjected to unwelcome sexualadvances that altered the condition of the workplace (see Matter of Father Belle Community Ctr. vNew York State Div. of Human Rights, 221 AD2d 44 [1996]), we find that the Commissionerimproperly imposed liability on MEA.
Under the Executive Law, "[a]n employer cannot be held liable for an employee's discriminatoryact unless the employer became a party to it by encouraging, condoning, or approving it" (Matter ofState Div. of Human Rights v St. Elizabeth's Hosp., 66 NY2d 684, 687 [1985] [internal quotationmarks omitted]; see Bianco v Flushing Hosp.Med. Ctr., 54 AD3d 304, 305 [2008]; Matter of New York City Health & Hosps. Corp.v New York State Div. of Human Rights, 236 AD2d 310, 310-311 [1997]). Although anemployer's calculated inaction in response to discriminatory conduct may, as readily as affirmativeconduct, indicate condonation (see Matter of State Div. of Human Rights v St. Elizabeth'sHosp., 66 NY2d 684, 687 [1985]), condonation "contemplates a knowing, after-the-factforgiveness or acceptance of an offense" (id. at 687). Therefore, only after an employer knowsor should have known of the improper conduct can it undertake or fail to undertake action which maybe construed as condoning the improper conduct (see Bianco v Flushing Hosp. Med. Ctr., 54AD3d at 305; Vitale v Rosina Food Prods., 283 AD2d 141, 142 [2001]). It is axiomatic thata complaint must allege wrongful conduct as of the date it is filed. Here, the Commissioner's finding wasbased only upon MEA's actions subsequent to the filing of the formal administrative complaint. There isno evidence in the record to indicate that MEA was put on notice of Martinez's alleged sexualharassment before the complaint with the DHR was filed (see Matter of New York City Health &Hosps. Corp. v State Div. of Human Rights, 236 AD2d at 310-311; Matter of CommunityAction Org. of Erie County [CAO] v Mercado, 261 AD2d 935 [1999]). Therefore, it wasimpossible for MEA to have simultaneously been put on notice of improper sexual conduct and at thesame time been guilty for failing to undertake a sufficient investigation into that conduct.
The DHR's contention that the failure to have a policy regarding sexual harassment constitutescondonation is unpersuasive in light of the fact that condonation requires knowledge of the improperconduct. No authority suggests that merely failing to have a sexual harassment policy is substantialevidence to support a finding that the employer condoned the sexual harassment.
We also find that the Commissioner improperly imposed liability on Martinez. Martinez cannot beheld liable for aiding and abetting a violation of Executive Law § 296 (1), since there was nocognizable legal basis for holding MEA liable thereunder (see Barbato v Bowden, 63 AD3d 1580 [2009]; Strauss v New York State Dept. of Educ.,26 AD3d 67 [2005]). Moreover, Martinez cannot be held liable under Executive Law §296 (6) for aiding and abetting his own violation of the Human Rights Law (see Mitchell v TAM Equities, Inc., 27 AD3d703, 707 [2006]; Strauss v New York State Dept. of Educ., 26 AD3d at 73; Murphyv ERA United Realty, 251 AD2d 469, 472 [1998]; Trovato v Air Express Intl., 238AD2d 333, 334 [1997]).
The petitioners' remaining contention has been rendered academic in light of our determination.Dillon, J.P., Florio, Balkin and Roman, JJ., concur.