| Matter of Block v Gatling |
| 2011 NY Slip Op 03672 [84 AD3d 445] |
| May 3, 2011 |
| Appellate Division, First Department |
| In the Matter of Mildred Block, Appellant, v Patricia L.Gatling, as Commissioner of New York City Commission on Human Rights, et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Larry A. Sonnenshein of counsel), forMunicipal respondent. Morgan, Lewis & Bockius LLP, New York (August W. Heckman, III of counsel), forAramark, Inc., respondent.
Order and judgment (one paper), Supreme Court, New York County (Joan B. Lobis, J.),entered on or about February 18, 2010, inter alia, denying the petition to annul the determinationof respondent New York City Commissioner of Human Rights, dated June 12, 2009, whichfound no probable cause to believe that petitioner was discriminated against by respondentAramark Sports, LLC, sued herein as Aramark, Inc., her employer, and dismissing theproceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
The determination that there is no probable cause to believe that petitioner was discriminatedagainst by her employer is supported by substantial evidence (see Administrative Code ofCity of NY § 8-123 [e]). Petitioner's claim that her transfer from a portable beer stand atShea Stadium to a food stand where she earned less money in tips was an adverse employmentaction is unsupported in the record (seeMete v New York State Off. of Mental Retardation & Dev. Disabilities, 21 AD3d 288,290 [2005]). The transfer was merely an alteration of her responsibilities and did not result in a"materially adverse change," since petitioner retained the terms and conditions of heremployment, and her salary remained the same (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 306 [2004];Messinger v Girl Scouts of U.S.A.,16 AD3d 314 [2005]). There also was substantial evidence that petitioner failed tosubstantiate her claim of discrimination based on disability, since she had neither requested norbeen refused a reasonable accommodation (see Pembroke v New York State Off. of Ct.Admin., 306 AD2d 185 [2003]).
Respondent's investigation into petitioner's complaint was sufficient, and its determinationrational, since petitioner had a full and fair opportunity to present her case (see Stern v New York City Commn. onHuman Rights, 38 AD3d 302 [2007]). The record establishes [*2]that the investigation was not "abbreviated or one sided" (David v New York City Commn. onHuman Rights, 57 AD3d 406, 407 [2008] [internal quotation marks and citationomitted]). Petitioner's allegation that respondent's determination was biased was alsounsubstantiated. Concur—Saxe, J.P., Friedman, Freedman and Richter, JJ. [Prior CaseHistory: 26 Misc 3d 1228(A), 2010 NY Slip Op 50294(U).]