| Matter of Murphy v Kirkland |
| 2011 NY Slip Op 07222 [88 AD3d 795] |
| October 11, 2011 |
| Appellate Division, Second Department |
| In the Matter of John Murphy,Petitioner/Cross-Respondent, v Galen D. Kirkland, as Commissioner of New York StateDivision of Human Rights, et al., Respondents/Cross-Petitioners, et al., Respondent, et al.,Cross-Respondent. |
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Proceeding pursuant to Executive Law § 298 to review a determination of theCommissioner of the New York State Division of Human Rights dated February 5, 2010, whichadopted the recommendation and findings of an administrative law judge dated December 7,2009, made after a hearing, finding that the petitioner, John Murphy, and the cross-respondentAlliance Mortgage Banking Corp. retaliated against the complainant for opposing discriminatorypractices, and awarding the complainant the principal sums of $79,827 in damages for back payand $50,000 in compensatory damages for mental anguish, payable by John Murphy,individually, and Alliance Mortgage Banking Corp., and Galen D. Kirkland and the New YorkState Division of Human Rights cross-petition pursuant to Executive Law § 298 to enforcethe determination.
Adjudged that the petition is dismissed as abandoned (see 22 NYCRR 670.8 [e] [1];670.17 [b]); and it is further,
Adjudged that the cross petition is granted, the determination is confirmed, and thepetitioner, John Murphy, and the cross-respondent Alliance Mortgage Banking Corp. are directedto pay the complainant the sum of $79,827, plus interest at the rate of 9% per year from October20, 2006, and the sum of $50,000, plus interest at the rate of 9% per year, from February 5,2010;and it is further,
Ordered that one bill of costs is awarded to the respondents/cross-petitioners, payable by thepetitioner/cross-respondent and the cross-respondent.
To establish a prima facie case of retaliation, the complainant Ronald Maher was required toshow that "(1) [he] has engaged in activity protected by Executive Law § 296, (2) [theemployer] was aware that [he] participated in the protected activity, (3) [he] suffered from adisadvantageous employment action based upon [his] activity, and (4) there is a causalconnection between the protected activity and the adverse action taken by [the employer]"(Pace v Ogden Servs. Corp., 257 AD2d 101, 104 [1999]; see Cesar v Highland Care Ctr., Inc.,37 AD3d 393, 394 [2007]). "Once this initial showing is met, the burden then shifts topetitioner to present legitimate, independent and nondiscriminatory reasons to support [its]actions. Assuming petitioner meets this burden, [the [*2]complainant] would then have the obligation to show that thereasons put forth . . . were merely a pretext" (Matter of Board of Educ. of New Paltz Cent. School Dist. v Donaldson,41 AD3d 1138, 1140 [2007] [citation and internal quotation marks omitted]).
Here, the determination adopted by the Commissioner of the New York State Division ofHuman Rights that Alliance Mortgage Banking Corp. (hereinafter Alliance) and John Murphy,Alliance's president and sole shareholder, retaliated against Maher for opposing a supervisor'ssexual harassment of another employee is supported by substantial evidence in the record (see Noho Star Inc. v New York State Div.of Human Rights, 72 AD3d 448, 449 [2010]; Sorrentino v Bohbot Entertainment &Media, 265 AD2d 245 [1999]).
Moreover, the Commissioner properly determined that Murphy is individually liable to thecomplainant based on his ownership interest in Alliance (see Patrowich v ChemicalBank, 63 NY2d 541, 542 [1984]; Matter of Eastport Assoc., Inc. v New York State Div. of HumanRights, 71 AD3d 890, 891 [2010]; Matter of State Div. of Human Rights v Koch, 60 AD3d 777,777-778 [2009]).
The award of the principal sum of $79,827 in back pay is supported by substantial evidence(see Matter of State of New York v New York State Div. of Human Rights, 284 AD2d882, 884 [2001]). Additionally, the award of the principal sum of $50,000 for mental anguish "isreasonably related to the wrongdoing, supported by substantial evidence, and similar tocomparable awards for similar injuries" (Matter of Columbia Sussex Corp. v New York State Div. of HumanRights, 63 AD3d 736 [2009]; see Matter of AMR Servs. Corp. v New York State Div. of HumanRights, 11 AD3d 609, 610 [2004]; Matter of Father Belle Community Ctr. v NewYork State Div. of Human Rights, 221 AD2d 44, 57 [1996]). Mastro, J.P., Florio, Eng andSgroi, JJ., concur.