Pharmacy Director’s Race, Religion, National Origin Discrimination Claims Properly Dismissed; Article 78 Proceeding Unsuccessful

From Matter of Khan v. N.Y. City Health & Hosps. Corp., 144 A.D.3d 600 (N.Y. App. Div. 1st Dept. Nov. 29, 2016):

The termination of petitioner’s appointment as Director of Pharmacy did not violate a constitutional or statutory provision or a policy established by decisional law (see Matter of Bergamini v. Manhattan & Bronx Surface Tr. Operating Auth., 62 N.Y.2d 897 [1984]; Matter of Stanziale v. Executive Dept., Off. of Gen. Servs., 55 N.Y.2d 735 [1981] ). In response to complaints from a number of his subordinates that petitioner favored employees of his own national origin, including his brother-in-law, giving them more favorable schedules and faster promotions, and discriminated against women and persons not of his own national origin, HHC conducted an investigation, which substantiated the complaints. Petitioner’s contentions notwithstanding, the investigation was not unduly abbreviated or one-sided; HHC’s investigating agent engaged in extensive interviews of departmental employees, including petitioner himself (cf. Tenenbaum v. State Div. of Human Rights, 50 A.D.2d 257, 259, 376 N.Y.S.2d 542 [1st Dept 1975] [“there were unresolved factual issues which could not be determined without according petitioner a complete and unequivocal right to be present at the preliminary conference” on his petition] ). Notably, during his interview with HHC’s agent and in a written response to HHC’s written inquiry, petitioner continued to falsely deny that he had any familial relationship with any HHC employee, although his brother-in-law was a member of his department.2 Petitioner failed to support his contention that he was discriminated against on account of his race, religion, and national origin with evidence of discriminatory animus on the part of any respondent. Nor did petitioner point to evidence that the investigation itself was a pretext for discrimination. Under settled law, the substantiated, nonpretextual complaints of petitioner’s subordinates comprise a legitimate, nondiscriminatory, nonretaliatory reason for his termination as Director of Pharmacy, and are fatal to the claims raised in the amended petition of unlawful discrimination and retaliation in violation of the New York State and City Human Rights Laws.

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